Kevorkian & Morgentaler:
Doctors of Death or Angels of Mercy ? A Human Rights Perspective

Evelyn Kallen
FRSC

Preface

The idea for this article first came to me while I was watching a TV profile of Dr. Jack Kevorkian (Dr. Death) on BIOGRAPHY . The TV program revealed that Dr. Kevorkian’s extended family had been wiped out in the Armenian holocaust, and that he identifies himself as a holocaust survivor. Reportedly, this aspect of his self-identity has had a profound influence in shaping his secular humanist life values (a fierce embracement of every individual’s right to freedom of choice, including the right to die) and in influencing his career pattern (physician assisted suicide/ euthanasia advocate).

Thinking about it later, I mused on the striking coincidence between the life histories and career patterns of Dr. Jack Kevorkian and Dr. Henry Morgentaler, a Canadian physician and abortion rights activist. Both doctors have been vilified by their opponents and both have been arrested and served jail sentences because of their actions. At the time of writing, Kevorkian , convicted of second-degree murder and delivery of a controlled substance in the death of one of his patients, is serving a 10-25 year term in prison. Morgentaler, now administering an abortion clinic in Montreal, was arrested on several occasions and jailed for almost a year for operating abortion clinics before they were legal in Canada.

Dr. Morgentaler is an actual Holocaust survivor, a Jewish survivor of the Nazi death camps. Like Dr. Kevorkian , Dr. Morgentaler strongly identifies as a Holocaust survivor and openly declares that the Holocaust experience profoundly influenced his secular humanist life values and career choices. Morgentaler passionately endorses freedom of choice, in particular, a woman’s right to reproductive choice: her right to control her own body and to choose to abort her unborn foetus if deemed warranted. Both Dr. Kevorkian and Dr. Morgentaler. are self-defined agnostics and secular humanists, a fact which led me to wonder whether this coincidence relates back to the coincidence between their self-identities as holocaust survivors and their value priorities and career patterns. In any case, the rejection of any commitment to an established religion by both physicians leaves them free from formal religious constraints against the termination of life, constraints which appear to have a significant influence on the value priorities of many pro-life (anti-abortion/ anti-euthanasia) activists.

Ideologically-speaking, Kevorkian and Morgentaler have consciously chosen to embrace and to emphasize the human rights values of freedom of choice and quality of life — values espoused by the Pro-Choice movement, over the inalienable right to life itself– the cardinal human rights value espoused by proponents of the Pro-Life movement.

As a scholar whose research interests for over more than twenty years have focused on human rights issues, I found the challenge of applying a human rights perspective to an assessment of the positions of Kevorkian and Morgentaler on the euthanasia and abortion debates, respectively, a most intriguing one.

The Abortion Debate: Both Sides

The abortion debate has come increasingly to be framed in terms of the seemingly irreconcilable views of spokespersons from two opposing camps, Right to Life/ anti-abortion and Pro-Choice. The Right to Life/ anti-abortion camp, it is commonly assumed, bases their ideological stance not on scientific evidence, but on faith, in particular, on fundamentalist Christian religious tenets espoused largely by Catholic and Evangelist spokespersons. In contrast, the Pro-Choice camp, it is commonly assumed, bases their ideological stance on scientific evidence from medicine and biology.

While this stereotyped conceptualization of the lines of division has an appreciable basis in fact, the stark ideological contrast it presents masks the not inconsiderable range of diversity in viewpoints within both camps.

Despite opposing views on the abortion issue, a consensus exists that an infant is the most precious form of life on earth, and needs to be protected under law. The philosophical and religious principle behind the pro-choice/right to life argument rests on the answer to the question: when does life (in the form of an ovum and sperm) become human life²? After that event occurs, terminating life is a form of murder which many people believe can only be justified to prevent the death of the mother or to prevent extremely serious injury to the mother, or in cases of rape or incest. Unfortunately, there is no consensus on when that event occurs.

Most people in the Right to Life camp believe that human life begins at conception. That is, a just-fertilized egg is a full human being and should be protected as such. The reasons for this belief vary. Many hold this belief because of their religious faith. Their denomination or religion teaches that a soul enters the just-fertilized egg at the instant of conception, and the cell becomes a human person at that time because of the presence of the soul. The concept of a soul is a religious one; it cannot be located, weighed, seen, smelled, felt, measured or otherwise detected.

Other pro-lifers point out that shortly after conception, a unique DNA code is formed which will remain unchanged through the life of the fetus, and throughout the potential later life after birth. They argue that the presence of a unique DNA code converts the egg into a human person. But others in both camps disagree. Some persons insist that the transition to human life happens at a certain stage in the development of the fetus: when the fetus loses its gill slits and tail and begins to “look like” a baby, or when the fetus becomes viable, (i.e. able to live outside the womb), or when its brain has developed to a particular degree.

The medical profession appears to follow the viability criteria.. Medical societies enforce regulations prohibiting abortions after (typically) 20 or 21 weeks of pregnancy. The US Supreme Court also seems to have used viability as a significant event; it allows states to prohibit abortions after viability for a wide range of reasons.³

Some believe that the fetus becomes a human being only after it has been delivered and is breathing on its own. There is some Biblical justification for this belief. Genesis 2:7 states that God made Adam’s body from the dust of the ground. But it was only after God “breathed into it the breath of life” that “man became a living person.”

No consensus and no compromise appears possible. To a person who believes that human life begins at conception, an abortion clinic is the ethical equivalence to a Nazi death camp. To a person who believes that life becomes human life at, say 25 weeks, a first trimester abortion (i.e. during the three months following conception) is a regrettable option, but often the most ethical choice for a pregnant woman.

Euthanasia: Both Sides ⁴

The basic question posed by euthanasia/assisted suicide is this: should a person who is terminally ill, and who feels that their life is not worth living because of intractable pain, and/or loss of dignity, and/or loss of capability and who repeatedly and actively asks for help in committing suicide and who is of sound mind and not suffering from depression be given the option to request assistance in dying?

Ultimately, euthanasia is a question of choice: empowering people to have control over their own bodies. At the time of writing, unless a person lives in Columbia, Japan, the Netherlands or the U.S. state of Oregon, the only lawful option is to remain alive, sometimes in intractable pain, until their body finally collapses.

The main opposition comes from some conservative religious groups. They are often the same organizations which oppose access to abortion. Other opponents include medical associations whose members are dedicated to saving and extending life, and feel uncomfortable helping people end their lives, and groups concerned with disabilities, who fear that euthanasia is the first step towards a society that will kill disabled people against their will.⁵

Groups that promote access to assisted suicide, in order to further their cause, tend to publicize cases where people have a terminal illness, are in intractable pain, and want to end their life. While this is certainly so in some cases, most dying patients who are in serious pain have adequate access to pain-controlling medication. Many patients who ask for assistance in dying are individuals whose quality of life has shrunk to zero, who find the indignities of being cared for as if they were an infant, difficult to bear or who simply want to die with dignity before they become very sick. This broad category of patients includes many who are suffering from ALS, Huntington’s Disease, Multiple Sclerosis, AIDS, Alzheimer’s and other degenerative illnesses.⁶

A Human Rights Perspective on the Issues

The primary advantage of adopting a human rights-oriented perspective to a consideration of the issues in the debates, is that this approach is rooted in internationally recognized and endorsed human rights principles of social equality and social justice.

The pivotal, internationally endorsed human rights principles of freedom, equality and dignity of all human beings and all human groups are enshrined in the provisions of the United Nations (UN) Charter (1945), the International Bill of Human Rights (United Nations, 1978, 1988) and related covenants.⁷

These principles are advocated as moral guidelines, the universal human rights standards, to which all systems of justice should conform. As currently endorsed by the United Nations, fundamental human rights represent universally agreed upon ideals for systems of justice throughout the globe.

Under current UN human rights covenants , the three pivotal human rights principles, freedom to decide, equality of opportunity and dignity of person are held to be inalienable: these fundamental human rights are rights of humanity, rights guaranteed to all human beings as such, they do not have to be earned. Human rights are claims against society, but claims against society are not human rights unless they are predicated upon one’s humanity. Rights predicated on any other attribute, such as race, class or gender, are not human rights.⁸

Fundamental human rights can be claimed equally by all human beings, regardless of any kinds of differ-ences among individual persons or human populations. As moral principles, fundamental rights are held be inalienable, individual rights, but they are not absolute: in the exercise of his or her fundamental rights, each human being must not violate; indeed must respect, the fundamental human rights of others. Human rights, then, are not unconditional: they are conditional on the exercise of social responsibilities or duties to others.

When rights collide, the deciding principle rests on weighing the issues in order to resolve the conflict in the interests of the “greater good”. In order to resolve apparent conflicts between rights, democratic societies have developed systems of justice—laws, law enforcement agencies, courts and so forth. However, the critical question remains concerning the kind and the extent of restrictions or laws we should have. The crucial question at any given time is which rights to be exercised by which persons in which situations are to be given more weight. Is the harm inflicted in the absence of restrictions greater than the harm inflicted through the adoption of restrictions? What restrictions are appropriate in a democracy where the object is to promote the greatest possible freedom of the individual and, at the same time, to promote the greatest good of the society as a whole?

However, determining the “greater harm” or the “greater good” of possible forms of resolution of rights in conflict is often a difficult task, for under international human rights guidelines all rights must be accorded equal weight. There is no recognized hierarchy of human rights: nor are any human rights accorded absolute value. A further difficulty is posed by the fact that resolution of the conflict involves human judgment as to what constitutes the greater good, and what is considered to be the greater good by some, is not always deemed to be so by others. Judgments made by human beings inevitably reflect their ideological predisposition on the issue considered, a fact which is clearly demonstrated in the literature on the abortion and euthanasia debates.

It is with these considerations in mind that I adopt a human rights perspective to the analysis of the Morgentaler/abortion case and the Kevorkian/euthanasia case to follow.

Morgentaler and Abortion: A Human Rights View

There are several key UN human rights documents which are of particular relevance for Morgentaler’s position on the abortion debate. Article 1 of the Universal Declaration of Human Rights (UDHR) declares that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience……” Three key concepts in this declaration are reflected in Morgentaler’s position. First and foremost, the declaration asserts that human rights are fundamental rights which can be claimed by all human beings from the time that they are born. The declaration does not refer or apply to an unborn fetus. Second, the declaration asserts that human beings, from birth, are endowed with reason and conscience. What this means is that fundamental human rights apply to living human beings capable of making rational and moral decisions. Among the most important of these human rights, for the abortion debate, is freedom of choice; the right of each human being to determine his or her own destiny, as long as doing so does not violate the rights of other human beings. From this view, a woman’s right to reproductive choice , including the right to choose to abort an unborn fetus , does not violate the rights of another living human being.

Another key UN document of particular relevance for Morgentaler’s position is the Convention on the Elimination of All Forms of Discrimination Against Women.⁹

This convention endorses the right to equality of men and women. What is important to re-emphasize, here, is that the human rights principle of equality refers essentially to equality of opportunity. In some instances, the principle of equality requires treating people as alike (sameness of treatment). In other cases, it requires treating them differently, but with equal concern (equivalence or equity of treatment). Where significant differences in human attributes have differential implications for access to life chances, these differences must be taken into account. Here, the principle of equivalence, rather than sameness of opportunity must be applied. Under article 11(2) of the International Convention on the Elimination of All Forms of Discrimination Against Women, the principle of equivalence is implemented in order to ensure that states take appropriate measures to prevent discrimination against women on the grounds of marriage or maternity, and to ensure their effective right to work. In considering the principle of equality of men and women, it is clear that sex differences between men and women, which enable women to bear children, but preclude men from doing so, necessitate application of the principle of equivalence. Both men and women have the right to protect and control their own bodies without state interference. But only women who can bear children can exercise this right with regard to reproductive choice.

These human rights principles were clearly articulated in the words of Dr. Henry Morgentaler, in his arguments for repeal of Canada’s (former) anti-abortion law:

“Women are the most discriminated against segment of our society. Not only are they deprived of a fundamental right, that to own their bodies and to decide if a pregnancy should continue or not, they are exposed to the dangers of losing their lives in an attempt to get rid of the pregnancy, to being injured and exploited, and to being taken advantage of by shady characters. All this while the medical profession is fully able to provide the help requested, but is prevented from doing so by an archaic and cruel law….

… and what should doctors do when they are asked for help? Do they have the right to expose women to the dangers of incompetent abortions, or do they have a moral duty to help ?”¹⁰

Morgentaler’s fight to legalize abortion in Canada was aimed not only at the prevention of the tragic injuries and deaths of women resulting from incompetent illegal abortions, but also to prevent the well-documented consequences of unwanted parenthood — the birth of unwanted and unloved children who would later be abandoned or abused and who were likely to become part of the reservoir of the mentally disturbed, anti-social and criminal element of society. As a secular humanist, Morgentaler’s goals were thus directed at the betterment of quality of life for society as a whole.

Morgentaler’s position with regard to the right of all children to be raised with love and care can be seen to reflect fundamental human rights principles endorsed in the Declaration on the Rights of the Child¹¹. His profound concern for the rights and interests of the child is evidenced in the following excerpts from his message published on the Morgentaler Clinic Web Site in 1998:

“It is well documented that unwanted children are more likely to be abandoned, neglected and abused. Such children inevitably develop an inner rage that in later years may result in violent behavior against people and society. Crimes of violence are very often perpetrated by persons who unconsciously want revenge for the wrongs they suffer as children. This need to satisfy an inner urge for vengeance results in violence against children, women, members of minority groups or anyone who becomes a target of hate by the perpetrator. Children who are given love and affection, good nurturing and a nice supportive home atmosphere usually grow up to become caring, emotionally responsible members of the community. They care about others because they have been well cared for. Children who have been deprived of love and good care, who have been neglected or abused, suffer tremendous emotional harm which may cause mental illness and difficulty in living and an inner rage which eventually erupts in violence when they become adolescents .Most of the serial killers were neglected and abused children, deprived of love….. It is accepted wisdom that prevention is better than a cure. To prevent the birth of unwanted children by family planning, birth control and abortion is preventative medicine, [helping to prevent child abuse, mental illness and violent crime].”¹²

Morgentaler’s central position is highlighted in the motto of the Morgentaler Clinic’s 2004 Web page : “Every mother a willing mother…Every child a wanted child”. This motto is strongly endorsed in numerous women’s personal stories of abortion .¹³

Kevorkian and Euthanasia: A Human Rights View

The key human rights provisions of the Universal Declaration of Human Rights (UDHR) which offer support for Morgentaler’s position on abortion provide similar support for Kevorkian’s position on euthanasia.

Article 1 of the UDHR declares that “All human beings are born free and equal in dignity and rights.. Among the most important of these human rights, for the euthanasia debate, is freedom of choice; the right of each human being to determine his or her own destiny, as long as doing so does not violate the rights of other human beings. From this view, a patient’s right to choose to end a life-condition of unendurable pain and suffering; to choose the right to die with dignity represents a fundamental human right. Moreover, our review of the literature on cases of euthanasia shows no evidence to support the imposition of restrictions on this right, for the personal decisions in these cases in any way violated the rights of others.

Critical support for Kevorkian’s position , from a human rights view, is afforded by the provisions of two key human rights documents endorsed by the Council Of Europe :Convention on Human Rights and Biomedicine ¹⁴ and Protection of the human rights and dignity of the terminally ill and the dying .¹⁵ While these human rights documents apply specifically to member state parties of the Council of Europe, they are based on the principles articulated in the UDHR and related international human rights instruments, and they demonstrate how these universal human rights principles can be interpreted (and, indeed, are being interpreted) so as to endorse the right of all human beings to choose to die with dignity.

The Council of Europe Convention on Human Rights and Biomedicine and Protection of the human rights and dignity of the terminally ill and the dying provide clear support, from a human rights view, for Kevorkian’s position on euthanasia.

Convention on Human Rights and Biomedicine: Fundamental to Kevorkian’s position are the declarations endorsing the primacy of the human being over society and science; the requirement of free and informed consent of the person concerned, or, in the case of persons not able to consent, the person’s chosen representative or a legally appointed authority to any medical intervention. These declarations strongly support the individual human right to self determination with regard to medical procedures performed on their body.

Protection of the human rights and dignity of the terminally ill and the dying: Central to Kevorkian’s position is the Assembly declaration that the “quality of life of the dying is often neglected, and their loneliness and suffering ignored, as is that of their families and care-givers”, followed by the declaration that “what dying patients most want is to die in peace and dignity, if possible with the comfort and support of their family and friends”. Pivotal for Kevorkian’s position is the Assembly Recommendation 779 (1976) that “the prolongation of life should not in itself constitute the exclusive aim of medical practice, which must be concerned equally with the relief of suffering”. In short, from a human rights view, the patient should have the right to choose to die with dignity when interminable pain and suffering has so seriously undermined one’s quality of life, that to terminate suffering, death is acknowledged to be the only rational choice. The following excerpts from a 1996 interview with Kevorkian well illustrate this point:

Kevorkian: ’I am talking about the right to choose not to suffer’

Q: The world knows a good bit about your views on physician-assisted suicide.

A: My views don’t count. What counts are the patient’s only. This is a fundamental human right: to end your own pain and suffering when you wish to, if you wish to, without being coerced in any way. Now, where I come in, where medicine should come in, is to determine where it is medically appropriate to help the suffering patient in this way. But that is a medical decision — strictly medical — and you don’t need any laws.

What I do has nothing to do with the right to die. I don’t want the right to die

— we’ll all die eventually anyway. What I am talking about is the right to choose not to suffer. That’s an important distinction, which would be a common and accepted practice in a rational society. ¹⁶

The human rights principle of the right of a patient to choose to end unendurable pain and suffering and to die with dignity also is strongly supported by the statements of many of Kevorkian’s patients , those he has helped to end their suffering.¹⁷

Pro-Choice vs Pro-Life: A Human Rights View

Our analysis of the Morgentaler/abortion and Kevorkian/euthanasia arguments reveal that the pro-choice position, emphasizing freedom of individual choice and the right to quality of life advocated by both physicians are principles clearly in keeping with the guidelines of internationally recognized human rights declarations. At the same time, the right to life also represents a cardinal, internationally recognized human rights principle. Thus we are faced with a classic situation of rights in conflict. As pointed out earlier, when rights collide, the deciding principle rests on weighing the issues in order to resolve the conflict in the interests of the “greater good”. But resolution of the conflict involves human judgment as to what constitutes the greater good, and, as we have seen in our consideration of the abortion and euthanasia debates, judgments made by human beings inevitably reflect their ideological predisposition on the issue considered. For supporters of pro-choice, the right to determine one’s own destiny and to emphasize quality of life in making life and death decisions for oneself is a personal choice, which can only justifiably be restricted if it can be proven that such a choice violates the rights of others. For supporters of pro-life, the individual has no such choice: the right to life per se, is held to be inviolable.

Looking at the pro-choice versus pro-life positions from a human rights perspective, what is important to keep in mind is that, under international human rights guidelines, all rights must be accorded equal weight. There is no recognized hierarchy of human rights: nor are any human rights accorded absolute value. Insofar as the pro-life position places an absolute, sacrosanct value on life itself , and supports imposition of a blanket prohibition against the taking of life under any circumstances, it can not be given unqualified support, from a human rights view. While this position may be strongly endorsed by fundamentalist religious principles, it clearly denies the fundamental human right of freedom of choice, and violates the rights of those with different values, who, facing critical life and death situations, should be able to determine their own destinies.

Pro-lifers most certainly have the personal right to choose and to endorse an absolutist position on the value of life per se. That is to say, they have the human right (freedom of choice) to make this decision for themselves. But they have no human right which justifies their decision to impose their choice of absolutist values on others who may hold different values.

This point was strongly made by the Judge in the Roe v Wade decision when he stated that:

‘[The United States Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States’.¹⁸

Similarly, Justice Wilson, J. in the R v Morgentaler case ¹⁹ – referring to rights guaranteed under Canada’s constitutional Charter of Rights and Freedoms ²⁰ – argued that the denial of a pregnant woman’s s.7 right to life, liberty and security of the person, [under Canada’s anti-abortion law], contravenes freedom of conscience guaranteed in s. 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state. Freedom of conscience and religion, Justice Wilson, J. argued, should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. The state, she argued, here is endorsing one conscientiously-held view at the expense of another. It is denying freedom of conscience to some, treating them as means to an end, depriving them of their essential humanity.

The latter point has significant implications with regard to the question of the justice or injustice of the imposition of legal prohibitions against abortion and euthanasia. From a human rights view, blanket prohibitions, without consideration of particular circumstances, can not be supported.

With regard to euthanasia, in both Canada and the United States, key Supreme Court decisions ( RODRIGUEZ v BRITISH COLUMBIA , WASHINGTON et al. v. GLUCKSBERG et al.)²¹ upholding a legal ban on assisted suicide have revealed that the weight of national tradition , favoring “legitimate government interests” in protecting life, clearly overrode the value accorded the fundamental right of each human being to determine one’s own life destiny. What also appears to have played a critical role in these decisions is the fear (unsupported by evidence) that allowing euthanasia, under any conditions, would lead to a “slippery slope” into manifold abuses of patient’s rights motivated and pressured by the self-interest of others. From a human rights view, the latter argument is suspect, as it is speculative only, not grounded in fact, and is clearly in violation of the fundamental human right of each human being to make critical life and death choices for themselves. Further, these Supreme Court decisions were clearly in violation of the cardinal principle upon which restriction or denial of the exercise of the fundamental human rights to freedom, equality and dignity of any human being can be justified: Only in instances where violations of the human rights of other human beings can be fully substantiated are restrictions on fundamental rights justifiable. Where, in either of these cases, has evidence been provided that a patient’s right to assisted suicide caused clear and demonstrable harm to others and, thereby, violated the rights of others?

The evidence from personal stories of patients coming to Drs. Morgentaler and Kevorkian for help clearly shows that patients had already made their own life decisions.²² Neither their families nor the physicians from whom they sought help made the decisions for them. Case studies clearly reveal that patients were embracing the human rights principle of quality of life. The question then arises: Did their choice violate the human rights of other human beings ? From a human rights view, the answer is no.

Beyond Physician Assisted Suicide: Voluntary/Active and Involuntary Euthanasia

The thrust of the arguments throughout this article have focused on ideological positions regarding “mainstream” forms of euthanasia, in particular, physician-assisted suicide. It is, however, important, before closing, that we examine the more extreme cases, from a human rights view.

Two particular cases will be used as the basis for our analysis. The first is the case of Thomas Youk, an example of voluntary/active euthanasia, which led to the second degree murder conviction of Dr. Jack Kevorkian. The second is the case of Tracy Latimer, an example of involuntary euthanasia, which led to the second degree murder conviction of Tracy’s father, Robert Latimer.

Voluntary/Active Euthanasia: The Youk Case ²³

On 13 April l999 Dr. Jack Kevorkian was sentenced in Michigan, USA, to two terms of imprisonment for helping a man suffering from ALS to die. For the 2nd degree murder of Thomas Youk he received a sentence of 10-25 years and for using a ’controlled substance’ (lethal drug) he was given 3-7 years jail, the sentences to run concurrently. A month earlier a jury had convicted him on both counts. At the present time (2004) all appeals made by Kevorkian to higher courts have been rejected, and he remains in jail.²⁴

The Youk case achieved enormous notoriety, not only for Dr. Kevorkian’s publicly acknowledging that he had already helped at least 130 other people to die by assisted suicide, but Mr. Youk’s death in September l998 was by direct injection (voluntary euthanasia). When the law enforcement authorities in Michigan did not move to charge Kevorkian with killing Mr.Youk, he took a tape of the incident to CBS Television, which aired it in the widely watched news program ’60 Minutes’. On the program Kevorkian challenged prosecutors to act: three days later Kevorkian was charged with the offences.

The legal case against Kevorkian was, of course, watertight because his video clearly demonstrated the process of injection. There was no question but that he was guilty in the eyes of the law. The law does not accept that a person can ask to be killed – as Tom Youk clearly did. It is still ’murder’ legally. So, in an attempt to persuade the jury that his action had not been ’murder’ but a justifiable act of mercy, Kevorkian defended himself. He sought ’jury nullification’ on the grounds of humanity- something a lawyer may not do. Kevorkian was further hampered by the judge’s ruling that he could not call the wife and brother of Tom Youk to confirm Tom’s suffering and that the lethal injection was agreed by all three.

Derek Humphry, ERGO president, who founded the Hemlock Society in l980, had this to say about the conviction:

“The severity of the sentence on Kevorkian will drive the practice of voluntary euthanasia and assisted suicide even further underground. It will not stop it. Kevorkian is by no means the only doctor who helps people die – just the one who does so and also openly campaigns for societal acceptance of the practice.” ²⁵

The Euthanasia Research & Guidance Organization (ERGO) and the The Hemlock Society USA have been and continue to be vehement supporters of Kevorkian and his convictions.

Involuntary Euthanasia: The Latimer Case ²⁶

A Canadian farmer, Robert Latimer, was convicted of second-degree murder in November 1994 for killing his daughter, Tracy, who had severe cerebral palsy. She could not walk, talk or feed herself, and Latimer said he acted out of compassion when he killed her with carbon monoxide in 1993 at the family farm in Wilkie, Saskatchewan. His plight attracted sympathy from many Canadians, a phenomenon that disturbed advocates for the disabled. Latimer was sentenced to life in prison with no chance of parole for 10 years, but served only one day in jail because of appeals. At the original trial, Latimer’s lawyers portrayed him as a loving father who couldn’t stand to see his daughter suffer anymore. Prosecutors argued he did not know how Tracy felt and did not have the right to make a life-or-death decision for her.

The Supreme Court ruled that Latimer deserved a new trial because the prosecutor had questioned prospective jurors about their views on mercy killing, abortion and religion. However, the court rejected a second part of Latimer’s appeal, ruling that his confession to police could be used in his second trial. Latimer’s lawyers contended the confession was invalid because police did not properly advise him of his legal rights. Latimer said he was prepared to face a new trial, but was angered at authorities’ determination to prosecute him. He said prosecutors do not understand how much agony his daughter endured. But advocates for the disabled said Latimer should again face a first-degree murder charge.

In 1997, the Supreme Court ordered a new trial saying jurors should not have been asked their views on mercy killing. In November of 1997, Latimer was convicted of second-degree murder, which carries with it a minimum sentence of life imprisonment with a chance of parole after 10 years. Because the previous jury had convicted Latimer of second-degree murder, the charge this time was second- and not first-degree murder. In December of 1997, Latimer was granted a constitutional exemption from minimum sentence. The Judge Ted Noble gave him two years less a day. One year to be served in prison, the second on his Wilkie-area farm. Following this court decision, the Saskatchewan Crown made application to appeal. Then Latimer also made application. In November of 1998, the Saskatchewan Court of Appeal upheld Latimer’s conviction and, in addition, overturned the reduced sentence. It imposed the mandatory sentence of life in prison with no chance of parole for 10 years. In May of 1999, the Supreme Court announced that it would grant Latimer another appeal.

On June 14, 2000 the appeal was heard. The CACL, along with other advocacy and self-advocacy organizations, had joint intervener status. The Supreme Court would have to decide whether Latimer should serve the mandatory sentence or get a constitutional exemption from the sentence because of the circumstances. Latimer’s lawyers argued that because he killed his daughter out of love, a life sentence would be cruel and unusual punishment. Edward Greenspan said Latimer acted to save his daughter, who had severe cerebral palsy, from the agonizing pain of yet another operation. He said Latimer and his wife, Laura, both believed doctors were going to “torture” and “mutilate” their little girl. He claimed that it was an unforgivable suggestion that Bob and Laura ever acted out of anything but love for their daughter. But advocates for the disabled said that the debate about Latimer’s sentence would not have ever happened if Tracy had not been disabled. On January 18, 2001, the Supreme Court ruled unanimously to dismiss Latimer’s appeal and to impose the mandatory sentence. Under Canada’s mandatory sentencing laws, there is no difference between a Robert Latimer and a cold-blooded rapist/murderer. Judges are not trusted to exercise discretion in sentencing and juries are prevented from having input on sentencing.

While Canadians remain sharply divided in opinion with regard to the Latimer case, the Supreme Court decision was lauded, with considerable relief, by organizations representing persons with disabilities.²⁷ President David Barber, representing The Ontario Association for Community Living (OACL) commented that the unanimous ruling will have a profoundly positive impact on people’s lives. By upholding the conviction and the sentence, the Supreme Court of Canada, he contended, has reaffirmed the equal value of people with disabilities and their equal right to protection under the law. Anything less than the normal penalty, he argued, would have sent a shivering message to people with disabilities that their lives were less valued than those of other people. Mr. Barber noted that it is significant that the Supreme Court was unanimous in this decision. The voice of the Court is clear, he said, that peoples lives are to be protected under the law, and it is not conditional upon their ability or disability.

Analysis of Youk and Latimer Cases From a Human Rights View

In the Latimer case, a case of involuntary euthanasia which led to the second degree murder conviction of Robert Latimer, the arguments put forward in support of Latimer characterized his action as an act of mercy, designed to end the terrible pain and suffering of his daughter, who was so severely disabled that she could not make her own wishes known. Implicit in the arguments was the assumption that, had Tracy been able to make her own decision, she would have chosen to end her suffering and to die with dignity.

From a human rights view, this case is decidedly problematic. The critical difference between the Youk and Latimer cases lies in the question of the exercise of one’s right to freedom of choice. Insofar as Tracy Latimer was so severely intellectually impaired that she was unable to make known the real extent of her pain and suffering, and was unable to voice any decision regarding her own life and death, did her parents have the right to assess the extent of her suffering and to make a death with dignity decision for her? If indeed, Tracy was in such agony that she would voluntarily have chosen to end her life, is it “merciful” to let her, and others like her, continue in their agony?

The problematic nature of this case relates to the entire category of potential euthanasia cases involving persons who are not competent (or deemed to be incompetent of) making rational decisions, whether through emotional/mental or intellectual disabilities. It is generally accepted, for example, that a vast number of persons who continually attempt to commit suicide or who actually commit suicide are severely depressed. The pain and suffering of severe depression leads many to commit suicide after repeated, futile attempts to seek help from others in ending their lives.

However, current international human rights guidelines do not enable us to resolve this dilemma. As we have emphasized earlier, Article 1 of the UDHR declares that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience…” The critical concept, here, is reason. In the exercise of reason, human beings are able to make rational choices about their life destinies. It cannot be assumed that persons with mental disabilities lack reason; but what is problematic is that they are demonstrably unable to exercise their reason in order to make rational life choices. Thus, the human rights dilemma remains unresolved.

In the Youk case, the decision to convict Kevorkian on grounds of second degree murder was based on making a clear legal distinction between physician-assisted suicide and voluntary/active euthanasia. The question which arises here is: Can this distinction be supported, from a human rights perspective?

As we have pointed out throughout our analysis, Article 1 of the Universal Declaration of Human Rights (UDHR) declares that “All human beings are born free and equal in dignity and rights.. They are endowed with reason and conscience…” Among the most important of these human rights, for the euthanasia debate, is freedom of choice; the right of each human being to determine his or her own destiny, as long as doing so does not violate the rights of other human beings. From this view, a patient’s right to choose to end a life-condition of unendurable pain and suffering; to choose the right to die with dignity represents a fundamental human right. Moreover, our review of the literature on cases of euthanasia shows no evidence to support the imposition of restrictions on this right, for the decisions in these cases in no way violated the rights of others.

In those instances, where cases of both physician-assisted suicide and voluntary/active euthanasia are demonstrably predicated on the patient’s clearly thought out, personal decision, then the principle of equality should apply. To prohibit the latter act of mercy, while allowing the former, would constitute discrimination against the most vulnerable category of physically disabled patients, those unable to assist in their own demise. Such distinctions may currently enjoy legal support, but they do not logically apply, nor can they be supported, from a human rights view. In both cases, the only basis for imposing restrictions on the fundamental human right of the patient to make a rational life/death decision is to provide clear evidence to show that such a decision violates the human rights of others.

Kevorkian and Morgentaler: Doctors of Death or Angels of Mercy ?

We now come full circle to the original question posed in the title of this article. In order to properly answer the question, let us reconsider the profiles of the two physicians, from a human rights view, in light of the documentation of their lives and of the human rights issues at stake, found in the current literature.

Kevorkian

Kevorkian, the son of Armenian holocaust survivors most of whose relatives perished in the genocide, openly identifies himself as a holocaust survivor, and this continuing strong identification with the atrocities of his ethnic history has been a pivotal influence in shaping his humanistic life-values.²⁸

When Kevorkian first outlined his proposal for ‘medicide’ (planned death), he argued that it was based on a new, more enlightened and humanistic code of medical ethics ²⁹. He described medicide as a rational system that honors the right of self-determination and extracts from a purposeful, unavoidable death the maximum benefit for the subject, the subject’s next of kin, and for all humanity. He proposed the establishment of well-staffed and well-organized medical clinics (’obitoria’) where terminally ill patients could opt for death under controlled circumstances of compassion and dignity. Moreover, he argued that physician involvement should extend far beyond mere termination of life to permit exploitation of the enormous potential benefit that could accrue from the acquisition of organs for transplantation and the performance of innovative but otherwise impossible human experiments under irreversible general anesthesia. In the expectation that critics would raise the specter of Nazi experimentation, Kevorkian asserted that what the Nazis did was merciless killing, not mercy killing. Kevorkian concluded by saying that euthanasia – a good death – did not go far enough. The aim should extend far beyond a mere ’good’ death , toward a superlative ideal, which technically might be called eutatosthanasia or best death, a form of death which generates real benefits for all of humanity..

Interestingly, some of the strongest support for Kevorkian’s position on euthanasia has come from reports of Jewish Holocaust survivors who expressed the view that they would personally choose to take a lethal injection rather than to suffer prolonged pain without hope. When comparisons with the Holocaust were raised, one survivor sharply pointed out:

‘ Mercy killing has no connection with my childhood or what happened during World War 11..[ in the camp].I saw deaths and murders which had no mercy in them…on a daily basis….How can one compare between Nazi Germany and the understanding that one should have more control over his own life and death?…Nazi Germany and mercy killing are not alike. The differences between the two are like between day and night, and after experiencing the ‘night’, I wish to experience some of the ‘day’…If there is no hope for a cure, then it is better to get it over with–an injection, and get it over with…Death itself does not frighten me. The problem is what is connected and surrounding death. I believe that I have endured my assigned portion of suffering in the world…I can not take any more.’³⁰

Kevorkian’s commitment to the human rights principle of self-determination, in cases of euthanasia, has not been diminished in any way since his confinement in jail. Indeed, it appears to have gained strength, under duress. In a letter to the United States Supreme Court ³¹, Kevorkian argued that the Ninth Amendment of the U.S. Constitution guarantees the “unenumerated” right of physician-assistance-in-dying. The Ninth Amendment says that rights not otherwise addressed by the Constitution or prohibited by the states are reserved for the states and the people.

In his letter, Kevorkian urged the justices to follow the lead of the Colombian Constitutional Court and find some constitutional protection for physician-assisted suicide. He said that Supreme Court justices now have the ideal opportunity to legitimize for all Americans this fundamental human right based on the authority explicit in the hitherto neglected Ninth Amendment of the Bill of Rights. He implored the Supreme Court to emulate the Colombian Constitutional Court, which he said declared “physician-assistance-in-dying to be a right of the people.” An extraordinary and historical opportunity of this magnitude is rare, Kevorkian wrote. Other nations are now seizing the occasion to acknowledge that access to this unique medical service is an inherent right retained by their citizens. He expressed the fervent hope that the United States Supreme Court would have the courage and integrity to invoke the authority of the Ninth Amendment by declaring unequivocally that the same inherent right is also retained by all Americans.

Morgentaler

Like Kevorkian, Morgentaler openly identifies himself as a holocaust survivor, and this continuing strong identification with the atrocities of his personal past and his ethnic history has been a pivotal influence in shaping his humanistic life-values.³² Morgentaler asserts that it wasn’t until he was a practicing physician undergoing psychoanalysis that he came to fully understand the effect of his concentration camp experience in paralyzing his will. Initiative and competition with others, he felt, were dangerous and to be avoided. So he had scaled down his ambitions and had decided to be content with what he had already achieved, and to go no further. He alleges that until the time of his analysis, and maybe even after that, there was an implicit refusal on his part to look deep inside himself – at the suffering he’d felt, at the guilt feelings he had about the death of his parents, and about the guilt feelings he had because he had survived the Holocaust while many others had not.

During and after psychoanalysis, Morgentaler became increasingly involved in the humanist movement, whose adherents put their faith in humanity and work to improve humanity’s lot. “Nothing human is alien to me,” became his philosophy. Morgentaler emphasized that:

“The real operative values are important to me – the dedication to human dignity, to justice, to civil liberties, to being an active part of society. To use one’s potential in life and to dedicate oneself to a society in which most people will be able to use their potential as full human beings and responsible members of society.”³³

Through his involvement in humanism, Morgentaler says, he came to recognize that women want and need to control their own sexuality and reproduction, and he began to work toward widespread recognition of what he came to consider tobe their basic human right. As a physician, practicing in Canada while abortion was still illegal, Morgentaler knew from other doctors and newspaper reports about women dying as a result of incompetent abortions, and he knew he could prevent these unnecessary deaths of women determined to undergo abortion, no matter what the danger to life and health. Finally, Morgentaler decided that his medical conscience must come first, that the law must be-confronted. His mind made up, he embarked upon his course of civil disobedience, in defiance of the restrictive provisions dealing with abortion in the Criminal Code of Canada.

The humanist philosophy which Morgentaler endorsed and continues to endorse strongly emphasizes the quality of life. Humanists like Morgentaler view the right to a legal abortion on demand as an extension of the right of a woman to control over her own body. From this view, it is immoral for a state or any outside authority to force a woman to continue with an accidental and unwanted pregnancy. It is a violation of her fundamental human rights.

Dr. Henry Morgentaler’s humanistic approach to abortion is clearly articulated in his statement which appears on the current (2004) home page of the Morgentaler Clinic Web Site:(excerpted by author)

“The Morgentaler Clinics are committed to providing safe and compassionate abortion care in a supportive and sympathetic environment. The Clinics are state of the art medical facilities that employ the newest medical techniques and knowledge. The staff are understanding and compassionate medical personnel who fully support reproductive choice and freedom. The Clinics provide access to an essential medical service that historically was not available, accessible or safe. The dedication of the doctors and staff ensure that an abortion may be obtained on request without obstacles or the need for apologies. … The right to reproductive freedom is fundamental and imperative. Reproductive choice ensures that women have the means for self determination and planned parenthood. Only with these rights are women full, equal citizens in control of their bodies and their futures… We must work together to ensure that every mother is a willing mother, and every child a wanted child..”³⁴

The Question: Kevorkian and Morgentaler: Doctors of Death or Angels of Mercy?

From a human rights view, the answer should be self-evident to the reader.

About the Author, Evelyn Kallen Frsc

For over 20 years, I taught a variety of courses at the undergraduate and graduate levels, at York University, which reflected my abiding interest in ethnicity, racism, multiculturalism, minorities, stigmatization and human rights issues. I am retired from university teaching but I have continued to be actively involved in research and writing. During the past two years, I have had two new books published:

2003 Ethnicity and Human Rights in Canada: A Human Rights Perspective on Ethnicity, Racism and Systemic Inequality. 3rd ed. Toronto: Oxford University Press

(2004) Social Inequality and Social Injustice: A Human Rights Perspective. London: Palgrave Press

I also have continued to supervise graduate students with a particular interest in human rights issues, and especially, in minority rights issues. In addition, I occasionally give public addresses to both specialized academic and general public audiences.

References

1. The following readings are highly recommended:

Alcorn, R.( 1992) ProLife Answers to ProChoice Arguments Multnomah Publishers Inc.

Baird, R.M. and Rosenbaum, S.E (eds). (2001) The Ethics of Abortion : Pro-Life Vs. Pro-Choice (Contemporary Issues) Prometheus Books, 3rd ed .

Dworkin, R. (1993) Life’s Dominion : An Argument About Abortion, Euthanasia, and Individual Freedom. Knopf

Grant, G. (2000) Grand Illusions: The Legacy of Planned Parenthood 4th ed. Cumberland House

Jacob, K. (2004) Our Choices, Our Lives : Unapologetic Writings on Abortion. iUniverse Star

Pojman L.P. and Beckwith F.(eds) ( 1998) Abortion Controversy: 25 Years After Roe vs. Wade, A Reader [ABRIDGED] Rev.ed. . Wadsworth Publishing

Staggenborg, S. (1994) The Pro-Choice Movement: Organization and Activism in the Abortion Conflict. Oxford University Press

2. ‘When Does Life Become Human Life’? The Abortion Page. Web Site: www.abortion.com/ [Accessed May 13, 2000]

3. ROE v. WADE

A condensed version of the landmark abortion ruling. Roe v. Wade, 410 U.S. 113 (1973) (USSC+) Web Site: www.USLaw.com/ [Accessed May 13, 2003]

4. The following readings are highly recommended:

Battin M.P. ed. et al (1998) Physician Assisted Suicide: Expanding the Debate (Reflective Bioethics) Paulist Press

Dowbiggin, I. (2003) A Merciful End: The Euthanasia Movement in Modern America Oxford Press

Dworkin, G, Frey R.G. and Bok, S. (1998) Euthanasia and Physician-Assisted Suicide. Cambridge University Press

Dworkin, R. (1994) Life’s Dominion : An Argument About Abortion, Euthanasia, and Individual Freedom. Reprint edition . Vintage

Moreno, J.(1995) Arguing Euthanasia : The Controversy Over Mercy Killing, Assisted Suicide, And The “Right To Die” . Simon & Schuster

Peck, M.S.. (1998) Denial of the Soul : Spiritual and Medical Perspectives on Euthanasia and Mortality. Reprint edition. Three Rivers Press

5. Peck, M.S.(1998). (op cit)

6. Moreno, J. (1995) (op cit )

7.United Nations (1945) Charter of the United Nations. signed at San Francisco on 26 June 1945 entry into force 24 October 1945, in accordance with Article 110

United Nations. (1978, 1988). International Bill of Human Rights. New York [includes i–v below]:

i) Universal Declaration of Human Rights 1948. A/RES/217 A (111) (10 December)

ii) International Covenant on Civil and Political Rights. 1966. A/RES/2200 (XXI) (16 December)

iii) International Covenant on Economic, Social and Cultural Rights 1966.A/RES/2200 (XXI) (16 December)

iv) Optional Protocol to the International Covenant on Civil and Political Rights 1966.A/RES/2200 (XXI) (16 December)

v) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. 1989. AA/RES/44/128 (15 December)

8. Murumba, S.K ( 1998) ’Cross-Cultural Dimensions of Human Rights in the Twenty-First Century.’ In Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry. Anghie, A. and Sturgess, G., (eds). The Hague/London/Boston: Kluwer Law International .201–240.

9. United Nations (1981) .Convention on the Elimination of All Forms of Discrimination Against Women. .Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979. Entry into force 3 September 1981.

10. Excerpted from “A Physician and His Moral Conscience” published anonymously in The Humanist (1969) and quoted in .Dunphy, C. (1996) Morgentaler: A Difficult Hero. Toronto, Random House Canada. 31-32

11. . Message From Henry Henry Morgentaler, M.D., L.M.C.C. ©1998. Morgentaler Clinic Web Site: www.morgentaler.ca/ [Accessed September 4, 2001]

12 . Morgentaler Clinic Web Site : www.morgentaler.ca/ [Accessed October 30, 2004]

13. Women’s Stories: NARAL Web Site: www.naral.org/ [Accessed September 4, 2001]

14 Convention on Human Rights and Biomedicine (COUNCIL OF EUROPE European Treaties – (ETS No.164)

15 Protection of the human rights and dignity of the terminally ill and the dying. (COUNCIL OF EUROPE Recommendation 1418 (1999)

16. The Detroit News. Home Page. July 28, 1996

17. Videotape: ‘Kevorkian patients say they wanted to die’ .The Detroit News. Home Page. April 27, 1996. by Brian S. Akre / Associated Press

18. ROE v WADE (op cit)

19 R. v. MORGENTALER, [1988] 1 S.C.R. 30[1988] 1 S.C.R.R. v. MORGENTALER 30 INDEXED AS: R. v. MORGENTALER. [File No.: 19556.1986: October 7, 8, 9, 10; 1988: January 28.]

20 Canada. Canadian Charter of Rights And Freedoms (CRF) (Canada Act, 1982).

S7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

21a RODRIGUEZ v.BRITISH COLUMBIA (Attorney General) File No: 23476. 1993: May 20;1993:September 30.

21b WASHINGTON et al. v. GLUCKSBERG et al. (certiorari to the united states court of appeals for the ninth circuit .No. 96-110.) Argued January 8, 1997 Decided June 26, 1997

22 See: References # 13 and # 17

23 . Derek Humphry . Dr. Jack Kevorkian. Website ERGO. http//:www.finalexit.org/who.htm [Accessed November 4, 2004]

24 CNN.com – Supreme Court turns down Kevorkian – Nov 2, 2004 . International Edition

25 Derek Humphry (op cit)

26 CBC News Online. ’Cruel & unusual’: The law and Latimer. Martin O’Malley & Owen Wood, Updated December 17, 2003. Web site: http://www.cbc.ca/news/background/latimer/index.html [accessed on November 1, 2004]

27 ‘Supreme Court Hears Latimer Appeal’ . ACL News Release Jan. 18, 2001 – Latimer.

28a Appointment With Doctor Death . Betzold, M. Momentum Books, 1993. Chs.1 and 4

28b Current Biography Yearbook (CBY),1994 p.297.

29 Denzin, N.K. (1992) The Suicide Machine in SOCIETY Vol 29, No 5, July/August

30 Leichentritt, R.D., Rettig, K.D. and Miles, S.H.(1999). ‘Holocaust Survivors’ Perspectives on the Euthanasia Debate’. In Social Science and Medicine. 48.185 – 196.

31 The Hemlock Society. Web site: http://www.hemlock.org/hot__topics.htm [Accessed July 16, 2001]

32 Dunphy, C. (1996) Morgentaler: A Difficult Hero. Toronto: Random House Canada .

33 Dunphy (op cit) 27

34 Morgentaler Clinic Web Site : www.morgentaler.ca/ [Accessed October 30, 2004]

© Electronic Journal of Sociology