From Moral Issues that Divide Us and Applied Ethics: A Sourcebook
2. Physician Assisted Death in Oregon: A Success -- Kathryn Tucker
A man named Bob had stomach cancer and, while he managed his illness more or less successfully, after about 3 years it got the best of him and treatments were ineffective. During his final months he was vomiting blood, lost about half his body weight, was incapable of walking, and experienced a degree of pain that he never had before. While he was hospitalized some of the time, he preferred to live out his remaining days at home, and his wife took on the responsibilities of caring for his basic needs as he lay in bed. A meticulous planner, Bob foresaw the possibility of a horrible end to his life and consequently stockpiled a lethal dose of medication; as a backup precaution, he had a loaded gun by his bed. Even with pain killers, his suffering eventually became overwhelming; he resolved to end his life, but by then was too weak to take the drug himself or even pick up his gun. He asked his wife to assist him, but she couldn’t bring herself to do it. He turned to family members, friends, or anyone who might be there visiting. While sympathetic to his struggle, they all refused, many out of fear of being prosecuted for murder. He finally died at home in his bed.
Most of us hope to live long and stay healthy throughout our allotted time on this planet, and would say that we’d like to die painlessly at 100 years of age while in good health. The realities of death, though, are much less rosy, and far too many people die in miserable conditions with illnesses that linger on and on, such as what happened with Bob. All societies, as far back as human history gives us records, have struggled with how best to deal with people experiencing these sorts of deaths. Invariably the question arises: are we morally justified in killing people in this situation as a means of putting them out of their misery? In recent times this has been associated with the notions of “the right to die” and “death with dignity.” In this chapter we will look at some of the options surrounding this issue and their possible moral justifications.
Moral controversies about end of life desires for death usually involve three conditions: the person seeking death (1) is terminally ill, (2) is in intense pain, and (3) voluntarily chooses to end his life to escape prolonged suffering. For brevity, in the discussion below we will use the expression “end-of-life situations” to refer to cases in which these three conditions apply.
There are different ways of bringing on the death of someone who is in an end-of-life situation. First is suicide, which is succinctly defined as self-killing. People kill themselves for a variety of reasons, and in many cases are the result of mental health problems, and, consequently, are nothing but tragic. The type of suicide situation that is relevant for us, though, is one which involves the three end-of-life conditions listed above. If Bob had successfully taken a lethal dose of drugs or shot himself, that would have counted as a suicide of this sort. There several obstacles to this approach; one, as we’ve seen, is that some people may not have enough control over their bodies to successfully perform a death-causing act. Many people do not know how to even successfully carry out a suicide or have access to the right drugs to do so. There is also the issue of courage: overriding one’s survival instinct is perhaps one of the most difficult tasks a human can perform, and the degree of mental resolve necessary for end-of-life-type suicides may be impossible for some people to muster. Many people who have attempted end-of-lie suicide have failed; in the aftermath they report that, while they wished they would have succeeded, they doubt whether they could regain the courage to try again.
A second method is assisted death, sometimes called assisted suicide. This is where a third party provides a person with the resources to carry out his or her suicide. For example, it would have been an assisted death if Bob’s wife handed him the pills or his loaded gun, and Bob himself used these to kill himself. What’s critical with assisted death is that the third party only provides the death causing agent, and the person seeking death himself actually carries out the death-causing act. Spouses and family members, though, are not necessarily the best third-parties to assist in death. Sometimes there may be conflicts of interest, such as if Bob’s wife was getting tired of playing nurse to him and wanted the situation resolved quickly. The ideal assisted death would be one that was done under the supervision of a physician, who would be impartial, know details of the patient’s prognosis, and know what the most effective death-causing medication would be.
A third method is euthanasia, which literally means good death, and can be succinctly defined as “mercy killing.” Here it is the third party that actually performs the death-causing act, and not the person himself who is seeking to die. If Bob’s wife took his gun and shot him, or injected him with a lethal dose of drugs, that would count as euthanasia. There are different types of situations in which euthanasia might be carried out, and this leads to additional distinctions. First, there is the distinction between active and passive euthanasia. Active euthanasia is where a third-party performs a consciously overt action that brings about the death of the person, such as if Bob’s wife had shot him herself. In a clinical setting, a doctor might actively perform euthanasia by administering a lethal dose of drugs to the patient, through pills or an injection. By contrast, passive euthanasia is when the third party allows the patient to die by not intervening. Frequently this is done by taking a patient off life support, or deciding to not put a patient on life support to begin with. Other times physicians can allow a patient to die by not treating a secondary illness that the patient has. Suppose, for example, that Bob got an infection that was easily curable with an antibiotic drug. If Bob took the antibiotic, then he would still live out his remaining weeks in pain from the cancer. But, if he didn’t take the antibiotic, then, in his already weak condition, the infection would cause him to die in a matter of days. Accordingly, Bob’s doctor might decide to forego the antibiotic and, by not intervening, allow Bob to die sooner than he would have otherwise.
Another distinction is between voluntary and non-voluntary euthanasia. Voluntary euthanasia is when a competent adult requests or gives informed consent to a particular death-causing action. This is the scenario that we have so far been presuming with Bob’s case: he is conscious, rational, and in a proper mental state by which he can make a willful request. Often, though, people do not have the mental competence to make these decisions, such as when they are unconscious, delirious, or demented. In these cases an act of euthanasia would be nonvoluntary when the decision is made by a third party, and not the person himself who is to die. For example, if Bob fell into a coma, Bob’s wife might have made the decision to terminate his life. It is important to note, though, that the term “nonvoluntary” does not mean the same thing as “involuntary.” An involuntary act is one which is imposed on a person against his will, such as if Bob did not want to die and his physician gave him a lethal injection anyway. This would clearly be a case of murder, and not mercy killing. Rather, with nonvoluntary euthanasia, a patient is incompetent to make a decision, and a third-party steps in as a surrogate to make the call on behalf of the patient’s best interests.
Another crucial issue is the definition of death. In many nonvoluntary euthanasia situations patients are not just mentally incompetent, but so brain damaged that questions arise about whether the person is already dead. The bodies of comatose people can be kept alive virtually indefinitely through artificial life-sustaining treatment, and doing so makes no sense if they have crossed the line between life and death. But what exactly is that line? There are three theories about when death occurs. The first and most accepted one today is the neurological theory which maintains that brain death constitutes the real death of the person. On this view, death occurs for a person when he or she fails to engage in the surrounding world, and brain death is a sign that this has occurred. Persons that we designate as “living” must be receptive to stimuli from their surrounding environment, and be able to act to obtain what they need from that environment. When the brain can no longer sustain these abilities we presume that the person is dead.
Second is the two deaths theory which holds that the death of a person’s conscious processes is distinct from the death of the person’s body. In essence, the death of your brain could occur while your body remains fully alive. The problem with this approach is that it is to unconventional: we don’t think about people as going through two deaths, and, throughout human history we’ve understood death to be a single event. To be sure, there are difficulties finding the boundary between life and death, but those difficulties do not justify creating a new dual notion of death. Third is the bodily integration theory, which is that the overall integrity of the body rather than the condition of the brain that determines whether the person is dead. Many biological mechanisms in brain dead people remain active, such as the ability to maintain bodily temperature, heal wounds, and fight infection. Brain dead people grow with age and reach sexual maturity. With all of these functions remaining active, it is best to err on the side of caution when considering whether a comatose person is actually dead. Thus, on this theory, the sign of life is whether a person’s body functions in an integrated way. A criticism of this theory, though, is that mere ongoing biological activity in various cells or tissues is not in itself sufficient to mark the presence of a living organism. As the neurological theory maintains, some interactive engagement with the outside world is needed to designate human life.
A final issue that’s relevant to end-of-life situations concerns palliative care, typically associated with hospice programs. Palliative care aims at reducing the suffering of dying patients, typically through pain medication, once medical treatments such as chemotherapy are deemed ineffective. Hospice programs do not provide assisted death or active euthanasia, but instead focus on improving dying patients’ quality of life during their final days.
What People Think
As a whole, the U.S. population is sympathetic to both passive euthanasia and assisted death, as reflected in three recent national surveys (from www.pollingreport.com):
"Which comes closest to your view? In all circumstances, doctors and nurses should do everything possible to save the life of a patient. Sometimes there are circumstances where a patient should be allowed to die." (5/22-24/07)
Always Try To Save Life: 30
Sometimes Allow to Die: 68
"When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?" (5/10-13/07)
Not Unsure: 6%
"Do you think a person has a moral right to end his or her own life under any of the following circumstances?" (11/9-27/05)
"When this person has a disease that is incurable"
"When this person is suffering great pain and has no hope of improvement"
"When this person is an extremely heavy burden on his or her family"
"When this person is ready to die because living has become a burden"
Whether the issue is euthanasia or physician’s assisted death, the heart of the controversy is whether there are any morally justifiable reasons to kill oneself, and since ancient times philosophers have weighed in on this issue. We will look at the views of three classic philosophers on the subject. Next, when we turn to the contemporary moral debate regarding end-of-life situations, we find a special challenge. On the one hand, virtually all parties agree that certain types of death-assistance measures are justified—such as passive euthanasia. On the other hand, virtually all parties also agree that there are limits to exactly what can be done to end someone’s life—for example, you cannot euthanize someone who doesn’t want to die. Thus, the challenge is to find some criteria by which to distinguish acceptable from unacceptable death-assistance measures. We will look at three possible criteria for making that distinction.
Philosophers of the past often analyzed morally controversial actions such as suicide by considering whether they violated one of our three fundamental moral duties: duties to God, duties to oneself, or duties to other people. We noted earlier that people end their lives for many reasons, and often as a result of depression. To narrow our field of inquiry, we will consider only suicides in end-of-life situations.
Regarding whether suicide violates our duties to God, Thomas Aquinas (1225-1274) argues that “it belongs to God alone to pronounce the sentence of death and life” (ST 2a-2ae, Q. 65, A. 5). Life is God’s gift to us and is subject to his special authority. He gives us a wide range of freedom so that we may carry out our daily tasks and routines. However, ending our lives is not subject our own freedom, but instead to the power of God. As Plato suggested, when it comes to our lives, we are like soldiers who are placed upon guard in life, and we must not abandon our obligation or desert our post. Against this argument, David Hume (1711-1776) suggested a different view of what the divine being expects of us: God takes a completely hands off approach to governing the world, and does not micromanage anything that takes place in our lives. God established general laws of nature to regulate the physical events of the world, and left it to us to navigate our way through the world with the use of our human minds. Our normal human activity involves imposing our own purposes on the physical world, such as when we alter the flow of a river. Now, according to Hume, suicide is just another situation in which we alter the physical world—specifically our physical bodies—for our own purpose. He writes, “It would be no crime in me to divert the Nile or Danube from its course, were I able to effect such purposes. Where then is the crime of turning a few ounces of blood from their natural channel?” (“Of Suicide”). We might think that taking our own lives is different than changing the flow of a river, and God has reserved the former right especially for himself. But, Hume argues, if determining the time of death is entirely up to God, then it would also be wrong to lengthen our lives, such as through medicine: “it would be equally criminal to act for the preservation of life as for its destruction.” The causes of human death are seemingly arbitrary and insignificant: the most trivial thing can end our lives, such as a hair or fly that carries a disease. It is absurd to say that through our own human choice we cannot rightfully “dispose of what depends on such insignificant causes”. Thus, for Hume, suicide does not violate any duty towards God.
Whether suicide violates our duties to others, Aquinas argues that suicide causes social harm and thus violates our responsibility to society. Every person is a member of the community, and not just an isolated individual existing on one’s own. We each have our own jobs and social roles that we fill, the combination of which makes up our society. In a sense, each person belongs to the community and, thus, “by killing himself a person injures the community.” Hume has a response to this argument as well. Yes, we do have duties to society, but they all have limits. For example, my community cannot demand that I do volunteer work every waking hour of the day, regardless of the social good that it might do. In Hume’s words, “I am not obliged to do a small good to society at the expense of a great harm to myself.” That being so, he asks “why then should I prolong a miserable existence, because of some frivolous advantage which the public may perhaps receive from me?” If I am in an end-of-life situation, the good that I can do to society is very minimal. In fact, to tend to the endless complications of my terminal illness, I must resign all of my social activities. “Why may I not cut short these miseries at once by an action which is no more prejudicial to society?” Thus, in end-of-life situations, the interest I have in ending my misery outweighs the few remaining obligations that I have to society. Suppose further that my end-of-life situation is so horrible that I become a burden to others by draining financial resources and requiring around the clock attention. In such situations, my decision to end my life is not only morally permissible, but it may be morally praiseworthy. In Hume’s words, “my resignation of life must not only be innocent but laudable.” Hume is not suggesting that I would be morally required to kill myself in this situation, but, rather, that it would be an act of kindness towards others that I should place in the balance when making my decision.
Finally, whether suicide violates duties to oneself, Aquinas argues that it is wrong to kill oneself since it is contrary to the natural life asserting purpose of humans. By nature, everything in nature loves itself and resists deterioration and annihilation as much as it can. Humans are no exception, and suicide is contrary to this natural inclination “whereby every man should love himself.” Immanuel Kant (1724-1824) offers a similar rationale against suicide. For Kant, human life has a uniquely inherent value to it, and by killing myself I abandon my humanity and turn myself into a mere object to be used and abused. “The rule of morality,” Kant says, “does not admit of suicide under any condition because it degrades human nature below the level of animal nature and so destroys it” (Lectures on Ethics). The duty I have to myself, then, is to preserve my humanity at all costs, and by killing myself I violate that duty. Hume’s response to such arguments is that many suicides are done for good personal reasons that are consistent with duties to oneself: “age, sickness, or misfortune may render life a burden, and make it worse even than annihilation” (ibid). Yes, the instinct to survive is incredibly strong, and, following Kant, so too is our sense of the inherent value of human life. But this only shows that in some situations the motivation to die is so powerful that it overcomes the natural fear of death. People just don’t throw away their lives while they are worth keeping, especially in end-of-life situations. Our natural horror of death is so great that “small motives will never be able to reconcile us to it.” In end-of-life situations, my desire to die may very well overpower my natural instinct to survive and sense of inherent value, and my duty to myself may rest with ending my misery. Thus, for Hume, in at least some situations suicide does not violate duties to oneself.
What can we conclude about whether suicide violates duties to God, others, or oneself? In each case the question involves the range of freedom that we rightfully have. With duties to God, the issue is whether God has reserved for himself the decision to end my life, or, instead, has granted me the freedom to make that choice. With duties to others, it is a question of whether my obligation to society is more compelling than my freedom to choose my own destiny for myself. And, with duties to oneself, the issue is whether I have the freedom to determine for myself the value of my own life, or whether I am constrained by some special feature of human nature, such as a natural instinct to survive or the inherent value of human life. For normal and healthy people, untouched by terminal illness, it may be easy to relinquish these personal freedoms to the competing interests of God and others, or, more abstractly, to the life-asserting forces within human nature. But for people who suffer through end-of-life situations, these freedoms are not so easy to give up. It is short sighted for healthy people to make snap judgments about a phase of life that they have not yet experienced themselves, but someday in the future might. The moral question about suicide in end-of-life situations is not so much how I feel about it now as a healthy person. Rather, it is about imagining how I would feel about it in the future when I am in an end-of-life situation. By viewing it in that way, we will be in a better position to judge how much freedom we have in right to die situations.
The Active-Passive Distinction
We turn next to questions about the moral permissibility of active euthanasia. The distinction between active and passive euthanasia is accepted by most health care practitioners and has become the cornerstone of many debates on the morality of euthanasia. The general assumption is that actively killing someone is morally worse than passively letting someone die. But, in a famous article titled "Active and Passive Euthanasia" (1975), author James Rachels challenges this reasoning. From a strictly moral standpoint, he argues, there is no difference between the two, and since we accept passive euthanasia, we should also accept active euthansia, since it is more merciful. For Rachels, the outcome of both active and passive euthanasia is ultimately the same: the death of the patient on humanitarian grounds. The difference between the two is often played up because we frequently hear of terrible cases of active killings, but not of passive killings.
A common argument in favor of the active-passive distinction is that, with passive euthanasia, the doctor does not have to do anything: he just let’s nature take its course. However, Rachels responds, letting the patient die is an action that the doctor performs by not performing other actions. It is parallel to insulting someone by not shaking their hand. Suppose, for example, that a doctor let an otherwise healthy patient die who was suffering from a routinely curable illness; this would count as an intentional killing, even though it was done passively. He writes,
If a doctor lets a patient die, for humane reasons, he is in the same moral position as if he had given the patient a lethal injection for humane reasons. If his decision was wrong -- if, for example, the patient’s illness was in fact curable -- the decision would be equally regrettable no matter which method was used to carry it out. And if the doctor’s decision was the right one, the method used is not in itself important.
According to Rachels, not only is there no real moral distinction between active and passive euthanasia, but, by improperly creating such a distinction we do more harm than good. Techniques of passive euthanasia prolong the suffering of the patient, since it takes longer to passively allow the patient to die than it would if active measures were taken. In the mean time, the patient is in unbearable pain. Since in either case the decision has been made to bring on an early death, it is cruel to adopt the longer procedure.
Finally, the active-passive euthanasia distinction encourages physicians to make life and death decisions on irrelevant grounds. For example, Down's Syndrome infants sometimes have correctable secondary problems, such as having an intestinal obstruction; but decisions are made to forego corrective surgery (and thus let the infant die) simply because the parents do not want the burden of having a Down's Syndrome child. Rachels writes,
But notice that this situation is absurd, no matter what view one takes of the lives and potentials of such babies. If the life of such an infant is worth preserving, what does it matter if it needs a simple operation? Or, if one thinks it better that such a baby should not live on, what difference does it make that it happens to have an unobstructed intestinal tract? In either case, the matter of life and death is being decided on irrelevant grounds. It is the Down’s syndrome, and not the intestines, that is the issue. The matter should be decided, if at all, on that basis, and not be allowed to depend on the essentially irrelevant question of whether the intestinal tract is blocked.
The active-passive euthanasia distinction merely encourages these groundless decisions.
Again, Rachels’ central point is that society should accept active euthanasia since we already accept so called passive approaches, and there’s no legitimate moral difference between the two.
Doctrine of Double Effect
Critics of active euthanasia sometimes defend a more modest means of mercy killing, and one particularly popular argument to this end is based on the doctrine of double effect. According to this doctrine, an act of killing is justified if the death is only a side effect (or an unintended consequence that one could foresee), but is not the primary intended consequence of one’s act. For example, I am justified in killing someone in self defense since my primary aim is to protect my life, while the foreseen side effect is the death of the attacker. Thomas Aquinas, the originator of this notion, describes it here:
Nothing hinders one act from having two effects, only one of which is intended, while the other is distinct from the intention. . . . Accordingly, the act of self-defense may have two effects, one is the saving of one's life, the other is the slaying of the aggressor. Therefore this act, since one's intention is to save one's own life, is not unlawful, seeing that it is natural to everything to keep itself in "being," as far as possible. [Summa Theologica, 2-2, Q. 64, A. 7]
Applied to the euthanasia situation, a physician is justified in administering an overdose of some pain medication to a patient if the primary aim is to relieve some ailment, while the secondary side effect is the death of the patient. The point is that, even though the physician knows with 100% certainty that the patient will die from the pain medication overdose, the act is morally justifiable since the doctor is intending only to alleviate the patient’s pain, and not to kill the patient. The doctrine of double effect involves three specific conditions:
1. The act itself must be good, or at least morally neutral, independent of its consequences.
2. The agent must intend only the good effect. The bad effect can be foreseen, tolerated, and permitted, but it must not be intended.
3. The good effect outweighs the bad effect in circumstances sufficiently grave to justify causing the bad effect.
Walter R. Hunter, a practicing physician, graphically describes how he applied the doctrine of double effect with the mercy killing of an AIDS patient. The patient was having difficulty breathing, and, to slow down his respiratory rate, Hunter gave him a small injection of morphine. When this had no effect, he gave him another injection, then another until his breathing reached a normal rate. However, the patient’s breathing continued to drop until after several minutes he stopped breathing altogether and died. Hunter writes,
I knew that there was a slight risk of lethal side effects to the medications. But I knew that I might have to risk them, tolerate them in part or in totality if I were to attempt to ease his breathing. I did not intend for him to die, but I did intend to make his breathing easier. Had I intended the side effect of cessation of breathing, I would not have given incremental doses of medicine over time and observed his clinical response with each dose. I would have given a very large dose all at once to stop the breathing. [U.S. Senate Judiciary Committee Hearing, “Pain Relief Promotion Act,” April 25, 2000]
A common criticism of the doctrine of double effect is that a doctor cannot meaningfully separate in his mind what he intends from what he merely foresees. For example, let’s grant that Hunter intended to regulate his patient’s breathing through the morphine injection. Let’s also grant that he didn’t hope for his patient to die. Nevertheless, by foreseeing the likelihood of his death through cumulative injections, his mental state might best be described as having regretful intentions. That is, once he foresaw the outcome and acted on it anyway, that act of “foreseeing” transformed into an intention, albeit a regretful one.
Ordinary vs. Extraordinary Care
Critics of active euthanasia within the Roman Catholic religious tradition sometimes defend more modest passive euthanasia procedures by distinguishing between ordinary care and extraordinary care. Generally speaking, ordinary care involves medical procedures that offer a reasonable hope of benefit to the patient but do not involve excessive pain, expense, or other inconveniences. The Church’s view is that ordinary care should never be denied a dying patient. This is typically associated with food and water, which any patient would expect when staying in a hospital. Consequently, a food tube should never be removed from a dying patient, even if the patient is in an irreversible coma. By contrast, extraordinary care consists of procedures that are unusual, extremely difficult, dangerous, inordinately expensive, or have no reasonable hope of benefit to the patient. An artificial heart would be a good example. Because of the limitations of extraordinary care, physicians may be permitted to withdraw such procedures from dying patients. Thus, the distinction between ordinary and extraordinary care might serve as a practical guide to determine when passive euthanasia might be permitted.
One problem with the ordinary-extraordinary care distinction concerns how we determine whether a given medical procedure falls into one category or the other. Food tubes and artificial hearts may be obvious enough examples to many people, but what about respirators, dialysis machines, blood transfusions, or experimental drugs? None of these come with labels marking them as “ordinary” or “extraordinary.” Catholic physicians may seek guidance on these procedures from their Church officials, but these decisions would not be morally binding on non-Catholic physicians. A second problem is that the removal of a food tube with dying patients is becoming a more common practice, and seriously compromises the value of the ordinary-extraordinary care distinction as a practical guide even with the most basic medical procedures.
PUBLIC POLICY ISSUES
Many times our laws line up perfectly well with our moral values. Stealing is immoral, and it’s also illegal. Playing tennis is morally permissible, and it’s also legal. End-of-life situations, though, often involve a tension between our moral convictions and what we might want enacted into law. Many people feel that, generally speaking, active euthanasia and assisted death are morally permissible. However, because of the challenges in crafting safe public policies, these same people feel that active euthanasia and assisted death should not be legalized—at least not yet. Thus, the political debate about end-of-life situations often focus on the practical problems with implementing death-causing procedures.
The Legal Status of Euthanasia
In the U.S., individual states enact their own laws regarding murder and homicide, and, accordingly, it is for each state to decide for itself how to handle end-of-life situations. Passive euthanasia is legal in all states, where the medical profession itself establishes guidelines for what types of treatment can be withheld from dying patients. As of now, though, no state permits active euthanasia, and only three state permits assisted suicide, namely, Oregon, Montana and Washington. Oregon was the first, and because of its uniqueness, other states look to it as a test case for what the effects of such a policy might be elsewhere. Enacted in 1994, the specific guidelines of Oregon’s “Death With Dignity Act” are rather strict, and include the following conditions: (1) the person must be suffering from a terminal disease (with less than six months to live) and voluntarily express orally in writing his or her wish to die; (2) the person’s decision must be an informed one regarding his or her prognosis and the alternatives to assisted death; (3) after the patient’s initial request he or she must wait 15 days before receiving a prescription for the death-causing medication, and at that time the physician will offer the patient an opportunity to rescind the request. Oregon keeps detailed records of the patients who avail themselves of the “Death with Dignity Act”, and a 2007 annual report notes the following:
During 2007, 85 prescriptions for lethal medications were written under the provisions of the DWDA compared to 65 during 2006. Of these, 46 patients took the medications, 26 died of their underlying disease, and 13 were alive at the end of 2007.
Most patients were well-educated, insured, and enrolled in a hospice program. Among their end-of-life concerns, most indicated loss of autonomy, loss of ability to engage in enjoyable activities, and loss of dignity. About half also indicated concerns about losing control of bodily functions, burden on family, and inadequacy of pain control.
The U.S. Supreme Court addressed the issue of assisted suicide in two important cases. First, in Vacco v. Quill (1997), a group of physicians in New York argued that assisted suicide should be legally permitted throughout the country. It is essentially the same as withholding life-saving treatment, they maintained, which is already legal in all states. The central issue was whether assisted suicide was different enough from withholding life-sustaining treatment (i.e., passive euthanasia) to justify different laws. The physicians maintained that they were sufficiently similar, and, thus, current bans on assisted suicide were arbitrarily discriminatory. The Supreme Court disagreed and argued that the two procedures are distinct in two important ways. First, the causes of death are distinct from each other: “when a patient refuses life sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.” Second, the physician’s intentions differ in the two procedures: when withholding life sustaining treatment, the intention is “to cease doing useless and futile or degrading things to the patient,” but with assisted suicide, the intention is to end the patient’s life. Thus, there are no grounds for legalizing assisted euthanasia nationwide based on any supposed similarities with passive euthanasia.
In the second case, Washington v. Glucksberg (1997), a different group of physicians argued that the ban on assisted suicide in the state of Washington violated a patient’s Constitutionally protected liberty rights. The Supreme Court concluded that the Constitution’s conception of liberty does not include the right to assisted suicide. First, they argued, there is a long history of prohibiting assisted suicide: “The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Further, they argued, individual states have legitimate interests in preserving human life and “protecting the integrity and ethics of the medical profession,” which assisted suicide threatens. Finally, states have an interest in “protecting vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes. The upshot of both of these cases is that individual states can legalize assisted suicide within their own borders if they so choose, just as Oregon did. However, the Constitution does not require that states must do this.
Just as Oregon has become a test case for assisted death, the country of the Netherlands is being closely scrutinized for its practice of legalized active euthanasia. Famous for its liberal social policies, such as legalized prostitution and drug use, the Dutch have turned a blind eye towards euthanasia since 1973, and finally legalized it in 2002. Like Oregon’s “Death with Dignity Act,” Dutch laws also have a checklist of requirements that must be fulfilled before physicians can directly administer a lethal dose of a drug to their patients. The Dutch government has issued reports on the practice of euthanasia in their country, which indicate that some abuses have taken place. Most notably, some patients were euthanized or assisted in death when their suffering was only emotional, but not physical. Critics of active euthanasia in the US have seen this as a warning for what might befall us if we follow Dutch policies. While the Dutch are unique by allowing active euthanasia, a handful of European countries permit assisted suicide. Belgium is one such country, and their active euthanasia laws are more lenient than those of the Netherlands. In one case, two twin brothers of 45 years old, who were born deaf, were progressively becoming blind, and they opted to be euthanized to avoid living in a condition of being both deaf and blind. In this case, while their decision was voluntary, they were not terminally ill, and their pain was emotional, not physical. Of the European countries that have legalized active euthanasia, Switzerland is the only one that allows outsiders to participate in the program, and this has led to a phenomenon in that country called “suicide tourism”. That is, people in end-of-life situations travel to that country specifically to have a physician there assist them in suicide.
A major legal issue related to end-of-life situations concerns who should decide the fate of patients once they become incompetent to express their preferences. Suppose, for example, that Bob fell into a coma and was put on life support and feeding tubes. There’s no realistic hope that he will recover from the coma, and it is just a matter of a few months before he dies from his stomach cancer anyway. In this situation passive euthanasia might be a reasonable option, but Bob himself is not in a position to voice his preference about discontinuing his treatment—in essence, “pulling the plug” on the life-sustaining machines. Who should speak on Bob’s behalf?
First, his family members would have a say since they have the most at stake. Nevertheless, they should probably not be the sole determiners since they are too close to the situation. Their judgment to discontinue treatment might be clouded by mounting medical costs and other demands on the family. On the other hand, their judgment to continue treatment might be clouded by an unrealistic hope that Bob will miraculously recover. Bob’s physician and hospital would also have input, but here too their judgments might be clouded by their own concerns, such as the desire to accelerate Bob’s death to free up hospital beds, or the desire to provide Bob with every possible treatment as a means of avoiding a malpractice law suit. When family members and hospitals cannot agree, sometimes a judge must intervene on behalf of the family or hospital and order a particular course of action, such as removing life support. The case of Terri Schiavo is a dramatic example of this. After being in a persistent vegetative state for eight years, her husband obtained a court order to remove her feeding tube. Terri’s parents insisted that she was conscious, and, with the help of sympathetic advocacy groups and politicians, intervened to block the court order. After seven years of legal wrangling, the order was finally carried out and Terri died in 2007.
The issue of “who decides” is especially pertinent in cases of infants with deformities so serious that they have no reasonable hope of having a normal pain-free life. Anencephalic infants, for example, are missing a major portion of their brain, and are often born blind, deaf and unconscious. Decisions about withholding treatment, and thus allowing them to die, typically rest on the quality of life that the infant can be expected to enjoy. The more dismal the quality of life, the greater the case for withholding treatment. With some defects, though, it is difficult to presume in advance what the overall quality of life would be for the infant. Children with Downs syndrome, for example, vary greatly in their cognitive abilities, from being in a nearly vegetative state to being close to normal.
One way of remedying the situation of “who decides” is with a living will, also called an advance directive. This is a document that I might fill out while I’m still mentally competent and indicates my preferences regarding the withholding of medical treatment to hasten my death. The following example was created by hospice organization called Caring Connections, which prepares easy to read living wills for each of the U.S. 50 States, based on their own unique state laws.
I, John Doe, hereby give these advance instructions on how I want to be treated by my doctors and other health care providers when I can no longer make those treatment decisions myself.
Agent: I want the following person to make health care decisions for me: [space provided for name, relation, and contact information].
Alternate Agent: If the person named above is unable or unwilling to make health care decisions for me, I appoint as alternate: [space provided for name, relation, and contact information]
Quality of Life: I want my doctors to help me maintain an acceptable quality of life including adequate pain management. A quality of life that is unacceptable to me means when I have any of the following conditions (you can check as many of these items as you want):
Permanent Unconscious Condition: I become totally unaware of people or surroundings with little chance of ever waking up from the coma.
Permanent Confusion: I become unable to remember, understand or make decisions. I do not recognize loved ones or cannot have a clear conversation with them.
Dependent in all Activities of Daily Living: I am no longer able to talk clearly or move by myself. I depend on others for feeding, bathing, dressing and walking. Rehabilitation or any other restorative treatment will not help.
End-Stage Illnesses: I have an illness that has reached its final stages in spite of full treatment. Examples: Widespread cancer that does not respond anymore to treatment; chronic and/or damaged heart and lungs, where oxygen needed most of the time and activities are limited due to the feeling of suffocation.
Treatment: If my quality of life becomes unacceptable to me and my condition is irreversible (that is, it will not improve), I direct that medically appropriate treatment be provided as follows. Checking “yes” means I WANT the treatment. Checking “no” means I DO NOT want the treatment.
Yes/No. CPR (Cardiopulmonary Resuscitation): To make the heart beat again and restore breathing after it has stopped. Usually this involves electric shock, chest compressions, and breathing assistance.
Yes/No. Life Support / Other Artificial Support: Continuous use of breathing machine, IV fluids, medications, and other equipment that helps the lungs, heart, kidneys and other organs to continue to work.
Yes/No. Treatment of New Conditions: Use of surgery, blood transfusions, or antibiotics that will deal with a new condition but will not help the main illness.
Yes/No. Tube feeding/IV fluids: Use of tubes to deliver food and water to patient’s stomach or use of IV fluids into a vein which would include artificially delivered nutrition and hydration.
Other instructions, such as burial arrangements, hospice care, etc.:
[space provided for instructions]
Organ donation (optional): Upon my death, I wish to make the following anatomical gift (please mark one):
Any organ/tissue My entire body Only the following organs/tissues: [space provided for instructions]
[signatures and notarization]
The above living will is an exceptionally detailed one, which in many states is a necessity rather than a luxury. A Supreme Court ruling Cruzan v. Director, Missouri Department of Health (1990), established that individual states are within their rights to require that patients have a clearly articulated living wills before life-sustaining treatment can be withheld. A patient’s mere verbal statement to a family member would not be sufficient. The justification for such strict standards is that we unfortunately cannot assume that family members will always act to protect the patient, and, thus, “A State is entitled to guard against potential abuses in such situations.”
ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative stance regarding end-of-life situations is that all active measures—such as suicide, assisted death or active euthanasia—are wrong and should not be legalized. Some more moderate or passive measures are permissible, though, when it’s a matter of letting nature take its course. The main argument against active measures in end-of-life situations are as follows; (for simplicity they will focus specifically on active euthanasia, but apply as well to suicide and assisted death).
1. The wrongness of intentional killing: active Euthanasia is wrong because it is deliberate killing, and societies throughout history have condemned killing others intentionally. A criticism of this argument is that there are many exceptions to the prohibition against killing—particularly in cases of self-defense, war and capital punishment—and there are good reasons to recognize active euthanasia as another exception.
2. Slippery slope: euthanasia will lead to abuses, and ultimately result in actively euthanizing people against their wills. While in some situations it may be tempting to put someone out of his or her misery through active euthanasia, society will get accustomed to the idea of killing people to solve problems. Eventually euthanasia will be permitted in non-end-of-life situations, that is, where a person isn’t terminally ill, or in intense pain, or voluntarily requests it. Those most susceptible to euthanasia abuses will be the most helpless and vulnerable members of society. A criticism of this argument is that, as with any public policy, abuses with euthanasia can be reduced by enacting strict guidelines. At minimum, such guidelines would require that the above three end-of-life conditions be met.
3. Possible recovery: Euthanasia is wrong because we cannot tell for certain if a person's condition is really hopeless. There is always the possibility of some recovery, such as through a spontaneous remission or a new cure, or even a mistaken diagnosis. While this may be infrequent, it’s not worth risking the lives of those who might be lucky enough to recover. A criticism of this argument is that it wouldn’t rule out situations in which the patient’s prognosis has been checked and rechecked and all available options have been reconsidered. Again, a strict enough set of guidelines could virtually eliminate cases of possible recovery.
4. No assurance of voluntariness: even if patients appear to authorize euthanasia, we can’t be sure that their consent is truly voluntary. They might not be in the proper state of mind to fully understand the options. Worse yet, they might be influenced by the preferences of family members who want to be free from the expense and burden of continued treatment. A criticism of this argument is that in many cases we can be sure of voluntary consent, particularly when patients make advance arrangements and repeated requests. Again, strict guidelines can reduce this possibility.
The Liberal Position
The liberal view regarding end-of-life situations is that individuals should be morally and legally permitted to decide whether to terminate their lives by either active or passive means. Here are the principle arguments for active euthanasia, which, again, also apply to suicide and assisted death.
1. Exercising Autonomy: people have a right to control their lives and choose their own means of dying. The idea of autonomy (which literally means self-rule) is a foundational component of a free society. So long as my actions don’t harm others, I should be free to direct my life as I so choose, and this freedom extends to end-of-life situations. A criticism of this argument is that, while autonomy is an important moral ideal, no one has full autonomy. Our actions are always restricted by competing interests of society. Suppose, for example, that our society lacks the ability to construct a safe active euthanasia policy that protects the interests of those who are most vulnerable to abuse. In such a case, society’s interests in protecting vulnerable people might outweigh the autonomy of those who desire active euthanasia.
2. Dying with Dignity: people have a right to conduct their lives with dignity and, when possible, to choose a dignifying way of dying. Like autonomy, the idea of human dignity is a foundational value of society. We should not be forced to endure degrading and humiliating situations in any component of our lives, and this includes the manner in which we die. End-of-life situations can be horribly degrading when patients lose control of their bodily functions and their ability to cope with excruciating pain. A criticism of this argument is that, while dignity is an important ideal, there are limits to what we can expect when claiming a right to dignity. Our jobs, for example, will always involve some indignity, as anyone who works on an assembly line or in customer service knows very well. The best we can hope for is to reduce indignities as much as our circumstances allow. In end-of-life situations, efforts should certainly be made to reduce indignities for patients, but this by itself does not mean that patients can demand death through active euthanasia.
3. Showing Mercy: people in end-of-life situations are typically in enormous pain, and our duty to be merciful and relieve suffering requires us to end their suffering through death if necessary. We routinely put animals out of their misery as an act of mercy and, in end-of-life situations, our duty to relieve suffering demands that we do the same for humans. A criticism of this argument is that our duty to relieve suffering is only one of many competing moral values that we have. For example, our moral tradition also acknowledges the duty of fortitude, that is, the ability to endure difficult situations, the duty to courageously face fear, and the duty of self-preservation; these values may be contrary to active euthanasia. The duty to relieve suffering should undoubtedly be shown towards dying patients, as is done in hospice programs, but showing mercy does not necessarily mean that we should actively put someone do death.
4. The Golden Rule: active euthanasia is supported by the Golden Rule. That is, I should do to others as I would want done to me. If I was in an end-of-life situation, I would want someone to kill me. Thus, treating others the same way, I should permit active euthanasia for others who are in end-of-life situations. A criticism of this argument is that the Golden Rule does not apply to all of our desires, particularly desperate ones. I may desperately want you to give me a million dollars, or a heroin fix, or an army of slaves to do my bidding. However, this doesn’t mean that I should reciprocate by giving you these things when you desperately desire them. The Golden Rule does suggest that I must give desperate people help and show them kindness, since that’s what I’d want, but it does not hold me hostage to their specific requests.
A Middle Ground
On both sides of the euthanasia debate, there is great sympathy for people in end-of-life situations, and a shared conviction that artificially prolonging the lives of such people is not good. Hospice programs are widely available, and passive euthanasia policies are becoming more generous. Thus, there is already much middle ground on this issue, perhaps more so than with other controversial moral issues. The sticky issue, though, is how we should deal with the more aggressive measures of assisted death and active euthanasia. How far should the U.S. go? As a whole, the U.S. is more conservative than the Netherlands, and it is unlikely that Dutch policies regarding active euthanasia will be duplicated in the U.S. any time soon. Further, worries about potential abuses of legalized active euthanasia are at least somewhat justifiable. If the U.S. is to move in a more liberal direction, particularly with assisted death, which seems inevitable, it makes sense to first learn from the mistakes of places like the Netherlands.
2. PHYSICIAN ASSISTED DEATH IN OREGON: A SUCCESS
In 1994, voters in Oregon passed a ballot measure legalizing physician assisted dying. Known as the “Death with Dignity Act,” the measure allows for terminally ill patients to acquire through their physician a prescription for a lethal dose of medication, which the patient, and not the physician, would administer him or herself. The text of the Death with Dignity act is detailed, but the essential elements of it are these:
· “An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner. . . .”
· “‘Terminal disease’ means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”
· “A valid request . . . [must be] signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.”
· “To ensure that the patient is making an informed decision, [the attending physician shall] inform the patient of: (a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.”
· “In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.”
The measure was controversial and in many ways stands as a test case as to whether a legalized policy of physician assisted dying might be abused. The article below is by attorney Kathryn Tucker, who defended Oregon’s Death with Dignity Act in a landmark Supreme Court case on the issue. She argues here that, since the Death with Dignity Act became law, there has been no evidence of abuse, coercion or misuse of the policy of physician assisted dying. It was carefully crafted to avoid such problems, and those who use the Dignity Act are well educated, insured, and have good pain management, but “find that the cumulative burden of their terminal illness is intolerable.” There is nationwide support for assisted dying, she argues, and there should be a nationwide law permitting it.
. . . More than eight years of experience in the state of Oregon has demonstrated that risks to patients are not realized when a carefully drafted law is in place. In light of the Oregon experience, even previously staunch opponents have recognized that continued opposition to such a law can only be based on personal moral or religious grounds. The State of Vermont recently concluded, after thorough review of the Oregon experience, that: “it is [quite] apparent from credible sources in and out of Oregon that the Death with Dignity Act has not had an adverse impact on end-of-life care and in all probability has enhanced the other options.”
Arthur Caplan, Director of the Center for Bioethics at the University of Pennsylvania School of Medicine, after reviewing the Oregon data stated: “I was worried about people being pressured to do this. But this data confirms, for the seventh year, that the policy in Oregon is working. There is no evidence of abuse or coercion or misuse of the policy.”
The American Public Health Association, in an amicus brief filed in the Supreme Court of the United States recently, advised the Court:
Researchers have consistently found that experience in Oregon does not bear out concerns that physician-assistance 'would be disproportionately chosen by or forced on terminally ill patients who were poor, uneducated, uninsured, or fearful of the financial consequences of their illness.’
II. OVERVIEW OF OREGON LAW AND EXPERIENCE WITH IMPLEMENTATION:
A. Passage and Challenges
The Oregon Death with Dignity Act (“Dignity Act”) was passed in 1994 through the initiative process. Opponents of the Dignity Act have worked since then to overturn this law. First they sought relief from the Federal Government, urging the Drug Enforcement Administration (“DEA”) to take action against Oregon physicians who acted in compliance with the law on the basis that such activity violates the Controlled Substances Act (“CSA”).
The DEA initially opined that its agents could revoke the registrations of physicians who assisted in hastening deaths under the Dignity Act. U.S. Attorney General Janet Reno, however, overruled this position, concluding that the CSA did not reach such conduct. Opponents then sought, in two successive sessions of Congress, to amend the CSA to expand its scope to reach the Dignity Act. Both efforts failed in the face of strong opposition from the medical community founded on the concern that the proposed measures would exacerbate physicians’ fears regarding the use of controlled substances in pain management.
A change in federal administration and philosophy led to a change in legal interpretation. The Bush Administration’s first Attorney General, John Ashcroft, issued a Directive on November 6, 2001 (the “Ashcroft Directive”), advising that the Department of Justice had concluded that prescribing controlled substances under the Dignity Act violated the CSA” .
The Ashcroft Directive was challenged in federal court by the state of Oregon, an Oregon physician and pharmacist, and a group of terminally ill Oregonians, who asserted that it violated the CSA, the Administrative Procedure Act and the U.S. Constitution. The federal district court, the Ninth Circuit Court of Appeals, and the United States Supreme Court all concluded that the Directive exceeded the authority granted under the CSA, and a permanent injunction was entered. The Supreme Court held that the Attorney General did not have the authority to effect a “radical shift” in the balance of state-federal power as it pertains to the regulation of the practice of medicine. The Court reaffirmed the traditional state-federal balance of power in regulating the practice of medicine, specifically upholding Oregon’s physician-assisted dying law as a legitimate regulation of medicine. By noting that General Ashcroft’s view of physician-assisted dying was but “one reasonable understanding of medical practice,” the Court made clear that Oregon’s view also is reasonable.
B. Implementation of the Oregon Law
The Dignity Act establishes tightly controlled procedures under which competent, terminally ill adults who are under the care of an attending physician may obtain a prescription for medication to allow them to control the time, place, and manner of their own impending death. The attending physician must determine, among other things, that the patient is mentally competent, an Oregon resident, and confirm their diagnosis and prognosis. To qualify as “terminally ill” a person must have “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”
The attending physician must also inform persons requesting such medication of their diagnosis and prognosis, the risks and probable results of taking the medication, and alternatives to taking their own lives, including, but not limited to, hospice care and pain relief. A consulting physician must confirm the attending physician’s medical opinion.
Once a request from a qualifying patient has been properly documented and witnessed, and all waiting periods have expired, the attending physician may prescribe, but not administer, medication to enable the patient to end his or her life in a humane and dignified manner. The Dignity Act immunizes physicians and pharmacists who act in compliance with its comprehensive procedures from civil or criminal sanctions, and any professional disciplinary actions based on that conduct.
The Dignity Act also requires healthcare providers to file reports with the State documenting their actions; thus, Oregon’s experience with legal physician-assisted dying has been extensively documented and studied. To date, the Oregon Health Division and/or the Oregon Department of Human Service Office of Disease Prevention and Epidemiology have issued eight annual reports that present and evaluate the state’s experience with the Dignity Act. Related reports and articles have also been published in leading medical journals. These reports constitute the only actual source of reliable data regarding the experience of legal, regulated physician-assisted dying in America.
These reports have shown the dire predictions of those initially opposed to the Dignity Act to be baseless. The data clearly demonstrate that the option of physician-assisted dying has not been unwillingly forced upon those who are poor, uneducated, uninsured or otherwise disadvantaged. The Reports show the following:
• use of physician-assisted dying is strongly associated with a higher level of education; those with a baccalaureate degree or higher were 7.6 times more likely than those without a high school diploma to choose physician-assisted dying.
• ninety-nine percent of patients opting for physician-assisted dying during the Dignity Act’s first six years had some form of health insurance and eighty-six percent were enrolled in hospice care.
• use of physician-assisted dying is limited. During the first six years in which physician-assisted dying was a legal option, a total of only 171 Oregonians chose it. The number of terminally ill adults choosing this option in 2003 represented only one-seventh of one percent—i.e., 0.0014 percent—of Oregonians who died that year.
Indeed, rather than posing a risk to patients or the medical profession, the Dignity Act has galvanized significant improvements in the care of the dying in Oregon. These include:
• greatly increased enrollment by Oregon physicians in Continuing Education courses to improve their knowledge of the use of pain medications for the terminally ill, improving their ability to recognize depression and other psychiatric disorders, and more frequently referring their patients to hospice programs.
In sum, the available data demonstrate that making the option of assisted dying available, far from posing any hazard to patients or the practice of medicine, has galvanized improvements in end of life care, benefiting all terminally ill Oregonians.
The experience in Oregon reveals much about why dying patients choose to hasten impending death. In nearly all cases, multiple concerns contributed to the request. The patient’s most frequently cited concerns include a decreasing ability to participate in activities that made life enjoyable, the loss of autonomy, and the loss of dignity.
A core argument made in opposition to legalizing the option of assisted dying contends that what terminally ill patients really need is good pain management and palliative care, not hastened death. These opponents contend that motivation to improve pain management will be undermined if assisted dying is an available option. Yet, as noted above, the Oregon experience has shown that legalization of assisted dying has galvanized efforts to improve pain management, and hospice enrollment in Oregon is stunningly high among patients who choose to make use of the Dignity Act. Terminally ill Oregonians do not choose assisted dying because they have untreated pain, quite the contrary; Oregonians have access to good pain and symptom management. Only the relatively few patients who find that the cumulative burden of their terminal illness is intolerable, and who persist in a desire to hasten impending death, go on to utilize the Dignity Act.
III. OVERVIEW OF SUPPORT FOR THE OPTION OF PHYSICIAN AID IN DYING
Though Oregon is the only state to have yet legalized the option of physician aid in dying, support for the option is widespread nationwide.
• Harris poll, January 2002, found that sixty-five percent of respondents support legalization of the right to physician-assisted dying and sixty-one percent favored implementation of a version of the Dignity Act in their own state.
• Another group of studies found that between sixty-three and ninety percent of people with a terminal illness support a right to physician-assisted dying and would like to have the option available to them.
• In California, surveys in March 2006 and March 2005 found that 70% of California residents support the idea that “incurably ill patients have the right to ask for and get life-ending medication.” An assisted dying measure introduced in the California State Legislature in 2005 has garnered strong support.
• Support is found among persons of diverse religious faiths.
Support is also strong among physicians:
• A national survey conducted in March 2005 found that 57% of physicians believe it is ethical for a physician to assist a competent, dying patient hasten death.
• A 2001 survey published by the Journal of the American Medical Association found that fifty-one percent of responding physicians in Oregon supported the Dignity Act and legalization of physician-assisted dying.
• A nationwide survey published in 2001 in the Journal of General Internal Medicine found that forty-five percent of responding physicians believed that physician-assisted suicide should be legal, whereas only thirty-four percent expressed views to the contrary.
• Mental health professionals recognize that dying patients can choose aid in dying and be fully mentally competent.
• A significant number of medical associations have decided to embrace a position of “studied neutrality” on the question of legalizing physician-assisted dying, recognizing the division within the medical community on the question.
IV. THE BACK ALLEY, COVERT PRACTICE
Although legal only in Oregon, physicians throughout the country regularly receive requests for assistance in dying. Nearly thirty-percent of physicians responding to a 1998 New England Journal of Medicine survey stated that, since entering practice, they had received a request from patients to hasten death. Of those physicians who had received such a request, twenty percent had complied.
A survey of physicians in Washington revealed that twelve percent of had received a request to hasten death during the previous year, and twenty-four percent of the patients who requested medications to hasten death received them, notwithstanding the fact that Washington does not have a law in place like the Dignity Act.
Patients who cannot find a physician willing to assist under existing law often act alone or with assistance from family members. Many people shared such stories in amicus briefs submitted to the Supreme Court in the Glucksberg, Quill and OR v. Gonzales cases. These stories detailed the suffering of loved ones who did not have access or authority to end their own lives. One woman told the story of her husband who had terminal cancer of the spine, lungs, and lymphatic system. Unwilling to await death in a drugged state, her husband kissed his wife good-bye and shot himself in the front yard. “I wish I could have been with him at the end, but he said ‘no, it will be messy.’”
Another woman detailed the death of her daughter who was dying of bone cancer. Despite the excruciating pain, her daughter feared for her mother’s participation in ending her life. “I should be able to talk with my doctor and plan this, not ask my mom. Mom, what if you go to prison? What will happen to you?” Nonetheless, the woman assisted her daughter by giving her medication. “It was the ultimate act of love a mother could do for her suffering, dying child.” When her daughter died, the woman was finally able to hug her daughter without hurting her. Many other such stories have been told: from loved-ones who helped patients die, to others who helplessly watched patients die and the resulting effects on the surviving family members.
Thus, the question is not whether assisted dying will occur, but rather whether it will occur in a regulated and controlled fashion with safeguards and scrutiny, or whether it will occur covertly, in a random, dangerous and unregulated manner.
In Glucksberg and Quill the Supreme Court recognized that Justice Brandeis’s concept of the states as laboratories was particularly applicable to physician assisted dying. The Court’s conclusion in those cases that the federal constitution does not bar states from prohibiting physician assisted suicide rested in large part on a reluctance to reach a premature constitutional judgment that would cut off the process of democratic decision making in the states.
It is timely, prudent and humane for states to enact laws to empower terminally ill, mentally-competent adult citizens to control the timing and manner of their deaths by enabling them to obtain medications from their physician that could be self-administered to bring about a peaceful and humane death, subject to careful procedures. Passage of such laws would harm no one, and would benefit both the relatively few patients in extremis who would make use of them, and a great many more who would draw comfort from knowing this option is available should their dying process become intolerable to them.
Source: Senate Committee on Judiciary subcommittee hearing, The Consequences of Legalized Assisted Suicide and Euthanasia (2006)
QUESTIONS FOR REVIEW
Please answer all of the following questions for review.
1. Define the neurological theory of death, the two deaths theory, and the bodily integration theory.
2. What is Hume’s criticism of the argument against suicide from duties to God?
3. What is Hume’s criticism of the argument against suicide from duties to others?
4. What is Hume’s criticism of the argument against suicide from duties to oneself?
5. What are the three conditions of the doctrine of double effect?
6. What is the distinction between ordinary and extraordinary care?
7. What is the euthanasia policy in the Netherlands?
8. What is a living will and what was the central issue on them in the Supreme Court case Cruzan v. Director, Missouri Department of Health (1990)?
9. What are the four conservative arguments against euthanasia?
10. What are the four liberal arguments in favor of euthanasia?
[Oregon’s Death With Dignity Act]
11. According to Tucker, what kind of tightly controlled procedures are involved in the Death with Dignity Act?
12. According to Tucker, what are typical reasons for patients using the Death with Dignity Act?
13. According to Tucker, what kind of support is there for the option of physician aid in dying?
QUESTIONS FOR ANALYSIS
Please select only one question for analysis from those below and answer it.
1. Discuss whether there is any meaningful difference between assisted death and active euthanasia.
2. Discuss whether palliative care is an adequate substitute for euthanasia.
3. Criticize one of Hume’s arguments regarding suicide and duties to God, others, and oneself.
4. Discuss whether Oregon’s death with dignity act is sufficient for avoiding abuses.
5. Pick one of the Supreme Court cases on assisted suicide and euthanasia presented in this chapter and discuss whether you agree with their reasoning.