While returning yesterday from the funeral mass of a friend who had passed away, at 71 (pancreatic cancer, a slow, painful way to go), the car radio was tuned to NPR's Science Friday where some medical doctors were expounding on the latest epidemic...childhood obesity, as opposed to adult obesity. This is going to lead to diabetes which is going to shorten the average American life-span by 3-5 months, which is greater than cancer. It's also going to mean that people will need more medical care for which they will not have medical insurance. The government may be picking up more of the tab, at great expense, all because we're eating too much.
Well, don't eat so much, the more conservative types may say.
Well, take care of us if we do, the more liberal types may say.
Where the middle ground is on this, I'm not quite sure.
But I do recall thinking this. Medical scientists are trying to cure everything. Would this be wonderful? How could you expect to die a natural death if you could take effective measures to prevent, starting from the head and working down: stroke, heart attack, lung disease, cancer, etc.
Let's say they're all preventable or curable, along with all the other diseases I haven't listed. What, and when, will you depart this vale, give up the ghost, buy the farm, give up this mortal coil, meet your maker, or otherwise pass away or die?
How great is it for all of us to live to the biblical 120? You should live so long.
The longer you live, the longer you work. Either that or you've been a wonderful saver and investor during your most productive years. Or you're a burden to others, your family or, perish forbid, the government. For everyone who is retired and receiving social security, it takes a certain number of workers to provide the necessary support. As the baby-boom generation, which represents a bulge in the profile of the American population, grows older and reaches Social Security age, there are fewer workers in the work force to support that burden, and given medical advances, the boomers will stick around longer, increasing the burden.
Social Security was a program that came in during the New Deal of FDR in response to the hard times of the Great Depression of the 1930s. In the 1936-1937 term, the Court upheld the constitutionality of Social Security in Helvering v. Davis. Helvering was the tax commissioner and Davis was a shareholder in a corporation that had been required to pay some $46 in taxes to pay for social security. Davis didn't think his corporation should be taxed to support old people who had nothing to do with his company. This was just government theft of his property without due process, stealing from the rich to give to the poor. So he sued over 46 bucks and a lot of principle. Was Social Security going to be upheld? Not if the Four Horsemen of the conservative wing of the Court had their say. Sutherland, Butler, Van DeVanter, and McReynolds were the conservative bloc who believed that a businessman's property was sacrosanct, untouchable by the government New Deal programs which were just socialism, as far as they were concerned.
The progressive or liberal wing consisted of Justices Cardozo, Brandeis, Stone, and the Chief Justice, who sometimes voted with the conservatives, Charles Evans Hughes.
The swing vote was Justice Burton Roberts. When he switched his vote away from the conservatives to join the liberals, it signaled a huge change in the direction of the nation.
Were you to view the nation as a huge aircraft carrier cruising along through heavy seas and turbulent storms, along with periods of calm, and it were run alternately a group called the Congress, a group headed by the President, and another group consisting of a Committee of Nine, you could imagine what it is like to make the vessel turn off its current heading. Even when a clear direction is commanded, aircraft carriers cannot turn on a dime. When the rudder changes direction, the cumbersome vessel lumbers forward for some distance before it slowly alters course over a period of miles and time, unlike a little speedboat which can seem to turn corners in an instant.
1936-1937 was a radical left turn for the country, as the conservatives saw it. Property was no longer the most important value in the country, people were. We were, for the first time, all in the same boat. The people making out the best were going to have to help out the people who weren't making out so well, and they screamed in anguish, for this is a socialistic or communistic principle, and that was the Devil.
There's a reason property is so well protected in the Constitution. Ownership of property is what separated you from the riff-raff. If you owned no property, you were riff-raff, and if you starved, you must not have worked hard or prayed hard enough, because God favored the rich. This was as self-evident as the idea that all men were created equal, which was a lot harder to accept. Everybody knew that blacks weren't equal; they were hardly regarded as people, or if they were, they must be some lesser breed. The propertyless poor were no better.
This was the attitude that persisted in large parts of this country until the Statute of Liberty case, Brown v. Board (1954), which rejected the notion that separate was equal. Separate was inherently unequal. WWII taught this country something big about the wages of racism. We call the wages of racism "The Holocaust." The Court, in Brown, incidentally, was not necessarly leading the nation. It was following public opinion that counted. Since then, the lesson of Brown has taken hold to a considerably degree, which is quite distant from full acceptance, but better than where we started from. We take pride in such progress as we are capable of making.
Germany makes an effort to teach its school children what racist language and ideas are, based on experience. Teachers take groups of students to Auschwitz and other concentration camps, where they have discussions about what it all means. Hitler learned a few things about racism from us. So we reject our racist past, most of us, but not all. Aircraft carriers take a long time to change course, and if the passengers and crew resist change, it's all the more slow and difficult to make the change.
During Oliver Wendell Holmes Jr.'s tenure on the court, he wrote the decision in the case of Buck v. Bell. The question was whether a state had the right to sterilize certain mental patients so they could not become pregnant. Who would take care of the babies of people who could not care for themselves? Holmes's answer was that the state could sterilize people against their will. "Three generations of idiots is enough," was his famous statement offered in justification of his position, which was the Court's position.
This opens the door to "eugenics," the idea that it's okay to kill off lesser people, sick people, handicapped people, and presumably anyone else you no longer wish to support. We are told that Hitler's men greatly admired this American idea. It helped provide a rationale for Aryan Supremacy. If we could have White Supremacy, why couldn't Hitler have Aryan Supremacy. Whites dominated Blacks in America, marginalizing, and making second-class citizens out of a whole race, so why couldn't Hitler do the same with Jews? And as long as we're at it, with Gypsies? And why not Gays? And Communists!
A few people here objected to what Hitler was doing to those folks in Germany, but they were derided as communists themselves. The U.S. was hugely isolationist at the time. We could stick our head in the sand because we had peaceful neighbors north and south of us, and an ocean on either side. We were an island of peace, while Europe was a boiling pot of trouble. Stay out we told ourselves, and those who said otherwise were looked down upon.
Charles Lindbergh, the great American hero, better known than Muhammed Ali and the biggest movie star you can name, who admired the German military buildup especially the Luftwaffe (and, it has been revealed, who fathered several children of a German woman) was a leading opponent of American intervention, setting himself up against Franklin Delano Roosevelt. FDR has long been accused, mainly by the right, to have engineered the attack on Pearl Harbor to bring us into the war against Germany.
After Pearl Harbor, it became politically a lot more correct to denounce Fascism in Europe. Fascism has so many meanings that it has none except for this; at bottom, it means rule from the top down. I recall a professor of corporation law, Miguel de Capriles, describing the corporate form of government as essentially fascistic for this reason. You did not want to be a premature anti-Fascist, for that would make you a probable communist. After Pearl Harbor, we were all anti-Fascists with a vengeance.
As I was listening to the doctors talk about this new disease they wanted to cure or prevent, on the radio in the car en route from my friend's funeral, I also reflected on a documentary film I'd viewed some time ago.
This documentary was about a nomadic group of mountain people in Central Asia, perhaps near Afghanistan, I no longer remember the name of the group or precisely where. This group of people lived by following their flocks of sheep and goats, which provided milk and meat for food and wool for clothing and tents.
The sheep and goats lived by following the grass as it began to grow at higher and higher elevations on the mountain range as the winter snow melted in spring time, baring the ground, watering and opening the green meadows.
As the snow melted more and more when spring turned to summer, the trickle of melt water turned into a rush of raging streams, which the sheep, lambs, goats, kids, adults, children, and grandparents followed their life-sustaining flocks.
Of the many challenges faced by these hardy people, who made the trek up in spring and the trek down as winter approached (this yearly up and down mountain trek is called the annual transhumance), the most difficult challenge of all is crossing the raging streams by all of these animals, people, and their worldly goods, cloth tents, woven carpets for insulation, frame looms, clay pots, etc.
There are no bridges and no fords for these swift moving, deep streams, you have to wade into the barely above 32-degree water and swim across. You have to help your animals swim the stream. You must go downstream after the animals (and humans) swept downstream or lose your food and clothing supply, and people. You must carry your children across, and your wife, if she's pregnant. And your parents.
Eventually there comes a day in every family when the grandparent, having become elderly and infirm, can no longer make the crossing of the raging stream. The old one says, "I can no longer bear to enter this cold stream, make the crossing, and continue to be a burden. I am no longer able to follow the flock." For him, or her, the annual transhumance has come to an end. But there is no convalescent home for this grandparent, no board-and-care home, and no hospice.
When no longer able to cross the mountain stream, here is what happens to you, or your grandparent, according to this documentary, which showed what you did.
Having come to a recognition, along with the grandparent, that his or her last stream had been crossed, you laid out a mat, on which the old one sat, and said farewell. You provided a jug of water, and a bowl of food. You crossed the stream with the flocks, the children, and the adults, but you left one person behind, for the night.
There are wolves in these mountains.
When morning comes, there is no more grandparent left alive. Nature has provided a natural death, probably not a much worse death than pancreatic cancer, but a necessary death, if necessary means no longer able to contribute to the survival of the family or the group.
And so the question seems natural to ask, "When we have discovered the means to prevent or cure all disease, how are we supposed to die natural deaths, and when? Unless old people die, are young people supposed to support them forever? Isn't that what the age-old wish for eternal life on earth requires?
With the nomadic people of the transhumance, the answer is clear. When the aged and infirm can no longer cross the stream as spring turns to summer and summer to fall, there being no alternative, they must die, and it is seen as sad, natural, inevitable and just. Death is a part of life.
What is our answer to this question?
Ours is to build more board-and-care homes to keep death from the door, for as long as humanly possible. We have to tell life savers please not to try so hard. "No heroic measures," and "Do not revive," must be written into living wills and hospital charts to avoid being forced to live a life deemed no longer worth living.
Deemed by whom? The patient? The spouse? The parents of a married patient? Suppose there's a conflict between the spouse and a parent? Who has the final say? Individual sovereignty over ones own life, or a spouse's, or an adult married daughter, say.
Today's news contains the ongoing story of a woman named Terri Schiavo, 41, in Florida, who has been in a Persistent Vegetative State (PVS) for fifteen years, which is a long time to lie in a bed unconscious and having to be fed through a tube. Her quality of life is not good and the odds are long against restoration to the least bit of consciousness or functionality.
Terri Schiavo has been kept alive through intubation, meaning that liquefied food is provided to this unconscious, immobile, non-responsive person for a very long time. She is legally married to a man who sued and collected over 1 million dollars from an insurance company which paid on behalf of someone said to have helped cause this PVS to occur, to pay for her future care.
But now, after having collected the money, the husband says, as he didn't say when going after the money, that Terri Schiavo had expressed the wish not to live as a vegetable should anything ever to wrong, which it did. He now wants to remove the water and nourishment which is keeping her alive. He wants to pull the tube. It was pulled yesterday, and Terri Schiavo is now in the process of suddenly dying. It might take two weeks, at most, before the wolves carry her off.
There has been a court and a political battle because the woman's parents want her kept alive. They point to the husband's new woman who has borne him two children. He's moved on, the parents of Terri Schiavo say, so let us care for her. The Florida courts have denied this request. The U.S. Supreme Court has refused to step in.
But Congress has tried to step in, yesterday. A committee of Congress has served a subpena on the unconscious Schiavo, commanding her to appear before Congress as evidence of something, I know not what. Nor do I know what power Congress has over such a question. But if the husband allows the woman to starve or thirst to death while under subpena, Congress is threatening him with tampering with the evidence. Perhaps you think I'm making up a story to make some point, but I'm not, I'm simply repeating a story that I get from the news, just as you might.
Social conservatives, often Republican, seem to want what they call "a culture of life." They are pro-life when it comes to fetuses, and pro-life when it comes to PVS patients, but anti-life when it comes to the death penalty. By being pro-life when it comes to PVS patients, their position seems consistent with being pro-life for fetuses, thus anti-abortion, anti-Roe v. Wade. But they are pro-death even for juveniles, as witness the recent Ropers v. Simmons decision outlawing death for juvenile killers, and Atkins v. Georgia, an earlier decision outlawing death for the mentally retarded. These criminals have earned the right, or duty, to die, is, I guess, the correct conservative way to view the matter.
I would not like to go down the Hitler road, myself, and would thus oppose what I thought smacked of "eugenics" or the elimination of the handicapped. "We don't eliminate people in wheelchairs, do we" I heard one advocate for Schiavo's continued living. No, we do not, and should not. People should be allowed to live their lives and die natural deaths. The Wolf will come soon enough for us all.
But what happens when we, through new medical techniques, artificially prolong life beyond the point where we can support large numbers of sick and elderly.
Have you heard such questions discussed? I must've missed it in the daily news fare in my papers, NPR, and on the internet.
Well, that's all I have on matters of life and death for today.
Maybe tomorrow will provide some answers.
Meanwhile, these afterthoughts...
See:
- Million Dollar Baby, starring the lovely Hillary Swank (Best Actress), Clint Eastwood (Best Director, Picture) and Morgan Freeman (Best Supporting Actor). Note particularly the Morgan Freeman character who observes that people die all the time. It can't be helped. You get one chance at life. The Hillary character had her chance and made the most of it. What more could one ask? If she says it's time, it's time, and there's no use bemoaning the process that we all must face. Rather we must stand up and accept the inevitable, and if that means honoring a request for help, where's the dishonor? Freeman is displaying a philosophy of living and dying.
- The Greeks had a philosophy which held, "Don't call a man lucky until you've seen how he died."
- Washington v. Glucksberg (1997, Rehnquist writing for a unanimous court) on whether a state may, without violating a patient's liberty to control the manner of his/her death, prohibit a physician from assisting a patient who requests it to "die with dignity," i.e. to end one's life rather than, say, have it torn to pieces by the wolf, or wolfpack, of a painful form of incurable cancer where the only care is palliative using ever greater doses of morphine while one wastes away in a drugged state of consciousness or sleep and destroying the warm memory, presumably, of oneself that we may like to leave with the living.
As you might gather from that fact that Chief Justice Rehnquist, the senior member of the conservative troika which also includes Justices Antonin Scalia and Clarence Thomas, wrote the opinion, the Court holds without dissent that the state does have the power to prohibit a physician from assisting even a dying patient who requests a hastened death, from dying, by, say providing a fatal overdose of sleeping medication or pain-killer.
Dr. Death, Jack Kevorkian, M.D., has gone to prison for life for assisting one-too-many terminally ill patients die, usually by rigging a contraption that when triggered by the patient, releases a fatal flow of drug overdose.
Then there's the morbid joke about the person who, to make sure he doesn't wind up in a situation where he cannot control his manner of dying, has Kevorkian's number in his speed-dialer.
- Note the Cruzan case, discussed Glucksberg, supra, recognizing that a patient, meaning each of us, has, a due process liberty right under the 14th (and 5th) Amendments to refuse unwanted medical treatment, including intubation of medicine, air, food and water.
- It appears, thus, that you may do yourself in by refusing unwanted prolongation of life, but you may not request palliative care that hastens ones demise.
On the subject of hastening to the grave, you may recall the old law school criminal law saw about the definition of murder:
You are planning to shoot your neighbor who just happens to be standing on the edge of the roof of the tall building in which you both live as you are checking your gun to make sure it is loaded and ready to fire.
Your neighbor, however, plans to deprive you of the pleasure, as he plans to commit suicide by leaping into thin air, many stories above the ground.
You, however, plan to deprive him of the pleasure of denying you the pleasure, and you shoot him fatally as he falls, just before his now dead body hits the ground.
Are you guility of murder?
Yes.
Murder is defined as the unlawful killing of a human being, with malice aforethought.
This means a living human, no matter that he is a fraction of a second short of certain death without your help.
You've hastened him to the grave.
The title of a book about a case I'm familiar with, called Foxglove, is Hastened to the Grave, by the late Jack Olsen, who before he wrote this pastiche of news articles, was considered a good writer. Unfortunately he didn't write a book about the real case, because his came out before the indictment, which is when the real evidence was provided to yours truly.
The prosecution theory was that a young Gypsy woman was dosing nonagenarians with digoxin to hasten them to the grave in order to inherit vast sums of money, using an unprescribed heart stimulant which can be fatal in high doses, just as alcohol and water can be fatal in high doses. Poison, in other words.
In fact, as a seventeen-year-old, my client had married a man of 89 years, who did, in fact die two weeks later and she did inherit a quite considerable pile of cash and his large home in a nice area. And now she was keeping company with two other 98-year-olds, one of whom told police he wanted to marry her. "Hope springs eternal," he said. I always liked that part.
The evidence at trial showed that the medical examiner made a teeny tiny little mistake in testing a blood sample and told police and prosecutors that he had found a tenth of a billionth of a gram of this medicine in the blood sample of the man who wanted to marry my client. But no other laboratory could replicate his result. And there was no will or other document providing her any benefit if he died. It didn't make sense to me that she would make a practice run before her name was in the will. That might just send him off to be checked and the plot, if there were a plot, would unravel. No. The unbreakable rule among all poisoners-for-profit is "First the Will, then the Poison." In unison now, so we don't forget: "First the Will, and then the Poison." Got it? The prosecution didn't, and so they did what prosecutors like best to do: they prosecuted.
I know something about prosecutors because I used to be one, for seven years. I've been in the accusation business for multiples of seven years. I know a bad prosecution when I see one. This one had an odd smell.
As it turned out on cross-examination by an attorney who had taken the trouble to learn the right questions to ask and in which order, the medical examiner had not only used the wrong test, and miscalculated, but he mis-recalled the threshold level of the test. It was no good below a certain level.
The test he used required at least 10 times more digoxin before the test could validly detect digoxin. It was used in hospitals to detect only massive overdoses of digoxin, such as occur when somene takes his daily digoxin pill in the morning but later forgets and takes another, and maybe another. Digoxin intoxication results and you wind up in the emergency room appearing somewhat as a drunk. They do an EKG and take a blood sample using this test, which confirms that you've overdosed, even if you've forgotten how many pills you took. Rarely is digoxin intoxication fatal. It wears off, as though you were becoming sober through ordinary metabolization.
The medical examiner, a medical doctor and experienced pathologist, acknowledged mis-recollecting the threshold level of usability for this test. It was never designed for measuring the last molecule in the blood. It was designed to detect WAY TOO MUCH OF THIS SUBSTANCE IN THE BLOOD.
That's why the manufacturer warned users not to use it to try to detect tiny amounts below a certain level, and why no other lab could ever find, on retesting, what this medical examiner claimed to have found. The body, incidentally, naturally produces tiny quantities of the substance. Tea, coffee, chocolate, also contain the substance measured by this test, as well as does any medication containing theophyllin.
The medical examiner would have gotten the same result had he tested 100% pure distilled water.
Thus was the foxglove taken out of the Foxglove case, resulting in its dismissal after a young woman spent two years in jail for a crime no one committed, and avoided spending a lifetime in prison for a crime no one committed, which may be a fate worse than death.
- The fact of the matter is that death is like water and people are are like wooden hulls. No matter how much care is taken to avoid the reefs and shoals of life, and collisions with other vessels, eventually the wood must rot and the vessel either sinks or is scrapped or hauled up at the boneyard. The boneyard the place where unseaworthy vessels lie alongshore, rotting away, never again capable of sailing the seven seas. Dead but unburied in other words. With humans, however, we like to say a few nice words over the body and paint a word-picture of a joyous future in an imagined hereafter with loved ones who have gone before, living now in the bosom of the Lord. Ashes to ashes, dust to dust, but life everlasting. Would it were true.
This is a lot prettier picture than the actuality of real life, where the wolves or the cancer get you no matter how hard you might pray for deliverance. And so you make the request that the Million Dollar Baby makes of her loving manager.
Let this be a warning not to attend funerals.
RIP, Peter Aviles.