Posted on 04/29/2005 11:10:19 AM PDT by nickcarraway
Michael Schiavo, the husband of the now-deceased Terri Schiavo, got some help from Catholics in his quest to convince the Florida courts to permit the course of events that eventually led to his wife's death by starvation. In the case Jeb Bush v. Michael Schiavo (decided in November), Michael Schiavo received the help of a local Catholic, James Walter, a bioethics professor at Loyola Marymount University in Los Angeles. Walter was one of the signers of an amicus curiae brief, submitted in July of last year, that argued that Michael Schiavo should be allowed to deprive his wife — in a persistent vegetative state for 15 years — of food and hydration. Terri Schiavo died March 29 of starvation.
Professor Walter's participation in the Terri Schiavo story is a small one, but for Catholics in Southern California it is of some importance in demonstrating the quality of bioethics education at the Southland's premier Catholic university, for Walter is the director of the Bioethics Insititute at Loyola Marymount. The amicus curiae brief presumably reflects Walter's thought, since he signed it. But more revealing, perhaps, is an article he co-wrote in 2004 for the the National Catholic Reporter assessing Pope John Paul II's 2004 address in which the pontiff said that persons in a persistent vegetative should not be deprived of nutrition and hydration. In this article, I will consider the amicus curiae brief and Walter's Reporter article in turn.
The amicus curiae brief says that the undersigned bioethicists are interested in the case determining the Florida law, passed by the state legislature and signed by Governor Jeb Bush, that mandated the reinsertment of Terri Schiavo's feeding tube because the Florida court's decision will affect "health care and bioethical practices and teachings in hospitals and schools throughout the United States." In other words, the brief enshrines what is to the undersigned the desired moral standards or "values" to be applied in determining what ought to be done in end-of-life decisions.
These "values" are those of the 1987 Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and Care of the Dying. The Guidelines lay out four "central values": "beneficence," "the integrity of health care professionals," "justice," and "personal autonomy." The last, for those who signed the amicus curiae brief, is the governing "value;" not the objective truth of the nature and dignity of the person. This "value" of "personal autonomy," according to the guidelines, "establishes the right of the patient to determine the nature of his or her own medical care" — including, according to the amicus curiae, hydration and nutrition. Indeed, for the signers of the brief, "the central value of personal autonomy is where bioethics intersects with the law. No legal right is more important in American society than the right of personal autonomy."
The central problem with the Florida law, according to the brief, is that it substitutes the governor's judgment in a particular case — that of Terry Schiavo — over that of the courts, to which Florida law gives the right of deciding the personal wishes of the patient in the event of a dispute over whether he or she would choose to continue a medical procedure; in this case, hydration and nutrition. And the court agreed with Michael Schiavo that Terri would have chosen the suspension of nourishment. In effect, the brief declares that the only law that governs, or should govern, medical ethics is the positive law.
But since Governor Bush claimed that Terri Schiavo, raised a Catholic, might heed a recent statement of the pope that nutrition and hydration were not mere medical procedures but ordinary care and thus obligatory, the brief addresses Catholic teaching. Though the pope "noted in his speech that patients in a persistent vegetative state ... have 'the right to basic health care,'" says the brief, "the duty towards such patients must be appraised within the broader context of the medical care due to all people." Further, "Catholic hospitals in the United States have followed policies allowing the withdrawal of feeding tubes in accordance" with certain documents — namely Pope John Paul II's 1995 encyclical, Evangelium Vitae, and the Holy See's 1980 Declaration on Euthanasia. Far from changing any policy, says the brief, the pope's recent statement has not caused the Catholic Health Association of America "to change its policies with regard to [Persistent Vegetative State] patients. To the contrary, the CHA has announced that, even after the Pope's statement, those policies will 'remain in effect.'"
The brief makes it sound like the pope's recent statement on the moral necessity of supplying hydration and nutrition to patients in a persistent vegetative state is a departure from Evangelium Vitae and the Declaration on Euthanasia. The statement in question is found in Pope John Paul II's March 20, 2004 address, "To the Participants in the International Congress on 'Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas.'" In this address, the pope affirms that "a man, even if seriously ill or disabled in the exercise of his highest functions, is and always will be a man, and he will never become a 'vegetable' or an 'animal.'" [Emphasis in original.] This being the case, "medical doctors and health-care personnel, society and the Church have moral duties toward these persons from which they cannot exempt themselves without lessening the demands both of professional ethics and human and Christian solidarity."
In particular, the pope said, "the sick person in a vegetative state, awaiting recovery or a natural end, still has the right to basic health care (nutrition, hydration, cleanliness, warmth, etc.), and to the prevention of complications related to his confinement to bed." The pope went further "to underline how the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory, insofar as and until it is seen to have attained its proper finality, which in the present case consists in providing nourishment to the patient and alleviation of his suffering." [Emphases in original.]
So, for John Paul, since hydration and nourishment are not medical procedures designed to cure an ailment, but are rather ordinary care owed to the human person, they are "ordinary and proportionate" if they achieve their purpose — namely, hydration and nourishment. Presumably, if the patient were unable to digest, these means would cease to be ordinary and proportionate, and so could be removed. Further, as non-medical procedures, they may not be removed because they do not cure the ailment from which the patient suffers. So, the pope says, "the evaluation of probabilities, founded on waning hopes for recovery when the vegetative state is prolonged beyond a year, cannot ethically justify the cessation or interruption of minimal care for the patient, including nutrition and hydration. Death by starvation or dehydration is, in fact, the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission." [Emphasis in original.]
Are these statements a departure from previous Church teaching, as the amicus curiae brief suggests? In the 1980 Declaration on Euthanasia, the Congregation for the Doctrine of the Faith does not directly address the question of the morality of removing hydration and nutrition from a person in a persistent vegetative state. It does say that one is not bound to use extraordinary or "disproportionate" treatments; but Pope John Paul in his address distinguished between treatment and care, saying the latter may never be removed while it achieves its purpose.
The Declaration's definition of euthanasia, however, suggests the pope's further elaboration in his 2004 address. The Declaration states, "by euthanasia is understood an action or an omission which of itself or by intention causes death, in order that all suffering may in this way be eliminated." A lethal injection would be an example of an "action ... which of itself or by intention causes death." An omission, it seems, would be the removal of a means by which the life of a person is maintained. One can kill a man by direct measures to end his life — for instance, stabbing him or shooting him — or by removing the necessary means upon which life depends — by starving him or depriving him of water. If directed at a healthy person, both acts of commission and omission would be considered murder. Is it a far stretch for the pope to say that even acts of omission — removing hydration and nutrition — would be euthanasia (murder for kindness' sake) when directed at persons in a persistent vegetative state?
In an article co-written with Thomas Shannon and published in the April 16, 2004 National Catholic Reporter, Loyola Marymount's Professor James Walter says the pope's "analysis" of artificial nutrition and hydration in his 2004 address "appear[s] to represent a major reversal of the moral tradition of the Catholic church in assessing whether a particular medical or other intervention is morally obligatory, particularly in the determination of whether this intervention is ordinary or extraordinary treatment." To argue this point, Walter and Shannon deny a major distinction made by the pope: that hydration and nutrition for a patient in the persistent vegetative state is "a natural means of preserving life, not a medical act."
Walter and Shannon offer curious reasons for their denial of the pope's premise. The first is that John Paul uses the terms "ordinary and proportionate" in speaking of these means, "which seems to imply," say Walter and Shannon, "that this kind of intervention is indeed a type of treatment, though an ordinary and morally required one." But do the terms "ordinary and proportionate" only apply to medical interventions? Can not food and drink, for a healthy person, be considered ordinary means for maintaining life? And are they not proportionate — that is, properly suited — to their purpose? If they are ordinary and proportionate for a healthy person, why are they not for someone in a persistent vegetative state?
But, Walter and Shannon add, artificially administered nutrition and hydration may be medical acts or treatments because they may lead to complications that require medical treatments. "Such interventions," they say, "can in some instances harm the person because of the possibility of known harmful side effects, such as infections at the site of the insertion of the tube, nausea, vomiting and the possibility of the vomit choking the patient, abdominal swelling, cramping and perhaps diarrhea.... There is a well-established medical literature on the harms and burdens associated with tube feeding. It might be helpful to consult such literature before claiming that such interventions are not a medical treatment."
But do not normal, oral feeding and drinking, sometimes lead to complications that require medical intervention? One can get a bone lodged in his throat, or swallow something that causes a serious allergic reaction or diarrhea, or other harmful effects and burdens. To say eating and drinking may lead or do lead to conditions that require medical aid is not render eating and drinking medical treatment. Or are eating and drinking qualitatively different for persons in a persistent vegetative state than for everyone else?
For Walter and Shannon, it seems, they are, and that because, for a person in a persistent vegetative state, they are administered through a feeding tube. However, they do not argue that a feeding tube is extraordinary and therefore non-obligatory because it replaces the natural activity of swallowing, but because it halts what could be a natural process of dying. "When people begin dying, they frequently stop eating and drinking," write Walter and Shannon. "This is a part of the dying process and interfering with it may in fact interfere with this process and actually harm the patient." But the pope does not argue that one is to use a treatment or even care to halt a natural process of dying, but that one may not, by commission or omission, hasten or bring on death simply because a person is in a persistent vegetative state. The simple fact that, in Walter and Shannon's words, "a person in a persistent vegetative state, assuming a correct diagnosis ... is incapable of orally eating and drinking by his or her self" is not a sufficient cause to allow him or her to starve, according to the pope. Nor does the fact that "the patient will not return to any level of sapient or sentient existence" indicate that the patient is in the process of dying.
The burden of Walter and Shannon's argument rests on the assertion that artificial hydration and nutrition are "medical treatment," though they admit that they do not cure but only "maintain the physiological process" and "prevent death." Thus the necessity, at the onset of Walter and Shannon' s article, to deny the pope's assertion that giving hydration and nutrition to a person in a persistent vegetative state is not a "medical act." If hydration and nutrition are really only normal care, then Walter and Shannon would have to argue that, in some cases, human beings can be denied such care. In other words, they would have to argue that persons in a persistent vegetative state do not deserve the respect paid to conscious persons They would have to argue that people like Terry Schiavo are really only "vegetables," and not human.
A major point made by Walter and Shannon is that the pope misdiagnoses the moral character of the "intervention" in question. "The primary determinant," they say, "of whether the intervention is morally ordinary or extraordinary is not how the intervention — whether a medical therapy or some other kind of intervention — is classified. Historically, the determinant has been the effect on the patient. Thus the fact that some intervention is considered a 'natural means' ... as the pope suggests, does not determine the moral or obligatory status of the intervention." But the pope does consider the effect on the patient; he simply denies that, in this case, it is a medical effect. The "administration of food and water," says John Paul, is "morally obligatory, insofar as and until it is seen to have attained its proper finality, which in the present case consists in providing nourishment to the patient and alleviation of his suffering." For the pope, there are cases where food and water can be removed — cases where they fail to achieve their proper effect, i.e., providing nourishment and alleviation of suffering. They can not be removed because one judges a life is not worth living.
But in speaking of the "effect" of a treatment, Walter and Shannon also refer to burdens it can place on the family of a patient. As they state, the Holy See's Declaration on Euthanasia allows that "one may refuse an intervention from a desire 'not to impose excessive expense on the family or the community.'" But, here, the Declaration is referring to medical treatments or remedies, not normal care. The Declaration goes on to say, "when inevitable death is imminent in spite of the means used, it is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted." [Emphasis added.]
Too, in his 2004 address, Pope John Paul II emphasizes that families should not be left to bear the burden of care alone. "It is necessary," the pope says, "above all, to support those families who have had one of their loved ones struck down by this terrible clinical condition. They cannot be left alone with their heavy human, psychological and financial burden. Although the care for these patients is not, in general, particularly costly, society must allot sufficient resources for the care of this sort of frailty, by way of bringing about appropriate, concrete initiatives...."
The pope does not address the question of what should be done when even society can not "allot sufficient resources" for care of people in a persistent vegetative state, though, presumably, he does not enjoin the impossible. But in speaking to those places (such as the United States) where such care can be provided, the pope does insist on the sanctity of all life, on the right of all men, irregardless of wealth, race, religion, or physical ability to have their life respected. "A man," says the pope, "even if seriously ill or disabled in the exercise of his highest functions, is and always will be a man, and he will never become a 'vegetable' or an 'animal'. Even our brothers and sisters who find themselves in the clinical condition of a 'vegetative state' retain their human dignity in all its fullness. The loving gaze of God the Father continues to fall upon them, acknowledging them as His sons and daughters, especially in need of help." [Emphasis in original.]
Drop the hammer Benedict!
Euthanasia's terms of reference, therefore, are to be found in the intention of the will and in the methods used. It is necessary to state firmly once more that nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. nor can any authority legitimately recommend or permit such an action. For it is a question of the violation of the divine law, an offense against the dignity of the human person, a crime against life, and an attack on humanity. It may happen that, by reason of prolonged and barely tolerable pain, for deeply personal or other reasons, people may be led to believe that they can legitimately ask for death or obtain it for others. Although in these cases the guilt of the individual may be reduced or completely absent, nevertheless the error of judgment into which the conscience falls, perhaps in good faith, does not change the nature of this act of killing, which will always be in itself something to be rejected.
To concur with the intention of another person to commit suicide and to help in carrying it out through so-called "assisted suicide" means to cooperate in, and at times to be the actual perpetrator of, an injustice which can never be excused, even if it is requested. In a remarkably relevant passage Saint Augustine writes that "it is never licit to kill another: even if he should wish it, indeed if he request it because, hanging between life and death, he begs for help in freeing the soul struggling against the bonds of the body and longing to be released; nor is it licit even when a sick person is no longer able to live".Even when not motivated by a selfish refusal to be burdened with the life of someone who is suffering, euthanasia must be called a false mercy, and indeed a disturbing "perversion" of mercy. True "compassion" leads to sharing another's pain; it does not kill the person whose suffering we cannot bear. Moreover, the act of euthanasia appears all the more perverse if it is carried out by those, like relatives, who are supposed to treat a family member with patience and love, or by those, such as doctors, who by virtue of their specific profession are supposed to care for the sick person even in the most painful terminal stages.
The choice of euthanasia becomes more serious when it takes the form of a murder committed by others on a person who has in no way requested it and who has never consented to it. The height of arbitrariness and injustice is reached when certain people, such as physicians or legislators, arrogate to themselves the power to decide who ought to live and who ought to die. Once again we find ourselves before the temptation of Eden: to become like God who "knows good and evil" (cf. Gen 3:5). God alone has the power over life and death: "It is I who bring both death and life" (Dt 32:39; cf. 2 Kg 5:7; 1 Sam 2:6). But he only exercises this power in accordance with a plan of wisdom and love. When man usurps this power, being enslaved by a foolish and selfish way of thinking, he inevitably uses it for injustice and death. Thus the life of the person who is weak is put into the hands of the one who is strong; in society the sense of justice is lost, and mutual trust, the basis of every authentic interpersonal relationship, is undermined at its root.
The condemnation of euthanasia expressed by the Encyclical Evangelium vitae since it is a "grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a human person" (n. 65), reflects the impact of universal ethical reasoning (it is founded on natural law) and the elementary premise of faith in God the Creator and protector of every human person.6. The approach to the gravely ill and the dying must therefore be inspired by the respect for the life and the dignity of the person. It should pursue the aim of making proportionate treatment available but without engaging in any form of "overzealous treatment" (cf. CCC, n. 2278). One should accept the patient's wishes when it is a matter of extraordinary or risky therapy which he is not morally obliged to accept. One must always provide ordinary care (including artificial nutrition and hydration), palliative treatment, especially the proper therapy for pain, in a dialogue with the patient which keeps him informed.
At the approach of death, which appears inevitable, "it is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life" (cf. Declaration on Euthanasia, part IV) because there is a major ethical difference between "procuring death" and "permitting death": the former attitude rejects and denies life, while the latter accepts its natural conclusion.
4. Medical doctors and health-care personnel, society and the Church have moral duties toward these persons from which they cannot exempt themselves without lessening the demands both of professional ethics and human and Christian solidarity.The sick person in a vegetative state, awaiting recovery or a natural end, still has the right to basic health care (nutrition, hydration, cleanliness, warmth, etc.), and to the prevention of complications related to his confinement to bed. He also has the right to appropriate rehabilitative care and to be monitored for clinical signs of eventual recovery.
I should like particularly to underline how the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory, insofar as and until it is seen to have attained its proper finality, which in the present case consists in providing nourishment to the patient and alleviation of his suffering.
Bioethics professor = Ted Bundy with a graduate degree.
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