What would John Courtney Murray say? On abortion & euthanasia

How then to respond from within the context of Murray's social theory? The indicators at first appear mixed. On the question of privacy, there are analogies with both abortion on the one hand and contraception on the other. Suicide is analogous to abortion--and therefore not a matter of privacy--because the grave matter of taking a human life is involved. Indeed, with suicide, it is certain that one is taking a human life, while with abortion, it is a strong probability. When the question is abortion, the moral injunction is that it is wrong to risk murder. On the other hand, assisted suicide is analogous to contraception in that--at least in the cases that Rothstein and Dworkin want to allow--the person to be killed not only consents, but actively seeks out the assistance. Here, the privacy of the relationship between doctor and patient is analogous--with some crucial disanalogies--to the privacy of the spousal relationship in the purchase and use of contraceptives.

Public opinion on assisted suicide is also difficult to read. Voters in California and Washington have rejected measures that would have legalized euthanasia, but by relatively small margins. A version of the question is on the ballot in Oregon this November. Perhaps more telling is the response of the jury in the Jack Kevorkian case in Michigan. Under Michigan law, Kevorkian should have been convicted. Physician-assisted suicide is illegal. However, there is a "medication clause" in the law to allow the prescription of drugs that might shorten a patient's life even as they relieve pain. This is so that the law can not be used to challenge the prescription, for instance, of low doses of morphine. Still, Kevorkian seized on this clause to make the case that the real and only aim was to relieve suffering, even though carbon monoxide--used to kill Thomas W. Hyde, who was suffering from Lou Gehrig's disease--has no medicinal value and is certain to bring about immediate death. When pressed by the prosecution, Kevorkian equivocated, "I had a fairly good idea that he would die, but my expectation was that his suffering would end." The fact that the jury did not convict him when, under the law, it should have, is a strong indicator of where much of public sentiment lies. In post-trial interviews with jurors, the language of private choice came to the fore: "I don't feel it's our obligation to choose for someone else how much pain and suffering they can go through....I feel each person should be able to make their own choice." This statement makes clear that the law itself, and not Kevorkian, was on trial. If the jury thought the law was fair, he would have been convicted. In deciding the case, the jurors, in effect, threw out a law that was in their minds not so much unconstitutional as in conflict with their feelings and beliefs.

Aresponse from the Murray tradition might offer a two-pronged approach.

First, the gravity of what is at stake in assisted suicide is much greater than that of contraception. Therefore, even if it could be argued to be a matter of private morality, it should be one of those instances where the law still ought to prohibit the practice. There are at present about thirty states that have such laws. Unlike the case of abortion then, it is not a matter of putting new laws into place, but primarily of maintaining those that are already on the books. Still, given the tenuous nature of whatever consensus may exist against assisted suicide, it is imperative that Catholics address the issue of the role that intermediate institutions can play. In particular, the church can foster attitudes and practices which make the norms of Catholic teaching more plausible and possible to live by. This would require an expansive practice of hospice on the part of the Catholic community. As in the case of aiding women with unintended pregnancies, it would have to be of a magnitude we have yet to fully realize conceptually or in practice.