Danny M. Clark, M.D., President
Kentucky Board of Medical Licensure
310 Whittington Parkway November 3, 2004
Louisville, KY 40222
Dear Dr. Clark,
The undersigned hereby submit to the Kentucky Board of Medical Licensure
a request for a ruling on the following question of ethics.
Is it unethical for Ernie Fletcher, M.D. the elected Governor of Kentucky to
sign a death warrant as Governor that will cause the execution and death of
Thomas Bowling, convicted of a capital crime?
We submit this request under the general authority of the board, including
KRS 311.565(h). In the event Emie Fletcher, M.D. does sign a death warrant we
ask that this be considered a grievance under the board’s procedures.
We respectfully submit with this request a statement of facts and a
discussion of the issues, on behalf of the undersigned.
Y ours truly
Rev. Kathy Costanzo Stuart Urbach, M.D.
Chaplain, University of Louisville School Associate Professor, University of
Of Medicine Louisville
Carl Wedekind, J.D. Steven Lippmann, M.D.
Louisville University of Louisville School of Medicine
STATEMENT OF FACTS
1. Emest Fletcher, M.D. is a duly licensed physician in Kentucky on active
status under the authority of the Kentucky Board of Medical Licensure.
2. Dr. Fletcher is bound by the tenets of the Hippocratic Oath and the Code
of Ethics adopted by the American Medical Association and by the Kentucky
Board of Medical Licensure.
3. Dr. Fletcher is bound by his oath of office as Governor to follow the law:
“T will support the constitution of the United States and the
constitution of this Commonwealth, and be faithful and true to the Commonwealth
of Kentucky so long as I continue a citizen thereof, and that I will faithfully
execute, to the best of my ability, the office of Governor, according to law...”
4. Dr. Fletcher, as Governor, is empowered by Section 77 of the Kentucky
Constitution:
“He shall have power to remit fines and forfeitures, commute
sentences, grant reprieves and pardons, except in cases of impeachment, and he
shall file with each application therefore a statement of the reasons for his decision
thereon, which application and statement shall always be open to public
inspection.”
5. Kentucky Revised Statutes, Section 431.220 Execution of Death
Sentence, Subsection (3) provides:
“No physician shall be involved in the conduct of an execution except
to certify cause of death provided that the condemned is declared dead by another
person.”
6. Dr. Fletcher, as Governor, has received a letter dated October 12, 2004
from the Attorney General of Kentucky advising that the appeals of inmate
Thomas Bowling, convicted of a capital crime and sentenced to be executed, have
been completed and requesting that an “execution date be set immediately.” If
Thomas Bowling is now to be executed, a death warrant must be signed by the
Governor, “under his hand”, directing the Warden at the Kentucky State
Penitentiary at Eddyville to carry out the execution by lethal injection on a date set
by the Governor.
DISCUSSION
The basic question is whether or not a physician who voluntarily takes on an
additional role in life, that of an elected Governor, is thereby shed of the
responsibilities and ethical duties he has assumed in his role as physician. Do
medical ethics apply only to the doctor-patient relationship? Can Dr. Fletcher
while maintaining his medical license simply say, “Thomas Bowling is not my
patient,” and ethically sign his death warrant?
The ancient Hippocratic Oath includes, “I will give no deadly medicine to
anyone if asked nor suggest any such counsel.”
The AMA Code of Ethics, E-2.06, provides:
“An individual’ s opinion on capital punishment is the personal moral
decision of the individual. A physician, as a member of a profession dedicated to
preserving life when there is hope of doing so, should not be a participant in a
legally authorized execution. Physician participation in execution is defined
generally as actions which would fall into one or more of the following categories:
(1) an action which would directly cause the death of the condemned; (2) an action
which would assist, supervise, or contribute to the ability of another individual to
directly cause the death of the condemned; (3) an action which could automatically
cause an execution to be carried out on a condemned prisoner.”
Section E-2.20 provides:
“The social commitment of the physician is to sustain life and relieve
suffering.”
Section E-1.01 provides:
“The term ‘ethical’ is used in the opinions of Ethical and Judicial A ffairs to
refer to matters involving (1) moral principles or practices and (2) matters of social
policy involving issues of morality in the practice of medicine. The term
‘unethical’ is used to refer to professional conduct which fails to conform to these
moral standards or policies.”
The World Medical Association, the American College of Physicians, the
American Public Health Association and the National Commission on Correctional
Health Care all have deemed it unethical for physicians to participate in
executions.
The Kentucky Board of Medical Licensure Information on Filing a
Grievance provides:
“Acting through the Kentucky Board of Medical Licensure physicians have
adopted high standards of ethics and professional competence. A license to
practice medicine in Kentucky obligates a physician to uphold the laws and to
abide by the Medical Practice Act set forth by the Kentucky General assembly.
Those who violate these professional obligations are subject to discipline.”
The question may be compounded by the fact that in his campaign for
Governor and while serving as Goveror, Dr. Fletcher has naturally enough
expressed pride in being a physician, and has on occasions rendered medical
treatment to those in need.
The law gives the Governor/Doctor authority to sign the death warrant, but
neither the law nor the Governor’s oath of office require him to do so. He also has
the authority not to sign a death warrant. He has the authority to commute the
death sentence to life without possibility of parole, or to life without possibility of
parole for a term of years. The Constitution and the law recognize the Governor
both as an official and as a human being with moral judgment, and give him the
flexibility and the right not to execute.
In this instance the human being is Dr. Ernie Fletcher. Is it a violation of
medical ethics for him to sign a death warrant for Thomas Bowling?
