Warshal: Dr. Kevorkian and the right to die
By Rabbi Bruce Warshal, Florida Jewish Journal, July 5, 2011
The recent death of Dr. Jack Kevorkian has brought the whole issue of the right to die back into the public forum after a hiatus of a couple years. Activists on both sides of the issue restated their positions. The conservative columnist Ross Douthat in The New York Times was most strident in his denial of the right to die with dignity and his condemnation of Kevorkian, calling him a killer and a murderer.
I disagree. No doubt Kevorkian was an idiosyncratic person, but he shed light on a personal right that is being denied to each of us by our restrictive laws. My position is quite simple: I have the right to die with dignity at the time of my own choosing. Over the past ten years I have written three columns on this issue and I am afraid that what I write today is a rehash of the same arguments, but, since the dialogue has been reignited in the wake of Dr. Kevorkian's demise, I believe that it is a necessity.
I am aware that traditional Judaism, as well as a majority of liberal rabbis, would disagree with my position, but that does not deter me. From my perspective, Torah and Talmud reflect mankind reaching toward God, not God-given dictums imposed upon us. I believe that we are masters over our own bodies and have the right to choose whether we live or die. The Talmud and the traditional commentators assert that this is not true. "The soul is Yours (i.e. God's) and the body Your handiwork" is to be taken literally. We have no right to determine the length of our days without God's permission.
This is in spite of impending Alzheimer's disease or extreme pain and agony or a myriad of disabilities that make life problematic. The question that I ask is, life at what cost? When do we deserve the peace of death? The Talmud could not have envisioned our modern capabilities to prolong breathing well beyond our capabilities to enjoy life. It is painful for me to say that I know some people who are breathing but are really not living.
I cannot conceive that God wants us to suffer pain and indignities beyond our control. I cannot conceive that God wants us to continue existing while not recognizing our spouse or children. Faced with Alzheimer's, why should I not have the right to contact a Dr. Kevorkian? Rabbi Mordecai Kaplan's famous edict applies here: the past has a vote, but not a veto. I read and respect Talmud dictums, but I am not convinced of their wisdom on this issue. I have enough faith in my own moral compass to arrive at a different conclusion.
In his New York Times column Douthat opines that it is not "considered merciful to prescribe an overdose to a cancer victim against her will, or to gently smother a sleeping Alzheimer's patient." Of course this is pure fear-mongering. We are speaking here of an individual making a decision over his or her own body. We are not talking about mercy killing. But it does bring us to the domino or slippery slope argument, the only non-religious plausible case against free choice.
It goes something like this: If we allow anyone to terminate life, it is a short step toward government deciding that it would be more humane and cost effective to end the lives of old and sick patients and other "drags on society." This certainly has resonance within the Jewish community, thinking of the Nazi atrocities on "defectives" as well as Jews. It evokes the fear of a slippery slope into a moral abyss. It starts with pulling the plug of a respirator; it continues with allowing a person to end his or her own life; it ends with our killing "defective" babies when they are born. It is a powerful argument of fear, but not necessarily logic.
After Auschwitz we know that anything is possible. Yet fear of ultimate consequences down a long, long road can totally immobilize a person or society. No human social laws or curbs on unbridled capitalism would ever be passed because they would be the first steps on the inexorable road to communism. It was precisely this kind of reasoning that kept America 50 years behind Europe in the evolving of social legislation such as Social Security or Medicare. The bottom line is whether we feel comfortable in the stability of our own social system or whether we see a rising Nazi-ism in the future. I feel comfortable enough not to worry about the domino effect.
Legislation in Oregon and Washington have provided for the right to die with dignity for a patient within six months of death from a terminal illness. Unfortunately this does not cover an Alzheimer's victim who could live well beyond this time limit. But their laws are a beginning. The Supreme Court in Montana legalized doctor-assisted euthanasia in that the doctor can provide the terminal pill but the patient must take it himself.
The importance of the Montana decision is that the court decided this case on the Right of Privacy — the right to do to ourselves in our homes what we want without government intrusion (a basic libertarian conservative belief). The Supreme Court of the United States denied this right in 1997 in a complicated split decision (Vacco v. Quill). But that case was argued on the meaning of the Constitution's equal protection clause or its liberty guarantee. It may be time to challenge state laws against the right to die using the Supreme Court's evolving Right of Privacy based on the 4th Amendment, a position explicitly enunciated in a 1967 case (Katz v. U.S.) where Justice Potter Stewart wrote, "The Fourth Amendment protects people, not places."
It's interesting that in Oregon and Washington many people who obtain the right to take a life-ending pill never use it. But it is important to them that they have control over their own lives and how they will die. That is the crux of the matter. Will the government dictate to us how much pain and suffering we will endure or will we be masters of our own fate? I choose self-determination.
Rabbi Warshal is the publisher emeritus of the Jewish Journal and the author of "Provocative Columns: A Liberal Rabbi Reflects on Beliefs, Israel and American Politics." He can be reached at firstname.lastname@example.org.