The Kickham Comment - Boston Criminal Attorney Blog
In my previous two posts on this very important subject, I wrote of why this critical ballot question in Massachusetts should pass. In the first of these posts, I explained why I chose to write of this subject in this blog devoted to Massachusetts criminal law (as opposed to civil law,) and the reason was this: Because to deny terminally ill, suffering patients the right to direct the manner, means and timing of their own death, when they are terminally ill and suffering, should be a crime. In my opinion as both a Massachusetts defense attorney and as an individual citizen, the denial of this human right is truly unconscionable. Legally, it isn’t a crime. But morally, it should be.
My final post on this subject will be devoted to how opponents of this most modest and reasonable of proposals spin this issue, to create a maximum of fear and a minimum of truth in their quest to defeat this compassionate and reasonable public policy measure. In the interests of full disclosure, I should say here that I’m in a unique position to know how to design and execute political issues campaigns, as prior to practicing law I used to work full-time professionally as a lobbyist and Public Affairs Director for a statewide bar association. The opposition’s campaign strategy here rests largely on hijacking two largely ubiquitous human traits in most all people: Religion and fear. Exactly how do they hope to defeat your and my rights to direct the end of our lives if necessary? Take a look, as follows:
Strategy #1: Diction and language are critical. Keep repeating – as many times as literally possible (in print) or orally possible (if radio or TV) – the words “SUICIDE” and “KILL.” As in, “This measure would legalize assisted suicide and allow people to kill themselves.” This is designed to more than just subliminally infect the listener or reader with the most negative of emotions and visualizations: That a healthy and vibrant – but mentally unbalanced person – is “committing suicide,” and wishes to “kill himself.” These terms, repeated nonstop, fill the reader or listener with the typically negative, depressing and disapproving emotions normally associated with suicide. This is understandable, when a person is physically healthy but mentally ill, but those factors are completely inapplicable and irrelevant to this ballot question, which deals with people who are terminally ill, suffering, and who have been attested to by separate physicians as possessing the mental and emotional capacity to make this decision. But these facts don’t matter to the opponents of this measure. In every debate, in every forum, at every chance, they repeat the words “suicide” and “kill.” As a result, the undecided – and more importantly uninformed – voter is subconsciously filled with negative and disapproving emotions. Worse, he or she may not even consciously understand why these emotions have surfaced, since this psychological tactic exerts its force and influence largely on the sub-conscious or pre-conscious level. Note that the far more truthful, accurate terms of “assisted dying” and “death with dignity” — are intentionally, strategically never used.
Strategy #2: Make repeated, almost non-stop reference to the medical profession’s Hippocratic Oath, and its credo of “Do no harm”: This oath has existed since antiquity; hence the use of it by opponents of this question carries much philosophical weight. But the problem is that the oath is intentionally mis-used by opponents here. The opposition’s key with this tactic is to tie the word “harm”- and the very idea of “harm” – directly to physician-assisted dying and this ballot question. This idea, of course, is perverse. Why would anyone view as “harm,” granting someone their own wish to be relieved of physical and psychological suffering – when they are terminally ill and their death is imminent anyway? It boggles the mind that anyone would construe such a merciful act, as “harm.” Yet, it’s effective psychological warfare, and the groups that oppose this ballot question know this very well. That’s why you hear reference to the Hippocratic Oath almost non-stop in their advertisements and position papers.
Strategy #:3 Hype up as much as possible the claim that “the Massachusetts Medical Society opposes this ballot question.” This claim is, of course, designed to lend the weight and force of the doctors’ professional association to the opposition’s campaign. While the claim is technically true, what opponents of this ballot question don’t tell you about the medical society’s decision, is that while the political leadership on the medical society’s board of governors (perhaps a dozen or so politically-oriented physicians) generated enough political pressure and votes on the governing board to yield a formal vote opposing this question, many of the society’s rank and file membership – physicians across the Commonwealth – support passage of the question. There are thousands of practicing (and non-practicing) physicians across the state of Massachusetts who are in thorough agreement with this question – but voters aren’t told this, and won’t ever learn it. As one voter, I myself know several doctors who disagree with the medical society’s formal opposition to this question, but there is nothing they can do about changing it. So why did the medical society’s leadership press for a formal vote opposing this question? While their leadership would claim it has to do with the Hippocratic Oath and “medical ethics,” as a Massachusetts medical malpractice attorney, I can assure you that the concern over increased doctors’ malpractice insurance premiums was very present in the collective thinking of the medical society’s leadership. This is so, because the liability insurance companies that underwrite medical malpractice insurance would very likely increase premiums for Massachusetts doctors, even if the law exempted doctors from potential liability claims. The bottom line on the subject of the medical society’s public position on this question: If you think that this group is concerned with your best interests and your individual rights and civil liberties, you would be very wise to think otherwise. The Massachusetts Medical Society, like any statewide professional association, is a political organization that exists primarily to safeguard the interests of its dues-paying members. (As is true of any similar professional group, including the Massachusetts bar association, for that matter.) In any debate impacting professional interests, self-interest reigns supreme. While doctors are as fine a group of professionals as any other, and while I do not disparage them individually or as a group, their formal position on this issue is driven largely by economics – not your inherent civil liberties.
Strategy #4: Hijack religion and use it as fear-inducing propaganda. This is where the opponents of this question co-opt with religious leaders, to bring organized religion into play – primarily the Roman Catholic Church, but also the Jewish, Protestant and Muslim faiths, as well. The tactic here: Religious authoritarianism – religious leaders replete in formal garb, declaring that they know better than you and I do, what life is and isn’t, and what God “wants” and “doesn’t want.” The psychological subtext with this particular tactic: Fear. Of punishment; not in this life, but the next. And no matter what a person’s religion, that is one powerful weapon. “Life is precious,” is a phrase that is repeated non-stop in this campaign, and most often used by religious leaders. I strongly suggest that voters re-think the rote, un-analyzed nature of that statement. It is far closer to the truth to say that “QUALITY OF life is precious.” And without doubt or question that it is up to the INDIVIDUAL to decide – not the state, and not anyone else. If anyone doubts the notion that quality of life is what is important to most people, let them speak at length to someone who has been diagnosed as terminally ill, is deprived of all his or her happiness and personal dignity, and who would give anything to be granted one final wish: To direct the manner, means, and timing of a peaceful, painless, dignified death, with all his or her loved ones and friends surrounding him or her. Not to die tied to a bed, with a catheter in his or her bladder and diapers connoting infancy, and very possibly (if not likely) alone. I now know a man who has been diagnosed with terminal cancer, and he experiences the theft of his dignity, his hope and his comfort each and every day. With all the sincerity he could summon, he has looked at me and said, “Do what you can to make sure that nothing like what I am now forced to suffer at the end of life, happens to you or those you love. I would give anything to be spared this daily frustration, pain, and discomfort. How I wish this proposal were a current law that could benefit me, now.”
Strategy #5: Claim that terminally ill patients who would exercise this legal right, “are depressed” (and therefore must lack the capacity to make an intelligent decision.) This tactic declares a pretext that cannot be validly denied, for anyone that is given a death sentence would naturally be “depressed.” Yet the claim twists the meaning and context of the central thesis – the word “depressed.” What pure sophistry: Of course anyone who has been declared terminally ill is depressed. Wouldn’t you be? The question isn’t “Is such a person depressed?,” it is instead, “Is he or she so depressed that he or she does not know what they are doing, or does not possess the mental capacity to understand the nature of their decision in this matter?” And given that the ballot question’s safeguards that such a person must: A) Make the request for physician-assisted dying on at least two occasions; B) At least fifteen days apart, and C) Be attested to as being of sound mind by at least two physicians, then this “depression issue” becomes entirely moot, and nothing but pure deception and sophistry by opponents of this measure. It is a classic “red herring.” Yet that doesn’t prevent opponents from raising it, non-stop.
Strategy #6: Claim that if this measure is passed, it will create a “slippery slope” to euthanasia, allowing persons OTHER THAN THE PATIENT to make the request for assisted death, IN PLACE OF the patient. It’s important to emphasize those upper-cased phrases, because they are of central importance in this debate. Translated, opponents would have voters believe that if this measure is passed, doctors will at some point in the future be making unilateral, independent decisions to euthanize certain patients – – and that is the most ridiculous, histrionic claim imaginable here. We may as well be told that someday doctors will be chasing elderly and terminally ill patients down hospital corridors, armed with lethal cocktails. Greedy relatives seeking to cash in on an inheritance will “make the decision for” a terminally ill patient. Abuses will crop up left and right, and soon anyone with a terminal illness will be “euthanized” by medical professionals or family members. This is one of the worst deceptions in the opposition campaign. Such histrionics are shameful and pathetic. And once again, this tactic’s currency is the power of fear. This histrionic claim twists the truth to terrify voters of the falsity that this measure will eventually give parties OTHER THAN THE PATIENT the “right” to decree that “certain lives aren’t worth living.” Again, this claim is shameful. This ballot measure is about giving ONE person the right of self-determination and one person ONLY – the terminally ill patient.
Don’t let your vote be hijacked by a convenient and temporary alliance of largely self-interested physicians who fear potential liability claims, and pious religious leaders who claim to know what “God wants,” what is “best” for you, and what you can and cannot do with your life if faced with a horrid and frustrating death.
For your own sake and the sake of those you care about, vote Yes on Question 2, and preserve your legal and human rights in the process. This is not a medical issue, nor is it a legal issue or even a philosophical issue. It is a civil liberties issue and a human rights issue. Don’t let those basic and precious rights be taken away from you and those you care about.