Medical Aid in Dying: A Jewish Perspective

I’ve been on the Ethics Committee at UCLA Medical Center since the early 1980s, and every once in a while, over and over again, the question is, “Well, what did the patient want?” and every once in a while I say to myself, or I say something publicly – “You didn’t give him what he wanted through the rest of his life, so why are you so interested now in giving him what he wanted,” right? But then we simply move on. And that is the criterion for deciding – to the extent that we can recognize, that we can discern – the person’s individual wishes. We try to fulfill those wishes; that’s the American way of looking at it.

The central Jewish story is the one we just celebrated on Passover: slaves in Egypt, we come to Sinai and then onto the Promised Land. And at Sinai, we don’t get a single right – we get 613 commandments. I do a lot of interfaith work, and a lot with Catholics, actually, and when I tell them this – I say, “This is the beginning of Jewish guilt,” right. And the Catholics tell me, “You don’t know anything about guilt. We have that cornered.” (Laughs)

But anyway, the point is that we start, in the Jewish tradition – we don’t leave Egypt as individuals, we leave as a community. And when we get to Sinai, we get all these duties. And we’re supposed to go on to the promised land to create an ideal society. Now, that’s a very different perspective than the individualism and pragmatism that’s based in American ideology. Now, I’m very proud to be an American Jew. I very much believe that America is an amazing country. We have by far the most, what is by far the most pluralistic country that has ever existed on the face of the earth, and yes, we’ve had our ups and downs – I mean slavery, of course, was a major one, anti-Semitism is another.

But the fact of the matter is that we just have multiple cultures that are living together in this country in a more or less peaceful way. One of my priest friends of mine told me that in the Los Angeles Archdiocese, mass is offered in 80 different languages.

Is Our Body Our Own Or God’s?

So one of the things that matters in terms of this is that in the American ideology, I own my own body. And therefore, as long as I don’t harm somebody else, I can do with it what I want. So if I want to abuse drugs or alcohol, as long as I don’t get behind the wheel of a car while I’m doing that, I can do that – or if I don’t harm somebody else, right.

Or here we are, about 10 minutes into this presentation and you’re going to find my Achilles’ heel. If I want to eat a half a gallon of ice cream every night of the week, and if we’re doing it, it might as well be mint chocolate chip or Cherry Garcia – that stuff is so good – there’s nothing in American law that would prohibit me from doing it. Now, I would be stupid to do that, because I’ll gain about 500 pounds in no time, and then that will lead to all kinds of pragmatic problems – that’s American pragmatism. So I’d be stupid to do that, but there’s nothing in the law that would prevent me from doing that, because I, as an individual, can choose to live a healthy life or not.

But in the Jewish tradition, my body belongs to God, and I have a fiduciary relationship with God to take care of my body. That is, God trusts me to take care of my body. So I do not have a right, in the Jewish tradition, to eat a half a gallon of ice cream every night of the week, because I would thereby be undermining the trust that God has in me in terms of taking care of my own body. So there you get at least one idea of, one example of, how the Jewish perspective on medical ethics is going to differ in some ways from the American secular perspective.

The Authority of Doctors and Medicine in American and Jewish Culture

And in this book that I wrote on medical ethics, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, in the first chapter, I go through, I think, seven different presumptions in the Jewish tradition about medicine. One of the things that the American tradition and the Jewish tradition share is a very strong faith in medicine. And as a matter of fact, the Jewish tradition never saw medicine and doctors as, in some way or another taking away God’s prerogative, even though in the Torah, “Ani Adonai rofek’ha,“ “I the Lord am your healer,” Exodus 15:26, right. 

So, if God is our healer, then, at least in the Christian tradition until the high Middle Ages, Christians saw medicine as a human hubris, as something that human beings should not do because that’s something that God should take care of. And so, physicians to Christian kings and queens and popes in the Middle Ages were either Muslims or Jews. But in the Jewish tradition, it’s never been seen that way. Medicine has been seen as the aid of God, and doctors are the agents of God in preventing disease and in trying to cure it.

So one thing that the Jewish tradition and the American tradition share is a very strong sense that we really need to do medical research, and we do need to go to a doctor when we’re [sick]. And there’s a difference, because in the American tradition, I can decide whether I’m going to go to the doctor or not, and then I can decide whether I’m going to do whatever the doctor tells me, because individual autonomy is the gold stone, right? It’s the primary criterion. 

But in the Jewish tradition, I actually have to follow the doctor’s orders. I can get a second opinion or a third opinion – and Jews very often do that. But in the end, I have to follow the doctor’s orders, because I have to take care of this body of mine that belongs to God. So you’re seeing, already, that from a Jewish perspective and from an American perspective, there are some similarities, but there are also a number of differences.

End-of-Life Care

Let me now go the issue of assisted suicide. Back in I was one of two people – Rabbi Avram Reisner was the other – who wrote rabbinic rulings for the Conservative movement’s Committee on Jewish law and Standards on End-of-Life Care. We agreed on about 85% of the issues. We agreed, for example, that machines and medications may be withheld or withdrawn from a patient if that’s in the patient’s best interest. We agree that pain medication should be used to quell pain, that pain is not a good in and of itself, and actually we should help people avoid it. We agree that hospice care is appropriate when that’s appropriate for a particular patient. We agreed also that Jews should make their organs available upon their death for organ transplant or tissue transplant. So we agree on all of those things

One of the things what we disagreed on is the status of artificial nutrition and hydration. Rabbi Reisner understands that as taking the place of food and liquids, and we all need food and liquids throughout our lifetime, so according to him, if a patient cannot eat or drink on his or her own, then artificial nutrition and hydration must be applied and may not be removed until the patient dies. Even so, in the Terry Schaivo case, for example, she was on artificial nutrition and hydration for 14 years. And he would say that that was appropriate, and should never have been removed until she died of other causes. 

Whereas, what I said was that artificial nutrition and hydration is indeed that – artificial. It is not like food and liquid, in the sense that it doesn’t come into the body in the same way that food and liquids do. It comes through tubes, and as a result, it doesn’t have a lot of the characteristics of food and liquid. It doesn’t have differences in texture, in temperature and taste, and therefore it can be seen as medicine, and therefore used when it’s appropriate, but also withheld or withdrawn when that’s medically appropriate. So to some extent, I’m a little bit more quote-unquote “liberal” than Rabbi Reisner on end-of-life care.

The Ethics of Assisted Suicide

But then I wrote a rabbinic ruling on what I called assisted suicide. And I said that, even though I think that machines, medications and artificial nutrition and hydration may be withheld or withdrawn, we should not do assisted suicide for several reasons. 

One important one is money. Your mom is dying and the children don’t want Mom to squander the family money – put it the other way, mom doesn’t want to squander the family money so that she can leave some money to her children, and so therefore she wants to die faster. Or the reverse, of course, is more complicated – the children don’t want Mom to squander the family fortune because they want to inherit it. Or your insurance company, even if it’s federal like Medicare, your insurance company would much prefer to help you die faster than to support you through long-term illness, because it’s much cheaper. So money is a major complicating factor in terms of allowing assisted suicide, because it will be the go-to option, for financial reasons, on the part of families as well as insurance companies.

Another problem with assisted suicide is that often, it comes out if the person is depressed is clinically depressed – and understandably so, because if you have a disease that is lethal and cannot be cured, you’re not going to be happy about that. And the perfectly sane person is not going to be happy about that, and may even become clinically depressed. But the response to that should not be helping that person die, the response to that should be trying to treat the depression, medically, through antidepressants, but also, one thing that we Jews really need to know about in our tradition – through visiting the sick.

Keeping Assisted Suicide Rare

I was on a book project on suicide, and assisted suicide, back in 1990 or so, and all the authors – the editors – were brought together to plan the book. And we interviewed a 32-year-old man, if I remember correctly, who had AIDS. And this was before the cocktail of drugs to treat AIDS had been created .and he had seen what his friends who had AIDS had gone through, dying through AIDS, by AIDS. And he had bought himself a 22-caliber pistol and he came home with it and he thought he had loaded it. And he put it to his head and he clicked the trigger and it didn’t go off. And at that moment, one of his friends stopped by and saw what he had tried to do and he set up this friend – set up a 24/7 accompaniment for this man so that he would not kill himself.

So now we’re interviewing him – and remember, nothing had changed medically in terms of his prognosis. And we asked him, do you still want to die? And he said, “Well, my friends don’t want me to.” 

Now, that’s really important, because one of the problems with illness is that it leads to a lot of loneliness. You’re not going to see your friends or even your family in the usual places that you see them. My wife and I just saw A Funny Girl at the theater. “People who need people are the luckiest people in the world,” right? We all really need connections with each other. And as a matter of fact, the Surgeon General has said that, because of COVID, we are suffering through an epidemic of loneliness. And that is really problematic for us, because we human beings have a deep – yes, we need to have some time alone every once in a while, but we also have a deep need to be with other people. That’s why the harshest penalty in prison, aside from execution and torture, is solitary confinement. And if people are in solitary confinement for long periods of time, they often go insane. 

So we really need to visit people who are sick, including people who have terminal illnesses, because that is not only a mitzvah in the Jewish tradition – by the way, which is not in the American tradition, but it is definitely in the Jewish tradition. And I think it tells us something very deep about who we are as people, both when we are sick and when we are well. We need connections with other people. So, part of responding to depression, aside from whatever antidepressant drugs the person has been given, is that people come and visit that person and talk with that person. 

Now, most of us don’t like to do that, especially if the person is in a hospital, in part because you don’t want to get sick yourself, in part because you see all kinds of other people who are sick and you don’t want to contemplate your own illness, and in part because you don’t know what to say. And let me tell you that both patients and their visitors tire of talking about the weather and the food within 10 minutes. 

So what do you talk about when you go to visit the sick? You should talk about the very same things that you would talk about if the person were well. So if that’s show business, or politics, or movies, or books, or whatever, right – talk about those things, because the underlying message you’re giving to the patient is that “you still are an adult,” and you still care, and “I still care about what you think.” And that’s really important, especially when a person is sick, because one of the aspects of illness is that it’s debilitating, and as a result it also is dehumanizing. And so one of the things it makes you feel – it infantilizes you. You can’t do what you normally do. So one of the things that’s really important is that when somebody is ill, counteract the depression and the loneliness that comes with illness by visiting that person and by creating other people, by arranging for other people to do the same. But that’s much better than helping the person die.

So in the rabbinic ruling I wrote in 1997, I said we should not – you may withhold and withdraw machines, medication, artificial nutrition, hydration, when those things are appropriate, but you may not from a Jewish perspective, aid and assist a suicide. 

Re-Assessing the Rabbinic Ruling

What changed in 2020 was that two things changed. One was that eight states and the District of Columbia, including California, where I live, had created laws that would permit aid in dying. And by the way, I’ve done a lot of research before that 2020 teshuvot. And notice the difference in language – assisted suicide itself carries with it a very negative connotation, but if you read some of the literature of what people are saying who are thinking about doing this – I remember one man in particular who said, “I’m not trying to commit suicide. I’ve done everything I possibly can to stay alive. I’m in deep pain and I need help to try to stop this pain.” 

So that’s why I think the language “aid in dying” is much more appropriate, because most of the people who are in this kind of situation really would prefer to live, to stay alive and be healthy, but all the efforts of medicine to do that have not enabled them to do that. So the terminology, I think, “aid in dying” is much more emotionally neutral, and I think we’ll be able to talk about it much more rationally if we start with that kind of emotionally-neutral terminology, and then we can talk about its pluses and minuses. 

So one thing is that it became, at least, legal. In 1997, it wasn’t legal in any state of the union, but by 2020 it was legal in eight states and in the District of Columbia, also in Canada altogether, and in a number of European states and countries, including Belgium, Holland, Switzerland, and in Colombia, in South America. So there were a number of civil jurisdictions that allowed it, including a number in the United States. And there were a number of other states that were considering it. 

So that’s one thing that changed, because given the fact that it’s now legal in at least some jurisdictions, the question is: should Jews do it? The fact that something is legal doesn’t necessarily mean that you should do it, right. I mean, it’s legal to smoke cigarettes, but you should not do that for very important health reasons. It’s legal to get drunk, but you should not do that for all kinds of reasons. And even on abortion issues, before Roe v. Wade was overturned, it was legal for basically any reason, whereas in the Jewish tradition, it was required – if the person, if the woman’s life or health was at stake, it was permitted if there was an extra risk beyond that of normal pregnancy, but not otherwise. So the Jewish tradition is more restrictive than Roe v. Wade was. So I mean, it’s the fact that aid in dying is now legal in these jurisdictions – doesn’t necessarily mean that you should do it, but it does mean that we needed to at least re-evaluate it.

And the second reason why I wrote another teshuvot now re-reassessing this [is] because my daughter-in-law, who’s an oncologist, told me that, at that time, in her 15 years of practice, she – by and large, in the vast majority of cases, doctors were able to control pain, often at the cost of consciousness, but especially in the late stages of a person’s life that is ebbing – the person is in what doctors call an “active dying stage.” Doctors are able to control the pain in the vast majority of cases, but she said, in her 15 years of practice, at that point, she had seen three cases in which people literally screamed their way to death. This happens primarily in things like bone cancer, but it can happen in other kinds of situations as well. And so it occurred to me that we really need to at least re-evaluate this. 

California and Canada’s Two Different Approaches

And in that teshuvot, I compare the California law to that of Canada. Those laws were enacted within two weeks of each other – one was in mid-June of 2016 and the other July 1st of 2016. And there are roughly the same number of Jews in California as there are in Canada – by the way, also roughly the same number of people together in California as there are in Canada. So we could do comparisons of how many people are using it.

And one of the things that was clear early on, when Oregon first passed a statute like this in 1997, is that a substantial percentage, maybe a third to a half, of the people who get the drugs to assist, to help them commit suicide, never use them. But they get the drugs in order to be able to control their pain if they need it, and to have some control over what’s going on in their lives. So that’s been true in the other jurisdictions where it has been passed as well, that getting the medication doesn’t necessarily mean that the person’s going to use it. But still, the question is: should we as Jews see this as being acceptable? 

Oh, and there’s a major difference between the California law and the Canadian law, in that the California law requires that – well, first of all, the patient has to be mentally competent, and has to ask for it orally twice and once and then again two weeks later, and then in writing – I think it’s two weeks after that. And it has to be witnessed, and there have to be doctors who were willing to sign on to this – in other words, to say that it’s appropriate that this patient get aid in dying.

And the California law is called the End-of-Life Option Act, where the person has the option of taking advantage of medications that will bring about their death. But they have to administer it – they not only have to ask for it in a mentally competent state, but they have to be able to administer the drug themselves.

Whereas in Canada, it’s Medical Aid in Dying, where the person has to be mentally competent in asking for the medication, but in the end, a doctor may administer the drug. The patient doesn’t have to do that.  And Canada, subsequently, has at least talked about – they have not passed this legislation – but they have talked about expanding the eligibility for their law to people who are not in an active stage of dying, but who have long-term painful illnesses – paraplegics, for example. And they even were talking about allowing aid in dying for mental illnesses. They have not done that yet, from what I understand. 

But one of the real issues here is the slippery slope. In other words, once you allow aid in dying for the clear cases – that is, where somebody’s in excruciating pain that cannot be quelled – if you allow it for those cases, then “What’s the next step?” Or is there going to be a next step? And I recognize that as a real problem in my own ruling. But that said, I think that if we’re talking about the kinds of cases where pain cannot be controlled, then we have both a Jewish duty and simply a human duty to try to quell the pain, even if it means helping somebody die this way.

I’m going to stop here, and I look forward to our conversation as we go on today.