By Burke J. Balch, J.D.
Director, NRLC Dep't of Medical Ethics
Twenty-eight
months before Roe v. Wade, in September 1970, an editorial appeared
in California Medicine, the official journal of the California State
Medical Association, entitled "A New Ethic for Medicine and Society."
The editorial noted - - and applauded - - the growing support for legalized
abortion. But it noted "a curious avoidance of the scientific fact,
which everyone really knows, that human life begins at conception, and is
continuous, whether intra- or extra-uterine, until death." Denial of
this fact it called a "schizophrenic sort of subterfuge...necessary
because, while a new ethic is being accepted, the old one has not yet been
rejected."
What was the old ethic? The editorial stated, "The reverence of each
and every human life has been a keystone of western medicine, and is the
ethic which has caused physicians to try to preserve, protect, repair, prolong,
and enhance every human life." By contrast, under the new ethic - -
a "quality of life" ethic - - it would be necessary to place "relative,
rather than absolute, value on such things as ... human lives." This
ethic, the editorial predicted approvingly, would inevitably spread from
"control" of birth to "death control."
One of the most striking things about Justice Harry Blackmun's opinion for
the Supreme Court in Roe v. Wade, when it came, was the remarkable
attention it gave to "debunking" the Hippocratic Oath, a multi-millennia-old
pledge long recited by medical school students as they graduated. In its
then contemporary version (few, if any, graduations feature it any more)
it rejected both abortion and euthanasia and promised "the utmost respect
for human life from the time of conception." Blackmun deemed it essential
to dismiss the Hippocratic Oath as an unrepresentative view of a minority
of Greek physicians.
At the root of both the pro-abortion movement and Roe, then, was
the devaluing not just of life in the womb, but of all human life. Human
beings were hence to be respected only to the extent that they measured
up to a shifting standard of "quality" when weighed in the balance
against the "burden" and cost their continued existence was seen
as imposing on others, society, or themselves.
It was not long after Roe that the new ethic began to claim the lives of
vulnerable born people. The first victims were children born with disabilities.
In the year Roe was handed down, the prestigious New England Journal
of Medicine published an article by physicians at Yale-New Haven Hospital
describing how they had deliberately denied lifesaving treatment to newborns
with Down syndrome and other disabilities, believing that they and their
families would be better off if they were dead. After percolating through
the medical community in the rest of the decade, this increasingly standard
practice came to widespread attention with highly publicized cases in the
1980s.
In April 1982, a child born with Down syndrome in Bloomington, Indiana,
known as "Infant Doe," was denied lifesaving surgery and starved
to death with the official blessing of the Indiana state courts. In 1983,
Pediatrics published an article by doctors at Oklahoma Children's
Memorial Hospital in which they wrote that their denial of lifesaving treatment
to 24 infants with spina bifida was "influenced" by the formula
"QL = NE x (H+S)" in which "QL is quality of life, NE represents
the patient's natural endowment, both physical and intellectual, H is the
contribution from home and family, and S is the contribution from society."
Thus not merely a child's disability, but also the degree to which it was
judged family and society would be likely to support the child, went into
deciding whether she would live or die. In another highly publicized case,
New York and federal courts supported the denial of treatment to Baby Jane
Doe, born with spina bifida and hydrocephalus.
Reaction against such discriminatory denial of treatment led to the enactment
of the Child Abuse Amendments of 1984, which set federal standards for providing
such treatment to infants with disabilities as a condition for states to
receive federal child abuse and neglect funding. Considerable recent evidence
suggests, however, that these standards are honored more in the breach than
in the observance.
Meanwhile, acceptance of euthanasia for others beyond children born with
disabilities has gradually developed in two directions. On the one hand,
it has spread from denial of medical treatment through denial of food and
fluids to direct killing. On the other hand, it has moved from legitimation
of voluntary euthanasia through nonvoluntary euthanasia to involuntary euthanasia.
The advocates of euthanasia began in the 1970s by building on the common
law principle, embodied in the doctrine of informed consent, that a competent
adult may accept or reject any medical treatment. They successfully pushed
for the enactment of"living will" laws in virtually every state,
under which a now-competent person may direct that she or he be denied lifesaving
treatment under specified circumstances should she or he become incompetent.
In the landmark Karen Ann Quinlan case of 1976, the New Jersey Supreme Court
inaugurated the doctrine of "substituted judgment," justifying
the nonvoluntary denial of treatment to an incompetent person who had never
asked to die on the ground that such an incompetent individual should not
be deprived of the competent person's right to reject treatment "merely"
because un-able to choose to do so. Rather, another party, such as family
or guardian, could exercise that right purportedly on the incompetent person's
behalf. Thereafter courts in virtually all the states that dealt with the
question came to a similar conclusion.
Following a trend in medical journal articles, the 1986 California Bouvia
case was the first to extend the competent person's right to reject treatment
to include rejection of assisted feeding and hydration. In the same year
the highest court of Massachusetts, in the Brophy case, applied the
substituted judgment doctrine to food and fluids, ruling that a guardian
could deny them to an incompetent person. This precedent, too, was eventually
followed almost without exception by courts in other states.
In the early years, pro-euthanasia forces very effectively joined the rhetoric
of respect for personal or family autonomy to that of advocating making
decisions based on the quality of life. Once both voluntary and nonvoluntary
denial of treatment, and food, and fluids were widely accepted, however,
the autonomy argument was reversed.
Soon leading bioethicists were arguing that if a competent patient, or the
guardian of an incompetent patient, wanted lifesaving treatment, food and
fluids, that request should nevertheless be denied if the patient's quality
of life was too poor or the cost or burden to society was too great. In
1992, Virginia became the first state explicitly to authorize health care
providers to deny treatment or assisted feeding against the will of patients
or their surrogates.
In 1996, the Journal of the American Medical Association published
an article about hospital practices in Houston, Texas. Under the procedures
it described, when two doctors agree a patient should die against his will
or that of his family, the patient is given 72 hours either to transfer
out of the hospital or to prepare to appear before a hospital ethics committee.
After hearing both sides the committee makes the life or death decision;
if it is for death, the lifesaving treatment is terminated involuntarily
and immediately.
These provider-chosen forms of involuntary euthanasia have been joined by
pressures for government-imposed rationing. At the beginning of this decade,
Oregon implemented a rationing program for its Medicaid population. Its
originally proposed formula would have made denial of treatment more likely
the more likely it was that the patient would be disabled. After the Bush
Administration rejected this proposal as violating federal law preventing
discrimination on the basis of disability, a somewhat modified formula was
approved by the Clinton Administration and then implemented.
In late 1993 the Clinton Administration itself proposed a national health
plan that would have meant rationing based, according to congressional testimony
by Hillary Rodham Clinton, on quality of life considerations. The plan was
not enacted. After a long-running battle over a Clinton Administration proposal
that would have had a similar effect on older people and people with disabilities
covered by Medicare, the Administration was forced by Congress in 1997 to
accede to a restructuring of Medicare that allows an escape from rationing.
Euthanasia proponents' efforts to legalize direct killing by lethal prescription
failed in referenda in Washington state in 1991 and California in 1992,
but were successful in Oregon in 1994. Although its implementation was delayed
by court battles, the Oregon law was reaffirmed in a 1997 referendum. Meanwhile,
former pathologist Jack Kevorkian reportedly assisted the deaths of large
numbers of people with disabilities in Michigan, but was repeatedly acquitted
of criminal charges by sympathetic juries.
However, efforts to establish a Roe-like federal constitutional right
to assisted suicide, although successful in lower courts, were turned back
by the U.S. Supreme Court in two 1997 cases. In the same year Congress passed
a law preventing the use of federal funds or facilities to assist suicide
or perform active euthanasia.
While the initial statutory efforts of euthanasia proponents focused on
the legalization of voluntary euthanasia for competent individuals said
to be terminally ill, the Hemlock Society, the leading organization promoting
the legalization of direct killing, publicly endorsed nonvoluntary killing
of incompetent persons with terminal illness on December 3, 1997.
Involuntary direct killing - - giving, for example, lethal injections to
people against their express will - - does not yet have many vocal advocates
in this country. However, a leader of the pro-euthanasia movement in the
Netherlands, the one modern country where direct killing has been legal
for a substantial period, has predicted that in the 21st century the pressures
of an aging population will make involuntary direct killing inevitable.
The novelist John Updike once wrote, "Death, once invited in, leaves
its bloody footprints everywhere." One of the most critical legacies
of Roe and the movement that spawned it is the ever-increasing threat
to the lives of the born who are elderly, disabled, or otherwise marginalized
in American society.