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Church, state, and physician-assisted suicide.

In 1997, the U.S. Supreme Court ruled in Vacco v. Quill and Washington v. Glucksberg that state laws prohibiting physician-assisted suicide WAS) in New York and Washington respectively are not unconstitutional, overturning decisions by the Second and Ninth Circuit Courts of Appeals. This essay is an effort to retrieve the important arguments of the Ninth Circuit Court, and especially to bring out the church-state concerns mentioned but not developed therein. By briefly reviewing the Supreme Court rulings and focusing on Washington v. Glucksberg, I will draw attention specifically to the role that negative moral judgments pertaining to suicide played in the decision. I will then argue that the Court dismissed with insufficient consideration evidence submitted in Judge Stephen Reinhardt's Ninth Circuit Court Opinion showing the implications of the "Mystery Clause" of Planned Parenthood v. Casey for issues at the end of life and linking the moral opprobrium surrounding suicide directly to the Christian contribution to western intellectual history. Next, three prominent and severe academic critiques of Judge Reinhardt's historical work will be addressed, showing that rather than refuting the latter, they serve essentially to lend further support to the basic points he makes. Finally, it will be shown that although currently there is general social approval of PAS in the United States, there is at the same time vigorous opposition to the practice stemming from religious sources, primarily the Catholic Church and Evangelical activists. In conclusion, in light of these considerations, I will argue that the U.S. Supreme Court's PAS decisions unconstitutionally advance the views of a particular religion, namely, the Christian faith, in violation of a legitimate liberty interest of the people.

REHNQUIST FOR THE COURT IN WASHINGTON V. GLUCKSBERG

The physicians who originally filed suit against the State of Washington asserted a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which would extend to "a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide." (1) This challenge was upheld by the Federal District Court as well as the en banc Ninth Circuit Court of Appeals. The Supreme Court reversed the decision, ruling unanimously that the Washington statute does not violate the Due Process Clause. Chief Justice Rehnquist delivered the Opinion of the Court.

Rehnquist begins by reviewing legal tradition, pointing out that it is a crime to assist a suicide in almost every state, and that this approach is not a recent innovation but a "longstanding" expression of the state's interest in protecting human life. (2) He notes further that opposition to suicide is an "enduring" theme of our "philosophical, legal, and cultural heritages." (3) Rehnquist then documents the legal disapproval of and sometimes punishment for suicide prescribed in English common law, Blackstone's commentaries, and colonial law, and the current widespread illegalization of assisted suicide in state law. He acknowledges that with modern technology states have had to rethink their laws in this latter regard in order to accommodate living wills, surrogate decisions, and withdrawal or refusal of life support. He acknowledges as well that "attitudes toward suicide itself" have changed. All the same, he assumes that our attitudes toward assisted suicide have remained essentially the same. "Voters and legislators continue for the most part to reaffirm their states' prohibitions." (4) Even after beginning his work on the constitutional issues, Rehnquist returns to the question of tradition:

We are confronted with a consistent and almost universal tradition that has long rejected the asserted right and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to revise centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state. (5)

Rehnquist next moves to a discussion of Court findings in the Cruzan v. Director, Missouri Dept. of Health case (1990), contending that in Cruzan the right to remove life-sustaining treatment assumed therein is not deduced from an abstract philosophical principle of autonomy but from the common law's concern about "forced medication" as a form of battery and the legal tradition's protection of the desire to refuse unwanted treatment. (6)

Last of all, he deals with the "mystery clause" articulated in the Joint Court Opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey (1992): "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." (7) Rehnquist contends again that although many of the liberties protected by due process "sound in personal autonomy," this does not imply that "any and all important, intimate, and personal decisions are so protected." (8) He argues that given the legal tradition of opposition to assisted suicide, and given that the Washington law is related to legitimate government interests in preservation of human life, effective treatment of suicidal patients, integrity in the medical professions, protection for the most vulnerable members of society, and avoidance of the slippery slope to state approval of euthanasia, it is unacceptable to deduce a right to assistance in committing suicide as a fundamental interest protected by the Due Process Clause. (9)

REHNQUIST FOR THE COURT IN VACCO V. QUILL

The Vacco v. Quill case was decided by the Court alongside Glucksberg. In this case, the Second Circuit Court of Appeals had ruled that New York's law prohibiting assisted suicide is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment by treating persons in similar situations unequally.

On the one hand, competent, seriously ill patients who wish to terminate treatment are allowed to do so, but similar patients who request assistance in suicide by means of self-administered prescription drugs are not allowed to do it. Here again, Rehnquist wrote the Opinion of the Court, arguing that legal tradition establishes a clear distinction between the two kinds of cases. Everyone may refuse treatment, he points out, but no one may assist a suicide. (10)

CONCURRENT JUDGMENTS FOR BOTH CASES

Despite the public perception that the Glucksberg and Quill decisions effectively slammed the door on assisted suicide in the U.S., two very carefully reasoned concurring judgments make it clear that this has not happened. First, while agreeing with Rehnquist that Cruzan does not give blanket autonomy regarding the decision to die, Justice Stevens argues that it should be seen as providing a liberty interest in how, not whether, terminally ill patients will die, an interest that might well supersede the state's interest in preserving life. (11) Further, he is not convinced that the integrity of the medical profession will automatically be compromised by assisted suicide in cases in which there is a longstanding relationship between physician and patient, and in which the physician has already been involved in a series of decisions regarding treatment. (12)

Second, relying on Justice Harlan's famous dissent in Poe v. Ullman (1961), more directly the latter's insistence that the application of normal canons of critical reasoning requires the Court to attend to the levels of generality and specificity at which conflicting interests are stated, Justice Sourer notes that in the PAS cases before the Court we are not dealing with a general claim that everyone has the right to assistance in such an act at any time, but a much more carefully nuanced claim, namely,

that a patient facing imminent death, who anticipates physical suffering and indignity, and is capable of responsible and voluntary choice, should have a right to a physician's assistance in providing counsel and drugs to be administered by the patient to end life promptly. (13)

As such, he points out, the respondents' argument does not rest on the claim that either suicide per se or assistance in committing suicide is a historically-based right. Rather, it acknowledges that historically both have been largely prohibited, but it relies also "on the fact that to a substantial extent the state has repudiated that history." (14)

Having made this concession to respondents, however, Souter joins the Court decision by arguing that the state's interest in protecting the terminally ill against involuntary suicide and euthanasia overrides even the carefully qualified challenge to the prohibition of PAS mounted in these cases. All the same, and like Stevens, Sourer does not suppose that the issue has been settled once and for all by the Court's decision. Rather, it will be up to the state legislatures to do empirical inquiry beyond the capacity of the Court and to develop even more carefully nuanced proposals that might pass the Court's concern for protection against the various possible negative outcomes. (15)

COMPASSION IN DYING V. WASHINGTON

The lengthy en banc decision of the Ninth Circuit Court of Appeals was dutifully mentioned in the Supreme Court's Washington v. Glucksberg decision but is dismissed with inadequate attention to its content. Judge Reinhardt employs a complex argument in articulating the Ninth Circuit's conclusion that "there is a constitutionally-protected liberty interest in determining the time and manner of one's own death" which the Washington law prohibiting PAS fails to recognize and thus that the prohibition is unconstitutional. In summary, he first seeks to establish a constitutional right to die by a combination of Supreme Court rulings in the abortion cases and its tacit acceptance of the right to terminate artificial life support in the Cruzan case. Second, he responds to the challenge that approval of PAS endangers the most vulnerable members of society. Third, and finally, he provides a review of the history of social attitudes toward suicide in western culture which should be conjoined with his claim at the end of the opinion that those who oppose PAS "are not free ... to force their views, their religious convictions, or their philosophies on all the other members of a democratic society." (16) Though the decision did not turn on this issue, Reinhardt provides a basis for the view that prohibition of PAS is unconstitutional as a violation of the Establishment Clause.

He acknowledges that mere recognition of a liberty interest does not show prohibition of the practice in question to be unconstitutional. Rather, and like Souter above, there must be a "balancing test" to determine whether the state's interest in prohibiting the practice might outweigh the liberty interest recognized. Reinhardt considers a variety of state interests that might be put over against the latter, the most obvious of which is its interest in preserving life. He notes, however, that since the state law in Washington and most other states allows for cessation of life support for terminally ill patients, the state interest in preserving life is obviously seen to be less than controlling. (17) Allowing that the state has a more specific interest in prohibiting suicide, he argues philosophically that a distinction should be made between "senseless" suicides that end life "prematurely" and suicides of the terminally ill carried out to avoid "debilitating pain and a humiliating death." The state, in Reinhardt's view, has an interest in preventing the former but not the latter. (18) Again, he points out that the states have already taken steps to hasten the death of terminally ill patients in such conditions of suffering. They are permitted to reject medical treatment, both extraordinary and ordinary, to terminate medical treatment, and even to discontinue artificial nutrition and hydration, though the latter will result in patients dying by self-starvation. (19)

The more immediate question, of course, is whether there exists a constitutionally protected liberty interest in determining the time and manner of one's own death in the first place. To defend the interest, Reinhardt works throughout with the model of the abortion decisions. At the outset, he says, it should be noted that the particular exercise of the right to an abortion with medical assistance really depends on a prior consideration, i.e., whether women have the right to abortion. So in this case, the liberty interest in securing medical assistance in bringing about the end of one's life really depends on the broader consideration whether we have the right to determine the manner and time of our death, or to put it more directly, the right to die. (20) At the same time, he notes the recent Supreme Court reluctance to find new fundamental rights, but its willingness to expand "substantive" liberty interests protected by the Fourteenth Amendment. In this regard, a series of Court decisions has expressed essentially that the state's ability to "intercede into the most important matters in our lives" must be limited. Reinhardt recalls the constitutional protection given to personal decisions regarding marriage, procreation, child rearing, family relationships, intercourse not related to procreation, and abortion. (21) The "common thread," he points out, in all these cases is that they refer to decisions "highly personal and intimate," surely a category which should include decisions to end one's life in the presence of intractable pain and in a case of terminal illness. (22)

More specifically, the legal argument in support of the liberty interest in question depends on the Casey and Cruzan decisions and the Poe dissent of Justice Harlan. In regard to Casey, Reinhardt attributes much greater significance to the mystery clause than does Rehnquist. As it emerged in the Court's deliberation about abortion cases, he says, the clause refers to choices that are "the most intimate and personal" that are made through a lifetime, indeed, choices that are "central to personal dignity and autonomy." (23) Reinhardt is certainly correct to put the decision to request PAS here. There is no decision that could be more personal and intimate, or more an expression of autonomy. Rehnquist's comment in the Supreme Court decision that not just any personal decision is protected under the clause is true, but apart from decisions which cause harm to another it is difficult to imagine what might justify restrictions of such personal choices. Why should determining the time and manner of one's own death in a context of profound personal hardship or suffering, be thought of as a personal and intimate decision which needs to be restricted, by the state?

Reinhardt next turns attention to the Cruzan case. Though the U.S. Supreme Court here upheld the Missouri Supreme Court ruling against cessation of life support for Nancy Cruzan on the basis of heightened evidentiary requirements for incompetent patients, nonetheless the language of both the majority and minority opinions recognizes a liberty interest for competent patients to refuse unwanted treatment. Reinhardt cites the crucial statement from Rehnquist, "The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions." (24) Reinhardt notes as well that in her concurring opinion in Cruzan, Justice O'Connor recognizes that this liberty interest extends not only to rejection of dialysis or artificial aspiration but also to artificial nutrition and hydration. (25) Since the Court recognized that if permission were given to remove the feeding tubes, it would lead to death, (26) Reinhardt argues that in Cruzan the Court implicitly recognizes a liberty interest "in hastening one's own death." (27) Rehnquist insisted, it might be recalled, that the right to remove life-sustaining treatment does not arise from an abstract philosophical principle of autonomy but from the patient's interest in protection against unnecessary treatment. This distinction, however, is blurred in the actual situation of a patient's decision to request assistance in dying. The patient's request to remove artificial nutrition and hydration is an expression of personal autonomy, a reflection of an abstract principle of autonomy, and it does often lead to death. If the patient has the right to have his or her request in this regard to be honored, then the patient has a liberty interest in hastening death. Here Reinhardt is right, Rehnquist is wrong, and the Supreme Court gives inadequate attention to the strength of the Ninth Circuit's argument.

Reinhardt uses the Poe dissent of Justice Harlan to note the open horizon that it provides for liberty interests asserted under due process. Harlan argues that the "full scope" of due process liberty cannot be exhausted by specific terms of the constitution, and should not be construed as a "series of isolated points" related to free speech, religion, etc. Rather, it is a "rational continuum" which includes "freedom from all substantial arbitrary imposition and purposeless restraints." (28) Reinhardt also relies on the oft-quoted words of Justice Brandeis in his famous dissent in Olmstead v. United States (1928), in reference to the framers: "They conferred, as against the government, the right to be let alone--the most comprehensive of rights, and the right most valued by civilized men." (29)

The final step in Reinhardt's argument is his denial of the claim used at the panel level of the Appeals Court, and the claim that would be made later in the Supreme Courts ruling, that a decision in favor of assisted suicide would contradict the history of attitudes toward suicide in western culture as well as the broad legal traditions to which the Court often defers. Here he argues that the historical record is much more "checkered" than the Appeals Panel allowed. Relying on a variety of philosophical, religious, and historical texts, and most directly on a lengthy treatment of the history of social attitudes toward suicide written by Thomas Marzen, et al., and published in the Duquesne Law Review, (30) Reinhardt provides evidence which in summary establishes the following four points:

(1) There are numerous examples from outstanding thinkers and influential schools of thought in ancient as well as modern western culture of belief that suicide is a permissible, even praiseworthy, "ending" for a life full of suffering or no longer meaningful.

(2) The condemnation of suicide comes primarily from Christian religious texts;

(3) Although suicide itself was illegalized in most states in an earlier period of American history, these laws have all been taken off the books; and

(4) Although most states continue to forbid assisted suicide, current social attitudes are generally receptive to the practice. (31)

On the historical acceptance of suicide, most notable were his references to Socrates and the Athenian state support for the practice, Stoic endorsement of suicide as a rational ideal, early Christian glorification of martyrdom (especially within the heretical Donatist sect), the lenient attitude assumed toward suicide as a result of insufferable pain in English common law, and the rejection of the traditional condemnation of suicide found in the work of various modern philosophers, especially that of David Hume. On the other side, Reinhardt shows that it was largely through the influence of St. Augustine and the authority of church councils that suicide was condemned in western history. (32)

For the purposes of this article, the historical material included in Reinhardt's opinion is his most valuable contribution to the debate. Though he does not pursue the church-state angle directly, he makes it clear that this issue is in the background. Reinhardt comments on religion at several points in the decision. First, in his discussion of state interest in prohibiting PAS, more particularly the issue whether approval of such really goes beyond what the Court has already approved in Cruzan and other relevant cases, he says: "We also acknowledge that judicial acceptance of physician-assisted suicide would cause many sincere persons with strong moral or religious convictions great distress." (33) To obviate that concern, he circumvents church-state issues and challenges instead the ethical distinction between withholding treatment that will have the "double effect" of bringing about death and administering medicine that would do it directly. (34)

Second, in addressing the issue whether the lack of universal healthcare might really underlie anxieties over the possibility of subtle economic pressure being applied to hasten the death of the terminally ill, Reinhardt again uses a religious reference. In the absence of universal healthcare, he contends, we certainly do not want to increase the hardship faced by terminally in patients by forcing needless pain and suffering "in order to satisfy the moral or religious precepts of a portion of our population." (35) The third reference occurs in a discussion of the state's interest in protecting the integrity of the medical profession. Reinhardt reviews a poll of Michigan physicians on PAS that was reported in the New England Journal of Medicine in 1996, the results of which indicated a strong majority in favor. Then he points out that concerns from medical ethics are really not the primary motivations behind opposition to PAS reflected by the minority of physicians against the practice. Rather, the crucial trait distinguishing these doctors was a "strong religious identification." (36) On the integrity of the medical profession and the role of the Hippocratic Oath, Reinhardt addresses the concern that physicians might be called on to violate their conscience were PAS to be approved. He notes that since it would be a matter of choice as to whether physicians make their services available for the practice, the concern could easily be met. Here again there is a religious reference: "A physician whose moral or religious beliefs would prevent him from assisting a patient to hasten his death would be free to follow the dictates of his conscience." (37) His final reference is the strong rhetorical statement concluding the opinion to which we alluded above. Those who oppose PAS, he notes, are welcome to follow the dictates of their conscience, in his terms, "that creed," but they are not free to impose their "religious convictions" on other members of our society. (38)

Reinhardt's project, in summary, is ultimately twofold. On the one hand, he is concerned to show that the extension of liberty interests built into the Fourteenth Amendment's Due Process Clause includes the right to die; and on the other hand, he wants to protect modern medical practice from an unwitting imposition of religious restrictions in violation of the First Amendment Establishment Clause. To be sure, most of his actual argumentation is consumed by the extension of liberty interests through the abortion decisions. But a close reading of his decision reveals as well that in his view the opprobrium associated with suicide was contributed historically by the Christian faith and state illegalization of PAS today still has a strong religious foundation. Were it not for religion, Reinhardt is saying implicitly, there is no legitimate reason to ban PAS.

The Ninth Circuit Court's en banc decision has been severely criticized in scholarly literature, with the sharpest criticisms directed to Reinhardt's presentation of the history of attitudes toward suicide. Three of these critiques will be reviewed in order to demonstrate that although they are able to establish limitations in the Ninth Circuit's historical materials, in the final analysis Reinhardt's account survives intact and is in certain respects reinforced through the critiques.

CRITIQUES OF REINHARDT'S HISTORICAL PRESENTATION

The most significant of the critiques comes from an article entitled, "'Suicide: A Constitutional Right?'--Reflections Eleven Years Later," written by Thomas Marzen, et al., authors of the original article upon which Reinhardt relied for much of his historical material, and published after the U.S. Supreme Court granted certiorari to the two cases discussed above. The authors write, among other purposes, to argue that the Ninth Circuit "substantially misinterpreted" their account of the treatment of suicide in English common law and American legal history. (39) One of their most forceful challenges is directed against Reinhardt's two-paragraph summary of suicide and PAS in American legal history.

Here Marzen, et al., charge Reinhardt with "severely mischaracterizing" the content of their work, but it is difficult to see that this is the case. The general point of Reinhardt's treatment is to show that 'although the English common law approach to suicide was originally accepted in the colonies, a considerable transformation has taken place, the result of which is that neither suicide nor attempted suicide is today criminalized, although most states do have laws prohibiting assisted suicide. This point is uncontested by the authors, and is indeed consistent with their own general conclusion in the earlier article: "For most of the country's history, the majority of jurisdictions have imposed no criminal sanction upon one who, successfully or unsuccessfully, endeavors to take his or her own life, while directing the force of the criminal law against assistance of suicide." (40) The authors challenge rather the specific claims that Reinhardt makes regarding the status of legal punishment for suicide in 1868 when the Fourteenth Amendment was approved, accusing him of equivocating to minimize condemnation of suicide at that time. Reinhardt had written:

There is no evidence that any court ever imposed a punishment for suicide or attempted suicide under common law in post-revolutionary America. By the time the Fourteenth Amendment was adopted in 1868, suicide was generally not punishable, and in only nine of the 37 states is it clear that there were statutes prohibiting assisting suicide. (41)

The authors allow that it is strictly correct that there was never such a punishment under common law, but insist that Reinhardt's statement is misleading because courts did impose punishment under statutory law "for a considerable period after the Revolution." (42) They then accuse Reinhardt of a similar slight of hand in regard to assisted suicide, noting that while it is true that only nine of the thirty-seven states prohibited assisting suicide by statute, others prohibited the practice through the court-made "common law of crimes," resulting in a total of twenty-one of the thirty-seven states with laws against assisted suicide rather than the nine cited by Reinhardt. (43) In response, the authors seem to be quibbling in the effort to downplay the significance of information that came from their own article. It may be that there were statutes on the books prohibiting suicide or assisted suicide in some jurisdictions long after the Revolution, but they provide no evidence in the original article that anyone was actually punished for suicide or attempted suicide as a result. (44) Further, it may be that certain states prohibited assisted suicide by the common law of crimes, but reconstructing specific practices after the Revolution and prior to the enactment of statutory prohibitions is difficult at best, as the authors admit, and as Reinhardt notes in regard to their work. (45)

The upshot of our examination of this prominent example used by Marzen, et al., to support their charge that Reinhardt "substantially misinterpreted" the content of their article is that the latter's work on suicide and PAS in American legal history can be defended as an accurate, albeit brief, summary of their actual contribution. The authors' consternation apparently arises from the fact that Reinhardt used their article, which was intended to deny a liberty interest on a historical basis, in a court decision defending a liberty interest. Reinhardt, however, actually bases his defense of the liberty interest in the abortion cases, and not the historical material in the Marzen article. The latter is used only to show growing sensitivity to the conditions of suicide, a point with which the authors are in full agreement.

A second critique of Judge Reinhardt's opinion comes from an article by Donal O'Mathuna and Darrel Amundsen entitled, "Historical and Biblical References in Physician--Assisted Suicide Court Opinions." Reinhardt devoted several paragraphs and an important footnote remark to biblical and early Christian references. In summary, he says first that the Bible itself really does not condemn suicide. He notes in this regard several accounts of suicide in the Old Testament, none of which in his view is seen by the text as an act "worthy of censure," and the suicide of Judas in the New Testament, in his opinion treated by the text as an "act of repentance." Second, Reinhardt recounts that early Christians saw death as an "escape" from the tribulations of this world and as the "doorway to heaven." He then calls attention to a growing infatuation with martyrdom among Christians, seen especially in the Donatists' eagerness even to provoke their own deaths. Though he allows that such a practice was ultimately rejected by the early Church, nonetheless he insists that prior to Augustine, the line between suicide and martyrdom for Christians was not clearly drawn. Motivated largely by a concern that suicide was depleting the numbers of Christians, he says, Augustine condemned the practice and was able to turn public opinion against it. Reinhardt concludes his work in this area by noting the Council of Braga, which in 563 C.E. denied funeral rites for those who killed themselves, and the Council of Toledo, which in 693 C.E. prescribed excommunication for anyone who attempted to commit suicide. Once established, he points out, the Christian absolute condemnation of suicide held sway for over a thousand years before finally being challenged by early modern philosophers. (46)

O'Mathuna and Amundsen complain that Reinhardt provides a "distorted" account of the biblical and early Christian views of suicide, and write to correct the "theological and historical inaccuracies" incorporated into the Court's Opinion. (47) On the biblical material, they argue that the absence of an explicit condemnation in the text does not mean that the suicidal acts presented within it are condoned. Using a literary-narratological approach to Scripture, they point out that the stories of suicides, most notably those of King Saul in the Old Testament and Judas in the New Testament, portray the suicidal acts in an obviously negative way, in these cases as a tragic ending to a life gone horribly wrong. Moral condemnation is implicit rather than explicit, and it pertains to the life as a whole, including its ultimate outcome of suicide. On the death of Saul, the authors point out that the story recounts the increasing alienation of Saul from God, family, and the people of Israel, culminating with the complete isolation of the "'tragic hero" as he takes his own life on the battlefield. They conclude, "To claim that Saul's story commends suicide is to misinterpret completely the purpose of tragic narrative. As understandable as his suicide is, it remains a tragic conclusion that should never have happened." (48) Similarly with Judas, the story is again told in the biblical text without specific comment condemning his act of suicide, but the accounts refer to him as "a traitor, a devil, a thief, and a son of perdition," surely, in the authors' words, "not the kind of character Christians are called to emulate." (49)

In response to this point, the work of O'Mathuna and Amundsen on the biblical references to suicide is helpful in revealing the narrative context in which they occur. However, the authors seem to have erected a straw man argument to refute. No one, including Judge Reinhardt, wants to argue that the Bible commends suicide in the cases of Saul, Judas, and the others whose lives end in this way according to its stories. Pointing out that the Bible does not condemn suicide is not the same thing as saying that it commends the practice. The authors are exactly right. The biblical narratives certainly cast the character of both Saul and Judas in a negative light, and narrate their suicidal acts as the tragic outcome of rebellion against God. But with ample opportunity to do so, the biblical writers never explicitly condemn the act of suicide, even in the Mosaic Law. Other morally unacceptable acts such as murder are often included in their narrative context without explicit condemnation as well, but they are explicitly condemned elsewhere in the legal code. Suicide is not.

On martyrdom and suicide in early Christianity, O'Mathuna and Amundsen admit that there was "considerable disagreement" within the community as to the most appropriate response to persecution, and that there were "some cases" of Christian martyrdom that seem more like suicide, but they seek to drive a wedge between martyrdom and suicide by focusing on the latter as a means of avoiding persecution. They point out that in this category there are only a few instances in the literature, and these primarily concerned virgins and married women who killed themselves to avoid defilement. (50) The argument seems to be that if suicide itself were somehow viewed as commendable, then it would have been more prominently displayed in the Christian communities suffering persecution. It is martyrdom per se and not suicide, the argument appears to be, which is valued. "All Christians held that martyrdom was the most perfect display of love toward God and was desired above any other form of death." (51) Further, there is no instance of any Christian committing suicide after being denied martyrdom. (52)

Again, in response, it is difficult to see how this material calls into question Judge Reinhardt's brief summary treatment of the early Christian approach. Reinhardt's account trades on the confusion between suicide and martyrdom in the Christian community, and he is making the point that a desire for martyrdom is so emphasized by some that martyrdom itself becomes the means of accomplishing a self-inflicted death. Since the authors themselves say that martyrdom "was desired above any other form of death," surely something like Reinhardt's suspicion of a conflation of martyrdom and suicide as the means of entrance into heaven is at work. The absence of any case of suicide after being denied martyrdom is interesting but finally irrelevant to Reinhardt's argument since it was martyrdom, after all, and not suicide per se which was valued. Moreover, it was martyrdom as a means of hastening and glorifying one's entrance into heaven that was at issue. The faithful Christians who confessed not only exhibited courage and integrity but also influenced the timing of their death and entrance into heaven, and those who provoked their martyrdom exercised direct control over the timing, similar to suicide.

These arguments of O'Mathuna and Amundsen certainly do not show that Judge Reinhardt provided a distorted account of the biblical and early Christian approach to suicide that is filled with inaccuracies. In further argumentation, however, they are they are able to correct a likely misimpression that one might receive from Reinhardt's account, though the correction serves ultimately not to weaken but to strengthen the argument of the latter. Reinhardt proceeded immediately to Augustine after reviewing the uncertain relation between martyrdom and suicide in early Christianity, and he uses Augustine's strong condemnation of suicide as the crucial step in preparation for the church's formal condemnation in the two councils mentioned above. It might be assumed from his account that before Augustine, the Christian faith was ambiguous in its attitude toward suicide, only coming to a position of strong opposition in the light of Augustine's work.

Against this impression, the authors are able to provide a litany of Patristic statements that show a growing Christian rejection of suicide from church fathers writing before Augustine as well as others whose work is contemporary with his. They reference, for instance, Justin Martyr (second century), Clement of Alexandria (late second and early third century), and Lactantius (late third and early fourth century) as Christian writers who clearly rejected suicide prior to Augustine, and Jerome, John Chrysostom, and Augustine's own mentor, Bishop Ambrose, as contemporaries who articulated what was apparently by that time already a widely accepted Christian view that suicide was sinful, perhaps even worse than other sins. (53) In addition, the authors present ample evidence as well for the strong Patristic endorsement of the redemptive value of suffering, a teaching which encouraged Christians to "bear patiently the suffering of this age" rather than taking their own lives. (54)

These references to early Christian literature show clearly that a Christian condemnation of suicide can be amply documented long before the contribution of Augustine. Rejection of the practice was an established Christian position to which Augustine gives the first theoretical and systematic treatment. The significance of this correction to Reinhardt, however, does not weaken but strengthens his argument in that it demonstrates opposition to suicide in early Christian history to be even more prominent than is indicated in his account.

A third critique of Reinhardt's opinion is developed in a highly polemical article by Dwight Duncan and Peter Lubin, entitled, "The Use and Abuse of History in Compassion in Dying." Duncan and Lubin criticize all aspects of Reinhardt's historical work, describing it as a "tour d'horizon" of the subject, complaining about its brevity (four pages of a 50-page decision), questioning its focus on suicide rather than employing a more comprehensive account that would include euthanasia and physician-assisted suicide, and berating as "dishonest" Reinhardt's attempt to derive a legal right to die from modern law while presenting a historical account which is by his own admission "checkered" in relation to acceptance of suicide. (55) As a general response on behalf of Judge Reinhardt, it is difficult to see why justices should be expected to provide a full scholarly treatment of their issues. Reinhardt did include four pages of historical material in his decision, and the material was drawn largely from the first Marzen article discussed above, a text which has been widely used in the scholarly literature. Further, suicide is obviously the appropriate focus for his account, given the prominence of this basic topic rather than PAS or euthanasia in historical materials and given the possibility that a lingering condemnation of suicide per se underlies current religious opposition to PAS. In addition, contemporary jurisprudence reflects many instances of a combined use of the First and Fourteenth Amendments to generate rights that are derived and not fundamental and thereby to guarantee due process and equal treatment under the law for all citizens. Reinhardt is doing nothing out of character in attempting the same derivation for a fight to die, which he does by appeal to the extension of liberty interests in the abortion decisions. Further, there is nothing dishonest about the use of a "checkered" history of attitudes toward suicide in support of his point that outside the Christian sphere of influence suicide is not viewed with the horror that is often associated with the practice in Christian thought.

The authors call into question more specifically Judge Reinhardt's treatment of suicide in Greek and Roman history. On the Greeks, Reinhardt mentioned Socrates' drinking of the hemlock, Plato's justification of suicide in certain circumstances, and the practice of the magistrates in Athens and various Greek colonies of keeping a supply of hemlock for those who wished to commit suicide. (56) The authors downplay the significance of each of these references. I shall discuss first their most significant objection to Reinhardt's work on suicide in Greek history, directed against his use of Plato, and then make some comments on their treatment of suicide in Roman thought.

Relying on the original article by Marzen, et al., mentioned above, Reinhardt pointed out that Plato considered suicide a rational and justifiable act in eases of "painful disease" and "intolerable constraint." (57) Duncan and Lubin complain that Reinhardt uses his source selectively to generate such a conclusion, and that actually the analysis of texts from the Laws and the Phaedo by Marzen, et al., shows that Plato "certainly did not approve of suicide." (58) In reality, however, the Marzen article does not show Plato to be against suicide in all cases, as Duncan and Lubin strangely concede immediately after their assertion of a categorical rejection. Based on Plato's most direct statement on the subject in the Laws, Marzen, et al., allow, as do Duncan and Lubin, that Plato viewed some acts of suicide as free of culpability, namely, those which resulted from "passion, compulsion, or madness." In contrast, Marzen, et al., argue, '"When suicide is a rational and deliberate choice," Plato deemed it to be "a flagrant act of contempt for the state and an abandonment of duty to society and the divine order." (59) What Duncan and Lubin really want to argue, therefore, is that Plato did not approve of rational suicide, not that he rejected suicide altogether. Based on the Marzen article as his reference, then, Reinhardt is in fact reporting accurately that Plato taught suicide to be acceptable in some cases and not in others. The only question is the role of rationality in relation to the act. In this regard, it will pay to quote directly from the Plato passage in the Laws:

But what of him who takes the life that is, as they say, nearest and dearest to himself? What should be his punishment? I mean the man whose violence frustrates the decree of destiny by self-slaughter though no sentence of the state has required this of him, no stress of cruel and inevitable calamity driven him to the act, and he has been involved in no desperate and intolerable disgrace, the man who thus give unrighteous sentence against himself from mere poltroonery (sloth) and unmanly cowardice. (60)

In such cases, Plato says, relatives should consult local law and tradition for purification and ceremonial requirements, but the graves of these suicides must be solitary with no companions in the tomb and they must be buried "ignominiously in waste and nameless spots" with no headstones or other markings. (61) I suggest that Marzen, et al., as well as Duncan and Lubin, here misread Plato in terms of reason and passion and that Judge Reinhardt more accurately reports the meaning of the text. Rational suicides should be seen as those Plato excuses, namely those like the death of Socrates, carried out because his death is required by the state, and those suicides as well which result from "cruel and inevitable calamity" or "desperate and intolerable disgrace." These are reasonable acts in their contexts, as opposed to a self-inflicted death with no reason, but as the result of "sloth" or "unmanly cowardice." In regard to the attitudes of ancient Greek culture, then, as reflected in the thought of Plato, the work of Duncan and Lubin fails to dismantle Reinhardt's account. There is an openness to suicide in the work of Plato that is very unlike the thoroughgoing condemnation of the practice reflected in medieval history under the influence of the Catholic Church.

Further, when Duncan and Lubin turn to Roman attitudes, they completely ignore the extensive Stoic literary and philosophical writings on the topic, as well as the actual suicides of leading intellectuals, on behalf of a focus on the issue whether Roman law might have allowed for something like assisted suicide. (62) With a detailed historical analysis, they conclude that it did not, but then nothing in Reinhardt's historical review suggests otherwise.

In summary, our examination of prominent scholarly critiques of the classical historical material in Judge Reinhardt's Court Opinion does not reveal fundamental flaws in the latter. Rather, at every turn it appears that as much as might be possible in a court opinion, Reinhardt provided an accurate general account of attitudes toward suicide in the Bible, in early Christianity, in Greco-Roman culture, in western intellectual history, and in modern American experience. The four generalizations from Reinhardt's account noted earlier easily withstand scholarly critique.

CURRENT SOCIAL ATTITUDES AND RELIGIOUS OPPOSITION TO PAS

Opposition to legislation favoring PAS comes from a variety of sources, including most notably professional healthcare organizations such as the American Medical Association and the Hospice Foundation of America; but for the society as a whole, it comes primarily from religious organizations and even more specifically the Catholic Church. A good example of such may be found in a review of funding for the Oregon referenda in 1994 and 1997 supporting PAS. According to the Oregonian, the largest daily newspaper in the Pacific Northwest, in 1994 groups opposing Measure 16 (legalizing PAS) spent about $1.5 million, with almost half coming from Catholic organizations. Three years later, supporters of Measure 51 (repealing Measure 16) raised approximately $2.25 million, again approximately half of which came from the Catholic Church. (63) In both eases, though outspent by opponents, supporters of PAS won the referenda. Barbara Coombs Lee, who led the 1994 initiative, criticized the Church for "a moral agenda aimed at defeating the will of the people." (64)

The Catholic Church has indeed been emphatic and unrelenting in its opposition to PAS. In its Declaration on Euthanasia, for instance, the Church applies its historic opposition to the killing of an innocent human being directly to the case of euthanasia: "It is necessary to state firmly once more that nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying." (65) Instead of any form of euthanasia, the document emphasizes the redemptive value of suffering as a way of "sharing in Christ's passion and a union with the redeeming sacrifice which he offered." (66) Similarly, in his encyclical, Evangelium Vitae, Pope John Paul II unequivocally condemns PAS: "To concur with the intention of another person to commit suicide and to help in carrying it out through so-called 'assisted suicide' means to cooperate in, and at times to be the actual perpetrator of, an injustice which can never be excused, even if it is requested." (67)

Conservative-evangelical documents typically articulate the same vigorous opposition to PAS. For instance, in its 1996 Resolution on the topic, the Southern Baptist Convention minced no words, resolving: "That we the messengers of the Southern Baptist Convention ... affirm the biblical and Hippocratic prohibitions against assisted suicide; ... that we vigorously denounce assisted suicide as an appropriate means of treating suffering; ... and that we call upon federal, state, and local governments to prosecute under the law physicians or others who practice assisted suicide." (68) Polling data show that Evangelical Christians generally are strong opponents of PAS. For instance, a 2002 poll conducted for ABC News and Beliefnet (an inter-religious Internet site) reported that Evangelicals opposed legalization of PAS by a two-to-one margin, (69) and a 2004 poll of Protestant ministers showed that over 90 percent of pastors in churches affiliated with the National Association of Evangelicals opposed "laws allowing for physician-assisted suicide for terminally ill patients." (70)

There is a clear discrepancy between the positions of such religious groups and the opinions of the American people on PAS. Harris polls over the past twenty years have shown consistent support for assistance in dying. Results of its December 2001 poll, for instance, show that 65 percent think "the law should 'allow doctors to comply with the wishes of a dying patient in severe distress who asks to have his or her life ended," as opposed to only 29 percent who rejected the statement. This same question has yielded similar results since it was first asked in 1982. Further, a 63 percent to 32 percent majority disagrees with the U.S. Supreme Court rulings in 1997 disallowing a constitutional right to PAS. (71) In their article, "Religious Authority and Public Opinion on the Right to Die," sociologists Jenifer Hamil-Luker and Christian Smith recount similar results from Gallup-National Opinion Research Center polls over five decades. The question, "When a person has a disease that cannot be cured, do you think doctors should be allowed to end the patient's life by some painless means if the patient and his family request it?," was answered increasingly in a positive way, beginning with the low figure of 36 percent in 1947 and gradually ascending to persistent approval by over 70 percent of the population through the 1990s. (72) Hamil-Luker and Smith provide a detailed analysis of religious attitudes toward PAS, using data from the National Opinion Research Center's 1996 General Social Survey. Their work indicates a significant difference between position statements rendered by denominational and church officials, and embodied in official denominational literature, and the actual beliefs of church members. Indeed, Catholic respondents, whose church has the strongest, most persistent condemnation of euthanasia and PAS, registered a 73 percent positive response, exactly in keeping with the opinions of Americans as a whole. Hamil-Luker and Smith give special attention to the negative responses of evangelical Protestants reflected in the poll, accounting for the stance by appeal to the forthright evangelical commitment to engage society on moral and political issues, seen particularly in its pro-life advocacy in recent decades. Here, they say, religious authority seems to be intact. (73)

Our review of current social attitudes toward PAS indicates that the minority opposition to the practice today is primarily embodied in official church and denominational public policy statements and is expressed through the political influence of evangelical Christians and Catholic Church officials. Americans as a whole approve PAS, as do the majority of Americans who identify themselves as religious.

CONCLUSION

In the Ninth Circuit decision, Judge Reinhardt argued effectively that dying patients experiencing pain and suffering have a liberty right based in the Due Process Clause of the Fourteenth Amendment to request assistance by physicians in ending their lives, and he provided sufficient historical analysis to show clearly that it was the Christian faith which contributed to western culture the strong condemnation of suicide which is preserved today in the religious opposition to PAS. Our analysis of the U.S. Supreme Court's Washington v. Glucksberg decision indicated that Chief Justice Rehnquist dismissed Reinhardt's Ninth Circuit decision arguments with insufficient attention. Further, our careful review of the severe academic critiques of the historical material in Reinhardt's Opinion showed that his basic argument easily survives the critiques. Still further, our review of current social attitudes toward PAS shows widespread acceptance of the practice today in contexts beyond the authoritarian influence of religion. In light of these considerations, it is reasonable to conclude that the Ninth Circuit decision was essentially correct and that contained within its argumentation is the basis for a new and more powerful challenge against state laws prohibiting PAS, namely, that they are unconstitutional as a violation of the Establishment Clause of the First Amendment. Prohibition of PAS fails to honor separation of church and state by blocking a legitimate liberty interest on the basis of religious influence.

(1.) Washington v. Glucksberg, 521 U.S. 702 (1997) at 708, quoted from Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (WD Wash. 1994).

(2.) Washington v. Glucksberg, 521 U.S. at 710.

(3.) Ibid. at 711.

(4.) Ibid. at 710-16, quote at 716. This claim overlooks persistent poll results on the question not only in Washington but in the nation as a whole.

(5.) Ibid. at 723.

(6.) Ibid. at 725.

(7.) Planned Parenthood v. Casey, 505 U.S. 833 (1992) at 851.

(8.) Washington v. Glucksberg, 521 U.S. at 727. Rehnquist's reference in support of this claim is to San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-35 (1973).

(9.) Washington v. Glucksberg, 521 U.S. at 728-35.

(10.) Vacco v. Quill, 520 U.S. 793 (1997) at 800.

(11). Washington v. Glucksberg, 521 U.S. at 745 (Stevens. J., concurring in the judgment).

(12.) Ibid. at 748, citing Timothy Quill's article, "Death and Dignity, A Case of Individuated Decision Making," New England Journal of Medicine 324 (1991): 691-94.

(13.) Washington v. Glucksberg, 521 U.S. at 773 (Souter, J., concurring in the judgment). See also Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497 (1961) at 543-55.

(14.) Washington v. Glucksberg, 521 U.S. at 773.

(15.) Ibid. at 786-88.

(16.) Compassion in Dying v. Washington, 79 F.3d at 839 (1996).

(17.) Ibid. at 817.

(18.) Ibid. at 820-21.

(19.) Ibid.

(20.) Ibid. at 802.

(21.) Ibid. at 812-13.

(22.) Ibid. at 813.

(23.) Ibid. at 813-14. See also the Court Opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992) at 851.

(24.) Compassion in Dying v. Washington, 79 F.3d at 814 (1996). See also Chief Justice Rehnquist's Court Opinion in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) at 278.

(25.) Compassion in Dying v. Washington, 79 F.3d at 815. See also Justice O'Connor's Concurrent Opinion in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. at 287.

(26.) Cruzan v. Director, Missouri Dept. of Health, Chief Justice Rehnquist's Court Opinion, 497 U.S. at 267-68, and 283.

(27.) Compassion in Dying v. Washington, 79 F.3d at 816.

(28.) Ibid. at 803. See also Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497 (1961) at 543.

(29.) Compassion in Dying v. Washington, 79 F.3d at 800. See also Justice Brandeis's dissent in Olmstead v. United States, 277 U.S. 438 (1928) at 478.

(30.) Thomas J. Marzen, et al., "Suidice: A Constitutional Right?," Duquesne Law Review 24 (Fall 1985): 17-100.

(31.) Compassion in Dying v. Washington, 79 F3d at 806-10.

(32.) Ibid.

(33.) Ibid. at 824.

(34.) Ibid.

(35.) Ibid. at 826.

(36.) Ibid. at 829.

(37.) Ibid. at 830.

(38.) Ibid. at 839.

(39.) Thomas J. Marzen, et al., "'Suicide: A Constitutional Right?' Reflections Eleven Years Later," Duquesne Law Review 35 (Fall 1996): 261-85, quoted reference from p. 262.

(40.) Marzen, et al., "Suicide: A Constitutional Right?," 98.

(41.) Compassion in Dying v. Washington, 79 F.3d at 809.

(42.) Marzen, et al., ""Suicide: A Constitutional Right?' Reflections Eleven Years Later," 265.

(43.) Ibid., 266.

(44.) Astoundingly, the authors cite their own article to justify their claim regarding punishment by statutory prohibition, but neither the pages cited nor any other material in the article supports the claim. See their citation in the second article (p. 265), then the referenced material in the first (pp. 80-81) as well as the following pages.

(45.) The authors call attention to the difficulty at several points in the original article (see esp. pp. 70-71). Reinhardt says correctly in a footnote (at 809 fn. 42) that the Marzen article "hypothesized" the generalization of twenty-one states with laws against assisted suicide in 1968.

(46.) Compassion in Dying v. Washington, 79 F.3d at 808.

(47.) Donal O'Mathuna and Darrell Amundsen, "'Historical and Biblical References in Physician-Assisted Suicide Court Opinions," Notre Dame Journal of Law, Ethics, and Public Policy 12 (1998): 474.

(48.) O'Mathuna and Amundsen, "Historical and Biblical References," 484-85, quote, p. 485.

(49.) Ibid., 487.

(50.) Ibid., 489.

(51.) Ibid.

(52.) Ibid., 490.

(53.) Ibid., 490-91.

(54.) Ibid., 493-95.

(55.) Dwight Duncan and Peter Lubin, "The Use and Abuse of History in Compassion in Dying," Harvard Journal of Law and Public Policy 20 (Fall 1996): 180.

(56.) Compassion in Dying v. Washington, 79 F.3d at 807.

(57.) Ibid.

(58.) Duncan and Lubin, "The Use and Abuse of History," 190.

(59.) Marzen, et al., "Suicide: A Constitutional Right," 24.

(60.) Plato, Laws 873c2-873d1, in Collected Dialogues of Plato, eds. Edith Hamilton and Huntington Cairns, (1963), 1432.

(61.) Ibid., 873d1-873e1.

(62.) Duncan and Lubin, "The Use and Abuse of History," 192-94.

(63.) Gail Kinsey Hill, "Millions Collected for Repeal of Law on Assisted Suicide," Oregonian (7 October 1997), E-7.

(64.) Ibid.

(65.) The Sacred Congregation for the Doctrine of the Faith, Declaration on Euthanasia (5 May 1980), "Euthanasia."

(66.) Ibid. "The Meaning of Suffering for Christians and the Use of Painkillers."

(67.) Pope John Paul II, Evangelium Vitae (1995), par. 66.

(68.) "Resolution on Assisted Suicide," Southern Baptist Convention, New Orleans, June 1996.

(69.) "Evangelical Christians 'Strong Opponents' of Assisted Suicide, according to New Poll." Available online at: http://www.baptistmessenger.com/Issue/020328/5.html.

(70.) "American Pastors Support the Death Penalty, but Oppose Legalizing Physician-assisted Suicide," Ellison Research. Available online at: http://www.ellisonresearch.com/Pastor%20Study /Release%203%20Death%20Penalty.htm.

(71.) "Survey Finds Majority Support Rights to Euthanasia and Doctor-assisted Suicide," AIDSWeekly (28 January 2002): 13.

(72.) Jenifer Hamil-Luker and Christian Smith, "Religious Authority and Public Opinion on the Right to Die," Sociology of Religion 59 (Winter 1998): 374.

(73.) Ibid., 386-89.

DAVID MCKENZIE (B.A., Louisiana College, B.D., Southern Baptist Theological Seminary; M.A., Louisiana State University; Ph.D., University" of Texas) is professor of philosophy, Berry College, Mount Berry, Georgia. His articles have appeared in Educational Horizons, Religious Studies, Journal of Religion, Faith and Philosophy, and Journal of Church and State. Special interests include Establishment Clause issues, miracles, physician-assisted suicide, and the relationship between philosophical and theological ethics. This essay represents a blending of focal issues in bioethics and church-state contexts. He would like to express appreciation to students in his bioethics seminars for their valuable responses to the arguments developed in this essay, and expecially to Ms. Cary Sanders, his research assistant, for the data supporting the last section.
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