About one thing Aharon Barak is right: Constitutionalism - the imposition by judges of their moral intuitions on an unsuspecting public - is on the rise everywhere. The opinion of Justice Anthony Kennedy of the US Supreme Court in Kennedy vs. Louisiana could have been written by an Israeli Supreme Court justice, so lacking was it in anything bordering on coherent analysis.
A 5-4 majority of the court ruled that imposition by Louisiana of the death penalty on Patrick Kennedy for brutally raping his 12-year-old stepdaughter and inflicting internal injuries far too gruesome to describe would constitute cruel and unusual punishment. According to Justice Kennedy, the Constitution contemplates that in the end "our [i.e., the justices] own judgment" will be determinative. Yet the only argument he offered for why murder, alone of crimes against individuals, may be punished by death is that murder victims are dead.
Such profundity is Kennedy's trademark.
In ruling that the death penalty may not be imposed in even the most serious cases of child rape, Justice Kennedy purported to be giving voice to the "evolving standards of decency that mark the progress of a maturing society." It may well be questioned, however, whether in our respect for the value of human life that evolution has been upward.
WE ARE witnessing a sustained assault on the traditional view of man as the height of creation. Evolutionists deny any difference in kind between human beings and other species. Global warming activists speak of the duty not to reproduce, and view human beings as the enemy of nature's order. New reproductive technologies, in particular cloning, and drugs for physical and psychological enhancement threaten to turn human beings into by-products of technology rather than the result of two human beings joined in an act of commitment and faith.
Like cosmonaut Yuri Gagarin, who claimed to have disproved the existence of God because he did not see him from his spaceship, Harvard psychologist Steven Pinsker "proves" that there is no soul from the fact that the brain can be dissected, altered by drugs and extinguished by a sharp blow. To which philosopher Dr. Leon Kass effectively replies: "[Pinsker] does not understand that the vital powers of an organism do not reside in its constituent materials... but emerge only when those materials are formed and organized in a particular way... [T]he empowering organization of materials - the vital form or soul - is not itself material" (Keeping Life Human," Azure, Spring 2008).
Such materialist reductionism dominated German science long before the Nazi rise to power, and paved the way for the murder of thousands of German "defectives" before the Nazis embarked on their Final Solution for the Jews. Richard Weikart describes the congerie of ideas that dominated German science in From Darwin to Hitler: Evolutionary Ethics, Eugenics and Racism in Germany: There is no fundamental distinction between humans and animals; human beings do not possess a soul that endows them with any rights or superiority to any other species; among human beings there are "inferior" and "superior" individuals, and inferior and superior races; and it is the iron will of nature that species should evolve through the survival of superior members and the death of the inferior.
TODAY MANY doctors again claim their scientific knowledge imbues them with some special insight into which life is worthy of preservation. The doctors in Winnipeg, Canada, who sought to disconnect Samuel Golubchuk, an elderly religious Jew, from his ventilator and feeding tube asserted that the decision was theirs alone, regardless of Golubchuk's wishes. And the Canadian Medical Association fully supported that claim.
Such decisions are not about the "best interests" of the patient, as the doctors claimed, but about which life is worth preserving. And that is a moral, not scientific, decision for which doctors' have no special expertise.
To think otherwise is an example of what Kass calls "soulless scientism" - the failure to recognize that science is morally neutral and exists on a different plane than moral reasoning. In Kass's words, "Science seeks to know only how things work, not what they are and why. Science gives the histories of things, but not their aspirations or purposes."
None of us is capable of evaluating another's life. When confronted with severely disabled people - e.g., Siamese twins - who profess to be happy, our typical reaction is to assume they are lying or don't really know what happiness is. (Harvard psychologist Daniel Gilbert explores this phenomenon in Stumbling onto Happiness.) For that reason, disabled persons and their advocates are at the forefront of every legal case in which doctors insist on their unique ability to determine which lives are no longer worth the effort. They know that once quality of life is viewed as something quantifiable, and one life is compared in value to another, the slope is very slippery indeed.
A hospital in Wales, for instance, recently informed the parents of Amber Hartland, six, who suffers from Tay-Sachs, that it would not readmit her to the pediatric intensive care unit, after five such visits in four years, absent a court order. Without such periodic interventions, however, Amber will choke to death.
SCIENTIFIC KNOWLEDGE does not imbue doctors with any special moral insight, and those who assume otherwise often turn out to be neither good prognosticators nor good doctors. Sometime after the Winnipeg doctors tried to remove Golubchuk's life support, he was described as "awake, alert, sitting up in a chair at times, more interactive and shaking hands purposively."
In nearby Calgary, doctors put a "Do not resuscitate" order in the file of a Mr. Jin, whom they claimed would remain in a permanent vegetative state as the result of a fall. His family took the hospital to court, and Jin recovered well enough to speak, write and read. That did not prevent the doctors from appealing the court order limiting their discretion.
On June 17, 2006, the Supreme Judicial Court of Massachusetts granted the request of the Massachusetts Department of Social Services to cut off the respirator from Haleigh Poutre, an 11-year-old girl who had been savagely beaten by her aunt and stepfather. The court was informed that Haleigh was "in an irreversible and permanent coma, with the least amount of brain function that a person can still have and be considered alive."
As it happens, little Haleigh had already begun to show signs of responsiveness a week before the Massachusetts court entered its judgment. (The day before judgment was entered she began to breathe independently.) Nevertheless, the doctors insisted that her chances of recovery were absolutely zero and told the Department of Social Services that there was no need to inform the court of her improvement. Remarkably in the Poutre case, the doctors determined that she was in a permanent vegetative state after only eight days, even though the definition of a permanent vegetative state is at least one month.
That case, writes Dr. Daniel Eisenberg, an expert in Jewish medical ethics, is a good example of the slide into the abyss of allowing ethical decisions to be outsourced to doctors "who all too often do not view life as intrinsically valuable."
So much for the progress of a maturing society.