To the Editor:
“Courting Death: Assisted Suicide, Doctors, and the Law” by Leon R. Kass and Nelson Lund [December 1996], while tendentious and muddleheaded on the nature of our Constitution, is at heart—and, as a non-Jew, I can say this most persuasively—profoundly disrespectful of the Jewish tradition of religious tolerance. For most of recorded history Judaism has, alas, been a small, beset, and persecuted religion. Appropriately for its own existence, in the last two millennia it has vehemently called for and supported religious toleration.
As the ethicist-philosopher of law Ronald Dworkin has so beautifully set forth in Life’s Dominion, how a person chooses to end his life is a profoundly religious act: “quintessentially religious” is how Dworkin describes it. It will be recalled that the First Amendment provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Accordingly, no government may lawfully intrude into the inherently personal-conscience-religious decision of how one chooses to die.
The authors’ view of the Constitution is so crabbed and retrograde it would be summarily dismissed by a first-year law student. The Constitution is a living, vital instrument, meant to endure for a long period. Plainly, in 1789, all the subjects that might fall within its purview in succeeding centuries could not be set down. The Constitution does not mention assisted suicide. So what? Neither does it mention abortion (declared protected in Roe v. Wade), movies, or sound-recordings, the last two unmistakably comprehended within the free-speech/free-press provisions of the First Amendment.
The more serious indictment of the article, however, is its schizoid view of the American physician. On the one hand, the physician is held out as engaged in a virtually religious calling. On the other, he is painted as a proto-murderer, waiting for any opportunity to slay his hapless patient.
C’mon, give me a break! This is ridiculous.
If physicians were really so intent on murdering their patients they would today find innumerable opportunities to do so, by withholding life-support, giving overdoses of drugs, etc. But in fact, there is no reliable evidence of any except rare and isolated instances of physicians acting to murder their patients.
It is paradoxical that the death-with-dignity movement has a higher regard for the ethical nature of American medicine than do those fighting this movement, ostensibly in the interest of preserving the high ethics of physicians.
Finally, Messrs. Kass and Lund are profoundly disrespectful of freedom. They wish to curtail the freedom of dying patients to exercise their own choices as to the “quintessentially religious” decisions involved in their dying. They wish to curtail the freedom of physicians to respond to their patients as their individual religious-ethical beliefs call upon them to do. For physician aid-in-dying is at heart the freeing of the physician: to follow his religious-ethical conscience.
Messrs. Kass and Lund are afraid of freedom: for themselves, for patients, and for other physicians.
Winthrop Drake Thies
Hemlock Society of
New Jersey, Inc.
Maplewood, New Jersey
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To the Editor:
Leon R. Kass and Nelson Lund maintain that if the Supreme Court
decides whether to promulgate a new constitutional doctrine effectively ending the ability of state governments to interfere with physician-assisted suicides, . . . judges will henceforth become responsible for resolving some of the most delicate aspects of the relationship between physicians and their patients.
Should readers believe this simply on the authors’ word? Has this been the Dutch experience?
Courts become involved in the details of medical decisions only if patients, medical organizations, or doctors find fault with one another’s decisions and, at the instigation of lawyers or with legal advice, think that something can be gained through litigation. How much and what kind of litigation would come about if assisted suicide were legalized is an open question. The New York Times published an estimate that only 2 percent of medical-malpractice cases now result in litigation. Messrs. Kass and Lund indicate in their article that American doctors already expedite death. Evidently, they have been doing so without having unleashed many lawsuits.
The authors cannot decide whether doctors are, or should be, guided by medical ethics. On the one hand, they cite ancient medical codes, like the Hippocratic Oath. On the other hand, they say that American doctors cannot be counted upon to act in accordance with such codes. Which story should readers believe? According to generally available information, today in the U.S. 13 percent of GNP is sluiced through medical practice yet tens of millions are uninsured; doctors underserve or overserve patients depending on the terms of medical payment; and millions of popular surgeries prove to have been unnecessary.
Medical ethics does not explain, and obviously cannot control, the behavior of American medical professionals. So why do Messrs. Kass and Lund warn that the relatives of patients could have something to gain by assisting suicide? Who has more to gain, or lose, by establishing sensible rules about assisted suicide? Certainly, health administrators, doctors, and nurses have something to gain by keeping patients alive. But is the net financial result of medical personnel postponing death to pauperize the patients themselves, their survivors, the pool of medically insured, and/or the taxpayers who fund Medicare and Medicaid?
I propose that Messrs. Kass and Lund join the rest of us mere mortals in a common quest to determine when enough zeal in prolonging life is enough, and when we the people have a duty to get on with death so as not to deplete our survivors of their resources or their vitality.
Philip Groth
University of Wisconsin
Centers
Janesville, Wisconsin
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To the Editor:
Even if I could present the case for assisted suicide with as much knowledge about medicine and law as Leon R. Kass and Nelson Lund do in attempting to prove that this practice is immoral, I doubt that I could convert them any more than their article converted me. Our views on euthanasia, as on birth control, abortion, homosexuality, etc., are based on feelings that were formed long before we could reason about them.
But if we leave aside the question of morality and discuss only whether those who assist in suicide should be punished as criminals, I think I can convince those who consider such an act to be immoral that they should nevertheless support its legalization.
All Americans generally agree that our government should not interfere with our freedom to act in accordance with our conscience when such acts do not harm others. Evidence of this position can be found in our unwillingness to have the government prohibit many practices that most of us consider immoral. But when we say we want our government to prohibit acts which harm others, we mean acts which are already judged to be criminal by all of us. That is why we cannot forcibly prevent someone from attending a church even if our religion judges that church to be immoral.
To act according to one’s conscience, whether it be to choose assisted suicide or to refuse it, does not require the government to protect us (provided that we are adults) from examples that may tempt us to act differently from the way we might have acted in the absence of such examples.
If assisted suicide becomes legal, all of us will have the freedom to refuse as well as to choose such an action, according to our consciences, without violating the law. Isn’t such a situation more consistent with our democratic ethos, as it has developed throughout our history, than the present situation in which the government denies this basic freedom?
Lawrence Hyman
Ridgewood, New Jersey
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To the Editor:
Leon R. Kass and Nelson Lund are so lucid and logical that I must accept their conclusion that assisted suicide could degrade the doctor-patient relationship and jeopardize salvageable patients. Is there, then, no relief from the houses of horror which even well-run nursing homes have become, now that their residents’ average age is much higher than it was years ago? Every day it is my depressing duty to visit such a place, depressing even though the staff is remarkably sweet. However, about a third of the residents are active, a third semi-senile, and a third not conscious of their surroundings. One woman spent four years comatose, at a cost to Medicaid of about $70,000 per year. Residents cost Medicare several thousand dollars a year, too, not counting major surgery.
The staff attempts to entertain the residents, but half the residents cannot see, hear, read, or understand television or any but the simplest conversations. Many of the residents have nightmarish delusions, hostile misunderstandings with other people, or sit in silence all day, head aslant. They lack a meaningful quality of human life. What are we doing in warehousing those shells of human beings?
Richard H. Shulman
New York City
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To the Editor:
The subject of assisted suicide can be broken down into three issues: (1) should assistance in suicide be allowed; (2) if allowed, who should be permitted to assist; and (3) who should be barred from assisting?
Although ambivalent on the first issue, I have a strong opinion on the third: I am opposed to having physicians assist in suicide. Thus, I was pleased to see the article by Leon R. Kass and Nelson Lund.
My father, aged ninety-eight, died at home of natural causes last year. He talked of suicide on occasion, usually in a doctor’s office. But I do not think he really wanted to die. I think he was just protesting the indignities, limitations, and pains of old age, of which he endured many. After all, he could have tried suicide, but he never did. However, because of a physician’s position and knowledge, my father would have been very susceptible to an offer of “assistance” from his doctor, especially, perhaps, to spare me the burden of caring for him.
Barbara Broaddus
Burlingame, California
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To the Editor:
Thank you for a very disturbing article on euthanasia. My only regret is that the authors did not go far enough in warning the public against legalizing assisted suicide. If euthanasia were ever legalized in the United States, it would be only a matter of time before the politicians realized how much money could be saved by this terrible practice. Then the next step would be to make it compulsory. Yes, compulsory. Liberal do-gooders have a remarkable talent for making compulsory everything that is not specifically forbidden by law.
Some of your readers may think that voluntary and involuntary euthanasia is tolerated only in Holland. I do not have any definitive proof, since I am only a layman, but if my ninety-two-year-old mother’s passing several years ago is any indication, this terrible practice has already crossed the Atlantic into Canada.
My mother underwent surgery for cancer about three months before her death. About ten days before she died, she was admitted to the palliative-care unit of the Baycrest Centre in Toronto. She did not have any serious problems with pain at that point and was amazingly lucid considering her advanced age and condition. Two days later, she was hooked up to a morphine pump, without any warning or consultation with me. From that moment on, she never spoke another word and died about a week later.
The social worker I complained to told me not to worry, since it takes the body several days to get used to morphine. After a few days I complained to the attending physician and suggested to him that he was practicing euthanasia by stealth. He told me that it is not possible to kill with morphine because the body metabolizes it very quickly.
Many Americans envy Canadians because we have socialized medicine. Don’t. At least your Dr. Kevorkian is honest about what he does.
Eliezer Greisdorf
Toronto, Ontario, Canada
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To the Editor:
In their masterful “Courting Death: Assisted Suicide, Doctors, and the Law,” Leon R. Kass and Nelson Lund make a key point when they note that terminal illness is notoriously difficult to predict accurately. Gerald would agree. He was in his early twenties when a highly malignant tumor was diagnosed. When I first met him he was bedridden and short of breath. He had masses throughout his body that actually grew from day to day. My teachers, experienced cancer specialists, agreed he had days to live. Nevertheless, he was given high-dose chemotherapy. The tumors shrank and eventually disappeared. Gerald went on to finish college, start a career, get married, and father a normal child. Had we “euthanized” him, we never would have discovered our error.
Gerald is a striking example of the inaccuracy of predictions of life expectancy, but hardly the only one. In a study published in the New England Journal of Medicine in 1991, cancer specialists predicted that 156 cancer patients had less than a year to live. In fact, 55 percent of these patients were still alive at one year, 15 percent at two years, and 3 percent at three years. All the patients had been diagnosed by experienced pathologists and had cancers that were not especially responsive to therapy. If specialists are wrong this often in patients with clear diagnoses, how often will general physicians be wrong in dealing with less firm diagnoses?
Perhaps this practical argument will be more effective than moral or legal arguments have been. When I first saw Gerald three decades ago, “physician-assisted death” meant a concerned doctor committed to caring for the patient until the end. That it now means something quite different is not a source of pride.
David C. Stolinsky, M.D.
Los Angeles, California
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To the Editor:
The article by Leon R. Kass and Nelson Lund was wonderful: it is by far the best thing I have read on this subject.
Joseph Astarita
New Rochelle, New York
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Leon R. Kass and Nelson Lund write:
Our critics appear not to have grasped our main point: even if the Supreme Court finds some sort of freedom to commit suicide protected by the Constitution, the Court should nonetheless uphold state statutes prohibiting assisted suicide. These laws serve rational and important practical purposes: they protect vulnerable patients against manipulated “choices” for death and against nonvoluntary euthanasia; they support the fragile ethic of medicine, which protects doctors against their own weaknesses by insisting on a bright-line distinction between allowing to die and deliberately killing. The state laws defend the general interest in keeping the healing profession from becoming also the death-dealing profession.
The Hemlock Society’s Winthrop Drake Thies subscribes to the Humpty-Dumpty school of constitutional interpretation: the words of the Constitution mean whatever I want them to mean and the Constitution proscribes all the laws I don’t like. This is clear on the face of Mr. Thies’s letter, when he assumes that the phrase “Congress shall make no law. . .” means “no government may lawfully. . . .” Similarly, Mr. Thies assumes that the absence of any reference to suicide in the Constitution is quite irrelevant to the constitutionality of laws against assisted suicide. Contrary to Mr. Thies’s suggestion, first-year law students do not universally treat the words of the Constitution as an irrelevancy, and the Supreme Court does so only rarely. In any event, we did not assert that the Constitution’s silence about suicide settles the constitutional issue. We did say that neither the Constitution nor the Supreme Court’s precedents provide a compelling basis for invalidating laws against assisted suicide, and we adhere to that claim.
Mr. Thies’s second point seems to be that laws against assisted suicide infringe on the religious freedom of patients and physicians. This seems to be the Humpty-Dumpty approach applied to the First Amendment’s guarantee of religious freedom. If I say that assisted suicide is a “quintessentially religious” act, then the act is protected by the Constitution. If this were accepted, then any law would become unenforceable when someone mouthed the word “religion” while violating it.
Mr. Thies’s worse than Humpty-Dumpty attitude toward religion is revealed in his sophistic attempt to make allies for the Hemlock Society by appealing to what he calls “the Jewish tradition of religious tolerance.” For reasons of self-preservation Jews welcome toleration, but as Jews they will have no truck with assisting suicide. According to authentic Jewish tradition, a Jew is obliged to accept martyrdom rather than commit an act that willfully ends an innocent human life. Further, Jews have sharp memories about what can happen when other people start justifying the taking of worthless life. Mr. Thies should stick to his own Hemlock “religion.”
Philip Groth rightly believes that there are unanswered questions about the exact effects that legalizing assisted suicide would have. But he is wrong to be so confident that the proscription against physician-assisted suicide is little more than an obstacle to sensible rules that would save money for everyone, from survivors to the taxpayers. The last paragraph of his letter is also shocking for the insouciance with which it ignores the fundamental distinction, heavily emphasized in our article, between the prudent withholding of life-prolonging treatments and the killing of patients by their doctors.
Lawrence Hyman argues that the government should allow any individual to commit any act that does not itself harm another person, even if the legalization of such acts may promote a great deal of harm to many persons. This sort of insistence on abstract principle, heedless of the consequences, implies that we should also legalize: indentured servitude, polygamy, all recreational drugs, prostitution, cruelty to animals, and the possession by individuals of the ingredients for nuclear weapons. We will take a pass on Mr. Hyman’s version of “our democratic ethos.”
We agree with Richard H. Shulman that many people have an appallingly low “quality of human life,” and that keeping some patients alive can cost a lot of money. We do not agree, however, that these facts suggest a need for euthanasia. Our answer to Mr. Shulman’s last question is simple: we are refraining from murder.
Proponents of assisted suicide who rest their case on autonomy and who naively believe, despite the evidence from Holland, that the practice will be confined to those who, sound of mind, freely elect death for themselves, should be stopped short by the suggestions of Mr. Groth (“a duty to get on with death”) and Mr. Shulman (“warehousing those shells of human beings”). The burden of proof falls on those who want us to believe that we can regulate the hemlock once we let it out of the bottle.
We thank Barbara Broaddus, Eliezer Greisdorf, and David C. Stolinsky for their informative examples, and Joseph Astarita for his kind words.
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