Jewish Law - Legal Briefs ("Vacco v. Quill")

Jewish Law - Examining Halacha, Jewish Issues and Secular Law

Vacco v. Quill
Supreme Court of the United States (1996)

III
ASSIGNING DIMINISHED LEGAL PROTECTION TO
A LIFE OF DIMINISHED MEDICAL QUALITY
FOLLOWS DANGEROUS HISTORICAL PRECEDENT

In evaluating the state's interest in preserving and protecting a person's life, the Ninth Circuit determined that the strength of the interest depends, in part, on the person's medical condition; when the person is terminally ill and wants to die, the strength of the state interest is low. 79 F.3d at 837. Similarly, the Second Circuit concluded -- unnecessarily for its equal protection analysis, as elaborated supra -- that the state's interest in preserving life "lessens as the potential for life diminishes." 80 F.3d at 729. In so doing, the courts below all but nullified this Court's observation that "a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life." Cruzan, supra, 497 U.S. at 282.

Historical precedent confirms the wisdom of allowing society to treat human life, whatever its medical "quality", as an inherent good that deserves state protection. One need look no further than the contemporary example of the Netherlands, where many physicians have apparently engaged in nonvoluntary euthanasia despite that nation's limited authorization of only voluntary euthanasia. The New York State Task Force on Life and the Law described this "abuse" as "an inevitable byproduct of the transition from policy to practice" of permitting the taking of human life "as a 'therapeutic' alternative." When Death Is Sought, supra, at 133-34.

The history of the German euthanasia program earlier this century, under which some 200,000 mentally ill or physically disabled people were put to death by German doctors, see generally M. Burleigh, Death and Deliverance: 'Euthanasia' in Germany 1900-45 (Cambridge Press 1994), also bears consideration. Burleigh cites Binding and Hoche's 1920 tract Permission for the Destruction of Life Unworthy of Life -- "by far the most influential contribution to the debate on euthanasia" -- as being premised on "the idea that every individual had sovereign powers to dispose of his or her own life as he or she saw fit; specifically to commit suicide." Upon that foundation the authors constructed a model that would lead to widespread medical killing in the name of mercy and social utilitarianism. Death and Deliverance, supra at 15-17.

In 1949, Dr. Leo Alexander, chief medical consultant to the prosecution at the Nuremberg War Crimes Tribunal, offered this trenchantly chilling analysis of the origins of the euthanasia program in Germany:

"Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually, the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude toward the nonrehabilitable sick."

Alexander, Medical Science Under Dictatorship, 241, New England Journal of Medicine 40, 46 (1949). Dr. Alexander sounded a warning to his fellow Americans:

"American physicians are still far from the point of thinking of killing centers, but they have arrived at a danger point of thinking, at which likelihood of full rehabilitation is considered a factor that should determine the amount of time, effort and cost to be devoted to a particular type of patient....Americans should remember that the enormity of a euthanasia movement is present in their own midst." Id.

We do not mean to suggest that constitutionalizing a right to assisted suicide is likely to lead to the type of moral collapse that occurred in the German medical profession earlier this century. As two commentators have noted, however, we dare not ignore the lessons of that dark era:

"We have witnessed too much history to disregard how easily a society may disvalue the lives of the 'unproductive.' The 'angel of mercy' can become the fanatic, bringing the 'comfort' of death to some who do not clearly want it, then to others who 'would really be better off dead,' and finally, to classes of 'undesirable persons,' which might include the terminally ill, the permanently unconscious, the severely senile, the pleasantly senile, the retarded, the incurably or chronically ill, and perhaps, the aged. . . . In the current environment, it may well prove convenient - and all too easy - to move from recognition of an individual's 'right to die' (to us, an unfortunate phrasing in the first instance) to a climate enforcing a 'duty to die.'"

Siegler & Weisbard, Against the Emerging Stream: Should Fluids and Nutritional Support be Discontinued?, 145 Archives of Internal Medicine 130-31 (1985). Yet another commentator issued this bleak observation:

"What makes the administrative mass killings so outstanding is not their numbers, their efficiency, or their cruelty, but the fact that they occurred in an epoch when nobody thought it was humanly or socially possible. Therein lies their deepest lesson. If it was possible then, why not again? What has fundamentally changed? The curtain may have gone down -- but only for the intermission." F. Wertham, The German Euthanasia Program 31 (1980).

In the decisions below, we detect -- ever so faintly, ever so benignly, but ever so ominously -- the rustling of the curtain once again.

Page 8 of 9
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9

DISCLAIMER

Page 8 of 9