|In support of
the Pain Relief
Promotion Act of 2000
Rabbi J. David Bleich
Rabbi J. David Bleich
April 25, 2000
My name is J. David Bleich. I am a Professor of Law at the Benjamin Cardozo School of Law, Professor of Talmud and Director of the graduate program in Jurisprudence and Family Law at the Rabbi Isaac Elchanan Theological Seminary, as well as Herbert and Florence Tenzer Professor of Jewish Law and Ethics at Yeshiva University. I have been requested by the Union of Orthodox Jewish Congregations of America to testify before the Senate Committee on the Judiciary regarding the proposed Pain Relief Promotion Act.
Permit me to make to make two points at the outset. Judaism places the highest importance on palliation of pain, particularly in the case of terminal patients. Jewish law regards pain suffered by terminal patients as life-threatening, in the sense that such pain has the potential for compromising the brief longevity anticipated for the terminal patient. I believe this teaching to be grounded upon physiological realia. I also believe that this principle represents an irrebuttable presumption of Jewish law, not subject to empirical refutation. Such presumptions are recognized in virtually every legal system. A good example is the common law presumption that a husband is the father of the child of his lawfully wedded wife so long as he was physically within the boundaries of the five seas of England during the requisite time period, with the result that no person can be heard by a court of law to challenge that presumption.
In light of its presumption regarding the life-threatening nature of pain, Judaism permits, and indeed mandates, violation of religious strictures such as Sabbath restrictions and the like in order to alleviate the pain of patients in extremis. For precisely the same reason, Jewish law endorses use of pain relieving drugs even in situations in which administration of the drug carries with it a statistical danger of foreshortening life. That risk is treated no differently from the risk associated with any other hazardous procedure which, when successful, is designed to prolong life.
It should also be noted that, for similar reasons, Jewish law sanctions violation of religious law in order to assuage the otherwise uncontrollable crying of a child, as in the case of an infant who becomes traumatized upon locking himself in a room. There is also substantial rabbinic authority sanctioning acceptance of potentially hazardous procedures for elimination of chronic pain even in the absence of a terminal condition.
Accordingly, Jewish law and tradition would enthusiastically endorse the provisions of H.R. 2260 designed to encourage more extensive and more effective palliation of pain.
Let me preface my second point by saying that at times I find myself suffering from intellectual schizophrenia. There are occasions on which I do not know whether to don the jurist’s wig or the rabbinic skullcap; occasions on which I do not know whether I should respond as a Professor of Law or an expositor of Halakhah (Jewish law). The responses of those two personae are not always univocal. In addressing the question of assisted suicide, however, I experience no conflict.
Judaism teaches that suicide is an offense against the Deity who is the Author of life. Common law regards suicide as an offense against the temporal sovereign. The interest of the State in preventing suicide was first articulated in the sixteenth century British case, Hales V. Petit. In Hales the court enumerated a number of diverse objections to suicide. One crucial consideration is that suicide is a crime “[a]gainst the King in that thereby he has lost a subject...one of his mystical members.” Suicide may be prevented – and punished – by the King because it constitutes interference with his rights as monarch. In his Commentaries, Blackstone writes that “[T]he suicide is guilty of a double offense; one spiritual in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects...”
The common law notion of preservation of life as a monarchical prerogative has been transformed in American legal theory into an inherent function of government. Thus Thomas Jefferson wrote, “[T]he care of human life and happiness, and not their destruction, is the first and only legitimate object of good government.” In the United States, the State interest in prolongation of life has been tempered by the decision of the New Jersey Supreme Court in In re Quinlan, which expressed the notion that the State’s interest weakens and the individual’s right to privacy grows “as the degree of bodily invasion increases and the prognosis dims.”
However, Hales identifies a further State interest in prohibiting suicide, in declaring that suicide is an offense against the King in that “the King who has the government of the people [takes] care that no evil example be given them.” Killing invites imitation; therefore, self-destruction serves as an “evil example” encouraging emulation by other susceptible members of society. Suicide “infringe[s] upon the King’s peace” because a suicide is not an isolated individual act. The harm is not really to the king as an individual but constitutes an offense against society because of potential harm to others. If openly permitted, suicide diminishes commitment to the preservation of life and compromises the State’s interest in preserving respect for life which constitute the fundamental underpinning of the social fabric.
Our legal system, in balancing the interests of the individual against those of the State, cogently distinguishes between refusal or withdrawal of life sustaining measures and overt, active termination of life. Medicine is not merely an art or a science; it is a calling and a vocation. Judaism teaches that physicians practicing the healing arts function as agents of the Divine Healer. Physicians are charged with preserving and prolonging life; in taking the Hippocratic Oath they solemnly pledge themselves to do so. Physician-assisted suicide – or, as I have called it, “thanatology,” the science of death -- is antithetical to the values and mores of the healing arts and dare not be allowed to emerge as a new area of medical specialization. Availability of physician-assisted suicide represents a Copernican revolution in the physician-patient relationship. Physicians would perforce become agents of death rather than of life, purveyors of despair rather than of hope. Legalization of physician-assisted suicide would pose the greatest threat to the poorest and most vulnerable of our patients, those without the means and the stamina to withstand pressure, both subtle and not so subtle, for acceptance of termination of life. For those reasons – and for others as well – the New York State Task Force on Life and the Law on which I serve was unanimous in its recommendation against legalization of physician-assisted suicide.
It is the issue of assisted suicide – and only the issue of assisted suicide – that is posed by H.R. 2260. This Act permits and indeed encourages palliative care in a manner heretofore never enshrined in statute. The bill pays full deference to the physician’s judgment with regard to dosage and titration, so long as there is no demonstrable intent to cause death. The bill establishes no new investigatory or regulatory process; it mandates no expansion of Federal authority. In no way does it hamper the practice of medicine or interfere with the physician’s exercise of professional judgment. Its effect is to encourage meaningful pain management and to provide full protection to medical practitioners who provide palliative care.
The bill recognizes that, at present, physicians are woefully undertrained in pain management and provides funding to expand educational programs in that area. Such training programs should certainly stress that a physician engaged in bona fide pain palliation need have no fear of adverse legal consequences.
The effect of H.R. 2260 is solely to remove the Federal imprimatur for assisted suicide. Controlled substances may be dispensed only with a Federal license and only for purposes approved by the Federal government. Use of controlled substances in physician-assisted suicide implies that such action is not inimical to the mores of our society as expressed by the Federal government. Federal licensure implicates the citizens of all States in an act that is morally repugnant to the majority of our populace and offensive to the traditions of this country. Forbidding such use will not prevent assisted suicide in a jurisdiction in which it is not otherwise contrary to law; rather, it loudly and unequivocally affirms the Federal government’s commitment to the moral values and common law principles enunciated in Hales.