Societal Acceptance of Medical Discrimination against the Vulnerable: the Moral Abyss
Ana Brennan, J.D.
Vice-President, Society of St. Sebastian
Senior Editor, Journal of Bioethics in Law & Culture
Bioethics in Law & Culture
Fall 2018 vol. 1 issue 4
In Greek mythology, Cassandra was a mortal woman who was in love with the god Apollo. He gave her the gift of prophecy in exchange for complying with his desires. Cassandra received the gift, but then refused to fulfill Apollo’s requests. In a fit of revenge, Apollo allowed her to keep the gift of prophecy but cursed her so that no one would ever believe any of her prophecies.
In 1949 the French philosopher Gaston Bachelard coined the phrase, “The Cassandra Syndrome.” This syndrome regards cases of a valid crisis that is not believed or is denied by the masses. The syndrome applies mostly in the fields of psychology and politics. The Cassandra Syndrome has never been more relevant today in our political discussions. Far from being “slippery-slope” doomsayers, pro-lifers have been strenuously sounding the alarm regarding exactly what our deviation from the Culture of Life would, and has resulted in. Just like poor Cassandra, our warnings have gone unheeded.
Early Eugenics Movement in the United States
Looking back at history, it is not difficult to make an accurate prediction as to where we are currently headed. In the United States the disabled have not always been considered equal members of society, which has been used to justify their less than humane treatment. During the first half of the 20th century the eugenics movement was alive and well in the United States. Many famous Americans, such as Alexander Graham Bell, Carnegie Institution, and the Rockefeller Foundation were proponents, lending the movement legitimacy. Up until World War II the United States still had forced sterilization laws on the books, and they were enforced. In our effort to rid ourselves of undesirables, over 60,000 Americans were forcibly sterilized.
Proponents of eugenics claimed their opinions were based on science. Implementation of their agenda was not prejudice, rather sound medical practice, which benefited both the individual and society. Of course, the application of our eugenics laws were broadly interpreted and applied.
In the infamous US Supreme Court case Buck v. Bell (1927), the court found that the state did have a right to forcibly sterilize a woman for committing the crime of getting pregnant out-of-wedlock. Justice Oliver Wendell Holmes wrote,
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for imbecility, society can prevent those who are manifestly unfit from continuing their kind....Three generations of imbeciles is enough.
Unfortunately, the acceptance of this world view was not unique to the courts. It was also pervasive in the medical community and entertainment. In 1915, a doctor in Chicago was applauded for refusing to treat a syphilitic newborn, resulting in the child’s death. Two years later a movie, The Black Stork, was made memorializing this doctor’s “heroic” deed.
It didn’t take long for the early eugenics movement to expand the definition of disabled. Of course, they started with the arguments in favor of mercy-killing for those who suffered from severe physical or mental disabilities, but it took less than 30 years for the “feeble-minded” and the poor to be declared “unfit.” The United States was ahead of its time when it came to eugenics. It is no secret that the Nazis modeled part of their eugenics program on U.S. laws, Hitler said as much. Ironically, it was the application of the logical conclusion of our own policies in Nazi Germany which gave Americans pause.
But for World War II, there’s no reason to think that the eugenics movement in the U.S. wouldn’t have proceeded unabated. But Americans did come to their senses, and rejected the line of thinking that there are groups of people who should not exist, for a time at least. If the eugenics way of thinking could manifest itself in an otherwise civilized society once, it could do it again.
Modern Eugenics: Abortion
Given society’s historical propensity to dehumanize and oppress the weak, it’s no surprise legalized abortion, a “right” premised on dehumanizing another so as to exclude them from the protection of the law, set society on a trajectory that would further dehumanize others to justify their eradication. Nowhere has this been more acute than the treatment (or lack thereof) of the disabled. The potential of having a disabled child has always been proffered as a legitimate reason to abort a child even after viability, and even among those who typically oppose abortion. Both in the United States and abroad there have been cases of disabled children born alive after a botched abortion only to be placed aside, left crying until they died.
These stories have shocked the conscience of most, but why? Is it really all that surprising that a disabled child would be treated with and granted more humanity after it was born than it was five minutes before while still in the womb? Within the abortion context, as a society, we have already rationalized that a disabled unborn child is less human than the unborn child in general, which justifies applying a different standard of care to the disabled.
Due to advances in prenatal care, it is now possible to diagnose and treat unborn babies who suffer from various ailments while still in the womb. Unfortunately, these advances have also facilitated search and destroy missions against the disabled unborn. According to the most recent numbers from the National Down Syndrome Cytogenetic Register roughly 90% of Down syndrome babies are aborted in the UK, 77% in France, 98% in Denmark, and Iceland with the dubious distinction of almost 100%. In 2013 the conservative party in Spain took control. One of the first things they did was tighten the abortion laws. One provision, which the conservatives said they would change, allowed for late-term abortions if it was discovered that the unborn child was disabled. Due to pressure from within their own party, conservatives in Spain had to walk back their promise to prohibit prenatal eugenics. Even in otherwise pro-life Poland, late-term abortions are allowed if the unborn child is disabled.
The targeted destruction of the disabled is so dire that four states, Indiana, South Dakota, Ohio, and Louisiana have passed legislation specifically to prohibit aborting children with Down syndrome. In Indiana, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit upheld the trial court decision, which struck down the legislation and the full court decided not to review the decision. The state of Indiana filed a petition with the United States Supreme Court, which added the case to its docket on October 16th. So hopefully we will find out soon whether or not, under the law, the United States will protect children with Down syndrome.
In addition to the cheapening of life at the beginning, like Cassandra, we pointed out, that just like before, once we dehumanize one group of people, it is only a matter of time before we expand that definition to dehumanize an ever growing group. Sadly, we have seen this prophecy come to fruition, again. Whether discussions regarding denial or cessation of treatment, assisted-suicide, or outright non-consensual euthanasia, the presumption of death has poisoned our medical and legal professions generally, and targets the disabled specifically.
General Medical Considerations
One component essential to perpetuating and sanitizing discrimination against the disabled is to keep the discriminatory acts within the purported arena of legitimate medical decisions. We have already witnessed such arguments from the eugenics movement of the early 20th century as well as within the abortion debate. “Abortion is between a woman and her doctor.” Who are we to interfere with medical decisions? The Culture of Death has had a perverse influence on our medical community and its standards. How did we go from the Hippocratic Oath to considering killing patients as good medicine? This change did not happen overnight. The powers that be have been able to advance their agenda by using, building on, and distorting the existing medical framework.
Outside of issues involving the use of medicine in a discriminatory manner, the medical community has always been faced with difficult life and death decisions. Medical standards, informed consent, and recognition of the responsibilities of all parties involved have historically been applied to help guide medical-decision making. But even existing standards have been skewed toward discrimination and death by replacing medical judgments with value judgments.
In the past, the idea of medical futility has assisted the medical community as a way to determine whether or not to start or continue medical treatment. These principles were originally applied to situations where the person was unable to express their desires regarding their treatment, resulting in starvation / dehydration, or passive euthanasia.
Medical Judgments: Physiological Futility
Physiological futility decisions are based on medical science. They can be determined by looking at objective criteria. If someone arrives at the hospital unconscious but breathing, it would be futile to administer CPR. It wouldn’t accomplish anything. It would be a medically futile procedure. This is an extreme example of physiological futility. If only all medical decisions were so clear cut.
Value Judgments: Qualitative Futility
It is in this context that value judgments come into play. Even if a treatment has a physical benefit, “effective treatment may not be beneficial [because] . . . it is deemed unworthy of pursuit.” Deciding whether a treatment is medically futile is dependent on the subjective goal set.
The problem arises because words like benefit, usefulness, and burdensome are just as ambiguous and open to interpretation as the word futility. Not only are the terms describing qualitative futility ambiguous, but so are the terms used to describe the patient. Descriptions such as “non-personal human life” and “biological life” are just a few examples of the value judgments placed on patients under the guise of medical futility as justification for denying medical treatment.
The negative ramifications of qualitative futility are obvious generally, and specifically for the disabled. Generally speaking the disabled are perceived as having a lower quality of life compared to the rest of the population. Unfortunately, not only have the disabled been denied treatment, (passive euthanasia) but they have been the first to be targeted with assisted-suicide and euthanasia (active euthanasia) simple because they are disabled.
To further promote eugenics as legitimate, the physician must be allowed to unilaterally decide what treatment is futile. It is said that doctors should not be forced to give futile treatments. It is argued that since physicians have the medical training, they have the expertise to decide what treatments are futile. If physiological futility were the only consideration, there would be a strong argument for allowing doctors unilateral discretion, but a medical degree does not uniquely qualify someone to make qualitative judgments.
Allowing doctors to impose their own personal values, values that may be contrary to those of patients when making medical decisions is fraught with danger. Discussion of futility always starts with extreme cases but quickly encompasses starving / dehydrating patients who are not dependent on biotechnology to live, to outright involuntary euthanasia.
The argument to unilaterally deny treatment is not new. If the patient, … is confused, unable to communicate, functionally dependent and bedridden . . . his quality of life would be at the extreme end and [the physician] should be permitted to withhold artificial nutrition and hydration on the grounds of medical futility without obtaining the permission of the patient or appointed surrogate. (emphasis added)
This quality of life argument has only grown stronger. Alleviation of suffering is considered the supreme good in our society, so any policy that promotes this good is acceptable.
Advocates of unilateral physician authority say to have it any other way would compromise the ethics of the medical profession, but again, this ignores the underlying value judgment. A doctor’s personal bias may come into play, and decisions may be based on other, non-medical factors, such as a patient’s age, disability, sex, race, or socio-economic status.
Dispensing with the consent of the patient also presents the medical professional with a serious ethical problem. Consent is supposed to, . . . (1) promote respect for human dignity (2) promote professional self-scrutiny; (3) foster shared decision making; (4) eliminate deceit and coercion;. . .To dispense with consent at anytime is to say these values and purposes need and should not have anything to do with medical decisions affecting individual lives.
True informed consent tempers futility decisions. Instead of being an advocate for the patient, allowing doctors to make unilateral decisions would diminish trust between doctors and patients. Disregarding the input of the patient would seriously compromise the doctor-patient relationship. Putting so much authority in the hands of doctors merely perpetuates the old paternalism that has been historically systemic in the medical profession.
Once a doctor-patient relationship exists, the law recognizes that a physician has a fiduciary duty to the patient. The law clearly spells out the rights and responsibilities of the physician and patient. Standards that are completely undermined by eugenics.
Where a physician is employed to attend to a patient, the relationship of physician and patient continues until the end by the consent of the parties. . . The physician must exercise reasonable and ordinary care and skill in determining when to discontinue treatment; and where he terminates his employment without due notice to his patient and without affording the latter the opportunity to secure other medical attendance, he is liable for damages caused.
The law further clarifies,
It is the well settled rule that one who engages a physician to treat his case impliedly engages him to treat throughout the illness, or until his services are dispensed with. In other words, the relationship of physician and patient once initiated, continues until it is ended by the consent of the parties, or until that latter’s services are no longer needed. However, the relationship of the physician and patient may be terminated the physician’s withdrawal from the case. It is well recognized that the physician has a right to withdrawal from the case, but only after giving the patient reasonable notice as to enable him to secure other medical attendance and such withdrawal does not constitute abandonment.
The law recognizes that a doctor cannot be forced to administer care indefinitely, or provide care that may be deemed futile by a doctor. But it also recognizes the fact that doctors cannot abandon their patients either.
As we have discussed, in the context of the futility debate it is dangerous to allow unilateral decision making on the part of the doctor. But the fact that allowing doctors to make unilateral value judgments is already being debated within the medical community shows there is already a framework present to allow eugenic / value judgments disguised as medical decisions. Unilateral denial of care is not just a hypothetical fear, it is a tragic reality.
Ultimately, the decision should be the result of informed consent on the part of the patient. It is accepted practice for doctors to give and patients expect to be informed of their medical options. Allowing doctors to over-ride the wishes of their patients would defeat the purpose, and need for, informed consent. When a decision about treatment needs to be made, the optimum situation is to have the physician and patient make the decision together, which is true most of the time. Considering the value judgments that need to be made, and the importance of the decision, the patient whose life is on the line cannot have their values cancelled out or have their consent usurped.
Regardless of the medical situation, our society still recognizes that doctors are working in the best interest of their patients, keeping them informed of their options. Assisted suicide and euthanasia sabotage the medical profession and its standards making doctors and patients adversaries.
The dangers that arise when we consider the societal impact of an individual’s health should be obvious. Regardless of any altruistic intentions, the utilitarian ethic is always applied. Whenever a third-party is given decision making power there is the very real risk that decisions are not being made for the best interest of the patient. Some argue that since allocation of health care resources impacts society as a whole, health care policy should be made with the needs of society, not the individual, in mind; but this argument could be made about any resource. In the early 20th century the eugenics movement relied heavily on social arguments to advance its cause, resulting in the forced sterilization of over 60,000 Americans. The above arguments are illustrative of the values and economic conflicts in society that detrimentally impact vulnerable populations. A disproportionate amount of resources are spent on certain populations, most of which is labor intensive and not extraordinary care, which makes complete sense. More health care is allocated to the elderly, disabled, and sick in the same way children disproportionately benefit from educational resources.
Modern Eugenics: Assisted-Suicide
Physician assisted-suicide is a perfect example of how the medical field is being used by the Culture of Death to promote its agenda, completely undermining the standards and responsibilities we’ve come to expect from the medical community. Suicide is justified because a doctor is involved. A values judgment is presented as a medical one, with deadly consequences. In contrast to the early eugenics movement, modern-day death peddlers are better at marketing their agenda.
Assisted-suicide was presented as a way to give terminally ill people who were going to die imminently, control over how they died; to end their suffering. Allegedly, safeguards were put in place to ensure that the suicides were voluntary, which makes it acceptable somehow. The abuses of assisted suicide have been widely documented. Of course, assisted-suicide has been expanded. Belgium and the Netherlands both allow assisted-suicide for psychiatric illnesses. The consent requirement is also being cast aside. Again in Belgium and the Netherlands, both adults and children have been euthanized without their consent.
In the Netherlands, disabled infants who cannot consent to be killed are routinely and legally euthanized under a set of standards called the “Groningen Protocol.” In Belgium, where euthanasia is also legal, adults are routinely killed without consent, accounting for over 30 percent of those euthanized, according to one study. Doctor Peter Saunders of England’s Care Not Killing campaign warned, “Once you have legalized voluntary euthanasia, involuntary euthanasia will inevitably follow.”
California, where assisted-suicide has only been legal since June 2016 allows family members to “encourage” their sick loved ones to avail themselves of legalized assisted suicide. As further evidence of the perversion assisted suicide has had on the medical profession, there is the case of Roger Foley in Canada. Mr. Foley is a 42 year-old man who suffers from a degenerative brain condition which makes him dependent on others for his care. His requests for improved assisted- living care was met with an offer of assisted suicide.
“My condition is grievous and irremediable, but the solution is assisted life with self-directed funding,”. . . “Despite these physical challenges and deteriorations, I’ve managed to keep a positive attitude.”. . . . In order to receive appropriate assisted-living care he filed suit against Canada’s medically assisted dying policies because they are, “dangerous as they can be used to facilitate the humiliation and abuse of persons with disabilities in times of desperation without any steps being taken by medical staff or the defendants to help these vulnerable disabled patients relieve their suffering or assist such patients with life.”
The abuses, coercion, and expansion of assisted suicide demonstrates that it has nothing to do with personal autonomy, rather an attempt to improve society by promoting the eradication of certain groups deemed undesirable and burdensome by society.
I think many of us, myself included, forget that the Culture of Death did not begin in 1973 with Roe v. Wade; or we like to think that atrocities committed during World War II were aberrations. In reality, Christian teachings about human dignity are not always evident or adopted by secular society. Historically, the world seems to revert to evil every chance it gets.
The good news is that guided by our faith, like Cassandra we can accurately predict and work against the outcome of evil. The phrase, “Culture of Life” has been used ad nauseum, but we truly are called to build a Culture of Life; because the alternative is unacceptable.
 Greek Myths & Greek Mythology, http://www.greekmyths-greekmythology.com/the-myth-of-cassandra/.
 Debra Kelly, "10 Horrifying Facts About American Eugenics," February 5, 2014, https://listverse.com/2014/02/05/10-things-youve-never-heard-about-american-eugenics/.
 Teryn Bouche and Laura Rivard, "America’s Hidden History: The Eugenics Movement," September 18, 2014, https://www.nature.com/scitable/forums/genetics-generation/america-s-hidden-history-the-eugenics-movement-123919444.
 Debra Kelly, "10 Horrifying Facts About American Eugenics," February 5, 2014, https://listverse.com/2014/02/05/10-things-youve-never-heard-about-american-eugenics/.
 Teryn Bouche and Laura Rivard, "America’s Hidden History: The Eugenics Movement," September 18, 2014, https://www.nature.com/scitable/forums/genetics-generation/america-s-hidden-history-the-eugenics-movement-123919444; The Black Stork, http://www.deathreference.com/Bl-Ce/Black-Stork.html; “When Does the Right to Die Become the Duty to Die?" https://www.nationalreview.com/2018/02/euthanasia-netherlands-mentally-ill-woman-killed/.
 Victoria Bringnell, "When America Believed in Eugenics," December, 10 2018 https://www.newstatesman.com/society/2010/12/disabled-america-immigration.
 Thomas M. Messner, J.D., "Indiana Seeks Supreme Court Review of in Down Syndrome Abortion Case," October. 25, 2018, https://lozierinstitute.org/indiana-seeks-supreme-court-review-in-down-syndrome-abortion-case/.
 “I will not give a lethal drug to anyone if I am asked, nor shall I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.” Greek Medicine, https://www.nlm.nih.gov/hmd/greek/greek_oath.html.
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 Loretta Kopeland, "Conceptual and Moral Disputes about Futile and Useful Treatments," 20 J. of Med. and Phil. 109 (1995).
 W.D.M., Annotation, Liability of Physician or Surgeon Who Abandons Case, 56 A.L.R. 819, 818 (1928).
 C.T. Drechsler, Annotation, Liability of Physician Who Abandons Case, 57 A.R.L. 2d. 432 (1958).
 “Terri Schiavo’s Story,” https://terrischiavo.org/story/; “What are Charlie’s Law and Alfie’s Law,” ttps://www.thesun.co.uk/news/6156576/alfies-law-charlies-law-rights-parents-care-alfie-evans-charlie-gard/.
 Debra Kelly, "10 Horrifying Facts About American Eugenics," February 5, 2014
 J. Pereira, MBChB MSc, "Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls," April 18, 2011 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3070710/.
 Maria Cheng, “’What could help me to die?’ Doctors clash over euthanasia,” https://apnews.com/4b6877fab2e849269c659a5854867a7b
 Joseph Brean, "Denied 'assisted life,' chronically-ill Ontario man is offered death instead: lawsuit," March 16, 2018, https://nationalpost.com/news/canada/denied-assisted-life-by-hospital-ontario-man-is-offered-death-instead-lawsuit.