by Carlton Herzog
The ability to defy aging and death has become a reality in our time. Now we no longer fear a hideous decay and decrepitude. Nor do we picture a pointless afterlife of singing Hosannas to a god of dubious virtue.
But even as the universe giveth, it taketh away. Where it extends the lives of the aged, it must surely deprive the unborn generations of theirs. The question then becomes how long should the young let the aged live before forcing them to their graves?
In Nekros v. U.S. the high court was asked to address that very question through the prism of the First Amendment. That Amendment both prohibits Congress from promoting one religion over another (Establishment Clause) and restricting an individual’s religious practices (Free Expression Clause).
BACKGROUND
On March 25, 2035, Google perfected Project Calico, which had a mandate to kill death and stop aging. It did so with pico-electric nanites injected into the subject’s blood stream. The nanites cured illness, stopped aging, and extended life indefinitely for anyone so treated. Death by natural causes ceased to exist for those who could afford it.
To ease the financial burden on nanite candidates, western governments stepped in with subsidies. That was a necessary step since the initial injection and annual follow-ups were beyond the means of most people.
Unfortunately, life extension did more harm than good. First, the number of global births began to exceed the number of deaths. With more mouths than food to go around, global food shortages became the norm. Second, the elderly clung to their jobs leaving younger people unemployed, and therefore, an added societal burden. Third, the cost of government subsidized life extension crushed economic growth in the developed nations. Fourth, the collection of retirement benefits far beyond what was once a normal lifespan wreaked havoc on corporations. Finally, there was an uptick in crime and other deviant behavior associated with the amortal demographic. Psychologists attributed it to an overweening sense of invincibility coupled with an inexplicable decline in impulse control.
Social philosophers and economists wrestled with the question of how long is long enough? Politicians asked the same question. On May 25, 2050, both Houses of Congress passed the Mandatory Euthanasia Act which capped life spans at 150 years old. Regardless of a person’s overall physical and mental health, once a person had passed the chronological red line, they were ordered to report via the Selective Euthanasia Service to a Federal Termination Unit for painless and otherwise humane liquidation.
Many pundits believed that the impact of ageless living on the world’s religions, particularly those with pie-in the sky visions of an afterlife, would be terminal. To the contrary, religions of all dominations experienced explosive growth directly correlated with the enactment of the MEA.
The reason for such a radical sea change lay in the Constitution. Many religionists believed that the First Amendment protected their right to practice their religion in perpetuity on earth. The lower courts disagreed on the ground that the religious doctrines in question did not mandate earthly life in perpetuity. Instead, it stressed that all the doctrines in question characterized earthly life of secondary importance relative to the greater heavenly reality to follow.
To circumvent that obstacle, K.C. Braddock formed the Church of the Everlasting Earthly Flame. Its central tenet was that God promised eternal earthly life to any and all who sought it.
Harlan Nekros, age 149, joined the congregation that year fully expecting to receive First Amendment Protection of his religious freedom to remain alive indefinitely.
On his 150th birthday, Nekros received his order to report within one year to a termination facility in fulfillment of his societal obligation. He subsequently obtained a temporary restraining order in Federal District Court to stay the process pending a hearing.
At the hearing, Pepper’s lawyers argued that Nekros’s rights would be violated by the Court’s enforcement of the MEA. As a congregant of Everlasting Flame, Nekros was entitled to preserve his life by whatever means were available. To order his termination, the State would be committing a crime against his person and his constitutionally protected right to free exercise of religion.
Nekros’ lawyers stressed that “the State’s law is just another example of a callous and godless government running roughshod over human life and the religious rights of believers. Drunk with power, the State argues unconvincingly that forced suicide is a curative to modern medical paternalism.”
For its part, the United States Attorney argued that, “the net effect of Project Calico’s so-called success is that federal, state and local governments have been handed the crushing economic burden of medical treatments and retirement benefits extended into perpetuity for a growing population of geriatrics. Climate change, and the concomitant scarcity of food and water, have made those burdens exponentially greater.”
“Such extreme hardships call for extreme measures if our republic is to hold together. As in war, some members of society must be sacrificed so that the greater whole may survive. It is disingenuous for opposing counsel to argue that the State lacks an adequate moral foundation for the law and is simply acting in arbitrary and capricious manner in derogation of the petitioner’s liberty and religious interests.”
The Federal Court for the Southern District of New York ruled that MEA violated the petitioner’s free exercise of religion. It ordered the suppression of the State’s termination order pending an appeal.
NEKROS v. U.S.
The United States Supreme Court granted a writ of certiorari to determine the constitutionality of the Federal Life-Time Limits set forth in the MEA statute. The major points of that opinion follow:
FREEDOM OF EXPRESSION
Nekros’ strongest line of attack lies in the First Amendment’s protection of religious freedom. We reject that argument. The State does not deny appellant’s right to believe whatever doctrine he chooses. Indeed, the State’s motivation in enforcing the MEA is a secular one and does not make any religious practice unlawful. The State is not acting as the thought police, nor the guardian of any one religion. The appellant remains the master of his own mind and soul and is therefore free to pursue whatever religious truth he sees fit to follow.
ESTABLISHMENT CLAUSE
If we were to grant exemptions to Eternal Flame congregants, we would be violating the Establishment Clause by giving preferences to those who believe they are entitled to an eternal earthly life at the expense of other religions that do not so believe.
DUE PROCESS
The due process clauses of the constitution act against the arbitrary denial of life, liberty or property outside the sanction of law. There is nothing arbitrary or unsanctioned about the MEA. It is based on the need to reduce domestic population in order to conserve financial and material resources in both the private and public sector. It was enacted with the unanimous consent of both Houses of Congress and ratified by the President. We find therefore that the MEA does not offend the due process clauses.
EQUAL PROTECTION
Nekros argued that irrespective of any due process considerations, the MEA violates the Equal Protection Clause which holds that ‘No state shall deny to any person within its jurisdiction the equal protection of the laws.’ Nekros asserts that persons over the age of 150 years old are being singled out for disfavored treatment relative to the rest of the public. We find this challenge to be without merit. At first blush, senicide, or selective eradication based on age, would seem to offend the right to equal protection under the law. But since all citizens fall within the sweep of the statute, we can find no basis for a claim of differential treatment under the law.
RIGHT OF PRIVACY
Nekros also argues that penumbra of the constitution creates a fundamental right to privacy, and by implication a right of self-determination. To support that argument, Nekros has provided a laundry list of case law bearing on a woman’s right to abortion, assisted suicide for the terminally ill patients, and fulfillment of DNR orders in living wills. Nekros would have us extend that right of self-determination so that he may lead an ageless existence in perpetuity irrespective of the law of the land. We find such case law distinguishable from the one at hand because there was no countervailing state interest in regulating population control. In these difficult times, we must all make hard choices. As the District court noted, the needs of the many outweigh the needs of the one or the few.
DOCTOR FRANKENSTEIN’S MONSTERS
We take judicial notice of the State’s statistical data regarding the well-documented criminality and malicious deviance of the ageless. To date, there have been more deaths from their wanton and reckless geriatric behavior than from all other domestic causes combined.
That precipitous decline in personal and societal risk assessment, as reflected in those jarring statistics, stems from an unforeseen limitation of nanation. Although the nanation process may preserve cognitive and bodily function, it cannot preserve emotional intelligence. To the contrary, the effect of an extremely long and healthy life imbues the individual with a sense of invincibility, while simultaneously degrading impulse control. The medical community describes this effect as Toxic Centenarian Deviancy Syndrome. To date, there is neither a treatment nor a cure.
We hold therefore that Nekros’ constitutional challenges are without merit. We order that Nekros be remanded back to federal custody for termination within the next six months, pursuant to the original liquidation order.
JUSTICE WILBUR BAKER, DISSENTING
I am disgusted by the social arithmetic used by the majority. I do not believe that such an algorithm is good for society. Indeed, the notion that the State has the unfettered right to murder its citizens for no other reason than they have escaped death by old age is palpably absurd. Indeed, it reeks of both Hitler’s death camps where Jews were exterminated because they were characterized as morally flawed and Stalin’s pogroms against his own troops because they had been contaminated by exposure to western values at the front.
Not surprisingly, Hitler’s views on genocide — for what is the systematic extermination of an outcast group if not that — took their inspiration from our sterilization laws so popular in the 1920’s. Those laws aimed to eradicate the unfit and the degenerate: criminals, prostitutes, alcoholics, epileptics and the mentally ill.
I find it disingenuous for the majority to assert that a person is free to believe whatever they like up until the moment the state lops off his or her head. It reminds one of the turkey’s fate on Thanksgiving Day following a few years of placid existence on the farm.
What the state, with the imprimatur of the courts has done, is criminalize long life but without the procedural and substantive protections afforded any accused criminal. It follows in the vein of other authoritarian regimes that have criminalized such things as reading, writing, and transporting books as well as composing and playing music. I must ask what comes next.
Given the State’s willingness to commit legally sanctioned murder, and its propensity to expand its reach, I should not be surprised if it concocts another law that violates both the spirit and letter of our sacred constitution. Thus, do we slouch toward tyranny and the genocides necessary to sustain it with a wink and a nod to the Founding Fathers.
I therefore respectfully dissent from the majority opinion.
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Bio:
Carlton Herzog served as a flight dispatcher in the USAF. He later graduated magna cum laude from Rutgers University. He also graduated from Rutgers Law School, where he served as the Rutgers Law Review Articles Editor. He currently works for the federal government.
