Restricting physician-assisted death to the terminally ill

Hasting Center Report

Volumn 30, Issue 6, 2000, Pages 17-23

  Gunderson, Martin ^a   Mayo, David J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ASSISTED SUICIDE; DEATH AND EUTHANASIA; EVIDENCE BASED MEDICINE; FREEDOM; HUMAN; LEGAL ASPECT; MEDICAL ETHICS; ORGANIZATION AND MANAGEMENT; PATIENT ADVOCACY; REVIEW; RIGHT TO DIE; RISK FACTOR; TERMINAL CARE; TERMINALLY ILL PATIENT; UNITED STATES;

ANALYTICAL APPROACH; DEATH AND EUTHANASIA;

ETHICS, CLINICAL; ETHICS, MEDICAL; EVIDENCE-BASED MEDICINE; FREEDOM; HUMANS; PATIENT ADVOCACY; RIGHT TO DIE; RISK FACTORS; SUICIDE, ASSISTED; TERMINAL CARE; TERMINALLY ILL; UNITED STATES;

EID: 0034329371     PISSN: 00930334     EISSN: None     Source Type: Journal    
DOI: 10.2307/3528448     Document Type: Article

References (48)

1. For a good overview of the doctrine of the sanctity of life and its role in the early euthanasia debate, see O. Temkin, "The Idea of Respect for Life in the History of Medicine," in Respect for Life in Medicine, Philosophy, and the Law, ed. O. Temkin, W.K. Frankena and S.H. Kadish (Baltimore and London: Johns Hopkins University Press, 1976), pp. 1-23.
2. This is reflected in Justice Rehnquist's majority opinion in Washington v. Glucksberg, which held that state laws forbidding assisting suicide are constitutional. While the court refers to the State's interest in life, most of their analysis is based on potential risks. 521 U.S. 702, 728-735 (1997).
3. Such safeguards are included in the Oregon's Death with Dignity Act [Or. Rev. Stat. Ch. 127.800 et seq. (1995)]. Similar safeguards are also included in the Harvard Model Act. C.H. Baron et al., "A Model State Act to Authorize and Regulate Physician-Assisted Suicide," Harvard Journal on Legislation 33, no. 1 (Winter 1996): 1-34 [hereafter The Harvard Model Act];
4. T. Quill, Death and Dignity: Making Choices and Taking Charge (New York: Norton, 1993), pp. 167-75.
5. For an example of slippery slope arguments, see J. Arras, "On the Slippery Slope in the Empire State: The New York State Task Force on Physician-Assisted Death," American Philosophical Association Newsletter 95, (1996).
6. Oregon's Death with Dignity Act, codified at Or. Rev. Stat. 127.800 et seq. (1995) Initiative 119 in Washington State was narrowly defeated in 1991. For a discussion of why Initiative 119 failed see R. Carson, "Washington's I-119," Hastings Center Report 22, no. 2 (1992): 7-9.
7. A similar referendum, Proposition 161, failed in California in 1992. For a discussion of the defeat of Proposition 161 see A.M. Capron, "Even in Defeat, Proposition 161 Sounds a Warning," Hastings Center Report 23, no. 1 (1993): 32-33.
8. T. Quill, A Midwife through the Dying Process: Stories of Healing and Hard Choices at the End of Life (Baltimore and London: The Johns Hopkins University Press, 1996), p. 213.
9. For the Remmelink Commission Report on assisted suicide in the Netherlands and a five year update see P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, "Euthanasia and Other Medical Decisions Concerning the End of Life," Health Policy 22, nos. 1 and 2 (1992).
10. See also P.J. van der Mass et al., "Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995," NEJM 335 (1996): 1699-705.
11. See ref. 3, Harvard Model Act, Section 3(a)2.
12. See ref. 3, Quill, Death and Dignity, p. 162.
13. D.W. Brock, "Voluntary Active Euthanasia," Hastings Center Report 22, no. 2 (1992): p. 16.
14. See ref. 7, the Remmelink Report, pp. 43-45.
15. E. Cassell, The Healer's Art (New York: Lippincott, 1975), p. 44.
16. The New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: 1994), p. 132;
17. Y. Kamisar, "Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia," in Euthanasia Examined: Ethical, Clinical, and Legal Perspectives, ed. J. Keown (New York: Cambridge University Press, 1997), pp. 228ff.
18. F. Ackerman, "Assisted Suicide, Terminal Illness, Severe Disability, and the Double Standard," in Physician Assisted Suicide: Expanding the Debate, ed. M.P. Battin, R. Rhodes, and A. Silvers (New York and London: Routledge, 1998), p. 150.
19. This respect for autonomy in refusing life-sustaining treatment is reflected in the law. The Supreme Court has noted that there is a liberty interest in refusing life-sustaining treatment that is protected by the Due Process Clause. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 279 (1990). The right to refuse life-sustaining treatment is also affirmed in Washington v. Glucksberg and Vacco v. Quill, though those cases held that there was no constitutional right to physician assisted Death. Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).
20. See ref. 4, Arras, "On the Slippery Slope," p. 81;
21. see ref. 14, Ackerman, "Assisted Suicide," p. 151;
22. D. Marquis, "The Weakness of the Case for Legalizing Physician-Assisted Suicide" in Physician Assisted Suicide: Expanding the Debate, ed. M.P. Battin, R. Rhodes, and A. Silvers (New York and London: Routledge, 1998), pp. 272-73.
23. Although we have been considering moral issues, the fairness arguments are reflected in constitutional law. It can be claimed that restricting physician-assisted death to the terminally ill is an arbitrary classification that violates the Equal Protection Clause of the Fourteenth Amendment. Oregon's Death with Dignity Act was originally declared unconstitutional on these grounds, although the holding was overturned on the grounds that die petitioners did not have standing to bring suit. Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995).
24. J.E. Bickenbach, "Disability and Life-Ending Decisions," in Physician Assisted Suicide: Expanding the Debate, ed. M.P. Battin, R. Rhodes, and A. Silvers (New York and London: Routledge, 1998), p. 129.
25. Advocates for persons with disabilities are especially concerned with this. D. Sobsey, "An Illusion of Autonomy: Questioning Physician-Assisted Suicide and Euthanasia," Brief Submitted to the Special Senate Committee on Euthanasia and Assisted Suicide, Winnipeg, Manitoba, Sept 30, 1994. Available at http://www.quasar.ualberta.ca/ddc/ICAD/icad.html.
26. A.M. Capron, "Legalizing Physician-Aided Death," Cambridge Quarterly of Healthcare Ethics 5, no. 1 (Winter 1996), pp. 20-21;
27. E. Chevlen, "The Limits of Prognostication," Duquesne Law Review 35 (Fall 1996), p. 337;
28. J. Lynn et al., "Defining the 'Terminally Ill': Insights from SUPPORT," Duquesne Law Review 35 (Fall 1996), p. 311;
29. J. Lynn et al., "Prognoses of Seriously Ill Hospitalized Patients on the Days Before Death: Implications for Patient Care and Public Policy," New Horizons 5, no. 1 (February 1997): 56-61;
30. C.R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999), pp. 94-95.
31. Washington v. Glucksberg, 521 U.S. 702 (1997).
32. See ref. 19, Lynn et al, "Defining the 'Terminally Ill,'" pp. 319-32.
33. For a good overview of the law on civil commitment, see M.L. Perlin, Law and Mental Disability (Charlottesville, Va.: The Michie Company: 1994), Sections 1.02-1.09.
34. For a discussion of the role of double effect in this context, see Council on Ethical and Judicial Affairs and the American Medical Association, "Decisions Near the End of Life," JAMA 267 (1992): 2229-33.
35. D. Orentlicher, "The Supreme Court and Physician-Assisted Suicide - Rejecting Assisted Suicide but Embracing Euthanasia," NEJM 337 (1997): 1236-39.
36. Both professional health care organizations and the law are clearly on record distinguishing physician-assisted death, which they oppose largely because of risks involved, from risking double effect deaths, which they consistently describe as part of optimal palliative care. The law attributes the cause of such deaths to the underlying terminal condition. Vacco v. Quill, 521 U.S. 793, nt. 11 citing with approval New York State Task Force, p. 163 and see ref. 23, American Medical Association, "Decisions Near the End of Life," pp. 2229-33.
37. President's Commission for the Study of Ethical Problems, Medicine and Biomedical and Behavioral Research: Deciding to Forego Life-Sustaining Treatment (Washington, DC: The U.S. Government Printing Office, 1983), p. 1.
38. G. Dworkin, "Physician-Assisted Suicide and Public Policy," Philosophical Studies 89, nos. 2 and 3 (March 1998): 133-41;
39. A. Meisel, "Managed Care, Autonomy, and Decisionmaking at the End of Life," Houston Law Review 35 (Spring 1999), pp. 1419-26.
40. See ref. 27, Meisel, "Managed Care," pp. 1419-20.
41. As Judge Reinhardt notes in his 9th Circuit majority opinion in Compassion in Dying, as the end of life nears the dying person's interest in determining the time and manner of death increases. Compassion in Dying v. State of Washington, 79 F.3d 790, 834 and 837 (9th Cir. 1996).
42. D.M. Hester, "Significance at the End of Life," in Pragmatic Bioethics, ed. G. McGee (Nashville and London: Vanderbilt University Press, 1999), pp. 121-22.
43. This point is also made in J.J. Thomson, "Physician-Assisted Suicide: Two Moral Arguments," Ethics 109 (April 1999), p. 506.
44. D.E. Meier et al., "A National Survey of Physician-Assisted Suicide and Euthanasia in the United States," NEJM 338 (1998): 1193-201.
45. For anecdotal evidence of this see L. Shavelson, A Chosen Death: The Dying Confront Assisted Suicide (Berkeley, Los Angeles, London: University of California Press, 1995), pp. 28, 54, 59, and 66.
46. Washington v. Glucksberg 521 U.S. 702, 732 (1997); see ref. 4, New York State Task Force, p. 120.
47. Oregon's experiment in physician-assisted suicide has added some evidence with the publication of "Oregon's Death with Dignity Act: The First Year's Experience," yet the evidence is inconclusive thus far, with reports on fewer than twenty cases. For further discussion of the first year of Oregon's Death with Dignity Act, see K. Foley and H. Hendin, "The Oregon Report: Don't Ask, Don't Tell," Hastings Center Report 29, no. 3 (1999): 37-42. Foley and Hendin argue that there is not yet enough data to draw any firm conclusions.
48. E.J. Emmanuel, "The Future of Euthanasia and Physician-Assisted Suicide: Beyond Rights Talk to Informed Public Policy," Minnesota Law Review 82 (April 1998): pp. 1011-12.