Our Sundy Visitor May 5, 1996

[Death by legal invention]

Ignoring the lessons of the Netherlands will prove lethal

Editor's note: Continuing our series examining the ruling of the 9th U.S. Circuit Court of Appeals on assisted suicide, Our Sunday Visitor invited the U.S. bishops' spokesperson on pro-life issues to look at euthanasia in the Netherlands, which has dramatically expanded doctor-assisted suicide in recent years.

By Richard Doerflinger

Remarkably, the two federal courts which recently ruled that laws forbidding assisted suicide are unconstitutional disagree on many points. For instance, while the 9th Circuit Court of Appeals holds that terminally ill patients have a fundamental "right" to hasten death, the 2nd U.S. Circuit Court of Appeals ruled there is no such "right." (Of course, the latter court nevertheless concluded that a law preventing doctors from giving lethal drugs to terminally ill patients is "not rationally related to any legitimate state interest.")

But these courts at opposite ends of the country fully agree on two points: One, states should allow physician-assisted suicide, adopting what the 9th Circuit calls "appropriate, reasonable and properly drawn safeguards" against abuse. And two, both courts refuse to hear how such "safeguards" have actually failed in the Netherlands, the only country in the world with recent experience in permitting euthanasia.

The 2nd Circuit court noted that "some physicians there [in the Netherlands] practice nonvoluntary euthanasia," but dismissed any notion that such "abuses" could happen here. With even more impatience, the 9th Circuit noted that "it is difficult to draw any conclusions" from the data from the Netherlands. And in any case, "it would be far from clear how to apply those lessons to the United States."

Both courts are grossly, dangerously wrong.

There is no serious doubt now that the cases of "abuse" in the Netherlands outnumber the cases that obey legal guidelines. (Admittedly, there is debate among the Dutch over whether to continue calling these cases "abuses," since the Dutch keep expanding their ethics to accommodate the new frontiers of euthanasia practice.)

Moreover, there is ample reason to believe that such abuses would be far more common -- not less so -- under American courts' proposals for legalizing assisted suicide.

What is the situation in the Netherlands that the U.S. courts are so unwilling to consider?

To begin, a bit of history: Since 1973, Dutch courts have formulated guidelines under which physicians will not be penalized for providing euthanasia or assisted suicide to gravely ill patients with intolerable suffering who have repeatedly requested death. Doctors who feel they have to provide euthanasia as a desperate "last resort" supposedly must consult with colleagues to make sure nothing else can be done to ease the patient's suffering.

In 1991, a government study commission known as the Remmelink Commission published its findings on how often these guidelines are followed in practice.

The Remmelink findings are startling. In a system where the voluntary "free choice" of the patient is seen as the key to permissible euthanasia, the commission nevertheless found 1,000 cases of euthanasia without any request from the patient.

In addition, there were many thousands of cases annually in which doctors gave their patients massive doses of painkilling drugs that hasten death. In 8,100 such cases, the doctors admit that causing death was their explicit purpose, not just an unintended side-effect. And most of these lethal overdoses were administered without a request from the patient.

Counting these cases, it turns out that more patients -- about 5,000 per year -- are killed by their doctors without their consent than with it. (The commission only found 2,700 cases of voluntary euthanasia annually.)

Projecting such trends to a country the size of the United States requires multiplying them by a factor of 15.

Slippery slope

Other guidelines formulated by the Dutch courts have fared no better. Euthanasia and assisted suicide are often provided, without written records or serious medical consultation, to patients who are not terminally ill or suffering intolerable pain. In the Remmelink study, doctors cited pain as the most important reason for euthanasia in only 10 out of 187 cases. The most frequently cited reason? "Loss of dignity."

Interviews with Dutch euthanasia practitioners confirm that they have developed their own expanding ideas of which conditions warrant assisted death -- and they are not afraid to act on those ideas, with or without the patient's consent.

Interviewing such practitioners in 1989, American physician Carlos Gomez was surprised at their willingness to recount cases of involuntary euthanasia: One had given a lethal overdose to an infant born with Down's syndrome. Another had given an injection of potassium chloride to an unconscious accident victim in the emergency room, so his family would not see him in such a poor condition.

American psychiatrist Herbert Hendin has written about a Dutch doctor who gave a lethal injection to a dying Catholic nun without her consent. She had never asked for euthanasia, but the doctor assumed that was because her religion wouldn't let her.

Recent court cases also illustrate how far down the slippery slope the Dutch have fallen. In 1993, Dutch courts let a physician go unpunished for giving euthanasia to a physically healthy woman who was depressed over family problems. The trial court ruled that the doctor was only trying to end her suffering, and "what the cause of her suffering was -- illness or otherwise -- is not important."

Last year, doctors in two separate cases were vindicated after giving lethal injections to newborn infants with disabilities.

Obviously, the killing of infants who cannot speak for themselves contradicts everything the Dutch have said their experiment in "pro-choice" euthanasia stands for. Yet Dr. Cor Spreeuwenberg, a Dutch physician who consented to a lethal injection for his own infant son, responded to such an objection in the Cambridge Quarterly of Healthcare Ethics thus: "There are many less important decisions we make in their behalf, why should they be denied perhaps the most caring choice of all?"

In the same journal, Heleen Dupuis, former president of the Dutch Society for Voluntary Euthanasia, said she did not think it "wise" to support infant euthanasia when "the discussion of euthanasia for adults was so new." Now the latter is so widely accepted that killing of infants can be openly advocated. Dupuis insisted this is not a "slippery slope," however: "I do not believe we are on a slope," she said, because "we are actively making decisions to act in the way we do."

It seems the most slippery slope of all is the ability to feel outrage or say no as a culture of death expands far beyond its original boundaries. It is not so much that the Dutch actively favor the murder of infants; rather, they seem unable to remember why they once opposed it.

Out of control

Euthanasia in the Netherlands is "completely out of control," in the words of Dr. Karel Gunning, a Dutch physician who heads the World Federation of Doctors Who Respect Human Life.

Speaking at an international conference on euthanasia in Amsterdam last fall, he warned his American visitors, "Once you accept killing as a solution for one problem, tomorrow you will find a hundred other problems that can be solved by killing."

Is the 9th Circuit Court right to suggest that the same slide to uncontrolled killing cannot happen here? In a way, yes. But not in the way it imagines.

Even staunch supporters of Dutch euthanasia have cautioned against repeating this experiment within the United States' fragmented health care system, because the prospects for abuse are far worse. One Dutch supporter, in a conversation with legal scholar John Keown that was reported in the Wall Street Journal in November 1991, warned that legalizing euthanasia here -- where families often agonize over the cost of caring for incurable patients -- would be an "open door to get rid of these patients." Another supporter agreed: "I wouldn't trust myself as a patient if your medical profession, with their commercial outlook, should have that power."

But the health care crisis is not the only reason to predict a swiftly expanding "right" to euthanasia in the United States. The 9th Circuit openly said that such a "right" can be exercised on behalf of incompetent patients by "surrogate decision makers," including guardians appointed by the state, whose decisions for death will be respected as though they were made by the patients themselves. It adds that candidates for assisted suicide include patients who are "terminal" only in the loosest sense -- people who would die soon without medical treatment, even if they could live a long time with treatment. And it finds no "principled distinction" between providing patients with lethal pills and simply having a physician administer a lethal injection.

By equating assisted suicide with the refusal of extraordinary medical treatment, which is often exercised by others on incompetent patients' behalf, the 2nd Circuit has implicitly endorsed a similar expansive trend. The machinery is in place to establish society's freewheeling "right" to rid itself of chronically ill or disabled people that it may consider unproductive or burdensome.

A few years ago, the Dutch began their experiment in euthanasia by saluting patients' freedom of choice. Now they readily accept helping healthy people kill themselves, and injecting poisons into newborn handicapped children. The U.S. courts, with the help of some innovations and distortions in legal analysis, are taking Americans even faster down the same slope.

Doerflinger is associate director for policy development at the National Conference of Catholic Bishops' Secretariat for Pro-Life Activities

HEADLINES FOR MAY 5

Outrageous assertions (editorial)

Evacuating hope in long-suffering Liberia

The Pope's favorite Madonna

Altared states

Living the Gospel in Vinton County, Ohio

The view from the ground in Lebanon