Dying, without Reasons, in Massachusetts

Early June, and I’m back in our adopted state of Massachusetts to do a talk on Obamacare and the courts for our friends at Massachusetts Citizens for Life. Our friends there, as elsewhere, await the decision coming from the Supreme Court any day now.

But in the meantime, the pro-lifers in Massachusetts have a pressing, immediate problem: a referendum on a legislative proposal known as the Death with Dignity Act, on the ballot for the fall.

The Massachusetts Medical Society has voted 3 to 1 against a bill that has doctors prescribing drugs, not to restore, but to end the lives of their patients. And yet the early polls shows a public inclined to accept this new policy at a level of 2 to 1.  

Some of this can be chalked up to the poll-tested title: Death with Dignity turns out to draw more votes than Doctor-Assisted Suicide. McCarthy Demers, a physician and lawyer in Memphis, used to give the paradigm for death-with-dignity: Fred Astaire, in white tie and tails, being shot in the middle of a pirouette. 

With the change in fashions this proposal comes dressed in a different garb, but at base it is the same old thing, fueled by the same passions that keep pressing on us abortion on demand and the kind of research that requires the destruction of human embryos.  

The proposal comes at a time when the souls of the people have been amply prepared to receive it. The Kennedys led the way in corroding the moral sense of a vast constituency by teaching, in the most visible, public way, that one could be at odds with the moral teaching of the Church and still be a good Catholic. Massachusetts is also thickly supplied with colleges – and, therefore, with academic enclaves and the kind of moral credulity that is now fostered in those enclaves.

The Death with Dignity Act offers a benign release from life from those patients “suffering from a terminal disease that will cause death within six months.” But of course we have had ample evidence over the years on how unreliable those estimates have been.  

There was the famous case of Carrie Coons in upstate New York in 1989. Everyone agreed that she was in a “vegetative state” with no possibility of recovering. As Nat Hentoff tells the story, Coons’s roommate went over to her bed, told Carrie that her relatives were about to do her in – at which point Carrie sat up, awake and a bit hungry.   

What keeps coming back is Henny Youngman’s line: “A doctor gave a guy six months to live. He couldn’t pay his bill – the doctor gave him another six months.”

          Don’t shoot!

And yet beyond the familiar points of weakness, it must be said that the bill in Massachusetts shows a remarkable cleverness. For in its details it seems designed to meet some of the most serious objections arising in the past.  

There has long been a concern that patients seek to end their lives because they are depressed. But the bill stipulates that, as part of the medical counseling, it must be determined that the patient is “not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.” 

The accent is on the voluntary judgment of the patient, and the judgment is not voluntary if the patient is in ignorance of the drugs prescribed or distracted with depression. The doctor is not authorized to administer lethal injections; he is to be confined to prescribing drugs for the client to take.  

In what looks to be an effort to avoid the Terry Schiavo problem, the bill requires witnesses to the decision of the patient, and apart from one relative, a second witness may not be someone who profits from the death of the patient. Nor may it be the operator of a “health care facility” where the patient is being treated. At the same time, the patient should be apprised of the “feasible alternatives including, but not limited to, comfort care, hospice care, and pain control.”

And yet behind the rich detail of these provisions there is a logic that may call into question the very rationale of the bill. The marketing people tell us that the public shies away from arguments identified with the Church and “right to life.” But the provisions of the bill make no sense without the assumption, grounded in natural law, that life is a good – a good that should not be ended for casual or unserious reasons. 

As a moral good, there should be a moral justification for destroying that life. The bill tells us that life should not be ended out of ignorance or because people are deeply unhappy and depressed. Nor does it need to be ended because of pain, for pain can be managed, and comforting care provided. 

But then what finally are the reasons that would justify this decision to destroy a human life? The bill proclaims the object of a “humane” death, but it leaves out the ingredient that most defines a human and “humane” life: the capacity to give reasons over matters of right and wrong. 

The bill offers us a human being, animated by will, claiming a portentous license, but apparently not a being who can give us a moral account of the ways he has spent his life or the reasons that would justify anyone in ending it.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.