Mark Miller, C.Ss.R., Ph.D.
The connection between ethics and law is a two-way street in Canada and the United States. Theoretically, the law should reflect the ethics of a society. Conversely, citizens tend to assume that what is legal is also moral. The interplay between law and ethics, however, is much more complicated than we assume. The law has to do with the actual activity which is or is not permitted while ethics of necessity includes other aspects of human action, particularly the motivations and the moral-but-unenforceable actions of human beings.
An amazing court decision in the United States demonstrates this fragile interplay of law and ethics. The Ninth Circuit Court of Appeals ruled that a Washington state law prohibiting assisted suicide was unconstitutional. The argument, to oversimplify, was that helping somebody to die was no different that withholding treatment from a dying person and allowing that person to die. In both cases, the court argued, ‘death is the intended result.’
Now the ramifications of this decision, should it be upheld by the Supreme Court, are enormous. First, those who want to end their lives—presumably, the dying, but who knows if such restrictions could hold—could now request assistance from their doctor. And if one’s personal doctor refuses, the ethics of the medical profession would demand that this doctor refer the patient to another doctor who would help. (Such is the situation of ‘legal’ acceptability.)
Second, if suicide machines like Jack Kervorkian’s become acceptable because patients can ‘kill themselves’ by pushing the button, how big a step is it to having the doctor give the injection—which is active killing, but not of oneself by oneself. And, third, suppose there are nursing homes—usually faith-based ones—who refuse to kill people. Will they be forced to give up their care of the elderly because they won’t agree to the ‘legal’ right to kill their residents?
And, finally, why would an American court decision affect Canada? The answer should be obvious. The influence of legally sanctioned killing and the power of the media would eventually move ‘mercy-killing’ north of the 49th parallel. The proof might be found in the editorial of The Globe and Mail on April 6th entitled “Time to Empower Angels of Mercy.” The American court case ‘convinced’ the editor to change the policy of caution in the face of euthanasia and assisted suicide, a caution which Andrew Coyne had articulated very well a year earlier in light of the Senate Committee hearings on this topic.
‘Mercy’ killing sounds so reasonable today. There are still images touted of people dying in excruciating pain in our hospitals. Many people are afraid of dying while hooked up to numerous machines. And most of us, human as we are, do not look forward to what we feel would be a dragged-out dying process.
Nonetheless, the enormity of even contemplating a change in the law to allow active killing of any sort must constantly be held before our eyes. Let me repeat what I have said before in this column. First, there is no need to have one’ dying dragged out by being hooked up to a lot of machines which cannot cure. Each of us has the legal right and the moral possibility of refusing any medical treatment which is too burdensome or simply prolongs our dying.
Second, there is no need for any Canadian to die in unrelieved pain. The efforts of palliative care physicians, nurses, pastoral care and social workers, volunteers and well- instructed family members mean that most of the pain can be alleviated and much of the suffering can be dealt with when one is dying.
Third, we need to be reminded that the medical profession, upon whom we rely to care for us when we are sick and vulnerable and sometimes at death’s door, would be asked to hold the keys of death as well. I know many doctors, for example, who agonize over the right decisions as a patient is dying. Why would we want to burden them with the power to ‘give up,’ to end the struggle with a simple injection, to put an explicit burden of killing the dying and the elderly? Palliative care, also known as comfort care, is the real mercy and compassion which is shown to the dying. Killing may look like mercy to people who are uncomfortable with all the struggles that the dying go through; but no heart is pure enough to know when it is the right time to die. Margaret Sommerville, in a response to The Globe and Mail editorial, pointed out the irony of the medical profession high-mindedly refusing to execute criminals, even though that is legal in the U.S. She also pointed out how hard it would be to separate an angel of death from the proposed angels of mercy.
And, finally, it is utterly essential to remember that there is an enormous difference between allowing one who is already dying to die by refusing to intervene with equipment or treatment which will simply drag out the dying process and deciding that it is time to kill. The latter position is usually justified by turning the decision over to the patient- -if it is his or her free choice. But there is no question that underneath the surface in our society is the expectation that anybody who is suffering (a personal assessment) or pretty well useless anyway (old, ‘severely’ handicapped is the usual acronym) or ‘just dying anyway’ would be wise to make such a choice. In other words, the time would not be too distant when such people would be expected to make such a ‘wise’ choice.
Decisions at the end of life are not easy. We struggle with the diminishment of our bodies and, often, our mental capacities. We face death, which is annihilation of all we know on this earth. And, God knows, we live in a society which wants us to be productive, mentally normal, and ‘not a burden.’ It is no wonder that killing is more fascinating for many people than dying is.
Court decisions affect the ethics of the people. Christians have to be immersed in the one who is Life in order to understand why such legal decisions are so dangerous. But we cannot stop there. We also need to make sure that the dying are taken care of, that the elderly are safe and do not feel a burden as their days lengthen, and we need to understand the morality of allowing the dying to die. It is not just a matter of ethical theory. It is primarily a matter of loving our brothers and sisters at a point in their lives when they are most vulnerable.