June 8, 2010

By Wanda Franz, Ph.D., and Burke Balch, Esq.

Editor's note. Parts Two and Three are the concluding winning pro-life essays written for the National Right to Life Essay Contest. The following speech was delivered at the 20th annual convention of University Faculty for Life by Dr. Franz, President of NRLC. Mr. Balch heads NRLC's Robert Powell Center for Medical Ethics. Please send your comments to daveandrusko@gmail.com.

I am Wanda Franz, Ph.D., Professor Emerita of the Division of Family and Consumer sciences at West Virginia University. I am also the President of the National Right to Life Committee. We are best known for our opposition to abortion. It is less well-known that we have always included opposition to euthanasia and infanticide as part of our mission: Because we believe that undermining the right to life at the beginning of life will inevitably lead to attacks on the right to life at the end of life and in cases of disability.

The strategies used by National Right to Life to fight against the increasing culture of death in America have changed over time, as our opponents have changed their approach to euthanasia. When Roe vs. Wade and Doe vs. Bolton first made abortion legal in America in 1973, very few Americans favored euthanasia. Warnings by the pro-life community that legalizing abortion would lead to more favorable attitudes toward euthanasia fell on deaf ears because the value system surrounding health care made the preservation of life so strong that most people couldn't imagine widespread acceptance of euthanasia.

However, in the 37 years since legal abortion became the law of the land in America, support for euthanasia has become so wide spread that we can fairly say that we are living in a "culture of death."

How did this happen? What factors caused this shift in attitudes? The fundamental value system supporting our treatment of the sick and disabled was traditionally the one which is at the core of our American way of life. That is the belief that every individual human life has unqualified dignity and value, regardless of one's age or condition of health or disability. There was always a "presumption for life."

This belief was supported in medical ethics by the Hippocratic Oath, which called upon doctors to "do no harm." Doctors expected to provide life-saving medical treatment and food and fluids for their patients. Of course, traditionally the courts also supported the ethical principles as represented by this time-honored oath. The Hippocratic Oath also called upon doctors to avoid aiding in abortions. It is, perhaps, part of human nature that once doctors began to violate one part of the Oath, that is, abortion, other aspects were easier to ignore. Today, most doctors don't take the Hippocratic Oath.

In a few short decades, these principles were replaced by "quality of life" judgments. That is, a person' right to treatment and, therefore, his very life is being determined more and more by subjective assessments of the quality of his life. Gone from the discussion is the recognition of his inherent dignity. How can we recognize that a medical judgment is being made on the basis of the "quality" of the person's life? If denial of a particular treatment for an old or disabled patient would not be made for a young, otherwise healthy person, then the judgment is being made based on the qualities of age and/or disability. This constitutes euthanasia by omission.

Modern medical treatment slowly has become so sophisticated that people could be kept alive when, historically, they would have died for lack of knowledge and skill. The pro-euthanasia forces began to exploit the natural fears that people had that they might be "over-treated" by being kept alive so as to "just prolong the dying process." Ironically, at just the time that most people did not have to worry about "over-treatment" a push began by the pro-euthanasia forces to develop a fear in the public mind. The Living Will was proposed to prevent treatment of the dying patient. But living wills were unnecessary to prevent "overtreatment" both because the accepted standards of medical practice did not require it and because the doctrine of informed consent enabled patients and their families to reject it without resourt to formal written advance directives.

Most people would say that they wouldn't want "extraordinary treatment" if they were in a terminal condition. The problem is that what was "extraordinary" years ago is today ordinary treatment; what is "extraordinary" if you are living in a isolated, rural area is ordinary treatment at a high-tech, urban hospital. In addition, what might appear to be ordinary care to most people might come under the category of "extraordinary care" when used by the hospital system.

Most people, for example, assume that provision of food and fluids is virtually always considered ordinary care. However, if your illness makes it difficult for you to feed yourself in the ordinary way, and you require a feeding tube, your provision of food and fluids suddenly becomes "extraordinary care" under legal policies governing hospital regulations with living wills in place.

Pro-life groups, including NRLC, opposed living will legislation, pointing out the vagueness of the language of living wills, the way in which seemingly harmless terms they used were open to a variety of interpretations that could expand the denial of treatment they authorized far beyond the intent of those who signed them. Pro-life groups also warned that the strategy of "right to die" groups was to use living wills to condition public acceptance of assisted suicide, mercy killing, and euthanasia, replacing the then-accepted ethic that the lives of all human beings are of equal and inestimable dignity with the view that the value of human life depends on its "quality."

The pro-life movement lost its fight to prevent enactment of living will legislation. Then, the vague language in most Living Will statues was amended to make to make explicit their authorization of denial of life-saving procedures in more and more instances. Food and water was added to medical treatment. Denial of treatment was authorized not only for "terminal illness" (itself often very broadly defined) but also for "irreversible conditions" and other euphemisms for permanent disabilities. Most dangerous of all, court after court and then state legislature after state legislature adopted rules allowing denial of treatment and then food and water to older people and people with disabilities who had never signed Living Wills or otherwise rejected life-saving measures.

The involvement of the Courts in this process is especially troubling, because the Courts should be protecting the Constitutional right to life of individuals, not undermining it. In the move toward imposition of euthanasia in America, one legal aspect of the debate involves the degree of the patient's desire for the act of euthanasia. Euthanasia may be voluntary (meaning the patient, while competent, has requested it), non-voluntary (meaning the patient's wishes are unknown, and courts or a surrogate impose it), or involuntary (meaning that death is chosen for the patient against his explicit wishes.

The first important court case allowed the legal movement of acceptance of voluntary to non-voluntary deprival of life-saving medical treatment. The 1976 Quinlan case inaugurated the doctrine of "substituted judgment" under which it was argued that an incompetent individual could not be deprived of the competent individual's right to reject medical treatment "merely" because she or he could not choose to do so. Rather, it was held that another party---court, family member, or government bureaucrat---could step in and exercise that right on the incompetent person's behalf. Ignored was the persons, at least parallel right, to choose to accept treatment---to choose life.

Involuntary denial of treatment came to have the force of law in 1992 when Virginia passed a statute explicitly legalizing it when a doctor determines that to follow a patient's expressed desire for life would be "medically or ethically inappropriate." Fortunately, some years later, Virginia amended the law to at least give a patient a limited time to transfer to a more sympathetic health care provider before treatment is cut off. Other states have adopted a similar construction of the law.

A second legal aspect of the debate involves the question of the method by which euthanasia is considered legally acceptable. The first method involves simply denying the patient the necessary medical care. This is passive euthanasia. But, once food and water are determined to be "extraordinary care," it is possible to move from rejection of medical treatment to the rejection of food and water. The Bouvia case was the first to authorize euthanasia by removal of food and water from a competent adult. However, this simply opened the door to doing it under the doctrine of substituted judgment for non-competent and incompetent persons.

Direct killing was first legalized by a 1994 referendum in Oregon, whose assisting suicide law became effective in 1997, after withstanding court challenges. A referendum subsequently passed in the state of Washington. While these laws ostensibly legalize only voluntary killing, the lack of protections for patients and the words of euthanasia advocates, indicate that the ultimate goal is to move to non-voluntary euthanasia.

In summary, it is clear that there has been a major change in attitude and value regarding the right to life in America and this change has been codified into law through both the state legislatures and the courts. We cannot expect that our right to life will be respected when we become ill or disabled, which could happen at any time during our lives. The problem of direct killing of the disabled received national attention with the case of Terri Schiavo.

Terri Schiavo was disabled and fed through a feeding tube in order to more easily manage her care. She had been a perfectly healthy young woman before an unidentified medical event left her with brain damage. However, the legal battle that developed between her husband and her family demonstrates the difficult legal problems that can trap innocent patients and their families. Her death by starvation and dehydration at the direction of her husband was the direct, involuntary killing of an innocent human being and could happen to anyone of us. We cannot count on a general respect for life to protect patients, or leave matters to be worked out informally among doctors, patients and their families. The hard reality is that the presumption has now shifted to favor death, not life.

I should point out that hidden provisions for rationing that exist in the new Health Care Law extend the dangers of rationed care to all patients, not only the elderly and disabled. For more information on the new dangers of rationing in our Health Care, go to our website at www.nrlc.org and check the blog for the Robert Powell Center for Medical Ethics.

What can we do to protect ourselves and our families from this distressing situation? We need to have an advanced directive and a Will to Live to protect us.

A Will to Live is a legal document that names someone to make health care decisions for us and provides clear, written instructions explaining that we wish to be given all available health care if we are incompetent to direct our own medical care. While this cannot guarantee that we would be protected from all court challenges to our life, it certainly provides a legal document that can stand up to such challenges.

There are any number of documented court cases that demonstrate that we will be vulnerable if we do not have such protection. In addition, a Will to Live provides our families with a tool to assist them in directing our medical care.

Part Two
Part Three