The reasons so many people support physician-assisted suicide - And why these reasons are not convincing

Issues in Law and Medicine

Volumn 12, Issue 2, 1996, Pages 113-131

  Kamisar, Yale ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; ASSISTED SUICIDE; ATTITUDE TO DEATH; DEATH AND EUTHANASIA; ETHICS; GOVERNMENT REGULATION; HUMAN; LEGAL APPROACH; LEGAL ASPECT; LONG TERM CARE; MEDICAL ETHICS; MENTAL STRESS; PERSONAL AUTONOMY; RELIGION; RIGHT TO DIE; RISK ASSESSMENT; SOCIOECONOMICS; TERMINAL CARE; TREATMENT WITHDRAWAL; UNITED STATES; VOLUNTARY EUTHANASIA;

ANALYTICAL APPROACH; DEATH AND EUTHANASIA; LEGAL APPROACH;

ATTITUDE TO DEATH; ETHICS, MEDICAL; EUTHANASIA, ACTIVE, VOLUNTARY; GOVERNMENT REGULATION; HUMANS; LIFE SUPPORT CARE; PERSONAL AUTONOMY; RELIGION AND MEDICINE; RIGHT TO DIE; RISK ASSESSMENT; STRESS, PSYCHOLOGICAL; SUICIDE, ASSISTED; TERMINAL CARE; UNITED STATES; VALUE OF LIFE; WEDGE ARGUMENT; WITHHOLDING TREATMENT;

EID: 0030229719     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (79)

1. See Kathleen Foley, The Relationship of Pain and Symptom Management to Patient Requests for Physician-Assisted Suicide, 6 J. PAIN & SYMPTOM MGMT. 289, 290 (1991);
2. Hearing before the Subcomm. on the Constitution of the Comm. on the Judiciary, House of Representatives, Apr. 29, 1996 (prepared statement of Dr. Herbert Hendin at 3-4) [hereinafter Hearing].
3. Martin E. Marty & Ron Hamel, Part Three: Some Questions and Answers, in ACTIVE EUTHANASIA, RELIGION, AND THE PUBLIC DEBATE 27, 40 (1991).
4. See id.
5. This year, in reaching the conclusion that there is a constitutional right to PAS, at least for competent adults who are terminally ill, both the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, and a three-judge panel of the Second Circuit belittled the distinction between assisted suicide and the termination of life support or, as it is often called, "letting die." See Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996); Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996).
6. Donald L. Beschle, Autonomous Decisionmaking and Social Choice: Examining the "Right to Die," 77 KY. L.J. 319, 365-66 (1988-89). As Beschle points out, id. at 364, "the decision to delegate the power [to terminate a patient's life support] to either relatives or other surrogates itself involves a social choice."
7. Id. at 349-50.
8. Id. at 350.
9. See Charles H. Baron et al., A Model State Act to Authorize and Regulate Physician-Assisted Suicide, 33 HARV. J. ON LEGIS. 1 (1996).
10. Charles Baron, On Taking Substituted Judgment Seriously, HASTINGS CENTER REP., Sept.-Oct. 1990, at 7, 8. I also agree with Professor Baron that what upset many critics of Cruzan v. Director, Missouri Dep't. of Health, 497 U.S. 261 (1990) (upholding a state's power to keep a PVS patient on a feeding tube, over her family's objection, because there was no "clear and convincing" evidence of the patient's wishes to end her life in such a setting), was that, unlike many other jurisdictions, "Missouri has taken the substituted judgment test seriously." Id.
11. Beschle, supra note 5, at 355.
12. Cf. PAUL A. FREUND, The Court and Its Critics, in THE SUPREME COURT OF THE UNITED STATES: ITS BUSINESS, PURPOSES, AND PERFORMANCE 171, 189 (1961).
13. Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die, 44 AM. U. L. REV. 803, 807 (1995).
14. THE NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT 120 (1994) [hereinafter TASK FORCE REPORT]. See also id. at 102.
15. Id. at 102, 120. The task force included eight medical doctors (two of whom were deans of medical schools), two bioethicists who were not medical doctors, four lawyers, six clergymen (one of whom was also a law professor), the state commissioner of health, the state commissioner on the quality of care for the mentally disabled, and a representative of the New York Civil Liberties Union.
16. Id. at 120.
17. Id.
18. John Arras, News from the Circuit Courts: How Not to Think About Physician-Assisted Suicide, 2 BIOLAW S:171, S:175 (July-Aug. 1996).
19. Id. at S:184.
20. Id. at 5:184-85.
21. See TASK FORCE REPORT, supra note 13, at ix (executive summary). Moreover, warned the task force, id. at 125, "assisted suicide and euthanasia will be practiced through the prism of social inequality and prejudice that characterizes the delivery of services in all segments of society, including health care." See generally id. at 119-34, 153-81.
22. Mark O'Keefe, Oregonians Agree to Go Own Way on Suicide, DETROIT FREE PRESS, Nov. 24, 1994, at 21A.
23. GLANVILLE WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW 312 (1957). Professor Williams reminded his readers that "the former religious objections to anaesthetics in surgery and childbirth have been given up, even by Catholics who were the last to express them. Yet Catholics, and a considerable number of members of other religious communions, still object to euthanasia." Id. at 313.
24. Bertrand Russell, Book Review, 10 STAN. L. REV. 382, 384 (1958). Russell maintained that Williams had "abundantly proved" that "the intervention of Christian Divines in legislation, at any rate during the last hundred years, has been almost entirely in favour of promoting suffering and against methods of alleviation which were not known in biblical times." Id. at 385.
25. 42 MINN. L. REV. 969 (1958).
26. When the New York Task Force issued its report on the law and ethics of death and dying, an officer of the Hemlock Society immediately disparaged the report by noting that the task force included representatives of religions that prohibit suicide. See Elisabeth Rosenthal, Panel Tells Albany to Resist Legalizing Assisted Suicide, N.Y. TIMES, May 26, 1994, at A1 (reporting the response to the report by Sidney Rosoff, president of the Hemlock Society). But only six task force members were clerics; they were greatly outnumbered by physicians, lawyers, bioethicists, and state health officials. The Hemlock Society did not attempt to explain why all twenty-four task force members arrived at the same conclusion.
27. Daniel Callahan & Margot White, The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village, 30 U. RICH. L. REV. 1, 5 (1996).
28. Id.
29. Prepared statement of Dr. Hendin, supra note 1, at 13.
30. Id.
31. Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc).
32. Id. at 824.
33. Id.
34. Id.
35. Quill v. Vacco, 80 F.3d 716 (1996).
36. Jeffrey Rosen, What Right to Die? THE NEW REPUBLIC, June 24, 1996, at 28, 30. In rejecting plaintiffs' due process argument (which had proved successful in the Ninth Circuit), the Second Circuit held that a right to assisted suicide could neither be "considered so implicit in our understanding of ordered liberty" that justice and liberty would disappear if it were sacrificed nor said to be "deeply rooted in the nation's traditions and history. Indeed, the very opposite is true." Quill, 80 F.3d at 724.
37. Quill, 80 F.3d at 729.
38. In describing the liberty interest implicated in cases such as Compassion in Dying v. Washington, the Ninth Circuit eschewed the terms "assisted suicide" and "aid in killing oneself in favor of such broader terms as "the right to die," "controlling the time and manner of one's death," and "hastening one's death." Id. at 801-02. Of course, the more broadly a court defines the right or liberty at issue, the more likely is it to be found implicit in the concept of liberty or rooted in the nation's history and tradition. And the more likely is it to topple the law being challenged. Indeed, if a court chooses to define the right or liberty broadly enough, such as "the right to be let alone" or "the right not to conform," a great many laws can be placed in jeopardy, e.g., laws against adultery, prostitution, and incest between adult relatives. See Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349, 351-52 (1992). The liberty to determine the time and manner of one's death or the liberty to hasten one's death, the terms the Ninth Circuit deem appropriate, cover assisted suicide as well as the termination of life support, but they also embrace voluntary euthanasia. Moreover, if one does not believe, as the Ninth Circuit does not, that "the state's interest in preventing that additional step [PAS] is significantly greater than its interest in preventing the other forms of life-ending medical conduct that doctors now engage in regularly," 79 F.3d at 824, why would one believe that the state's interest in preventing the next "additional step" (AVE) is significantly greater than its interest in preventing assisted suicide? Or its interest in preventing other forms of life-ending medical conduct doctors engage in regularly? At one point, the Ninth Circuit recognizes that "it may be difficult to make a principled distinction" between physician-assisted suicide and physician-administered voluntary euthanasia. Id. at 831. Although the court makes the usual point that that question "must be answered directly in future cases, and not in this one," id., I think it leaves little doubt as to how it would resolve that question in a future case: "We would be less than candid . . . if we did not acknowledge that for present purposes we view the critical line in right-to-die cases as the one between the voluntary and involuntary termination of an individual's life. . . . We consider it less important who administers the medication than who determines whether the terminally ill person's life shall end." Id. at 831-32. Of course, in AVE, no less than in PAS, the terminally ill person determines whether his or her life shall end.
39. Quill, 80 F.3d at 727.
40. See generally Yale Kamisar, Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in EUTHANASIA EXAMINED 225-36 (John Keown ed., 1995).
41. In re Quinlan, 355 A.2d 647 (1976).
42. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990) (discussed in note 9 supra).
43. For the view that the right to forgo or to terminate medical procedures should be "labeled a right to refuse medical treatment, rather than a 'right to die'" because the former term "is far more neutral, and does not connote death as a positive thing," see Beschle, supra note 5, at 359-60.
44. See Quinlan, 355 A.2d at 665, 670 & n.9.
45. Compassion in Dying v. Washington, 79 F.3d 790, 824 (9th Cir. 1996).
46. TASK FORCE REPORT, supra note 13, at 71.
47. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 269 (1990) (opinion of the Court).
48. Id. at 270.
49. See The Supreme Court: 1989 Term, 104 HARV. L. REV. 259, 262 (1990).
50. Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996).
51. Id. at 741.
52. 497 U.S. at 287 (O'Connor, J., concurring). See also id. at 289: "[T]he liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water."
53. Id. at 279 (opinion of the Court).
54. Id. at 302 (Brennan, J., joined by Marshall and Blackmun, JJ., dissenting).
55. Kreimer, supra note 12, at 840-41. See also Arras, supra note 17, at S:183: While we should definitely worry about the possibility of error, neglect and abuse in the context of allowing patients to die, it is at least somewhat comforting to realize that just about everyone in this category must be very bad off indeed. By the time physicians get around to discussing forgoing treatment with a patient or family, that patient will usually be well along in the process of dying. But with PAS and euthanasia we can expect that many candidates will be perfectly ambulatory and far from the dreaded scene of painful terminal illness depicted by advocates. Depending on how great the social slippage, this category may well come to encompass 'merely' those with an incurable condition but who are not presently 'terminal,' such as persons in the early stages of HIV infection or Alzheimer's disease. It may also come to encompass patients suffering from prolonged and intractable depression who exhibit no other symptoms of physical illness.
56. DANIEL CALLAHAN, THE TROUBLED DREAM OF LIFE 77-78 (1993).
57. See TASK FORCE REPORT, supra note 13, at 74-75.
58. Id. at 75.
59. As one commentator recently expressed it, "the only way we can offer patients and doctors the chance to prolong life-use life-sustaining treatment - is by also allowing them to decide when to cease such efforts. . . ." Giles R. Scofield, Exposing Some Myths About Physician-Assisted Suicide, 18 SEATTLE U. L. REV. 473, 481 (1995).
60. See Hearings, supra note 1 (prepared statement of Dr. Herbert Hendin at 9-11).
61. Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996).
62. George J. Annas, The "Right to Die" in America: Sloganeering from Quinlan and Cruzan to Quill and Kevorkian, 34 DUQUESNE L. REV. 875, 895 (1996).
63. Id. at 896.
64. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 795 (1989). At one point in his concurring opinion in Quill, Judge Calabresi refers to Professor Rubenfeld as one of the distinguished scholars who fails to see any valid constitutional difference between "the so-called 'passive' assistance" in dying that New York and other states allow and "the 'active' assistance" that New York and most states forbid by means of anti-assisted suicide laws. Quill v. Vacco, 80 F.3d at 738. I think Judge Calabresi is mistaken and that he was misled by Professor Rubenfeld's comment that "[i]f the decision to live or die is said to be so fundamental to a person that the state may not make it for him, then it is difficult to see on what plausible ground the right to make this decision could be granted to those on life support but denied to all other individuals." 102 HARV. L. REV. at 794-95, quoted by Judge Calabresi at 80 F.3d 738 n.11. Professor Rubenfeld did say that, but when read in context it is fairly clear that what he was really saying was that applying the "personhood" version of privacy - as opposed to the "anti-totalitarian" right to privacy that Rubenfeld prefers - it is difficult "to distinguish persons seeking to disconnect life-support machinery from 'ordinary' suicides." 102 HARV. L. REV. at 794. But Professor Rubenfeld went on to say: The principles developed here [Rubenfeld's anti-totalitarian theory of privacy], however, suggest an answer to this painful riddle. The cases of 'ordinary' suicides and of right-to-die patients look identical only from the formulaic perspective of an analysis that concentrates on the conduct proscribed - that is, the decision to end one's life, which is the same in both instances. With regard to what is produced, the two cases are utterly dissimilar. For right-to-die patients, being forced to live is in fact to be forced into a particular, all-consuming, totally dependent, and indeed rigidly standardized life: the life of one confined to a hospital bed, attached to medical machinery, and tended to by medical professionals. It is a life almost totally occupied. The person's body is, moreover, so far expropriated from his own will, supposing that he seeks to die, that the most elemental acts of existence - such as breathing, digesting, and circulating blood - are forced upon him by an external agency. In contrast, the 'ordinary' suicide suffers no such total occupation of his life or affirmative use of his body. An avenue of escape is foreclosed to him, and indeed he may suffer desperate unhappiness from being forced to live. The prohibition of suicide, however, does not, as a rule, direct lives into a particular, narrowly confined course. It does not produce specific, affirmative consequences - for example, remaining in a hospital bed connected to life-sustaining machinery - that largely direct the remainder of a person's life. Id. at 795-96.
65. See Kreimer, supra note 12, at 834-35; Edward J. Larson, Seeking Compassion in Dying: The Washington State Law Against Assisted Suicide, 18 SEATTLE U. L. REV. 509, 517 (1995).
66. See Yale Kamisar, Against Assisted Suicide - Even A Very Limited Form, 72 U. DET. MERCY L. REV. 735, 757-58 (1995).
67. FELIX FRANKFURTER, Mr. Justice Jackson, in FELIX FRANKFURTER AND THE SUPREME COURT 509, 511 (Philip B. Kurland ed., 1970).
68. See, e.g., TIMOTHY E. QUILL, DEATH AND DIGNITY 162 (1993).
69. "How," asks Daniel Callahan, "can self-determination have any limits? [Assuming a person is competent and determined to commit suicide with the assistance of another,] [w]hy are not the person's desires or motives, whatever they may be, sufficient?" Callahan, supra note 55, at 107-08.
70. See, e.g., Robert A. Sedler, Are Absolute Bans on Assisted Suicide Constitutional? I Say No, 72 U. DET. MERCY L. REV. 725, 729 (1995).
71. Bouvia v. Superior Court (Glenchur), 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).
72. Id. 225 Cal. Rptr. at 305.
73. See, e.g., Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990) (upholding the right of a thirty-six-year-old patient to refuse lifesaving blood transfusions following a cesarean section delivery); McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990) and State v. McAfee, 385 S.E.2d 651 (Ga. 1989)(involving respirator-dependent persons with quadriplegia who apparently had long life expectancies); Thor v. Superior Court (Andrews), 855 P.2d 375 (Cal. 1993) (sustaining the right of a state prison inmate, rendered quadriplegic as a result of a fall while in prison, to reject medication and artificial feeding).
74. ALAN MEISEL, THE RIGHT TO DIE 470 (2d ed. 1995).
75. Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996).
76. Glanville Williams, "Mercy-Killing" Legislation - A Rejoinder, 43 MINN. L. REV. 1, 7 (1958).
77. Id.
78. This may be still another reason why so many people say they support PAS.
79. Cf. Robert A. Burt, Death Made Too Easy, N.Y. TIMES, Nov. 16, 1994, at A19.