American society may soon embark upon the most important constitutional debate since the early nineteenth century. Then the issue was slavery, and the question was whether one human being may own property in another; now the issue is assisted suicide, and the question is whether one human being may take another’s life with impunity. Both questions draw us back to the central propositions that establish the American constitutional order: that there is an order of rights antecedent to the state and that government is bound, as a condition of its legitimacy, to secure those rights against the predations of those who would deny or abolish them. Must the state protect all human lives, or may some be snuffed out with the tacit or express consent of the government? More precisely: does the Constitution sanction the private use of lethal force, and if so, how can that understanding be squared with the unalienable character of the rights bestowed upon us by the laws of nature and nature’s God?
Debate on this point should have been joined a generation ago, but the Supreme Court’s ukase in Roe v. Wade obscured the full gravity of the critical issue. By declaring that it was unnecessary to decide when human life begins, and by refusing to inquire into what or, more precisely, who is being killed when the woman exercises her “right to choose,” the Court made it possible to pretend that abortion was in effect a victimless crime. What course the abortion debate might have taken but for this convenient legal fiction, we shall never know.
What we have learned from the abortion controversy is that the legitimation of killing in Case A makes it progressively easier to justify killing in Cases B and C and D. When the argument for liberalization first surfaced, we were told that the procedure would be rarely used, and only in the most necessitous circumstances. It was not long, however, before one woman’s necessity turned out to be another’s convenience, and abortion on demand became the order of the day. Twenty-five years and thirty-five million abortions later, a government commission feels free to recommend the creation of human beings for the sole and explicit purpose of biological experimentation, and a President of the United States can feel equally free to defend infanticide in the form of partial-birth abortion.
That more courts have not extended the argument of the abortion cases to other forms of human killing testifies more to their reticence than to their powers of deduction. No such reticence was apparent, however, in Judge Stephen Reinhardt’s opinion for the Ninth Circuit declaring a constitutional right to assisted suicide. He explicitly linked the rationale for assisted suicide to that for abortion, arguing that the Supreme Court’s decisions in Roe and Casey effectively compelled him to do so. Although the High Court unanimously reversed the Ninth Circuit this past June, a close reading of the Justices’ opinions confirms that a majority will not soon abandon the precedents on which Judge Reinhardt relied. Thus, while the Chief Justice insisted that assisted suicide is a matter for the states to decide, five of his colleagues made clear that this resolution may be good for the time-being only. In a word, Judge Reinhardt’s opinion has been tamed, but hardly defeated.
If certain members of the judiciary seem prepared to lead us, gently or not, into that good night, how likely is it that the political order will ask them to cease and desist? Not very, says Wesley J. Smith, who argues convincingly in Forced Exit that the so-called “quality-of-life” ethic has already taken a toll on the nation’s moral sensibilities and that, unless we were careful, we will be swept headlong into what John Paul II has so aptly called “the culture of death.” Assisted suicide, Smith says, is only the opening wedge of an argument that will inexorably lead to involuntary euthanasia. Once it becomes licit for doctors to end their patients’ lives for compassionate reasons in the case of terminal illness, what will stop that same compassion from administering death to those who, although not terminally ill, are suffering from intractable pain? If there is in fact a constitutional right to die, how can it be denied to those who are comatose? And if deliverance by death is thought to be an appropriate beneficence for the senile elderly, why is it not equally appropriate for medically compromised children who face a lifetime of pain and debilitation? Indeed, why must one be a “patient” at all? Why shouldn’t all the arguments apply with equal force to those who are not ill, but have nevertheless been reduced by the vicissitudes of life to the point where they simply no longer wish to live?
To be sure, the answers to these questions may not always line up in the same direction, even under a regime of assisted suicide. But merely to ask them is to suggest how easily the justification for killing can be extended to an ever-widening category of eligible candidates-and how easily the line between the voluntary and the involuntary can be erased. One need not, however, rely on abstract argument alone. Forced Exit is filled with chilling episodes drawn from actual cases. If you are at all dubious about slippery slope arguments in this area, Smith’s catalogue of real-life examples will cure your doubts once and for all. In the rosy portraits of assisted suicide drawn by the likes of the Hemlock Society, cool-headed patients put their affairs in order, make their peace with Heaven, and drift away peacefully to the dulcet strains of their favorite music, surrounded by loved ones and kindly, compassionate medical assistants. In the real world, Smith demonstrates that patients requesting assisted death are more likely to be suffering from untreated depression, and are more likely to be cajoled into their decision by family members and medical personnel with decidedly mixed motives.
The book contains a fine chapter on the corruption of German medical ethics during the Weimar Republic. It was then that the medical and legal justifications for assisted suicide and euthanasia took root-a decade or more before the Nazis came on the scene. Significantly, the arguments we hear today are virtually brick-by-brick the same as those advocated by respectable German elites nearly eighty years ago. There was the argument from autonomy (the patient has a right to die); the argument from compassion (the patient is suffering); and the argument from utility (family and society would be relieved of burdens if the patient ceased to live). Each of these has a force of its own; together, they make killing morally plausible and socially acceptable. Implications that escaped many earnest intellectuals were understood immediately by Hitler when he instituted his infamous euthanasia program in the 1930s. This is not to imply that people who advocate assisted suicide are like the Nazis; it is to say that their premises have a life far beyond what they may intend. For a less odious example closer to our own time, Smith points to the Netherlands of today, where the courts have made a habit of looking the other way as doctors dispatch patients-with and without their consent.
For those who say this sort of thing can’t happen here, Smith points out that nihilism and its more respectable cousin, relativism, have already rooted themselves in American soil. When moral disarmament combines with the perverse incentives of contemporary health-care financing, many people may be seduced into thinking that assisted suicide makes not only moral but economic sense.
While Smith’s analysis is on target, his remedy (more government regulation and financing of health care) may exacerbate the very disease he wishes to cure: what makes him think that government bean-counters will want to pay to keep people alive? He would be on surer ground if he examined why Medicare and Medicaid, as now constituted, make health-care rationing inevitable. One might also wish that Smith had paid more attention to the Supreme Court’s abortion jurisprudence. It is through those cases, after all, that the radical individualism and nihilism he decries have entered the nation’s cultural and constitutional bloodstream. These points notwithstanding, Smith excels in his detailed and powerful exposition of how the world of assisted suicide is likely to work in fact.
For all the moral desiccation of recent times, there is no reason to believe that the American people, once fully and fairly informed of what is at stake, cannot rouse themselves to resist the siren song of assisted suicide. Forced Exit is a fine place for them to begin their education-the sooner the better.
Michael M. Uhlmann is Senior Fellow at the Ethics and Public Policy Center and Professor of Government in the Washington Program of Claremont McKenna College. His anthology on assisted suicide and euthanasia, Last Rights?, is just out from Eerdmans.