The Linacre Quarterly
Volume 40 | Number 4 Article 4
November 1973 Euthanasia and Biathanasia: On Dying and Killing David W. Louisell
Follow this and additional works at: http://epublications.marquette.edu/lnq
Recommended Citation Louisell, David W. (1973) "Euthanasia and Biathanasia: On Dying and Killing," The Linacre Quarterly: Vol. 40 : No. 4 , Article 4. Available at: http://epublications.marquette.edu/lnq/vol40/iss4/4 pulses had little counte rpa rt in apparently it was amo ng the reac the publi c~s reaction, whic h evi tors to "The Very Personal Death denced a bitterness not unlike that of Elizabeth Schell Holt-Hartford.'' of Mrs. Holt-Hartford's own declin It has come to mean the deliberate. ing years. In a wo rd, the sponsor intended putting to death painless Euthanasia and B iathanasia: was c harged with advocating eutha ly of o ne human perso n by another, On Dying and Killing nasia. The reactions ranged fro m the willed terminatio n of human the frenetic to the thoughtful, one li fe, which is a euphemism for mur David W . Louisell writer po inting out that what was der as defined by our law. It would reprehensible about the program have been better to adhere to the was (according to his interpreta original meaning of "euthanasia" tion) that the only solutio n to the and use another word, perhaps "bi . . problem of old age that was sug athanasia" for deliberate, affirma '·· .0 .'. gested was euthanasia. One who tive killing in the mercy-death con did no t view the program will with text. But so pervasive and un iversal hold appraisal of the accuracy of is the te rmino logical corruption Introduction: The Nature the story was a lady li ving me. this essentially artistic judgment that scholars, too, seem to have re of the Dilemma who had been d ivorced and ally of .the theme. The interesting thing linquished any notion of restoring Not long ago one of the country"s died at the age of 82, lea' no for our purposes w~s the universal original usage and have accepted great financial ho uses sponsnred a known survivo rs. She o ft en oke use of the word "euthanasia" to the modern meaning of euthanasia. te levision show call ed ··The Very of her dire need for, but I< of. characterize that theme. Yo u have T hus Professor Arthur J. Dyck, in Personal Death of E li zabeth Schell human companio nship. The ·nse advocated e uthanasia , and eutha using "euthanasia" in the modern Ho lt-Hartford." It starkly drama of her unhappiness can aim be nasia is murder! sense, would adopt as a synonym tized one of the saddest phases of to uc hed fro m her own wo for its original meaning the Latin the human condition, perhaps es ·' It's such a grim life; th mly Had I been privy to the reactions expression, benemortasia. 2 thing yo u can do is to bear ll ntil pecially cruel quantitatively and to "The Very Personal Death of quali tatively in o ur generation: the someone shoots you." Her hysi Elizabeth Schell Ho lt-Hartford" The Definitional Problem: lo neliness, sense of uselessness and cian tells her, "Yo u do not now when the facl.\lty invited me to de Voluntary and Involuntary abando nme nt, and bitte rness of wha t is on the o ther s ide'" a1 she liver the Po pe John XXIII lecture Euthanasia answers "What I know is l this .' many o ld people. The subject of this year, I wonder whether 1 wo uld side a nd l don't want any n ··e of have had the fortitude to persevere it." That she remains ratim• and Taking "eutha nasia", in accor with a title using "Eutha nasia." dance with modern usage, to mean Proj"essor Louise//. a member o/ indeed intellectua l even aft she Yet, in its precise mea ning. '"eu deli berate , intentio nal painless the Linacre £di10ria/ ad1•isoty broke her hip and was i mm ~ ·l ized thaneasia" is the desideratum of killing is only the beginning of the board. is the Elizabeth Josselyn - po inting o ut for exampl that religion as well as of any mo rally definitional problem. Do we mean Boalt Professor of Law at the Uni she kno ws she is lucky co1 Me cl or ethically based socia l policy that to include such a killing o nly when versity of California Law School in to the aged poverty-strid n of has to do with death. Coming from it is sought and requested by the Be rke ley. His article was original~' ' India - seems only to exat rbate the Greek words meaning "good" euthanatee, or also one imposed delivered as the . 1972 Pope John the tragedy by emphasizir the and "death", it specifies the kind upon him without regard to his XXJJJ lecture at the Catholic Uni fe lt pain . of a death that must be as much consent - the elimination of defec versitv ol America. Ai his request. At the beginning the annl IJ ncer the ideal of the moral theologian tive o r hopelessly ill or senile per we p~tbii:sh this article as delivered had sa id: ··Because of the set ~ i tive as it is of the philosopher and sons, for example, Hitler's "useless with all of the nuances arising out na ture o f this program (the sp· nsor) secular humanist - a happy death. eaters"? In a word, d o we mean only of the delicate ethical distinctions has relinquished all comn,c:rcial Yet its corruption seems as perva voluntary, o r a lso involuntary, eu drawn. messages." But its generous im- sive in popular usage generally as thanasia?
234 Linacre Quarterly November, 1973 235 On the surface, the dichotomy to overly generalize about cw ms on euthanasia was bro ught befo re The Euthan.asia Society of Ameri would appear clean-cut. If so, the of euthanasia among primitive 'or ttie United Kingdom Parlia ment in ca was constituted in 1938 and a precise thinker would have cause many societies have actually en 1936. It required for e ligibility fo r bill, following the 1936 British mod to resent the countering of argu shown to have had elaborate l les euthanasia that the patient be over el, was introduced that year in the ment for o r against voluntary eutha protective of their senio r men rs. twenty-one years of age, be suffe r Nebraska Assembly but lost. A simi "Instances of this are seen in ho nasia, with argument pertinent only ing from an incurable and fa tal ill lar attempt fa iled in the New Yo rk tality custo ms, property rights, r, to the involuntary kind. For exam ness, and sign a form in the pre Assembly.12 "The Euthanasia So . taboos reserving certain choice dis , ...... ·.. .. ple, during the debate on the 1936 fo r the aged (ostensibly as harn· sence of two witnesses asking to be c iety of America had at first pro 1.,. bill in Parliament for voluntary .. . . ;' ·.,. ' to the young) and other usages. "4 put to death. It embraced relati vely posed to advocate the compulsory ·. e uthanasia, one of the promine nt Doubtless the settled agricul ·al complicated legal proceedings in 'euthanasia' of monstrosities and pro ponents invoked two dramatic communities showed the ~ est cluding investigation by a e uthana imbeciles, but as a result of replies and appealing cases, one where a level of soli citude for the el ;ly, sia referee and a hearing before a to a questionnaire addressed to man had drowned his four year old as witness the laws of the He: :ws special court. In 1950 the re was physicians in the State of New York daug hter who had contracted tuber in the Old Testament forbi ing further debate in the House o f in 1941, it decided to limit itself culosis and had develobed gangre ne Lords on a motion in favo r of vol the killing of the innocent an' LJ St. to propaganda for voluntary e utha on the face, the other where a wo m untary euthanasia.7 In classical Greece there doL not nasia."13 To what extent the pur an had killed her mother who was The distinguished legal scholar seem to have been abandonm· t of po rted restriction of recent eu suffe ring from general paralysis elderly or helpless adults. Of <. trse and specialist in criminal law, Pro thanasia efforts to the voluntary of the insane. Obviously these were in ancient Ro me, largely undt the fessor Glanville Willia ms, realizing kind, is a function of the euthana instances of compulsory. o r in vol influence of the Stoics, suicid was the practical necessity of coun ter s ia of Nazi Germany and revela untary, e uthanasia, yet, although a n accepted form of death as es ing the contention that too much tions of the Nuremberg trials, is the propo nent acknowledged that cape from disgrace at the hat ·, of formality in the sick room would a matter for speculation.t4 In any the cases were not covered by the an enemy, as indeed it wa1. ntil destroy the doctor-pati e nt relation,s event, there is today no country in proposed bill for voluntary e utha recently at least in Japan und. the in his classic The Sanctity of Life the wo rld whose law permits eu nasia, they were the o nly specific form o f hara-kiri. Yet Cicero .vho and the Criminal La w9 proposed a thanasia either of the voluntary or cases he described.a had written: "The God that ules simple formula quite different from involuntary type. French and Swiss Digging a bit below the surface within us forbids us to depart i. ·nee the 1936 attempt. He suggested the permissiveness whereby a physi of the voluntary-involuntary di unbidden" abided his com • tion uncomplicated provisio n that no cian may provide, but may not ad c hotomy may render the purist and declin ed to play the· "R man medical practitioner sho uld be guil minister, poison at the request of ty of an offense in respect of an more understanding of the ·reasons fool" when pursued to death l • 1h e a dying patient, is to be distin for the confusion a nd more to le r· re venge of Antony.5 Jewish, ( hris act done intentio nally to accelerate guished.15 ant of the confused. A page of his tian and Is lamic teachings ,dik e the death o f a patient who is seri tory may again be worth a chapter have always maintained th a de ously ill, unless it is proved that th e Some Difficulties of linguis tic analysis. liberate killing in case o f abn ~> mal act was not do ne in good faith and In view of the facial restric tion Among some primitive people ity or incura ble illness is wrong T he for the purpose of saving him from of the current euthanasia move the abandonme nt or killing of the appare nt exceptio n in St. T h lmas severe pain in an illness believed to me nt to the voluntary type, why in aged or helpless apparently was an Moore's Utopia is often ove r read be of an incurable and fatal charac the argument over it does confu ter. to This was the basis of the 1968 accepted practice. The Hottentots to imply his personal endorsemcnt.6 sio n persist as to what precisely is · draft bill which, with changes, was carried the ir elderly parents into The modern interest in euthana being proposed. Why has Glanville the bush to die. The Lapp who be sia is usually date d from the I ~70's debated in the Lo rds in 1969. The Williams protested: came too infirm to trek over the but the formal movement did not most recent parlimentary euthana mo untains with their families were begin in Britain until the 1930. !-> with sia debate was in the Ho use of Com T he !English Society's! bill Jdehated in ·Lords in 1936 and 19501 excluded left behind to die unattended, their the organization in 1935 or the mons in April, 1970, on a motion for leave to introduce a bill.ll No any question of compulsory eutha frozen corpses to be buried o n g roup now known as the Voluntary nasia. even fo r hopelessly defective the family's return. But it is easy Euthanasia Society. The fi rst bill statute has been e nacted. infants. Unfortunately, a legislali ve
236 Linacre Quarterly November, 1973 237 . thought. As Professor Yale Kamisar proposa l is not assured of success Criminal Law, was: "The use at months preceding its expiry date asks: " If .. . a man in this plight merely because it is worded in a stu· may be made of my proposed r ·a shall remain ·in force, unless re diously moderate and restrictive form. (throes of serious pain o r disease) sure (euthanasia) in respect of m voked, during the lifetime of the The method of attack, by those who were a criminal defendant and he declarant.27 Even so, the problem dislike the proposal, is to use the '"thin tients who are mino rs is best ·ft were to decline the assistance of of the continuing effectiveness of edge of the wedge" argument ... to the good sense of the doctor. k· There is no proposal for reform of counsel would the courts hold that a declaration, during for example ing into account, as he always d -!S. any topic, however conciliatory and he had 'intelligently and under the declarant's long coma with for the wishes of the parents as ..:11 moderate, that cannot be opposed by standingly waived the benefit of 17 instance a spouse claiming its re 16 as those of the child." Those s ·p this dialectic. counsel'?''25 Would a confession vocation might raise - but in an Lical about the vagaries and n m· made in such circumstances be •. even more psychologically trauma I , • At least several observations are losity of judicial "discretion" •ill ' ·• admissible? tic context - the afore-suggested . pertinent in expla nation of the per take note!l8 sisting terminological confusion. impo nderables of a life-death de Some perhaps pertain only to sub Secondly, by definition vc un· c ision made by one for another. Fo urthly, what of the proposed jective appraisal of the good faith tary euthanasia would be avai ble '·· euthanatee who is unable to com of discussants, but others seem to only to those who freely, ir• ·IIi Lastly, Glanville Williams' re municate for himself, for example proceed from the reality that, in gently and knowingly reque) it. sentment of the "thin edge of the the victim of lasting coma? Would •.· trinsically, voluntary euthanasia is T his presupposes n1ental co pe wedge" opposition to e uthanasia, .· ·.· another, possibly a spouse o r next ., not as severable from the involun te nce. Might the test-of compe l 1ce however justified in the abstract, of kin, be presumed to be a compe tary as the clean-cut verbal distinc be as intangible and uncertai as, loses cogency in the actual context tent speaker for him? Those who tion suggests. in a given case, it may be in re .ect of the movement's strategy and tac of execution of a will; or co• ni t· have inquired into the a u thority of tics. I submit that Yale Kamisar First, the problem of the rights '. of minors always lurks to compound ment as potentially dangerou or one to bear for another the de has convincingly demonstrated that responsibility for criminal COi luct cisional burden in the more con the difficulties of human forays in the movement's purpose and meth - whether under the M'Nagh n, 19 to li fe-death decisions unless appli ventional medical dilemmas (such od substantially has been utilization Durham,2° Model Penal C. le,21 for example where the doctrine of of the "wedge" principle.28 My con cation to mi"nors is explicitly pre 22 cluded. Normally decisions respect or diminished responsibility 1 -; t; informed consent may require that viction in this regard has been for or capacity to stand trial.23 T l : de· ing serious medical procedures on information about a dangerous pro tified by my persona l o bservations termination of competence •ight '. +•• minors must await parental or guar cedure be given the patie nt which of how effectively the "wedge" prin , be in a context even more mer· . he is psychologically unable to t I f dian approval, although historically ciple has been used in the move .~ . gent and difficult than that hich there have been exceptions for bear, and the physician instead ment to permissive abortion . I have exists fo r conventional deter nina· emergencies and now further ex speaks with the spouse) know how heard the public protests of the ·. tions, and the significance of ~ rro r ceptions under the impetus of per diffic ul t it is to construct a n ade proponents "All we want is this even more dire, that is, irreve sible. missive abortion laws. If euthanasia quate juridical basis fo r place moderate statute" (as they charac Moreover difficulties might and is right, should it be withheld from ment of the patient's burden of terized the California one, permit perhaps typically would be. com· an intelligent and knowledgeable decision on another. even a loving ti ng abortion when the mother's pounded by the inhibition o free minor, say one of a n age whose spouse.26 After all , an adult under physical or mental health is threat· choice inherent in subjection to judgment would be highly pertinent no legal disability has no natural ened and in case of felo nious sex pain-killing drugs.24 29 to judicial decision respecting child guardian. The 1969 British bill per- ual assault) "give us this a nd we . haps avoids this dilemna at least in custody in divorce-cases? And if the Thirdly, quite independently of will ask no more." But I heard them part by providing that a declara minor and parent differ.on accelera the effect of narcotics on con· simultaneously boasting privately: tion of the former's death, whose sciousness, pain itself, the toxic tion for euthanasia shall come into "Just wait till the door is opened. force days after being made, judgment controls? Confronted effects of disease, a nd the reper· 30 and our foot is in it !" The boast shall remain in force, unless re with this dilemna, apparently the cussions of surgical procedures may was not an idle one. A physician voked, for three years, a nd a de best that Glanville Williams could substantially undermine the capac· has drawn a meaningful parallel: claration re-executed within the 12 do in The Sanctity of Life and the ity for rational and independent " I don't think that human con-
November, 1973 238 Linacre QuarterlY 239 scio usness and psychology as it and of a (5) fixed and (6) ratio• er may safely ignore a person in indeed, perhaps even morally ob· exists in our society today could . desire to die .. _33 ·dire predicament - a drowning ligatory. tolerate euthanasia. Yet 20 years But before applying that d efi r on child, fo r . example - whereas if ago our society wouldn't have tol to o ur problem, a few more re· he acts St. Luke's Good Samaritan Similarly, I maintain that the use erated extensive abortion. Our role and undertakes· rescue he is liminary delineations a re in 1 fe r. of drugs to alleviate pain, even mo res c hange."30 held to the standard of due care,36 though that use in fact may hasten The "thin edge of the wedge" does not govern in the typical appli More Definitional Problen death, is not "euthanasia" in the danger is real; the camel's nose does cation of the "extraordinary" - •• (i) Euthanasia v. Extraordin y modern meaning of direct, deliber .. get under the tent; once opened, "ordinary" means distinction. Un • . I • Means to Preserve Life:. ate killing, because even if in both . . .. der the common law rule (which by the movement of the door to death ( ii) Euthanasia v. Alleviati cases death may be "willed" in ·. by human choice may be a con no means is universally accepted)37 .. ·' of Pain by Drugs the sense of desired, there is a dif stantly widening, and likely a a physician may refuse aid to the ference in means of abiding sig never narrowing, movement. It In the word "euthanasia" do stranger-victim of an emergency nificance in the realities of the seems pe rtinent to remember that not include - a nd I subm it hat without incurring legal liabili ty, human condition. Thus I think a . '. the Hitlerian eugenic euthanasia, one who struggles for prec ise >m however morally reprehensible his provision in the British euthanasia the e limination of "useless eaters," munication should not inclut abstenance may be, while in volun bill of 1969 works a disservice to whic h preceded his wholesale racial the withholding of . extraon' ary tarily rendering aid he incurs the clarity of analysis when it couples genocide, was supported by "hu means to preserve life . To cal the obligation of using due care.38 The a provision authorizing true eutha manitarian" petitio ns to him by mere withholding of extraord ..t ry way this caused Good Samaritan nasia with one declaring that a pa· parents of malformed children re means "indirect voluntary e tha statutes, exculpating the physic ian tient suffering from an irremediable questing authority for "mercy nasia" is I submit, taking int ac· who follows his conscience rather condition reasonably thought in deaths." It is perhaps the supreme count the currently accepted r an· than his convenience, to sweep the his case to be terminal shall be irony that at first Jews were appar ing of "euthanasia" as delib ate country like prairie fire, is a story entitled to the administration of ently excluded from the program killing, a confusion of term ~ hat I have tried to tell elsewhere39 and whatever quantity of drugs may be on the ground that they did not cannot conduce to precisi<' of need not detain us here. required to keep him free from deserve the benefit of psychiatric thought.34 Putting aside for the pain.41 I submit there is no serious 31 euthanasia! moment the difficulties in ade" ate The important point for present practical question of the present Is the distinction between volun· ly a rticulating the differenc, be purposes is that the attending phy· legality of such use of drugs42 nor tary and involuntary euthanasia as tween "extraordinary" :md · 1rdi· sician is of course not a volunteer; any genuine problem with its ethi· meaningful and abiding as its facile nary" means of preserving li ft- the he is bound to the standards of cality.43 Daniel Maguire's recent verbal formulation would suggest? soundness of the distinction in ;)rin medical p erformance, including af question equating "positive action" But let us take the proponents at ciple becomes a part of my nain firmative acts, under the sanction and "calculated benign neglect" has their present word, and limit out thesis today. If the distinctio; be of malpractice liability, besides oth a similar defect, although in his discussion chiefly to so-called "vol· tween affirmative killing and IL! ting er sanctions. Thus an attending instance there is at least the justi· untary" euthanasia.32 And let us die is only a quibble, as some have physician's attempted justification fica tion of an ensuing explicit con· work with a definition of voluntary characterized it,35 my thesis ails. for failure to fulfill the standards frontation with the question's in euthanasia that puts the affirmative The student of this problem. es of medical practice, on the sole nuendo.44 case in the strongest possible terms, pecially one innured to common ground that his failure was "inac as I believe Professor Kamisar's law thinking, must be careful lest tion" rather than "affirmative ac Whether my conclusion that it definition does in ·assuming: he assimilate the "extraordinary" tion" would be prepostero us.40 But is ethical for the physician to ad· - "ordinary" means distinction to I shall attempt to show that a fail minister drugs to alleviate pain even A person ... in fact ( I ) presently in· our law's classic differentiation be ure to use "extraordinary" or "hero· to an extent that may shorten life curable, (2) beyond the aid of any ic" means is a different matter a nd, respite which may come along in his tween "action" and "inaction". The is any more viable than the prin· life expectancy, suffering (3) intol common law's notion that despite in a given context, may be both ciple of double effect, . or whether erable and (4) unmitigatable pain the relative ease of rescue a strang- legally and morally justifiable, or, indeed that principle is enough to
240 Linacre Quanerly November, 1973 241 sustain the distinction, let us put we ll as illegal killing - has air, ty killing, fornicating would be wrong aside for the moment. But I should been essentially presented by y cian, administration of euthanasia even if no church C{)ndemned them. would be as variable as the tremen candidly note here that I am no t law professor colleagues Yale I· Hijacking aircraft, tossing bombs into amo ng those inclined to emphasize misar,47 Charles E. Rice,48 and crowded shopping centers and selling dous variation in medical compe the moral value of pain. Sometimes vid Daube,49 and by Norman l. drugs to your c hildren ·are not sins tence. But not even the best physi the writers, particularly some of Jo hn Stevas. M.P ..50 and othL >I mentioned in the bible. Nor is eutha cian is infallible and mistakes, nec nasia. So keep religion u ut of this .. _ :;.~ the more ancient theologians, seem T herefore. I tarry o nly brie fl y h essarily irretrievable, would have almost to be arguing that it is, after the ethi cs of voluntary e utha n a I perhaps belie the wisdom implicit the odious flavor of avoidable trag a ll, human suffering that makes itself. that is, the deliberate, affi 1 a- in the foregoing when I reveal that edy. Moreover, the history of sci ., this the best of all possible worlds! tive, intentional act of effecti1 a the writer is the Archbishop of ence and medicine increasingly ·. .. • ~ .. 0 •• ; Amidst such mock heroics it is re mercy death. Westminister, Jo hn Cardinal Hee demonstrates that yesterday's in freshing to turn to the common nan. curable disease is subject matter of My o nly seri ous issue with ' t ) sense of Pius XII who in his Febru Are not the fo llowing reasons for today's ro utine treatment. Even "in fessor Kamisar concerns his t v . opposing voluntary euthanasia curable" cancer is sometimes sub . . , .. ary, 1957 address to the Italian anes /,. "Some Non-Religio us Views Ag: s l 55 . ... . :· thesio logists, after pointing o ut both "relig io us" and " no n-reli ject to remissions. In medicine, Proposed 'Me rcy-Killing' Le1. a ' • ' , 'r gious"? Ascertainment of a sick as in life itself, there is no true ' ., that the growth in the love of God lion". Supporting the distinc t n, person's abiding desire for death hopelessness. ·-· does not come from suffering itself he says: "I leave the religious _a u and persistent a nd true intention but from the intention of the will, me nts (for opposing euthanasia o Euthanasia would threaten the affirmatively to seek it, is intrin ' candidly concluded that instead of 52 patient-physician relationship; con ,. . '. the th eologians." True, the inj c sically diffic ult and often impossi assisting toward expiation and fidence might give way to suspicion. '• ' tion of Exodusf>3 "The innocent •d ble. The difficulties inhere in ill .. m erit, suffering can also fu rnish just ma n thou s halt not pur o Would a patient who had intended 45 ness with its pain and distraction, occasio n for new faults. Surely death'' arguably is a re ligious. 1r to revoke his declaration for eutha there must be a midground between and are compounded by narcotics perhaps more precisely, a theo i ~ ~ nasia have faith that his second and analgesics. Anything like the the exaltatio n of human suffering cal reason, fo r opposing e uthan <· ,.. word would be heeded? Can the legal standard for voluntariness in as glorious, and the attitude o fte~ physician, historic battler for life, He who is Lo rd of Life is also ·i other contexts, for example for lived by today that it is the ulti become an affirmative agent of mately Lord of the time of De h. criminal confessions, would be hard m ate evil , reflected in the automa But except as Scripture or e " a death without jeopardizing the trust to achieve. Would minors of knowl tic gulp fro m the aspirin bottle at potations therefrom, or from e of his dependents? Indeed, would edgeable age and discretion be al the mere hint of a headache. not his new function of active eu ceived C hristian traditio n,· fo n u lowed to elect it, and with or with tha nator tend psychologically to late religious reasons for oppo' 1g out parental consent? A decisio n The Ethics of undermine the physician's acclima e uthanasia, in what way do the · e made before illness to elect e utha Voluntary Euthanasia ti on to the historic mandate, " I lig ious" reasons differ from 1e nasia conditionally. would have Had this paper been presented place before you life and death. "no n-re ligious" or utilitarian on· <>? morbid aspects a nd would leave fiftee n years ago, its gist almost Therefore, c hoose li fe. "?56 And A warning comes to mind: lingering do ubts as to the continuity necessarily would have been an in what would acceptance of the psy of intention , especially with inter quiry into the ethics of euthanasia. chology o f e uthanasia do to the It is a great mistake to let poepl, vening coma. Euthanasia, if legall y But in the meantime such inquiry. peace of mind of the mass of the know that moral issues involve re formalized by procedural restric acutely engendered a t one stage by so-called incurables. ligio n. If you talk about religion yo• tions, would threaten to conve rt the running debate . between G Ian might just as well talk about politic' the sick room into an adjudicative Lastly, how lo ng would we have ville Williams46 and his o pponents. Everyone agrees that politics and r..: tribunal. The conseque nces of re voluntary euthanasia without sur has been richly productive. My ligion are a matter of op ini o~o. Yo u quired decisions and procedures rendering to pressures for the in viewpoint - that whatever th e dim can take your pick ... Let this be clear. When we talk might be harshe r for the famil y. voluntary? Wo uld no t the pressures inutio n o f mo ral re prehensibility abo ut moral problems we are not especially young children, than fo r be .truly ine xorable? Merely to ask by the facts of a given case,_ eutha talking about religious beliefs - w~i ch the dying person. If left essen nasia in principle is une th1cal as we can take or leave. Stealing, lymg. such questions and state these tially to the discre tion of the physi- points seems to belie a dichotomy
242 Linacre Quarterly November, 1973 243 between "re ligious" and "nGm-reli tain determined persons. de rives fr relative hardships on a realistic moting its accuracy, the theolo gious" reasons for opposing volun well ordered charity. from submis'• basis of one course· of conduct as gians have wisely incorporated into to the Creator, from social justice . contrasted with another.60 E ven tary euthanasia. I see essentially even from strict justice, as well the definitio ns qualifications nec human reasons.s7 from devotion toward o ne's famih means that are "ordinary" from the essitated by such cases as the three But normally one is he ld to viewpoint of medical practice, may year old's, as well as the common There is no Obligation only o rdinary means - accordinl be "extraordinary" in the to tality sense requirement that an artificial "Officiously to Keep Alive" circumstances of persons, pia· of life's dilemmas. means to be obligatory must be of the Dying times, and culture - that is to Take the case of a three-year old means that do not involve any gr potential usefulness. Thus: child, one of whose eyes had al Ordinary means are all medicines, If humor may be brought to con burden for oneself or another. A m· ready been removed surgically be treatments, and operations, which of· side ration even of these grim prob strict obligation would be too bur some fo r most men and would rer: r cause of malignant tumor. The fer a reasonable hope of benefit and lems - and perhaps the more seri which can be obta ined and used with the attainment of the higher, m •: other eye later became infected in o us the problem, the more helpful important good too difficult. L out excessive expense, pain, or other the same way, and medical progno inconvenience. the light touch - I may be par health, all temporal activities art ·1 Extraordinary means are all medi fact subordinated to spiritual er sis offered only the dilemma of do ned for commencing this part cines, treatments, and o perations, O n the other hand, o ne is not for either certain death without fur with the words of Arthur Hugh which cannot be obtained o r used den to take more than the stn. 11 ther surgery or a considerable prob without excessive expense, pain, or C lo ugh who apparently wrote in necessary steps to preserve life J ability of saving the child's life by other inconvenience, or which. if light vein: health, as long as he dOes not fa u n a second ophthalmectomy. From used. would not offer a reasonable Though shalt not kill, but need'st some more serious duty.59 not strive Officiously to keep alive.68 the medical viewpoint, doubtless hope of benefit.62 I submit that it is about as clear Although Pius XI£ did nol. be such surgery represents an ordinary Of course the physician cannot as human answers can be in such lieve, use the expression ·· .tra means of saving life. I take it to be be blamed for emphasizing the matte rs that there is no moral ob ordinary means" it has becomt -:us the prevailing theological view that purely medical considerations in ligation to keep alive by artificial tomary to capture his thoug' in (putting aside the additional prob his appraisal of the appropriate means the Elizabeth Schell Holt the shorthand phrase "distin tion lem of one acting for another - ness of the means for staving off Hartfords of the world whose lives between o rdinary and extn, 1rd i· the father for the three-year old) death. Necessarily this is the trend one is no t obliged to save his life nature would forfeit and who , in nary means." It is a convenient ·on of his training and competence, per when that entails a lifetime of total nature's terms, wish to die, or in densation but, as with short n. mes haps sometimes fortified by the po blindness. In other words, under C hristian terms, wish to pass over generally , may mislead unless , lari tentiality of malpractice liability. the circums tances the surgery to the promised land. I . submit fied . For one thing, there seer:·s to On a practical level the reco ncilia would be an extraordinary, and further that the law in no manner be considerable difference be tv. een tion of the physicia n's and moral seeks to set at nought this moral the significance typically given the morally not required, way of sav ist's views on extraordinuy means ing Iife.st truth. The moral idea was put this "ordinary and extraordinary mtans" is in the reality that, after a ll , the way by Pius XII when in November distinction by physicians on the Thus an artificial means, how decisio n as to how ha rd and far lO 1957 he a nswered questions for the one hand, and moral theologwns, ever ordinary in medical practi ce, push to keep life going by artificial International Congress of Anes on the other. Physicia ns seem to may be morally extraordinary and means, is ultimate ly the patient's. thesiologists: take the distinction as equivalent to not obligatory. Also, it may be not the physician's. That is, the that between customary and unu non-obligatory, even though o rdi physic ian may be legally obligated Natural reason and Christian mo r· sual means as a matter o f medical nary, because it is likely to be use to proffer what is c usto mary medi als say that man (and whoever is e n less. (I speak now of arllji'cial cal practice altho ugh the patient trusted with the task of taking care prac tice. Theologians pour into the of his fellowman) has the right and distinctio n all factors relevant to means, such as surgery . and no t of may be morally e ntitled to reject it the duty in case of serio us illness to appropriate moral decision how· natural things as furnishing of food . as extraordinary.63 Conversely, pre take the necessary treatment for the ever non-medical they may be: the drink and the means of rest). To s umably the patient is e ntitled to preservatio n of life and health . T his patient's philosophic preference, save the convenient distinc ti o n be have , in situations whe re that is his duty that one has toward himself. tween ordinary and extraordina ry final hope because lesser efforts toward God. toward the human com the conditions of the fami ly in munity. and in most cases toward cer· cluding the economic facts, the means, while at the same time pro- afford no promise. means that the
November, 1973 245 244 Linacre Quarterly p~ofessional pride, human ego, the poet's invocat.ion of the concept ol physician regards as medically unu medical technique, just because e thrill of the game, perhaps akin to conquering "the fever called 'Liv sual or extraordinary - although I has tried it out? Certainly not 'iO the lawyer's will to win? As to the ing.' "71 sho uld like to qualify this a mo ment where the patient declines furt' ~ r families, maybe one typically need That it is permissible to withhold later from the moral viewpoint. use; and when he is beyond per ~ n look no further than to the trauma extraordinary means to me seems While discussing physician al decision, because for exam le s' par tic shock of threatened death of so clear tha t future discussion is ticipation in the life-death decision unconscio us , c learance fron a spouse or family member seem. to a beloved. But is a sense of guilt likely to focus instead on whether al process, it is pertinent to note and unde r what circ umstances help , although as previously nc ~ d over past neglect, rather than love, an apparent tendency among them there is a duty to do so. Recall it is hard to find a juridical b ·~ is sometimes at least a partial explana •. to regard as more significant, and tion? In such an area one should not the ending of the quoted allocu more hazardous, the stopping of for letting one adult decide vr another.67 Estoppel might becon · a speak abstractly; each threatened tion of Pius XII: "One is not for extraordinary means compared to death is unique and very personal. bidden to take more than the failure to start them in the first rele vant defense in a sui t for wn •lg ful death. Who, however much in agreement strictly necessary steps to preserve place.64 Thus, there is more hesi life and health, as long as he does Can one wander through he with what I have just said, would tancy to turn off the resuscitator not fail in some more serious wards of the aged dying, obseP •ng not applaud the most persistent and ·. th an to decide originally not to turn duty."72 Doubtless that is the start the Elizabeth Schell H9lt-Hartfo ds. heroic efforts imaginable to succG>r it on. This distinction is I think ing point of the relevant analysis hearing the murmured prayers · '-et the youthful victim of a casualty from the oral viewpoint, only a such as an automobile accident? and doubtless, too, the decision quibble. Indeed, might there not me pass over," without reali. ing Who would deny that in such a case typically is for the patient, not the that o ften the frenetic e ffort ~ to be more justifi cation in ceasing every intendment of the presump physician. But what are the more resuscitate or just to keep g• .ng afte r a failing effort has been made. serious duties that should prepon are a n affro nt to human dignity In tion of the will to live should be in then in not trying in the first place? derate fo r example in the mind of all truth their objective is no as dulged by the physicians a nd all The medical attitude in this reg~ rd the head of the family, over ex much the prolongation of life <~> of concerned? seems more psychologically than travagant efforts to preserve his the process of dying. Can one d• ubt Perhaps these frene tic efforts to ratio nally based . Perhaps the phy own life? That profligate expense that the Master Observer of the keep going the earthly life of the sician has been excessively influ may deprive the children of educa human condition has perceived the aged that nature wo uld forfeit go enced by the common law's historic tion, certainly seems relevant. Hard hand in hand with the mate rialism distinction between "action" and moral as well as psychological re ly less so is the mental torture that of. modern society. The witty Hi "inaction." From the legal view ality when in his King Lear he put it: may be imposed on the family by latre Belloc observed: point it is worth noting tha t Pro V ex not his ghost: 0, let him pa ~,· indefinite prolongation o f the phy he hates him T hat would upon th.: fessor Kamisar's careful research Of old when men lay sick and sorely sical dissolution of its head. And fa iled to reveal by 1958 a single rack of this tough world Stretch h i111 tried. out longer.66 possibly, if medical facilities and case where there had been an in The doctors gave them physic and services increasingly become of they died. dictment, let alone a convictio n, for Needless to say, I now put a.;ide lesser availability in relation to the a " mercy-killing" by omission ;65 and the additional and relatively new But here's a happier age, for now we know demand, society's needs may some problem, not wi thout moral impli I know of none si nce. It seems Both how to make men sick and day be held to supersede the per legally far-fetched to convert "omis cations of its own, o f keeping a keep them so!70 sonal requests for extraordinary sion·· into "commission" by the body pronounced dead functioning The willingness to let pass those means even by those financially me re fac t that the machine is turned in pa rt essentially as an organ bank who are ready and wish to pass able to pay. off when it fails to be effective, for transplantation purposes.69 seems as much an act of Christian No sooner as one has thus spo ken rather than not turned on in the Since the case for no t stretching faith as of reco nciliatio n with na of the right, even possibly the duty, first place.66 Civil liability of course out longer seems so self-evident, ture's way. In this sense perhaps of ~ithh olding extraordinary means is something else; but is there really how e xplain the countervailing mo· there is as much of Christian hope than he wonders if his message much danger of malpractice be tives and practices of so many phy· fulness about death as of pagan tends to undermine the medical cause a physician ceases to con sicians and families? In the case of acceptance of dissolution in the professional's proudest boast and tinue to use an apparently hopeless the former, is it sometimes sheer
November, 1973 247 246 Linacre Quarterly happiest claim - its historic bull All of us, specifically Ia'\ ·rs, There is no set of ready·made rules than good substantively.79 This of to be applied to eachindividual case ; dogged defense of human life. For are under injunction to avoi( .he course presupposes the validity of the principles have to be applied, but the distinction, to which we now in result, even when not in motiva hypocrisy that inflicts on ma1 tnd this is the function of the virtue of tion, there is more than professional unnecessary burdens. One . ca not prudence, and with prudence as with turn. pride and human ego in the physi daily face in law school cl ses an, as Maritain points out, each new Daniel Maquire in Commonweal cian's strugglings. As Gerald Kelley, the youth of the country wit )Ut case is really a new and unique case, recently concluded: "It can be said each action is a unique action. What S.J. put it: "By working on even the perceiving that whatever may 1ve constitutes the goodness of an action that in certain cases, direct positive smallest hope doctors often pro happened to parts of the Decal! ue, is the relation of the mind not to intervention to bring on death may duce wonderful results, whereas a hypocrisy remains a n acknowle · ~ e d moral principles in the abstract but be morally permissible ... The ab defeatist attitude would in a certain and detested sin. Will o ur d i ~ nc to this individual moral action. Hence solutist stance opposed to this con an essential element of quasi-intuition se nse 'turn back the clock' of medi tions withstand indictment ~l ' de clusion must assume the burden of is at least implicit in every willed a nd cal progress. Also, this professional ception or sham? Can we 1 -;ist chosen action.76 proof - an impossible burden, I ideal is a sure preventive of an upon them without being L po believe."80 This conclusion on Incidentally, we common law e utha nasian mentality."73 crites? burden of proof will I think astound lawyers have admirable instruments Our last, and hardest question, Certainly the fact that ou1 lis the proceduralist, ce rtainly one of by which to effectuate the moral essentially becomes: Is the dis tinctions are fine does no of historical orientation, as much as ist's acknowledgment of the nec tinction between letting die, and itself condemn them, ·Biology. lsy the moralist. For centuries medical . : essity of accommodation of prin , ," 1 killing, sound enough to preclude chology and morality, like life e thics has drawn sharp and firm ... ·.. "(· the euthanasian mentality? itself, are filled with close ( tes ciple to fact. We have at the intel- .· · '. distinction between "positive ac . ' The Distinction between Killing, tions, narrow definitions, and ine lectual or formal level the institu tion" and "calculated benign neg and Letting Die, Continues to be distinctions.74 T he margin be tions of Equity and on the pragmatic lect," to use Maquire's own terms.81 Viable, Valid and Meaningful tween pain and pleasure rna be level trial by jury. True, the accom T he theologian's principle of dou If it is permissible to let die a as imprecise as that between ve modation by a jury may be radical ble effect is an ancie nt one. In the patient direly afflicted and sorely and hate.75 Nor is universal ·er indeed, as Dryden observed cen face of the historical realities, why, suffering, why is it wrong affirma tainty and equality of applic< ion turies ago: suddenly, this reversal of the bur tively to help him die with loving of principle to the facts of ( 1ses Who laughs but once to see an ass den of proof? Hardly because to- purpose and kindly means? The necessarily a test of the princil'le's Mumbling to make the co urse day's logic is sharper; the principle question poses stark challenge to validity. Appellate judges are grained thistles pass, of double effect has been reexam wont to say that much must be left Would laugh again to see a jury chaw ined and criticized by able minds philosopher, theologian, ethician, The thistles of an unpalatable law.77 moralist, physician, lawyer and all to the discretion of trial j u c~ es , for generations. Do the new psy persons of good will whether or not and moralists must concur that My only point in passing is that with chological insights justify such re re ligiously oriented. much must be left to the judgment such means of accommodation, I versal of the field? Quite the con Let us put onto the scales our of those who apply principle to doubt that we need formal provi trary, I submit. conclusions to the moment, on the hard facts. As Gerald Vann, O.P. sions of law to mitigate the poten put it: tial harshness in applying homicide The principle of double effect has one side the permissible things, on four criteria. Let us apply them to Moral action presupposes scient ' principles to mercy deaths. Wheth the other those forbidden. Note that the distinction perhaps the hardest on each side there is a negative and but is itself an an, the an of livin!'· er or not we do, is certainly a legi Moral science concerns itself fir't of all to sustain, that between the an affirmative thing. It is permissi timate and open question ; some will of all with general princ iples, as in· argue for statutes authorizing lesser administration of drugs to kill, on ble to withhold extraordinary deed being a science it must; but the penalties in case of euthanasia, as the one ha nd, and the administra means, and also to give drugs to subjec t of morality is not human ac tion to relieve pain even though tion in general, but this or that human in Norway.78 Personally. I fear that relieve pain even to the point o f death may be hastened, on the causing death. It is not permissible ac tion, in this or that set of circum formal provision for mitigation stances, and emanating from this or might do more harm educationally other. The crite ria are: to withhold ordinary means, or that personality. Hence the fact. by way of undermining the distinc (i) the act itself must be morally affirmatively and inte ntionally to remarked upon by Aristotle, that good, or at least neutral; cause death. ethics cannot be an e xact science. tion between letting die and killing,
249 248 Linacre Quarterly November, 1973 (ii) the purpose must be to achieve almost geometrically at least ~or All Souls College might have paid The additional dilemmas that the good consequence, the bad con the physician as he killed one ' ch a heavy price in an euthanasiac sequence being o nly a side effect: a regime of mercy deaths would (iii) the good effect must not be patient after another? And wh< of regime for an act that might have impose - such problems as ascer achieved by way of the bad, but both the repercussions of the diffen .ce been coerced by a sense o f obli tainment of true and abiding con must result from the same act; on the nurses and hospital · a .!n gation.84 To the sensitive and self sent - would seem of themselves (iv) the bad result must not be so dants?83 How long would the < al less especially, what the law would reasons for avoiding the creation serious as to outweigh the advantage ity and attitude of mercy sut ve permit might well become the mea 89 of the good result.82 of more unlighted paths. Is not death-intending cond uct? The ne sure of obligation to family and the preferred choice continuing Admittedly application of these between the civilized and sa\. .ge friends.ss progress in the alleviation of pain c riteria may produce nuances so in men is fine enough witr Jut There is no time to wend our and loving care of the Elizabeth delicate that the decision of o ne jeopardizing it by euthanasia. lis way back to the great natural law Schell Holt-Hartfords among our able and conscientious mind may tory teaches the line is mainr 1n· philosophers suc h as Heracli tus and neighbors, rather than killing? We be at odds with another equally able under the principle of dot 1le Cicero. In any event I claim no are only mortal, and in this area a able and conscientious. Conced effect; it might well not be undt · a special ·competence to lead the gra nd attempt to restructure the ing arguendo that a principle of regime of direct intentional kill 1g. trek, as has recently my colleague natural o rder seems more danger such ambivalent potential may have Moreover, I fear the effect~ on Ehrenzweig in his usually profound ous than hopeful. Nature can be logical deficiencies, is not the ulti and comprehensive way, albeit in harsh and c ruel, but it is never .· . : the family if law, sometimes he . ' mate question of its justification great teacher of o ur society, \1. re uncqnventional context.86 I cannot corrupt. Human will can be all not one of dry logic but of its psy to start to teach the leg itim ac~ of help wonder, though •. whether the three. chological validity? Let us suppose principal mischief with suc h life Perhaps after all I have discov direct killing. I am indebted to ; a physician, faced with his patie nt's my coll eague David Daube f,, a interfering proposals as euthanasia ered rapport with at least one song . intolerable pain unmitigable by ~es telling illustration of the vali· ·· ry is their undue deprecation of the the young folks sing, ·'Que sera, .. ser doses and his urgent plea for of this concern. There was at )x importance of the natural order sera." T here are some things tha t 0.. .••. relief, decides on a dose of analge ford one of the great historian!' of in human affairs. As a principal would be tha t we'd better let be. .~ sic likely to cause death. (You may the century who was to tally p 250 Linacre Quarterly November, 1973 251 script form hy the Joseph P. Kenn Jr. may thereby be hastened, is like distinction is put in J. Dede k , no te 14. 30. Dr. Michael Kaback, as quoted in Foundation. Washington. D.C. wise valid. .1·upra at I 33. Freeman. "The God Committee.'' The New J. Kamisar. ··some Non-Religious I.! WS When the question becomes one 17. Ibid. at 340. The proposed 1969 Brit York Times Maga=ine. May 21. 1972. p. 86. Against Proposed Mercy-Killing l sla ish bill excludes minors by providing that for the legal system, fortunately tion:· 42 Minn. L. Rev. 969, 1016.. ~8). 3 1. C. Rice. note 10 supra at 62-63: Ka "qualified patient" means a patient over our law has time-tested devices for 4. Your Death Warrant? (Gould an< ·a ig misar, note 3 supra at 1033. the age of majority. Death Warrant. App. myle. eds. 197 1). This book, frequenth ted, 32. In doing so. of course we put outside accommodating principle and facts, p. 139. is the product of a Study Group on ·tha o ur ambit one of life's most agonizing dilem notably the jury. It seems hardly 18. On other occasions I have attempted nasia set up as a joint venture by the tho mas. c rippling infant deformities which at to show the folly in contending that moral necessary or wise for us to attempt lie Union of Great Britain and the G I of extremity - in terminology as in actuality - value j udgments in the biological area are articulation of formal legal stan Catholic Doctors. The members of the Hl p produce mo nsters. The current attention exclusively for physicians just because they were C icely C larke, Lo rd C raigmyle, ( rles focuses sharply on meningomyelocele, spina dards of lesser liability in cases of have the technical medical competence, for Dent. J . G. Frost, J. E. MeA. G lanc\ .10, btfida. spina aperta. or open spine. See Free euthanasia than for other criminal example, Louisell, ''Abortion, the Practice Jonatha n Gould. F. J . Herbert, .:ph man, "The God Committee,'' The New York homicides in the manner of Nor of Medicine, and the Due Process o f Law," Molony, QC, G. E. Mo riarty, R. G. Times Magazine, May 21. 1972, p . 85. 16 U.C. L.A. L. Rev. 233, 245-246, ( 1969): wegian law. The harm of the edu O'Brien. F. F. M. Pole, Hugh Rossi, Ml 33. Kamisar, note 3 supra at 975. '. s. Louisell and Noonan, "Constitutional Bal cative effects of formalization of Tweedy and William T. Wells, QC (! re 34. P. Ramsey, The Patient as Person, 152- ance," in The Morality of Abortion 220, after the book will be cited simply as ·ath 53, ( 1970); C. Rice, note 10 supra at 68-69. lesser penalties for euthanasia, 256-257, (Noonan ed., 1970). See Jakobovits, Warrant. 35. J. Fletcher, "Euthanasia and Anti probably would outweigh the values "Jewish View o n Abortion," in Abortion 5. Death Warrant, 21. Dysthanasia (The Patient's Right to Die)" in thereby gained by way of certainty and the Law, 124, 125-126 ( 1967); Hellegers. 6. Death Warrant, 22; N. St. John-' vas, Moral Responsibility. 141-160, (1967). "Law and the Common Good," Common of legal consequence and surer Ltfe. Death and The Law, 270, (1961 36. "The result of all this is that the Good weal, june 30, 1967, at 418. guarantee of equal protection of 7. Death Warrant, 23-26. Samaritan who tries to he lp may find him 19. M 'Naghten's Case. 10 'Clark & F. 200, 8. The sick room under a eutha ~ iac self mulcted in damages. while the priest the law. 8 Eng. Rep. 718, (1843). regime has been likened to the goulish mg and the Levite who pass by on the o ther side Our era is one that seeks, and 20. Durham v. United States, 2 14 F. 2d ing scene, in which the executioner wo t. go go on their c heerful way rejoicing." Prosser. often for good reason, a constant 862 (D .C. Cir. 1954). to the condemned's cell, ascertain his " ght, Law of Torts. 339 (3rd ed .. 1964): Of course 21. §4.01: see also United States v. Cur expansion of a juridical order in his stature, the sturdiness of his ned etc. this assumes the absence of a relationship rens, 290 F.2d 751, (1961): Diamond. " From human affairs. But not every human All o f this ensued upon the judge's d< 1i ng that may impose a duty. e.g. teacher-pupil. M'Naghten to Currens, and Beyond," 50 ced carrier-passenger. inn keeper-guest. etc. relationship stands to profit from a black mask behind which he prono. Caltf L. Rev. 189, (1962). sentence. 37. German Criminal Code §330c: French complete juridicalization, as witness 22. People v. Wells, 33 Cal. 2d 330, 202 9. Chapter VIII, (1957). See also W ll tms, Penal Code Art. 63. See Louisell and Wil pare nt-child relations. Besides the P.2d 53, ( 1949); People v. Gorshen. 5 1 Cal.2d · "Mercy Killing Legislatio n - a Rejoit 'er." liams. note 26 supra ~21.42. 716, 336 P.2d 492, ( 1959); see Lo uisell & force of law, there is also the king 43 Minn. L. Rev. I , (1958); Williams, 1tha· 38. Ibid. at 1!21.35. ··r Hazard , " Insanity as a Defense: The Bifur dom o f love. Perhaps the best we nasia a nd Abortion," 38 U. Cold. Re v. 39. Ibid. Ch. XXI. L. cated Trial,'' 49 Caltf L. Re v. 805. 8 16. 178, (1966). 40. Ibid. Ch. VIII ; Kamisar. no te 3 .wpra can do is to work for the right of (1961). For brief summary o f St. Thomas 10. Williams, The Sanctity of Life an ' the at 982 n . 4 1; Meyers. The Human Bof(l' and our Elizabe th Schell Holt-Hartfo rds Aquinas' prescription of criteria relevant to Criminal Law, n. 9, supra at 340. Ser also the Law. 147-48. (1970l. peacefully to die when their time responsibil ity fo r acts, see Louisell & Dia C. Rice. The Vanishing Right to Li1 54. 41. Death Warrant. App. p . 141. mond, "Law and Psychiatry: Detente. En 42. It is true that good motive convention comes in the embrace of their neigh (1969). tente, o r Concomitance'!" 50 Corn. L. Q. ally does not per se preclude criminality in bors and fellow members of that 11 . The story of the Parliamentar) pro 217, 2 18 n. 8, ( 1965). homicide. Clark and M a rshall, Crimes, 263- posals and debates from 1936 through 1970 kingdom. 23. For cri teria of responsibility in the 65 (7th ed., 1967); Perkins, Criminal Law, is to ld in Death Warrant, 24-67. criminal area , see generally C lark and Mar 721, ( 1957); but cf. id. 723. Thus it remains 12. Ibid. at 26, 30. REFERENCES: shall, Crimes§6.0l (7th ed .. 1967); Diamond, arguable that the good motivation o f alle 13. Ibid. at 26. 1. Based o n program of KNXT-TV, Los "Criminal Responsibility o f the Mentally viating pain per se would not relieve from 14. Ibid. See also C. Rice, note 10 surra at Angeles. April 23, 1 97~. and ensuing un Ill.'' 14 Stan. L. Re v. 59, (1961). murder a physician who injected a heavy 6 1-63; J . Dedek. Human Ltfe: Some .\/oral puhlished info rmation. A comparable story 24. Kamisar. note 3 supra at 986-87. dose of drugs with knowledge that it certain Issues 121 ( 1972); Kamisar, note 3 sup a at is told hy Sweeney. "On the Occasion o f a 25. Ibid. at 987-88. ly would cause death, a ny more than one 1032 n . 2 13, 1034. Death in Boston," New York Times. Oct. 23. 26. Louisell & Williams, Medical Malprac- would be relieved who injected with the IIJ72, p. 3 1. 15. Death Warrant, 27. Apparent!) the tice §22.09 (Rev. ed .. 1971). specific purpose of killing. But the requisite 2. Saltonstall Profe s.~o r of Population at Law of Texas is in accord, Pe rkins, Criminal 27. Death Warrant. App. p. 140. proof o f certain "causatio n ," when death Harvard, in a re markable paper, Religion: Law, 67, (1957). 28. Kamisar, note 3 supra at 10 14-41. was in process in any event, would in the Aid or Obstacle to Life and Death Ded~io ns 16. Williams, notes 9-10 supra at 333-J 34. 29. Calif. Health & Welfare Code §§25951- typical case seem as theoretically impossible in Modem Medicine?, furnished me in manu- Note how simply the voluntary-involuntary 25952, ( 1967). as it would be practically unavailable. Com- 252 Linacre Quarterly November, 1973 253 pare G. Fletcher. "Prolo nging Life," 42 a source of merits, in order to p r< cancer victim to submit to intravenous feed Wash. L. Rev. 999, ( 19671. In the trial of Dr. gress in love of God and abando r formally taught by a re ligio n according to ing. (p. 2 10). Where the patient is not le Adams for murder in Britain in 1957, the ment to His will. do not force ane' its principles of· reveladon. or o therwise. gally competent, e.g .. a minor, there are of jury was instructeC:: " If the first purpose of thesia on the m . They should rath< is of course another matte r. Fo r a con course the additional problems. Cf. Prince medicine. the restoration of health, can no be aided to follow their own wa\ temporary analysis of teaching authority of v. Commonwealth. 321 U.S. 158. 170 (19441. longe r be achieved there is still much fo r a Where suffering is not so accepte; the Church, see D. Maguire, Moral Ab.w 62. G. Ke lly. S J ., ·'The Duty to Preserve d octor to do. and he is entitled to do all it wo uld be inadvisable to suggest t. lutes and the Magisterium 14 et seq. (Corpus Life;· 12 Theological Studies 550 ( 1951). that is p rope r and necessary to relieve pain dying persons the ascetical consider Papers, 1970). 58. Louisell , "Transplantation: Existing 63. Lo uisell & Williams, note 26. supra and suffering, even if the measures he takes tions set out above. It is to be r may inc identally shorten human life." Mey membered that instead o f assisti n Legal Constraints," in Ethics in Medical Ch . 8. 64. P. Ramsey, note 34 supra at 121-22: ers, no te 40 supra at 146-47. See also "Recent toward expiation and merit, sufferi• Progress 78, 93 (G. Wolstenholme & M . G . Fletcher, note 42 supra at 1005 et seq. Decisio ns," 48 Mich. L. Rev. 1199, (1950); can also furnish occasion for ne O'Conno r, ed . 1966) . 59. 4 The Pope Speaks 393, 395-96 (S pri ng. 65. Note 3 supra at 983, n. 41 . 34 Notre Dame Law. 460, (1959). faults. (p. 46) 66. See no te 42 supra. 43. See note 45, infra. He then pointed out the value and \ ;ir 1958). Compare the condemnatio n of eu 67. See note 26 supra and accompanying 44. "The Freedom to Die ," Commonweal ability, fro m a m oral and family viewp· nt, thanasia by Pius XII , both compulsory. in text. August II, 1972 p. 423, 424. o f retaining full consc iousness when d ng his encyclical Mystici Corporis, A.A .S. 35:239 ( 1943) , and voluntary. Address o f 68. Act v, Sc iii. 45. "Anaesthesia: T hree Moral Ques i r possible, and that the use of nart· •cs 69. Louisell , "Biology, Law and Reason; tions," 4 The Pope Speaks 33, (Summer with the sole purpose of depriving the .:k May 25, 1948, to Italian Congress o f Medi Man as Self-Creator,'' 16 The American 1957). After discussion of the suppression person o f consciousness at the end "\\ 1ld cal Men . L 'Osservatore Romano. M ay 23. Journal of Jurispmdence l , 10 n. 33 and of all sense pe rception in general anaesthe not be a notable advance in- modern ·al 1948. See St. John-Stevas, no te 10 supra at 270-71: Ill B. Haring, The Law of Christ accompanying text (1971). sia, the more or less marked deadening o f ing. but a truly regrettable prac tice." (p 171 70 . Quoted in Maguire, note 44 supra. the sensibility to pain in partial anaesthesia He also said a dying person should no- be 239-41 (1 966); note 45, supra. 71. Edgar Allan Poe, For Annie, first and and analgesia (p. 41), and the general mo ral re ndered unconscious before he has m- In Man;:h, 1972 a physician's withdrawal sixth verses: obligation to endure physical pain. he ad pleted his moral obligations. (p. 471 1is of food from a new-born i~fant with a seri ously defective brain because "the best thing Thank Heaven! the crisis dressed three specific questions (p . 33). The Address to the Italian Society of Anac · 'le· to do was to le t him die ·merc ifully'" aroused The danger is past, third was: sio logy o f February 24. 1957, sometim· in wide-spread interest. The withdrawal o f And the lingering illness 3. Is it lawful for the dying or the the lite rature is confused with, or at 1st food was countermanded by another phy Is over at last- " sick who are in danger o f death to no t distinguished from, his Address o f ~ o sician in the hospital before the baby died. And the fever called "Living" make use of narcotics when there are vember 24, 1947 to the Internatio nal t •lfl· H. Nelson, ·'Life or Death fo r Brain-damaged Is conquered at last. medical reasons for their use'! Can g ress of Anaesthesiologists on The Prof< ·ia· Infant?" Los Angeles Times, March 17. 1972, narcotics be used even if the lessen lion of Life. See Note 59 infra and acL m p. I. Appare ntly the legitimacy of suc h And o h! of all tortures ing o f pain will probably be accom panying text. See also T. O'Do nnell , ~ J.. conduct was in serious dispute amo ng phy That to rture the worst panied by a shortening o f life? (p. 33) "M o ral P rinciples of A naesthesia: A Re· sicians at the August, 1972 hearings befo re Has abated- the terrible I' + t In answering this question ''Yes," he said Evaluatio n ," 2 1 Theological Swdies n26 . T orture of thirst, .I the special U.S. Sen ate Committee on Ag in part: (1960). ing, although the d istinctio n between with· For the naphthaline river 46. See note 9 supra and accompan mg Now growth in the love of God and holding extraordinary means, and affirma Of Passion accurst:- text. in abando nment to His will does not tive euthanasia , see ms not a lways to have 1 have drank of a water 47. No te 3 supra. come from the sufferings which are been acknowledged , or even perceived. The That quenches all thirst:- 48. No te 10 supra, C h . 4, Euthanasia acce pted , but from a voluntary in New York Times, August 8, 1972. 72 . No te 59 supra and accompanying text. 49. "Sanctity o f Life .'' in Symposium on tentio n supported by grace. T his in 60. P. Ramsey, note 34 supra at 118- 124: Death Warrant, 69. The Coast of Life. 60 Proc. R. Soc. !\.led. tention in many o f the dying can be Death Warrant 82; Decisions about Life and 73. G . Kelly, note 6 1 supra at 216- 17. 12.35. ( 1967). strengthened and become more ac Death, A Problem in Modem Medicine, 74 . Compare the fine distinctions in 50. No te 6 supra. tive if their sufferings are eased , for App. 4 p. 56 (Church Assembly Board fo r French and Swiss law whereby a physician 5 1. E.g .. Death Warrant: P. Ramsey. '''>te these sufferi ngs aggravate the state Social Responsibility, Church Info rmatio n may provide. but may not administer, po ison 34 supra C h. 3 On (Only) Caring for the Dy· o f weakness and physical exhaustion, Office, Westminster 1965). at the request of a dying patient. This is ing: compare D . Meyers. note 40supra Ch. 6. chec k the ordor o f so.ul, and sap the 61. J . Lynch , S. J.. ·'Notes on Moral The· because suicide is not a crime. and there· Euthanasia. A. Dyc k, note 2. supra. mo ral powers instead o f sustaining ology,'' 19 Theological Studies 165. 176 fore to be an accessory to it canno t be c rimi the m. On the other hand, the su ppres 52. Note 3 .wpra at 974. (1958). Compare the discussio n in G . Kelly. nal: but directly to kill another even fro m sio n of pain removes physical and 53. 23:7; see also Dan iel 13:53. SJ ., "The Duty of Using Artific ial Means humane motives is still murder. Death War me ntal tension, makes prayer easier, 54. Death Warrant, Preface 13(197 11. of Preserving Life,'' II Theological Studies rant, 27-28. In 196 lthe illegality of attempted and makes possible a more generous 55. See Kamisar, note 3 supra at 996-1005. 203 ( 1950). as to whether it is obligatory fo r suiCide was abolished in English law. but gift o f self. 56. De uterono my 30: 19. a diabetic pa tient on insulin who develops it remains a serious crime for a person to If some d ying persons accept their 57. See notes 47-5 1, supra. T he problem of very painful a nd inoperable cancer to con incite or assist another to commit suicide. suffering as a means of expiation and additional mora l sanctio ns behind rea,ons tinue to use insulin (pp. 208, 215), or for a See note IS supra and accompanying text. 254 Linacre Quarterly November, 1973 255 75. Monta ig ne"s Essays. Ch. XX. We Taste It wo uld, of course. be unrc<• <.: ·to to die or causing death have the same ef ·'Versprechen Sie mir auch noch: Wenn Nothing Pure~" 607. 608 (Florio trans. Mod assume tha t juries have been 1 ·ctly fect- namely,. that a life is shorte ned? es mal so weit ist, werden Sie mic h nic ht ern Library ed .l consisten t in choosing the case here In both instances there is a failure to try unnotig qualen lassen." ("Pro mise me 76. Morals and Man. 83 ( 19601. the death penalty is to be impose< r no to prolong the life o f o ne who is dying. one more thing: that when the time 77. Quoted in Botein , Trial Judge. 182 human institutio n perfo rms with rfect It is at this point that one must see why comes, you won't let me suffer unnec (1952). See Re pouille v. United States, 165 consistency. T here are doubtk pri- consequential reasoning is in itself too essarily.'') All this was said with the F.2d 152. 153 (2d Cir. 1947) (pe r L. Hand, soners o n death row who would t be narrow, and why it is impo rtant also not utmost simplicity, without a tr 256 Linacre Quarterly November, 1973 257 difficult task. (p. 529) Kenned y Memo rial Hospi tal v. f ton, 86. See Ehrenzweig, Psychoanalytic Juris· 58 NJ. 576, 279 A2d 670 (197 1). In , told prudence §5, passim, (1971). ing the subjection of an adult Jel Jh's 87. Louisell, note 69 supra. During my Witness. who had sustained severe i 1ries recent visit at the University of Minnesota, in an automobile accident, to a lood Mark Wraubard, professor of the history of tra nsfu sio n necessary to save her h the science (now emeri tus), indicated a possible Court pe r Weintraub, Ch. J. said: "II ems incursio n into the areas suggested in this correct to say there is no constitt onal Marriage Counseling and The Physician paragraph of the text. I hope it is forth· right to choose to die.'' Replying the coming! patient's contention that there is a diff, ·nee 88. H. Ratner, M.D., Editorial, 7 Child and be tween passively submiuing to de November, 1973 258 Linacre Quarterly 259