Because of two court cases in recent months, there is good reason to believe that this country has drawn quite a bit closer to the legalization of euthanasia. This is even more interesting because Roman Catholic priests have played a significant role in both of these cases, and their activities are symbols of the Church’s involvement in contemporary euthanasia controversies. Final action in both of these cases is still pending, but concern is especially justified because if the second of these cases turns out wrong, then principles could be established that would put the bedridden, senile, retarded and mentally ill at risk. The legalization of passive euthanasia in these cases could open the door to legal endorsement of practices that we cannot now imagine.
A few months ago, a California Court of Appeals held that the removal of intravenously administered fluids and nutrition from a man who was diagnosed by a board-certified neurologist to be unconscious, but not terminally ill, irreversibly unconscious or brain dead was done in accord with what the court considered to be current accepted standards of medical practice, and the physicians who withheld care from the man could not be prosecuted.
Clarence Herbert, a 55-year-old race track guard, entered Kaiser-Permanente Hospital in Los Angeles for routine surgery; he lapsed into unconsciousness in the recovery room after the operation. Medical records indicated that less than three days after Herbert fell into unconsciousness his two physicians obtained consent from his family to remove the respirator. He continued to breathe normally when the respirator was withdrawn. Familial consent was obtained later to remove what the physicians described to be medical treatments, and six days after he lapsed into unconsciousness, an intravenous feeding tube was disconnected. Six days after its removal, Herbert succumbed to dehydration. Remarkably, the medical records indicated that the neurologist summoned in the hospital to the case originally diagnosed Herbert’s prospects for recovery to full neurological functioning to be only dim, but not hopeless. Only two days before he died did the neurologist change his diagnosis from a dim prospect of recovery to a hopeless one because the patient had been without fluids and nutrition for so long. But had Herbert been given fluids and nutrition, he would have been brain damaged, and for that reason, he had to die.
When Clarence Herbert was dehydrated to death, he had an 8 to 12% chance of recovery to full neurological functioning. One particularly important study of patients similar to Herbert found that at the end of one month after insult to the brain, 57% had died, 11% were irreversibly unconscious, 20% were severely disabled, 4% were moderately disabled and 8% had recovered fully. In short, if Herbert had survived another two and a half weeks, his chances for being either irreversibly unconscious or normal would have been about equal. And on the day on which the respirator was abruptly removed, he was in a category of patients that had a 35% chance of good recovery.
The principle endorsed by the appeals court in this case is remarkable, for Herbert was denied food and water when sound professional judgment declared him to be unconscious, but not brain dead or terminally ill. The action of the doctors went far beyond what the guidelines for treatment withdrawal issued by the Judicial Council of the American Medical Association would allow, for they only allow fluids and nutrition to be removed from patients who have been diagnosed as brain dead or irreversibly unconscious. What the physicians did in this case is clearly opposed to Church teachings, for the Declaration on Euthanasia issued by the Sacred Congregation for the Doctrine of the Faith holds that normal care, which include food and water, are to be given even to terminally ill patients. And in spite of what the appeals court declared, it has never been an accepted standard of medical practice to dehydrate to death one who is merely unconscious.
The appeals court decision in the Herbert case is quite important for two reasons. First, it could very well establish, at least in California, a standard of practice that would allow physicians to remove nutrition and fluids from patients who are unconscious. Despite the guidelines approved by the Judicial Council, the American Medical Association did not object to what the physicians did, but only suggested that they acted precipitously. Second, before this opinion, prosecutors could intervene in cases where food and water were withdrawn from patients under the assumption that an act of this nature could only be done with a malicious intent. But the holding of the court that the removal of fluids and nutrition from a patient who was only unconscious was lawful, effectively prohibits prosecutors from intervening under the assumption that this act was done maliciously.
An extremely important role in this decision was played by Fr. John Paris who testified at length that what the physicians did was fully in accord with the teachings of the Church. Fr. Paris has done extensive consultative work for the American Medical Association, and this past summer he moderated the Ethics Committee conference for the Concern for Dying Education Council, the successor of the Euthanasia Education Council of America, one of the oldest euthanasia propaganda organizations in the nation. Without this priest’s testimony, the verdict on the Herbert case might well have been different, for the trial judge was later criticized for paying too much attention to ethics and not enough to the law.
The appeals court decision in the Herbert case has significantly advanced the legalization of the practice of euthanasia, and the other case mentioned earlier could take this approach even further. Recently. the Supreme Court of New Jersey agreed to review a case involving the removal of a nasogastric feeding tube from an elderly woman who was not terminally ill, irreversibly unconscious, brain dead, in intractable pain, or even unconscious. Claire Conroy was merely a sick 84 year-old woman who suffered from diabetes and ulcers on her feet that turned gangrenous. She was admitted to Claire Maas Memorial Hospital in Newark when the gangrene developed, and she was then placed on a nasogastric feeding tube because she had lost her ability to swallow. The feeding tube was all that she needed to survive, and she received no other medical treatments. Even though sometimes confused, she could move her hands, arms and head, was aware of other people and often smiled when people massaged her.
Her nephew, who earlier refused to consent to treating the ulcers on her feet, petitioned the court to remove the nasogastric tube, and the trial judge agreed on the grounds that she had permanently lost her ability to swallow and because he believed that her life had supposedly become “impossibly burdensome” to her. However, before the tube could be removed, she succumbed to other causes. The trial judge’s decision was appealed and a three-judge panel reversed the trial judge’s decision. They held that the tube should not have been removed because it was only a minor intrusion which did not outweigh the compelling interest of the state in the protection of human life. The appeals court found that Miss Conroy was not different from thousands of other senile, retarded, mentally ill or bed-ridden patients who need only a feeding tube to survive.
The New Jersey Supreme Court agreed to review this case and settle the issue once and for all. If the trial judge’s opinions should be upheld, a major victory for those promoting euthanasia would be won. Such a holding would allow physicians, at least in New Jersey, to starve or dehydrate people to death on the theory that their lives are “impossibly burdensome.” A further consequence of such a judgment might be that the authority of the Quinlan decision could be replaced and overcome. The Quinlan case set something of a national standard of medical practice, and if it was effectively overturned by allowing food and water to be removed when life has been declared to be “impossibly burdensome” then a new nationwide standard of practice could develop from it.
The appeals court in the Conroy case contended that nutrition and hydration were not medical treatments, but were only aspects of basic care that were not to be withdrawn if so doing would cause death. Food and water are not known to be therapies for any known pathological conditions. No medical school teaches that hunger and thirst are pathological conditions in and of themselves, even though extended deprivation of either of these can cause serious medical conditions. Administration of nutrition and fluids intravenously or nasogastrically does not make them medical treatments, for if the mode of administration constituted something as a medical treatment, then taking pills would not be a medical treatment because they are taken in the same way that peanuts and popcorn are taken. Medical treatments remedy diseases and pathological conditions, and conditions of hunger and thirst have never been diagnosed as diseases, even though prolonged lack of these can radically weaken one’s resistance to a large number of diseases.
Even though depriving Clarence Herbert and Claire Conroy of fluids and nutrition was not either legally or morally acceptable, there are cases in which these can be removed. When sound medical judgment holds that pro-viding food and water cannot actually hydrate and give nutrition to a patient because of a deteriorated digestive system, they can be removed. When a baby is born, for instance, with no digestive tract, it is useless to attempt feeding. When a person is in the dying process, food and water can be removed if so doing will not hasten death. For if their removal would be a cause of death, withdrawing them would be morally equivalent to denying a cup of water to one in need. And when the administration of food and water themselves cause radical pain to the patient, they may be removed. But in no other cases can these be withdrawn from a patient. Nutrition and hydration are neither ordinary nor extraordinary medical treatments, for they are aspects of normal care and are basic necessities of life that are to be given whenever they can achieve their proper objectives.
From the viewpoint of Catholics, these two cases are interesting because the testimony of Catholic moralists was critical in the decisions to remove fluids and nutrition from Herbert and Conroy. For in the Conroy case, the trial judge was greatly impressed by the testimony of Fr. Joseph Kukura who testified that the feeding tube should have been removed. And Fr. John Paris testified that what the two physicians did to Herbert was fully in accord with Church teachings. Why is it that, all of a sudden, Catholic priests who favor certain moral viewpoints, are being summoned to testify in court and are having such extraordinary influence on the practice of medicine? For years?. the medical profession has appeared to care little for what Catholic ethicists have said, and yet now they are becoming very important and influential. There are hundreds of philosophers who have as much expertise in these areas as do Catholic clergy, and one has to wonder why Catholic clergy are being called on to play such important roles at this time. It is even more curious because nothing like this happened in the abortion cases of the past decade. The answer to these questions seems to lie in the fact that Roman Catholic ethical principles pose the strongest and most coherent opposition to the legalization of euthanasia in all of its forms. If euthanasia is to be legalized, its advocates must show that there is a social consensus in favor of it, and at the present time the most serious opposition comes from the Church. If proponents of euthanasia can show courts that Catholic teachings either do not object to or support various practices of euthanasia, they can then argue that there is a social consensus on the issue, and the courts will then probably allow the practice. To show that there is a social consensus, euthanasia activists only have to silence the opposition of the Church. But if they can get influential Catholic moralists to support their views, then they will have won an even greater victory.
Many in our country now believe that withdrawing fluids and nutrition from the unconscious, bedridden, mentally retarded and disabled is a humane, compassionate, caring and even Christian thing to do. But to gain full legal endorsement for some of these practices, euthanasia proponents must show that it is also a “Catholic” practice. Up until the present time, we owed a debt to Adolf Hitler and the Nazis, for they gave euthanasia such a terrible name that no one seriously thought of it as being socially acceptable. But it now seems that their influence has waned and that there are some who view these practices as humane, com-passionate, caring, Christian and even Catholic.
If the Church does not remain silent on this issue, it will be difficult for the courts of this nation to endorse practices of euthanasia on the grounds that there is a social consensus that favors it. It is therefore imperative that the objections of the Church to these practices continue to be voiced. Removing food and water from those who are bedridden, unconscious, mentally retarded or handicapped or merely infirm is not an act of love but is the moral equivalent of denying a cup of water or a morsel of food to one who is in need.