By Barry A. Bostrom, M.Div.,
J.D.
Executive Editor, Issues in Law & Medicine
Editor's note. Issues in Law & Medicine is a quarterly peer-reviewed professional journal published by the National Legal Center for the Medically Dependent and Disabled, Inc.; the Horatio R. Storer Foundation, Inc.; and the American Academy of Medical Ethics, Inc. It has been published since 1985 and is devoted to providing technical and informational assistance to attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions. The following article summarizes the spring 1998 issue of this invaluable publication.
In 1996, Judge Stephen Reinhardt of the United
States Court of Appeals for the 9th Circuit wrote the majority opinion in
a case known as Compassion in Dying v. State of Washington that overturned
the state of Washington's ban on assisting suicide.
In 1997 the United States Supreme Court reversed the 9th Circuit's decision,
unanimously holding that there is no federal constitutional right to assisted
suicide. [A companion case upheld New York's ban on assisting suicide.]
The first article in the spring edition of Issues in Law & Medicine
critiques Judge Reinhardt's comments in the section of his opinion entitled
"Historical Attitudes Toward Suicide." The author, Darrel W. Amundsen,
professor of classics, at Western Washington University, demonstrates that
Judge Reinhardt inaccurately and misleadingly characterized ancient Jewish
and Christian beliefs and practices as sympathetic to assisted suicide because
he failed to acknowledge the complexities of the moral issue of suicide
in those traditions.
Amundsen discusses martyrdom, suicide in general, suicide by persons who
are ill, and euthanasia in ancient Judaism. Amundsen demonstrates that regard
for human life is a central feature of Jewish ethical monotheism.
Amundsen also challenges the judge's conclusions about how the early Christian
church looked at these issues. His essay discusses early Christianity's
views on suicide and martyrdom, with a special look at the teaching of St.
Augustine on suicide. He concludes that "Judge Reinhardt's treatment
of the issue of suicide in early Christianity is so historically and conceptually
muddled as to be fundamentally inaccurate."
Because Judge Reinhardt's misleading analysis will continue to be quoted
and cited by proponents of assisted suicide and euthanasia for years to
come, the Amundsen article is important because it provides a scholarly
refutation. The essay provides a highly useful resource for pro-life attorneys
in the legal battles yet to come.
The second article in the spring edition of Issues in Law & Medicine,
by Australian law professor Patrick Quirk, describes the debate over the
euthanasia law of the Northern Territory of Australia. It is a lengthy and
complicated saga which culminated when the Commonwealth of Australia passed
a statute limiting the authority of the Northern Territory to pass euthanasia
laws.
Professor Quirk explains the legal status of the Northern Territory. The
notoriously independent-minded territory is a governmental subdivision with
its own laws and courts, similar to a state in the United States. The commonwealth
is the national governmental body similar to our federal government.
In 1995, the legislature of the Northern Territory of Australia became
the first in the world to legalize assisted suicide and euthanasia. Two
unsuccessful attempts were made to repeal the "Rights of the Terminally
Ill Act" before it could go into effect.
Major amendments were passed by the territory's legislature in February
1996. Still legalizing euthanasia, the amended act went into effect on July
1, 1996.
The act was immediately challenged in court. However, the Northern Territory
Supreme Court upheld the act.
There was staunch opposition at the federal level, however. In September
1996, the Euthanasia Laws Bill 1996 was introduced into the Australian Parliament.
The bill received Royal Assent (i.e., executive approval) and went into
effect on March 27, 1997. The Euthanasia Laws Bill amended the Northern
Territory (Self-Government) Act 1978, the act establishing the Northern
Territory as a self-governing political subdivision.
The bill limited the authority of the Northern Territory by excluding laws
permitting euthanasia from the Northern Territory's legislative powers.
When the bill passed, it declared the Rights of the Terminally Ill Act of
"no force or effect as a law of the Northern Territory."
In the third Issues article, Dr. Henk Jochemsen critically reviews
Dutch court decisions on nonvoluntary euthanasia.
First, he presents the current practice of euthanasia in the Netherlands.
In theory, it has always required repeated requests by a competent patient
before a doctor can perform euthanasia.
Dr. Jochemsen, director of the Lindeboom Institute, Center for Medical
Ethics, describes in detail the impact of two 1995 cases. In each instance
a physician was prosecuted for terminating the life of an infant who was
severely ill and disabled based on the request of the parents.
The courts accepted these two deaths as euthanasia by proxy consent of
the parents, something to that point in time never officially permitted
in the Netherlands. The judges accepted the defense that these killings
were necessary in order to relieve the suffering of these infants following
the parents' decision to withhold further treatment.
After exposing the serious flaws in the courts' decisions, Dr. Jochemsen
concludes that newborns with congenital disorders should be given appropriate
palliative care, not euthanasia, when a decision has been made to withhold
further treatment. He fears that by extending the practice of euthanasia
to infants with disabilities the Dutch courts have taken another step toward
endangering the lives of all incompetent persons with serious disabilities,
illness, or unacceptable suffering.
Issues in Law & Medicine also includes three other features.
The Verbatim section presents documents that are unpublished or otherwise
not readily available to the public. This edition includes the preliminary
paragraphs of the decision of the Supreme Court of the Northern Territory,
Australia, regarding the Rights of the Terminally Ill Act 1995 (NT).
The Abstracts section presents summaries or verbatim portions of
recent medical, ethical, and legal articles from other journals. This edition
includes articles on end-of-life decisions in Australian medical practice;
the euthanasia debate in Australia; an interview with Dutch physician Dr.
Henk Prins; the need for a comprehensive strategic plan to stop assisted
suicide; science, ethics, and cloning technologies; and the importance of
the participation of Christians in bioethics.
The Novi Libri section provides new book announcements. This edition
announces five new books on the topics of cloning, genetic ethics, improving
care at the end of life, the ethical frontiers of biomedicine, and germ-line
intervention.
Issues in Law & Medicine is a quarterly peer-reviewed journal.
The annual subscription rate is $59 for individuals, $79 for institutions,
for four issues. Single issues are $14.75. Requests may be sent to Issues
in Law & Medicine, 3 South 6th Street, Terre Haute, IN 47807-3510.