The Ninth Circuit Court's Treatment of the History of Suicide by Ancient Jews and Christians in Compassion in Dying V. State of Washington: Historical Naivete or Special Pleading?

Article excerpt

"In all cases, our analysis of the applicability of the protections of the Constitution must be made in light of existing circumstances as well as our historic traditions,"(1) Judge Reinhardt opined, writing for the majority in the Ninth Circuit Court's en banc ruling that reversed its own three-judge panel's earlier ruling on Compassion in Dying v. State of Washington. Introducing a section of the opinion entitled "Historical Attitudes Toward Suicide," he declared:

The majority opinion of the three-judge panel claimed that `a

constitutional right to aid in killing oneself' was `unknown to the

past'... our inquiry is not so narrow. Nor is our conclusion so facile.

The relevant historical record is far more checkered than the majority would

have us believe.(2)

He noted that "[w]hen the Court turns to history, it does not limit its inquiry to the practices at the time of the founding or the time of the adoption of the Fourteenth Amendment."(3) Hence, "Mike the Court in Roe, we begin with ancient attitudes."(4)

Seeking to emulate justice Blackmun as an historian, Judge Reinhardt has achieved the dubious distinction of falling below the less than adequate standards of historical inquiry of the Roe Court's majority, at least when dealing with antiquity. Judge Reinhardt criticized the three-judge panel for its "narrow" historical purview and for its consequent "facile" conclusion. I submit that by broadening his historical horizons to include ancient Jewish and Christian practices, Judge Reinhardt's painfully obvious historical naivete, perhaps coupled with a revisionist agenda, renders his survey of suicide by ancient Jews and Christians not only facile but inaccurate and misleading.

His survey of suicide in classical antiquity, although simplistic, is essentially correct and may be condensed to the following:(5)

1. Not only was suicide not "universally prohibited" in classical antiquity, but it "was often considered commendable in literature, mythology, and practice." It was "glorified" by the Stoics and the magistrates of some communities "even supplied those who wished to commit suicide with the means to do so."

2. "In Roe, while surveying the attitudes of the Greeks toward abortion, the Court stated that `only the Pythagorean school of philosophers frowned on the related act of suicide' ... [i]t then noted that the Pythagorean school represented a distinctly minority view." He notes, however, that the Platonists set some moral restrictions on the act.

Most importantly, he presents ancient Jewish and Christian attitudes toward suicide as essentially the same as those of pagans. I shall seek to demonstrate that his passing and inconclusive references to Judaism do no justice to the complexities of the moral issue of suicide in that ancient tradition, and that his analysis of suicide in early Christianity is not only simplistic but is essentially inaccurate.

Ancient Judaism

Judge Reinhardt turned directly from the Greeks and Romans to early Christianity, making only passing reference to Judaism in two footnotes:

1. "The stories of four suicides are noted in the Old Testament--Samson, Saul, Abimlech [sic], and Achitophel--and none is treated as an act worthy of censure."(6)

2. "Other ancient peoples [besides the Greeks and Romans] also viewed suicide with equanimity or acceptance. Hundreds of Jews killed themselves at Masada in order to avoid being captured by Roman legions."(7)

In order to illustrate how misleading these two statements are, made as they were in a judicial ruling on the constitutionality of physician-assisted suicide, I shall first make some introductory observations and then discuss (1) martyrdom, (2) suicide in general, and (3) suicide by the ill and euthanasia in ancient Judaism.

Although the earliest generations of the Hebrew people may have been primarily henotheists, the monotheism that became revealed orthodoxy presented God as One, the sovereign Creator of all things, eternal, omnipotent, omniscient, and immutable. …