2cornucopias

Hijacking Conscience Clauses: Manipulating the Law to Protect the “Right to Kill”

In 09 Mary Summa, JD on 2012/11/02 at 10:40 AM

By: Mary Summa, J.D.

Baby Ryan Nguyen was born six weeks premature with barely a heartbeat. He was diagnosed with severe brain damage, an intestinal blockage and failing kidneys. After several weeks, doctors decided that continuing dialysis was not only “inappropriate” but “immoral” since, in the doctors’ view, it would prolong agony with “no likelihood of a good outcome.”1 The doctors stopped all treatment. When the parents successfully obtained an injunction from a court to force the hospital to treat Ryan, the hospital administrator reported the parents to Child Protective Services for “physical abuse and physical neglect.”2 The parents found another doctor to treat Ryan. Under the new doctor’s care, Ryan was treated, removed from dialysis and returned home. Ryan lived for several more years.

The Nguyens’ battle to save their child reads like a story from the Third Reich. Surprisingly, it occurred in Spokane, Washington in 1994, and sadly, served as a harbinger of things to come.

This new ethic in medicine—the futile care theory—has transformed the practice of medicine and the meaning of American freedom. The medical profession was once steeped in the sanctity of life ethic. Now it has become the standard-bearer of the euthanasia movement, a 20th Century movement whose proponents seek to extinguish the lives of the elderly, the infirmed, and the handicapped.

These strides have not been made single-handedly. With only one exception, many state and federal lawmakers have remained complacent, while many doctors and hospitals have misused laws written to protect life, in order to provide legal immunity for doctors who kill their own patients.

Such laws must be amended to vigilantly protect the inherent right to life. To accomplish this goal, one must understand the origin of the futile care theory, its depth and breadth in the practice of medicine, and how laws intended to protect life have been co-opted to promote euthanasia. Only then can Americans understand how the laws must be changed to protect the living and, ultimately, the freedoms upon which this nation was founded.

The Sanctity of Life Ethic

Medical ethics have existed since the time of Hippocrates around 400 B.C. As Christianity spread, the belief that God endowed man with intrinsic value began to influence law and medical ethics. Called the “sanctity of life ethic,” it imposed on doctors a duty to treat and heal all life, including the lives of the physically and mentally challenged and the unwanted. Performing abortions or euthanizing patients violated medical standards of care.

Throughout most of history, until the Enlightenment period of the 18th Century, this ethic remained unchallenged. Religious revivalism in the mid-1700s protected the ethic in America and Europe from being dismantled by law and rejected by medicine. Well into the 19th Century, euthanasia and suicide were condemned as a rejection of God’s providence and a violation of the sanctity of life ethic.3 Abortion was illegal under Anglo-American common law and by 1900, every state, with the blessing of the medical community, had codified common laws against abortion.4

Euthanasia, Eugenics, Birth Control, and Abortion

The emergence of the Euthanasia Movement in the early 20th Century challenged the sanctity of life ethic. Euthanasia, a movement born during the Enlightenment, rejected the belief in the inherent value of every life and, instead, weighed its value in terms of its utility to society.

At the beginning of the 20th Century, America remained a Christian nation whose laws and ethics reflected a belief in moral absolutes established by the Creator. Recognizing this fact, many euthanasia proponents directed their attention and financial resources to movements linked in spirit to the euthanasia movement—the eugenics movement in the 1920s and 30s, the birth control movement in the 1940s, and the abortion movement in the 1960s and 70s. Prominent euthanasia advocates, including Margaret Sanger,5 John D. Rockefeller III, and Hugh Moore,6 gave these initiatives credibility and financial resources. The medical community tolerated, and, in some cases, enthusiastically supported the movements.

Euthanasia’s Disguise 

Euthanasia can be divided into several categories. With voluntary euthanasia, a patient decides whether he should die as a result of withholding treatment so as to hasten death, or be killed proactively. With non-voluntary euthanasia, a surrogate makes the decision, and with involuntary euthanasia, a third party makes the decision over the objection of the loved one or surrogate. Euthanasia can be passive by withdrawing life-sustaining treatments or active, which requires the doctor to actively kill the patient.

Living Wills. The rise of medical technology in the late-1960s and early-1970s gave euthanasia advocates an opportunity they had sought for years. Cases began to arise where, against the will of the patient or the patient’s loved ones, doctors were keeping patients artificially alive on machines. Aided with medicine’s new emphasis on individual freedom and patient autonomy, the Euthanasia Society of America and the Euthanasia Education Council of America resurrected the idea of living wills, which would allow patients to give consent in advance for the withdrawal of certain treatments. The concept of “living wills” arose in 1949, but was dismissed by many in the movement because passive euthanasia was “tangential to the movement’s real objective.”7 Other euthanasia proponents saw living wills as the prelude to legalized active involuntary euthanasia that “include[d] deformed infants and severely handicapped adults.”8

Reintroduced in the 1970s, the idea caught fire in state legislatures.9 In 1976, California became the first state to legalize living wills. Laws authorizing non-voluntary euthanasia soon followed in the form of Health Care Powers of Attorney (HCPOAs), which authorized the withdrawal of life-sustaining care, including antibiotics and artificial food and water, under certain circumstances. Today, laws authorizing advance directives have been enacted in every state.10

The Duty to Kill

In the late 1980s and early 1990s, involuntary euthanasia proponents began pushing their cause with “the futile care theory” which promoted the idea that the right to life is not inherent, but should be determined by a third party judging the patient’s perceived quality of life and mental cognizance.

As early as 1990, articles began appearing in prominent medical journals espousing the benefits of the theory. In a 1990 article, three prominent doctors penned an article where they stated,

If survival requires the patient’s entire preoccupation with intensive medical treatment, to the extent that he or she cannot achieve any other life goals … the treatment is effective but not beneficial; it need not be offered to the patient and the patient’s family has no right to demand it.11

In 1993, Peter Singer, a well-known utilitarian bioethicist argued that the right to live and “personhood” would be determined by a perceived quality of life and the mental cognizance of the patient.12

In 1996, in lockstep with the medical elite, the American Medical Association issued a report supporting the implementation of the futile care theory in every hospital in America. In that report, the AMA failed to define “futile care,” emphasizing that it was a “value judgment” where “reasonable people will disagree.” “Appropriate care” should no longer be based on the age-old test of what was physiologically beneficial to the patient. Rather, the decision to treat or not to treat would be weighed against such things as the patient’s “possible quality personal interaction” and cognitive awareness. Furthermore, doctors, not patients or their families, would dictate the care received.13

Sixteen years after the AMA issued this report, the definition of futility remains unclear. In a 2009 article, the author reported that some physicians may determine care is futile if it offers a 10-20 percent chance of benefit, whereas other physicians consider care futile when they believe it offers a zero percent chance of success.14

Recently, bioethicists have interjected lifeboat ethics into the definition of “futile care.” In 2009, bioethicist Jacob Appel wrote an article condemning the provision of artificial hydration to unconscious patients in favor of preventative care for others. “I like to think of our current healthcare system as an enormous yet finite blanket that can only cover so many people—when one individual slides under the cloth, somebody else is pushed out,” Appel wrote.15

Another 2009 article echoed the same sentiment when the author questioned,

How will providing the treatments one patient demands burden or benefit others in the community? Can resources used to support the life of one dying patient be redistributed to benefit others?16

Stooping to a new low in 2010, another author argued that providing antibiotics to patients he deemed futile “can be considered unethical…”.17

This new criteria for determining who receives care has opened the door for rationed care not only for “futile” care but for “marginally beneficial” care. In England, often the forbearer of U.S. policy, some cancer experts are now pushing the state-run health care system to halt life-prolonging cancer treatments, claiming they are too costly and offer “false hope.” They argue monies should be spent on preventative care, which could save more people, rather than expensive drugs that simply prolong a person’s life who will eventually die, according to these experts.18

Legal Efforts to De-sanctify Human Life

As poignantly stated by one anti-euthanasia advocate, over time, the ethical question “what is right?” became “who decides?”—which now has devolved into “what is legally allowed?”19

The medical establishment found one answer right beneath their noses in the form of “conscience clauses.” A fixture in law and the practice of medicine since the 1970s, most states and the federal government had created these “legal life boats” to prevent doctors and medical personnel, objecting on religious or conscience grounds, from being forced to participate in abortion. With the enactment of advance medical directives, legislators included similar conscience clauses to protect doctors who did not want to comply with a patient’s directive to withdraw medical treatment. At that time, the possibility that a doctor or hospital would terminate life-sustaining treatment against the patient’s wishes was simply beyond contemplation by doctors or legislators.

The shifting ethical foundation of medicine has turned these protections inside out. Now with the futile care theory dominating ethics taught in medical schools and governing hospitals, in many hospitals it has become “a violation of conscience” to provide life-sustaining medical care for patients whose lives the doctor believes are not worth saving.

A 2005 Massachusetts case provides a vivid example of how conscience clauses have been hijacked to promote involuntary euthanasia. Barbara Howe suffered from Lou Gehrig’s disease, and made it clear in her medical directive and to the nursing staff that she wanted life-sustaining treatment, including a ventilator. She signed a medical directive making her daughter the health care proxy. Massachusetts law regarding health care directives contains language allowing a doctor, on moral or religious grounds, to refuse to follow the patient’s directive.20 Hiding behind this provision, the doctor refused to keep Barbara Howe on a ventilator. The daughter sued, and ultimately, the doctor won in court. The ventilator was cut off and the mother died directly as a result of the doctor’s violation of her wishes.21

Dozens of such cases have appeared in magazines and newspapers over the years, and in many cases, doctors have successfully used conscience protections to kill their own patients.

What Should Be Done?

Conscience clauses served as a short-term fix for pro-life doctors wanting to continue life-sustaining medicine. They should never have been and should never be the only strategy to thwart the utilitarian morality that dominates medical practice.

First, the government should prohibit conscience clauses from being used to protect doctors who choose to hasten their patient’s death. Conscience clause language should be amended as follows:

Conscience protection should apply only to elective procedures;

Conscience protection should not be allowed to be used for the withholding of life-sustaining treatments or procedures;

Conscience protection should be procedure specific.

Secondly, state legislatures should go on the offensive to repeal euthanasia already codified in state statutes:

Laws governing medical directives should exclude artificial nutrition and hydration or antibiotics from life-sustaining treatments which can be removed from a patient, if, in reasonable medical judgment, its denial would hasten or result in the death of the patient.

“Appropriate care” should exclude care that intentionally hastens death, including the withdrawal of artificial food and water and antibiotics.

“Appropriate care” should be redefined to be care or treatment that provides a physiological benefit to the patient. Considerations such as the impact of treatment on other individuals, the value of the patient’s life, the patient’s disability, the patient’s ability to pay, or the patient’s age should not be considered by the doctor in determining whether the treatment is appropriate.22

The “Soul” of American Freedom

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for me
and there was no one left to speak out for me.

These words, attributed to Martin Niemoller, an opponent of Nazism and Hitler, are etched on a large stone wall located in the Holocaust Museum in Washington, D.C. They serve as a chilling reminder that the sanctity of life is not just a cliché trumpeted by pro-life groups, but is a keystone of freedom. Denied to some, it will eventually be denied to all, and as history proves, the denial of the right to live will spell the death knell of every other inherent right.

Hitler, alone, cannot be blamed for the Holocaust. In fact, before Hitler rose to power, Germany’s medical elite had abandoned the sanctity of life ethic. Pressured by rising medical costs in Germany, they had adopted a utilitarian view of life and approved of euthanasia for the unfit.23 Hitler, when he rose to power as Chancellor in 1933, simply provided official approval for their actions.24 With the inherent right to life eliminated in medical ethics, Hitler saw an opportunity, and exploited it to impose totalitarianism on Germany.

The lessons of history have not been heeded. Americans have sat idly by while the government forcibly sterilized the poor and mentally disabled, claiming that they polluted the population. Americans have justified the murder of unborn children, claiming they are burdensome and unwanted. Now, faced with mounting health care costs, leaders in the medical profession and bioethics have justified the extermination of the disabled and elderly. As Hitler did, American governments are providing the legal shield for doctors to do so.

Man is made in the image and likeness of God. Because of that relationship, the Creator has given man certain rights which government cannot abridge—the right to life, the right to liberty, and the right to happiness. These rights are proclaimed in the Declaration of Independence. America’s founding fathers sought to protect these rights in the Constitution. The belief in inherent rights and a Creator who gave those rights to all people are foundational principles of America, and as Archbishop Charles Chaput has stated, the “soul” of American freedom.25

The motivation to fight against the continued advancement of euthanasia and medicine’s futile care theory is not just an individual fight for those Americans who are faced with the life-and-death decisions for themselves or their children, like the Nguyens did 1996. Rather, this is a fight for the very existence of liberty and the freedoms enshrined in some of history’s most revolutionary documents, documents which founded this world’s “last best hope,”26 “the shining city on a hill.”27

Hijacking Conscience Clauses

Endnotes

1. Alexander Morgan Capron. “Baby Ryan and Virtual Futility.” The Hastings Report. Vol. 2, 1995.

2. Wesley J. Smith. “Can Hospitals Have the Right to Pull Your Plug?” The Rational Argumentator: A Journal for Western Man. Issue XXXIII. 1 April 2005. http://rationalargumentator.com/issue33/hospitalspullplug.html. Last visited April 7, 2012.

3. Ian Dowbiggin. A Merciful End: The Euthanasia Movement in Modern America. New York: Oxford University Press. 2003. 4.

4. Telzrow, Michael E. “Before Roe v. Wade: Attitudes against Abortion Developed Slowly in America but by 1900, Every State in the Union Had Anti-Abortion Laws. It Took at Liberal Onslaught (and Roe v. Wade) to Reverse This.” The New American. 24:2. 21 January 2008.

5. Ian Dowbiggin. 73.

6. id.130-133.

7. Ian Dowbiggin. 121.

8. Ian Dowbiggin. 139.

9. Nancy Valko, R.N. “Of Living Wills and Butterfly Ballots.” Women for Faith and Family. 16:2. 2001. http://www.wf-f.org/0601Livingwills.html. Last visited April 4, 2012.

10. “Living Wills: State laws.” Findlaw.com. http://estate.findlaw.com/living-wills-state-laws.html. Last visited June 25, 2012.

11. Lawrence J. Schneiderman, et.al. “Medical Futility: Its Meaning and Ethical Implications.” Annals of Internal Medicine.12:12. 5 June 1990. 949-953.

12. Peter Singer. Practical Ethics. Cambridge: Cambridge University Press. 1993. 190.

13. See CEJA Report 2-I-96 Medical Futility in End-of-Life Care” AMA. 1996. A version of this report was published as “Medical Futility in End-of-Life Care” JAMA 1999: 281; 937-941.

14. Dianna Howard, MD.et al “Withdrawing Medically Futile Treatment.” Journal of Oncology Practice. 5:4. 193-195 at 194.

15. Jacob M. Appel, “What’s So Wrong with ‘Death Panels’?” Huffingtonpost.com. November 22, 2009. http://www.huffingtonpost.com/jacob-m-appel/whats-so-wrong-with-death_b_366804.html Last visited May 2, 2012.

16. Lisa Day. “Medical Futility, Personal Goods and Social Responsibility.” Am. J. Critical Care. 18: 279-282.

17. M.S. Niederman and J.T. Berger. “The Delivery of Futile Care is Harmful to Other Patients.” Crit. Care Med. Oct. 2010. 38.

18. Sophie Borland. “Don’t Give Out Cancer Drugs If It’s Just to Extend Life. Treatments Cost Can’t Be Justified Says Experts.” Mail Online. 27 Sept. 2011. http://www.dailymail.co.uk/health/article-2042172/Dont-terminal-cancer-patients-drugs-just-prolong-lives-say-experts.html. Last visited June 20, 2012.

19. Nancy Valko. “Futility Policies and the Duty to Die. Voices Online Edition Lent/Easter 2003.18:1. Women for Faith and Freedom. http://www.wf-f.org/03-1-Futility.html. Last visited June 20, 2012.

20. Mass. Ann. Laws ch. 201D Sec. 15(b) (2010.

21. Liz Kowalczyk. “Hospital, Family Agree to Withdraw Life Support.” Boston Herald. 12 March 2005. http://www.boston.com/news/local/massachusetts/articles/2005/03/12/hospital_family_agree_to_withdraw_life_support/. Last visited June 21, 2012

22. Thaddeus Pope, J.D., PhD. “Idaho Anti-Futility Bill Signed Into Law.” Medical Futility Blog. 8 Ap. 2012.  http://medicalfutility.blogspot.com/2012/04/idaho-anti-futility-bill-signed-into.html. Last visited June 20, 2012.

23. Donal P. O’Mathuna. “Human Dignity in the Nazi Era: Implications for Contemporary Bioethics. BMC Medical Ethics. 7:2 (2006) http://www.google.com/search?hl=en&source=hp&q=http%3A%2F%2Fwww.biomedcentral.com%2F1472-6939%2F7%2F2&gbv=2&oq=http%3A%2F%2Fwww.biomedcentral.com%2F1472-6939%2F7%2F2&aq=f&aqi=&aql=&gs_l=hp.12…3513.3513.0.4401.1.1.0.0.0.0.0.0..0.0…0.0.r5ZjpkCjN-Q. Last visited June 20, 2012.

24. ] Richard J. Evans. The Third Reich At War 1939-1945. London: The Penguin Group. 2008. 79.

25. Charles J. Chaput. Render Unto Caesar. New York: Doubleday. 2008. 30.

26. Ronald Reagan. “We Will Be A City Upon a Hill.” Speech to the First Conservative Political Action Conference. January 25, 1974. http://reagan2020.us/speeches/City_Upon_A_Hill.asp. Last visited July 2, 2012.

27. Ronald Reagan. Farewell Address to the United States. January 11, 1989.

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Copyright © 2012. North Carolina Family Policy Council. All rights reserved.

Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.

Originally printed – “Conscience Clauses: Manipulating the Law to Protect the Right  to Kill.” Family NC.

Summer, 2012

 

 

 

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