Think Again: The devolving value of life

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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.

This article appeared in the Jerusalem Post on July 10th, 2008

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25 Responses

  1. Steven says:

    The name of the psychologist you mentioned should be Steven Pinker not Steven Pinsker. Sorry to be a pedant. Great article and a generally insightful blog.

  2. B. A. says:

    While # 19 makes some good points, as noted in a prior essay, Rabbi Rosenblum bemoaned the relative lack of an organized response by the Jewish community to the Golubchuk case. If Jews spend their time fighting in posts but will not stand up to evil and fight–and insist that their organizations fight–on behalf of the sick and the disabled, and if we allow people to have their lives ended by ‘futile care’ theorists and penny-pinching bureaucrats, we have failed in our moral duty.

  3. Toby Katz says:

    “there are no efficacious treatments for same sex attraction.”
    –Charles B. Hall

    —–

    Currently there does not seem to be a treatment for pedophilia, either. But the law still expects people to control themselves and not to act on illicit desires. And then too, the desire to commit adultery has been a perennial human drive, and there’s no treatment for that either. But the Torah forbids it. If the Torah says that something is forbidden, that doesn’t mean the desire to commit that act is necessarily a “disease.” It does mean that a person who is afflicted with such desires must not act on them, and should find some way to sublimate them. In the past, sublimated homosexuals have been among the most artistic and creative individuals in history. Everybody has their own challenge, or their own “pekel” as we say in Yiddish.

    The question of whether somebody is happy or not is a side question. For most people a Torah life will be a generally happy life but that is far from universally true. The Torah does not claim to guarantee human happiness, and even the “pursuit of happiness” is not a right enumerated in the Torah.

    So if a homosexual says he is happy with his immoral lifestyle and would be unhappy if it were denied him, in that case his happiness is irrelevant. Ultimately, in the entire span of his life, including both this world and the world to come, he will be happier if he abides by the Torah, but that’s not the immediate reason to keep the Torah. It also has nothing to do with his worth as an individual. A homosexual is a child of Hashem, created “in the image of G-d” just the same as every other person, and deserving of the same respect as any other person. But his yetzer hara is not deserving of any special consideration!

    The whole question of whether somebody is happy as he is or not is something of a red herring. The life of a human being is precious and valuable just because he is a human being, happy or not.

  4. Binyamin says:

    Bruce —
    I argued that if cruel and unusual will be defined by society’s standards. then the legislature is more representative than the court, and it sopinion should be followed.

    Some punishments are inherently prohibited, regardless of the crime. e.g. drwing and quartering, which is intended as a cruel and unsual punishment. The court’s primary job with regard to the 8th amendment is to identify such inherently cruel punishments.

    The death penalty is not inherently cruel, and is only an issue based on changing societal values. Here the court is not judging on the punishment itself, but on the way society percieves it. Here I argued that since the legislatures, which are inteneded as representative of society, considered it an acceptable punishment for the crime, the Court should not be declaring that this is a socially unacceptable punishment.

    Identifying a punishment as cruel only becuase society consider

  5. Dr. Aaron Cypess says:

    This editorial is a shame. The main point that our society is killing people and devaluing human life really is true. I’ve seen it personally. It’s a significant challenge. I’ve asked why Jews are not outside hospitals protesting the routine murder of people, and I don’t really get an answer that addresses the core problems. Unfortunately, the author of this editorial is misdirected by saying that the sources of these problems lie in “science” and “technology.” No, the problem is that advances in science and technology have created new scenarios that our contemporary society is not truly equipped for nor has the moral underpinnings to handle. We have a responsibility to get involved and make a difference. But our voices are going to be meaningless if halachic Jews choose to argue using inaccurate, uneducated discourse.

    “Evolutionists deny any difference in kind between human beings and other species.” I’ve never heard such any one in the medical field say such a thing. Even if some eccentric extremist has that view, it is hardly the general view.

    “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.” Who are these evolutionist? If he means working scientists who accept evolution as their working hypotheses, then he means almost every biologist in the world. Yet most definitely do not
    “deny any difference in kind between human beings and other species”

    “Today many doctors again claim their scientific knowledge imbues them with some special insight into which life is worthy of preservation.” This is not true. It is inaccurate to think that doctors’ approach to morality and ethics comes from a ‘scientific’ background. It is their medical training and cultural biases that underlie whatever approach they have. The comment reflects the author’s fear and ignorance of science that I see frequently among frum Jews
    .
    To have a real impact we must stop fighting imaginary straw men and face the real problems that exist.

  6. Bruce says:

    Ori and Binyamin suggest we can use the opinion of legislatures as to cruel and unusual punishment. That would take the 8th Amendment entirely out of the hands of the court, since the court is always looking at a punishment authorized by the legislature. Under this test, if a popularly-elected legislature voted 51% to impose death by torture for traffic tickets, it would be constitutional. That can’t be the test.

    Binyamin also suggests that cruelty for 8th Amendment purposes “should be at the point where society clearly defines it as such, not at the earliest point that society does not clearly consider it a fitting punishment.” But how is a court to determine that? In the child rape case, few states had the death penalty for child rape, but in recent years 6 states or so imposed this. Is the rule in 44 states evidence of an emerging moral consensus against this punishment (with 6 outliers) or are the 6 states evidence that there is no moral consensus? And does the direction matter? What if 10 states had this punishment, but 4 states repealed this?

    The Supreme Court tries to use this test, but I think it is incoherent. It requires interpreting the motives and direction of 50 state legislatures and trying to infer whether or not there is an emerging moral consensus. There’s no way to do that.

    I would be more comfortable saying that the Supreme Court should do what it actually is doing and what the 8th Amendment seems to require: the judges must make a judgment about whether or not a particular punishment is cruel and unusual. Judges make such judgments all the time. They determine what is “reasonable” as a matter of law in numerous contexts. And where the Constitution has a vague word like “cruel,” judges must simply judge. That is in fact what they are doing.

  7. Ezra says:

    Shouldn’t we be careful and use the term cojoined rather than the etnic slur Siamese twins. This hurts an otherwise fine article.

  8. Max says:

    Chaim: Actually, you sort of have things backwards. It’s only due to western society that “DNRing” anyone is an issue. Without it, we wouldn’t have the technology to keep extremely ill, semi-unconscious demented people alive long past the point where they would have mercifully passed away.

  9. Max says:

    Ori: What does the Torah say about Noahides?

    Max: The Torah says that “Noahides” are liable to the death penalty for any violation of the Noahide law, however minor (eg, petty theft) and regardless of whether someone forces them to do it (that is, there is no concept of v’chai bahem for Noahides) Only one witness is required, and no warning is needed. This is under a Beis Din system. I’m unaware of whether the courts which the Noahides establish must follow these specific laws or not.

    I’m sure I’m not the only Torah-observant Jew who has found this to be disturbing. It seems hard to imagine that this was ever a practical system – Chazal were writing long after such a system would have existed. Even the famously draconian “Bloody Code” of 18th and early 19th century Britain reserved the death penalty for willing offenses, and the penalties were often commuted. I don’t know whether the famous statement of Rabbi Akiva and Rabbi Tarfon that they would find excuses to not give the death penalty applies to Noahides, because there are far less excuses available. How this relates to the value of life is an interesting topic of discussion.

    In any case, as far as American law is concerned, I would assume that we would not want a case to arise in which a Jew was liable to a punishment which was more severe than that specified by the Torah – especially the death penalty – and therefore should be happy with the decision of the Supreme Court.

  10. Charles B. Hall says:

    Joseph,

    Those who considered homosexuality treatable had really no evidence on which to base that statement, and there isn’t really any more today. Politics may have played a role — just as they played a role in the recommendation that all women in their 40s have regular mammograms, which is also not supported by evidence. But the fact is that at the moment there are no efficacious treatments for same sex attraction.

  11. Ori says:

    Chaim Fisher: The only thing that bothers me about this excellent article is that it leads to the conclusion that Americans and Europeans are a little monstrous morally.

    Ori: This would be true if Jews were the only ones objecting to euthanasia. That is not the case.

    Chaim Fisher: Why can’t we just “badad yishkon,” I don’t know. Our Rabbis do it.

    The fact that full time Rabbis don’t have to do something is in no way evidence that it is not necessary. Full time Rabbis also do not prescribe medication, direct traffic, or sell groceries – but we still need doctors, cops, and grocers who do.

    For being “badad yishkon”, do you mean in Israel? Israel cannot feed its population without either importing food or agricultural supplies. Israel couldn’t run its military without importing either weapons or certain supplies that are not available locally. Maran may not need to maintain good relationships with foreign rulers, but somebody in Israel does.

  12. One Christian's perspective says:

    “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.”
    Jonathan Rosenblum

    I wonder if this situation as one-dimensional as it appears is really much more complex than one would admit or be willing to admit.

    Medical folks who have been around the gravely ill, whether Hospice workers , doctors or nurses have learned to recognize the signs of the progress of death. As new life and birth is a process so too is dying and death. These events do not occur in a vacuum outside of G-d’s will.

    Having experienced the death this year of a beloved mother-in law and a close sister, I speak as one who has watched the orderly process of dying and the choices both ladies made toward that end. I didn’t always agree with their choices and that became my struggle. Not only did I not want to let them go but also I was not willing to trust in the L-RD their G-d. I forgot that G-d who is merciful in granting new life is also merciful in granting death. He is the giver and taker of life; He alone decides the length of our days. Too often I read/hear comments in the media that someone died too young or suffered too long or something else .. but.. isn’t this another way of saying G-d is not ___________________ – fill in the blank with your own thoughts.

    As hard as it had been to watch someone I loved suffer and die, I must tell of the wonder and grace of G-d’s mercy. His presence was there in every phase and nuance of the process of these two different deaths. His hand was ever at work even when it seemed that human error, bad choices and perhaps, neglect had happened. G-d was not surprised by any event. Yet, for me, I can only say this as one who saw afterward when looking back, it was all part of a grander plan. G-d was preparing his dying children to accept going home to be with Him and He was preparing me to learn how to live in this world without them and to trust in Him at all times and to allow Him to fill my emptiness with His presence.

    In looking fearlessly and deeply at those times with G-d’s help – when what I feared the most was about to happen -, I realized that what I most feared was me losing control. In so acting, I recognized that I was not putting my trust in G-d but in myself and other people. This was my idolatry.

    In so many ways, in His great love and mercy, G-d spoke to my heart saying “trust me” over and over again…during the entire process of both deaths…. in spite of my blindness and sin. When I got to the end of “my work of trying to fix things my way as I thought they must be” , I turned to G-d. Recognizing the futility of my effort , I turned to Him in confession of my idolatry and in repentance sought His forgiveness and most sincerely and humbly sought His help, humbly asking for His will to be done, on His terms, in His way and in His timing. Within the hour, He answered my heartfelt prayer and allowed me to see ordinary events become extraordinary events as He wrote another testimony of His mercy on my heart and lips which I humbly share with you all.

    After the funerals, on reflection, I realized that trust is made up of faith in an awesome God that is soundly rooted in His Word and His character but to be active and alive, my eyes must remain focused on Him at all times and not on the situation or events around me that threaten to engulf and overwhelm me .

    Hospitals are institutions that operate within a standard often established by human wisdom and insurance agencies or socialized medicine that enable and foster medical decisions to be weighed against monetary costs and life expectancy and sound medical practice. This is the world in which we live: it is not perfect and it will never be perfect; human knowledge and understanding will never be perfect; everything has a cost. Humans make flawed decisions because we are a people tainted by our own weaknesses.

    If we put our trust in people and in institutions, we are not allowing
    G-d to enter into the midst of our struggle to reveal His mercy, His grace and His compassion.

  13. Chaim Fisher says:

    The Eskimos were reputed to have put their elderly on ice floes and shoved them off into the sea. You’d think that since Western society is so much more sophisticated than those primitive people, both economically and morally, they would be less brutal.

    Wrong.

    They’ll DNR anyone at the drop of a hat.

    The only thing that bothers me about this excellent article is that it leads to the conclusion that Americans and Europeans are a little monstrous morally. We won’t face that fact. Most Orthodox secular leaders are all too happy to affiliate with Western leaders and call them friends publicly.

    Why can’t we just “badad yishkon,” I don’t know. Our Rabbis do it. You’ll never find a picture of Maran shaking hands and smiling with some non-Jewish president.

  14. Ori says:

    Max: I suppose it’s worth pointing out that not only does the Torah not mandate the death penalty for child rape, it requires the rapist to pay a fine to the girl’s father and marry her. Does that devalue human life?

    Ori: What does the Torah say about Noahides? Does it specify the laws they are to have among themselves, or does it say they need to establish their own laws and court systems?

    However, Jonathan Roseblum’s point in bringing this example was not to say that a particular punishment increases or decreases the value of human life. It was to introduce the fact that there is a common belief that the perceived value of a human life increases in our society with time, which he believes to be untrue.

  15. Steve Brizel says:

    I think that Dr. Kass demolishes Pinsker’s critique, which is basically a variant of Peter Singer’s perspective. The soul , by its very definition, is not material in nature. Dissection of the soul strikes me as an inherently contradictory concept.

  16. Ben Litchman says:

    I’m awaiting a response (by anyone) to Max’s trenchant point. When evaluating a matter, political or otherwise, aren’t we obligated to examine it through the lens of Torah–and *not* from the perspective of any foreign ideology, be it on the right or left of the spectrum?

  17. Joseph says:

    Beth,

    The American Medical Association and the American Psychological Association both classified homosexuality as a treatable mental disorder until well into the 1970’s, when the homosexual lobby applied political pressure on these medical associations to remove that classification.

    As such, it is no stretch to continue label it as a mental disorder. And to medically treat it as such.

  18. Binyamin says:

    But the Eight Amendment prohibits “cruel and unusual punishment”. This seems to cry out for a interpretation based on contemporary values. No one suggests that we strike down punishments that would have been considered cruel and unusual punishment in 1791. The original intent seems to be that we should apply contemporary values in interpreting this clause.

    Comment by Bruce
    ———
    1. I would suggest that cruel and unusual refer mostly to the punishment, and not to how well it fits the crime. e.g. drawing and quartering is always unconstitutional, even for child rape. A fine is always constitutional, even for jaywalking. Only an extremely disproportionate punishment would be considered cruel.
    (My own two cents. I do not believe that this is accepted.)
    2. contemporary values are better established by Congress, not by the Court.
    3. Declaring a punishment ‘cruel’ based on conteporary values should be at the point where society clearly defines it as such, not at the earliest point that society does not clearly consider it a fitting punishment.

  19. Beth says:

    ClooJew, that’s not the point. I’m not talking about whether and what the halakha says about these things. I’m talking about the constant attempts by many people in the frum community to label these things as mental illness. To say, as R’ Jonathan put it, that they “don’t really know what happiness is”. Rather than accept the reality of their self-perceptions. That doesn’t require you to accept everything they do as permissible; but it does suggest that the contempt be taken down a notch or two.

  20. Ori says:

    Bruce: But you seem to object to this whole method as one that allows justices to impose their own values. Maybe that’s right. But what test do you advocate that does not do this? That is, if you were a justice, how would you decide whether a particular punishment was cruel and unusual?

    Ori: Whether a particular punishment is cruel and unusual or not is a matter of opinion. As such, it makes sense to go by popular opinion, as represented by the elected legislature.

    All elected officials have to swear an oath to uphold the constitution. As such, they would be bound not to impose cruel and unusual punishment. That does not mean that the definition of cruel and unusual needs to be determined for each generation by that generation’s supreme court.

  21. Thinks with his brain says:

    “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””

    I really don’t understand how that addresses Pinsker’s point. Virtually everything we popularly attribute to the soul (when we’re not trying to squirm out of the challenge of neurology) is alterable and affectable by altering and affecting the brain. There’s no getting around that except by redefining the soul to something other that what most people would recognize as what they believe. But that doesn’t answer Pinkser’s point so much as defend something else, something other than a soul as widely understood.

  22. ClooJew says:

    “And yet there are any number of Orthodox Jews who say that homosexuals and transsexuals are simply mentally disturbed, and need to be “fixed” psychologically. Would you apply the same rule to these people?” – Beth

    There are “any number of Orthodox Jews” (and non-Orthodox and non-Jews) who say a lot of things. The Torah never addresses, lulei demistafina, one’s level of “happiness” when applying its moral mores.

  23. Bruce says:

    Some provisions of the Constitution have a clear meaning and there’s no room for interpretation. Numbers are the best example (the President must be at least 35-years-old), but other things are pretty clear as well. For example, the Third Amendment prohibits quartering of soldiers in private homes during peacetime without the consent of the owner. There’s not a lot of gray area there.

    But the Eight Amendment prohibits “cruel and unusual punishment”. This seems to cry out for a interpretation based on contemporary values. No one suggests that we strike down punishments that would have been considered cruel and unusual punishment in 1791. The original intent seems to be that we should apply contemporary values in interpreting this clause.

    Both the majority and dissent looked at contemporary indicia of an “evolving moral consensus” but reached different conclusions about what it was. But you seem to object to this whole method as one that allows justices to impose their own values. Maybe that’s right. But what test do you advocate that does not do this? That is, if you were a justice, how would you decide whether a particular punishment was cruel and unusual?

  24. Max says:

    I suppose it’s worth pointing out that not only does the Torah not mandate the death penalty for child rape, it requires the rapist to pay a fine to the girl’s father and marry her. Does that devalue human life?

  25. Beth says:

    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.

    And yet there are any number of Orthodox Jews who say that homosexuals and transsexuals are simply mentally disturbed, and need to be “fixed” psychologically. Would you apply the same rule to these people?