Supreme Court of the United States

Recognition of a constitutional right to assisted suicide would also cause a profound change in the way in which life and relation- ships between people are considered, as well as further significant moral decline. The family is the sanctuary of life. Physician- assisted death is conduct once unanimously considered criminal and rejected by the common moral sense as mala in se. Were it to become socially acceptable and lawful, it would threaten the already fragile equilibrium of an individualþs personal and family life. The judgment of the Second Circuit must be reversed. There is no right, under equal protection, to aid-in-dying, by a physician or anyone else.

I. EQUAL PROTECTION ANALYSIS DOES NOT APPLY IN THIS CASE.

In this way, they differ very little from Dr. Hermann Pfannm�ller, the German physician who complained at his trial for murder after World War II, "I am a doctor confronted with a lawyer and our points of view are completely divergent." M. Burleigh, Death and Deliverance: "Euthanasia" in Germany 1900-45 273 (1994). Assisted suicide advocates today echo Dr. Karl Brandt as well, who was instrumental in Germany's implementation of medicalized death for hundreds of thousands of people and who had difficulty understanding how law could intrude upon what he felt was medicine's exclusive domain or how the "merciful release from suffering" could be deemed murder.

Do you think that it was a pleasure for me to receive the order to permit euthanasia? For fifteen years I had toiled at the sickbed and every patient was to me like a brother. I worried about every sick child as if it had been my own. . . . I fully realize the problem; it is as old as mankind, but it is not a crime against man nor humanity. It is pity for the incurable, literally. Here I cannot believe like a clergyman or think as a jurist. I am a doctor and I see the law of nature as being the law of reason. In my heart there is a love of mankind, and so it is in my conscience. That is why I am a doctor! . . . Death can mean deliver- ance. Death is life -- just as much as birth. It was never meant to be murder.

A. Physicians Seeking to Cause Death of Patients by Affirmative Means are not Similarly Situated to those Who Wish to Cause Death by Withholding Treatment.

Physicians and the terminally ill are no more a law unto themselves than others are. Yet because of such a claim, it is crucial to fully understand the interests at issue here. Respondent Dr. Timothy Quill admits in his recent book that, "'Physician-assisted death' includes both physician-assisted suicide and voluntary active euthanasia. In emphasizes the physician's role as an assistant to an act initiated by the patient. Doctors 'killing' patients is technically correct, but it . . . brings out uneasy visions." T. Quill, Death and Dignity 139 (1993).

B. Fundamental Rights of Individuals do not Depend upon Their Medical, Mental, or Physical Condition.

Similarly, the idea advanced by aid-in-dying proponents and the courts below that societyþs interest in preserving life is diminished for the sick or disabled, Quill, 80 F.3d at 729-30 ("the stateþs interest lessens as the potential for life diminishes"), is abhorrent to our law. It is neither a defense nor mitigating factor in a murder case that the victim is either terminal or disabled. It has long been a principle of the criminal law that, if at the time of defendantþs conduct the victim is living, it matters not that he was dying, as from a mortal wound inflicted by a third person. Defendant is guilty of homicide if he merely accelerates the victimþs death. 2 Wharton's Criminal Law 143, § 117 (15th ed. 1994)(citations omitted). It is homicide "to kill one already dying, to accelerate oneþs death, to kill one condemned to be executed the next day, or to kill a 'worthless' victim. LaFave and Scott, Criminal Law 533, ch. 7 § 67 (1972)(citations omitted). Society has equal interests in human life whether strong or weak. Healthy persons do not have a right to kill themselves and the terminally ill enjoy equal rights as they do under the Constitution, no more, no less. Just as possession of essential rights is neither dependent nor contingent upon being physically fit, neither are they dependent upon other irrational factors as medical condition.

C. A Right to Assisted Suicide Could not, Under Equal Protection, be Limited to Only Physicians and Terminally Ill, if the Lower Court is Affirmed.

If any equal protection or substantive due process right to kill one's self did exist, it could not be contingent upon or limited to being terminally ill, nor could a right to assistance be confined only to physicians. If such rights did exist, it would be wholly arbitrary to limit them to these two groups. No rational basis would exist for limiting this pretended right to the sick and weary or for limiting assistance to the costly medically-educated class. This exalted "freedom" could be accomplished more easily and cheaper by any helper off the street smashing the individual's skull with a common brick.

If the Second Circuit is affirmed, moreover, with the contemporary abortion/eugenic mentality, parents in the future will, no doubt, assert this right to choose assisted suicide on behalf of their handicapped children. There would be no rational basis to forbid such substituted decision-making. Guardians of incompetent adults would similarly make this "fundamental" choice for their wards, since they are unable to do so themselves. See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). Thus will this conspiracy against life called "assisted suicide" become a weapon in the war of the powerful against the weak. Thus will history repeat itself, as mankind seeks, once again, to destroy itself. 2. The Physicians/Respondents have Usurped the Rights of Patients in this Case, Proving that Substituted Decision-Making and Involuntary Killing are Certain to Result if the Lower Court is Affirmed.

These logical extensions of any "right" to assisted-suicide are guaranteed to occur. That these physician-Respondents are seizing this opportunity to make these claims "on behalf of" terminally ill persons, and that the judiciary would even consider granting them standing, proves the intrinsic and essential involuntary and usurpative nature of all assisted-death.

These doctors have a clear conflict of interest and an agenda which is diametrically opposed to the interests of patients in asserting that the persons they wish to help kill have a right to be killed. In this case, physicians deny patients the fundamental right and autonomy to speak for themselves. That they purport to represent the rights of terminally ill persons, including those who are members of this amicus is absolutely involuntary and nonconsentual; that they even substitute themselves here for patients proves the point. Since no patients are currently included as respondents, these doctors proceed on their own arbitrary authority.

To be sure, the plaintiffs in Lee v. Oregon, 891 F.Supp. 1429 (D.Ore. 1995) (Oregon's legalizing physician aid-in-dying violates equal protection interests of terminally ill), are actualpatients, not self-interested surrogate/physicians, who take the direct opposite view as the physicians here and they would not consent to their purporting to represent them. Furthermore, "it is worth remembering that the engine which drove the early moral transformation of German medicine was not the ideology of racial discrimination, but medical economics." P. Derr, Hadamar, Hippocrates, and the Future of Medicine: Reflections on Euthanasia and the History of German Medicine, 4 Issues in Law & Med. 487, 494 (1989).

As with Germany, it is all too clear that if terminally ill persons do not request physician aid-in-dying themselves, then the doctors will request it for them. Patients will receive "assisted" death whenever the doctor or some other substituted decision-maker, such as a family member, deems it appropriate. Respondent Quill even admits in his book that presently, physicians may play a role in hastening the deaths of 6,000 terminally ill patients a day. Quill, Death and Dignity 141 (1993). If the Second Circuit is affirmed, humanity will have learned nothing and the trials after World War II will have been in vain.

II. GOVERNMENT HAS A COMPELLING INTEREST IN PROHIBITING PHYSICIAN-ASSISTED SUICIDE, ESPECIALLY SINCE HISTORY SHOWS THAT IT IS MERELY ANOTHER FORM OF PREMEDITATED MURDER.

A "liberty" of self-extermination, with or without assistance, is nowhere found in our Nation's history or tradition. In considering whether the Constitution requires us to nonetheless embrace such a right, it is our duty to examine the experiences of other nations which have experimented with it. Besides being prudent for policy reasons by the legislative, historical analysis by the judiciary as well would support a finding that aid-in-dying gravely threatens society and that government therefore has a compelling interest in prohibiting it altogether.

While there exists the contemporary Netherlands experience with physician aid-in-dying, history provides another more disturbing example that demands our attention: 1930s and 40s Germany, when the lives of hundreds of thousands of terminally ill, incurably sick, and mentally incompetent patients were terminated, not by sadistic monsters, but by Europe's medical elite. The history of that era is all too similar to the present to be ignored. As Dr. Leo Alexander, chief medical assistant to the prosecution at the Nuremberg trials said shortly before he died, "It is much like Germany in the Twenties and Thirties. The barriers against killing are coming down." Derr, "The Real Brophy Issue," Boston Globe 15 (Nov. 18, 1985). See also, Kong, "Survivors of Holocaust Warn Doctors on Ethics," Boston Globe 96 (Dec. 5, 1989). Then, as now, "questions of medical ethics came to the fore in German medicine just when it began to embrace the ideologies of medical killing . . . Such discussions did not reinforce the old ethic, but rather, as Dr. Robert Salomon has noted, played an important role in its destruction." Derr, 4 Issues in Law & Med. at 492 (Salomon was a medical student in pre-war Germany and assisted in the 1992 English translation of the Hoche and Binding book Permission for Destruction of Lives Not Worth Living).

Protecting the lives of individuals and society as a whole is not only a compelling government interest, it is the very reason for the existence of government. Murder is endemic in any form of physician- assisted suicide and, as experience has shown, poses a grave threat to the vitality of civil society itself. When the world learned of the details of mercy killing in Germany, it placed the doctors on trial at Nuremberg and elsewhere. The words of prosecutor Telford Taylor then apply with even greater force today. He said that prosecution was essential, because

the wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.

Brandt, 1 Nurem.Mil.Trib. at 28. The parties in this case may argue about a right to physician-assisted suicide, but history has already decided the contest.

A. Comparisons to the German Experience with Medicalized Killing Cannot be Avoided in this Case.

Assisted death advocates protest any comparison of the German experience to today. They claim that the horrors of that time will not happen today for the sole reason that the German experience was "so singular and unusual" that there can be "simply no comparison" and because "Hitler and the Nazis" are the ones to blame, not the relativistic view of human life. See e.g., D. Humphry, The Right to Die 31-32 (1986). The Nazi's were involved in murder, they say, while advocates today want only to alleviate suffering and provide merciful release. In attempting to disprove such comparisons, these advocates prove too much. Attempts at distinction invariably succeed only in proving the similarities.

The response given by assisted-suicide advocates to the question of, "Why will it not happen here?" is often nothing more substantial or reassuring than, "It just won't, that's all." Such persons are unable to provide concrete reasons against it happening, usually because they are unable to understand why it happened in the first place. Professor Henry Friedlander typifies this view, admitting that

When all is said and done, we are still unable to grasp the reasons that seemingly normal men and women were able to commit such extraordinary crimes. Neither ideology nor self-interest is a satisfactory explanation for such behavior. Those killers belonged to that time and place. Attempts to replicate their actions in the laboratory must fail, even if experiments seem to show, as did the one by Stanley Milgram, that ordinary men anywhere can commit such crimes.

H. Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution 245 (1995).

Prof. Friedlander's opinion notwithstanding, such crimes do not, unfortunately, belong only to "that time and place." For one thing, it "would be a mistake to call [the German euthanasia experience] a Nazi program. It was not. The program was conceived by physicians and operated by them. They did the killing." H. Gallagher, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich 5 (1990). Furthermore, Derek Humphry's book The Right to Die is full of cases of involuntary killing, which he curiously uses as examples to support such a right. The experience in the Netherlands, as well, is that they have had many of the exact same problems and abuses as Germany had. This should not be surprising. At one point in time, mankind understood that medicalized death is synonymous with murder.

Most alarmingly, Respondent Quill and the Ninth Circuit have determined that currently in this country, 6,000 persons per day are provided physician-assisted death. Quill, Death and Dignity at 141; Compassion in Dying, 79 F.3d at 811 n.56. That is 2.2 million dead per year, not including those killed by Jack Kevorkian. It can't happen here? It already is.

Furthermore, two factors in particular are strikingly common to euthanasia proposals of both eras: the insistence that such killings take place under the auspices of the medical profession such that only doctors have a right to administer death and the misuse of language and terminology to disguise what is truly being proposed. Whether it is termed a "release" that is part of the social duty of the physician, or "aid-in-dying" owed to the dying patient as a matter of that patient's right, the reality of direct medical involvement in killing is the same. This fact alone compels a serious contemplation of the potential lessons learned from the German experience. In the foreword to his book, Die Unfähigkeit zu trauern (1977), Dr. Alexander Mitscherlich, a German psychiatrist who attended the "Medical Case" Nuremberg trial, United States v. Karl Brandt, et al., and prepared an abstract of the evidence and proceedings for the West German Physicians' Chambers, warns that

Today in many minds, there is a reluctance to accept the facts of history. This inclination or attitude is in some way similar to the fantasies which permeated the Third Reich. What happened in the years of the Third Reich remains alive in our subconscious, dangerously so. It will be fatal for us to lose touch with the truth of what happened then. We must struggle to seek out the truth of that era, rather than search for improved defenses to hide us from this truth.

Quoted in Gallagher at 274.

Assisted-suicide advocates simply will not or cannot see the similarities and cannot understand that euthanasia is murder, whether consensual or not. This merely shows how the doctors of today are just as blind to what they are doing as the German doctors of yesterday were. Phys- icians need not embrace National Socialism to become killers, they can do so by adopting they same utilitarian and subjective view of the value of human life as did they.

Justice Robert H. Jackson was Chief of Counsel for the United States at Nuremberg Trial of Major German War Criminals. In the context of the Hadamar experience, he described why medicalized killing in general is mala in se and invariably leads to killing for malicious purposes:

To begin with, [the Hadamar euthanasia program] involved only the incurably sick, insane and mentally deficient patients of the Institution. It was easy to see that they were a substantial burden to society, and life was probably of little comfort to them. It is not difficult to see how, religious scruples apart, a policy of easing such persons out of the world by a completely painless method could appeal to a hard-pressed and unsentimental people. But "euthanasia" taught the art of killing and accustomed those who directed and those who administered the death injections to the taking of human life. Once any scruples and inhibi- tions about killing were overcome and the custom was estab- lished, there followed naturally an indifference as to what lives were taken. Perhaps also those who become involved in any killings are not to be in a good position to decline further requests. If one is convinced that a person should be put out of the way because, from no fault of his own, he has ceased to be a social asset, it is not hard to satisfy the conscience that those who are wilful enemies of the prevailing social order have no better right to exist. And so Hadamar drifted from a hospital to a human slaughter-house.

Forward to The Hadamar Trial (United States v. Alfons Klein, et al.) xiv (E. Kintner, ed. 1949). Assisted suicide advocates may protest the analogy today, but fifty years ago advocates and the world believed the comparison was apt.

Drawing connections between the moral collapse of German medicine and changes in the American medical profession of today is complicated business. Unfortunately, Nuremberg, and the Holocaust have been reduced by many to mere hyperbole. They have become, for them, a political, rhetorical, and ad hominem device with which to attack their opponents. As so, the lessons to be learned from this era lose much of their moral significance because too often they have been viewed in that wrong perspec- tive.

Yet, the extent of medicine's collapse in Germany, the role in that collapse by acceptance of "beneficent" euthanasia and assisted suicide as promoted by Binding, Hoche, their German and international allies (including Americans from 1920-40) together with our own society's mixed motives for considering the licitness of physician assisted death, demand that we overcome such hesitations and engage the issue.

B. Outside Factors Which Influenced the German Medical Profession.

Small but persistent groups have advocated physician-assisted death since before 1870 throughout the world. In the first half of this century, scholars in British and American journals debated the issue, societies were formed, and a bill was introduced in 1936 in the British Parliament to legalize voluntary euthanasia. Y. Kamisar, "Some Non-Religious Views Against Proposed 'Mercy Killing' Legislation," reprinted in Death, Dying, and Euthanasia 406, 451-53 (Horan & Mall eds. 1980); R. Proctor, Racial Hygiene: Medicine Under the Nazis 177 (1988). Polls in both countries showed significant approval. Kamisar at 466 n.207. Nobel Prize winners advocated it and national medical and psychiatric associations considered it. Proctor at 177. Influential persons at the American Psychiatric Association, Harvard, Cornell and elsewhere also argued enthusiastically for "the privilege of death" for those "who wish to die." Proctor at 180; Kamisar at 466 n.207. After news spread of the German experience in the late 1930s, however, support began to drop off significantly. Proctor at 180. Fifty years later, we have suffered a collective memory loss.

C. German Advocacy of Physician Aid-in-Dying.

In interbellum Germany, medical and legal professions were influenced by these proposals that patients in certain categories would benefit from hastened death, adopted them as their own, and put them into practice. In so doing, "the most humane, the most sophisticated, the most scientifically advanced medical community that the world" knew between 1920 and 1940 self-destructed, formulating and promoting ideas of physician- assisted death as hundreds of thousands of incurably sick persons perished. Derr, 4 Issues in Law & Med. at 488; Proctor at 282-83. As demonstrated below, the advocacy of physician-assisted death began two decades before the Final Solution was seriously considered. It is clear then that this

moral collapse of German medicine was not caused by anti-Semitism. Ironically, [Jews] did not deserve the `benefit' of psychiatric euthanasia. [Nor was the collapse] caused by National Socialist pressure. . . . the collapse did not begin with the hacks and quacks. It began at the top, with the heads of departments of academic medicine.

Derr, 4 Issues in Law & Med. at 488-89.

One phrase used for assisted suicide in 1920s and 30s Germany was Sterbehilfe, "dying help." It was advocated by the elite medical profession for the incurably sick and was considered to be Wohltat, a merciful act. Proctor at 178-79. It was presented to the people as beneficial to the recipient of Wohltat as well as society, together with the concept of "doctor knows best."

1. Hoche and Binding Promote Legalization of Merciful and Easy Death Upon Request for Incurable Persons and Those Who are Brain Dead or Severely and Permanently Mentally Ill.

In 1920, two distinguished German professors, Karl Binding and Alfred Hoche, published the influential monograph entitled Die Freigabe der Vernichtung lebensunwerten Leben (Permission for Destruction of Lives not Worth Living) Reprinted in 8 Issues in Law & Med. 221 (1992). It should be noted that this book was published twenty- two years prior to the Wannsee Conference; thirteen years before the "birth of the Third Reich" on January 30, 1933, when the failed artist Hitler was installed as chancellor; five years prior to publication of Mein Kampf (1925); and three years before the Beer Hall Putsch of 1923.

Prof. Binding was one of Germany's leading specialists in constitutional and criminal jurisprudence. Dr. Hoche was a psychiatrist who had lost his only son in World War I and, as late as 1917, was opposed to medical killing. R. Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide 47 (1986). The text was "crucial" and "most important" in creating acceptance within the profession for direct medical killing, and for active participation in the euthanasia program that was to be instituted. F. Wertham, "The Geranium in the Window," (1966), reprinted in Death, Dying & Euthanasia at 610-611; Lifton at 45-58. Ironically, Hoche opposed the euthanasia program, since one his own relatives had been killed. Burleigh at 15. It advocated, as compassionate and ethical, Sterbehilfe for those who requested it in a carefully controlled process, with evaluations by three-person panels.

The jurist Binding queried: "Should permissible taking of life be restricted . . . to an individual's act of suicide as it is in current law, or should it be legally extended to the killing of fellow human beings, and under what conditions?" 8 Issues in Law & Med. at 232. He answered affirmatively for three groups of persons: (1) "those irretrievably lost as a result of illness or injury, who, fully understanding their situation, posses and have somehow expressed their urgent wish for release"; (2) "incurable idiots" from whom "there is no valid consent to be killed" but whose lives are "completely without purpose" and "a fearfully heavy burden both for their families and for society"; and (3), formerly competent patients who, due to trauma, "have become unconscious and who, if they should ever again rouse form their comatose state, would waken to nameless suffering." Id. at 247-49. As to this last group, Binding expressed doubt that "a standard procedure can be created for managing this groups of killings. Cases will occur in which killing seems actually fully justified; but it can also happen that the agent, in the belief that he acted correctly, acted precipitously." Id. at 250. Instead of a standard procedure for these people, Binding recommended that "[t]he possibility must be left open of letting killings which are later recognized as having been justified go unpunished." Id.

Hoche asked a somewhat different question, also answered affirmatively: "Is there human life which has so completely lost the attribute of legal value that its continuation has permanently lost all value both for the bearer of that life and for society?" Id. at 258. Hoche appeared to warn against a purely utilitarian approach: In the times of need which we now face, we will never stop caring for the physically defective or ill, so long as they are not mentally dead. We will never cease giving the best possible care to the physically and mental ill, so long as there is any prospect of improvement in their condition. But per- haps we will eventually come to the conclusion that eliminating those who are completely mentally dead is no crime, no immoral act, no emotional cruelty, but is rather a permissible and useful act. Id. at 262.

What did Hoche mean by the "mentally dead"? He explained this condition in two ways. With respect to "external relationships," the mentally dead individual "lacks any productive accomplishments and lives in a condition of total helplessness, requiring care by another." Id. With respect to his "inner state," clear ideas, feelings, or acts of will cannot arise . . . no emotional links to the environment can arise (even though they may naturally be the object of the inclinations of someone else)." Id. "Just as he is incapable of any other mental process, a mentally dead person is thus inwardly unable to make a subjective claim to life." Id.

Euthanasia as described by Binding and Hoche, and their predecessors, had a societal and statist component that distinguished it from the American tradition of individual rights, to which the current "right-to-die" movement adheres. See Lifton at 47. The distinction, however, may not be that sharp. Contemporary proponents of the "right to die" do not rely exclusively on the autonomy, but on the perceived worthlessness of the lives in question, and the economic costs of sustaining them. Binding and Hoche explicitly condemned mercy-killings which took place contrary to the will of the victim, and emphasized the consent of the victim as a necessary condition for killing of incurably ill people. With regard to the first category defined by Binding, the most relevant for our discussion, Binding stressed that the only people who may be candidates for having their deaths permitted are those who are termi- nally ill and who "have either requested death or consented to dying." 8 Issues in Law & Med. at 262. Consent was of crucial importance to Binding: every permitting of killing which requires violating the will to live of the actual or potential victim is ruled out." Id. (emphasis in original).

Hoche and Binding advocated providing Sterbehilfe in a carefully controlled process, with evaluation by a three-person panel of professionals and the ability of the person to withdraw consent at any time. They recommended that the initiative be made by the patient in the form of an "application for permission." Id.. at 252. The applica- tion would go to a government board composed of a physician, a psychia- trist, and a lawyer, and unanimity would be required in granting permission. Id. The decree of permission would indicate that a "thorough investigation" had been undertaken, that the patient "seems beyond help," and that "there is no reason to doubt the sincerity of his consent." Id.

Yet, Binding concedes that this orderly procedure will not always be followed: "Perhaps following it is not even thinkable. Perhaps following the procedure, even expeditiously, would entail unbearable suffering for the patient." Id. at 253. When faced with the choice of "consign[ing]" the patient to continued suffering and the family and physician "to complete passivity" during the application process, or allowing the "accomplices" to "satisfy themselves" on the "best advice of their consciences" that the required conditions are present for permissible killing, Binding declares: "Without hesitation, I endorse the second alternative." Id.. The second alternative would result in pun- ishment of the accomplice in the case of "unpardonable" error. Id. As to the possibility of error, Binding writes: "the possibility of error by the Permission Board is undeniable. . . . But error is possible in all human actions." Id. at 254. He concludes: "all other actions of sympathy also involve possible error and perhaps an evil outcome. But who would want to limit the application of this most beautiful feature of human nature by pointing out such possible error?" Id. at 255.

2. Response by the German Medical Community to Hoche, Binding, and Other Advocates of Physician Assisted Death.

The Hoche and Binding book was much discussed by the medical community in Germany after its publication. The legalization of medicalized killing was also discussed at the 1921 Karlsruhe Ärztetag, medical convention, and at the 1922 Dresden conference of the Society for Forensic Psychiatry. Burleigh at 24.

Opponents of medical killing often presented the "slippery slope" argument. Dr. M. Beer wrote in his book, Ein schöner Tod: ein Wort zur Euthanasiefrage 9 (Barmen 1914), that he believed that physician aid- in-dying may be

the first step, but whether it would be the last appears to me to be very doubtful. . . . Once respect for the sanctity of human life has been diminished by introducing vol- untary mercy killing for the mentally-healthy incurably ill, and involuntary killing for the mentally ill, who is going to ensure that matters stop there?

Burleigh at 15. Although scoffed at by proponents of physician-assisted death, critics of Hoche and Binding

despised the "utilitarian shopkeeper" mentality which appeared to inform the tract . . . Others worried about the inflationary, slippery-slope potentialities latent in the whole enterprise. A few had doubts regarding the inherent arbitrariness and perniciousness of value judgments regarding the value of human life.

Burleigh at 21.

In another response to Hoche and Binding, Das Problem der Abkürzung "lebensunwerten" Lebens (1925), Dr. Ewald Meltzer hotly disputed the claim that

people with mental handicaps had lost the last vestiges of human personality, stressing instead their capacity and will to enjoy life. [He argued that it is] "far more heroic to accept these beings to the best of one's abilities, to bring sunshine into their lives, and therewith to serve humanity" than to kill them for utilitarian reasons . . . altruism was humanity's distinguishing feature, [he demonstrated, and] asylums for handicapped people were not only valuable centres of scientific research, but also tan- gible manifestations of Christian charity. Burleigh at 21-22)(citations omitted).

It was these opponents and critics that were to be proved right. "Compassionate" release for the afflicted would only be the first step toward a new medical ethic of death and the "mercy" killing of hundreds of thousands of mentally ill and incurably sick patients.

3. Cultural Response to Advocacy of Physician Assisted Death.

In his novel Mission and Conscience (1936), later a popular film entitled "I Accuse," Helmut Unger told a story of a young woman suffering from multiple sclerosis who believes that her life is no longer worth living and asks her physician husband to relieve her of her misery.

In a grand act of humanity, the husband gives his wife a fatal injection of morphine, while a friend of his (also a doctor) accompanies the act with soothing and romantic music at the piano. [When he is brought to trial for murder, the husband] refuses to let his colleagues invent an alibi for him, because he is convinced he has done no wrong. [He is] acquitted on grounds that his act constituted an act of mercy [and] in a critical scene, the words of the Renaissance physician Paracelsus are recalled: "medicine is love."

Proctor at 182-83.

Several more pro-euthanasia films were produced during this period, to little opposition. See Burleigh at 183-219. The films argued that a medical ethic of preserving life only caused unnecessary pain and misery, "we humans use science to prolong suffering, where we could use science to bring deliverance." Id. at 204 (quotation from film). Such ethics, these films said, stemmed from an "exaggerated concern for humanity," combined with "a religion which is alienated from reality," and "the dictates of an outmoded legal code" and should be abandoned. Id. at 201-05 (quotations from films).

As a consequence of these developments in the medical community and German culture at large, the Ministry of Justice proposed in 1933 that it "be made possible for physicians to end the tortures of incurable patients, upon request, in the interests of humanity." The penal code would be revised to permit physician aid-in-dying upon approval of a three-physician review panel. Gallagher at 93. The law was not enacted, but that did not prevent the pro-suicide and pro-euthanasia movement from moving forward.

These developments were to lead to the "mercy killing" of hundreds of thousands of mentally ill and incurably sick patients. One of the persons involved in these physician-assisted death programs was Alfons Klein, supervisor at Hadamar Sanitorium. His attorney described the course of events leading up to wholesale slaughter.

In a motion picture called "I Accuse" the problem of euthanasia, that is mercy killing, was expounded. This picture was simply a prelude for things to come, because shortly after the beginning of the war the government passed a law whereby people who were afflicted mentally should be put out of the way. . . . from January 1941 to July 1945, more than 10,000 German mental patients were killed in Hadamar alone.

The Hadamar Trial at 220-21. Counsel for Hadamar Dr. Adolf Wahlmann further described what has to happen in the elite German medical community.

The opinion was held in important circles that people of so low a physical or mental standard that their lives were not worth living, and for whom there was no hope of recovery or of ability to work, should be removed after medical examination, especially when they themselves were a burden on their relatives and on the general public. This trend of thought was not new and was practised (sic) in ancient times by the exposure of sickly children. In Germany this point of view was put before the public through the media of books and movies, and was gradually recognized by widening circles.

The Hadamar Trial at 226.

III. PHYSICIAN-ASSISTED DEATH BECOMES A REALITY IN GERMANY.

The proposals of Hoche, Binding, and others in the German and international community in favor of physician aid-in-dying were put into actual practice in the 1930s. First, child euthanasia was permitted for disabled and "defective" infants and children. Soon thereafter, an adult program for an "easy death" of mentally ill and incurably sick Germans was instituted on grounds of compassion. Later, Jews and other "undesirables" were included, this time for racial and eugenic reasons. Ultimately, the genocide that was the Final Solution grew out of these programs of medicalized killing.

A. Merciful Deaths for Children.

The practice of physician aid-in-dying had small beginnings. In March 1937, a child was killed by his father because he was significantly mentally ill. When put on trial for murder, the local health office came to the father's defense, influencing the court to grant him a nominal pris- on sentence instead of the death penalty asked for by the prosecutor. Proctor at 182.

The next year, a man named Knauer wrote the German government, ask- ing that his blind and mentally retarded daughter, born without an arm and leg be granted Gnadentod (mercy death). The chancellor instructed Dr. Karl Brandt to investigate and, if the letter were true, to grant the request. Proctor at 186; Burleigh at 93-96. At his trial in Nuremberg, Brandt described this case.

The [Knauer] parents should not feel themselves incriminated at some later date as a result of this euthanasia -- that the parents should not have the impression that they themselves were responsible for the death of this child. The doctors were of the opinion that there was no justification for keeping such a child alive. It was pointed out that in maternity wards under certain circumstances it is quite natural for the doctors themselves to perform euthanasia in such a case without anything further being said about it. No precise instructions were given in this respect.

Testimony of Karl Brandt, Brandt, 1 Nurem.Mil.Trib. at 894.

This father was not alone in his desires. Many parents were eager to obtain the Wohltat of physician-assisted death for their ill, deformed, or disabled children and many "wrote to hospitals to ask if their child could be relieved of his or her misery and be granted euthanasia." Proctor at 194; Kamisar at 470 n.213. Thereafter, the mercy killing of children became commonplace. Shortening their lives was considered to be a humane measure. 1 Nurem.Mil.Trib. at 834.

The business of taking a sick child on a costly and fruitless round of visits to doctors and hospitals fre- quently seems to have worn down their patience. They had exhausted most of the options before they were promised specialist treatment for the child. . . . The initiative to consign a child to one of these clinics sometimes came from parents, some of whom, like the twenty-five-year-old mother of a blind and mentally handicapped four-year-old child, were already of the opinion that it would have been better if the child had died at birth.

Burleigh at 101.

Few parents, however, were as explicit as the woman who requested that the Ministry of the Interior "have her two 'idiotic children' taken to the asylum at Schleswig 'in order to carry out euthanasia.'" Burleigh at 102. Both doctors and parents preferred instead to use euphemisms, to allow for psychological defense mechanisms of rationalization and denial of what really was happening. After taking a poll of parental opinion, it was determined by the government that, although many supported Gnadentod for their severely disabled children, "parents would prefer it if they were told that their child had succumbed to this or that illness." Burleigh at 98. Relatives did not wish to be informed of the true nature of assisted death. 1 Nurem.Mil.Trib. at 817, 827.

Parents were to be treated with care while being questioned, insisted Brandt, in order that their conscience should not bother them later and no child was removed against the express wishes of the parents. 1 Nurem.Mil.Trib. at 834. Viktor Brack also insisted that the consent of the parents be secured by the official physician or by the physician in charge, in other words, before the child was taken to the clinic. Id. at 834-35. It was up to the practicing physicians, claimed Brack, to inform the parents of the type of "treatment" which the child would undergo and of the prospects of success, with the probability of death being stressed. Id. As many as 6,000 children were provided the "benefit" of euthanasia in this first phase of physician-assisted death. 1 Nurem.Mil.Trib. at 796, 834-37; Burleigh at 111; Lifton at 50, 56.

B. "T-4" Adult-Assisted Death: Euthanizing of Disabled, Mentally Incompetent and Incurably Ill German Patients.

The German government also received requests from adults for a mercy death, including those from a middle-aged woman with cancer and a government official severely disabled after a job-related injury. Burleigh at 93. Numerous people, believing that they were acting with compassion, wished that their handicapped relatives could be "released from their suffering." Friedlander at 171-72.

In May 1939, an advisory group, the Committee for the Scientific Treatment of Severe and Genetically Determined Illness, was formed to determine if and how a euthanasia program for children and adults would operate. Proctor at 186. The adult project was housed in Berlin at number 4 Tiergartenstrasse. It was thus code-named "T-4" and in the beginning there appeared to be a broad level of support for this throughout the coun- try. Proctor at 194.

Thereafter, patients began to be euthanized by lethal injection at various hospitals and other health care institutions. The T-4 doctors did not consider themselves to be killers, but as ministers of medical treatment, although there was some concern that their actions be provided legal sanction. Friedlander at 300. So, in September 1939, the chancellor responded to pressure to provide legal immunity for the doctors engaged in Gnadentod mercy killings and he issued a memorandum stating that

Reichsleiter [Philip] Bouhler and Dr. [Karl] Brandt, M.D. are charged with the responsibility of enlarging the authority of certain physicians, to be designated by name, in such a manner that persons who, according to human judg- ment, are incurable can, upon a more careful diagnosis of their condition of sickness, be accorded a mercy death.

Brandt, 2 Nurem.Mil.Trib. at 196. This document "was not an order given to the doctor, but only conferred on him the right to act on his own responsibility after the most careful consideration of the patient's condition." Id. at 134. It was an authorization to kill, not an order to do so. 1 Nurem.Mil.Trib. at 827. The "decision was purely within the discretion of the doctors," Viktor Brack explained at his trial. Id. at 844.

Not only did participants believe it to be ethical to solve medical problems by inflicting death, 1 Nurem.Mil.Trib. at 813, many were self-righteous in this belief. Karl Brandt told the Nuremberg tribunal, "I was motivated by absolutely humane feelings. I never had any other intention. I never had any other belief than that those poor miserable creatures -- that the painful lives of these creatures were to be shortened." Burleigh at 275. Many family members were thankful that a burdensome relative "had been given a happy release from their suffering," Brandt claimed, and "we received a great number of letters expressing perfect understanding and agreement with our work." Gallagher at 152.

His defense attorney went even further, arguing to the tribunal in words that could have been spoken by the physicians of death in this case, that Brandt

considered the motive of pity for the patient to be the decisive one. This motive is tacitly accepted for euthanasia on the deathbed, and doctors in all countries increasingly acknowledge it. In former times the courts were repeatedly concerned with killings committed out of pity, and in sensational trials, juries found offenders not guilty who freed their nearest relatives from the torment of life. Who would not have the desire to die while in good health rather than to be forced by all the resources of medical science to continue life degraded to an animal's existence! Only misguided civilization keeps such beings alive; in the normal struggle for existence, Nature is more charitable. . . .

If healthy human beings make great sacrifices for the community and lay down their lives by order of the state, the insane person, if he could arouse himself mentally and make a decision, would choose a similar sacrifice for himself. Why should not the state be allowed to enact this sacrifice in his case and impose on him what he would want to do himself? . . . The decision as to whether such an order given by the state is admissible or not depends on the conception of the social life of mankind and is, therefore, a political decision.

Brandt, 2 Nurem.Mil.Trib. 135-36.

Valentin Faltlhauser insisted that for him, "the decisive motive was compassion." Burleigh at 277. Pediatrician Ernst Wentzler recalled, "I had the feeling that my activity was something positive, and that I had made a small contribution to human progress." Id. at 100. A physician-defendant one of the Hadamar trials, Hans-Bodo Gorgass, echoed the arguments of contemporary supporters of assisted death, asserting that "release from this life signifies an act of mercy." Id. at 152. A nurse at Hadamar added that "death was a form of deliverance." Id. at 160. Although workers at the killing centers "sometimes requested transfers, and undoubtedly found the work disgusting, nonetheless they also regarded it as necessary to 'release' the 'regrettable creatures' in their care from their suffering." Id. at 105.

In 1940, another law to explicitly legalize physician-assisted death was proposed. Like the 1933 version, it provided that Anyone suffering from an incurable illness that leads to strong debilitation of either oneself or others can, upon explicit request of the patient and with the permission of a specifically appointed physician, receive dying help (Sterbehilfe) from a physician.

Proctor at 193; Burleigh at 98-99. An additional clause provided further that those person who were mentally incompetent to decide for themselves to exercise this new "right" were entitled to have others make that decision for them on their behalf. Id. This law was never formally enacted either, however, because the decision was made "to keep the question of euthanasia a 'private matter' -- between doctors and their patients." Proctor at 193; 1 Nurem.Mil.Trib. at 844. Like the doctors in this case, the German medical profession was fiercely determined to keep the practice in their hands alone. "The needle belongs in the hand of the doctor," said Viktor Brack, head of one euthanasia program in 1939. Karl Brandt agreed, stressing that "gassings should only be done by physicians." Proctor at 190.

Within a short period of time, "a network of some thirty killing areas within existing institutions was set up." Lifton at 54; Burleigh at 101. These hospitals and health-care facilities included Württemberg, Brandenburg, Hartheim, Sonnenstein, Hadamar, Leipzig-Dösen, Eglfing-Haar, Meseritz-Obrawalde, Tiegenhof, Langenhorn, Bernburg, Eichberg, Kalmenhof, Uchtspringe, Königslutter, Scheuern, Mainkofen, Am Steinhof, and Kaufbeuren. Friedlander at 87-89, 95, 152-53, and 162. In fact, the killing secretly continued at Kaufbeuren, Eglfing-Haar, Irree, and a few other hospitals for months after the war ended and Allied forces assumed control. 1 Nurem.Mil.Trib. at 834; Gallagher at 249-50.

Morphine, scopolamine, and prussic acid (cyanide) injections were initially used for the T-4 project because they had more of a "medical aura" than gas. However, objections to use of carbon monoxide gas were soon overcome because, not only was it more efficient, but Brandt felt that carbon monoxide was painless and it "would be the most humane form of death." Lifton at 72; 1 Nurem.Mil.Trib. at 827.

C. Euthanasia Programs were Not Caused by Anti-Semitic Precepts of National Socialism: Jews were Prohibited from Receiving "Benefit" of a Mercy Death.

Before proceeding further, discussion on a purely collateral point is necessary to ensure that the historical record is kept clear of any confusion. The medicalized killing in Germany at this time had nothing to do with Jews in Europe. Nevertheless, it is argued by some assisted-suicide advocates that these killings in Germany and German-held territories were the result of anti-Semitism and other racist theories, and therefore those atrocities cannot legitimately be compared to aid-in-dying schemes of the present. But this is a red herring. It may surprise some people, but such arguments have no basis in fact or history. The German experience in physician-assisted death was the direct result of utilitarian, cost-benefit analysis and the view within the medical community that the value of human life is relative, that some persons are better off dead. It was not the result of jack-booted thugs in brown shirts.

The T-4 program was not a part of the Holocaust, rather, it was T-4 and the child euthanasia programs which preceded and served as models for the genocide of the Final Solution. See Friedlander at 284; Gallagher at 6-7; G. Sereny, Into that Darkness: From Mercy Killing to Mass Murder 34 (1974); 1 Nurem.Mil.Trib. at 794-896. Foreigners and Jews were excluded from euthanasia and screened out of T-4. 1 Nurem.Mil.Trib. at 824, 880.

In fact, even the idea of the infamous shower room gas chambers originated in the T-4 program with the killing of German Gentile patients. 1 Nurem.Mil.Trib. at 800-04.

No Jews were among them; most Jews had already been sent to the concentration camps. The Nazis considered euthanasia a quasi-ethical sort of murder, and reserved it for members of their own kind.

S. Wiesenthal, The Murderers Among Us 309-10 (J. Wechsberg ed. 1967).

Neither racism nor anti-Semitism were a factor in these developments in Germany. T-4 doctors occasionally even gave lethal injections to severely injured German soldiers, Friedlander at 297, while Jews were wholly forbidden from participation at all in both the children's and adult's euthanasia operations. Id. at 17-21; Proctor at 188. This fact is even conceded by right-to-die champion Derek Humphry:

The mass extermination of Jews by gassing -- a method that accounted for some two-thirds of the deaths -- was preceded, from 1939 to 1941, by the elimination of approximately 100,000 men, women, and children, none of them Jewish, all Aryan Germans, who were handicapped, mentally or physically, or both.

Humphry at 20 (emphasis added). The German government, "did not want to grant this philanthropic act to the Jews," Viktor Brack maintained, "the blessing of euthanasia should be granted only to [true] Germans." Brandt, 1 Nurem.Mil.Trib. at 880; Kamisar at 470; Gallagher at 69.

Instead, ideas were circulated at this point in time regarding the issue of what to do with Jews, because it was decided that German-held territory would be populated only by Germans. United States, et al. v. Hermann Goering, et al., 6 F.R.D. 69, 119 (1946) (judgment of the International Military Tribunal). Early measures toward this end was a requirement that all Jews must wear the Star of David, which was decreed in September 1941. Friedlander at 288.

German-Jews also had their citizenship revoked and were treated as foreigners; policies were "directed towards the complete exclusion of Jews from German life." Goering, 6 F.R.D. at 127. Deportation and expul- sion were considered; one idea, the Madagascar Plan, involved creating a reservation on that island. (At one point in time, the French also advocated the Madagascar Plan as a solution to the "Jewish question in Europe," largely because France was being deluged in 1936-38 with unwanted Jewish refugees. Sereny at 96.) Other ideas involved sending them elsewhere in Africa or the Middle East, another suggested a reservation near Lublin, Poland, still others, mass sterilization. Proctor at 206-07; Lifton 158.

In late March 1941, the Frankfurt "Institute for the Investigation of the Jewish Question," was inaugurated. B. Müller-Hill, Murderous Science 45 (1988). One medical journal even carried a regular column during the war on "The Solution of the Jewish Question." Proctor at 285. Even then, Auschwitz survivor Prof. Henry Friedlander reports, "the policy toward Jews did not yet include killings." Friedlander at 21.

Deportations of Jews from the German homeland did not begin until October 1941. Friedlander at 288. Jews were rounded up and imprisoned, and their property was seized. The "original purpose [of the concentration camps] was to imprison without trial all those persons who were opposed to the Government, or who were in any way obnoxious to German authority [it was not until later that] camps became places of organized and systemic murder." Goering, 6 F.R.D. at 117. The Holocaust was merely the last, or final (and ultimate), solution to be considered.

It was not until "the summer of 1941, [that] plans were made for the 'final solution' of the Jewish question in Europe." Id. at 128. On January 20, 1942, nearly four years after the euthanasia program for Germans began with the Gnadentod of the Knauer child, the plans for the Final Solution were finalized at the Wannsee Conference, a meeting of thirteen high-ranking government officials. Proctor at 210; Lifton at 158. Not until Wannsee was genocide seriously considered. Wiesenthal at 314-15, 340. But even then, "during early 1942, the details of the killing procedure were not yet clear, and were not solved until spring with the establishment of gas chamber camps in Poland." Lifton at 158.

D. T-4 Program is Instituted on Large Scale.

Initially in the T-4 program, it was decided by government legal authorities that Sterbehilfewould be lawful only for "those cases where physicians, upon their personal decisions, relieve incurably ill patients from their suffering by administering a drug for mercy killing." Lifton at 138-39. Such measures, however, soon became a medical necessity.

"Doctors were never ordered to murder psychiatric patients and handicapped children. They were empowered to do so, and fulfilled their task without protest, often on their own initiative." Proctor at 193; 1 Nurem. Mil.Trib. at 827; see also Gallagher at 5 and 46. It was considered a "humane measure" and "therape- utic imperative," but still Jews were excluded. Proctor at 194; Lifton at 15.

In January 1940, Brandt, Brack and others conducted the first large-scale test of assisted death for incurable adults in a psychiatric hospital near Berlin. Proctor at 189-90. It was a gassing process, which "included a fake shower room with benches, the gas being inserted from the outside into water pipes with small holes through which the carbon monoxide could escape." Lifton at 71; Humphry at 20; 1 Nurem.Mil.Trib at 876-77, 880-86. In this first experiment, four patients died. 1 Nurem.Mil.Trib. at 800.

One of the major T-4 institutions was at the hospital at Hadamar, Germany and it exemplifies what occurred in the adult program. Between January and August 1941, over 10,000 mentally ill Germans were provided a "painless death," in the shower-room gas chambers at Hadamar. The Hadamar Trial Intro- duction at xxiv. Counsel for Hadamar physician Adolf Wahlmann, insisted at his war crimes trial that "in general, the people killed were those faced with a permanent illness, for whom a completely painless death was a relief," Id. at 228. "Insane people are useless to society and as a rule do not endure pain . . . Incurable tubercular patients, on the other hand, have to suffer terrific pain," added counsel for Heinrich Ruoff. Id. at 233. Administrative supervisor Alfons Klein testified that from October 1940

until January 1941, [the Hadamar] Institution was maintained only for German mental patients. In January 1941, plans were made to kill mental patients and to burn the corpses. This method was carried on and used until August 1941, when it was dis- continued.

Id. at 69-70. Heinrich Ruoff, chief male nurse who worked more closely with the patients, remembered that the T-4 program at Hadamar began slightly earlier.

In 1940 the program of killing started. Those people who were brought here were German mentally sick. These people were gassed to death and then burned. . . . During the year 1941, because of complaints from Germans, this work was eliminated.

Id. at 75.

As Ruoff said, by 1941, word began to spread of involuntary killings. So, in August 1941, the psychiatric/physician-assisted death program at Hadamar and the other T-4 hospitals was officially ordered suspended. But by this time, 80,000-100,000 persons had been eliminated by T-4. Lifton at 192; Burleigh at 160. Except at Hadamar, the program never ceased, only the method of death changed. While the gas chamber was removed from Hadamar in August 1941, 1 Nurem.Mil.Trib. at 823, another 3,500 patients were euthanized by lethal injection between then and August 1942. The Hadamar Trial Introduction at xxiv.

Beginning in 1942, the program recommenced elsewhere, except instead of gas, injections and "with- holding of nutrition and hydration" were the method of inducing death, largely on a case-by-case basis. 1 Nurem.Mil.Trib. at 831; Proctor at 192.

E. World War II: "14f13" and Special Treatment for Jews and Other Undesirables.

World War II caused a change in policy. Resources were scarce and what was available had to go toward the German war effort. The armed forces had a greater claim to food, clothing, and medicine than did the sick, mentally ill, and social undesirables. These persons were causing an economic drain on society which was unacceptable. Consequently, the government took advantage of the distractions of the war and used it as an excuse to eliminate those burdens. Humphry at 21.

"The original 'euthanasia' project, the killing of those who were seriously ill [T-4], was extended to killing virtually anyone whose death was desired." Lifton at 255. First, hospitalized Jews who had previously been denied a mercy death, were now given Sonderbehandlung, "special treatment," and killed simply because they were undesirable. Later, it was ordered that Jews and other selected undesirables would be transported from the concentration camps to the same killing centers used by the T-4 program. 1 Nurem. Mil.Trib. at 797.

This new project was named "14f13," (the German government kept extensive records in a number of areas. At the concentration camps, "14f" was the administrative category for all files involving prisoner deaths. Death by natural causes was recorded as "14f7"; suicide was "14f8"; and execution was "14f14." Friedlander at 142) except it was not instituted to provide "mercy deaths," but simple extermination of those considered useless, physically sick, or unable to provide labor. 1 Nurem.Mil.Trib. at 801; Lifton at 134-44. As such, Jews and foreign nationals were subject to 14f13. Involuntary killings then began to skyrocket among these undesirables, useless eaters, untermenschen (subhuman) and lebensunwertes Leben (life not worth living). It was at this point that racist and eugenic theories, which had previously made their way into national policy, took prominence while World War II waged.

At Hadamar, Sonderbehandlung killing was also extended to certain foreign nationals. Heinrich Ruoff testified at his war crimes trial that

In the year 1944, I believe it was in the early part of the year, Russian and Polish workers came to the asylum. . . . We were told that these Russian and Polish nationals had tuberculosis. . . . I estimate that [assistant male nurse Karl] Willig and I gave injections to two or three hundred Poles and Russians, but it could have been 400 or 500 too.

The Hadamar Trial at 75-76. It was in 1944 that "14f13 entered something of another phase as the war continued to take its human toll. . . . The 14f13 project provided two crucial bridges between existing concepts and policies and unrestrained genocide, [the Final Solution.]" Lifton at 137-38. All of the evidence clearly shows that "Germany's psychiatric hospitals forged the most important practical link between the destruction of the mentally ill and handicapped and the murder of Germany's ethnic and social minorities." Proctor at 212. After the success of T-4 and 14f13, the hospital gassing equipment and procedures were adopted by Adolf Eichmann for use in the Final Solution. 1 Nurem.Mil.Trib. at 804.

Overall, it is estimated that 5,000 were provided a mercy death in the child operation; 80,000 to 100,000 in the adult T-4 program; 20,000 concentration camp inmates in the 14f13 project; and "special treatment" against Jews in hospitals eliminated another 1,000. Friedlander at 150; Lifton at 142. Some estimate the total toll of physician-assisted death was 275,000. L. Alexander, "Medical Science Under Dictatorship," (1949) reprinted in Death, Dying, and Euthanasia 571, 574. Others go as high as 400,000, from the child euthanasia, T-4, Sonderbehandlung, and 14f13 operations combined. Lifton at 142. The true number of lives lost can never be known.

These were the small beginnings of what led to mass genocide. But the first doctor assisted death was just as criminal and just as reprehensible as death number six million from the Holocaust. As the prosecution at Nuremberg rightly proclaimed, "the program was criminal since its inception." 1 Nurem.Mil.Trib. at 809.

F. Final Solution.

The final solution to the "Jewish problem" that was finally decided upon in early 1942, and implemented later, was chosen largely because the means to that solution already existed in the euthanasia program, killing centers, and gas chambers. Indeed, the same gassing equipment used in the T-4 and 14f13 hospital operations were dismantled, transported, and re-installed at Auschwitz, Treblinka, and Sobibor. Proctor at 212; Gallagher at 14. The T-4 physicians and other personnel were also put to work in the camps. 1 Nurem.Mil.Trib. at 809. In May 1942, the Sobibor extermination camp became fully operational. Sereny at 114.

Dr. Andrew Ivy, medical assistant to the prosecution at the Nuremberg trials, believes that, without the pre-existing physician-assisted death programs, "it is conceivable that the entire idea and technique of death factories for genocide would not have materialized." Gallagher at 62. Theories that the "Jewish problem" might have been solved by less drastic means as deportation is further supported by the fact that attempts at mass shoot- ings were highly problematic. Friedlander at 286. Many soldiers who participated in mass execution by shoot- ing found it repugnant, they had such adverse psychological reactions that they could not continue, and many even committed suicide. Lifton at 15 and 159.

IV. WORLD DECLARES PHYSICIAN ASSISTED DEATH TO BE MALA IN SE AND A CRIME AGAINST HUMANITY.

After World War II ended, hundreds of the physicians and others were put on trial for murder, crimes against humanity, and war crimes for their participation in the child euthanasia, T-4, 14f13, and special treatment projects. Prof. Friedlander reports that a massive documentary record substantiate[s] the nature of these crimes. In addition to the Allied, German, and Austrian trials of the late 1940s, the German judiciary had conducted numerous detailed investigations and long trials during the 1960s and 1970s. Friedlander at Preface xi. (For partial listing of a number of various post-war German court cases and prosecutions for murder for participation in the euthanasia programs, see Friedlander at 387-89.) In fact, these trials were conducted as late as 1986-87, when what may be the last T-4 trial occurred at Frankfurt, where two elderly men were convicted of mass murder. Gallagher at 261-62.

The courts and tribunals in these cases invariably have rejected defenses by physicians that their actions were justified by "compassion" or authorized by German law or medical ethics. Defendant Viktor Brack tried to justify his actions by stating that the work of Binding and Hoche was considered the standard work on euthanasia. But it was the opinion of the tribunal that their book left

no doubt that the will to live, of even those who are most seriously ill, suffer most gravely, and are of least use, should be fully respected, and that any authority for the annihilation of life is excluded in cases where the will to live must be broken. Brack himself admitted that euthanasia is inadmissible in cases where the patient has the will to live.

1 Nurem.Mil.Trib. at 810.

The Nuremberg "Medical Case" and the first Hadamar Trial, two prosecutions conducted by the American forces, serve to illustrate these criminal prosecutions against German physicians and other health care workers: At Nuremberg, Dr. Karl Brandt and many other major government physicians and administrators were indicted for "crimes against humanity" for their participation in the programs of Sterbehilfe and Gnadentod, since these operations of physician-assisted death had been declared and adjudged to be intrinsically criminal by the tribunals and Allied Powers in the London Charter. Control Council Law no. 10 defined Crimes Against Humanity as "Atrocities and offenses, including but not limited to murder, extermination . . . or other inhumane acts committed against any civilian population." Brandt, 1 Nurem.Mil.Trib. xvii; Brandt, 2 Nurem.Mil.Trib. 173. London Charter Brandt, 1 Nurem.Mil.Trib. xiii. The trial was called the "Medical Case," and at the trial, prosecutor Telford Taylor described these prominent physicians in the dock at Nuremberg:

The defendants in this case are charged with murder, tortures and other atrocities committed in the name of medical science. The victims are numbered in the hun- dreds of thousands . . . this is no mere murder trial . . . Those defendants did not kill in hot blood, nor for personal enrichment . . . they are not all perverts. They are not ignorant men. Most of them are trained physicians and some of them are distinguished scientists. The perverse thoughts and distorted concepts which brought about these savageries are not dead. They cannot be killed by force of arms. They must not become a spreading cancer in the breast of humanity. They must be cut out and exposed. . . . A nation which deliberately infects itself with poison will inevitably sicken and die.

Brandt, 1 Nurem.Mil.Trib. at 27-29.

The tribunal found Brandt, Brack, and Hoven guilty. 2 Nurem.Mil.Trib. at 196-98, 277-81, and 286- 90. The gift of death that they had given so many others was then bestowed upon them, in return, at the end of a rope.

The jurisdiction of the American tribunal for the first Hadamar trial extended only to war crimes. So, even though over 10,000 Germans were killed at Hadamar, American prosecutors did not investigate or prose- cute their deaths. Instead, the trial of Klein et al. was limited to the killing of 400-500 Polish and Russian patients suffering from tuberculosis or pneumonia.

Curiously, however, part of the defense at Hadamar was that killing foreign nationals could not be criminal under international law since so many German patients had also been killed there under the T-4 program.

Alfons Klein and the other defendants at Hadamar were eager to justify their participation in T-4 and other medicalized death. Klein insisted that it was only in extreme cases that patients were "helped along" and saved from an insufferable prolonged death. "Only those people died who were very close to death already." The Hadamar Trial at 88.

He echoed the claim by today's physician-assisted death advocates that these are acts of "mercy," not murder, and he was astounded that his participation in T-4, 14f13, and Sonderbehandlung could even be considered criminal. "I myself believe it is cruel that such people who were incurable had to endure pain, if one would let them live longer," Klein maintained. Id. at 199-200.

In my opinion, these cases can hardly be regarded as cruel murder, but rather that it was merely made easier for these people to die, as death was in all cases a cer- tainty within a short time. This fact everyone connected with this matter must admit. Further- more, I must mention the fact that a majority of these patients were suffering from tuberculosis in its final stage, and arrived here infested with lice and in dirty condition. One must therefore, in judging the facts, differentiate whether healthy, valuable lives were left to die, or whether those who had death stare into their face were given an injection of mercy to relieve them of their incurable and painful suffering. . . . I can say that he people were very ill and were saved from their suffering.

The Hadamar Trial at 102-03. The Hadamar tribunal, however, properly considered such arguments to be irrelevant. The defendants were convicted and hanged. Euthanasia is murder, regardless of motive or the desire of the victims. Good faith is neither a defense nor mitigating factor; neither justification nor excuse.

C. Government has Compelling Interest in Preventing Assisted Death and Other Perversions in Medicine Caused by Belief of Physicians that Some Persons are Better Off Dead.

Alleviating the suffering of the afflicted by infliction of death is inherently wrong, criminal, and abusive of the medical arts. Nuremberg medical expert Dr. Leo Alexander explained why this is, nearly fifty years ago.

Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as a life not worthy to be lived

. Alexander at 584. Tragically, there are those who disagree and still promote aid-in-dying.

There was a time, now considered barbaric, in which eliminating those who were born unfit for life, or who had later become so, was taken for granted. Then came the phase, continuing into the present, in which, finally, preserving every existence, no matter how worthless, stood as the highest moral value. An new age will arrive -- operating with a higher morality and with great sacrifice -- which will actually give up the requirements of an exaggerated humanism and overvaluation of mere existence.

8 Issues in Law & Med. at 265. These words could have been written by the doctors in this case or any other modern-day proponent of physician-assisted suicide. But they were not. They were written by Dr. Alfred Hoche and they foretold what was to come two decades hence to Germany.

The Hoches and Bindings of our day, too, try with great zeal and persuasive argument to usher in a new age in our country. We are told, in words which parallel those of Hoche and Binding, that we ought to be ashamed of ourselves for depriving our suffering brethren of the means to peace and freedom from pain. When we say that compassion with continued life, not death, must be the response to suffering, we are chastised for a misplaced sympathy.

Binding and his modern-day followers lament, "Our sympathy grows beyond its proper bounds and becomes a horror. Not granting release by gentle death to the incurable who long for it: this is no longer sympathy, but rather its opposite." 8 Issues in Law & Med. at 254. No doubt, Binding was sincere. Today's promoters of active euthanasia may also be sincere, but it is a sincerity born of a certain carelessness. We have the benefit of the lesson of history, which has taught that euthanasia, including the euphe- mistically termed "physician-assisted suicide," is a false mercy and a perversion of mercy. The history of that experience warns that the institution of assisted death gravely threatens civil society. Government clearly has a compelling interest in prohibiting it. It is a crime against humanity which has no legitimate role in American law or medicine.

FOOTNOTES 1 As for the third category, Binding considered a proper candidates those who "would (had they not fallen into unconsciousness at the critical time or if they had been able to achieve awareness of the situation have requested or consented." 8 Issues in Law & Med. at 262. 2 Count Three, paragraph 14, of the Indictment in United States v. Karl Brandt, et al., alleged that Brandt, Brack, and Waldemar Hoven,

unlawfully, wilfully, and knowingly committed Crimes against Humanity [in that they were involved in] the execution of the so-called "euthanasia" program of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including German civilians, as well as civilians of other nations. The particulars concerning such murders are set forth in Paragraph 9.

Count Two, paragraph 9, alleged that these defendants,
unlawfully, wilfully, and knowingly committed War Crimes [in that they were involved in] the execution of the so-called "euthanasia" program of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including nationals of German- occupied countries. This program involved systematic and secret execution of the aged, insane, incurably ill, of deformed children, and other persons, by gas, lethal injections, and diverse other means in nursing homes, hospitals, and asylums. Such persons were regarded as "useless eaters" and a burden to the German war machine. . . . German doctors involved in the "euthanasia" program were also sent to the Eastern occupied countries to assist in the mass extermination of Jews.

November 11, 1996

Respectfully submitted,

MARK A. ROTHE
ATTORNEY AND COUNSELLOR AT LAW
2111 Wilson Boulevard, Suite 700
Arlington, Virginia 22201-3001

Copyright ©: 1996 by Mark A. Rothe