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The Next Step
Assisted Suicide Controversy
May 5, 1995 • Volume 5, Issue 17
Should doctors help the dying to end their lives?
By Richard L. Worsnop
Everyone dreads dying alone, incapacitated and in excruciating pain. But should a person in such circumstances have the right to commit suicide with the help of others? The question has long stirred heated debate among religious leaders, jurists and medical ethicists. Pope John Paul II issued an encyclical letter in March strongly condemning the practice. And the U.S. Supreme Court recently refused to hear two appeals of cases challenging Michigan's law against assisted suicide. Still pending are court challenges to Oregon's law legalizing some forms of assisted suicide, approved last November as a ballot initiative. As the controversy rages, some experts are arguing that interest in assisted suicide would decline if terminally ill persons had more access to hospice care and effective pain management.
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Right-to-die advocate Jack Kevorkian and two terminally ill cancer patients got some bad news from the Supreme Court on April 24. The court refused to hear their challenges to Michigan's ban on assisted suicide. Dr. Kevorkian, who has helped 21 people to end their lives since 1990, and the two cancer patients had sought to overturn a 1994 Michigan Supreme Court ruling that there is no constitutional right to physician-assisted suicide and that those who help can be prosecuted.
In turning aside the appeals, the court opened the way for Michigan to pursue murder charges against Kevorkian. Kevorkian's attorney, Geoffrey Fieger, told reporters May 1 that he will seek a preliminary injunction in federal court in Detroit to block any state murder trials.
The April 24 ruling is unlikely to quiet the national debate on physician-assisted suicide. More than 30 states have made assisted suicide a criminal offense. Proposals to legalize assisted suicide have qualified for the ballot in three states over the past four years - Washington (1991), California (1992) and Oregon (1994). Only the Oregon measure was approved, however, and it is on hold while it is being challenged in U.S. District Court.
The courts, in fact, have generally looked askance at efforts to gain legal recognition of a right to assisted suicide or, alternatively, to overturn state laws forbidding the practice. A notable exception occurred last spring, when a federal district judge in Seattle declared the state's law against physician-assisted suicide to be unconstitutional. But the 9th U.S. Circuit Court of Appeals recently reversed that decision, faulting its reasoning in scathing terms.
Derek Humphry, executive director of the Euthanasia Research & Guidance Organization and co-founder of the Hemlock Society, which promotes voluntary euthanasia for the terminally ill, predicts the issue will be back in the Supreme Court, possibly by the end of this year. “In a big controversy like this, [the court] never takes the first case. It's their job to see if there are conflicting [lower court] decisions, or if there is confusion in the courts, and then take a case and say, 'We will settle this confusion.' ”
The controversy over aid-in-dying, a term favored by proponents, actually involves not a single practice, but at least three: (1) forgoing or ceasing artificial life support in cases of terminal illness; (2) providing a terminally ill person with the means to end his or her life after the person has requested such help; and (3) actively causing a terminally ill person's death, most commonly by injection of lethal drugs or asphyxiation.
No such consensus exists, however, with respect to the two other broad categories of aid-in-dying. Opinion polls indicate that Americans are closely divided over laws allowing terminally ill patients to end their lives with a physician's help. As in surveys on other highly controversial issues, results often are swayed by how the questions are framed. Support tends to rise when euphemisms like “dignified death” are used and to fall when more graphic terms like “lethal injection” are substituted.
The Roman Catholic Church restated its longstanding opposition to aid-in-dying in a papal encyclical letter on human life issues made public March 30. The document reaffirmed traditional Vatican policy on deliberate termination of life, whether by abortion or assisted suicide. Vatican teachings on these issues also find broad support among conservative U.S. Protestants.
Opponents of aid-in-dying often argue that support for the practice is driven primarily by fear of dying alone and in intractable pain. That support would plunge, opponents say, if home-based hospice care of the terminally ill became more widely available and if medical and nursing schools did a better job of instructing their students in effective pain control. Hospice care and improved pain management are touted as being not only humane but also cost-effective, since they reduce the amount of time spent in hospitals.
“I have always argued for more and better hospices, more and better pain management,” Humphry says. “I want as little euthanasia as possible. But . . . there will always be some cases, perhaps 10 percent of [terminal] cases, where the doctor at a certain point just runs out of things to do.”
Karen Orloff Kaplan, executive director of Choice in Dying, a New York-based group concerned with the rights of the dying and the terminally ill, thinks supporters and opponents of assisted suicide both would benefit from “unimpassioned debate” on the issue. “We think that's important because there isn't much consensus at this point,” she says, and it's “very hard to make public policy in the absence of consensus.”
Much more will be heard about aid-in-dying in coming weeks as the Oregon law undergoes further judicial review. At the moment, these are some of the main questions being asked:
Is there a legal right to die?
The question of whether individuals have a legal right to die at a time of their own choosing elicits sharply conflicting responses from attorneys and health-care professionals. One school of thought holds that since no state outlaws suicide, helping someone else die should enjoy the same penalty-free status.
Bruce Fein, a Washington attorney who held federal posts during the Reagan administration, supports this view. “The lodestar of enlightened criminal prohibitions is morality,” he wrote last year, “and to attach moral censure to assisting conduct - that is, suicide - that itself invites no reproach seems utterly obtuse. It is akin to holding an aider or abettor more culpable than the principal.”
Fein cautioned, however, that society does have “a compelling interest in ensuring that suicides, because of their irrevocability, are fully informed and uncoerced.” Consequently, he said persons who assist a suicide “should be prohibited from profiting by the death through inheritance, donated organs, medical research opportunities and otherwise.”
As further safeguards, Fein would ban solicitation of suicide and require that suicide decisions be preserved in writing or on tape. At least two neutral observers should witness such decisions and submit affidavits affirming that the decisions were voluntary, he said. “A reasonable waiting period before assisting in the execution of a suicide - perhaps 30 days - should be mandatory so as to permit the decision to be revoked,” Fein added.
Eugenie Anne Gifford, editor of the UCLA Law Review in 1993, offered an analysis similar to Fein's. “A longstanding taboo about matters of death is beginning to lift,” she wrote, adding: “ 'Death with dignity' has become something much more than a campaign slogan; it is a symbol of a growing desire to control one's own death as one controlled one's life and a demand that the law recognize this right.”
Some proponents of aid-in-dying contend it would be unfair to permit physician-aided suicide, in which the terminally ill patient is given the drugs with which to kill himself, while still prohibiting active euthanasia, in which the physician not only prescribes but also administers the drugs. Such a policy, it's argued, “discriminates against patients with unrelievable suffering who resolve to end their lives but are unable to do so.” Patients in the late stages of amyotrophic lateral sclerosis (Lou Gehrig's disease) are often cited in this connection.
Another rationale for legalizing physician-assisted suicide draws sustenance from a quartet of Supreme Court decisions that seemed to establish a wide-ranging constitutional “right to privacy.” The rulings came in the cases of Griswold v. Connecticut (1965), which struck down Connecticut's law against birth control; Cruzan v. Missouri Department of Health (1990), which affirmed a competent person's right to refuse life-saving hydration or nutrition; and Planned Parenthood v. Casey (1992), which gave states the right to regulate abortion but also reaffirmed the constitutional right to abortion enunciated in Roe v. Wade (1973).
U.S. District Judge Barbara J. Rothstein cited Griswold, Casey and Roe in a May 1994 decision striking down Washington state's ban on physician-aided suicide as unconstitutional. “The suffering of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference, than that of a pregnant woman,” Rothstein reasoned.
The 9th U.S. Circuit Court of Appeals, based in San Francisco, reversed Rothstein's decision on March 9. The right to privacy may encompass freedom from unwanted medical intervention, the federal appeals court ruled, but not “the right to have a second person collaborate in your death.”
The appeals court noted that the American Medical Association's Code of Ethics declares physician-assisted suicide to be “fundamentally incompatible with the physician's role as healer.” The court then added a comment of its own: “The physician's commitment to curing is the medical profession's commitment to medical progress. Medically assisted suicide as an acceptable alternative is a blind alley; Washington has a stake in barring it.”
In contrast, a group of physicians argued last year that legalizing assisted suicide as “a treatment of last resort” would serve society's interests. “Because it exists in a legal limbo, physician-assisted suicide currently occurs in secret, without publicly sanctioned criteria and without any independent scrutiny,” they wrote in The New England Journal of Medicine. As a result, “the legal status quo regarding physician-assisted death does not adequately serve the needs of patients with unrelievable suffering; rather, it compromises the professional integrity of physicians and undermines respect for the law.”
Would legalization of assisted suicide lead to abuses?
Opposition to aid-in-dying often flows from fear that society will lose its footing on an ethical “slippery slope.” As Judge Rothstein observed, persons holding this view worry that “allowing any exception to a total ban will encourage the gradual development of a more permissive attitude toward [assisted] suicide.”
These individuals, Rothstein continued, feel that permissiveness will “erode the societal constraints now hindering people from committing suicide themselves or countenancing the thought as an appropriate course of action for others, and will result in more suicides by those temporarily depressed, distraught or mentally disturbed.”
Yale Kamisar, a University of Michigan law professor, warned of the slippery-slope hazard a quarter-century ago. If voluntary active euthanasia were made legal, he wrote in an essay published in 1969, “Will we not sweep up, in the process, some who are not really tired of life, but think others are tired of them; some who do not really want to die, but who feel they should not live on, because to do so when there looms the legal alternative of euthanasia is to do a selfish or a cowardly act? Will not some feel an obligation to have themselves 'eliminated' in order that funds allocated for their terminal care might be better used by their families or, financial worries aside, in order to relieve their families of the emotional strain involved? ”
Rothstein, in her opinion striking down Washington's law against assisted suicide, expressed confidence in the Legislature's ability to “devise regulations which will define the appropriate boundaries of physician-assisted suicide for terminally ill individuals, and at the same time give due recognition to the important public policy concerns regarding the prevention of suicide.”
She also said the lawmakers “undoubtedly” could draft regulations that would “set up a mechanism for ensuring that people who decide to commit physician-assisted suicide are not acting pursuant to abuse, coercion or undue influence from third parties.”
Others question the effectiveness of statutory safeguards, regardless of how strict they may seem. In a report issued last May, the New York State Task Force on Life and the Law unanimously recommended against amending state law to permit assisted suicide. The commission concluded that legalization would “pose the greatest risks to those who are poor, elderly, members of a minority group or without access to good medical care.”
Murray takes the position that legalizing active euthanasia would be the riskiest course of all. In the Netherlands, he notes, euthanasia is technically illegal but widely tolerated in practice. Dutch policy states that euthanasia should be available only to people who are competent and conscious, not depressed and able to make life- termination decisions on their own. “But one can also envision active euthanasia done for people who are in no position to make those decisions themselves,” Murray says. “I'm talking about the people the Nazis called 'useless eaters.' It is not totally crazy to be worried about that.”
In contrast, some experts contend that laws prohibiting assisted suicide can lead to abuses. Lonny Shavelson, a photojournalist and emergency-room physician in Berkeley, Calif., writes in a forthcoming book that “Some significant number of assisted suicides done in hiding must fall outside of the ethical boundaries of even the most ardent supporters of euthanasia.” However, “scrutiny of abuses is unheard of,” Shavelson writes. “The very illegality of the act now assures that every single assisted suicide takes place with no one monitoring it.”
Is the aid-in-dying movement driven by concern about health-care costs?
Believers in the slippery-slope theory perceive a danger that legalized assisted suicide or active euthanasia would soon become a tool for reining in health-care costs.
Even aid-in-dying proponents acknowledge the possibility. “The risks of abuse . . . might be greater in the United States than in the Netherlands because of the pressures for cost containment in our health-care system, the burdens imposed on family members by the responsibility of caring for dying patients and our cultural penchant for seeking technological solutions to complex medical and social problems,” a group of physicians wrote in The New England Journal of Medicine.
Similarly, a 1993 law review article predicted that “Pressures on terminally ill patients to 'get it over with' and spare their loved ones expense and misery will be exerted by families and caregivers, and such subtle (or unsubtle) coercion would hardly be discouraged by hospitals stretching tight budgets.”
As some observers have put it, the “right” to die could well evolve into a “duty” to die.
Rita L. Marker, executive director of the International Anti- Euthanasia Task Force (IAETF), views the growing popularity of health- maintenance organizations (HMOs) as a potential source of trouble. For-profit HMOs, she says, “see the bottom line rather than patient benefit” as being the main consideration. For example, “A physician who doesn't use up a lot of his HMO's money is given a good grade, so to speak, whereas one who uses a moderate or large amount receives a bad grade. Even if the first physician's patients all died, and the second physician's all survived, that would make no difference in the way the doctors' performances are evaluated.”
The bean-counting approach to health care, says Marker, could cause difficulties if assisted suicide becomes legal. For instance, she notes that promoters of aid-in-dying claim it delivers compassion, choice and cost containment. “But it's anything but compassionate when strangers are making decisions for you based on cost containment, and establishing what choices you actually have.” If a poor, terminally ill patient with inadequate pain medication “is told he has the choice of requesting a lethal dose of drugs,” says Marker, “what kind of a 'choice' is that?”
Some health-care professionals argue that ways to reduce the cost of caring for the terminally ill already exist. Home-based hospice care, for example, enables the patient to live his final weeks or months in familiar surroundings and for considerably less money than a hospital would charge.
Julie A. Grimstad, executive director of the Center for the Rights of the Terminally Ill in Hurst, Texas, says the nation “could save millions of dollars each year on health care if doctors would just adequately manage their patients' pain.” That's because patients whose pain is under control “spend less time in the hospital, have fewer complaints and go to work more frequently. And the strain on the family is so much less. The family becomes more patient with the patient and is much more likely to keep him at home.”
It's also possible that the cost of caring for the terminally ill in hospitals has been overstated. That was the conclusion of a study published last fall in the Journal of the American Geriatrics Society. According to the study, denying care to patients adjudged to have less than a 1 percent chance of living two more months would have saved only $1.2 million of their estimated combined hospital bill of $8.8 million. The savings were modest because 99 of the 115 patients studied died within five days of entering the hospital.
“We can only speculate as to whether a societal consensus could be achieved to deny care in situations such as this one,” the researchers wrote. “Some will surely find it quite unsettling to foreclose the possibility of survival for these patients, especially since they voice a strong desire for aggressive treatment to try to survive, often buttressed by religious claim.”
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The first bill to legalize voluntary euthanasia in the United States was introduced in the Ohio Legislature in 1906. It provided that when a mentally competent adult was terminally ill or injured, his doctor could ask him in the presence of three witnesses whether he wished to die. If the answer was yes, three other physicians had to agree that the patient's condition was hopeless before he could be put to death.