George F. Will The Washington Post April 22, 1982, Page A29

Copyright © 1987 The Washington Post Writers Group. Reprinted with permission. Russell James, Permissions Editor.

The baby needed serious but feasible surgery to enable food to reach its stomach. The parents refused the surgery, and presumably refused to yield custody to any of the couples eager to become the baby's guardians. The parents chose to starve their baby to death. Their lawyer concocted an Orwellian euphemism for this refusal of potentially life-saving treatment—"Treatment to do nothing." It is an old story: language must be mutilated when a perfumed rationalization of an act is incompatible with a straightforward description of the act.

Indiana courts, accommodating the law to the Zeitgeist, refused to order surgery, and thus sanctioned the homicide. Common sense and common usage require use of the word "homicide." The law usually encompasses homicides by negligence. The Indiana killing was worse. It was the result of premeditated, aggressive, tenacious action, in the hospital and in courts.

Such homicides can no longer be considered aberrations, or culturally incongruous. They are part of a social program to serve the convenience of adults by authorizing adults to destroy inconvenient young life. The parents' legal arguments, conducted in private, reportedly emphasized— what else?—"freedom of choice." The freedom to choose to kill inconvenient life is being extended, precisely as predicted, beyond fetal life to categories of inconvenient infants, such as Down's syndrome babies. There is no reason—none—to doubt that if the baby had not had Down's syndrome the operation would have been ordered without hesitation, almost certainly, by the parents or, if not by them, by the courts. Therefore the baby was killed because it was retarded. I defy the parents and their medical and legal accomplices to explain why, by the principles affirmed in this case, parents do not have a right to kill by calculated neglect any Down's syndrome child—regardless of any medical need—or any other baby that parents decide would be inconvenient.

Indeed, the parents' lawyer implied as much when, justifying the starvation, he emphasized that even if successful the surgery would not have corrected the retardation. That is, the Down's syndrome was sufficient reason for starving the baby. But the broader message of this case is that being an unwanted baby is a capital offense.

In 1973 the Supreme Court created a virtually unrestrictable right to kill fetuses. Critics of the ruling were alarmed because the court failed to dispatch the burden of saying why the fetus, which unquestionably is alive, is not protectable life. Critics were alarmed also because the court, having incoherently emphasized "viability," offered no intelligible, let alone serious, reason why birth should be the point at which discretionary killing stops. Critics feared what the Indiana homicide demonstrates: the killing will not stop.

The values and passions, as well as the logic of some portions of the "abortion rights" movement, have always pointed beyond abortion, toward something like the Indiana outcome, which affirms a broader right to kill. Some people have used the silly argument that it is impossible to know when life begins. (The serious argument is about when a "person" protectable by law should be said to exist.) So what could be done about the awkward fact that a newborn, even a retarded newborn, is so incontestably alive?

The trick is to argue that the lives of certain kinds of newborns, like the lives of fetuses, are not sufficiently "meaningful"—a word that figured in the 1973 ruling—to merit any protection that inconveniences an adult's freedom of choice.

The Indiana parents consulted with doctors about the "treatment" they chose. But this was not at any point, in any sense, a medical decision. Such homicides in hospitals are common and will become more so now that a state's courts have given them an imprimatur. There should be interesting litigation now that Indiana courts—whether they understand this or not—are going to decide which categories of newborns (besides Down's syndrome children) can be killed by mandatory neglect.

Hours after the baby died, the parents' lawyer was on the "CBS Morning News" praising his clients' "courage." He said, "The easiest thing would have been to defer, let somebody else make that decision." Oh? Someone had to deliberate about whether or not to starve the baby? When did it become natural, even necessary, in Indiana for parents to sit around debating whether to love or starve their newborns?

The lawyer said it was a "no-win situation" because "there would have been horrific trauma— trauma to the child who would never have enjoyed a —a quality of life of—of any sort, trauma to the family, trauma to society." In this "no-win" situation, the parents won: the county was prevented from ordering surgery; prospective adopters were frustrated; the baby is dead. Furthermore, how is society traumatized whenever a Down's syndrome baby is not killed? It was, I believe, George Orwell who warned that insincerity is the enemy of sensible language.

Someone should counsel the counselor to stop babbling about Down's syndrome children not having "any sort" of quality of life. The task of convincing communities to provide services and human sympathy for the retarded is difficult enough without incoherent lawyers laying down the law about whose life does and whose does not have "meaning."

The Washington Post headlined its report: "The Demise of 'Infant Doe'" (the name used in court). "Demise," indeed. That suggests an event unplanned, even perhaps unexplained. ("The Demise of Abraham Lincoln"?) The Post's story began:

"An Indiana couple, backed by the state's highest court and the family doctor, allowed their severely retarded newborn baby to die last Thursday night. . . ."

But "severely retarded" is a misjudgment (also appearing in The New York Times) that is both a cause and an effect of cases like the one in Indiana. There is no way of knowing, and no reason to believe, that the baby would have been "severely retarded." A small fraction of Down's syndrome children are severely retarded. The degree of retardation cannot be known at birth. Furthermore, such children are dramatically responsive to infant stimulation and other early interventions. But, like other children, they need to eat.

When a commentator has a direct personal interest in an issue, it behooves him to say so. Some of my best friends are Down's syndrome citizens. (Citizens is what Down's syndrome children are if they avoid being homicide victims in hospitals.)

Jonathan Will, 10, fourth-grader and Orioles fan (and the best Wiffle-ball hitter in southern Maryland), has Down's syndrome. He does not "suffer from" (as newspapers are wont to say) Down's syndrome. He suffers from nothing, except anxiety about the Orioles' lousy start.

He is doing nicely, thank you. But he is bound to have quite enough problems dealing with society—receiving rights, let alone empathy. He can do without people like Infant Doe's parents, and courts like Indiana's asserting by their actions the principle that people like him are less than fully human. On the evidence, Down's syndrome citizens have little to learn about being human from the people responsible for the death of Infant Doe.