Who Lives, Who Dies, Who Decides?

Abortion, Assisted Dying, Capital Punishment, and Torture

Sheldon Ekland-Olson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351585156
• Edition: 3
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Who Lives, Who Dies, Who Decides? looks at several of the most contentious issues in many societies. The book asks, whose rights are protected? How do these rights and protections change over time, and who makes those decisions? This book explores the fundamentally sociological processes which underlie the quest for morality and justice in human societies. The author sheds light on the social movements and social processes at the root of these seemingly personal moral questions. The third edition contains a new chapter on torture entitled, "Taking Life and Inflicting Suffering."

1
A SINGLE QUESTION

The material covered in the following chapters travels over a varied landscape—eugenics, abortion, neonatal care, assisted suicide, lynching, capital punishment, and torture. Why have these topics been brought together in a single volume? The common theme is “assessed social worth.” In each case, the focus is upon two deeply important moral imperatives: life is sacred and should be protected. Suffering, once detected, should be alleviated. Comparing these otherwise distinct topics, we ask a single question: How do we go about justifying the violation of these deeply important, perhaps universal, moral imperatives, while holding tightly to their importance? The short answer is this: with empathy and logic, we draw boundaries and we resolve dilemmas. From time to time, science, technology, and crystallizing events disturb, clarify, and inform existing understandings of the implied sense of social worth. New resolutions of dilemmas and definitions of life’s protective boundaries are called for. In this manner, moral systems evolve. We will find that they do so along a jagged and often contentious path.

A Moral System Evolves

In the first part, A Moral System Evolves, we explore events leading to what came to be called the Final Solution and, from there, to a reenergized concern with human and civil rights. Our account begins with Charles Darwin’s recently released findings and proposed explanations of evolution being used to improve and protect life. Some lives, some contributions to life were more worthy of protection and support than others. Feebleminded and other unfit persons were likened to parasites and useless eaters. They were said to detract from and perhaps endanger the communities in which they lived. LIFE, writ large, could and should be protected by minimizing their presence. Preventing the creation of life among those deemed less worthy would not only protect LIFE but would also minimize suffering.

Well-educated, influential moral entrepreneurs advanced the eugenics cause through a loosely connected network of organizations. One was the Eugenics Record Office in Cold Spring Harbor, located some 40 miles outside New York City on Long Island. Leading the charge was a young former schoolteacher, Harry Laughlin. Laughlin spent the better part of his life carefully drafting a model statute designed to yield a uniform national policy. Using Laughlin’s template, laws were crafted and a contrived trial and appeal to the U.S. Supreme Court were advanced where Oliver Wendell Holmes, himself a proponent of minimizing the lives of those deemed less worthy, wrote the Supreme Court opinion in Buck v. Bell, famously stating,

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

From this case, much followed. In the end, the Government of Adolf Hitler, borrowing heavily from Laughlin’s now legitimized template, expanded Holmes’ rationale to limit, manipulate, and end the lives of persons deemed less worthy. When the soul-searing consequences of this exclusionary framework came to light, a countermovement to secure more inclusive human and civil rights was energized.

Actions taken by the Nazis were barbarian and extreme. They had progressed step by little step. Many saw similar steps being taken in the United States. Two-and-a-half decades after the Nuremberg Trials, four crystallizing events underscored these fears. It came to light that physicians and scientists were radiating cancer patients in Ohio and other places not so much to cure cancer as to learn what happened to the human body in the event of an atomic bomb attack. Within months, it was learned that other medical researchers were feeding feces to retarded children to learn more of the causes and cures of hepatitis. Still others, desiring to protect the scientific integrity of their research, were refusing treatment, known to be effective, to men suffering from syphilis. Finally, it was learned that physicians and scientists were experimenting with recently aborted, soon-to-die, but still-living fetuses to secure additional knowledge about fetal development. In each instance, lives deemed less worthy were used to benefit LIFE and alleviate future suffering.

These studies shocked the nation. Parallels to the Nuremberg Trial of twenty-three German doctors following World War II were too obvious to miss. The stage was set for legislation “to identify basic ethical principles.” Principles were proposed and adopted. A Bioethics Movement was born. New boundaries of protected life and tolerable suffering were developed, and new priorities were set for resolving dilemmas. In the process, a moral system evolved.

The Early Moments and Months of Life

Central to the Nuremberg Code and ideas flowing from it was the principle of individual autonomy. Absent compelling state interests, individuals had a right to choose what was done to their body. In the second part, The Early Moments and Months of Life, we wind our way through the debates, sometimes labeled wars, infusing the boundaries and dilemmas of choice, abortion, and neonatal care. Where are the boundaries of protected life to be drawn—prior to conception, at conception, at viability, inches from life? In the early months following birth, the protection of life and the alleviation of suffering sometimes conflict. Some infant lives, some moments early in life are deemed more worthy of protection and support than others. Deep disagreements are found. Who should decide?

Widely divergent answers have been proposed. These answers have been shaped by religious and political beliefs, as well as practices among physicians, sometimes hidden from public view. Political campaigns and social movements have been launched, up to and including the bombing of abortion clinics and the killing of abortion providers. These lethal actions have paradoxically been justified by a commitment to protect and support life. The cycle is complete when those killing abortion providers are themselves executed, again justified through a commitment to protect and support life.

A theme, running throughout the entire book, is that from time to time, crystallizing events have drawn attention, clarified thought, and galvanized action. In the early 1960s, an Arizona law prevented a young mother, who happened to be a local host of a children’s television program, from obtaining an abortion, even though she wanted another child, but had taken a drug associated with severe life-limiting, resource-draining birth defects. More broadly, and almost simultaneously, a rubella pandemic raised similar issues among a much large number of expectant mothers. For many, then-existing laws prohibiting abortion represented a tragic injustice. They increased the chances of defective births as well as the deaths of mothers seeking illegal abortions in unsanitary conditions. They could not command the respect and obedience of those governed. Then-existing laws prohibiting abortions should be changed.

A decade later, a Supreme Court decision shaped in large measure by these events and assessments came like a “bolt from the blue.” It declared that a fetus developing in the mother’s womb was not a fully protected person under the Constitution and that there were important rights to privacy protecting the mother’s choice to have an abortion. For many, this was unconscionable. A pro-life movement was energized. Among those seeking to overturn Roe was a former abortion provider, using newly available ultrasound images to show what was said to be the “silent scream” of a fetus being aborted. President Reagan distributed the film to Congress. It was shown in churches and discussed in the media. Other, more jarring, images were advanced. Protests expanded, at times becoming lethal. Pro-life advocates echoed the charges of their antagonists: existing law was a tragic injustice; it could not command the respect and obedience of those governed. It should be changed.

In 1991, what came to be known as the Summer of Mercy called attention to second-and third-term abortions performed by a physician in Wichita, Kansas, Dr. George Tiller. Emotional political campaigns continued, clinics were bombed, an attempt was made to take Dr. Tiller’s life, and other abortion providers were shot. A little over a decade later, federal legislation outlawed “partial-birth abortions,” similar to those that so concerned the Summer of Mercy protesters.

This law was a strange and strained piece of legislation. It reflected competing desires to protect the choices, life, and health of the mother and the life of the almost-born child. It exemplified in specific detail the need to establish the boundaries of protected life. It limited the taking of life in late-term pregnancy, not in principle but by the vaginal location of the fetus. Procedures adapted to meet the anatomical requirements of the new law. Late-term abortions continued. The physician targeted by Summer of Mercy protesters, now labeled by activists as “Tiller the Baby Killer,” was shot to death while worshipping at his church on Sunday, May 31, 2009. Among the assailant’s supporters were persons long associated with the more aggressive wing of the pro-life movement. For these pro-life advocates, Dr. Tiller’s murder was justified with reference to biblical scripture calling for the taking of life to protect life.

The debates over the boundaries and dilemmas of early life and death decisions have not been limited to life in the womb. For many years, there was no known way to prolong the lives of infants labeled “monstrosities at birth.” With advances in medical technology, this changed. Life could be prolonged, even in very difficult circumstances. The rhetoric defining the assessment of newly arrived infants changed. Monstrosities at birth became imperiled infants. Again, crystallizing events loomed large in the evolving rhetoric and moral understanding. In Indiana, a young infant, diagnosed with Down Syndrome, was allowed to die when his parents refused permission to perform a relatively simple operation. Many were appalled. Such infants, it was argued, deserved protection. Hastily crafted regulations were put in place but failed to account for many more difficult circumstances when the infant’s life was infused with far greater suffering, when the prognosis of a life worth living was dim, and when medical treatment seemed futile. Additional tragic stories came to light. Further clarification of the Baby Doe Regulations ensued.

Even with this clarification, however, uncertainty remained. Where are the protective boundaries of meaningful life to be drawn? Where are the boundaries of tolerable suffering? What should be done when the protection of life and the alleviation of suffering compete? Who should decide? The power of unavoidable moral dilemmas to infuse the uncertainties of life with tension is nowhere more evident than in the early moments and months of life. These same issues are found as life is about to end.

The Boundaries of Tolerable Suffering

In the third part, The Boundaries of Tolerable Suffering, we repeatedly see how attempts to alleviate suffering come into conflict with efforts to prolong and protect life. Life-prolonging medical technologies frequently not only fail to relieve suffering but in a very real sense become a source of suffering itself.

In the case of a young man severely burned in an explosion in the early 1970s, we hear his plea, “Please let me die.” Had his accident occurred only a few years earlier, he would have most certainly died. With new life-saving regimes in place, his pleas went unheeded, and his life was prolonged. Ten years later, he remained adamant in his claim that his autonomy should have been respected and his pleas heeded.

A year and a half after this tragic accident, pleas of a different sort came from the parents of a young woman. Their daughter had entered what had recently been labeled a persistent vegetative state. Medical technology was keeping her alive, but she had lost her functioning mind and was incapable of receiving or projecting information. This was not, her parents argued, a life worth living. Her parents wanted to let their daughter peacefully leave her meaningless existence. Their pleas met both opposition and support. Eventually, noting her parents’ loving concern, the recently established constitutional right to privacy in Roe and related decisions, and a long-established religious doctrine, a New Jersey court found in their favor. Amid protests, Karen Ann Quinlan’s respirator was removed. She lived for another 9 years. The resolution of her ordeal would have an even longer-lasting impact, becoming a cornerstone for the right-to-die movement.

Early legislative efforts to define the point where life becomes less worthy of support and protection had floundered amid charges and fears that such laws would reawaken the thoroughly repulsive euthanasia practices of Nazi Germany. The Quinlan case struck a nerve. Energized by this case, efforts to secure a right to die with dignity gained momentum. Public opinion shifted decidedly in favor of allowing doctors to end a patient’s life by some painless means if the patient and family requested it. “Living wills” became widely used and discussed. In 1976, California enacted the first piece of legislation to recognize that modern medical technology was prolonging life beyond natural limits, and that adults should have a fundamental right to control their medical care, including the decision to withhold or withdraw life-sustaining procedures. Similar legislation in other states followed.

This shift in the moral and legal landscape was further strengthened when a second case of a young woman in a persistent vegetative state came to the public’s attention. This case eventually found its way to the U.S. Supreme Court. Here, the Court underscored a long-established principle. There was a clear and distinct right to refuse medical treatment. Nancy Cruzan was in a persistent vegetative state, unable to express her wishes, but, if clear and convincing evidence could be found regarding what her wishes would be, the request to terminate medical treatment should be honored. Such evidence was found. Again, amid protests, the tube providing nutrition to Nancy was removed. Eleven days later, she died. In reply to the right-to-life protestors gathered outside the hospital, Nancy’s father wrote in his tribute to his daughter:

Today, as the protestor’s sign says, we gave Nancy the gift of death. An unconditional gift of love that sets her free from this twisted body that no longer serves her. A gift I know she will treasure above all others, the gift of freedom. So run free Nan, we will catch up later.

A decade and a half had passed between the cases of Karen Ann Quinlan and Nancy Cruzan. During this defining period in the right-to-die movement, numerous cases were taken to court and widely discussed. As with the abortion debates, religious beliefs and practices separated protagonists on one side or another. The most important pattern, as reflected in public opinion polls, was the frequency with which respondents prayed. If you believed in an active, concerned god, a god within reach, a god willing to work as a partner, to intervene in your life, you were more likely to pray frequently. A caring, accessible god could be trusted to do what was best in your life. God should control the moment of death. Opposition to, or support for, assisted dying was patterned accordingly.

Whatever your religious beliefs and practices, health care was limited and expensive. Who should receive priority? Discussions of how to set limits emerged and heated up when the then governor of Colorado spoke to some elderly constituents gathered in Denver in March 1984. “We’ve got a duty to die,” Governor Lamm stated, “and get out of the way with all of our machines and artificial hearts and everything else like that and let the other society, our kids, build a reasonable life.” He would later explain the context in which these words were spoken, but, in stating what he did, he prodded a more intense debate. Lamm’s speech was followed closely by a lengthy treatment of the topic in Daniel Callahan’s Setting Limits: Medical Goals in an Aging Society.

“Is it possible,” Callahan wrote, “that medicine’s triumphant reconstruction of old age has also unwittingly created a demographic, economic and medical avalanche, one that could ultimately (and perhaps already) do great harm—a demographic avalanche by harmfully increasing the number and proportion of the elderly.” This distorted the ratio of old to young, Callahan continued, precipitating “an economic avalanche by radically increasing the burden of social and familial dependency; and a medical avalanche by lengthening life beyond a capacity to preserve its quality.” Like Governor Lamm, Daniel Callahan was raising the idea that at some point we might have a duty to die. This sense that some lives were more worthy of support and protection than others raised long-noted concerns.

These concerns were not just for the elderly; they were also for the disabled. Here, too, the boundaries of tolerable suffering and lives worth living and protecting often collided. Who should decide? If a decision was left to the individual most directly involved, should assistance be provided when needed? Was there a right to this assistance? Around these questions, the debate progressed. Poignant stories appeared, and how-to books were written. A Michigan physician devised a machine patients could use to end their lives, as legislation, at first unsuccessful, was proposed to ensure access to death with dignity. Finally, in November 1994, the voters in Oregon approved Measure 16, the Oregon Death-With-Dignity Law. This law was countermanded by officials in Washington, D.C., court cases were filed, and sequential opinions contradicted one another.

In 1997, in a decision characterized by its unanimous ambivalence, the U.S. Supreme Court decided two cases, one from Washington State and another from New York. There was no right to assisted suicide, the Court found, but there was also no reason to prohibit assistance. The decision should be left to the voters. A decade later, in November 2008, the voters of Washington State went to the polls and decidedly supported the nation’s second Death with Dignity law. As of this writing, Vermont, and California have passed similar laws with Montana and New Mexico on the cusp. The debate continues.

Taking Life and Inflicting Suffering

In the final part, Taking Life and Inflicting Suffering, we walk through difficult and often deeply disturbing events characterizing the intentional infliction of suffering and death—lynching, capital punishment, and torture. The evidence is clear—there is a close connection between capital punishment and ...