By Mary Summa, J.D.“He’s not responding. What do you want us to do with him? What are your plans?”The young woman had been sitting beside her father, holding his hand. The elderly man was a pillar of the community, a devoted husband, a loving father, a hero to those who knew him. She looked up to see the hospital social worker—file in hand—ready to write down her instructions. Her father had suffered a massive stroke five days before, which the doctors expected to kill him. By the grace of God, he had rallied.“We’re having a gastro feeding tube put in next week,” the daughter responded. The social worker looked at her as if she was a stupid child. “Oh, everyone likes to feed their family members, but it’s not so bad after a couple of days.”The daughter could not believe her ears! She looked the social worker straight in the eye. “We are feeding my father. We are not starving him to death.”The social worker snapped her file shut, turned and exited the room. She did not like what she heard. The daughter didn’t either.This true encounter illustrates the diminished value placed on human life in America today. Previously, our long-held belief that life is sacred had deemed all forms of intentional killing including abortion, infanticide, euthanasia, and suicide to be ethically wrong. Doctors’ and nurses’ commitment to this basic principle would have led them to do everything they could to keep this man alive. To have even suggested to a daughter that she consent to starving her father would have been unheard of, much less promoted.Now, in 2009, as this woman discovered, our nation’s rejection of God has real ramifications. Without God, man has no inalienable rights, including the right to live; only life with a utilitarian value deserves protection. Otherwise, extinguishing that life by starvation is morally acceptable.In order to understand how our nation has slid into this abyss and what we can do about it, one must understand what euthanasia is, where it came from and what is legally happening in North Carolina and elsewhere.

The word “euthanasia” derives from the Greek word for “easy death.”¹ Euthanasia is defined as the “intentional killing by act or omission of a dependent human being for his or her alleged benefit.” There are two types of euthanasia. (1) Euthanasia by omission ends a patient’s life by withdrawing medicines or food and water necessary to sustain life. (2) Euthanasia by action is achieved by administering a treatment or lethal dose of medication to a patient who has requested to die. Either form of euthanasia can be voluntary where the patient consents to the euthanasia; non-voluntary where the patient did not make a request or give consent; or involuntary where the patient withheld consent.²

Origin and History of Euthanasia
Euthanasia dates back to Ancient Greece and Rome when doctors commonly administered poisons to hasten the death of patients.³ The growth of the Christian Church caused support for euthanasia to wane and Western governments, for the most part, condemned euthanasia until the 20th Century.⁴

While a few doctors and philosophers promoted euthanasia in the 18th and 19th Centuries, it failed to gain much support until the early 1930’s. Then, on October 16, 1931, C. Killick Millard, the Medical Officer of Health for the City of Leicester in Britain, reignited the debate by calling voluntary euthanasia “rational, courageous and often highly altruistic” and proposed a draft bill. Undaunted by his lack of success in Parliament, in 1935 Millard founded the Voluntary Euthanasia Legalization Society (VELS) to promote his cause.⁵ Some historians have suggested that the VELS, although framed as an organization promoting “voluntary” euthanasia, in fact, obscured the distinctions between voluntary and involuntary euthanasia and sympathized with Nazi euthanasia.⁶

For the next 40 years, the Euthanasia Movement continued to organize voluntary euthanasia societies around the world. In 1973, voluntary euthanasia societies formed in the Netherlands; in 1976 in Japan and Germany. That same year the first international conference of voluntary euthanasia associations was held in Tokyo.⁷

The U.S. Euthanasia Movement 
In the United States, just as in Europe, the voluntary Euthanasia Movement preceded judicial and legislative victories permitting euthanasia. In 1935, the same year Millard established the VELS in Britain, Reverend Charles Potter founded a lobbying group in the U.S. called the Euthanasia Society in America. The U.S. organization’s goals extended well beyond those of its British counterpart. Unlike the British organization, which fostered “voluntary” euthanasia, the Euthanasia Society in America aspired to legalize all euthanasia, voluntary and involuntary. In 1942, Foster Kennedy, M.D., a former president of the Society, while criticizing euthanasia laws that “ignore creatures who cannot speak,” offered a plan of involuntary euthanasia for defective children. Eight years later, in 1950, Reverend Potter publicly praised and supported the “mercy killing” of two cancer patients. The Society had moved very quickly from the position of supporting the killing of those who “want” to die to those who “should” ask to die.⁸

The philosophical table was set for judicial and legislative action to legalize the taking of human life, whether the patient expressed the desire to die or not.

Physician-Assisted Suicide
The Euthanasia Movement has had limited success in legalizing physician-assisted suicide, a type of voluntary, active euthanasia, which can be accomplished through direct consent from the patient or indirectly through a living will. Either through court action or legislative mandate, only three countries—Netherlands, Belgium, and Luxembourg—have legalized physician-assisted suicide.⁹ Switzerland does not officially allow physician-assisted suicide, but the government will not prosecute physicians who engage in it.¹⁰ In Uruguay and Columbia, “mercy killings” are not prosecuted.¹¹ Just this year in Britain, the Director of Prosecutions issued a similar directive to prosecutors to withhold prosecutions against individuals who assist in suicide.¹²

In the U.S., there have been many attempts but few successes to legalize physician-assisted suicide. The Ohio State Legislature made the first attempt in 1906. That bill failed 79-23.¹³ The International Task Force on Euthanasia and Assisted Suicide reports that between 1994 and 2009, 24 state legislatures entertained a total of 113 bills that would have legalized this type of active euthanasia. All attempts failed. Between 1991 and 2000, four states entertained ballot initiatives to legalize physician-assisted suicide. All failed. In 1997, Oregon legalized physician-assisted suicide, followed by Washington State in 2008, which legalized it by referendum.¹⁴ Currently, the Montana Supreme Court is considering the constitutionality of physician-assisted suicide.¹⁵

Euthanasia “by Omission”
While the Euthanasia Movement has made slow progress in courthouses and state legislatures with physician-assisted suicide, it has knocked the hinges off the backdoors of hospital rooms and nursing homes with euthanasia “by omission.” Judicial implementation of a legal fiction called “substituted judgment” and legislatures’ broadening of the definition of “medical treatment” has led to the passive euthanasia of countless individuals in this country and abroad, primarily through the withdrawal of food and water to living patients (i.e., silent euthanasia). Here’s how it happened:

As technological advances allowed the elderly to live longer, bio-ethicists began to question, “How much is too much?” In 1983, Daniel Callahan, a bio-ethicist and co-founder of the Hastings Center, wrote “On Feeding the Dying.” In that article he stated the widely held view that “…a denial of nutrition, may, in the long run, become the only effective way to make certain that a large number of biologically tenacious patients actually die…Given the increasingly large pool of superannuated, chronically ill, physically marginal elders, it could well become the non-treatment of choice.” He recognized, however, that society’s “deep-seated revulsion” to starving patients to death would prolong the journey toward legalization of the practice.¹⁶ While not totally convinced in 1983, Daniel Callahan 10 years later wholeheartedly endorsed the starvation of patients in a “vegetative” state.¹⁷ Most recently, he has joined the torch-bearers for rationed, government-run health care.¹⁸

While bio-ethicists deliberated the ethics of using advancing technology on the elderly, the Euthanasia Movement’s leaders saw an opportunity to advance the cause. In 1984, Helga Kuhse, a leader in the Euthanasia Movement and a philosophy professor at Australia’s Monash University, seized the opportunity. At an international conference, she informed the audience that by showing the public how painful death by dehydration and starvation really is, society would conclude that a lethal injection is “in the patient’s best interest.” In effect, coming in the backdoor will accomplish what the Euthanasia Movement was unable to accomplish through the front.¹⁹

Social and verbal re-engineering was needed to accomplish this long-term goal. First, euthanasia proponents needed to transform the simple procedure of inserting a feeding tube into a complicated “medical treatment” in order to disguise the desire to starve a patient.²⁰

The often-cited story of Mary Hier illustrates how verbal re-engineering can affect the outcome. Mrs. Hier was a 92-year-old patient suffering from severe dementia, but not terminally ill. An abnormality in her esophagus required that she be tube-fed for many years. When her tube became dislodged, the court denied the petition of her guardian ad litem to reinsert it, citing the “relatively high risk” to the patient of performing this “major medical procedure.”²¹ On the same day the paper reported on the Hier case, it also reported on a 94-year-old woman who received the same procedure, now characterized as “minor surgery to correct a nutritional problem.” The woman was Rose Kennedy. Eventually, Mrs. Heir’s feeding tube was reinserted and she and Mrs. Kennedy lived for several more years.²²

This dichotomy in the characterization of the same procedure begs the question, “Is it called a ‘medical procedure’ when the real intent is to starve the patient?” In truth, gastrostomy tubes (G-tubes) have been around for at least 100 years.²³ In the early 1980s the technique was perfected so as to be performed in a 30 minute procedure.²⁴

While the “food and hydration” debate has focused on “artificial” feeding through tubes, some courts and ethicists have argued that there is no distinction between food given “artificially” and that given by mouth. Both should be considered “medical treatment,” which can be withdrawn from a patient.²⁵

Still others have argued that removing a ventilator is morally equivalent to removing artificial food and hydration. There is, however, a very clear distinction. Without a ventilator, the patient will die due to the underlying condition, which perpetrated the decision to ventilate the patient. Without food and hydration, the person will die of a new cause—deliberate starvation and dehydration—not the underlying condition, which prompted insertion of the feeding tube.²⁶

Lastly, medical and law journals are filled with the burden/benefit argument—a low quality of life is considered in light of the “burden” to the hospital, the family and society. In this argument, the patient is not dying (or not dying fast enough), and it is deemed best to end the patient’s suffering. The response is philosophical—The sanctity of human life gives it intrinsic value. A person’s value and right to live should not be determined by his/her utilitarian value.

Judicial and Legislative Action
The Euthanasia Movement has won tremendous victories over the past 25 years. First, the case of Karen Ann Quinlan provided the foothold needed for the Euthanasia Movement in America by allowing parents to remove their daughter’s ventilator. In 1990, the Supreme Court declared in the Cruzan case that the “right to die” is protected under the Due Process Clause of the Constitution. While the court did not rule specifically on whether food and water could be treated as “treatment,” which could be withdrawn from the patient, nonetheless, that was the effect. The Cruzan family was allowed to kill their child by withdrawing her food and water.²⁷

The Schiavo case ranks as the most public of all euthanasia cases. It highlighted for the world that food and hydration are no longer considered medical “care,” but are “medical treatment,” and can be withdrawn from any patient. Using a “legal fiction” of substituted judgment, the courts decided that Terri Schiavo would have wanted her feeding tube to be withdrawn.²⁸ Terri died 13 days after her feeding tube was removed by court order.²⁹ In effect, the courts ruled just as the Euthanasia Society of America wanted in 1950: What a patient wants has been supplanted with what a patient “should” want.³⁰

Most courts and state legislatures have fallen into the arms of the Euthanasia Movement and now characterize artificial food and hydration as “medical treatment,” which can be withheld at the consent of the patient or another person acting on the patient’s behalf. Many states allow food and hydration to be withdrawn by legislative mandate or court action.

North Carolina succumbed to the Euthanasia Movement relatively early. In 1991, the North Carolina legislature authorized “Living Wills” and “Health Care Powers of Attorney.”³¹ In that statute, “Life-Prolonging Measures,” which can be withdrawn by a physician with consent of the patient or an agent of the patient, include “artificial nutrition and hydration.” So, in North Carolina, it is legal for a doctor to starve a patient to death as long as he receives some kind of consent from the patient or the patient’s designee.

Although many have supported voluntary euthanasia—euthanasia with the consent of the patient or the patient’s designee—others have argued that the distinction between voluntary and involuntary euthanasia is fleeting. That conclusion has proven prophetic.

Chris Docker, Director of the Scottish euthanasia group, Exit, wrote a paper in 1996 suggesting that when a patient is in a persistent vegetative state (PVS), the consent of the patient’s loved one should be replaced with “institutional guidelines developed by the professional associations.” These guidelines “could be developed for other conditions as well as PVS where the patient’s preference is no longer the most relevant factor.”³²

Sadly, Mr. Docker did not have to wait long to see his theory put into action. In the fall of 2009, The Daily Telegraph (a London-based newspaper) reported several cases where hospitals euthanized or attempted to euthanize non-terminally ill patients under the British Palliative Care Program, the “Liverpool Care Pathway.”³³

Shockingly, according to a recently released audit of the program, 28 percent of the families did not even know that their loved ones were put into the Liverpool Care Pathway.³⁴

Conclusion
Natural rights, including the right to life, serve as the foundation of our democracy. Preserving these rights insures freedom. Destroying them guarantees tyranny.
“If we wish to be free,” Patrick Henry once said, “We must fight.”³⁵ Turning our nation from a culture of death to a culture of life will not be easy. The Euthanasia Movement is a formidable foe, but for the sake of human freedom and dignity, we must be willing to fight the battle.

To begin this quest to regain our freedom, state legislatures should criminalize physician-assisted suicide. Despite legalization in only two states, many states, including North Carolina, remain silent on the issue, leaving the door wide open for physicians to engage in this ghastly act with impunity. Secondly, state laws should designate food and hydration, including “artificial” food and hydration, as “care” not “treatment” which can be withdrawn. We need to be a nation which honors the living, not one which abandons the dying.

No one should be put through the scene described at the outset of this article. I understand the pain. You see, I was the daughter and my father was the patient. My father regained his ability to speak, understand, eat and sit up on his own. He lived for three more months, giving my siblings and me, and, most importantly, our mother, the opportunity to take care of him the way he took care of us all our lives. In his dying hours, Dad held my hand, with extra squeezes in the same rhythm that he used when I was a little girl. He died in God’s time, not the hospital’s, in the wee hours of a warm summer morning while I, alone in his hospital room, held his hand reciting the 23rd Psalm.

Footnotes
1 Dowbiggin, Ian, “A Prey on the Normal People’: C. Killick Millard and the Euthanasia Movement in great Britain, 1930-55”, Journal of Contemporary History, Vol. 36, No. 1. 59-85. 2001. Sage Journals Online. 8 Nov. 2009.

2 “Euthanasia Definitions”, Euthanasia.com. 4 Dec. 2009. <www.euthanasia.com/definitions.html>

3 Emanuel, Ezekiel J., “The History of Euthanasia Debates in the United States and Britain,” Annals of Internal Medicine, Vol 121 pp. 793-802 (1994) 793. 4 Nov. 2009. <http:annals.highwire.org/content/121/10/793.abstract>

4 Euthanasia’s resurgence in the 1800’s coincided with a philosophical shift in man’s view of the origin of law. From the 1200’s when Thomas Aquinas published Summa Theologica until the 1700’s, most political philosophers accepted the Thomastic theory that laws of a society should be based on natural law. Jeremy Bentham, an 18th Century British philosopher, challenged the philosophical cornerstone that God’s natural law could be discerned by reason and known to everyone. He argued that law based on natural law and the rights attached to that law were “nonsense on stilts.”4 Rather, Bentham argued, the morality of a law should reflect its overall benefit to society. Hence, human life has no value unless it provides an overall societal benefit. Viewed as a political radical, mainstream political scientists ignored Bentham’s theory.
Nonetheless, this theory did not die entirely. A follower of Bentham’s theory, John Stuart Mill, retooled the theory, and in 1861 published a thesis titled “Utilitarianism,” which rejected natural law. Mill’s position as a highly respected member of Parliament and political theorist gave utilitarianism credence it had previously not enjoyed.

In America, the Founding Fathers were very influenced by philosophers who argued in favor of natural law and natural rights. “We hold these truths to be self-evident,” Jefferson wrote in the Declaration of Independence, “that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these rights are life, liberty and the pursuit of happiness.” The Founding Fathers believed in natural law and believed the preservation of these rights were worth sacrificing everything, including their own lives.

5 C. Ann Potter, C. Ann. “Will the ‘Right to Die ‘ Become a License to Kill? The Growth of Euthanasia in America”, 19 Journal of Legislation 31, Notre Dame Law Review. 34. See also, Ezechiel Emanuel, 796.

6 Ian Dowbiggin, Ian. 59-85.

7 Docker, Chris. “A Short History of Important Events, Scottish Voluntary Euthanasia Society. 1995.

8 Potter, C. Ann. 34.

9 Baklinksi, Thaddeus. “Luxenbourg Legalizes Euthanasia.” LifeSiteNews.com. 18 March 2009.18 Nov. 2009. 4 Dec 2009. http://www.lifesitenews.com/ldn/2009/mar/09031803.html

10 White, Hillary, “Switzerland Refuses to Alter Assisted Suicide to Nix Death Tourism.” LifeSiteNews.com. June 2, 2006,. 4 Dec 2009. http://www.lifesitenews.com/ldn/2006/jun/06060210.html.

11 Aysegil Demirhan Erdemir, M.D ,”A Short History of Euthanasia Laws, and Their Place in Turkish Law”, Eubios Journal of Asian and International Bioethics 11 (2001), 47-49 rpt at < http://www.eubios.info/EJ112/EJ2F.htm&gt;

12 Gilbert, Kathleen, “Britain Won’t Prosecute Assisted Suicide: Chief Prosecutor,” LifeSiteNews.com. 21 Sept. 2009. 4 Dec. 2009. <http://www.lifesitenews.com/ldn/2009/sep/09092109.html&gt;

13 Ezekiel, Emanuel. 796.

14 “Failed Attempts to Legalize Euthanasia/Assisted Suicide in the United States.” International Task Force.org. 4 Dec. 2009. http://www.internationaltaxkforce.org/usa.htm

15 “Montana’s Top Court to Hear Right-to-Die Argument,.” CNN.com/US. 1 Sept 2009. 4 Dec 2009. < http://www.cnn.com/2009/US/09/01/montana.right.to.die/index.html&gt;

16 Callahan, Daniel. “On Feeding the Dying,” Hastings Center Report, October 1983. 22.

17 Callahan, Daniel, et. al. “The Sanctity of Life Seduced: A symposium on Medical Ethics,” April 1994. 4 Dec. 2009. Reprinted at <http://www.firstthings.com/article/2009/001-the-sanctity-of-life-seduced-a-symposium-on-medical-ethics-8&gt;

18 Callahan, Daniel. “America’s Blind Spot: Health Care and the Common Good” Commonweal Magazine. Vol. CXXXVI, No. 17. 9 Oct 2009. 4 Dec 2009.
<http://www.commonwealmagazine.org/article.php3?id_article=2659&gt;

19 Marker, Rita L., Smith, Wesley J. “The Art of Verbal Engineering”, Dusquene Law Review. Vol. 35. No. 1. Fall 1996. 81-107. 4 Dec 2009. Reprinted at

20 Marker, Rita, Smith, Wesley. 96.

21 Marker, Rita, Smith, Wesley. 96.

22 See In re Hier, 18 Mass. App 200, 464 N.E. 2d 959 (1984).

23 Marker, Rita L., Smith, Wesley J. 97.

24 Minard, MD, Gaule, “The History of Surgically Placed Feeding Tubes”, “Nutrition in Clinical Practice”, Vol. 21. No. 6. 626-633 (2006). Sage Journals Online. 4 Dec 2009. Also see Marker, Rita L., Smith, Wesley J., fn 70.

25 See “Gastrostomy”, Surgeryencyclopedia.com. 6 Nov 2009. <http://ncp.sagepub.com/cgi/content/abstract/21/6/626&gt;

26 Marker, Rita L., Smith, Wesley J.. 99. See fn 80.

27 Grimstad, Julie, “Providing Nutrition and Hydration to Patients,” Women for Faith and Family, September 2000. 4 Dec 2009.

28 Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

29 Snead, Carter O., “The ‘Surprising’ Truth About Schiavo: A Defeat for the Cause of Autonomy.” Constitutional Commentary. Winter 2005. 1-18. 4 Dec 2009.

30 “Terri’s Story.” Terri Schindler Schiavo Foundation. 4 Dec 2009. http://www.terrisfight.org/pages.php?page_id=3

31 Potter, C. Ann. 35.

32 Docker, Chris. “Limitations of the Best Interests and Substituted Judgment Standards: A Brief Argument to Suggest that the Law’s Current Mechanisms for Making Decisions About Incompetent Persons Are Inadequate.” Dying In Dignity Mensa Sig News Journal. Vol 3. Issue 1. 1-11. 1993. 23 Nov 2009. http://www.euthanasia.cc/bi.html

33 Blake, Heidi, “Fighting for a Peaceful, Pain-Free Death.” Daily Telegraph. 23 Nov 2009, 8 Dec 2009. http://www.telegraph.co.uk/health/6613732/Fighting-for-a-peaceful-pain-free-death.html;
Devlin, Katie. “Sentenced to Death on the NHS.” Daily Telegraph. 2 Sept 2009. 9 Dec 2009. < http://www.telegraph.co.uk/health/healthnews/6127514/Sentenced-to-death-on-the-NHS.html&gt;; Devlin, Kate. Irvine, Chris. “Daughter Claims Father Wrongly Placed on Controversial NHS End-of-Life Scheme.” Daily Telegraph. 8 Sept 2009. 9 Dec 2009. <http://www.telegraph.co.uk/health/healthnews/6156076/Daughter-claims-father-wrongly-placed-on-controversial-NHS-end-of-life-scheme.html&gt;; See also Smith, Wesley. “Hazardous Pathway.” National Review Online. 20 Oct 2009. 9 Dec 2009. <http://article.nationalreview.com/?q=MzVjMTU3ZGE2MDVkM2ZjMTg1YTY3NDIwYjdmOWZmYTE=&w=MQ=&gt;

34 “National Care of Dying Audit—Hospitals, Round 2, Geriatric Report 2008/2009.” Marie Curie Palliative Care Institute Liverpool in collaboration with Clinical Standards Department of the Royal College of Physicians. 7.

35 Henry, Patrick. “Give Me Liberty or Give Me Death.” 23 March 1775. 5 Dec 2009 <http://avalon.law.yale.edu/18th_century/patrick.asp&gt;

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Mary Summa, J.D., is an attorney in Charlotte, North Carolina.

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