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Chukat-Physician Assisted Suicide - June 25, 2004
The most controversial issue facing the Central Conference of American Rabbis this year was a proposed resolution against physician assisted suicide. All around this country, doctors frequently help patients suffering from terminal illnesses end their lives, even outside of Oregon, the only state to have a statute legalizing a form of this practice. So why should the CCAR make a public statement against it lest it limit the freedoms currently in place which allow some to seek this as a compassionate alternative to the unimaginable suffering that accompanies terminal illness? In other words, better while no one is asking, that we should keep quiet.
Moreover, the CCAR, and by extension Reform Jews, in taking the position of the resolution, which implies a religiously based limitation on a person’s ability to choose what he can do with his body, we might inadvertently be politically aligning ourselves with conservative, fundamentalist voices who speak out against this as well. For all these reasons, despite a clear recommendation by CCAR committee opposing physician assisted suicide after six years of studying the issue, the Conference chose to table the resolution altogether and continue our policy of silence on matter.
In order to understand the resolution before the Conference, it is helpful separate between physician assisted suicide and the concept of “double effect.” Physician assisted suicide, describes the practice of a doctor prescribing a medication, like pentobarbital, to be self-administered by a competent and willing terminally ill patient who wishes to end his life, prior to becoming debilitated by his illness.
In June of 1997, while the Supreme Court upheld the constitutional ability of states to ban doctor assisted suicide, it also identified and validated “double-effect,” which is administering palliative measures that might hasten death, when the intent is pain relief. Giving morphine in doses that may cause death essentially by asphyxiation in the end stages of an illness is an example of the concept of double effect and according the our highest court is not prohibited even when physician assisted suicide is. It is important in this debate to, as the Supreme Court, separate those two practices, because, one can be against doctor assisted suicide for a patient who is capable and competent and consider pain management even at the risk of death to be allowable and even ethically necessary. On the other hand, physician assisted suicide as a matter of public policy might be troubling, it may not be sanctioned religiously, by our tradition, but, as Reform Jews, we may still want to preserve the right to choose it as a matter of individual conscience.
The trouble with the fact that the leaders of our movement chose to table the resolution altogether is that we missed the opportunity to help Reform Jews tease out the complicated and competing issues to arrive at an authentic and religiously liberal Jewish stance on this matter. I don’t believe, with the majority of our colleagues that silence gives the most guidance. Jews want to know that their community has standards and hopes for itself. And that our Reform tradition wants to address the troubling trends arising out of the advances of modern medicine and their increasing cost and scarcity and the reality that oftentimes, death from illness today is preceded by extraordinary pain and suffering. Think about it: just 100 years ago, a person’s life expectancy was only 45. In the year 2000, it became 76 years. Due to our increased knowledge about cleanliness an emphasis on preventative care, our ability to use antibiotics and new medical technologies we live longer and live better than any generation before us.
Our reality allows us to ask different questions about the end of life, because for the first time we have a measure of control over it. We get to ask the question as a country with limited resources to pursue costly and ongoing treatments, how do we decide who gets to live and who die? And we have to ask if states begin to sanction physician assisted suicide as public policy how do we prevent insurance companies, doctors and family members from coercing patients to resort to the least costly of all treatment measures, the option for death? The religious questions which arise out of these new circumstances include who is in charge of determining when someone can die- is that to be left to the individual, his family, a doctor, or God? And does anyone, including a dying patient, have the right to terminate life, when she deems the quality of that life unsatisfactory? Or is life itself inherently valuable? Each faith group comes to its own answers to these ultimate questions.
Judaism is clear about its position regarding the sacredness of life. In the words of J. David Bleich, a professor of law at Yeshiva University, “Judaism is unrivaled by any religious or ethical tradition in the value that it places upon preservation of life- not merely upon saving a life, but also upon prolongation of life. Questions pertaining to assessment of the quality of life simply do not arise.” He continues that “halachah, the body of Jewish law, is unequivocal in applying the exhortation [found in the book of Leviticus (`19:16), “Nor shall you stand idly by the blood of your fellow”] to cases of even brief prolongation of life, even the life of an imbecile or of an incurable insane person.” The implication of this statement is that traditional Judaism does not recognize a fundamental right of autonomy with regard to either a person’s life or body. Therefore, a Jew, in that context, does not have the right to refuse medical treatment. Instead Jewish duty is insistent on prolonging life as much as possible.
A post-medieval scholar Rabbi David ibn Zimra, encapsulated the concept in his oft-quoted dictum, “The life of man is not his property, but the property of the Holy One, blessed be He.” From this idea, Judaism might have developed a phobia about medical treatment altogether, given that it might be tampering with the workings of the Divine. But coupled with the Toraitic command, “Do not stand idly by the blood of your fellow,” the rabbis concluded that God has granted humanity license to be an active partner in the guardianship of individual human destiny. In the same way that a farmer must weed, fertilize and plow in order that his crops grow and not die, our tradition likens a doctor to a tiller of the soil, and medication and care as the fertilizers that keep us alive. Therefore, not only must a patient seek out treatment, a doctor must give it. In fact, according to the Shulchan Aruch, if a physician withholds his services, he is considered to have shed blood. (Yoreh De’ah 336:1)
There are exceptions to these rules that allow Jews to refuse treatment. For example, in the case of an experimental therapy, a Jew cannot be compelled on religious grounds to accept a treatment protocol with untested results because it might, in fact, be life threatening. This exception would also apply to someone like a diabetic who develops heart difficulties. That patient would not be obligated under Jewish law to undergo surgery, as that might hinder the prolongation of life. There is gray area when this criteria are applied to patients who are terminally ill. Must a person in such a case continue chemotherapy in hopes of prolonging life, and even more to the point, must that person remain alive, and in pain if all that fails? The Talmud hints that painful and drawn out deaths are undesirable. In the case concerning Judah HaNasi, the Talmud records that when he fell ill all of his disciples began praying for his recovery. His handmaid, too, joined in the prayer, saying, the angels desired Rabbi to join them and the rabbis desired Rabbi to remain with them.
But she prayed that God’s will would be that the rabbis overpower the angels. However, when she saw how much the Rabbi was suffering, how painful it was for him to remove and put on his tefillin each time he had to use the privy she began to pray that the angels might overpower the rabbis. In the meantime, the rabbis incessantly continued their prayers for heavenly mercy for his recovery. And so the handmaid, went up to the roof of the Rabbi’s house and threw an urn to the ground. And in the split second that the noise distracted the rabbis from their praying the soul of Judah Hanasi departed to its eternal rest. This story certainly highlights that a strain of our tradition was sympathetic to ending prolonged pain and suffering. Interpreted further, if praying was considered the treatment in Judah Hanasi’s case, then removal of that treatment, we learn, was more desirable than lengthening his life.
As Reform Jews, we have two luxuries that traditional Jews don’t. First, we have the luxury, in the end, to opt not to follow the halacha in our Jewish decision making. And second, we also have the luxury to ask different questions to help us make those decisions. In this case, that means not only consulting the rabbis’ authority and wisdom on this issue, but also hearing what secular ethicists have to say. In fact, a group of bio-ethicists submitted a brief to the Supreme Court asking a compelling question that is crucial, in my opinion, in the matter of doctor assisted suicide. They acknowledge the long tradition of prohibition against suicide espoused by the very founders of the this country. But they ask if such laws derive from a time when death was rarely preceded by long period of physiologically degenerative suffering.
Pointing out that the cases before the Supreme Court do involve degenerative death, a creature of modern times and modern medicine, they argue this issue should be decided on a historically clean slate. I would venture to say this same kind of question might be asked of our tradition. We can acknowledge the long rabbinic tradition that prolongation of life is the highest value. But we also must ask, was the world in which the rabbis’ lived so radically different from our own that they could not have foreseen the kind of long term suffering we are witness to today? Many Jewish scholars agree the answer to this question is yes. Rabbinic and medieval Judaism did develop the useful concept of the goses, a person whose death was deemed imminent, within 3 days. Removing impediments to death from a goses became permissible according to halachah. Modern medical technology, scholars have said, has forced us to redefine the concept of immanence.
Dr Elliot Dorff, of the University of Judaism notes, “Because we can maintain people on life support systems and because we still cannot accurately predict the moment of a person’s death, the only way to use the category goses at all in these matters is to define a goses not in terms of the remaining hours of his or her life, but rather as anyone who has been adjudged by the attending physician to have an irreversible terminal illness. (Conservative Judaism, vol 43, no 3 Spring 1991) Still and again, regarding physician assisted suicide we are pushed to ask an even more difficult question- is the competent, able person who takes home a prescription from his or her doctor, at the moment of diagnosis and or prior to succumbing from illness a goses? But more to the point, can one find Jewish validation for doing more than removing impediments to death, but actively effecting it?
The truth of the matter is that most people would not choose the kind of physician assisted suicide we see entering the legal system today. In the 6th year of the Death with Dignity Act, the State of Oregon reports that of some 13,000 illness-related deaths less than 50 were physician assisted suicides. The battlegrounds for this debate arises not because it is a choice for which many people insist their inalienable rights as individuals, but rather from the difficult questions of modern heath care, from the societal pressure to define whose life might be expendable and from our personal fears of the dying process. And it is on these grounds that I find the public policy of physician assisted suicide an unacceptable Jewish answer. Our tradition unwaveringly upholds the ultimate sanctity of life. Which means that if someone is in pain a Jew must find ways to relieve his suffering. If one is worried they will be a burden to their community the Jew must begin to teach him that there are many ways to serve- that we define our lives by more than what we are producing and no one is expendable, just because they are sick. And if a person is worried he will die alone, with only tubes, machines and strangers to surround him then the Jew must assure him he will never be alone. Physician assisted suicide is the poor answer to these concerns. Jews can do so much better.
In this week’s Torah portion, we learn of the death of Miriam and then of the death of Aaron. The Midrash, addresses how Moses must have felt watching his siblings die, certainly wondering at the same moment about his own last hours. The rabbis imagine Moses saying to Aaron, “Just think, Aaron, my brother, when Miriam died, you and I attended her. Now that you are about to die, I and Eliezer are attending you. But I - when I die, who will attend me?” The Holy of One blessing said to Moses, “As you live, I will attend you.” (Yalkut Chukkat 764)
The Jew, in imitating God, must attend to those who are ill, and reassure those who are dying of our presence. Part of attending them is reminding them of their worth and dignity when they lose all control over the end of life. Medicine and public policy will never be competent or adequate at defining or managing the meaning of life and death. Only we can do that. And the call for physician assisted suicide is a reminder to us we must do it better.
