Even As “Assisted Suicide” Looms . . . Ethics Expert Tells How Roe V. Wade Might Be Reversed

By DEXTER DUGGAN

PHOENIX — “If you want to see what a Roe v. Wade reversal looks like, read Washington v. Glucksberg,” a national expert on medical ethics and the law told a Catholic physicians’ meeting here while he also warned against an accelerating effort to legalize “assisted suicide” in the states.
With speculation rising about the U.S. Supreme Court possibly someday reversing its creation of a national mandate for permissive abortion in 1973, attorney Nikolas Nikas told the Catholic Physicians Guild of Phoenix that the High Court’s own opinion in the 1997 Glucksberg “assisted suicide” case provides the legal reasoning for this potential reversal.
Glucksberg, a case from Washington State that asserted a liberty interest in committing suicide through the 14th Amendment to the U.S. Constitution, had been upheld by the liberal Ninth Circuit Court of Appeals, but was reversed unanimously by the U.S. Supreme Court in June 1997.
Nikas, president, CEO, and general counsel of the Bioethics Defense Fund (bdfund.org), a public-interest law firm that works throughout the U.S. and abroad, spoke during an information-packed three-hour afternoon session of the local physicians in a meeting room at the headquarters of the Phoenix Catholic Diocese on February 11.
Many Catholics, like other people, are confused about end-of-life issues, Nikas said. “What we’re trying to do at least is get people to form their consciences before a crisis….The sad thing is most Catholics have so little formation.”
He added later, “The average Catholic gets their formation from TV and movies and music.”
It’s time to start preparing now for how to respond if a state initiative were to make it to a ballot asking voters to legalize “assisted suicide,” he said, instead of a state’s pro-lifers scrambling to devise a strategy with only a few months to go.
In Glucksberg, the Supreme Court said there was no federal constitutional right to assisted suicide but was a matter to be decided by the states, Nikas said, describing this as a contradiction of the court’s own reasoning earlier in mandating nationwide abortion.
Glucksberg was “an anti-Roe decision….We were expecting (national legalization of) assisted suicide, and we didn’t get it,” he said.
Some legal observers in 1997 suggested that the High Court had come under such withering opposition to Roe that it learned its lesson as of that time and didn’t want to plunge into discovering yet another alleged national right to terminate innocent lives.
Nikas was joined at the Phoenix physicians’ meeting by his attorney colleague Dorinda Bordlee, Bioethics Defense Fund vice president and senior counsel.
Bordlee told of encountering one of her best friends who still was suffering the effects of an abortion ten years earlier, which was harming her marriage and had nearly killed her when it was performed.
When people say they favor assisted suicide, Nikas told the meeting, many are “confused” in a culture where every idea is reduced to “30-second sound bites.”
They actually mean they don’t favor “extraordinary, burdensome” treatment that they saw Grandma suffer through, but that the Catholic Church doesn’t require, he said.
Direct abortion or cloning is always immoral, the audience was told, but end-of-life issues require careful application based on the circumstances, as long as direct killing isn’t intended.
“The statement ‘the right to die’ is ridiculous” because everyone is going to die, Nikas said, asking if someone claims to have a right not to die.
Pope St. John Paul II had pointed out that to forgo extraordinary or disproportionate means of treatment isn’t the equivalent of suicide or euthanasia, Nikas said. That Pope also cited his Predecessor Pope Pius XII saying it’s licit to relieve pain even when this may decrease consciousness and cause a shortening of life.
“It all depends on intent,” Bordlee, Nikas’ colleague, said.
A 95-year-old woman on a respirator after congestive heart failure has different issues about maintaining her life than, for instance, Terri Schiavo, Nikas said.
Schiavo was a disabled Florida woman who wasn’t near death but succumbed in 2005 at age 41 after being unjustly deprived of necessary nutrition and hydration.
The Bioethics Defense Fund uses legal, scientific, medical, and moral arguments for a culture of life, grounded in natural law and the compatibility of faith and reason, Nikas said.
Supreme Court Justice Oliver Wendell Holmes started dividing law from morality, Nikas said, and declared, “If my fellow citizens want to go to Hell, I will help them. It’s my job.”
Holmes was considered a progressive and served on the High Court for three decades in the early 20th century.
Illustrating where law divorced from morality can lead, Nikas showed a slide of the entrance to the German National Socialists’ Auschwitz extermination camp titled, “The gates of hell.”
The Nuremberg War Crimes Trials after World War II, he said, held to account Nazi officials including judges, doctors, lawyers, and military officers who said they were being tried unfairly retroactively, even though they followed Germany’s laws of the time.
But law just can’t be anything enacted, Nikas said, illustrating that anyone knows you can’t simply grab a Jewish girl, gas her to death, then burn her body.
Later during the presentation, Nikas said that anyone already can commit “assisted suicide,” but its proponents want society’s legal approval for this. “These people want society to tell them it’s okay.”
People seek “physician-assisted suicide” because of four fears, all of which can be addressed, Nikas said: Fear of dying in pain, for which there is palliative care; fear of dying alone, for which there is hospice care or Christians showing concern for others; fear of dying broke, alleviated by policies to protect the elderly, and fear of losing control, which is something people didn’t have anyway.

The Root

James Asher, D.O., outgoing president of the Catholic Physicians Guild here, began the meeting by saying assisted suicide and euthanasia don’t exist by themselves, but are part of the culture of death.
“Artificial birth control is the root of this whole thing,” Asher said, although many people have trouble seeing this, and he once had that trouble himself.
Before the meeting, eucharistic adoration and Confession were offered in the chapel of the diocesan headquarters, followed by an 11 a.m. Mass.
A few days before the meeting, Asher emailed The Wanderer to note how the issue of artificial contraception affected the national Catholic Medical Association (CMA) after Pope Paul VI released the encyclical Humanae Vitae to prohibit it definitively.
The CMA is made up of 50 component guilds, Asher said, of which the Phoenix group is one. “The controversy surrounding Humanae Vitae in 1968 swirled with particular violence around what was once a large, vibrant organization, after the leadership decided they would follow the Magisterium and many members bailed,” Asher wrote.
“. . . To my mind, the issue is contraception. I believe most docs see their Catholicism as one thing, their practice another, and these two entities need not interfere with each other,” he said. “So membership languishes. Currently we have some 2,000-plus members (not all physicians; all health-care givers are welcome to join, so are lay people who want to support the organization).
“And of course virtually no docs trained in the last 40 to 50 years or so have had any training in bioethics (other than what they may have gotten on their own), except, of course, secular, so-called bioethics, which can be summarized as, if it’s legal, it’s ethical,” Asher said.