Euthanasia in America - past, present, and future: a review of a Merciful End and Forced Exit.

• Author: Larson, Edward J.

MERCIFUL END: THE EUTHANASIA MOVEMENT IN MODERN AMERICA. By Ian Dowbiggin. New York: Oxford Univ. Press. 2003. Pp. xix, 250. $28.

FORCED EXIT: THE SLIPPERY SLOPE FROM ASSISTED SUICIDE TO LEGALIZED MURDER. By Wesley J. Smith. Dallas: Spence Publ'g Co. 2003. Pp. xxii, 364. Paper, $17.95.

Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (1) De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the U.S. magistrate, but it give rise to immense political influence," de Tocqueville explained. (2) He then commented, "But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force." (3) The same can be said of individual rights: those decreed by the Supreme Court carry added moral force, those denied by that Court carry less moral force. To some extent, Americans conflate morality with constitutionality. The relevance of this observation in a review of two books about efforts to legalize physician-assisted death, Ian Dowbiggin's (4) A Merciful End and Wesley J. Smith's (5) Forced Exit, should become apparent later--but for now, permit me to elaborate on the general observation.

Of course, de Tocqueville's equation of the constitutional, the political, and the moral does not apply in every case. In his majority opinion in the 1857 Dred Scott case, Chief Justice Roger Taney articulated a constitutional right for citizens who legally owned slaves under state law to take that "property" into United States territories where slavery was outlawed under federal or territorial statutes. (6) He did this with the hope of resolving the most pressing political and moral question of his day in favor of the extension of slavery into supposedly free territories. The attempt backfired badly as free-soil moderates joined radical abolitionists in denouncing the Court and its ruling. For example, Illinois trial lawyer Abraham Lincoln attributed the judicial decision to the ruling Democratic political dynasty in Washington, and called for the people "to meet and overthrow the power of that dynasty" to prevent it from pushing its pro-slavery agenda through the courts. (7) After he was elected president in 1860 at least in part on his promise to roll back Dred Scott, Southern Democrats pushed their states to secede from the Union. The ballot box and the battle field (rather than constitutional adjudication) ultimately resolved that particular political and moral question, (8) with the 13th Amendment effectively overruling Dred Scott in 1865.

Dred Scott is more the exception than the rule, however. Throughout our nation's history, many hotly contested political issues were resolved, without conflict, by judicial decisions. Three examples spanning the past half-century illustrate the rule. Following a virtual tie in Florida that left no clear winner in the 2000 presidential election, Bush v. Gore (9)--despite deep and continuing objections to the case in many quarters--effectively decided the political question of who became president in 2001. A1 Gore accepted the Court's majority opinion as final and his partisans did not take to the streets in protest--as perhaps might have happened in countries with a different attitude toward judicial power. Another example occurred a quarter century earlier, when, after months of resisting judicial and congressional subpoenas, President Richard Nixon complied with the Supreme Court's order in United States v. Nixon (10) directing him to turn over the so-called Watergate tapes to the Watergate special prosecutor. This led to Nixon's resignation from office two weeks later. Here, as in Gore, political questions were resolved by judicial decisions. In a yet earlier example, President Dwight Eisenhower sent federal troops into the Deep South to enforce federal court orders decreeing the desegregation of public schools, despite his personal objections to those rulings. He thereby gave teeth to the enforcement of the Court's pronouncements in Brown v. Board of Education. (11) Together, those judicial pronouncements and the resultant executive actions led to the end of de jure segregation in public education, which was arguably the most difficult political and moral question of the 1950s.

As a political and moral question in the United States, euthanasia may not rise to the same historic level of significance as school desegregation or the abolition of slavery, but during the 1990s, as A Merciful End and Forced Exit show, it commanded considerable public attention. Best-selling books, articles, and television programs promoted the concept of mercy killing to a wide audience (Smith, pp. 12-35). Activist groups supporting the legalization of physician-assisted suicide or medical euthanasia, such as the Hemlock Society and Compassion in Dying, sprang up and gained visibility (Smith, p. 172; Dowbiggin, p. 162). Bills on the topic surfaced in state legislatures around the country and voters in five states faced ballot initiatives to legalize physician-assisted suicide, with one of them, the Oregon Death With Dignity Act, passing by a 51% to 49% margin in 1994 (Dowbiggin, pp. 167-71). (12) In New York and Washington State, concerned physicians and patients filed suits in federal court to overturn state statutes against assisting suicide. (13)

As those lawsuits wound their way to the United States Supreme Court in 1997, (14) they became the focal point of the political and moral debate over euthanasia in the United States. When the Court handed down its decision refusing to recognize a constitutionally protected liberty interest in physician-assisted suicide, the entire issue largely disappeared from the headlines. The political debate subsided virtually overnight. This occurred despite the fact that the justices--both in the majority and concurring opinions--expressly reserved the matter to resolution through state political processes and did not even purport to have resolved the constitutional issue for all time. (15)

Although A Merciful End and the revised and updated edition of Forced Exit were published in 2003, they contain surprisingly little about the Supreme Court's 1997 decisions in Glucksburg and Quill. Although A Merciful End purports to cover the history of the euthanasia movement in the United States from roughly 1900 to "the 1990s and beyond" (Dowbiggin, p. 163), it relegates this final period to a cursory concluding chapter. Forced Exit is not history. It is written in the present tense, but was first published in 1997 (before the Supreme Court rulings). Revisions for the 2003 edition did not alter the book's basic style and substance. Smith made little effort to integrate the Supreme Court rulings into his critique of physician-assisted suicide, perhaps because they did not neatly fit his slippery-slope analysis. These two books tell us much about the public debate before the Supreme Court rulings, but little about those rulings or their aftermath. In this review, I will summarize and comment on both books as well as the Supreme Court's opinions in Glucksburg and Quill.

1. A MERCIFUL END

   The misappropriately (or perhaps ironically) titled book, A Merciful End, is a history of the euthanasia movement in the United States that portrays its leaders as only secondarily interested in providing a merciful end for suffering patients. Instead, Dowbiggin presents a picture of a movement with deep social Darwinian and eugenic currents (Dowbiggin, p. 16). Even for those leaders of the euthanasia movement whose concerns centered on the suffering patient rather than society, Dowbiggin implies that the fruit of their labor may be infected by mistake, abuse, and short-sightedness (Dowbiggin, pp. 155-56 (case of Dax Cowert), pp. 164-69 (cases of Nancy Cruzan, "Debbie," and Janet Adkins)).

   Although euthanasia has long roots in Western culture, Dowbiggin begins his account around 1990, during the heyday of social Darwinism and the dawn of eugenics. The book's subtitle--"The Euthanasia Movement in Modern America"--is more descriptive of the book's contents than its title. Euthanasia is revealed to be a very modern way of dying. Dowbiggin depicts the utilitarian, anticlerical, pervasively Darwinian euthanasia movement as an archetypical manifestation of the modern reform impulse. Fittingly, the movement begins in The United States around the turn of the Twentieth Century with champions like Progressive political orator Robert Ingersoll, Ethical Culture movement founder Felix Adler, and popular socialist author Jack London. These and other Progressive Era champions of euthanasia saw suicide as a rational choice for the terminally ill, and mercy killing as appropriate for those suffering severe physical or mental disabilities (Dowbiggin, pp. 155-56). Dowbiggin's account suggests that the United States' failure to embrace their arguments for euthanasia reflects a cultural hesitancy to accept the full implications of rational modernity, which is characterized by a naturalistic, utilitarian view of life. Perhaps there is some sentiment and superstition left in us, at least when confronted with death.

   A Merciful End is fundamentally a work of institutional history, and it is the well-researched story of the Euthanasia Society of America (the "ESA") and successor organizations that the book tells in impressive detail. After chronicling the emergence during the Progressive Era...