Human Exceptionalism

Should Medical Associations Be Allowed to Sanction Physicians for Participating in Executions?

I have long marveled at the adamant efforts of many bioethicists and physician leaders to prevent doctors from participating in executions–while, ironically some of these same advocates promote the propriety of doctors engaging in assisted suicide–which is no more a legitimate medical act than execution. In North Carolina, the state medical association went so far in trying to prevent doctor involvement in executions that it threatened to make it a subject of professional discipline–a policy now overturned by the state supreme court. From the story:

The North Carolina Medical Board exceeded its authority under state law when it adopted policy threatening disciplinary action against physicians who take an active role in executions, the Supreme Court of North Carolina ruled in early May. The 4-3 decision appears to end the board’s policy barring doctors from participating in executions, the only one of its kind in the country…

The board adopted its position in January 2007, prompting a lawsuit from the state’s corrections department, which argued that the policy deterred physicians from participating in executions. In 2007 the N.C. medical board banned doctors from participating in executions. The relevant state law, adopted in 1909, says a physician should be present at the execution and “certify the fact of the execution.”

In its policy, the board attempted to reconcile medical ethical standards and state law by saying physicians could be present at executions in a professional role, but that “any verbal or physical activity … that facilitates the execution” might be grounds for discipline. In the majority opinion, Associate Justice Edward Thomas Brady wrote that for the medical board “to assert that the physician is to merely occupy space in a nonprofessional capacity is simply illogical and renders unintelligible the requirement that ‘the surgeon or physician of the penitentiary’ be present.”

The case’s outcome is significant because an execution protocol announced in February 2007 said lethal injections should be administered by personnel qualified to “administer the preinjections, insert the IV catheter, and perform other tasks.” The protocol says “medical doctors” are among those “deemed qualified to participate in the execution procedure.” The purpose of the new protocol is to ensure that condemned inmates do not suffer unnecessarily during the lethal injection process.

I think this is right, but only because it is a licensing board making the determination that a physician could be punished for engaging in a legal procedure that is not a medical act. I think voluntary medical associations–such as the AMA–should have every right to exclude physicians who participate in the non medical act of execution.

I also think that no doctor where assisted suicide is legal should be professionally disciplined for engaging in that non medical act (assuming the law is followed). However, voluntary associations should be able to so exclude physicians. Yet, under the assisted suicide laws of Oregon and Washington, even voluntary associations are prevented from excluding or disciplining participating physicians–another way in which the culture of death brooks no dissent. I think these laws violate the First Amendment’s right to free association and I hope that one day a death doctor will be so sanctioned by a voluntary medical association and the matter brought to the U.S. Supreme Court to validate the right of the group to make that decision.

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