Positive Pro-Life Ruling Flawed by Problematic Reasoning
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At the very end of 2022, the Massachusetts Supreme Court issued an important ruling in Kligler v. Attorney General, turning down arguments by a patient and a physician for a constitutional right to physician-assisted suicide. This is an important and somewhat surprising ruling because it came from a state that is relatively liberal in its political ideology yet still marginally opposed to legalizing physician-assisted suicide. (Voters in Massachusetts only barely rejected its legality on a 2012 ballot.) Despite the pro-life consequences of the ruling, there are at least two insights worth noting: (1) court protection of vulnerable persons and society from physician-assisted suicide is still quite tenuous, and (2) courts and legislative stakeholders will, in the future, rely on moral reasoning (whether correctly or imprudently), even when it is disguised as legal or “rights” arguments. As a result, Church representatives—both the Magisterium and lay Catholics—have a significant opportunity to teach Christian wisdom about physician-assisted suicide to the broader society.
The case involved a civil action by Roger Kligler, a patient with cancer who is also a physician, whose stated desire was to have fatal medications prescribed to him so that he might be assured and prepared for a future decline in health. Kligler was joined in his suit by Alan Steinbach, a doctor who wished to prescribe deadly medication to him. The doctor treating Kligler diagnosed him with incurable cancer but indicated that “it would not be surprising if Kligler were alive ten years from now” (Kligler, slip op. at 6 [Gaziano, J.]). The lawsuit, nevertheless, focused on the constitutional rights of a patient diagnosed with only six months to live.
Kligler argued in the complaint that Massachusetts criminal laws prohibiting physician-assisted suicide violated the rights of terminally ill patients to equal protection under the law because some categories of terminally ill patients were legally allowed to hasten death through other means, such as removal of feeding tubes. The court reasoned instead that, while choosing to forgo otherwise-imposed medical treatment is an exercise of constitutionally implied privacy rights, such rights do not apply to intentionally and proximately causing death through physician-assisted suicide.
Further, the plaintiffs argued that physician-assisted suicide does not meet the requirements for manslaughter, because the participating doctor’s actions are not wanton or reckless, nor are they the proximate cause of the patient’s death, because the patient (not the prescribing doctor) makes a free choice to accept and ingest the fatal medication. As the court indicated in its ruling, such reasoning has not been accepted anywhere as a defense against involuntary manslaughter. Importantly, the court asserted, “That a doctor’s intent in providing the lethal medication was to alleviate a patient’s suffering is irrelevant, as conduct may be wanton or reckless even where the actor ‘meant no harm to the victim’” (Kligler, slip op. at 21 [Gaziano, J.]).
The court’s ruling did address the proximate-cause issue in some detail: “Proximate cause is a cause which in the natural and continuous sequence produces death and without which the death would not have occurred” (Kligler, slip op. at 19 [Gaziano, J.]). Any events that might occur in the causal chain between the proximate cause and death can “extinguish” the proximate nature of the cause only if the death becomes unforeseeable due to those events. Steinbach argued that the death in physician-assisted suicide could not be foreseeable, because it depended on the patient’s unpredictable decision to ingest the medication, but the court’s majority opinion insisted that the death through physician-assisted suicide of a patient who is motivated to commit suicide is indeed foreseeable.
A matter of great importance to the court’s reasoning was its wholesale embrace of the same kind of legal reasoning that resulted in such national disasters as the US Supreme Court’s Obergefell v. Hodges decision that legalized same-sex marriage across the country. It seems that the fundamental choice of the Massachusetts Supreme Court, according to the majority opinion and not contested by the other justices, was for the court to abandon any strict responsibility to follow a narrow interpretation of legislation and constitutional articles: “As a matter of Federal law, a fundamental right may be determined either through a narrow view of this nation’s history and traditions or through a more comprehensive approach, which uses ‘reasoned judgment’ to determine whether a right is fundamental, even if it has not been recognized explicitly in the past, guided by history and precedent” (Kligler, slip op. at 33 [Gaziano, J.]).
This rather liberal interpretation of the court’s own power of creative reasoning and selective attention to historical precedent is delivered on top of the determination that it may rule on a suit for declaratory relief whenever it deems the related matters to be significant for the interests of the state and society: “Accordingly, we ‘exercise our discretion very broadly in this case in favor of declaratory relief for the reason that a decision of all these matters seems important to enable parties to deal intelligently with the situation before them . . . and to reduce as much as possible the area of future litigation’” (Kligler, slip op. at 28 [Gaziano, J.]).
It is encouraging that, for now, the majority of the Massachusetts Supreme Court recognizes limits on its action in regard to creating new rights to physician-assisted suicide. The majority opinion concludes with the statement that “these questions are best left to the democratic process, where their resolution can be informed by robust public debate and thoughtful research by experts in the field” (Kligler, slip op. at 64 [Gaziano, J.]). Nevertheless, it seems at least possible that the Massachusetts court could, in the future, choose to rule on physician-assisted suicide cases that have very restricted factual circumstances in order to coerce the citizens of the state to accept sweeping new “rights” for terminally ill patients and doctors who wish to participate in physician-assisted suicide.
To see how this might happen, consider the two concurring opinions in Kligler. Justice Elspeth Cypher pointed out the court’s prior ruling that the State’s legitimate interest in whether a person accepts medical treatment is not undermined when the state allows a terminally ill person with a short life expectancy to forgo treatment. The justice sees this as a shift away from paternalistic State oversight to the principle that “the basic question is what decision will comport with the will of the person involved.” Since the court also recognized that hastening death can be a legitimate interest of a person, Cypher reasoned that there is “no meaningful distinction between a mentally competent adult in a semicomatose—but otherwise painless—state and a terminally ill patient, who faces certain, imminent, and excruciating death, effectuating his or her own death.” Further, when comparing physician-assisted suicide to the legal removal of life-sustaining treatment, “to claim that the affirmative withdrawal of the [feeding] tube was not the proximate cause of the patient’s death ignores logic” (Kligler, slip op. at 3, 5–6, 7 [Cypher, J., concurring]).
Cypher also pointed out that the court has allowed palliative sedation, which is the practice of doctor-ordered sedation to a level at which the terminally ill patient is rendered unconscious and left without nutrition or hydration until they die. Palliative sedation even requires more direct action by the physician to hasten death than does physician-assisted suicide, which is self-administered by the patient through prescribed drugs.
Justice Dalila Argaez Wendlandt wrote that “when a terminally ill, mentally competent patient approaches the final stage of the dying process, the Commonwealth’s interest in criminalizing physician-assisted suicide reduces to a nullity, such that even under rational basis review, the State Constitution protects the nonfundamental right to physician-assisted suicide from application of the State’s criminal laws” (Kligler, slip op. at 1–2 [Wendlandt, J., concurring in part and dissenting in part]).
In both of these minority opinions, although the justices agree that there is no constitutionally mandated, fundamental right to physician-assisted suicide, it is clear that they are in favor of future rulings that establish a right, or claim to protect a non-fundamental right, to physician-assisted suicide for terminally ill patients in Massachusetts. Their arguments could be used anywhere an activist court interprets its own power of “comprehensive” intuition of expanded legal rights. Moreover, prior judgments that some terminally ill human beings have a positive interest in hastening their own death—rather than, as the Catholic Church teaches, in sometimes rejecting the technical domination and indignity of excessively imposed medical treatments—underlie the potentially disastrous extension of pro-death policies in the courts.
Chris Schandevel, senior counsel for the Alliance Defending Freedom, had an opportunity to speak to the court. We need voices like Schandevel’s to remind the courts that “every human life—regardless of disability or illness—has immeasurable value, and the government must do all it can to protect life, especially for the most vulnerable who cannot advocate for themselves. Every life is worth living. … Patients should be able to trust their doctors to support and care for them. Offering terminally ill or disabled patients a ‘quick exit’ through death-inducing drugs destroys that trust.” The Massachusetts Supreme Court failed to address the interest of the State in protecting such trust in the Kligler case. Both the court and many legal and public commentators have forgotten that protection of emotionally vulnerable patients from predatory “healers” (and from well-meaning activists who lack a holistic understanding of the ultimate good for suffering patients) is the primary concern of the State—or should be.
Accordingly, the Church can most effectively influence the future of physician-assisted suicide in our society with a clear and persistent message of the inviolable sanctity of human life. The tools for such evangelization are many, and they are exceptionally good. From the Congregation for the Doctrine of the Faith’s Samaritanus bonus to the US Conference of Catholic Bishops’ The Witness of the Good Samaritan: Palliative Care and Hospice and the USCCB’s website, these resources are appropriately loving, caring, and positive, and they are expressed with easily communicable wisdom for both Christian and secular cultures.
In many ways, advocates of physician-assisted suicide believe they act out of compassion for the patients who they see as victims of intolerable pain. Catholics can speak to such persons by sharing, not dismissing, their compassion and by redirecting it toward those patients who experience tremendous confusion, psychological and emotional pain, and despair that can be alleviated with loving, life-affirming action from concerned family, neighbors, and professionals. The social definition of victimhood can be enlarged beyond the experience of pain, just as the definition of personal interests can be enlarged to include the spiritual welfare and demand to be loved that reside in each one of us.
Finally, the very narrow or shallow interpretations of human welfare that are expressed in legal and political arguments can in fact be opportunities to point out the deficiencies in our secular culture. Our focus in evangelization on loving the true victims of physician-assisted suicide can and will bring others to a new experience of Christ, enabling a renewal of our society’s relationship with our Lord.
Christopher M. Reilly lives in the greater Washington, DC, region and holds graduate degrees in public affairs, theology, and philosophy.