Paving the Way to Euthanasia in MA – Part 1

As noted in a previous post, promoters of doctor-assisted suicide have changed the language in the 2023 bill to remove anything that may have provided some kind of conscience protection. Another disturbing trend is changed language that seemingly opens the door to euthanasia. The threat is particularly serious when considering the “concurring” opinion in the recent Supreme Judicial Court decision penned by Justice Elspeth Cypher.

Justice Cypher agrees that the state constitution does not protect doctors from criminal prosecution for manslaughter should they provide a medication by which patients can kill themselves. However, she says:

“I write separately, however, to probe the court’s position that, in every circumstance, the Commonwealth’s interests outweigh those of terminally ill patients seeking physician assisted suicide.”

The two cases she draws upon are Saikewicz (1977) and Brophy (1986). These are two key Massachusetts cases that bear upon possible assisted suicide laws upon. Cypher believes:

“I think that Saikewicz and Brophy were decided correctly…I seek to highlight the degree to which our precedent has arced vitally close toward encompassing a right to physician-assisted suicide.”

In April of 1976, Joseph Saikewicz was a 67-year-old ward of the state “with an I.Q. of ten and a mental age of approximately two years and eight months,” according to case documents. He was otherwise healthy until he developed acute myeloid leukemia (AML), an aggressive and fatal cancer that, even today, has few treatment options. Treatment at the time consisted of intravenous chemotherapy, with its drastic associated side effects. This had maybe a 30% chance of putting the cancer into remission only for it to return within months after, when there would be no other treatment options. The court, I think rightfully, concluded that treatment could be refused by his court-appointed guardian. He died peacefully in September of pneumonia.

The Saikewicz decision, however, relied heavily on the concept of substituted judgement. The concept was applied in the New Jersey Karen Quinlan case. Basically, if Karen, or anyone, felt a treatment should be discontinued when they were competent, then a “substituted judgement” by a guardian or court should reflect the same decision. The Massachusetts court decided that, even though Joseph Saikewicz was non-verbal his entire life, the guardian and the court could base a decision on the patient’s interests and preferences.

(By the way, the Saikewicz decision relies heavily on the “constitutional right of privacy found in the penumbra of specific guarantees of the Bill of Rights” per Griswold v. Connecticut.)

Paul Brophy, a firefighter/EMT, suffered a ruptured brain aneurysm in March 1983 that left him in a persistent vegetative state. He resided at Mt. Sinai Hospital. His wife, Patricia, approved of a temporary transfer to an acute hospital to have a feeding tube placed; eighteen months later, she wanted it removed. The clinical staff at Mt. Sinai Hospital refused. During the proceedings, Patricia provided “ample evidence which no one disputes” that Paul would have refused the feeding tube and let himself die. The court-appointed guardian recommended the feeding tube remain, that a Do Not Resuscitate order be placed in the chart, and that a nonaggressive treatment plan be made should an infection occur. His physician, Dr. Koncz, thought that if he removed the feeding tube, “[H]e would wilfully be causing Brophy’s death.” The court, I think wrongfully, ordered that the feeding tube be removed. Patricia transferred Paul to another facility willing to remove the tube removed and have him die of dehydration.

The Brophy decision also relied on the right to refuse burdensome treatment and substituted judgement. In Saikewicz, the court saw that his condition would “soon cause death regardless of any medical treatment,” so treatment was a matter of not “whether, but when, for how long, and at what cost to the individual that life may be briefly extended.” In Brophy, the court saw him as no more than a “corpora existence.” The decision states:

“In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve. The law recognizes the individual’s right to preserve his humanity, even if to preserve his humanity means to allow the natural processes of a disease or affliction to bring about a death with dignity.”

It adopted the very language of the “right to die” movement. It claims to make no judgement on Paul Brophy’s quality of life; instead, they illogically conclude that saving life sometimes involves ending it:

“The duty of the State to preserve life must encompass a recognition of an individual’s right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity. It is antithetical to our scheme of ordered liberty and to our respect for the autonomy of the individual for the State to make decisions regarding the individual’s quality of life. It is for the patient to decide such issues.”

Justice Kennedy must have been reading Brophy when he wrote his Sweet Mystery of Life passage in Planned Parenthood v Casey (1997):

“At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and of the mystery of human life.”

Part 2 will discuss what Justice Cypher concluded from these rulings.

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