The End of Democracy? revisited

One thing I hope it means (without hoping that the state keeps moving in this direction) is that the schisms within "Mere Christianity" (Conservative Catholicism, Orhtodoxy, and selections within Protestantism/Evangelicalism) will be forced to mend their cracks and fight the common evil.

Except, Rod, if you read Bl. von Galen's sermon, he only challenged the right of the German government's euthansia program. He did, however, profess loyalty to the German Reich and to its war against the Allied powers - he did not advocate overthrowing the German Reich a la the White Rose Society. To the extent that the First Things crowd says that the Federal Government as such no longer has legitimacy, they have crossed the line from heroic conscientious refusal to do evil -- even to the extent of disobeying a judge, law enforcement official, or President/Governor -- towards sedition and treason as such. If Bl. von Galen remained loyal to the Reich and St. Edmund Campion remained loyal to Queen Elizabeth, then so should Neuhaus and Co. remain loyal to the Federal government.

If only Cardinal von Galen had bothered to mention that other little holocaust that was going on at the time...

Ron--when you say "Neither of them makes more than a passing nod toward Christianity," you really mean [i] your kind [/i] of Christianity. Hillary Clinton seems sincere in her profession of Christianity; I'm not sure who else you meant: Romney, a religious guy, but not "your kind"? As for Rod's point, about the slide down a slippery slope, it's worth pointing out that most times, civilization doesn't, and you don't have to overthrow the government to stop it. The doomsday senario just doesn't come to pass. Reading Prayers of the Assassin (forget the author, Rod blogged about it several months ago), after a supposed (peaceful) Muslim conversion of most of Americans and subsequent suspension of the Bill of Rights, I thought, "The people in Wisconsin and Upper Michigan are not going to give up their guns because someone in Washington says so." I just couldn't buy the premise of the book. And as the bumper sticker says, "You can't love your country and hate your government."

In my cynical silence, now broken, I'm calling Smith a liar.

Of course, you have to be a man to play chicken with the badguys. Ouch! If this wasn't so true it would be pretty funny.

No, Smith is not wrong. Look at the entire proposed law at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_0351-0400/ab_374_bill_20070215_introduced.html Under 7198(d),a "health care provider" (e.g., Catholic nursing home) need not "participate" in assisted suicide (e.g., provide nurses or lethal drugs for this purpose). But under 7198 (b), no "health care provider may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating [in assisted suicide]. . . in good faith compliance with this chapter." At the very least, this means that the Catholic nursing home cannot discipline employees (i.e., nurses) or independent contractors who come into the nursing home to treat patients (i.e., doctors) who choose to assist in a patient's suicide. So these facilities have to allow assisted suicide on their premises.
This is reinforced by the fact that under 7189 (e), only "a general acute care hospital, as defined in subdivision (a) of Section 1250, may prohibit a licensed physician from carrying out a patient's request under this chapter on the premises of the hospital if the hospital has notified the licensed physician of its policy regarding this chapter." Under the fundamental priniciple of statutory construction, when one or more things of a class are expressly mentioned others of the same class are excluded (expressio unius est exclusio alterius). So the fact that the statute only states that acute care hospitals may forbid assisted suicides in their facilities means that no other type of facility (e.g., a nursing home) may.

Franklin, T. Marzen is right.
California Health and Safety (CHSS) Section 1250(a) distinguishes a "General acute care hospital" from a "Skilled nursing facility" [1250(c)], an "Intermediate care facility" [1250(d)], etc. Section 7195(b)(2) of the legislation declares: "It is the intent of the Legislature that this chapter be strictly construed and not expanded in any manner." Therefore only a General acute care hospital as CHSS 1250(a) defines that term is exempt from allowing doctors to allow patients to choose this care. To my mind, there are even more disturbing portions of the law. Sections 7197.3-7197.7 declare that a qualified patient's exercise of rights under the law trumps every other expression of interest, including wills and insurance contracts. Therefore, one could not create a document that would prevent a future choice of the "aid in dying" the law is designed to guarantee.
Also, no insurance company or fraternal benefit society could refuse to fund that choice. A health or life insurance policy is a legal contract made under certain conditions with certain understandings in place. Generally, if either side turns out to have materially misrepresented itself, the contract can, within certain time limits (usually 2 yrs.), be reformed (changed) or rescinded (rendered void from the get-go). (As an acutely relevant example, life insurance policies are generally considered void if the life insured is lost to suicide before the policy is two years old). In a word, the California legislature is now requiring that all such insurance contracts be re-written de facto so that they cover things that were never intended when the contract was agreed to. Also, the law would require bodies that might not agree with the choice of what the law calls aid in dying --e.g., a Catholic fraternal benefit society--to fund that choice or stand in contravention of the law. Finally, as T. Marzen pointed out, only hospitals that provide surgery could opt out of allowing a patient to choose "aid in dying" within their walls. And even then such hospitals would be required the hospital to refer the patient to an institution that will allow that choice according to the law.
Outside the sphere of positive law, this law's passage and execution would foster the idea that aid in dying is the natural and inevitable choice for the weak and burdened terminally ill, who also happen to be particularly burdensome to care for. But that last, I can hear the defenders of this law say, has nothing to do with this legislation. This is all about their comfort, the comfort of the terminally ill. And I think to myself, yes, like MTV is all about young people expressing their individual selves.

A liar? Really? Hard to do when I link the legislation for all to read for themselves . At most, my interpretation could be wrong. But it isn't. A good way to judge a person's character is their willingness to call names. I urge people to read the entire FT blog entry and see how I came to the conclusion I did. I will summarize 1) No health care provider (meaning a nursing home, hospice, etc.) can punish, censure, discipline, suspend, cause loss of privileges, etc., against any person (which could mean the patient or a doctor, or a staff member) for participating in an assisted suicide.
2. Only acute care hospitals are given the right to refuse to permit assisted suicides to take place on their premises. ergo, 3) If a patient wants assisted suicide while in a Catholic nursing home or in-patient hospice facility, or a staff doctor wants to assist such a suicide, there would be no way to prevent it from being done on premises since no one involved could be punished or sanctioned in any way. And, since nursing homes, hospices, group homes, etc. are not given the right under the law to state that their premises are assisted suicide free zones--remember, only acute care hospitals would have that right-- there is nothing the disagreeing nursing home could do to stop the assisted suicide from occurring on premises. They would not have to do it themselves, but they would have no way to interfere. Indeed, the censure provision could be read to hold they cannot even express their displeasure.
This would place Cath. nursing homes and others that would disapprove of assisted suicide in a terrible position, of either acquiescing, selling out to others who would not object, or going out of business. I can see no other way to reasonably interpret the language of the legislation even if I am a senior fellow at the Discovery Institute, which of course, means that facts do not need to be rebutted, only names called and motives questioned.

I hate reading laws(boring & too full of legal gibberish), so I'm going to assume that Mr. Smith is correct. It's not hard for me to believe that the legislature would not make an exception for Catholic nursing homes. I seem to recall a similar complaint in Massachusettes when a law was passed saying that adoption agencies couldn't refuse gay couples the right to adopt. I believe(really lazy today & don't want to look it up)that there was some discussion on b-net because Catholic adoption agencies stopped providing adoption services in that state. We make allowances for conscientious objectors in times of war. I realize that this law does that because it permits individuals to not participate in assisted suicide. However, it seems to me that the legislature needs to recognize and respect the right of religious institutions to determine what services they will and will not provide. Individuals can decide who will or will not get their business based on those decisions. I don't agree with many of the positions that religious conservatives have taken in terms of setting public policy for those who don't share their religious beliefs, but I do admire how they have gone about fighting the "culture war." It can and should be fought within our system of electing representatives to make our laws. It was working. The Supreme Court has changed. It's my understanding that many conservative judges have been appointed at the federal level throughout the land. Catholic conservatives could work to get fellow Catholics on board to influence elected representatives in their area. I don't know what the numbers look like in terms of Catholics in California, but it seems to me, this battle could easily be won if Catholic voters cared enough to protect their Catholic institutions.

Well, Mr. Smith (and I don't believe in adversarial debates being necessarily personal, so I'm willing to be on a first-name basis if you are), if we were in a formal discussion environment, including being under oath, I'd still call you a liar. It fits the situation as I see it so far. I'll offer an apology when I see evidence that you are not being wilfully wrong, and you can pursuade me of that very easily, to wit: (d): No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement to participate in the provision to a qualified patient of medication. If a health care provider is unable or unwilling to carry out a patient's request under this chapter, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider. Emphasis added by FE. Rewrite your logic citing the above-quoted section. Explain how it does not contradict your conclusions. Show why a health care provider is given instructions concerning a patient denied the requested service. Show me where any section of the law defines any adverse consequences for that denial. All the sarcasm (mea culpa) and extra rhetoric aside, until you address that contradiction, plainly shown in the legislation for all to read for themselves, I have no logical choice but to challenge you on this level. I don't have your credentials, I'm sure. All I have is 14 years of reading large sections of the Internal Revenue Code, tax laws, amendments, temporary regulations, proposed regs (and commenting on them) and final regs. I was, while I was active in the industry, a recognized expert in this admittedly very limited area. However, in the construction and interpretation of laws, I have little doubt in the skills I acquired under the training and mentoring of credentialed experts. And I promise you, if you catch me in a lie, I will treat that challenge with due respect. You can take it personally and decline an answer, or you can show me where I'm wrong. Watsy, my friend, please read the proposed legislation and avoid making assumptions.

Ad hominem arguments are fallacious. Only so long as the ad hom isn't true. The Discovery Institute's track record is visible for all, read their "wedge document". After awhile, it becomes pretty safe to assume anything uttered by their quacks is unrelaiable (call wolf one too many times and nobody will listen the one time you may be right)

Franklin Evans: You are being willfully thick. The language you quote, "No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement to participate in the provision to a qualified patient of medication," means that the health care provider (e.g., nursing home) need not itself participate in assisted suicide. But other language in the statute also forbids the nursing home from disciplining anyone on staff or treating a patient in its facility from assisting in a suicide. So the nursing home can do nothing to prevent assisted suicides in its facility. Mr. Smith is right about this, and you are wrong.

Rod -- As a Christian who embraces (or tries to, at least) the Seamless Garment Christianity, I have sturggled greatly on this issue in recent years. In my devotions, I have come to believe the Two Kingdoms view is an important one for Christians. The wonderful, free United States of America is not the kingdom to which I owe my loyalty. It is the kingdom of God. I had long believed I could best support the kingdom of God by working through our political system to help others. But I no longer believe that to be true, because the political system (although probably the world's best) is broken, just as humanity is broken. What will happen as these laws binding Christians (no Catholic adoption in Massachusetts, public school curricula that support behaviors anathema to Christians, Christian ministries barred in prisons, etc.) become more prevalent is that we must continue to show our allegiance to the kingdom of God, even if it means we do it in a prison. Paul did some of his best work there.

Aaron, I am the Beliefnet Volunteer host for the Evolution/Creationism debate board in the Bnet Discussion community. While you are welcome to question and disagree with my conclusions, you are wrong about my level and amount of exposure and knowledge of the Discovery Institute. You may not appreciate this, but as a Pagan I am very sensitive to being labeled and summarily dismissed. If I offer Mr. Smith respect, it is both sincere and consistent. I have meetings to attend. I'll be back to respons to T. Marzen etc. when I find the time.

Sorry, Franklin. I read the legislation. The experience wasn't as painful as I expected it to be. Franklin's right. f) "Health care provider" means a person licensed, certified, or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or practice of a profession, and includes a licensed health care facility. (d) No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement to participate in the provision to a qualified patient of medication. If a health care provider is unable or unwilling to carry out a patient' s request under this chapter, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider. It seems pretty clear. Health care providers don't have to provide this service, but they do have to make arrangements(transfer the patient) to a facility where the request will be honored. There needs to be clarification in the law about the provider(facility) being able to write policy forbidding the execution of this service with the authority to terminate privileges of a physician who ignores the policy. If providers (attending physicians)can ignore the rules of the establishment without consequence, then it's fair to say that a provider(health care facility)doesn't have any control as to what goes on in their facility.
It seems to me that the legislature didn't consider that 2 providers(physician and facility)might be at odds.

I have read the legislation with some care. It may be that there s some legal ambiguity that I didn t have the expertise to recognize. As a lay reader, though, it seemed to me that it was crafted with almost torturous care in an attempt to achieve neutrality. It certainly did not appear to be an attempt to get the Catholic church in some way. I assume the legislators were responding to what they believed to be the wishes of their constituents--isn t that what usually motivates legislators?--to bring some end of life issues into better regulation.
The intent seems clearly stated in Article 1: The Legislature believes that dying patients should have choices throughout the continuum of palliative care and that much must be done to improve access to hospice care and pain management. Hospice and effective palliative care successfully assist many thousands of terminally ill patients to die with dignity and without pain, and the Legislature hopes that all patients considering the procedures available under this chapter will properly consider other options, including hospice care and effective pain management. The Legislature finds that medical studies have shown that between 5 and 10 percent of dying patients experience severe pain and suffering that cannot be palliated by the best hospice or comfort care. The Legislature finds that in response to the Death with Dignity Act in the State of Oregon, that the referrals to hospice increased significantly. In addition, doctors significantly increased the use of morphine and other strong pain medications, thus improving the end-of-life care for more dying patients. I thought the law tried very hard to make sure that no one would be compelled to participate who did not want to. My reading of its intent was that it was designed primarily to prevent prosecution of those who did choose this option. I suppose a lot hinges on what is meant by health care provider. If that includes nursing homes, then I see no reason why a nursing home couldn t request people who wanted to end their lives to go do it elsewhere. Granted, they couldn t punish anyone who refused, but in my book, denying them the right to coerce others doesn t qualify as tyranny. People keep using the term "assisted suicide." The bill specifically states, Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia. The patient must self-administer the medication provided under this chapter. Actions taken in accordance with this chapter shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. Honestly, what is so horribly wrong with allowing people to make their own decisions about how much pain they want to suffer, without fearing that everyone who helps them will go to jail? I recognize that some Catholics and other religious people want to suffer because they believe it is redemptive. They certainly must be granted that right. But to declare that America is now the enemy of God because California voters may deny them the right to make everyone else suffer according to their specifications seems insane.

Honestly, what is so horribly wrong with allowing people to make their own decisions about how much pain they want to suffer, without fearing that everyone who helps them will go to jail? So people should have the right to sell themselves -- or their children, for whom they have legal responsibility -- into slavery if they wish to?

Tax law is funny, and I don't mean in the sense of amusement. One of the reason I got out of an industry that was directly involved with interpreting and implementing tax law (and many others with me as well) was the intense frustration of seeing work go wasted because Congress passed a recision or reversal of a law six months after that law was required to be enforced. I have been told by experts in law that knowledge and confidence gained in one section of the law (like taxation) is not necessarily translatable to other sections of the law (like, in this case, health care). I implied it earlied, and I'm stating it explicitly now: I am not an expert on California law, on health care law and regulations, and any mistakes in interpretation should be viewed under that admission. I also have a high degree of confidence in something else: the nuances of a law are decided by judges, not ex-pension law experts, not fellows of think tanks (unless, of course, their training is directly applicable to the intrepretation of the law in question). Mr. Smith, you have made assertions, in your article and here. I have questioned those assertions, citing the same legislative text you cite. I challenge you on two grounds: 1) You cite selectively. You refuse to either look at the text as a gestalt (as any reader might do by following the section and sub-section bulleting), or you take the text structure and definitional and set up exclusivity by inference. 2) You argue selectively. You have decided that a certain thing is happening (tyrannical imposition of arbitrary -- and capricious -- regulations on health care providers), and you find support for it in the citations you've selected. No other citation is capable, in your mind as it appears to me in your writing, of modifying or contradicting your argument. In the end, I find such selectivity to be, at the least, a lie of omission. You further indicate that the "votes" of people in a blog discussion somehow justify your conclusions, as if a majority is all that's needed to make something true. "People will believe a lie because they want it to be true, or because they are afraid that it might be true." -- Terry Goodkind, _Wizard's First Rule_ People of good will and open mind will draw their own conclusions. I'm done here. If I'm wrong, and this legislation is intended to invade the moral choices of health care providers in the case of assisted suicide, and/or it has the effect of forcing a business to close on this moral invasion, then I will step forward and admit, without prompting, that I am wrong and that I owe you an apology. In the meantime, make all the assertions you want. I refer you to the Wizard's First Rule.

David: Huh?? I'm willing to allow people who have, under extremely controlled and monitored circumstances, been determined to have a terminal illness to decide that they want to die sooner than they would under purely natural circumstances. How do you get from that to an assumption that I believe in slavery? The logic escapes me. Moreover, if you are arguing from a Catholic viewpoint, you should be aware that slavery was not definitively proclaimed as sinful until Vatican II.

"I don't know that anyone at First Things argued that the Federal Government would be wholly devoid of legitimacy tout court. And, of course, the good Bishop must have believed that the Nazi state was illegitimate at least to the extent it advocated euthanasia programs." That is what Charles Colson implied. Although he said that
"Of course, the same standards Augustine used to evaluate the justice of a war apply to the justice of a revolution: no other alternative is feasible; the advantages outweigh the suffering caused; and the evil employed in the revolution prevents far greater evil. The churches would have to be convinced that our present government had become totally opposed to God s purposes and that there was no other solution to prevent massive evil. And this point, I believe, we have not yet reached."
he went on to say that "Reinhardt s decision in Compassion in Dying v. Washington itself prohibited states from preventing euthanasia-which, if upheld by the Supreme Court, means that the medical murder of the sick and elderly has become our government s national policy. Similarly, President Clinton s veto of the congressional bill banning the murder of babies when partially delivered is tantamount to affirmation of infanticide. It would be hard to imagine that a Christian in good conscience could swear to uphold the Constitution or laws of a nation that practices the horrendous offense against God of taking the defenseless lives of the weakest among us: babies, the elderly, and the sick." Which I take to mean that he would advocate open rebellion if the Supreme Court found a *right* to euthanasia or the States permitted - or God forbid required it. First, I would note that Bl. von Galen never suggested going as far as Colson did. Second, as loathsome as abortion and euthanasia is, the public disorder, anarchy, chaos, starvation, rapine, murder, and death, would be far worse fate for this country than seeming unending legalized abortion and euthanasia.
But don't take it from me, take from two famous fictional Southerners in the ramp-up to the Civil War. "Most of the miseries of the world were caused by wars. And, when the wars were over, no one ever knew what they were about." Ashley Wilkes
"think it's hard winning a war with words, gentlemen...I'm saying very plainly that the Yankees are better equipped than we...All we've got is cotton and slaves, and arrogance... I seem to be spoiling everybody's brandy and cigars and dreams of victory." Rhett Butler

sigalaris: If you look at the Vermont assisted suicide legalization, it offers the right to refuse assisted suicides on premeses to all health care facilities. The CA bill allows it only for acute care hospitals. That means the other facilites cannot refuse to permit. They can't be compelled to do it, but they can't stop it from being done in their facilities. That would make them tacitly complicit in the suicide. It isn't just Catholic facilities. Assisted suicide is in opposition to hospice philosophy, hence in patient hospice faclities would also be affected, as would every other in patient type facility in the state other than acute care hospitals. The way to avoid this would be to simply grant the excemption given now to acute care hospitals to all facilities. The sponsors won't do that, in my view, until and unless it is deemed necessary to get the bill through the legislature.

Mr. Smith, I do think that Mr. Evans was wrong to call you a liar. I do think that your assessment about this legislation is correct in that it could possibly leave a health care provider(facility) powerless in keeping this activity from occuring in their facility. However, when I read the piece that you wrote from the First Thingsblog that Rod linked us to, I wanted you to be wrong. You said,"Assisted-suicide advocates are a voracious lot. They claim that their policy goals are modest, a mere tweaking, if you will, of medical ethics and protocols. Being zealots, however, they often try to sneak coercive provisions into their various legalization proposals." I don't find calling people "voracious" and accusing them of "sneaking coercive provisions" into legislation, without proof that they've done that, to be more honorable than calling someone a liar. Perhaps if you could go about expressing your concerns with less hostility, others might be more willing to listen to your concerns with an open mind.

Whatever the law as currently drafted might say, is there any evidence to suggest that Assemblywoman Patty Berg is in fact attempting to force Catholic-run nursing homes and similar facilities whose management objects to the practice to nonetheless allow assisted suicide? She represents the district to the left of mine (in more ways than one), and it doesn't seem like her style.
Has anyone considered suggesting an amendment to the law clarifying its intent?

Watsy: A point worth considering. But I have a lot of experience in this arena. Definitions are often changed from common meanings. For example, "counseling" as defined in AB 374. One would think it would mean therapy to overcome a mental condition that could distort decision making. But in AB 374, it merely means a consultation to determine whether distorted thinking exists. "Capacity" doesn't mean competence, but merely means the ability to communicate health care decisions. Etc.
Also, I have also butted heads with both Assemblypersons in question and they have butted heads with me. We all have bumps. Thanks.

Oh, see Professor Bainbridge on this topic. (And Wesley Smith's response -- the man gets around.)

Wesley, as you must already know from your comments, the public review process needs voices like yours to raise the issues that are important to you in any given piece of proposed legislation. My frustration, which you go full tilt, is in commentary that seems to rush right past that public access to the process and makes assumptions that just cannot be supported. And when I write "supported", I mean it in the personal reaction sense as well as the rational, evidentiary sense. Maybe it's unfair of me to see lack of evidence as proof of lack of effort, but when you (general and specific) publish commentary on the legislative process, it would help the following dialogue immensely if you could at least mention whether you've raised your concerns with the authors of the statute. Just knowing that you are aware of this access can go a long way to mitigating in-kind reactions. For the record, I am a registered Democrat in a Democrat-machine city, and I never pull the big lever. I take all my rights and duties of citizenship very seriously, and if I seem to unfairly hold others to that standard, I at least can show that my walk matches my talk. I experience the process from the inside. That doesn't make me an expert, but it does qualify me to point out when others show ignorance of the process. I'm glad you showed your bumps. It reassures me more than I can express.