Amicus Curiae Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

No. 88-1503

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

NANCY BETH CRUZAN, BY HER PARENTS AND CO-GUARDIANS,

LESTER L. AND JOYCE CRUZAN,

Petitioners,

v.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

AND ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

Respondents,

V.

THAD C. MCCANSE, GUARDIAN AD LITEM,

Respondent,

On Writ of Certiorari

to the Missouri Supreme Court

BRIEF OF RALPH BUGLIONI AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

ROBERT L. SASSONE

Attorney at Law

900 North Broadway « Suite 725

Santa Ana, California 92701

(714) 547-5611

MOTION FOR LEAVE TO FILE A BRIEF.AS

AMICUS CURIAE ON BEHALF OF RESPONDENT

Amicus hereby respectfully moves for

leave to file a brief amicus curiae in

the present case. Requested consent of

the parties is expected but has not yet

been received and filed. When filed, it

will make this motion unnecessary.

INTEREST OF AMICUS CURIAE

Attorney herein was requested by the

sister of Amicus who stated he only had a

30% chance to live a month to visit him

at a Riverside, CA hospital. He was in

acute intensive care, having had a severe

heart attack six days previous. He could

be understood, but spoke faintly. He had

tubes at least in his veins and nose and

numerous couplings to hospital equipment.

He wanted you to understand that you do

not have to kill. When a disabled patient

is ready to die, he dies. He requests you

to read the cautions to posterity herein

written by Justice Robert Jackson. and Leo

Alexander MD as they apply to euthanasia.

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE AND INTEREST

OF AMICUS i

TABLE OF AUTHORITIES ii

SUMMARY OF ARGUMENT 1

ARGUMENT z 2

“HADAMAR TRIAL” FOREWORD BY THE

HONORABLE ROBERT H JACKSON, 2

“MEDICAL SCIENCE UNDER DICTATORSHIP

(FOOTNOTES HAVING BEEN DELETED) BY

LEO ALEXANDER, MD, PSYCHIATRIST, 4

Preparatory Propaganda 6

Euthanasia 8

The Science of Annihilation 21

Medicomilitary Research 30

Motivation 39

The Early Change in Medical

Attitudes 42

The Example of Successful Resistance

by the Physicians of the Netherlands 44

The Situation in the United States 48

CONCLUSION 63

TABLE OF AUTHORITIES

ITEM PAGE

LEO ALEXANDER, MD, PSYCHIATRIST,

OFFICIAL AMERICAN MEDICAL EXPERT AT THE

NUREMBERG TRIALS;"MEDICAL SCIENCE

UNDER DICTATORSHIP” (FOOTNOTES

OMITTED) NE JOURNAL OF MEDICINE,

241:39-47, 1949 4

THE HONORABLE ROBERT H JACKSON,

ASSOCIATE JUSTICE, US SUPREME COURT, AND

FORMERLY US CHIEF OF COUNSEL FOR THE

NUREMBERG TRIALS; HODGE & CO LTD, 1949

“THE HADAMAR TRIAL FOREWORD" 2

ii

a

6

Pile ne Pee lt ee ae ad

SUMMARY OF ARGUMENT.

Should this Court accept "the atti-

tude, basic in the euthanasia movement,

that there is such a thing as life not

worthy to be lived. This attitude in its

early stages concerned itself merely with

the severely and chronically sick." [From

Alexander, infra). This Court is too

young to include participants with expe-

rience in the War Crimes trials such as

the experience of those whose statements

form this entire brief. Former Justice

Robert Jackson and expert witnesses

Alexander and Ivy would vote unanimously

to affirm the Missouri decision which

spared Nancy Cruzan's life, limited

though her capabilities be. They were

sufficiently concerned with you, their

posterity, to state their reasons, based

on the world's largest experiment with

euthanasia, why you should not take even

a first step toward euthanasia, no matter

how compelling the reasons for said first

step might appear.

ARGUMENT

THE HONORABLE ROBERT H JACKSON

"A freedom-loving people will find

in the records of the war crimes trials

instruction as to the roads which lead to

such a regime and the subtle first steps

that must be avoided. Even the Nazis

probably would have surprised themselves,

and certainly they would have shocked

many German people, had they proposed as

a single step to establish the kind of

extermination institution that the evi-

dence shows the Hadamar Hospital became.

But the end was not thus reached; it was

achieved in easy steps.

To begin with, it involved only the

incurably sick, insane and mentally defi-

cient patients of the Institution. It was

x?

Nee le

wets ty we. -

easy to see that they were a substantial

burden to society, and life was probably

of little comfort to them. It is not

difficult to see how, religious scruples

apart, a policy of easing such persons

out of the world by a completely painless

method could appeal to a hard-pressed and

unsentimental people. But “euthanasia"

taught the art of killing and accustomed

those who directed and those who adminis-

tered the death injections to the taking

of human life. Once any scruples and in-

hibitions about killing were overcome and

the custom was established, there fol-

lowed naturally an indifference as to

what lives were taken. Perhaps also

those who become involved in any killings

are not to be in a good position to de-

Cline further requests. If one is con-

vinced that a person should be put out of

the way because, from no fault of his

i-.

own, he has ceased to be a social asset,

it is not hard to satisfy the conscience

that those who are willful enemies of the

prevailing social order have no better

right to exist. And so Hadamar drifted

from hospital to a human slaughter-

— Foreword

[From The Hadamar Trial/- by the

Honorable Robert H Jackson, Associate

Justice, U.S. Supreme Court, and formerly

U.S. Chief of Counsel for the Nuremberg

Trials, Hodge & Co Ltd., 1949]

MEDICAL SCIENCE UNDER

DICTATORSHIP

by LEO ALEXANDER

Science under dictatorship becomes

subordinated to the guiding philosophy of

the dictatorship. Irrespective of other

ideologic trappings, the guiding philo-

sophic principle of recent dictatorships,

including that of the Nazis, has been

a

Hegelian in that what has been considered

"rational utility" and corresponding doc-

trine and planning has replaced moral,

ethical and religious values. Nazi propa-

ganda was highly effective in perverting

public opinion and public conscience, in

a remarkably short time. In the medical

profession this expressed itself in a

rapid decline in standards of profes-

sional ethics. Medical science in Nazi

Germany collaborated with this Hegelian

trend particularly in the following en-

terprises: the mass extermination of the

chronically sick in the interest of sav-

ing “useless" expenses to the community

as whole; the mass extermination of those

considered socially disturbing or ra-

cially and ideologically unwanted; the

individual, inconspicuous extermination

of those considered disloyal within the

ruling group; and the ruthless use of

eH.

"human experimental material for medi-

comilitary research.

This paper discusses the origins of

these activities, as well as their conse-

quences upon the body social, and the mo-

tivation of those participating in them.

Preparatory Propaganda

Even before the Nazis took open

charge in Germany, a propaganda barrage

was directed against the traditional com-

passionate nineteenth century attitudes

toward the chronically ill, and for the

adoption of a utilitarian, Hegelian point

of view. Sterilization and euthanasia of

persons with chronic mental illnesses was

discussed at a meeting of Bavarian psy-

chiatrists in 1931. By 1936 extermina-

tion of the physically or socially unfit

was so openly accepted that its practice

was mentioned incidentally in an official

German medical journal.

As

Lay opinion was not neglected in

this campaign. Adults were propagandized

by motion pictures, one of which, enti-

tled “I Accuse,” deals entirely with

euthanasia. This film depicts the life

history of a woman suffering from multi-

ple sclerosis; in it her husband, a doc-

tor finally kills her to the accompani-

ment of soft piano music rendered by a

sympathetic colleague in an adjoining

room. Acceptance of this ideology was im-

planted even in the children. A widely

used high school mathematics text,

Mathematics in the Service of National

Political Education, includes problems

stated in distorted terms of the cost of

caring for and rehabilitating the chroni-

cally sick and crippled. One of the prob-

lems asked, for instance, how many new

housing units could be built and how many

marriage-allowance loans could be given

iy

to newly wedded couples for the amount of

money it cost to care for “the crippled,

the criminal and the insane.”

Euthanasia

The first direct order for euthane-

sia was issued by Hitler on September 1,

1939, and an organization was set up to

execute the program. Dr. Karl Brandt

headed the medical section, and Philip

Bouhler the administrative section. All

State institutions were required to re-

port on patients who had been ill five

yeayvS or more and who were unable to

work, by filling questionnaires giving

name, race, marital status, nationality,

next of kin, whether regulariy visited

and by who, who bore financial responsi-

bility and so forth. The decision regard-

ing which patients should be killed was

made entirely on the basis of this brief

information by expert consultants, most

Ch awvt ax Pe ae

s p

hee

vt et a Be) age le ey

of whom were professors of psychiatry in

the key universities. These consultants

never saw the patients themselves. The

thoroughness of their scrutiny can be ap-

praised by the work of one expert, who

between November 14 and December 1, 1940,

evaluated 2109 questionnaires.

These questionnaires were collected

Work Committee of

by a “Realm’s

Institucions for Cure and Care.” A par-

allel organization devoted exclusively to

the killing of chi’dren was known by the

Similarly euphemistic name of “Realm’s

Committee for Scientific Approach to

to Heredity and

Severe Illness Due

Constitution.” The “Charitable Transport

Company for the Sick” transported pa-

tients to the killing centers, and the

“Charitable Foundation for Institutional

Care” was in charge of collecting the

cost of the killings from the relatives,

.

without, however, informing them what the

charges were for; in the death certifi-

cates the cause of death was falsified.

What these activities meant to the

population at large was well expressed by

a few hardy souls who dared to protest.

A member of the court of appeals at

Frankfurt-am-Main wrote in December,

1939:

There is constant discussion of the

question of the destruction of socially

unfit life — in the places where there

are mental institutions, in neighboring

Cowns, sometimes over a large area,

throughout the Rhineland, for example.

The people have come to recognize the

vehicles in which the patients are taken

from their original institution to the

intermediate institution and from there

to the liquidation institution. I am told

that when they see these buses even the

-10-

children call out; ‘They’re taking some

more people to be gassed.’ From Limburg

it is reported that every day from one to

three buses with shades drawn pass

through on the way form Weilmunster to

Hadamar, delivering inmates to the

liquidation institution there. According

to the stories the arrivals are

immediately stripped to the skin, dressed

in paper shirts and forthwith taken to a

gas chamber, where they are liquidated

with hydrocyanic acid gas and added

anesthetic. The bodies are reported to be

moved to a combustion chamber by means of

a conveyor belt, six bodies to a furnace.

The resulting ashes are then distributed

into six urns which are shipped to the

families. The heavy smcke form the

crematory building is said to be visible

over Hadamar every day. There is talk,

furthermore, that in some cases heads and

.

other portions of the body are. removed

for anatomical examination. The people

working at this liquidation job in the

institutions are said to be assigned from

other areas and are ashamed completely by

the populace. This personnel is described

as frequenting the bars at night and

drinking heavily. Quite apart from these

overt incidents that exercise the

imagination of the people, they are dis-

quieted by the question of whether old

folk who have worked hard all their lives

and may merely have come into their

dotage are also being liquidated. There

is talk that the homes for the aged are

to be cleaned out too. The people are

said to be waiting for legislative regu-

lation providing some orderly method that

will insure especially that the aged

feebleminded are included in the pro-

gram."

Here one sees what “euthanasia"

means in actual piactice. According to

the records, 275,000 people were put to

death in these killing centers. Ghastly

as this seems, it should be realized that

this program was merely the entering

wedge for exterminations of far greater

scope in the political program for geno-

cide of conquered nations and the ra-

cially unwanted. The methods used and

personnel trained in the killing centers

for the chronically sick became the nu-

cleus of the much larger centers in the

East, where the plan was to kill all Jews

and Poles and to cut down the Russian

population by 30,000,000.

The original program developed by

Nazi hotheads included also the genocide

of the English, with the provision that

the English males were to used as labor-

ers in the vacated territories in the

yo

—_—

f

East, there to be worked to’ death,

whereas the English females were to be

brought into Germany to improve the qual!-

ities of the German race. (This was in-

deed a peculiar admission on the part of

the German eugenists.)

In Germany the exterminations in-

cluded the mentally defective, psychotics

(particularly schizophrenics), epileptics

and patients suffering from infirmities

of old age and from various organic neu-

“rologic disorders such as infantile

paralysis, Parkinsonism, multiple sclero-

sis and brain tumors. The technical ar-

rangements, methods and.training of the

killer personnel were under the direction

of a committee of physicians and other

experts headed by Dr. Karl Brandt. The

mass killings were first carried out with

carbon monoxide gas, but later cyanide

gas (“cyclon B”) was found to be more ef-

stn

“ eres S|

fective. The idea of camouflaging the gas

chambers as shower baths was developed by

Brack, who testified before Judge Sebring

that the patients walked in calmly, de-

posited their towels and stood with their

little pieces of soap under the shower

outlets waiting for the water to start

running. This statement was ample rebut-

tal of his claim that only the most

severely regressed patients among the

mentally sick and only the moribund ones

among the physically sick were extermi-

nated. In truth, all those unable to work

and considered nonrehabilitable were

killed.

All but their squeal was utilized.

However, the program grew so big that

even scientists who hoped to benefit from

the treasure of material supplied by this

totalitarian method were disappointed. A

neuropathologist. Dr. Hallervorden, who

ie;

had obtained 500 brains from the: killing

centers for the insane, gave me a vivid

firsthand The Charitable

account.

Transport Company for the Sick brought

the brains in batches of 150 to 250 at a

time. Hallervorden stated:

There was wonderful materiel among

those brains, beautiful mental defectives

malformations and infantile

early

diseases. I accepted those brains of

course. Where they came from and how they

came to me was really none of my

business.

In addition to the material he

wanted, all kinds of other cases were

mixed in, such as patients suffering from

various types of Parkinsonism, simple de-

pressions, involutional depressions and

brain’ tumors, and all kinds of other ill-

nesses, including psychopathy that had

difficult to handle:

= *

Rib wae Kat .

aan

These were selected from the various

wards of the institutions according to an

excessively simple and quick method.

Most institutions did not have enough

physicians, and what physicians there

were were either too~ busy or did not

care, and they delegated the selection to

the nurses and attendants. Whoever

looked sick or was otherwise a problem

was put on a list and was transported to

the killing center. The worst thing about

this business was that it produced a

certain brutalization of the nursing per-

sonnel. They got to simply picking out

those whom they did not like, and the

doctors had so many patients that they

did not even know them, and put their

names on the list.

Of the patients thus killed, only

the brains were sent to Dr. Hallervorden;

they were killed in such large numbers

-17- ;

eo a ae Eel ee Be

- —————————————

that autopsies of the bodies were not

feasible. That, in Dr. Hallervorden's

opinion, greatly reduced the scientific

value of the material. The brains, how-

ever, were always well fixed and sus-

pended in formalin, exactly according to

his instructions. He thinks that the

cause of psychiatry was permanently in-

jured by these activities, and that psy-

chiatrists have lost the respect of the

German people forever. Dr. Hallervorden

concluded: “Still, there were interesting

cases in this material.” In general only

previously hospitalized patients were ex-

terminated for reasons of illness. An ex-

ception is a program carried out in a

northwestern district of Poland, the

“Warthegau,” where a health survey of the

entire population was made by an “S.S. X-

Ray Battalion” headed by Professor

Hohlfelder, radiologist of the University

- os

stn Seams PL PE eas, eae

of Frankfurt-am-Main. Persons found to be

infected with tuberculosis were carted

off to special extermination centers.

It is rather significant that the

German people were considered by their

Nazi leaders more ready to accept the ex-

terminations of the sick than those for

political reasons. It was for that reason

that the first exterminations of the lat-

ter group were carried out under the

guise of sickness. So-called “psychiatric

experts" were dispatched to survey the

inmates of camps with the specific order

to pick out members of racial minorities

and political offenders from occupied

territories and to dispatch them to

killing center with epocialiy made diag-

noses such as that of “inveterate German

hater” applied to a number of prisoners

who had been active in the Czech under-

ground.

=

Certain classes of patients with

mental diseases who were capable of per-

forming labor, particularly members of

the armed forces suffering from psychopa-

thy or neurosis, were sent to concentra-

tion camps to be exterminated in the pro-

cess of removal of mine fields.

A large number of those marked for

death for political oF racial reasons

were made available for "medical" experi-

ments involving the use of involuntary

human subjects. From 1942 on, such exper

iments carried out in concentration camps

were openly presented at medical meet~-

ings. This program included “terminal hu-

man experiments,” a term introduced by

Dr. Rasher to denote an experiment So de-

signed that its successful conclusion de-

pended upon the test person's being put

to death.

-2%0-

most likely silver nitrate with iodized

oil, because the result could be’ ascer~

tained by X-ray examination. The injec~

tions were extremely painful, and a num-

ber of women died in the course of the

experiments. professor Karl Clauberg re~

ported that he had developed 4 method at

the Auschwitz concentration camp by which

he could sterilize 1000 women in one day.

Another method of sterilization, oF

rather castration, was proposed by Viktor

Brack especially for conquered popula-

tions. His idea was that X-ray machinery

could be built into desks at which the

people would have to sit, ostensibly to

fill out 4 questionnaire requiring five

minutes; they would be sterilized without

being aware of it. This method failed

because experiments carried out on 100

male prisoners brought out the fact that

severe X-ray burns were produced on all

-n2-

oe “eae et ati ea

Paks rt i. ae abs ae.

subjects. In the course of this research,

which was carried out by Dr. Horst

Schuman, the testicles of the victims

were removed for histologic examinations

two weeks later- I myself examined four

castrated survivors of this ghastly ex~

periment. Three had extensive necrosis of

the skin near the genitalia, and the

other an extensive necrosis of the

urethra. Other experiments in steriliza-

tion used an extract of the plant

Caladium seguinum, which had been shown

in animal studies by Madaus and his co-

workers to cause selective necrosis of

the germinal cells of the testicles as

well as the ovary:

The development of methods for rapid

and inconspicuous individual execution

was the objective of another large part

of the ktenologic research. These methods

were to be applied to members of the rul-

-23-

ing group, including the SS itself, who

were suspected of disloyalty. This, of

course, is an essential requirement in a

dictatorship, in which "cutthroat compe-

tition” becomes a grim reality, and any

hint of faintheartedness or lack of en-

thusiasm for the methods of totalitarian

rule is considered a threat to the entire

group.

Poisons were the subject of may of

these experiments. A research team at the

Buchenwald concentration camp, consisting

of Drs. Joachim Mrugowsky, Erwin Ding-

Schuler and Waldemar Hoven, developed the

most widely used means of individual exe-

cution under the guise of medical treat-

ment — namely, the intravenous injection

of phenol or gasoline. Several alkaloids

were also investigated, among them aconi-

tine, which was used by Dr. Hoven to

kill several imprisoned former fellow SS

. 2

Bs A got oo

men who were potential witnesses against

the camp commander, Koch, then under in-

vestigation by the SS. At the Dachau

concentration camp Dr. Rascher developed

the standard cyanide capsules, which

could be easily bitten through, either

deliberately or accidentally, if mixed

with certain foods, and which, ironically

enough, later became the means with which

Himmler and Goering killed themselves. In

connection with these poison experiments

there is an interesting incident of char-

acteristic sociologic significance. When

Dr. Hoven was under trial by the SS the

investigating SS judge, Dr. Morgen,

proved Hoven’s guilt by feeding the poi-

son found in Dr. Hoven's possession to a

number of Russian prisoners of war; these

men died with the same symptoms as the SS

men murdered by Dr. Hoven. This worthy

judge was rather proud of this efficient

- 25-

method of proving Dr. Hoven's guilt and

appeared entirely unaware of the fact

that in the process he had committed mur-

der himself.

Poisons, however, proved too obvious

or detectable to be used for the elimina-

tion of high-ranking Nazi party personnel

who had come into disfavor or of promi-

nent prisoners whose deaths shoula appear

Phenol or

to stem from natural causes.

gasoline, for instance, left a telltale

odor with the corpse. For this reason 4

number more subtle methocs were devised.

One of these was artificial production of

septicemia. An intramuscular injection of

1 cc. of pus, containing numerous chains

of streptococci, was the first step. The

site of injection was usually the inside

close to the adductor

of the thigh,

canal. When an abscess formed it was

tapped, and 3 cc. of the creamy pus re-

gpa Bab kw Pelt gl

moved was injected intravenously into the

patient's opposite arm. If the patient

then died from septicemia, the autopsy

proved that death was caused by the same

organism that had caused the abscesses.

These experiments were carried out in

many concentration camps. At the Dachau

camp the subjects were almost exclusively

Polish Catholic priests. However, since

this method did not always cause death,

sometimes resulting merely in a local ab-

scess, it was considered inefficient, and

research was continued with other means

but along the same lines.

The final triumph on the part of

ktenologic research aimed at finding 4

method of inconspicuous execution that

would produce autopsy findings indicative

of death from natural causes was the de-

velopment of repeated intravenous injec-

tions of suspensions of live tubercle

-27-

bacilli, which brought on acute miliary

tuberculosis within a few weeks. This

method was produced by Professor Dr.

Heissmeyer, who was one of Dr. Gebhardt’s

associates at the SS hospital of

Hohenlychen. As a4 means of further camou-

flage, so that the SS at large would not

suspect the purpose of these experiments,

the preliminary tests for the efficiency

of this method were performed exclusively

on children imprisoned in the Neuengamme

concentration camp.

For use in “medical” executions of

prisoners and of members of the SS and

other branches of the German armed forces

the use of simple lethal injections, par-

ticularly phenol injections, remained the

instrument of choice. Whatever methods he

used, the physician gradually became the

unofficial executioner, for the sake of

convenience, informality and relative se-

- 28 -

crecy. Even on German submarines it was

the physician’s duty to execute the trou-

blemakers among the crew by lethal injec-

tions.

Medical science has for some time

been an instrument of military power in

that it preserved the health and fighting

efficiency of troops. This essentially

defensive purpose is not inconsistent

with the ethical principles of medicine.

In World War I the German empire had en-

listed medical science as an instrument

of aggressive military power by putting

it to use in the development of gas war~

fare. It was left to the Nazi dictator~

ship to make medical science into an in-

strument of political power — 4

formidable, essential tool in the com-

plete and effective manipulation of to-

talitarian control. This should be 4

warning to all civilized nations, and

-29-

particularly to individuals who are

blinded by the “efficiency” of totalitar-

jan rule, under whatever name.

This entire body of research as re~

ported so far served the master crime to

which the Nazi dictatorship was committed

— namely, the genocide of non-German peo-

ples and the elimination by killing, in

groups or singly, of Germans who were

considered useless or disloyal. in. eft-

fecting the two parts of this program,

Himmler demanded and received the cooper~

ation of physicians and of German medical

science. The result was 4 significant

advance in the science of killing or

ktenology. :

Medicomilitary research

Another chapter in Nazi scientific

research was that aimed to aid the mili-

tary forces. Many of these ideas origi-

nated with Himmler, who fancied himself a

scientist.

When Himmler learned that the cause

of death of most SS men on the battie-

field was hemorrhage, he instructed Dr.

Sigmund Rascher to search for 4 blood co-

agulant that might be given before the

men went into action. Rascher tested

this coagulant when it was developed by

clocking the number of drops emanating

from freshly cut amputation stumps of

living and conscious prisoners at the

crematorium of ester concentration camp

and by shooting Russian prisoners of war

through the spleen.

Live dissections were 4 feature of

another experimental study designed to

show the effects of explosive decompres~

sion. A mobile decompression chamber was

used. It was found that when subjects

were made to ascend from altitudes of

-31-

40,000 to 60,000 feet without oxygen, se~-

vere symptoms of cerebral dysfunction oc-

curred — at first convulsions, then un-

consciousness in which the body was hang-

ing limp and later, after wakening, tem-

porary blindness, paralysis or sever con~

fusional twilight staces. Rascher, who

wanted to find out whether these symptoms

were due to anoxic changes or to other

causes, did what appeared to him the most

simple thing: he placed the subjects of

the experiment under water and dissected

them while the heart was still beating,

demonstrating air embolism in the blood

vessels of the heart, liver, chest wall

and brain.

Another part of Dr. Rasher’s re~

search, carried out in collaboration with

Holzloehner and Finke, concerned shock

from exposure to cold. It was known that

military personnel generally did not sur~

-32-

vive immersion in the North Sea for more

than sixty to a hundred minutes. Rascher

therefore attempted to duplicate these

conditions at Dachau concentration camp

and used about 300 prisoners in experi-

ments on shock from exposure to cold; of

these 80 or 90 were killed. (The figures

do not include persons killed during mass

experiments on exposure to cold out-

doors.) In one report on this work

Rascher asked permission to shift these

experiments from Dachau to Auschwitz, 4

larger camp where they might cause less

disturbance because the subjects shrieked

from pain when their extremities froze

white. The results, like so many of those

obtained in the Nazi research program,

are not dependable. In his report Rascher

stated that it took from fifty-three to a

hundred minutes to kill a human by immer-

sion in ice water — a time closely in

-%8-

agreement with the known survival period

in the North Sea. Inspection of his own

experimental -ecords and statements made

to me by his close associates showed that

it actually took from eighty minutes to

five or six hours to kill an undressed

person in such a manner, whereas a man in

full aviator's dress took six or seven

hours to kill. Obviously, Rascher dressed

up his findings to forestall criticism,

although any scientific man should have

known that during actual exposure many

other factors, including greater convec-

tion of heat due to the motion of water,

would affect the time of survival.

Another series of experiments gave

results that might have been an important

medical contribution if an important lead

had not been ignored. The efficacy of

various vaccines and drugs against typhus

was tested at the Buchenwald and

-34-

Natzweiler concentration camps.

Prevaccinated persons and annrendeteanes

controls were injected with live typhus

rickettsias, and the death rates of the

series compared. After a certain number

Of passages, the Matelska Strain of ty-

phus rickettsia proved to become aviru-

lent for man. Instead of seizing upon

this as a possibility to develop a live

vaccine, the experimenters, including the

chief consultant, Professor Gerhard Rose,

who should have known better, were merely

annoyed at the fact that the controls did

not die either, discarded this strain and

continued testing their relatively inef-

fective dead vaccines against a new viru-

lent strain. This incident shows that

the basic unconscious motivation and at-

titude has a great influence in determin-

ing the scientist's awareness o° the phe-

nomena that pass through his vision

-35-

Sometimes human subjects were used

for tests that were totally unnecessary,

or whose results could have been pre-

dicted by simple chemical experiments.

For example, 90 gypsies were given unal-

tered sea water and sea water whose taste

was camouflaged as their sole source of

fluid, apparently to test the well known

fact that such hypertonic saline solu-

tions given as the only source of supply

of fluid will cause severe physical dis-

turbance or death within six to twelve

days. These persons were subjected to the

tortures of the damned, with death re-

sulting in at least two cases.

Heteroplastic transplantation exper-

iments were carried out by Professor Dr.

Karl Gebhardt at Himmler’s suggestion.

Whole limbs - shoulder, arm, or leg -

were amputated from live prisoners at

Ravensbrueck concentration camp, wrapped

<i.

in sterile moist dressings and. sent by

automobile to the SS hospital at

Hohenlychen, where Professor Gebhardt

busied himself with a futile attempt at

heteroplastic transplantion. In the mean-

time the prisoners deprived of a limb .

were usually killed by lethal injection.

One would not be dealing with German

science if one did not run into manifes-

tations of the collector’s spirit. By

February, 1942, it was assumed in German

scientific circles that the Jewish race

was about to be completely exterminated,

and alarm was expressed over the fact

that only very few specimens of skulls

and skeletons of Jews were at the dis-

posal of science. It was therefore pro-

posed that a collection of 150 body casts

and skeletons of Jews be preserved for

perusal by future students of anthropol-

ogy. Dr. August Hirt, professor of

«37

anatomy at the University of Strassburg,

declared himself interested in establish-

ing such a collection at his anatomic in-

stitute. He suggested that captured

Jewish officers of the Russian armed

‘forces be included, as well as females

from Auschwitz concentration camp near

Strassburg; and that after “their subse-

quently induced death - care should be

taken that the heads not be damaged

[sic]” the bodies be turned over to him

at the anatomic institute of the

University of Strassburg. This was done.

The entire collection of bodies and the

correspondence pertaining to it fell into

the hands of the United States Army.

One of the most revolting experi-

ments was the testing of sulfonamides

against gas gangrene by Professor

Gebhardt and his collaborators, for which

young women captured from the Polish re-

- 38 -

sistance movement served as subjects.

Necrosis was produced in a muscle of the

leg by ligation and the wound was in-

fected with various types of gas-gangrene

bacilli; frequently, dirt pieces of wood

and glass splinters were added to the

wound. Some of these victims died, and

others sustained severe mutilating defor-

mities of the leg. i"

Motivation

An important feature of the experi-

ments performed in concentration camps is

the fact that they not only represented a

ruthless and callous pursuit of legiti-

mate scientific goals but also were moti-

vated by rather sinister practical ulte-

rior political and personal purposes,

arising out of the requirements and prob-

lems of the administration of totalitar-

ian rule.

- 39 -

Why did men like professor Gebhardt

lend themselves to such experiments? The

reasons are fairly simple and practical,

no surprise to anyone familiar with the

evidence of fear, hostility, suspicion,

rivalry and intrigue, the fratricidal

struggle euphemistically termed the

“self-selection of leaders,” that went on

within the ranks of the ruling Nazi party

and the SS. The answer was fairly simple

and logical. Dr. Gebhardt performed these

experiments to clear himself of the sus-

picion that he had been contributing to

the death of SS General Reinhard ("The

Hangman") Heydrich, either negligently or

deliberately, by failing to treat his

wound infection with sulfonamides. After

Heydrich died from gas gangrene, irre-

spective of whether they were treated

with sulfonamides or not.

Dr. Sigmund Rascher did not become

the notorious vivisectionist of Dachau

concentration camp and the willing tool

of Himmler's research interests until he

had been forbidden to use the facilities

of the Pathological Institute of the

University of Munich because he was sus-

pected of having Communist sympathies.

Then he was ready to go all out and to do

anything merely to regain acceptance by

the Nazi party and the SS.

These cases illustrated a method

consciously and methodically used in the

SS, an age-old method used by criminal

gangs everywhere: that of making suspects

of disloyalty clear themselves by partic-

ipation in a crime that would definitely

and irrevocably tie them to the organiza-

tion. In the SS this process of rein-

forcement of group cohesion was called

“Blutkitt” (blood-cement), a term that

-

Hitler himself is said to have obtained

from a book on Genghis Khan in which this

technic was emphasized.

The important lesson here is that

this motivation, with which one is famil-

iar in ordinary crimes, applies also to

‘war crimes and to ideologically condi-

tioned crimes against humanity — namely,

that fear and cowardice, especially fear

of punishment or of ostracism by the

group are often more important motives

than simple ferocity or aggressiveness.

The early change in medical at-

titudes

Whatever proportions these crimes

finally assumed, it became evident to all

who investigated them that they had

started from small beginnings. The begin-

nings at first were merely a subtle shift

in the basic attitude of the physicians.

It started with the acceptance of the at-

-42-

titude, basic in the euthanasia movement,

that there is such a thing as life not

worthy to be lived. This attitude in its

early stages concerned itself merely with

the severely and chronically sick.

Gradually the sphere of those to be in-

cluded in this category was enlarged to

encompass the socially unproductive, the

ideologically unwanted, the racially un-

wanted and finally all non-Germans. But

it is important to realize that the in-

finitely small wedged-in lever from which

this entire trend of mind received its

impetus was the attitude toward the non-

rehabilitable sick.

It ds, therefore, this subtle shift

in emphasis of the physicians’ attitude

that one must thoroughly investigate. It

is a recent significant trend in

medicine, including psychiatry, to regard

prevention as more important than cure.

-

Observation and recognition of early

signs and symptoms have become the basis

for prevention of further advance dis-

ease.

In looking for these early signs one

may well retrace the early steps of pro-

ppaganda on the part of the Nazis in

Germany as well as in the countries that

they overran and in which they attempted

to gain supporters by —— of indoctri-

nation, seduction and propaganda.

The example of successful resis-

tance

by the physicians of the

Netherlands

There is no doubt that in Germany

itself the first and most effective step

of propaganda within the medical profes-

sion was the propaganda barrage against

the useless, incurably sick described

above. Similar, even more subtle efforts

were made in some of the occupied coun-

-44-

tries. It is to the everlasting honor of

the medical profession of Holland that

they recognized the earliest and most

subtle phases of this attempt and re-

jected it. When Seiss-Inquart, Reich

Commissar for the Occupied Netherlands

Territories, wanted to draw the Dutch

physicians into-the orbit of the activi-

ties of the German medical profession, he

did not tell them “You must send your

chronic patients to death factories” or

“You must give lethal injections at

Government request in your offices,” but

he couched his order in most careful and

superficially acceptable terms. One of

the paragraphs in the order of the Reich

Commissar of the Netherlands Territories

concerning the Netherlands doctors of 19

December 1941 reads as follows:

It is the duty of the doctor,

through advice and effort, conscien-

- 45 -

tiously and to his best ability, to

assist as helper the person entrusted to

his care in the maintenance, improvement,

and re-establishment of his vitality,

Physical efficiency and health. The ac-

complishment of this duty is a public

.task.

The physicians of Holland rejected

this order unanimously because they saw

what it actually meant — namely, the con-

centration of their efforts on mere reha-

bilitation of the sick for useful labor,

and abolition of medical secrecy.

Although on the surface the new order ap-

peared not too grossly unacceptable, the

Dutch physicians decided that it is the

first, although slight, step away from

principle that is the most important one.

The Dutch physicians declared that they

would not obey this order. When Seiss-

Inquart retraced his steps and tried to

- 46 -

cajole them — still to no effect. Then

he arrested 100 Dutch physicians and sent

them to concentration camps. The medical

profession remained adamant and quietly

took care of their widows and orphans,

but would not give in. Thus it came

about that not a single euthanasia or

non-therapeutic sterilization was recom-

mended or participated in by any Dutch

physician. They had the foresight to re-

sist before the first step was waken, and

they acted unanimously and won out in the

end. It is obvious that if the medical

of a small nation under the conqueror’s

heel could ~esist so effectively the

German medical profession could likewise

have resisted had they not taken the fa-

tal first step. It is the first seem-

ingly innocent step away from principle

that frequently decides a career of

- 47 ~

crime. Corrosion begins in microscopic

proportions.

The situation in the United

States

The question that this fact prompts

is whether there are any danger signs

that American physicians have also been

infected with Hegelian, cold-blooded,

utilitarian philosophy and whether early

traces of it can be detected in their

medical thinking that may make them vul-

nerable to departures of the type that

occurred in Germany. Basic attitudes

must be examined dispassionately. The

original concept of medicine and nursing

was not based on any rational or feasible

likelihood that they could actually cure

and restore but rather on an essentially

maternal or religious idea. The Good

Samaritan had no thought of nor did he

actually care whether he could restore

- 48 -

working capacity. He was merely moti-

vated by the compassion in alleviating

suffering. Bernal states that prior to

the advent of scientific medicine, the

physician’s main function was to give

hope to the patient and to relieve his

relatives of responsibility. Gradually,

in all civilized countries, medicine has

moved away from this position, strangely

enough in direct proportion to man’s ac-

tual ability to perform feats that would

have been plain miracles in days of old.

However, with this increased efficiency

based on scientific development went a

subtle change in attitude. Physicians

have become dangerously close to being

mere technicians of rehabilitation. This

essentially Hegelian rational attitude

has led them to make certain distinctions

in the handling of acute and chronic dis-

eases. The patient with the latter car-

- 49 -

ries an obvious stigma as the one less

likely to be fully rehabilitable for so-

cial usefulness. In an increasingly

utilitarian society these patients are

being looked: down upon with increasing

definiteness as unwanted ballast. A cer-

tain amount of rather open contempt for

the people: who cannot be rehabilitated

with present knowledge has developed.

This is probably due to a good deal of

unconscious hostility, because these peo-

ple for whom there seem to be no effec-

tive remedies have become a threat to

newly acquired delusions of omnipotence.

Hospitals like to limit themselves

to the care of patients who can be fully

rehabilitated, and the patient whose full

rehabilitation is unlikely finds himself,

at least in the best and most advanced

centers of healing, as a second-class pa-

tient faced with a reluctance on the part

= §0 -

of both the visiting and the house staff

to suggest and apply therapeutic proce-

dures that are not likely to bring about

immediately striking results in terms of

recovery. I wish to emphasize that this

point of view did not arise primarily

within the medical profession which has

always been outstanding in a highly com-

petitive economic society for giving

freely and unstintingly of its time and

efforts, but was imposed by the shortage

of funds available, both private and pub-

lic. From the attitude of easing pa-

tients with chronic diseases away from

the doors of the best types of treatment

facilities available to the actual dis-

patching of such patients to killing cen-

ters is a long but nevertheless logical

stem. Resources for the so-called incur-

able patient have recently become practi-

cally unavailable.

@ 81 «

There has never in history been a

shortage of money for the development and

manufacture of weapons of war; there is

and should be none now. tThe dispropor-

tion of monetary support for war and that

available for healing and care is an

anachronism in an era that has been de-

scribed as the “enlightened age of the

common man” by some observers. The com-

parable cost of jet planes and hospital

beds is too obvious for any excuse to be

found for a shortage of the latter. I

trust that these reuarks will not be

misunderstood. I believe that armament,

-including jet planes, is vital for the

security of the republic, but adequate

maintenance of standards of health and

alleviation of suffering are equally vi-

tal, both from a practical point of view

and from that of morale. All who took

part in induction-board examinations dur-

- 52 -

ing the war realize that the maintenance

and development of national health is of

as vital importance as the maintenance

and development of armament.

The trend of development in the fa-

cilities available for the chronically

ill outlined above will not necessarily

be altered by public or state medicine.

With provision of public funds in any

setting of public activity the question

is bound to come up, “Is it worthwhile to

spend a certain amount of effort to re-

store a certain type of patient?” This

rationalistic point of view has insidi-

ously crept into the motivation of medi-

cal effort, supplanting the old

Hippocratic point of view. In emergency

situation, military or otherwise, such

grading of effort may be pardonable. But

doctors must beware lest such attitudes

creep into the civilian public adminis-

@ §3 -

;

tration of medicine entirely - outside

emergency situations, because once such

considerations are at all admitted, the

more definitely the question is going to

be asked, “Is it worth while to do this

or that for this for this type of pa-

tient?” Evidence of the existence of

such an attitude stared at me from a re-

port on the activities of a leading pub-

lic hospital unity, which stated rather

proudly that certain treatments were

given only when they appeared promising:

Our facilities are such that a case

load of 20 patients is regularly carried

. in selecting cases for treatment

careful consideration is given to the

prognostic criteria, and in no instance

have we instituted treatment merely to

satisfy relatives or our own consciences.

If only those whose treatment is

worthwhile in terms of prognosis are to

- 54 -

be treated, what about the other ones?

The doubtful patients are the ones whose

recovery appears unlikely, but frequently

if treated energetically, they surprise

the best prognosticators. And what shall

be done during that long time lag after

the disease has been called incurable and

the time of death and autopsy? It is

that period during which it is most dif-

ficult to find hospitals and other thera-

peutic organizations for the welfare and

alleviation of suffering of the patient.

Under all forms of dictatorship the

dictating bodies or individuals claim

that all that is done is being done for

the best of the people as a whole, and

that for that reason they look at health

merely in terms of utility, efficiency

and productivity. It is natural in such

a setting that eventually Hegel’s princi-

ple that “what is useful is good” wins

- 55 -

out completely. The killing center is

the reductio ad absurdum of all health

planning based only on rational princi-

ples and economy and not on humane com-

passion and divine law. To be sure,

American physicians are still far from

the point of thinking of killing centers,

but they have arrived at a danger point

in thinking, at which likelihood of full

rehabilitation is considered a factor

that should determine the amount of time,

effort and cost to be devoted to a par-

ticular type of patient on the part of

the social body upon which this decision

rests. At this point Americans should

remember that the enormity of a euthana-

sia movement is present in their own

midst. To the psychiatrist it is obvious

that this represents the eruption of un-

conscious aggression on the part of cer-

tain administrators alluded to above, as

@ 86 «

well as on the part of relatives who have

been understandably frustrated by the

tragedy of illness in its close interac-

tion upon their own lives. The hostility

of a father erupting against his feeble-

minded son is understandable and should

be considered from the psychiatric point

of view, but it certainly should not in-

fluence social thinking. The development

of effective analgesics and pain-reliev-

ing »perations has taken even the last

rationalization away from the supporters

of euthanasia.

The case, therefore, that I should

like to make is that American medicine

must realize where it stands in its fun-

damental premises. There can be no doubt

that in a subtle way the Hegelian premise

of “what is useful is right” has infected

society, including the medical portion.

Physicians must return to the older

- §7 <-

premises, which were the emotional foun-

dation and driving force of an amazingly .

successful quest to increase powers of

healing and which are bound to carry them

still farther if they are not held down

to earth by the pernicious attitudes of

an overdone practical realism.

What occurred in Germany may have

been the inexorable historic progression

that the Greek historians have described

as the law of the fall of civilizations

and that Toynbee has convincingly con-

firmed — namely, that there is a logical

sequence from Horos to Hybris to Ate,

which means from surfeit to disdainful

arrogance to disaster, the surfeit being

increased scientific and practical eseun-

plishments, which, however, brought about

an inclination to throw away the old mo-

tivations and: values by disdainful arro-

gant pride “in practical efficiency.

@ $6 -

Moral “and physical disaster is the

inevitable consequence. |

Fortunately, there are developments

in this democratic society that counter-

act these trends. Notable among them are

the societies of patients afflicted with

various chronic diseases that have sprung

up and are dedicating themselves to guid-

ance and information for their fellow

sufferers and for the support and stimu-

lation of medical research. Among the

earliest was the mental hygiene movement,

founded by a former patient with mental

disease. Then came the National

Foundation for Infantile Paralysis, the

tuberculosis societies, the American

Epilepsy League, the National Association

to Control Epilepsy, the American Cancer

Society, The American Heart Association,

“Alcoholics Anonymous” and, most recently

the National Multiple Sclerosis Society.

- §9 -

All these societies, which ise ennes-

nated with special medical societies and

which received inspiration and guidance

from outstanding physicians, are having

an extremely wholesome effect in intro-

ducing fresh motivating power into the

ivory towers of academic medicine. It is

indeed interesting and an assertion of

democratic vitality that these societies

are activated by and for people suffering

from illnesses who, under certain dicta-

torships, would have been slated for

euthanasia.

It is thus that these new societies

have taken over one of the ancient func-

tions of medicine — namely, to give hope

to the patient and to relieve his rela-

tives. These societies need the whole-

hearted support of the medical profes-

sion. Unfortunately, this support is by

no means yet unanimous. A distinguished

- 60 -

physician, investigator and teacher at -

outstanding university recently told me

that he was opposed to these special so-

cieties and clinics because they had

nothing to offer to the patient. It

would be better to wait until someone

made a discovery accidentally and then

start clinics. It is my opinion, how-

ever, that one cannot wait for that. The

stimulus supplied by these societies is

necessary to give stimulus both to public

demand and to academic medicine, which at

times grows stale and unproductive even

in its most outstanding centers, and

whose existence did nothing to prevent

the executioner from having logic on his

side in Germany.

Another element of this free demo-

cratic society and enterprise that has

been a stimulus to new developments is

the pharmaceutical industry, which, with

* 61 -

great vision, has invested considerable

effort in the sponsorship of new re-

search.

Dictatorships can be indeed defined

as systems in which there is a prevalence

of thinking in destructive, rather than

in ameliorative terms in dealing with so-

cial problems. The ease with which de-

struction of life is advocated for those

considered either socially useless or so-

cially disturbing instead of educational

Or ameliorative measures may be the first

danger sign of loss of creative liberty

in thinking, which is the hallmark of

demcecratic society. All destructiveness

ultimately leads to self-destruction; the

fate of the SS and of Nazi Germany is an

eloquent example. The destructive prin-

ciple, once unleashed, is bound to engulf

the whole personality and to occupy all

its relationships. Destructive concepts

- 62 -

arising therefrom cannot remain limited

or focused upon one subject or several

subjects alone, but must inevitably

spread and be directed against one’s en-

tire surrounding world, including one’s

own group and ultimately the self. The

ameliorative point of view maintained in

relation to all others is the only real

means of self-preservation.

A most important need in this coun-

try is for the development of active and

alert hospital centers for the treatment

of chronic illnesses. They must have ac-

tive staffs similar to those of the hos-

pitals for acute illnesses, and these

hospitals must be fundamentally different

from the custodial repositories for dere-

licts, of which there are too many in ex-

istence today. Only thus can one give

the right answer to divine scrutiny: Yes,

we are our brothers’ keepers.

CONCLUSION EUTHANASIA ATTITUDES STARTED IT.

Respectfully Submitted, ROBERT L SASSONE

- 63 -

NO 88-1503.

IN THE SUPREME COURT OF THE UNITED STATES

: OCTOBER TERM, 1989 .

NANCY BETH CRUZAN, BY HER PARENTS AND

CO-GUARDIANS, LESTER L AND JOYCE CRUZAN

Petitioners,

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF

HEALTH, AND ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

Respondents,

Vv.

THAD C. McCANSE, GUARDIAN AD LITEM,

Respondent.

Affidavit of mailing of amicus brief

copies, Rule 28.2:

State of California }ss.

City of Santa Ana, County of Orange }

Robert L Sassone, being first duly sworn

on his oath deposes and says:

Robert L Sassone is a member of the

bar of the United States Supreme Court

admitted October 26, 1971. To his

knowledge, on October 11, 1989, within

the particular time and permitted tige

for serving of said amicus brief pursuant

to Rule 28.2, he deposited in the United

States Mailbox at Santa Ana, CA 92701

pursuant to Rule 28.2 with first class

postage prepaid 40 copies of the attached

amicus brief in the present case properly

addressed to the Clerk of the United

States Supreme Court and three copies of

said amicus brief to each party addressed

as follows:

WILLIAM L WEBSTER THAD McCANS, ESQ

ATTORNEY GENERAL 400 GRANT- ST

- C/O ROBERT EFRESSON CARTHAGE, HO 64836

PO BOX 899 C/O FLANAGAN, McCANS &

JEFFERSON CITY, MO 65102 LANSLEY

WILLIAM H COLBY, ESQ

SHOOK, HARDY & BACON

1200 MAIN ST

KANSAS CITY, MO 64105

ROBERT L SASSONE, Affiant,

Subscribed and sworn to before me on

October ll, 1989,

Lawrence D Sassone, Notary Public

a: CC Te ee. ee ee! ee ee Pe —

oye Sa