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Course Outline

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Thoughts on Designing a Course on “Choices at the End of Life”

  1. Using the Supreme Court opinions in Glucksberg & Quill to understand
    1. Constitutional law: 14th Amendment considerations
    2. Reluctance of the Court to declare new substantive rights
      1. States rights considerations
      2. Tenth Amendment: National government one of severely limited powers
      3. A short history of the enlargement of Federal powers
    3. The "principled" school (Dworkin et al.) vs. the "historicist" (Rehnquist) school of Constitutional interpretation. (Bowers v. Hardwick, overruled by Lawrence v. Texas)
    4. "The misuse of old learning" (Rehnquist’s "700 year old history of suicide") vs. stare decisis.
    5. Do old bad arguments, however oft-repeated and even adopted, make good law? Dredd Scott, Plessy v. Ferguson.
  2. A short history of suicide and assisted suicide in the Western world.
    1. Lauded and widely utilized (Zeno, Cato, Socrates, Brutus, Seneca, the "heroes of Masada", Jesus (?))
    2. The "mania for martyrdom" in the early Church
    3. Reaction: St Augustine against the Donatists; Josephus; the Semahot
  3. Historical arguments against suicide
    1. Genesis 9:5: God makes all persons His servants to do His work in the world.
    2. Compare Socrates in the Phaedo: We are the possessions of the gods; we are like soldiers set at a post. (But recall there are exceptions: when given the "necessity" we may enter the better world to be by our own hands—"as I have been". Thus Socrates accounts himself an excused suicide.)
    3. St. Aquinas: we are God’s servants and the King’s, and suicide is contrary to natural law. (Until life becomes a torture we would gladly cast off.)
    4. The English commentators: Bracton, Coke, Blackstone: parrot Aquinas. This at a time when supposed "freemen" were attached to the land and owed service to the Lord of the Manor, and on up the feudal ladder to the King. So that in a very real sense one’s continuing service was owed the King.
    5. What was the result of our Revolution on all this?
    6. Again, if the suicide were terminal (as Saul or Abimelech) there is no further practical service to render God, King or community. (Possibly exception: priests who have promised by example to affirm that God will not give us more suffering than we can endure.)
  4. Ethically mandated suicides and assistance therein
    1. Chief Rabbi of Israeli Army: the soldier with knowledge of crucial secrets
    2. captured by the enemy and fearing he may not be able to resist torture.
    3. On Capt. Scott’s Antarctic expedition: the injured officer who walked out into the storm to free the others to move on.
    4. In wartime there are innumerable examples of men (and women) who act as heroes, throwing themselves on grenades, etc. In the Bible: Samson, and even Saul, who well knew he was going out to his death.
    5. The coup de grace: settled duty of one’s comrades to dispatch a suffering mortally wounded soldier to end suffering.
    6. Suicide to avoid degradation (Saul, "heroes of Masada", Brutus, Cato, the mass suicide at York to avoid forced conversion). Mass suicides by slaves in the "Middle Passage", etc.
    7. The concept of "ones" (coercion) at halakha: this excuses all sins save "murder" and inherently abominable crimes (incest, desecration of Torah scroll, etc.).
    8. The Bible’s acceptance of suicide (Saul, Abimelech, Zimri, etc.) seems to classify suicide as other than "murder" so that "ones" should excuse where suffering is unbearable. (Cf., Socrates’ "necessity" and the coup de grace.)
  5. Concept of the "good death"
    1. O’Connor’s concurring opinion: we are Constitutionally entitled to a "good death".
    2. But she seemingly limits this solely to one free from avoidable suffering.
    3. Many hold that a "good death" is one that is quick, gentle and certain. (Discuss elements.)
    4. She concedes that to obtain this may require terminal sedation. Discuss.
    5. Other concurring opinions go beyond narrow O’Connor definition and suggest one is entitled broadly to the sort of death one wishes. Discuss.
    6. Quill case opinions discuss removal of life support system(s) as an end of life option. Background: Karen Ann Quinlan case (1976).
    7. And all the opinions, explicitly or otherwise, deal with physician assisted dying (PAD). Define. The Oregon experience: Death with Dignity Act.
    8. Other end of life alternatives not discussed in two cases: voluntary cessation of nutrition and fluids (as in Cruzan case); "self-deliverance" (distinguish from "suicide").
    9. Are there ethically meaningful distinctions among all these alternative ways of dying? Why should the law as to them be so different?
  6. Problems in the O’Connor opinion
    1. Holds that we are entitled to "good death" but says we are all today entitled at law to that via terminal sedation and other palliative care. So, PAD is not Constitutionally necessary, and we need not consider these appeals.
    2. But terminal sedation—which under O’Connor’s position is the sole way to the "good death" in some cases--requires that the dying person be sedated to unconsciousness.
    3. And the underlying rationale of Ford v. Wainright, 477 U.S. 399 (1986) is that one cannot be required to die while less than reasonably alert. (The holding proper is that it would be "cruel and unusual punishment" to execute the insane.)
    4. Are the non-criminal dying to have less rights in this area than criminals?
    5. Again, it is a matter of notoriety that the dying today at the practical level do not get sufficient routine palliative care—much less terminal sedation in cases where it should be administered. Compare the realities of life in the South before the civil rights cases of 1960s and 1970s. The Court did not rely on technical legal remedies—which were not available at the practical level.
  7. In the Quill decision, is there a meaningful ethical distinction in what physicians do in end of life situations between "killing" and "letting die"? Examples.
    1. Is it sufficient for the Court to observe that most physicians, lay persons and legislatures still make this distinction?
    2. Is this not a "junk argument" in the context of the celebrated James Rachels article in the 1975 New England Jnl of Medicine (Vol. 292:78-80)?
  8. Tip-toeing around the First Amendment problems in all opinions
    1. Planned Parenthood of S.E. Pennsylvania v. Casey and other cases strongly suggest that crucial decisions in one’s life are religious: to carry a child or abort, how we die and the like. Cf., Dworkin, Life’s Dominion: these are "quintessentially religious" decisions. Is there any decision more inherently personal, private and religious than how we decide to end our lives?
    2. If so, provided only that these crucial decisions not diminish the freedom of others, what warrant has government to invade this religious area? First Amendment.
    3. This argument was not put forward at the trial level, nor in any of the appeals, and thus was not considered by the Supreme Court.
    4. Court is very reluctant to enter into the First Amendment area. In a sense, even to define "religion" is to regulate it, contrary to the Amendment. See conscientious objector cases, U.S. v. Seeger: any comprehensive belief system which functions in a believer’s life like traditional religion is entitled to be respected as a "religion".
    5. Is the old law holding polygamy not inherently a religious practice, so as to be entitled to First Amendment protection, still meaningful?
    6. To avoid entering the First Amendment thicket, Court may well reconsider the substantive "due process" claim of 14th Amendment it denied in 1997.
  9. What is the nature of law?
    1. Why should we obey the law? Socrates in the Phaedo.
    2. How does the law grow? And change? Dredd Scott and Plessy v. Ferguson vs. Brown v. Board of Education; Romer v. Evans vs. Bowers v. Hardwick (overruled by Lawrence v. Texas)
    3. How to balance the claims of stare decisis v. healthy growth?
    4. "Junk science" (silicone breast implants) and "junk arguments".
    5. Holmes: "It is repugnant to decide a case on no better basis than so it was decided in the reign of Henry IV."
    6. Frankfurter (?) denigrates stare decisis: "Wisdom is so rare a quality that it were better it come late than not at all."

The foregoing is outline for a course given at the Rutgers University (New Brunswick) Adult School. It was on six Monday mornings starting September, 2001). The course was taught by Winthrop Thies, former President of The Hemlock Society of NJ (the predecessor organization to Compassion and Choices of New Jersey, Inc.).