Historical Analogies,Slippery Slopes,and the Question of Euthanasia

Singer P. , Practical Ethics (Cambridge: Cambridge University Press, 1979): at 138.

Feyerabend E. , “Euthanasia in the Age of Genetic Engineering,” Reproductive and Genetic Engineering, 2, no. 3, (1989): 247–49.

Singer P. , “Bioethics and Academic Freedom” Bioethics, 4, no. 1, (1990): 33–44. As a result of the conflicts around Singer's proposed visit, universities were pressured to curtail activities in this field. While a variety of new ventures in medical and biomedical ethics have been undertaken, Germany had remained quite conservative in its approach to such questions. Thus, the recently established journal Biomedical Ethics, Newsletter of the European Network for Biomedical Ethics, has approach questions of euthanasia and medical killing very carefully and thoughtfully, but always with a strong tendency against such possibilities. See, for example, 4, no. 1 (1999) and the journal's Report on the Protection of the Human Rights and Dignity of the Terminally Ill and Dying.

Tolmein O. , cited in Schöne-Seifert B. and Rippe K-P. , “Silencing the Singer: Antibioethics in Germany”, Hastings Center Report, 21, no. 6 (1991): 20–28, at 21.

Singer , supra note 3. Bioethics remains a very sensitive issue in Germany. See, Abbott A. , “Germany's Past Still Casts a Long Shadow,” Nature, 389 (Oct. 16, 1997): 660. In the light of the history reviewed later in this essay one could conclude that the history of German medicine clearly refutes the presumption that “fanaticism” and “lack of respect for rational debate” were a precondition of Nazi atrocities. A second, similar protest occurred in spring, 1999. Less than a year after Princeton University had announced Singer's appointment to a position at its Institute for Human Values, pro-life and disability advocates organized a mail campaign against this appointment, as well as threatening to picket Singer's classrooms. This conflict was reported in the New York Times and elsewhere, with strong positions being publicly taken on both sides. For various advocacy positions see inter alia: Pollitt K. , “Peter Singer Comes to Princeton,” The Nation, May 3, 1999, at 10; Golway T. , “I suspect American readers will be interested in knowing just how mainstream the culture of death has become,” America, Sept. 12, 1998, at 4; and Canavan F. , “The Empiricist Mind,” The Human Life Review, Spring 1999, at. 74ff.

Singer played a very important role in the early animal rights movement, arguing for extending moral status to non-human creatures based on their capacity to experience pain. Proctor Robert , Racial Hygiene: Medicine under the Nazis (Cambridge MA: Harvard University Press, 1988) detects a similar confluence of views in the thought of Nazi medical theorists in the 1930's. “Nazi philosophers also commonly expressed concerns about cruelty toward animals. In early 1933 Nazi representatives in the Prussian parliament called for legislation banning vivisection.”(at 227)

The most important discussion is Walton D. , Slippery Slope Arguments (Oxford: Clarendon Press, 1992). One might also see, Williams B. , “Which Slopes Are Slippery?” in Lockwood M. , ed., Moral Dilemmas in Modern Medicine (Oxford: Oxford University Press, 1985) and van der Berg W. , “The Slippery Slope Argument,” The Journal of Clinical Ethics, 3, no. 4 (1992) 256–268 (reprinted from Ethics 102, no. 1 (1991).

Walton , supra note 7, at 13.

Van der Burg , supra note 7, distinguishes “logical” and “empirical” versions of the argument; however, his “logical” version is either the simple or extended modus tollens argument. Such arguments are formally valid, but they are not really slippery slope arguments at all, as I will show here (and as he in fact admits at 263). Everything that Walton says applies to what van der Burg calls the “empirical” slippery slope argument.

While this may be one reason for the categorization of slippery slope arguments as “fallacies,” it is not a sufficient reason for doing so.

Govier T. , “What's Wrong with Slippery Slope Arguments?” Canadian Journal of Philosophy, 12 (1982): 303–16.

Williams B. , supra note 7, works out some useful tools for assessing the strength and persuasiveness of these connections.

Here Walton follows Govier , supra note 11. This categorization is much more illuminating than van der Burg's distinction of “logical” and “empirical” versions of the argument.

Or, in a particular legal and social context, what are the criteria that determine the permissibility of proposed lines?

Koch's T. recent book, The Limits of Principle: Deciding Who Lives and Who Dies (Westport CT: Praeger, 1998) outlines one possible procedure for making practical decisions in medical ethics using the ambiguous concepts which characterize this domain and which give rise to a range of sorites slippery slopes. His analysis shows how progress is possible in these matters. Williams B. , supra note 7, suggests how in some cases of sorites arguments we can be justified in drawing “arbitrary” lines to settle such cases (at 133).

Walton cites examples from Govier, distinguishing Simple Dangerous Precedent Slippery Slope Arguments and Feasibility Precedent Slippery Slope Arguments. The former depend on the idea that a, which is acceptable in itself, shares a feature with other non-acceptable cases and so must be disallowed. The latter depend on the idea that although a is acceptable by itself, allowing all relevantly similar cases is unacceptable or impossible, so that a ought not to be allowed. He also adds two other forms. First is the argument from added authority (that allowing a grants the decision maker additional authority which creates bad results). The other is the “arbitrary results” argument (that allowing a creates a further series of unclear or arbitrary decisions about what to include).

Campbell C. S. , “It Never Dies: Assessing the Nazi Analogy in Bioethics,” Journal of Medical Humanities, 13, no. 1, (1992) 21–29 at 25.

“In fact the Nazis did not have a euthanasia program, in the proper sense of the word. Their so-called euthanasia program was not motivated by concern for the suffering of those killed.” (Singer, supra note 1 at 215.) This statement begs the question. First the discussion and then the general approval of the idea of euthanasia in the proper sense helped create an environment in which the Nazis' later involuntary killing became possible. This latter is the point made by Lifton ( Lifton R.J. , The Nazi Doctors [New York: Basic Books, 1986]), Friedlander ( Friedlander H. , The Origins of Nazi Genocide [Chapel Hill: University of North Carolina Press, 1995]), and others.

Alexander L. , “Medical Science under Dictatorship,” N. Engl. J. Med., 241, no. 2 (July 14, 1949): 39–47. The article has also been reprinted in Death, Dying, and Euthanasia, Horan D. and Mall D. , eds. (Fredrick MD: University Publications of America, 1980): 571–592.

Alexander , supra note 19, at 42.

Id. at 46.

Id. at 39.

Id. at 44.

Id. at 46.

Humphry raised this question during a discussion of my paper at the 1988 conference on euthanasia at Clark University.

Lifton , supra note 18.

Friedlander , supra note 18.

Müller-Hill B. , Murderous Science (Oxford: Oxford University Press, 1988).

As formulated, for example, by Derr Patrick in “Hadamar, Hippocrates, and the Future of Medicine: Reflections on Euthanasia and the History of German Medicine,” Issues in Law and Medicine, 4 (1989): 487–95.

Margaret Sanger makes this exact argument in her essay, “A Plan for Peace,” Birth Control Review XVI, no. 4 (1932): 107–108.

Proctor , supra note 6, at 97–101. “In 1907 Indiana passed the first laws allowing sterilization of the mentally ill and criminally insane. … By 1939 more than 30,000 people in twenty-nine American states had been sterilized on eugenic grounds; nearly half of the operations (12,941) were carried out in California.” (at 97).

Proctor gives several examples showing that German “race scientists” looked to the United States for inspiration.

Friedlander , supra note 18, at 10ff.

Jost's choice of “incurability” as a critical criterion is both striking and peculiar. Many “incurable” diseases are not immediately or constantly painful and are compatible with long, comfortable, and productive life. This is typical of a lack of care about important details that characterizes Jost's entire discussion.

Three such works are: the “uncommonly legally weak” essay by Hiller , Das Recht über sich Selbst, (“The Right Over One's Self”)(Heidelberg, 1908); the “legally inadequate ‘criminal study’” by Rupp E. , also entitled Das Recht auf den Tod, (“The Right to Die”)(Stuttgart, 1913); and Hoche's lecture Von Sterben (“On Death”). All three are mentioned by Binding and Hoche (see note 37).

I now think that the above translation of the title needs modification. Freigabe is a difficult word. From roots meaning free + give, it means “release,” “clearance,” and “decontrol.” Friedlander translated the title “Authorization for the Destruction of Lives not Worthy of Life.” Because Binding's major claim is that such killing is “not legally forbidden,” I prefer “permitting” to “authorization,” and the end of Friedlander's version strikes me as awkward and excessively literal. The real problem here is translating “lebensunwerten Lebens” as “unworthy life.” This is too vague. “Unwerten” here might be “unworthy,” but our usual English idiom is to ask simply whether life is “worth living.” Hence, “Permitting the Destruction of Lives not Worth Living” is more to the point of what Binding and Hoche intended.

Binding and Hoche , at 247. Emphasis in original.

Binding and Hoche , at 249. Hoche later characterizes such patients as “mentally dead.”

Binding and Hoche , at 250. Binding's discussion is eerily similar to current Dutch rules for euthanasia (see below). While reviewing my first translation of Die Freigabe, Patrick Derr pointed out that Binding's rule would allow euthanasia by what we would now call “substituted judgment.” He noted that this is a very early occurrence of this idea.

Binding and Hoche , id. at 247.

Binding proposes a panel of three experts to review all cases, with requirements for explicit reporting of all euthanasia events. Only a qualified applicant may file requests. “Qualified” in this case means that the person is the patient, the patient's physician, or someone to whom the patient has entrusted this authority. After gathering evidence and hearing witnesses, the board issues a decree that:

… may only say that, after thorough investigation on the basis of current scientific opinion, the patient seems beyond help; that there is no reason to doubt the sincerity of his consent; that accordingly no impediment stands in the way of killing the patient; and that the petitioner is entrusted with bringing about the patient's release in the most expedient way. (Binding and Hoche, at 251–55.)

The common designation for the adult euthanasia program, abbreviated from the Berlin address where the program was administered: Tiergartenstrasse 4.

Friedlander , supra note 25, at 16, 22, 123, 170, and 198.

In his essay “Stillborn Bioethics: 1880–2001” (forthcoming in Aging, Law, and Ethics, vol. 6, no 1) T. Koch makes a strong prima facie case that “main line medical ethics will end the century almost precisely where it began.” He shows how contemporary bioethical discussions of life and death employ the concept of “lives not worth living” to justify eliminating “undesirable people-with-differences” in the name of cost efficiency, scientism, and limited social definitions.” This suggests that the main drift of Alexander's argument has been only too accurate as a description of contemporary developments.

Or even that they ought to take such lives in the interests of “racial hygiene.”

Robert Gellately points out that he and other historians now dispute this interpretation (by Lifton and Friedlander) of the cause for Hitler's 1941 “stop” order for adult euthanasia. See Burleigh M. Death and Deliverance (Cambridge: Cambridge University Press 1994) and Aly G. , Cleansing the Fatherland (Baltimore: Johns Hopkins University Press, 1994). Nothing essential for my reconstruction of Alexander hangs on which version one adopts.

Thus carving “notches” on the slope where one can rest one's slide.

This construction of Alexander's argument involves a mixture of legal and ethical judgments that reveals an important weakness in van der Berg's attempt (supra, note 7) to defang the slippery slope. Van der Berg suggests that one can distinguish critical morality, positive morality, and law so that slippery slope arguments of various sorts will be applicable in one but not in another (summarized at 261). However, the collapse of his distinction between logical and empirical forms of the argument (supra note 9) and the difficulty of neatly separating these three forms of evaluative reasoning in actual policy discussions weaken his point considerably.

Singer P. , supra note 1, at 213ff.

Id. at 214.

Hanauske-Abel H. , “Not a Slippery Slope or Sudden Subversion: German Medicine and National Socialism in 1933,” British Medical Journal, 313, no. 7070 (1996): 1453–63.

Strangely, although he denies a slippery slope in the German case, Hanauske-Able suggests that it is an instructive analogy for the present. “Contextual analysis of events during the summer of 1933 in Germany may not just improve an understanding of the past, but may also help to assess the present and near future. Developments within medicine and society during the past decade, particularly in North America and Europe, may found another convergence of previously separate political, scientific, and economic forces. Biomedical progress, fiscal constraints, legal decisions, and government regulations are all closing in on the practice and teaching of medicine. Those forces may not be as demoniacal as those in Germany in the summer of 1933, but only by approaching their next apparent alignment with great caution can we avoid a conflagration.” (Id. Full text also available at <http://www.bmj.com/cgi/content/full/313/7070/1453>.)

Thus, he takes no account of Müller-Hill's “German Chronicle of the identification, proscription, and extermination of those who were different,” that extends back to 1900. Müller-Hill supra note 25, at 7–21. Nor does he consider Proctor's careful intellectual history of intellectual developments before 1933. Proctor , supra note 6.

Driesse M. N. H. , “Euthanasia and the Law in the Netherlands,” Issues in Law and Medicine, 3, no. 4 (1988): 385–97.

Gevers J.K.M. , “Physician-Assisted Suicide and the Dutch Courts,” in Cambridge Quarterly of Healthcare Ethics, 5, (1996): 93–99. According to Gevers, the first relevant court decision is from the Court of Rotterdam (December 1, 1981) in which the court articulated the rules that should be followed in these situations. The court summarized its position as follows: “The existence of such a right [e.g. every human being's right to decide his or her own life] does not mean that a person who is requested to assist in suicide has not to comply with the norm embodied in Article 294 of the Penal Code, although in particular situations an appeal to force majeure is not excluded.”

Singer , supra note 1, at 197.

Further, one might note that these same Dutch physicians courageously resisted participation in the Nazi euthanasia program only a few decades earlier. If they now support the practice, one might think, surely the two situations must be very different.

Dillmann R.J.M. , “Euthanasia in the Netherlands: The Role of the Dutch Medical Profession,” Cambridge Quarterly of Healthcare Ethics, 5 (1996) 100–106. Dillman says that: “The fundamental principles of the KNMG policy on euthanasia and assisted suicide [are] respect for human dignity, accountability, and scrupulousness.” (at 100) He finds no support for the relevance of the slippery slope to the Dutch case.

Hendlin H. , “Physician Assisted Suicide: What Next?” The Responsive Community, (Fall 1997): 21–34. Hendlin is a Professor of Psychiatry at New York Medical College.

Gevers supra note 53. See also, Canady C.T. , “Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report to the House Judiciary Subcommittee on the Constitution,” Issues in Law and Medicine, 14, no. 3 (1998) 301–324. Both document the extension of euthanasia to cases progressively farther away from the initial paradigm.

The US Supreme Court has taken note of these developments in two 1997 unanimous decisions on physician assisted suicide—Glucksberg v. Washington, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1996) and Vacco v. Quill, 117 S.Ct. 2293, 138 L.Ed.2d (1007)—referring explicitly to the Netherlands example, asserting that “the risk of … abuse is neither speculative nor distant.”

van der Wal G. , “Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands,” N. Engl. J. Med., 335 (1996): 1706–1711, at 1706.

Angell M. , “Euthanasia in the Netherlands—Good News or Bad?” N. Engl. J. Med., 335, no. 22 (1996): 1676–1678.

van der Wal , id. note 63, at 1701.

van der Maas P.J. , “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995,” N. Engl. J. Med., 335, no. 22, (1996) 1699–1705 at 1699.

Hendlin , supra note 61.

This is a point that T. Koch has made repeatedly in his writings.

The other modern example is the State of Oregon, which permits physicians to prescribe lethal drug doses under certain conditions. This law has been in place a very short time, and the results there are inconclusive. However, advocates point to the small number of such prescriptions written since the law was enacted and the fact that 1/3 of them have gone unused. They fail to mention that Oregon is also the only State in the Union that will not pay for antiviral drug treatment for AIDS patients. Apparently, the two year median survival rate of these patients is not worth it.

“Elderly Dutch Afraid of Euthanasia Policy,” Canberra Times (Australia), 6/11/93