11.1 Introduction

As of the writing of this chapter, medical aid in dying continues to be one of the most controversial topics in healthcare and the one that often invokes Holocaust analogies. However, invocation of the Holocaust when discussing controversial matters in contemporary bioethics, such as medical aid in dying, can achieve the opposite of what the one who draws comparison may want. Rather than providing a convincing moral argument for why a position is not ethically warranted, logically unsound analogies to the Holocaust or juxtaposition of an issue with that of the Nazis turns the discussion into one of farce or fearmongering. The reason for the former is that the other participants in the debate recognize the absurdity of the comparison. Moreover, the result of drawing such an absurd comparison is that the moral line becomes one where, as long as one does not act like a Nazi, one’s actions are morally permitted. The reason for the latter is that the other participants in the debate are concerned about even considering the differences between the cases, let alone expressing their positions on the contemporary issue. The line is, therefore, drawn without attention to all aspects of moral concern; only the fear of being portrayed as evil is relevant. In both cases, moral deliberation no longer continues.

There is a famous law that originally applied only to online discussions yet has since permeated social discourse and now threatens academic examination of bioethical topics. Articulated by Michael Godwin in 1990 and formalized in the third edition of the Oxford English Dictionary in 2012, “Godwin’s law” asserts that “as an online debate increases in length, it becomes inevitable that someone will eventually compare someone or something to Adolf Hitler or the Nazis.” Academic incorporation of Godwin’s law is readily recognized in books and journal articles that opine on the death with dignity movement and legal developments in medical aid in dying legislation, as well as in various academic conferences and university lectures. While Godwin’s law assumes that conversation will proceed for some length of time, the back and forth of debate has become increasingly shortened since the law was first posited. In political debates, for example, mention of the Holocaust, Hitler, or the Nazis has often become the opening line rather than the closer. Godwin’s Law is a more recent take on Reductio ad Hitlerum, coined by Leo Strauss, which is the rhetorical strategy of condemning an argument by drawing comparisons to it with Hitler, the Nazi party, or organizations associated with Nazism (Strauss 1953, 42).

Oftentimes when Godwin’s Law is invoked, the one drawing comparison with the Holocaust either has made a logical error or has transgressed the norms of rhetoric. The difference between the two is whether the speaker incorrectly believes the comparison or whether he or she incorrectly believes that others will be persuaded by it. The two most common errors in judgment and/or persuasion are “appeals to fear” (argumentum in terrorem) and guilt by association.

11.2 Godwin’s Law and Bad Logic

Arguments that appeal to fear come in several different forms. The most obvious appeal to fear regarding medical aid in dying that relies on Godwin’s Law would be something like the following: “The Holocaust, and the example of medical participation in unethical euthanasia in particular, serves as a clear example of what can happen when the medical profession does not take a strong stance against societal influence in determining what is acceptable medical practice.” This sentence would be used to advocate that physicians should play a role in lobbying against medical aid in dying legislation. The argument draws the reader’s attention to a horrible past and suggests the possibility that such will be the future if the writer’s proposition is not accepted. Basically, if physicians don’t stop society from influencing medical practice, the consequence will be another Holocaust.

Yet, there have been previous examples in the history of medical ethics where the medical profession has not stopped society from influencing medical practice, and their inability—or lack of interest—in stopping society from changing the expectations of what is acceptable medical practice has in fact improved rather than detracted from the ethical practice of medicine. For example, the medical ethics principle of respecting patient autonomy is a societal imposition on medical practice and not a value that developed internally within the medical profession. In fact, globally the impetus for considering the rights of the individual was initially a response to reports of the inhumane treatment of Holocaust victims who were subjected involuntarily to medical experimentation, even if in the United States the principle of respecting patient autonomy grew in priority because of other societal factors.

In the United States, patient autonomy, and its corollary of informed consent to medical treatment, began as a legal principle, derived from common law notions of battery, to mean that individuals have a right to refuse invasion of their bodily integrity (Union Pacific Railway Co. v. Botsford 1891; Schloendorff v. Society of New York Hospital 1914). It developed into the full principle that it is today by virtue of legal development and societal pressure on reforming medical practice and physician autonomy. From the time of Hippocrates until the mid-1950s, medicine was paternalistic, where physicians upheld values of beneficence and non-maleficence towards their patients but did not consider their wishes or goals for care. Thomas Nys, Yvonne Denier, and Toom Vandevelde (2007, 3) explain, “Traditional medicine was paternalistic through-and-through: its goal was to restore or promote the patient’s well-being where the doctor’s expertise made him [sic.] the best judge regarding this conception of well-being. He [sic.] knew what it took to make the patient better.” While confidentiality was a Hippocratic value and seeking consent was part of medical practice, neither of these were out of respect for patient autonomy. Confidentiality was a matter of protecting trade secrets of the esoteric profession and maintaining control over new initiates as much as it was concerned with patients’ welfare (Thompson, 1979). Similarly, seeking consent entailed providing patients with information on the nature of the proposed procedure and the option for the patient to refuse it (Silverman 1989). The 1957 court case, Salgo v. Leland Stanford Jr. University Board of Trustees, invented the term “informed consent” and determined the practical requirements for physicians to fulfill this legally established duty to patients. This duty included the requirement to provide patients with all relevant information about available treatment alternatives so that patients, rather than their physicians, could decide how to balance various risks and benefits in making their decision.

The increase in priority of patient autonomy in the United States continued throughout the 1960s and 1970s through court cases and society viewing patient rights as an extension of consumer rights (Scher and Kozlowska 2018). In Europe, the inclusion of respect for patient autonomy developed within its own contexts, though it was also influenced by American bioethics (Baker 2013, 278). Yet, in each environment, the idea that the medical profession should respect patient autonomy and engage in shared decision-making whereby the goals and values of the patient are taken into consideration was an adoption by the medical profession of ideas originally foreign to it. As Tom L. Beauchamp (1990, 145) writes,

This challenge has jolted medicine from its traditional preoccupation with a beneficence-based model of medical ethics in the direction of an autonomy model. Rather than perceiving the physician-patient relationship in terms of the patient’s submission to the physician’s professional forms of care, the autonomy model views the relationship within a wider social framework, emphasizing that patients have decision making rights and should be enabled to define the boundaries of the patient-physician relationship to fit their own ends.

What is now a core principle of medical ethics was a product of the medical profession not being able to take a strong stance against societal influence in determining what is acceptable medical practice. The concerns for which society fought through various legal cases and social movements in the 1960s and 1970s changed the standard of ethical practice when they were applied to health care. As such, the statement “The Holocaust, and the example of medical participation in unethical euthanasia in particular, serves as a clear example of what can happen when the medical profession does not take a strong stance against societal influence in determining what is acceptable medical practice,” is a red herring since societal demands to change the status quo of medical practice does not always lead to the Holocaust.

Appeals to fear can come in an alternative form, which makes the juxtaposition between today and a scary tomorrow a little more distant. The slippery slope argument is not as strong as the traditional appeal to fear, but it implies the same conclusion. The argument goes something like the following: “If we allow for medical aid in dying today, we will eventually allow for passive and then active euthanasia of both competent and incompetent individuals. Eventually, we will permit the reinstatement of the Aktion T4 program, which called for the killing of those deemed mentally unfit or people who could not contribute to society in a meaningful way.” Euthanasia has become legal in many countries across the world, and, for just one example, the Canadian government has recently expanded access to medical aid in dying to include people with disabilities based on the ruling in Truchon v. Attorney General of Canada ((AG), 2019 QCCS 3792). This would lend credence to the idea that allowing for limited legislation would inevitably lead to its expansion past the originally intended scope. However, the slippery slope argument that puts contemporary euthanasia on a slope leading to the Nazi Aktion T4 program and the Final Solution misses the essential element that pushed Nazi genocide forward, which is not present in today’s public debate over euthanasia. Hitler’s plan was always based in the eventual eradication of undesirables for the sake of Aryan purity and the future of the German Volk. In Mein Kampf, he writes how Germany “must take care that only the healthy beget children; that there shall be but one thing shameful: to be sick and ailing, and nevertheless to bring children into the world” (https://archive.org/stream/mk1merged/MK1-merged_djvu.txt). As Robertson et al. (2019, 175) explain, “The perpetrators of Krankenmorde [the murder of the sick] sought to legitimate and later defend their crimes by defining their actions in terms of ‘mercy death’, ‘medical futility’ and ‘relief of suffering’. While these arguments remain the basis of the present-day case for legislating assisted dying, in the setting of the Krankenmorde they were a significant component of deceit utilized in a state-controlled program of mass murder of parts of its own population.” Hitler’s plan, therefore, was not a slippery slope but rather a multi-staged process. The Third Reich did not simply fall down the moral hill into committing genocide.

This does not mean that, if one does condone current medical aid in dying legislation, one need not worry about its potential vulnerability to immoral extension. In countries where euthanasia is legally performed on infants and children, as well as those who are deemed incompetent and do not have advanced directives requesting such aid, the moral and legal basis of patient autonomy is either indirect or stretched too thin to be cogent. Moreover, responses to the COVID-19 pandemic, in terms of public health measures and resource allocation protocols, have revealed social bias against people with disabilities as well as structural ableism (Caleb and Gallin 2021, 7). Yet, the potential—and actual—discrimination and harm to vulnerable populations that may lead to an immoral expansion of medical aid in dying result from different social motivations than what occurred in Nazi Germany. They do not stem from government sponsored promotion and marketing like what occurred through the Nazi Propaganda Ministry. To quote Robertson et al. (2019, 176), “[T]o simply accept that the murder of patients in the gas chambers and starvation houses of the Krankenmorde is in some way morally equivalent to decisions about end of life treatment by a patient suffering intractable cancer pain is as ignorant and culpable as accepting the ‘mercy death’ euphemism proffered by the Nazi regime.” As such, the inevitability of any state establishing a euthanasia program like that of Aktion T4 is not only farfetched; the idea that medical aid in dying is a subversive steppingstone to Nazi genocide is an appeal to fear rather than logic.

Unlike appeals to fear, guilt by association does not draw any conclusions. It simply dismisses an idea by attributing the same idea to someone abhorrent. The typical Godwin’s Law dismissal is as follows: “Do you know who else used euphemisms like ‘a good death’ when they were promoting a program of State-sponsored medicalized mass murder? The Nazis…” However, the fallacy of this argument reveals itself as soon as one recognizes the difference between the ways in which the Nazi party communicated its idea of why euthanasia constitutes a good death and why advocates of death with dignity communicate that medical aid in dying allows for a good death. Today, medical aid in dying is grounded in the principle of patient autonomy. Advocates of medical aid in dying legislation seek legal recourse for individuals to determine when and how terminally ill patients will die. A good death for those terminally ill patients is defined by the values and choices of the patient. While in certain countries, applicability of medical aid in dying has expanded to include people who are not terminally ill, the inclusion has still been in the name of respecting patient autonomy. In the Third Reich, euthanasia was a euphemism for state-sponsored ethnic cleansing and racial purification through the elimination of the “unfit” (Grodin et al. 2018, 54). For the Nazi party, the good in such a death was for the sake of the Volk. For advocates of death with dignity, the good of medical aid in dying is for the sake of the patient.

One of the most significant moral foundations for the Nazi euthanasia program was the 1920 book, Die Freigabe der Vernichtung lebensunwerten Lebens: Ihr Mass und ihre Form (Allowing the Destruction of Life Unworthy of Life: Its Measure and Form), co-authored by psychiatrist Alfred Hoche and attorney Karl Binding. This book sought to justify on both legal and medical ethical grounds euthanizing handicapped and impaired people. Because he was a leader in the medical field, and because the German medical profession could no longer stand against the political and social ethos of the time, Hoche’s reflections on euthanasia made it possible for German physicians to extend their understanding of their role to ease so that it could rationalize Nazi proposals for racial hygiene and mass murder. This became a starting point for German medical-political views on the acceptability of physician’s participating in Nazi euthanasia programs.

Hoche wrote that though the standing duty of a physician is to heal the sick, to eliminate or alleviate pain, to retain and, as much as possible, prolong life, “the doctor has no absolute, but rather only a relative connection with the fundamentally recognized task of preserving other people’s lives under all circumstances; a connection, which changes under new circumstances and needs to be newly reevaluated (Binding and Hoche 2012)”. The implication of this statement is not that physicians must at times recognize the futility of ineffective care or the rights of patients to refuse treatment. Rather, the implication is that it is cruel both to the individual patient and to the general population to preserve the lives of handicapped individuals who are unproductive to the state. He writes regarding those with a certain level of mental handicap, “If we consider a median lifespan of 50 years for the single case, then it is easy to comprehend what an enormous capital—in terms of nourishing means, clothing and heating—is diverted from the national assets toward an unproductive purpose (Binding and Hoche 2012)”.

Advocates of death with dignity legislation do not speak of the benefits to the general population as a reason for permitting medical aid in dying. Nor do they describe those who utilize medical aid in dying as unproductive or diverting society’s assets. Rather, they seek legislation as a means for people to exercise a right to determine their own life—and its conclusion—rather than be subject to the whims of illness or medical technology. Unlike the Nazi promotion of a good death, which is imposed upon others, the good death sought by those who favor medical aid in dying is one that is imbued with personal autonomy.

The disanalogy between Nazi euthanasia programs and medical aid in dying can be seen in a statement the judges in the Doctors’ Trial made in their verdict. They wrote, “Whether or not a state may validly enact legislation which imposes euthanasia upon certain classes of its citizens is a question which does not enter into the issues. Assuming that it may do so, the Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenseless and powerless human beings of other nations” (Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10). The point of this statement is not to justify euthanasia morally or legally. It is to recognize that deliberation on the moral and legal soundness of euthanasia—and medical aid in dying—must take the issue on its own accord. Its morality and legality should not be determined through simple analogy or juxtaposition to the Holocaust and Nazi genocide.

Because the comparisons to the Holocaust are often absurd or logically fallacious, Godwin’s law is typically accompanied by the following corollary: When a Hitler comparison is made, conversation ends and the one who draws the comparison loses the debate (The Daily Telegraph 2009). What is most dangerous about these absurd and fallacious arguments is that once they are recognized for what they are, they have also stopped any fruitful or thoughtful discussion on the ethical validity of the topic previously under examination. We should not set the bar of moral permissibility just above “not equivalent to the Holocaust.” Medical aid in dying is not the same as Nazi euthanasia, but that does not mean that it is a morally permissible position for society or the medical profession to uphold. The arguments that support the moral permissibility of medical aid in dying need to stand on their own accord and not in contradistinction to the Holocaust.

Yet, it is not the case that the Holocaust should never be a point of reference. As Godwin himself points out, his namesake law “is about remembering history well enough to draw parallels—sometimes with Hitler or with Nazis, sure—that are deeply considered. That matter. Sometimes those comparisons are going to be appropriate, and on those occasions GL [Godwin’s Law] should function less as a conversation ender and more as a conversation starter (LA Times 2018)”.

11.3 Godwin’s Law, Ethics, and Historical Reflection

Bioethicists, like those in many other normative fields, have difficulty resting their arguments on the fact that something has previously occurred. The logical fallacies brought above reveal a greater difficulty for scholars of bioethics and the Holocaust, namely that study of history and of morality have very different foci. History is a descriptive field, while ethics is prescriptive, and philosophers are keen to point out the naturalistic fallacy, i.e. that one cannot learn an “ought” from an “is”. However, Godwin is correct that the Holocaust and the political and medico-scientific discourse that preceded it should be a conversation starter. As Holland M. Kaplan correctly writes, “[T]he Nazi analogy does not aptly apply to PAD [physician aid in dying] in the United States today. But it does draw upon historically situated sources of fear that should inform how PAD legalization and implementation efforts account for health equity and social determinants of patients’ vulnerabilities to discrimination (Kaplan 2021)”. In other words, there is something to learn from the ways in which Nazi totalitarianism subsumed German society and in how the medical profession became “Nazified more thoroughly and much sooner than any other profession, and as Nazis they did more in service of the nefarious regime than any of their extraprofessional peers (Kater 2000)”. The key is not to allow for study of the past to lead to bad arguments regarding decisions about the present and future. Essential to the study of the Holocaust for the sake of bioethical deliberation is to learn how and why certain arguments were persuasive then, even when they were bad arguments to begin with. When viewed in this manner, we follow what “Thucydides appears to assert when he says history is philosophy learned from examples” (Dionysius of Heraclea, Ars Rhetorica).

When drawing comparisons between the present and the past, scholars must be careful to recognize the differences between conceiving of the past through the lenses of history and through that of tradition. The former in essence tells a story of the past. The latter introduces the past as a prelude to the present. This distinction is especially important when looking to the Holocaust as a conversation starter on topics that speak to one’s current goals and markers of identity.

The historian, regardless of which historiography she uses, tries to take herself outside of the lived experience to explain a sequence of events as an observer of a chain of causation. The historian looks backward to explain how something occurred. If the historian ventures into questions of why something occurred, she acts more as a philosopher than a historian, since she begins to look for purpose rather than process. Despite the absence of telos, however, the historian nevertheless feigns a deterministic philosophy, as the historian provides the explanation for what has occurred. She tells of the cause for the effect under study.

Determinism’s grip in the historian’s explanation of the past, however, does not have the same grip on the present or the future. Knowledge of the past allows one to avoid its repetition—as long as the explanation is correct and exclusionary. The normative implication for having the Holocaust be a conversation starter of contemporary topics in bioethics through a historian’s lens is that society must avoid going down the same road for a second time. Not wanting to become Nazis or bring about another Holocaust, the historian warns that current laws or medical positions are too similar to those of pre-Holocaust Germany, such that they set society on course to repeat itself. When using the history of the Holocaust to tell a story that warns us that we are setting out on a road that we should avoid at all costs, risk of Godwin’s law and its corollary arises. Rather than consider how our contemporary lived experience is different than pre-Weimar Germany, such warnings from history may unduly highlight the similarities—or false similarities—between today and the Holocaust so as to argue that we must change course.

The lens of tradition is not simply a premodern or a religious viewing of how the past has inroads into the present. Many medical and other professions conceive of their identities as emerging through the collective experience of generations who have shared the same professional goals and values. Similarly, patients’ goals, their reservations about their care, and their apprehensions over giving too much power to medical professionals, stem from their experiences—both direct and vicarious through their parents and grandparents—and the history of the Holocaust and other violations of ethics and human rights. Both sides of the patient-physician relationship view their current roles and future possibilities through the lens of the past, even when looking to the future. This is especially the case with vulnerable or marginalized and minoritized populations. Moreover, social and political discourse continues to speak in terms of an arc of history and political trajectories. There are seldom successful hard stops and pivots in social life. We are products of our past as much as shapers of our future.

When the past is viewed through the frame of tradition, it serves to provide comprehensibility to the practices of contemporary citizens and professional practitioners. It explains why people engage in the practices they do and hold the beliefs that they have come to possess. Within the frame of tradition, the past neither determines the present, even if it influences it, nor is one entirely free from it, even if certain practices and beliefs fall out of favor and others are adopted. The thread that holds the past to the present is the overarching commonality either of purpose or of inertia.

Understanding what has occurred in the past will inform decisions that contemporary citizens and professionals make, but not in the same way as for the historian. For the historian, history repeats itself by virtue of the laws of cause and effect. For the reflective citizen and for the informed professional, the lessons of the past can allow one to share the goals and values that one continues to share with previous generations yet avoid the pitfalls that caused previous generations to stumble. The past provides practical experience on a grand scale. Just as a person learns how she should behave by reflecting on her experiences, so can a people reflect on how best to move forward by considering how previous generations have conducted themselves.

The lessons of the Holocaust can supplement bioethical discourse on controversial topics, not only by serving to call out when ideas or policies are too close to Nazi ideas, but also by providing practical cases for how ideas become normalized and implemented. Study of the Holocaust and its aftermath provides examples for how individuals and society at large can become persuaded by unethical framing of arguments and how to prevent such lapses in judgment in the future. These lessons need not solely be learned because they are extreme, nor do they apply only in extreme circumstances. Conversation over how medical professionals and others were subsumed within the Nazi medico-political machine can lead to discussion on everyday practices and instances of preserving the dignity of human beings.

Society and the health professions cannot place upon individuals the onus of making value-laden medico-political decisions without providing them with the necessary tools and opportunities to learn how to weigh the different priorities and arguments that underlie these decisions. Learning about the history of the medical profession’s views on euthanasia and how Nazi propaganda subverted medical authority is one way to achieve this goal. A historical account that includes Binding’s and Hoche’s work, for example, would allow medical professionals not only to understand the values at stake when deliberating on the different positions regarding medical aid in dying as they apply to the practice of medicine and the goals or ends of the medical profession. It would also provide real examples for how different positions of leading professionals on the topic can influence social and medical practice. Strengthening public discourse and the ethics of the medical profession depends on our ability to understand the past and integrate those lessons into current practice and policy debates.