Maine Asked to Permit Murder of COVID Patients

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Maine Asked to Permit Murder of COVID Patients; Governor Asked to Permit Removal of Ventilators if Scarce

WASHINGTON, D.C., (April 29, 2020) –  More than a dozen health care industry groups in Maine, representing hospitals, nursing homes, doctors and others, have formally requested permission to murder some patients if necessary to help others due to a shortage of equipment such as ventilators during the pandemic.

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Maine Requests To Permit Murder of COVID Patients

More precisely, they have asked the Governor to use her emergency powers to suspend the enforcement of the following criminal statutes: murder, manslaughter, assault, aggravated assault, criminal threatening, and reckless conduct in accordance with a plan for "re-allocating" scarce resources during an extreme public health emergency.

According to a report, this can result in "withdrawing a critical resource" from a person who is likely not going to survive, and giving that resource to someone else who is both more likely to survive with the resource, and who would most likely die without it. An example is taking one patient off a ventilator to give it to another patient, when the person doing so knows it will result in the death of the first patient.

Health care providers in a number of states have requested some form of immunity from liability for their actions treating COVID-19 patients, arguing that doctors and nurses might otherwise be reluctant to care for patients with such a high likelihood of dying while in their care, and in at attempt to encourage retired health care providers, and others licensed to practice only in other jurisdictions, to help out when hospitals become overwhelmed.

But sanctioning the deliberate killing of one human being, especially without his permission - in contrast with under "death with dignity" statutes - in order to increase the chances that another might survive, is very different and upsetting, notes public interest law professor John Banzhaf, who teaches a course in which cases such at this are examined.

Queen vs. Dudley and Stephens

For example the very famous case of Queen vs. Dudley and Stephens - which raised the question of whether murder is ever allowed under the doctrine of necessity - held that even where death was certain to ensue unless a life was taken, sacrificing one to save many still constituted murder.

In that situation, four shipwrecked men, lost at sea on a rowboat with no food or water, realized that all would die of starvation if they did not take drastic action.  So, to save three out of the four, they sacrificed the cabin boy, who appeared near death anyway, and ate his flesh out of necessity.

Despite these most compelling circumstances, the court held that the act constituted murder: "A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life."

In this case Banzhaf notes, by the way, that one life would be taken in order to save three, whereas in the Maine situation, the governor is being asked to sanction the deliberate taking of one life to save only one other life, simply because the person receiving the ventilator would have a somewhat higher chance of surviving - even though up to 80 percent of COVID-19 patients put on ventilators reportedly die anyway.

Separating Conjoined Twin Girls

In another more recent case, three judges were convinced to issue an order permitting doctors to separate conjoined (Siamese) twin girls, even though it would mean the death of the weaker of the two.  Without the operation, both would die, but the operation would give the stronger of the two twins a chance of surviving.

However, the court ordered the operation, which might otherwise constitute murder or manslaughter, only with the greatest reluctance, and the decision was made by a completely neutral body only after great deliberation. [Re A (Minors) (Conjoined twins:separation) (2000)Lloyds Rep Med December 2000 425-97]

In contrast, under the Maine proposal, a decision to commit what would otherwise be murder presumably could be made by one (or a tiny group of) doctor(s), and probably with scant time for reflection, discussion, or the exploration of other possible alternatives: e.g., obtaining a ventilator from another hospital, using a CPAP, BIPAP, or other breathing device as authorized by the FDA, etc, says Banzhaf.

Sanctioning the deliberate taking of a human life, especially without the consent of victim, is fraught with danger and the risk of improper application.

Prof. Banzhaf, who has previously explained how a hospital, which permitted a COVID-19 patient to die because it ran out of ventilators, could be sued for civil liability, notes that this request would shield a hospital not only from civil liability in such a circumstance, but would in addition authorize it to deliberately kill one patient to possibly save another.

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About the Author

JOHN F. BANZHAF
John F. Banzhaf is an American public interest lawyer, legal activist and law professor at George Washington University Law School. He is the founder of an antismoking advocacy group, Action on Smoking and Health.

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