Bioethics Forum Essay

Civil Death: Unethical in 1933 and Today

Drawing parallels to Nazi strategies in their rise to autocratic power always presents the risk of hyperbole and misunderstanding, as well as the real likelihood of shutting down conversation. The problem is that we know that Hitler’s autocratic path, which began with a democratic election, led to the Holocaust. But even knowing that important outcome, we must not avoid learning from history and we must do so with care and nuance.

In this essay, I examine the behavior and ethical failures of professionals—operating in an autocracy in 1933 and operating in the United States today—with a narrow example of  their use of the concept of “civil death “ as a means of addressing society’s “undesirables.” The rhyme of history is disturbing, especially when played out by the professionals whom we rely on for ethical leadership, not for unethical manipulation of the law.

The transformation of Germany under National Socialism is instructive to us today because the structures of the professions in pre-1933 Germany look familiar to us. And the policies of National Socialism were largely designed, enabled, and executed by professionals whose practices and motivations also look familiar today. We can learn from the actions and motivations of those professionals. Bioethics, as a field that arose in response to the atrocities of the Nazis, should also pay attention to the actions and motivations of the individual professionals.

Professionals are problem solvers. Lawyers seek to craft the arguments most likely to succeed for their clients. Medical researchers seek the most effective means of testing new therapeutics. Business executives seek to maximize revenues. Technologists seek to optimize their algorithms. However, a fundamental component of professional ethics is to reject moral neutrality, to avoid the temptation to solve problems without considering the ethical implications or the risk of unintended consequences. Clever solutions are not necessarily ethical, no matter how effective they may be. In fact, unchecked cleverness can lead to unethical outcomes.

Here are the facts: In 1933, a well-known German Jewish screenwriter entered into a contract with a German film production company to write a screenplay and direct a movie. He performed all that was required, but the company refused to pay him. The screenwriter sued. 

The judge ruled against the screenwriter, citing a termination clause in the contract that would be triggered if the screenwriter died. So, the judge ruled that the screenwriter was dead. But he was not dead! The judge said that he was dead as a matter of contract law—so the contract was terminated, and the screenwriter was entitled to nothing.  In other words, the judge used a cynical legal-sounding construct that was, of course, not contemplated or suggested by the contract to justify the result that he wanted.

In April, the Trump administration extended its attacks on immigrants by declaring about 6,500 of them dead. But, wait, they are not dead. Sound familiar?

The Social Security system has a death master file. It is used for people who have died and should therefore no longer receive Social Security benefits. That, of course, makes sense. But the Trump administration has begun moving a particular group of immigrants–who are in the U.S. under a special program that permits them two years in the country to establish their rights to stay—into the death master file. With this designation, these affirmatively not-dead people lose access to what makes day-to-day life in America possible, including legal identity and financial and other services that come with a Social Security number. The goal: These immigrants will “self-deport” (a term used by the administration) due to the practical inability to live a normal life in the U.S.

To be clear, I am not discussing immigration policy here. Instead, I am rejecting the use of unethical tactics to further, or to rationalize or even legalize, whatever policies are established. I am rejecting policies that can stand only on an unethical legal foundation. The tactic of civil death has familiar echoes from National Socialism. This clever doublespeak in the guise of legal analysis by our lawyers and professional civil servants has implications not just for our system of justice, but also for the fundamental availability of health care. 

We study the professionals who were instrumental in promoting National Socialism because their quotidian motivations–they had choices and they were often not driven by mere ideology–can serve as a warning to us today to beware of unexamined motivations, to ignore unanticipated consequences at our ethical peril.

The use of death is particularly cynical—depending on a too-clever manipulation of words, depending on a legal intrusion into what is ultimately a physical, a medical, construct. While I can imagine the judge in 1933 and the lawyers in 2025 preening before their metaphorical mirrors at their brilliant “problem-solving” for the benefit of their clients, i.e., government leaders, their behavior is simply contrary to any semblance of professional ethics, including respect for the rule of law.

The rule of law is not  a set of written codes or statutes; it is a concept that encompasses a structure of interwoven principles, virtues, norms, and precedents that must include basic tenets of truth, predictability, and reliability. The continuity of the rule of law depends in no small part on the ethical leadership of our professionals—including clergy, doctors, lawyers, business executives, civil servants, educators, and journalists—whose roles, expertise, and authority clothe them with the influence and responsibility to lead.

With the declaration of legal (not physical) death of immigrants in the U.S., the attack on the rule of law intersects with important bioethical concerns. Apart from the use of what is a matter for medicine to adjudicate—death–there are direct health-related implications: Being moved to the death master file prevents these not-dead immigrants from accessing the American health care system.

So, what now? We must have ethical leadership from those who are responsible for the operation of the American legal system, our lawyers. Lawyers who work in the Trump administration must recognize their duties as ethical professionals; their responsibility is to ethical lawyering, not to morally neutral problem-solving. And the entire legal profession should speak out against these ethical failures and not just become mired in (or enthralled by) some legal sophistry of imaginary death. 

Similarly, we must have ethical leadership from those who are responsible for the operation of the American health care system–our doctors and other health care professionals. They must join the discussion and call out what is happening, namely the denial of health care to thousands of human beings who are living lawfully in the U.S. but who happen to be immigrants. Access to health care ought not to be in the hands of professionals who ignore the ethical dimensions of their task.

Yes, history tends to repeat itself—not in simple replication or mirrored images, but in familiarity and haunting déjà vu. Yes, the law often operates through precedent, but not blindly. We expect our professionals to learn from the ethical failures of their predecessors in 1933 Germany.

David Goldman is the Chair of FASPE (The Fellowships at Auschwitz for the Study of Professional Ethics), a program of ethical leadership in the professions that begins by studying the actions and motivations of the professionals who designed, enabled, and executed the policies of Nazi Germany. He practiced law, in “BigLaw” for over 40 years.