Despite these safeguards, opponents charged that the measure was open to abuse. Specifically, they said it would provide cover for families hoping to get rid of burdensome relatives, incompetent doctors looking for a way to hide their mistakes and fortune-hunters seeking speedier access to an inheritance. The bill was defeated.
Euthanasia proposals again came to the fore in the 1930s, when voluntary euthanasia societies were formed in Britain and the United States. In 1936, a bill to legalize voluntary euthanasia was introduced in the British House of Lords. It permitted adults suffering from an incurable and fatal illness to request euthanasia by signing a form in the presence of two witnesses. This document, with supporting medical certificates, was then to undergo review by a “euthanasia referee” appointed by the minister of health. If the referee approved the request, he would send it to a special court empowered to make the final decision.
According to a recent article in the Indiana Law Journal, “These cumbersome safeguards were intended by promoters of the bill to mollify the opposition, but the effect was just the opposite - it was complained that the safeguards created too much formality, destroying the doctor-patient relationship.” In any case, the measure was voted down.
Meanwhile, euthanasia developments in the United States were moving along a parallel path. In 1937, the Nebraska Legislature rejected a bill resembling the one that had failed in the House of Lords. The following year saw the formation of the Euthanasia Society of America in New York, where the Legislature in 1939 defeated another bill based on the British model. New York lawmakers voted down a similar measure in 1947. Its fate may have been sealed by revelations of euthanasia abuse and other questionable medical practices in Nazi Germany. For the next 20 years or so, euthanasia was an untouchable social policy issue in the United States and Western Europe.
'Death With Dignity'
Popular opinion began to shift with the rise of interest in “death with dignity,” a shorthand term for the right of a terminally ill person to refuse life-sustaining medical treatment. In the mid-1970s, the plight of Karen Anne Quinlan provided a tragic case study of the issue.
Quinlan, 21, lost consciousness at a party in April 1975 after consuming alcohol and tranquilizer pills. She stopped breathing for at least two extended periods. Hospitalization brought no improvement. All the doctors who examined her concluded she had suffered irreversible brain damage and was in a “persistent vegetative state.”
Quinlan's parents sought the advice of a Roman Catholic priest, who told them that church teachings held there was no moral duty to continue extraordinary means to sustain life when there was no realistic hope of recovery. The parents decided Karen should be taken off the respirator. But her doctors and the hospital turned down the request.
The Quinlans then went to court with a petition asking that their daughter be allowed to die “with grace and dignity.” The trial court judge refused to authorize disconnection of the respirator. However, in March 1976 the New Jersey Supreme Court reversed the lower court ruling, arguing that Karen had a right to refuse treatment on the basis of her constitutionally protected right of privacy. Since she was incompetent, the court said, the “only practical way” her right could be exercised was to allow her guardian and family to decide “whether she would exercise it in these circumstances.”
While the state did have an interest in the preservation of life, the court said, the state's interest “weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims.” In the Quinlan case, the court said, the state's interest had to yield. As a result, about a year after Quinlan had fallen into a coma, and in the expectation that she would die soon thereafter, her respirator was switched off. She began breathing unaided and lived for nine more years.
The New Jersey Supreme Court decision focused nationwide attention on “living wills,” the catchall term for advance directives about the use and removal of artificial life supports. Interest in such legal instruments reached new heights in the wake of the U.S. Supreme Court's 1990 decision in Cruzan v. Missouri Department of Health.
Nancy Cruzan, 32, had been in a persistent vegetative state since a car crash seven years earlier and was being kept alive by a feeding tube. Cruzan's parents, acting on her behalf, sought permission to end the life support. They contended she had once told them that she did not want to live after a serious accident if she could not function normally.
In its decision, the court held that a person whose wishes were clearly known had a constitutional right to refuse life-sustaining medical treatment. At the same time, however, it ruled that states could require that comatose patients be kept alive unless there was “clear and convincing evidence” that they would not want to live under such conditions. Such evidence, the court declared, was lacking in the Cruzan case.
Prodded by the Cruzan decision, Congress in October 1990 approved a measure requiring hospitals and other health-care facilities that receive Medicare or Medicaid payments to inform patients about their ability to execute living wills or other advance directives.
States acted as well. All 50 states and the District of Columbia now have living-will laws. Some of the statutes provide for the appointment of a health-care proxy to make decisions on a patient's behalf, often through a “durable power of attorney.” And all the laws grant doctors immunity from prosecution for any actions taken in carrying out the provisions of a living will.
Passive euthanasia measures like living wills and do-not- resuscitate orders enjoy broad support. In 1989, for example, the American Medical Association (AMA) approved a policy that, with informed consent, doctors could discontinue life support of patients who are close to death or in a permanent coma.
However, no such consensus exists with regard to assisted suicide or active euthanasia, which still spark fierce opposition. In February 1992, the American Bar Association (ABA) House of Delegates voted down a resolution supporting the right of terminally ill persons to receive help from their doctors in committing suicide.
John Pickering, head of the ABA Commission on Legal Problems of the Elderly, led the fight against the proposal. “There is a bright line between passive euthanasia and killing people,” Pickering said. “While the ABA supports the right of competent individuals to refuse health-care interventions, that is as far as [the right] should go.”
The ABA resolution failed despite a plea for its adoption by newscaster Betty Rollin, whose account of how she helped her cancer- stricken mother commit suicide formed the basis of a best-selling book and a made-for-TV movie. “Having a terminal illness and being in excruciating pain is like being locked in a room without knowing where the key is,” Rollin told the delegates. “This measure gives patients a means of escape.”
Rollin is just one of a sizable group of assisted-suicide proponents. Another is Derek Humphry, who founded the Hemlock Society in 1980 with his second wife, Ann Wickett, and two other persons. Humphry made headlines in August 1991, when his book Final Exit rose to the No. 1 spot on The New York Times' list of best-selling “advice, how-to and miscellaneous” hardcover books; it remained on the list for 18 weeks.
Recapitulating the arguments and advice Humphry had been dispensing for years, Final Exit was essentially a guide to taking one's life. As a basic strategy, Humphry suggested an overdose of any one of a number of prescription drugs. To ensure that death would follow, he urged that a plastic bag be slipped over the head and fastened securely about the neck.
Kevorkian Sparks Controversy
In marked contrast to Humphry, who maintains a low public profile, Jack Kevorkian seems to court media coverage of his efforts on behalf of assisted suicide. Over the past five years, Kevorkian has helped 21 persons to end their lives with machines he designed, gaining international notoriety in the process.
The first person to die with Kevorkian's aid was Janet Adkins, 54, a Hemlock Society member from Portland, Ore, who was diagnosed with Alzheimer's disease in 1989. When the illness started to affect her mind, she resolved to end her life before reaching a state of helplessness. She got in touch with Kevorkian, whom she had read about and seen on television. He, in turn, told her to contact him again when she was ready to carry out her plan.
Adkins and her husband flew to Royal Oak, Mich., on June 3, 1990, for an interview with Kevorkian. On the basis of that one meeting, the doctor concluded that Adkins' euthanasia request was rational. The next day, as her husband waited in a nearby motel, Adkins was hooked up intravenously to an inverted bottle of saline solution hanging from a metal frame in the back of Kevorkian's parked van. Two other bottles also were suspended from the frame. One contained sodium pentothal (a sedative) and the other a solution of potassium chloride and succinylcholine (a muscle relaxant).
Acting on Kevorkian's instructions, Adkins pressed a button that shut off the flow of saline solution and opened the line of sodium pentothal, causing her to lose consciousness. After one minute, an automatic timer closed the pentothal line and released the contents of the third bottle. Adkins' heart stopped beating within six minutes.
The Hemlock Society approved of what Kevorkian and Adkins did because, Humphry wrote, “it knew at first hand that she had been contemplating this for at least six months, had been refused help by other doctors and her family was in psychological counseling.” Moreover, the fact that Adkins had to travel more than 2,000 miles to fulfill her final wish showed that “We need to change the law so that this sort of compassionate help by a doctor can happen at home or in the hospital.”
Michigan law-enforcement authorities took a less indulgent view of Kevorkian's activities. On Dec. 3, 1990, the doctor was charged with murdering Adkins. Ten days later, however, Oakland County District Court Judge Gerald McNally dismissed the charges, saying there was no evidence that Kevorkian had planned or caused Adkins' death. In addition, McNally noted that Michigan had no law expressly barring a person from assisting in a suicide.
Kevorkian's second and third assisted suicides occurred on Oct. 21, 1991. Sherry Miller, a multiple-sclerosis victim, and Marjorie Wantz, who said she was suffering from a painful pelvic disorder, died within an hour of each other while connected to suicide machines in a secluded cabin about 40 miles north of Detroit.
An autopsy performed on Wantz by the Oakland County medical examiner found no evidence to support her complaint. On Nov. 20, 1991, the state Board of Medicine voted 8-0 to suspend Kevorkian's medical license. And on Feb. 3, 1992, an Oakland County grand jury indicted the doctor on two counts of murder and one count of delivery of a controlled substance in connection with the Wantz-Miller deaths. Nonetheless, Kevorkian continued to help people end their lives by having them breathe carbon monoxide fumes from a tube connected to a canister.
An intricate game of cat and mouse involving Kevorkian, the Michigan Legislature and the state court system followed. In 1992, the Legislature approved a bill ordering a temporary ban on assisted suicide, effective March 1993, and establishing a commission on death and dying to study the issue. But Michigan Gov. John Engler signed a second law on Feb. 25, 1993, to make assisted suicide illegal immediately. The purpose of the measure was to prevent Kevorkian from rushing to help more people kill themselves as the original deadline drew near. The new ban was to expire Nov. 25, 1994.
After being charged for the third time with violating the Michigan ban on assisted suicide, Kevorkian was jailed in Pontiac on Nov. 30, 1993. The doctor proceeded to go on a hunger strike to protest the law, reportedly losing more than 10 pounds before his release two-and- a-half weeks later.
Kevorkian gained his freedom after Wayne County Circuit Court Judge Richard C. Kaufman ruled in mid-December that the state's assisted-suicide ban was unconstitutional. He also dismissed the charges against Kevorkian. In cases where a patient's quality of life was “significantly impaired by a medical condition” that was “extremely unlikely to improve,” Kaufman declared, that person has a “constitutionally protected right” to commit suicide. The assisted suicide that had led to Kevorkian's imprisonment met this test, the judge said.
For his part, Kevorkian announced he would cease aiding in suicides until a higher state court reviewed the assisted-suicide ban.
Debate in the States
Though developments in Michigan have often dominated the aid-in- dying debate in recent years, the issue also has drawn attention in other states. Initiative 119, which appeared on the Washington ballot Nov. 5, 1991, sought to amend the state's 1979 Natural Death Act to permit “physician aid-in-dying,” defined as “a medical service provided in person by a physician that will end the life of a conscious and mentally competent qualified person in a dignified, painless and humane manner, when requested voluntarily by the patient through a written directive executed at the time the service is required.”
The wording of Initiative 119 gave no details about the precise form that a physician's aid-in-dying would take. However, literature distributed by Washington Citizens for Death With Dignity, the group sponsoring the measure, indicated it would mean a lethal dose of oral or intravenous medication. The proposed law provided that a request for a doctor's assistance in dying must be made in writing by the terminally ill patient in the presence of two independent witnesses. Furthermore, two examining physicians had to certify in writing that the patient suffered from a terminal illness likely to result in death within six months.
At first, Initiative 119 seemed headed for a decisive victory. A statewide poll in early October found that 61 percent of likely voters favored the measure, while 27 percent opposed it and 12 percent were undecided. On Election Day, though, Washington voters rejected Initiative 119 by a margin of 54 percent to 46 percent. Supporters, including Humphry, attributed the turnaround to the proposal's vagueness and perceived lack of safeguards. Opponents, such as the IAETF's Marker, credited voters with realizing that Initiative 119 could open the door to serious abuses.
Despite the defeat of Initiative 119, a similar proposal qualified for the California ballot in 1992. Proposition 161 was an updated version of a Hemlock Society measure that had failed to gain enough signatures for inclusion on the 1988 ballot. The revised proposal continued to refer to “aid-in-dying,” but it also included a more detailed description of the term - “a medical procedure that will terminate the life of the qualified patient in a painless, humane and dignified manner, whether administered by the physician at the patient's choice or direction or whether the physician provides means to the patient for self-administration.”
To meet one of the main objections to Initiative 119, Proposition 161 contained safeguards protecting the rights of the terminally ill. The measure required hospitals and health-care providers to keep records and file annual reports with the state Department of Health Services that listed each patient's age and type of illness (but not his or her name) as well as the date the advance directive was carried out. Furthermore, Proposition 161 provided that the written directives of patients in nursing homes would be held invalid unless they had been witnessed by an ombudsman or patient advocate appointed by the state Department of Aging.
As in Washington a year earlier, California's aid-in-dying initiative commanded wide support in opinion polls taken at the start of the election campaign. But in the end it was rejected - also by a margin of 54 percent to 46 percent. “As with Initiative 119, deeply rooted moral uncertainty was cited as the cause of this paradoxical result,” observed the editor of the UCLA Law Review.
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* A probate court judge in Jasper County, Mo., ruled Dec. 14, 1990, that Cruzan's parents had the right to remove their daughter's feeding tube, which they immediately did. Nancy Cruzan died Dec. 26, 1990.
Notwithstanding these setbacks,assisted-suicide advocates on the West Coast continued their quest. Their persistence was rewarded when U.S. District Judge Rothstein issued a ruling May 3, 1994, in the case of Compassion in Dying v. Washington. Compassion in Dying, a Washington nonprofit, had sought to overturn the state's statutory ban on assisted suicide. The co-plaintiffs in the case were several terminally ill patients and a group of doctors who treated the terminally ill.
In finding for the plaintiffs, Rothstein relied principally on the 14th Amendment's protection of individual rights against violation by the state and on the U.S. Supreme Court's 1992 ruling in Planned Parenthood v. Casey, which gave states the right to regulate abortion but expressly affirmed women's right to have abortions. The high court's reasoning in Casey, Rothstein declared, was “almost prescriptive” on the suicide issue.
“Like the abortion decision,” she wrote, “the decision of a terminally ill person to end his or her life 'involves the most intimate and personal choices a person may make in a lifetime' and constitutes a 'choice central to personal dignity and autonomy.' ”
In her ruling, Rothstein rejected the argument that there was a valid constitutional distinction between refusal of life-sustaining medical treatment, which was legal in Washington, and physician- assisted suicide, which was not. “Washington law, by creating an exception for those patients on life support, yet not permitting competent, terminally ill adult patients . . . the equivalent option of exercising their rights to hasten their deaths with medical assistance, creates a situation in which the fundamental rights of one group are burdened while those of a similarly situated group are not,” she wrote. “Therefore, this court finds that [the Washington law prohibiting assisted suicide] violates the equal-protection guarantee of the 14th Amendment.”
Assistant-suicide proponents were cheered by Rothstein's ruling, but it was emphatically reversed by an appeals court less than a year later. In its March 9, 1995, ruling, the 9th U.S. Circuit Court of Appeals took Rothstein to task for finding the Casey abortion decision “almost prescriptive” in dealing with suicide of the terminally ill.
“To take three sentences out of an opinion of over 30 pages . . . dealing with the highly charged subject of abortion and to find these sentences 'almost prescriptive' in ruling on a statute proscribing the promotion of suicide is to make an enormous leap, to do violence to the context and to ignore the differences between the regulation of reproduction and the prevention of the promotion of killing a patient at his or her request,” the appeals court said.
The appeals court also held that Rothstein's opinion “lacks foundation in recent precedent.” It pointed out that “no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction” in the nation's history. “Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past and antithetical to the defense of human life that has been a chief responsibility of our constitutional government.”
In a similar case decided in December 1994, a challenge to two sections of New York's Penal Code outlawing assisted suicide cited the 14th Amendment as well as the Cruzan, Casey and Roe rulings. Unlike Judge Rothstein, Chief Judge Thomas P. Griesa of U.S. District Court in New York City found no merit in the plaintiff's arguments, asserting that their “reading of these cases is too broad.” Griesa added: “The Supreme Court has been careful to explain that the abortion cases, and other related decisions on procreation and child rearing, are not intended to lead automatically to the recognition of other fundamental rights on different subjects.”
Oregon Law in Limbo
Oregon voters gave the assisted-suicide movement a boost on Nov. 8, 1994, when they narrowly approved Ballot Measure 16, also known as the Death With Dignity Act. The law, which was scheduled to take effect Dec. 8, has been put on hold at least temporarily by Judge Michael R. Hogan of U.S. District Court in Eugene.