By Martin Levin mlevinlevinlaw.com
On Sunday, June 21, 1992, Jennifer Cowart, age thirty-two, and her brother George Kowalski, age twenty-eight, traveled to Pensacola Beach, Florida, for a day of relaxation. At the end of the day, Jennifer and George were heading back to their vehicle when Jennifer noticed a go-kart track.
The two entered the track, bought tickets, and began riding. Within one minute, Jennifer’s go-kart bumped into one of the side guardrails, flipped on its side, and burst into flames. Jennifer was seat-belted in the go-kart and could not get out. George tried to run into the fire to save his sister, but the flames were too intense. Bystanders attempted to use a fire extinguisher, but it did little to lessen the inferno. Jennifer was trapped in the burning go-kart for two minutes when her seat-belt finally burned through and she fell to the ground. George grabbed his sister and pulled her away from the fire.
Jennifer was alive. She was lying on the asphalt alert, oriented, and coherent. She had suffered 3rd and 4th degree burns covering ninety-five percent of her body. She was suffering the worst pain imaginable. At the scene, Jennifer begged the rescue personnel to “let me die.” Instead, Jennifer was flown to a burn center in Mobile, Alabama, where she remained for one year until she was overcome by an infection and died.
Medical personnel described Jennifer as suffering from the most agonizing physical pain they had ever witnessed. They said there was no way to effectively alleviate Jennifer’s pain without permanently sedating her, which would have resulted in death. Thus, this was not done. Jennifer was so badly burned that her two children (age nine and five) were not permitted to see her for the entire one-year period she was hospitalized.
Jennifer was aware that she had lost her ears, nose, fingers, toes, and that she had very limited use of her legs and arms. She knew she would forever have problems with her kidneys, liver, lungs, and all other body organs. She knew that she was so badly disfigured that if she ever got out of the hospital and went to any public place that people would be frightened of her.
I had been practicing law for three years when Jennifer’s brother entered my office and told me the facts surrounding his sister’s horror. He wanted me to sue the manufacturer of the go-kart for designing a defective product. I told him I first wished to visit Jennifer. I drove to Mobile, a fifty-mile drive from my hometown of Pensacola, Florida. I entered the intensive care unit and spoke with Jennifer, who could barely utter a whisper. The sight was worse than I could have ever imagined.
Driving back to Pensacola, I became overwhelmed by the emotion of the experience. I could not stop asking the question: “who gave the medical profession the authority to keep Jennifer alive under these conditions?” She had been begging to die, and her chance of survival was less than ten percent. Yet, the medical providers made the decision to perform heroic efforts to save her. I thought their decision was arrogant and selfish. At the time, I thought the doctors were not interested in saving Jennifer, but were interested in being the first in the country to save a person with such serious burns. I thought Jennifer and her family would needlessly suffer for the remainder of her life.
I am no longer a practicing attorney. In my thirteen years of practicing law, I represented more than one hundred individuals who had suffered from extremely severe physical injuries. I have witnessed the toll that unrelenting physical pain causes to the severely injured and their family. I am presently a student at Harvard Divinity School, and I have been asked to address the issue of whether a competent adult experiencing a terminal condition should have the right to seek a physician’s assistance to commit suicide.
When I first began writing this paper, I vehemently believed that a person should have the right to physician-assisted suicide. I believed that a competent adult suffering from an incurable and painful condition should have the right to obtain a lethal dose of a drug in order to peacefully end his or her life. My opinion was based upon my years of witnessing extreme human suffering. My research for this paper has changed my opinion.
The structure of this paper will proceed as follows: (i) what is physician-assisted suicide; (ii) the legal arguments for and against physician-assisted suicide; (iii) the present state of the law on physician-assisted suicide; (iv) the morality of physician-assisted suicide; and (v) concluding remarks.
I. WHAT IS PHYSICIAN-ASSISTED SUICIDE?
Physician-assisted suicide is the act of a physician prescribing a drug to a patient which drug the patient is able to take on his or her own without the assistance of a medical provider or another person. This drug generally results in unconsciousness within five minutes and death within thirty minutes. Physician-assisted suicide became legal in the state of Oregon on October 27, 1997. From the date of legalization through December 31, 2000, there have been seventy reported cases of people utilizing the law to end their lives.
Oregon is presently the only state in the country to legalize physician-assisted suicide. Since 1992, proposed legislation authorizing physician-assisted suicide has failed in Alaska, Arizona, Colorado, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, Rhode Island, Vermont, and Washington.
Physician-assisted suicide is distinguished from euthanasia. Euthanasia is the act of putting to death a person suffering from an incurable condition. Voluntary active euthanasia occurs when a medical provider or some other person administers a lethal dose of a drug to a patient upon the patient’s specific request. Involuntary euthanasia occurs when a medical provider or some other person administers a lethal dose of a drug to a patient without the patient’s specific request.
II. LEGAL ARGUMENTS FOR AND AGAINST PHYSICIAN-ASSISTED SUICIDE
In January of 1994, in the case of Compassion in Dying v. State of Washington, three terminally ill patients, four physicians, and the nonprofit organization Compassion in Dying brought suit against the state of Washington seeking a declaratory judgment that the Washington law banning a physician from aiding a terminally ill patient to commit suicide violated the federal Constitution. A federal district judge concluded the Washington state statute was unconstitutional, and that a person in this condition should have the right to assisted suicide. A three judge panel of the Ninth Circuit disagreed, finding the state statute constitutional. Thereafter, an eleven judge panel of the Ninth Circuit reviewed the case en banc, and concluded that the Washington law was unconstitutional in violation of the Fourteenth Amendment Due Process Clause, which Amendment provides that: “[n]o state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.” The panel held that a terminally ill person has a constitutionally protected liberty interest in hastening what might otherwise be a protracted, undignified, and extremely painful death. This liberty interest permits physician-assisted suicide.
The United States Supreme Court granted certiorari review, and in a unanimous opinion, reversed the Ninth Circuit en banc decision, concluding that a person does not have a constitutional right to physician-assisted suicide, and thus, the Washington state law forbidding this act is constitutional.
(a) Liberty Interest in Determining Death
The Ninth Circuit and the United States Supreme Court began their legal analysis by addressing the issue of whether an individual has a due process liberty interest in determining the time and manner of death. The Ninth Circuit en banc panel, with a decision written by Circuit Judge Reinhardt, concluded that such a constitutionally protected liberty interest does exist. Judge Reinhardt stated:
The decision how and when to die is one of ‘the most intimate and personal choices a person may make in a lifetime,’ a choice ‘central to personal dignity and autonomy’. A competent terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent. How a person dies not only determines the nature of the final period of his existence, but in many cases the enduring memories held by those who love him.
Relying on legal precedence, the Ninth Circuit cited the United States Supreme Court ruling in Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2841 (1990), where the Court stated that individuals have a right to refuse artificial, medical provisions of life-sustaining food, water, and respiration. The Ninth Circuit also cited the Supreme Court decision in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), where the Court stated that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Additionally, the Ninth Circuit cited Justice Brandeis’ dissenting opinion in Olmstead v. United States, 48 S.Ct. 564 (1928), where Justice Brandeis stated: “[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feeling and of his intellect. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men.”
The United States Supreme Court, in an opinion written by Chief Justice Rehnquist, concluded that individuals do not have a fundamental liberty interest to seek a physician’s assistance in committing suicide. In support of its position, the Court referenced the “consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To [recognize a fundamental right to physician-assisted suicide], we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state.”
Although the United States Supreme Court and the Ninth Circuit differed in their opinion as to whether physician-assisted suicide constitutes a fundamental liberty interest, both courts agreed that they needed to address the state of Washington’s interest in prohibiting physician-assisted suicide. In addressing this interest, both courts acknowledged that a state has an interest in: (i) preserving life in general; (ii) preventing deaths that occur as a result of errors in medical or legal judgment; (iii) preventing exercise of undue, arbitrary, and/or unfair influences over an individual’s decision to end his/her life; (iv) safeguarding interests of innocent third parties such as minor children and other family members; (v) assuring the integrity of the medical profession; and (vi) avoiding the adverse consequences that might ensue if physician-assisted suicide were declared a fundamental right.
(b) Preservation of Life/Preventing Suicide
In addressing the issue of preservation of life, the Ninth Circuit stated that a state’s interest in preserving life is dramatically diminished when an individual’s condition is terminal and without cure. “When patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the state’s interest in forcing them to remain alive is clearly less compelling.”
The Supreme Court emphasized that a state has an unqualified interest in the preservation of human life. A state’s prohibition on assisted suicide, like all homicide laws, advances this interest. The Supreme Court concluded that the state of Washington had the right to decline to make judgments about the quality of life that a particular individual may enjoy, and the state could certainly conclude that all persons’ lives, from beginning to end, regardless of physical or mental condition, deserve full protection of the law.
(c) Mistakes and Errors
The second issue the Ninth Circuit and Supreme Court addressed was the concern with potential mistakes and errors if physician-assisted suicide were legalized. In regard to this issue, the Ninth Circuit believed that the determination whether a person is “terminally ill” and “mentally competent” could be controlled by sufficient safeguards developed by the state and medical profession to ensure that the possibility of errors and abuse would be remote. The court commented that a state might require: reasonable waiting periods to prevent rash decisions; multiple medical opinions to confirm a patient’s terminal status and that the patient has been receiving proper treatment; psychological examinations to ensure that the patient is not suffering momentary or treatable depression; witnesses to ensure a patient is making a voluntary decision; and reporting procedures that would aid in the avoidance of abuse.
The Supreme Court emphasized the likelihood that physician-assisted suicide for terminally ill, competent adults would quickly expand to involuntary euthanasia. A detailed discussion of this issue is presented below under the heading “Pandora’s Box”.
(d) Undue Influence
The third issue the courts addressed was undue influence, especially in regard to minorities, the poor, and the disabled. In addressing this concern, the Ninth Circuit concluded that this fear is unfounded, and stated that these same fears were addressed in the abortion debate, which fears did not materialize. The court also noted that organizations representing minorities and the disabled are sufficiently active to prevent such an outcome.
The Supreme Court cited the New York State Task Force on Life (a commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen), which commission warned that “[l]egalizing physician-assisted suicide would pose profound risks to many individuals who are ill and vulnerable”, especially those lacking money, and good medical care. The Court stated that if physician-assisted suicide were permitted, many persons might resort to it to spare their family the substantial financial burden of end-of-life healthcare costs.
(e) Interest of Innocent Third Parties
In addressing the concern that the state has an interest in safeguarding the interests of innocent third parties who are dependent on the person who wishes to commit suicide, the Ninth Circuit concluded that the state interest is almost negligible when the patient is terminally ill and death is imminent and inevitable. The Ninth Circuit believed that suicide may even ease the family anguish as the family will not be forced to endure the agonizing death of a loved one. Additionally, the family will not be faced with the decision of whether to personally assist a loved one to end her life.
The Supreme Court’s analysis of this issue was discussed above under the heading “Undue Influence”.
(f) Integrity of Medical Profession
In addressing the issue of the integrity of the medical profession, the Ninth Circuit acknowledged a concern with having the physician in the role of killer, as opposed to healer. However, the Ninth Circuit noted that individuals have the right to withhold medical care, to discontinue life-sustaining efforts (e.g., respiration, nutrition, and hydration), and to receive powerful medication that can cause sedation. The Ninth Circuit noted that virtually every state authorizes a person to establish a “living will” that documents his/her specific desire regarding future life-sustaining efforts. The Ninth Circuit stated that permitting a physician to “pull the plug” or to allow a person to starve to death is no different than providing a person death-inducing medication, and in fact, is less humane. Physicians routinely and openly provide medication to terminally ill patients with the knowledge that it will have a “double effect”—reduce the patient’s pain and hasten death. Such medical treatment is accepted by the medical profession as meeting its highest ethical standards. “It is ethically acceptable for a physician to gradually increase the appropriate medication for a patient, realizing that the medication may depress respiration and cause death.” Similarly, a doctor is permitted to cease respiration, nutrition, and hydration to an individual who is not even terminally ill, such as a person in a permanent vegetative state. For the Ninth Circuit, extending a choice to doctors as well as to patients helps protect the integrity of the medical profession without compromising the rights or principles of individual doctors and without sacrificing the welfare of their patients.
The United States Supreme Court cited the American Medical Association’s conclusion that “[p]hysician-assisted suicide is fundamentally incompatible with the physician’s role as healer.” Similarly, the New York State Task Force on Life unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable.” The Court concluded that physician-assisted suicide could undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming.
(g) Pandora’s Box
Lastly, the Ninth Circuit and the Supreme Court addressed the issue as to whether permitting physician-assisted suicide to terminally ill, competent adults would open the “Pandora’s Box” and create a “slippery slope” that would eventually lead to euthanasia. In response to this issue, the Ninth Circuit again referenced the abortion debate and the fact that opponents of abortion argued that legalized abortion would result in racial genocide, which did not occur.
The Supreme Court expressed a serious concern that allowing assisted suicide could start a path to voluntary and perhaps even involuntary euthanasia. Citing Justice Cardoza, the Court stated that there is a “tendency of a principle to expand itself to the limit of its logic.” The Supreme Court asked what would happen in the situation in which a patient was not able to self-administer the death-inducing drugs? Would a physician and/or a family member provide the death-inducing medication? Justice Souter stated: “[w]hether acting from compassion or under some other influence, a physician who would provide a drug for a patient to administer might well go the further step of administering the drug himself; so the barrier between assisted suicide and euthanasia could become porous, and the line between voluntary and involuntary euthanasia as well.”
(h) Balancing of Interests
In its final analysis of the issue, the Ninth Circuit noted that when the Fourteenth Amendment was enacted on July 9, 1868, Americans died from a slew of illnesses and infirmities that killed people quickly, but today are almost never fatal; such as, scarlet fever, cholera, measles, diarrhea, influenza, pneumonia, and gastritis. Other diseases can now be controlled for years, if not decades; such as, diabetes, muscular dystrophy, Parkinson’s disease, cardiovascular disease, and certain types of cancer. As a result of medical technology, Americans are living longer, and when individuals finally succumb to an illness, they linger longer and often in great pain. The Ninth Circuit concluded that the benefits of guaranteeing a terminally ill, competent adult the ultimate decision in the manner and timing of his death outweigh the potential harm. For the Ninth Circuit, an individual should have a constitutional right to physician-assisted suicide.
The Supreme Court concluded that: “[w]e need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code. § 9A.26.060(a) (1994) does not violate the Fourteenth Amendment.”
III. Present Status of the Law
The United States Supreme Court opinion in State of Washington v. Glucksberg is the present state of the law in America. In Glucksberg the Supreme Court concluded that an individual does not have a constitutional right to physician-assisted suicide, and that a state government does have the right to ban physician-assisted suicide. The Supreme Court, however, did not address the issue whether a state could permit physician-assisted suicide. In fact, the Supreme Court itself stated:
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.
Consequently, an issue remains whether it is constitutional for a state to pass legislation authorizing physician-assisted suicide. Within the next few years this issue will likely be addressed by the Supreme Court as a result of legal conflicts presently occurring in the state of Oregon, as discussed in detail below.
On November 8, 1994, Oregon became the first, and only, state to approve physician-assisted suicide. In a narrow margin of victory (fifty-one percent), the Oregon voters approved “Measure 16” of the Oregon Death with Dignity Act. Measure 16 has been codified in Oregon Statutes §§ 127.800, et. seq.. This legislation provides that an Oregon resident who is eighteen years of age or older is permitted to request medication to end his life if: (i) such request is voluntary and informed; (ii) the person is capable of making and communicating health care decisions; and (iii) the person’s attending physician and a consulting physician have determined the person to be suffering from a terminal disease that will result in death within six months.
Measure 16 was scheduled to take effect on December 8, 1994, but the law was challenged and held unconstitutional. In Lee v. State of Oregon, 891 F.Supp. 1429 (Ore. 1995), a federal district judge declared the law in violation of the Fourteenth Amendment Equal Protection Clause. Specifically, the federal court concluded that Measure 16 violated equal protection because it provided insufficient safeguards to prevent an incompetent, terminally‑ill adult from committing suicide. This decision was reversed by the Ninth Circuit Court of Appeal in Lee v. State of Oregon, 107 F.3d 1382 (9th Cir. 1997), on the grounds that the plaintiffs did not have standing to challenge the legislation. The United States Supreme Court refused to review the Ninth Circuit’s decision, and Oregon’s law became effective on October 27, 1997. On November 4, 1997, an attempt to repeal the law failed. The law remains in effect today.
From October 27, 1997, through December 31, 2000, there have been seventy reported cases of people utilizing the law to end their lives. On November 9, 2001, however, Attorney General John Ashcroft issued an order declaring that the administering of federally controlled substances to assist suicide violates the Controlled Substances Act, and thus, is illegal. According to Attorney General Ashcroft, any physician prescribing such medication will be subject to having his license suspended or revoked pursuant to 21 U.S.C. § 824(a)(4).
On November 20, 2001, based on a lawsuit filed by Oregon Attorney General Hardy Myers, United States District Judge Robert E. Jones issued an order temporarily preventing the United States government from revoking or suspending licenses of doctors who prescribe lethal drugs under Oregon’s law. Judge Jones has set a five-month schedule in which to obtain briefings and hold hearings on the issue.
Thus, the stage is set for an immense legal battle on the issue of whether a state has the right to legalize and implement physician-assisted suicide. This issue will likely make its way to the Supreme Court. At that time, the Supreme Court: (i) can refuse to hear the case; (ii) can accept the case but avoid addressing the legality of physician-assisted suicide by ruling that a federal agency has the right to prevent the implementation of it through the Controlled Substances Act; or (iii) can accept the case and specifically address the issue of whether physician-assisted suicide will be legally permitted in this country if authorized by a state government.
It would certainly save this country a tremendous amount of legal, medical, political, theological, philosophical, and academic time and expense if the Supreme Court were to accept this case, and issue a final ruling as to whether physician-assisted suicide will be permitted in this country if a state approves the same. Of course, in order to reach a final decision that physician-assisted suicide can be legal upon state approval, the Supreme Court would also need to address the issue as to whether the United States Congress can preempt a state’s approval by issuing national legislation forbidding assisted suicide.
When the Supreme Court once again addresses physician-assisted suicide, the Court should go beyond precedence and an historical analysis, and delve into the moral aspects of this most important issue.
IV. MORALITY OF PHYSICIAN-ASSISTED SUICIDE
When discussing the morality of physician-assisted suicide, the following issues are generally addressed: (i) a person’s autonomy to decide the timing and manner of his/her death; (ii) the affect assisted suicide has on persons participating in the act; (iii) the right to die with dignity; (iv) the reason terminally ill patients commit suicide; (v) the utilitarian (cost/benefit) analysis of assisted suicide; (vi) public support or lack thereof for assisted suicide; (vii) the potential cost savings from assisted suicide; (viii) preventing the depletion of family assets; (ix) the sanctity of human life; (x) potential errors in diagnosis and prognosis; (xi) undue influence over patients; (xii) slippery slope; and (xiii) how one person’s life impacts others.
I will address each of these criteria below, providing my position and the position of advocates and opponents of physician-assisted suicide.
(a) Autonomy to Decide Timing and Manner of One’s Death
Affect Assisted Suicide will have on Persons Participating in the Suicide
The main argument asserted in favor of assisted suicide is that every competent person should have decision-making authority over his or her life. Every person should have the autonomy to decide the timing and manner of his death. Experiencing quality of life, avoiding severe pain and suffering, maintaining dignity, having a sense of control, and having others remember us as we wish to be remembered should be a fundamental liberty interest. Proponents of assisted suicide argue that this right to autonomy, especially at the end of life, is superior to any claim that life must be preserved. Moreover, the sacredness of life is dramatically diminished when an individual’s condition is terminal and death is imminent.
I do not dispute that the concept of a person’s autonomy over the timing and manner of his or her death is noteworthy and admirable. However, as discussed in detail later in this paper, I believe it would be very difficult for an elderly person suffering from a terminal illness with less than six months to live, suffering severe pain, facing loss of independence, experiencing potential family pressure, and a deterioration in physical and mental health to make an independent, autonomous decision. Thus, the argument that individuals in this situation should have the fundamental right to control the timing and manner of their death ignores the fact that it is highly unlikely that individuals faced with such adversity could make an independent decision under the circumstances.
Moreover, I believe there must be limits on our autonomy when our decisions affect others. In my opinion, it is not possible for physician-assisted suicide to be legalized without affecting the lives of many people, and especially those assisting in the suicides and their families. For example, if we legalize assisted suicide, we are sanctioning suicide as a legitimate and rational response to certain events. We are saying that competent, rational people can find life so miserable that death is preferred. In effect, we demean the significance of life as nothing more than a pleasure versus pain calculation. It is simply a utilitarian calculation, and a calculation approved of by the government, physicians, and families whom participate. As a consequence, people will begin to accept suicide as a natural option, as opposed to an unnatural act. It will become easier for medical providers and victims to accept the taking of life without a feeling of guilt. Physicians and other participants in assisted suicide will eventually become callous to the taking of human life, and possibly even find it comforting that they were able to provide relief to an ailing person. This will lead to more acts of assisted suicide, and an expansion of the situations in which physicians are willing to perform the act.
Incredibly, some proponents of assisted-suicide acknowledge this, and even promote this repercussion to advocate assisted suicide. “If mercy killing does leave a psychological mark on the agent, it is only because he has been conditioned to feel guilty for any act of killing. Were we to decide that voluntary euthanasia is moral, and therefore should be permitted, we would change our thinking on this matter. People would no longer be schooled to associate fear or guilt with a voluntary death.”
As Arthur J. Dyck, professor Harvard Divinity School, notes:
When physicians assist in a suicide or engage in euthanasia, they introduce into the physician/patient relation a lethal agent. Employing an agent known to be lethal relates the physician to the patient in one of the ways that someone who commits a premeditated murder relates to the one who is killed, namely, as one who fatally injures them with lethal means. The restraint against using means incompatible with the life of another human being has to be overcome. This directly undermines the usual inhibitions against killing that generally govern the human relations.
Even though it would be nice for a person to have the autonomy to determine the timing and manner of his or her death, this determination must be considered in light of the effect it could have on others. Medical providers assisting in the suicides will, over time, become immune to their natural prohibitions to ending another person’s life. This will certainly have an impact over the way these physicians, and those closest to them, view the importance of the preservation of life and how they treat other people, especially when faced with their own hardships and adversities. Also, as noted above, I do not believe that a terminally ill patient with less than six months to live and experiencing severe physical and mental deterioration can make an autonomous decision. For these reasons, I do not believe that the concept of autonomy results in the legalization of physician-assisted suicide.
(b) Death with Dignity
The Reason Terminally Ill Patients Commit Suicide
The second main argument for the legalization of assisted suicide is that people should be permitted to die with dignity. A person’s last months of life should not be consumed suffering from severe physical pain; dependent upon others for nutrition, hydration, and bodily hygiene; with physical and mental deterioration; and experiencing declining vision, hearing, and mobility. Family members, relatives, and friends should not have to witness the deterioration and suffering of a loved one. Our last impressions of a loved one should be filled with joy and respect.
Clearly the above argument is legitimate and rational. There are several significant flaws with the argument, however. First, the argument fails to address the issues of the sanctity of human life, and the various negative repercussions arising out of the legalization of assisted suicide, both of which will be discussed in detail later in this paper. Second, the argument that individuals wish to commit suicide because they are suffering from severe physical pain is not supported by the research and studies.
Studies show that depression and hopelessness, rather than pain, are the primary factors motivating patients’ who wish to die. Many terminally ill patients fear that as their condition progresses they will lose physical function, mental function, and independence. They will lose their sense of autonomy and their ability to enjoy life. They fear being a burden to family, relatives, and friends. They do not wish for those closest to them to witness their physical and mental deterioration, and they do not wish to inconvenience them. They want the last memories of them to be fond memories. It is this sequence of thoughts that causes terminally ill patients to become depressed and experience a sense of hopelessness. It is these feelings that cause terminally ill patients to want a quick death. In fact, there is no significant association between the desire for a hastened death and the presence of pain or pain intensity.
Research shows that terminally ill patients suffering from depression are four times more likely to desire death than terminally ill patients not suffering from depression. Approximately twenty-five percent of terminally ill patients suffering from either depression or hopelessness have a high desire for a quick death. Sixty-seven percent of the terminally ill patients suffering from both depression and hopelessness have a high desire for a quick death. Because a patient’s desire to commit suicide is generally based on depression and hopelessness, the desire is often temporary. About fifty to sixty-seven percent of terminally ill patients interested in euthanasia or assisted suicide change their mind. This is especially true when a patient’s depression and sense of hopelessness is treated.
Thus, the real issue to be addressed is whether terminally ill patients should have the right to physician-assisted suicide when their desire for a hastened death is based on depression and hopelessness. For example, a terminally ill patient may desire assisted suicide because he fears that loved ones will have an unfavorable memory of him upon witnessing his deterioration. This may be a logical thought, as it is certainly true that some people who witness the deterioration and suffering of a loved one will be disturbed and troubled by the vision, and such vision could result in a negative memory of the loved one and also could cause psychological repercussions. On the other hand, some people will be extremely disturbed by the thought that a family member, relative, or friend committed suicide. They will be haunted by the thought that they did not do enough to provide palliative care, compassion, understanding, and persuasion. Some people will find it extremely comforting to know they supported a loved one no matter how tough the situation became. There is no clear answer to this issue. Therefore, we should err on the side of life, and not make the process of dying as simple as a person taking a pill which results in a painless death within thirty minutes after consumption. Moreover, we must remember that the question being addressed in this paper is whether physician-assisted suicide should be legalized, not whether a person has the right to withhold or withdraw life-sustaining procedures. If a patient does wish to die, after appropriate counseling and treatment, the patient has the legal right to have withdrawn or withheld life sustaining procedures (such as nutrition and hydration), and receive pain medication and sedatives to make the process of dying more comfortable.
Another source of depression is a terminally ill patient’s fear of being a burden to family, relatives, and friends. When a terminally ill patient desires suicide because of the burden placed on others, the patient has a perception that the burden he causes to others is greater than the value of his own life. Either the terminally ill patient’s perception is wrong (meaning the family and relatives do not consider the burden greater than death), or else the patient is right and the family and relatives prefer their loved one to commit suicide as opposed to being burdened by caring for a loved one in his or her final hours, days, weeks, or months. Admittedly, the burden is not only the time being spent with the patient, but also the mental suffering of seeing a loved one die.
If the patient has a misperception that he is a burden to his family, then it would be tragic for him to commit suicide under this misperception. If the patient is correct that his family, relatives, and friends do not wish to be burdened, do we as society really want to encourage this attitude? Do we want to encourage the concept that when family, relatives, and friends become a burden to us (when they interrupt our hectic daily schedules and/or cause us mental suffering) that we explicitly or implicitly encourage them to end their lives? If we send this message to the terminally ill, then we are sending this message to all human beings who are unable to live independently. We are saying that humans who require assistance are a burden and are undignified. More importantly, does this burden justify sanctioning physician-assisted suicide when compared to the various negative repercussions associated with this act, which will be discussed more in depth later in the paper?
Finally, and ironically, by providing terminally ill patients with the option for physician-assisted suicide, we may actually be increasing many patients’ depression. If we legalize assisted suicide, then we are providing terminally ill patients an option—continue with the dying process or receive assistance with a quick, painless death. Once a patient is provided this option, the patient may feel that he is being selfish if he does not agree to set a specific date and time to receive medication which results in a quick and painless death. As stated in a 1936 medical publication: “The patient knows that he is being a burden to his loved ones, who are certainly sharing his agony. If the agonized patient knows that he alone can cut short their mental suffering by consenting to, or perhaps suggesting euthanasia, he will find himself faced with a hideous dilemma: he must either be so selfish as to discard euthanasia and let his dear ones suffer, or, by being generous, he must bid farewell.”
I submit that it would be immoral to assist someone to die simply because they are depressed or have a sense of hopelessness. It would be tragic for a person to commit suicide with these symptoms, especially when they are in a medical institution and can be probably treated. The answer to the treatment of terminally ill patients is not to encourage or permit assisted suicide, but instead for the government to fund research addressing terminally ill patient depression, hopelessness, and social support, including funding palliative care units and consultation services. Moreover, physicians, nurses, and other healthcare providers need mandatory and standardized education and training in diagnosing and treating depression, and need to refer dying patients to hospice in the early stages of the dying process. There should also be government funding for this type of care. We in society should promote research that encourages life, not death.
(c) Utilitarian Reasoning
Another argument advanced by proponents of assisted suicide is that the benefits of assisted suicide outweigh the costs. Supporters argue that assisted suicide allows terminally ill patients to avoid needless pain and misery in their final days; allows a patient to maintain control over the timing and manner of death; and promotes death with dignity. An individual’s right to self-autonomy is honored at the end of life. The costs, on the other hand, are that some individuals may feel pressured to terminate life because of a misperception of their diagnosis or prognosis; because of depression; or because of a concern for the burden they place on others and the depletion of assets. Likewise, some individuals may be pressured to end life by selfish family members or caregivers. When weighing these consequences, proponents for assisted suicide argue that the benefits outweigh the costs, and that detailed legislation, education, and monitoring can help eliminate many of the potential negative repercussions. Additionally, advocates argue that the negative repercussions are speculative, whereas the positive repercussions are clear. Supporters contend that we should not penalize deserving terminally ill patients simply because we can imagine possible horrors. Proponents state that the burden should be on the opponents of assisted suicide to prove the costs outweigh the benefits.
This type of cost/benefit analysis is often referred to as a utilitarian calculation, and is credited to Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873). Per this philosophical model, morality is determined by a calculation of pleasure (good) versus pain (evil). An act is moral when compared to the alternatives it produces the most good and the least evil for the most people, with each person being treated equally in the calculation. The goal is to bring the greatest happiness for the greatest number of people, with the calculation being performed by an impartial government. Rights are created or abolished depending upon a utilitarian formula. Rights are not natural and self-evident.
As argued later in this paper, I believe it is inappropriate to engage in a purely utilitarian analysis when addressing the issue of suicide. I believe that life is sacred, and should never be judged by a calculation of pleasure versus pain. However, even pursuant to this type analysis, it is unclear whether assisted suicide should be legalized. One must remember utilitarianism is not an analysis of one individual’s pleasure versus pain. It is an analysis regarding the greatest pleasure for the greatest number of people. Thus, the issue is whether assisted suicide is better for society as a whole, not whether it is beneficial for a specific individual.
Proponents of assisted suicide argue that assisted suicide is best for society as a whole because it promotes autonomy and self-determination. In support of this statement some advocates reference public opinion polls that suggest the majority of people support the legalization of assisted suicide. However, a close analysis of the polling, and the results of elections on this issue, do not support the contention that the public favors physician-assisted suicide.
Public opinion polls regarding assisted suicide and euthanasia have been performed in this country since 1937. The number of persons surveyed, and the questions asked, have varied, but the results are somewhat consistent. If the public is asked the following question, or a similar question, then the public generally supports assisted suicide: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should be allowed by law to assist the patient to commit suicide if the patient requests it?” On the other hand, if the public is polled as to whether it “favors or opposes physician assisted suicide”, the majority of people generally oppose it.
What appears to be consistent based on this polling is that the reference to a person suffering “severe pain” and/or a condition being “incurable” is important to the public before it is willing to approve assisted suicide. In fact, in a survey conducted of 988 terminally ill patients, sixty-eight percent of these patients did not approve of euthanasia unless a person was suffering from unremitting pain.
Moreover, when the public has voted on assisted suicide, and has had time to reflect upon the issues and consequences, the public has virtually always rejected it. On November 7, 2000, initiatives attempting to legalize assisted suicide failed in Maine by the margin of 51.5 percent to 48.5 percent. On November 3, 1998, Michigan Proposal B, a bill to legalize physician-assisted suicide, failed by a margin of 71-29 percent. In 1992, California Proposition 161, a measure that would have legalized voluntary active euthanasia and assisted suicide, was voted down by the margin of 54-46 percent. On November 5, 1991, Washington Initiative 119, a measure designed to assist a patient’s suicide and to engage in active voluntary euthanasia, was defeated by the same margin of 54-46 percent. The only assisted suicide initiative that has passed to date occurred in Oregon on November 8, 1994, when Measure 16 passed by a margin of 51-49 percent.
Based on the foregoing, it is incorrect for proponents of physician-assisted suicide to contend that the American public supports it. Additionally, when utilizing a utilitarian calculation, a person must consider and analyze the “costs”. In regard to the legalization of assisted suicide, there is really no way to know the overall consequences. Determining the ultimate consequences of assisted suicide requires eternal knowledge. If we do not experience any perceived negative repercussions one year from the date of legalization, then how do we know that there will not be negative repercussions five years, ten years, or twenty years from now? There is simply no way for us to know the long-term consequences of legalizing assisted suicide. Our opinion is, and always will be, speculative. For example, what are the consequences of a doctor taking a human life? How does this affect the doctor personally? Does the doctor become callous to the concept of life and death such that it becomes easier, and less emotionally challenging, to take a human life? How does this affect the doctor’s relationship with her patients? Will patients continue to see physicians as an advocate for life? How will it affect the physician’s relationship with her family, and the family’s relationship with their families? Does the legalization of assisted suicide send the message that suicide is acceptable and rational under certain circumstances, and thus, lead to an increase in suicide among persons of all age groups? Does assisted suicide expand to voluntary euthanasia? Does it expand to involuntary euthanasia? Does it expand to individuals who are not terminally ill?
Admittedly one can always make an argument that the long-term consequences of an act or failure to act are unpredictable. Consequently, we can only do our best to make decisions based on the knowledge and input we are able to acquire. I accept this as a legitimate argument. However, when we are dealing with an issue of life and death, we must be conservative and err on the side of life. The potential negative consequences are simply too great to justify the benefit that a few people may obtain. It must be remembered that it is estimated that less than three percent of the individuals who die each year will die from assisted suicide if it were nationally legalized. Stated differently, if assisted suicide were legalized nationally, it is estimated that only .027 percent of Americans each year would die by this procedure, which means more than 99.97 percent of Americans each year will continue to receive usual health care. The potential benefit to such few people, in light of the potentially grave consequences, cannot justify the legalization of assisted suicide even pursuant to a utilitarian analysis.
(d) Cost Savings to America
Prevent Financial Depletion of Assets
Some proponents of euthanasia and assisted suicide reference the potential financial savings if euthanasia and assisted suicide were legalized, and additionally reference that assisted suicide will lessen the depletion of family assets. Advocates of this position argue that there are approximately 2.4 million people who die in the United States each year, with the second leading cause of death being cancer. More than seventy percent of the individuals who seek euthanasia or assisted suicide are cancer patients. Based on an extrapolation of figures derived from the Dutch experience with euthanasia and assisted suicide, it is estimated that America could save approximately $627 million dollars in medical expenditures a year (or approximately $10,000 per assisted suicide victim) if assisted suicide were nationally legalized.
What is absolutely incredible to me is that someone would honestly argue that we should consider the cost savings to America by killing, or assisting in the suicide, of human beings. It seems almost unfathomable. However, even if we were to consider these figures, the savings only total approximately $10,000 per assisted suicide victim. The total savings of approximately $627 million is less than one percent of the total United States health care expenditures. The reason this figure is so low is because an extremely small percentage of Americans receiving health care would qualify for physician-assisted suicide. We are not talking about the withholding or withdrawing of life-sustaining procedures. This is already legal, and widely utilized. We are talking about allowing a competent adult suffering from an incurable illness with less than six months of life to seek the assistance of a physician in actively ending the patient’s life. This number makes up less than 1/3 of 1% of Americans each year, and those who do qualify, and who choose to die by assisted suicide, generally end their lives approximately three weeks before their natural death would have occurred.
In regard to depletion of family assets, more than seventy percent of the individuals who would qualify for assisted suicide are covered by Medicare, Medicaid, and/or private health insurance. In fact, sixty-seven percent of the terminally ill patients who request assisted suicide are sixty-five years of age or older and are covered by Medicare. At the present time there are more than thirty-three million Americans sixty-five years of age or older. This number will certainly increase in the future in light of the fact that life expectancies continue to rise. Thus, the legalization of assisted suicide will not have a significant impact on individual family savings.
I submit that no one can legitimately argue that a national healthcare savings of less than one percent can justify the hastening of death. This is especially true when the savings per assisted suicide victim is approximately $10,000, with much of this expense being covered by private health insurance, Medicare, and/or Medicaid. While it is improper to analyze the legalization of physician-suicide from a dollar cost savings, even this analysis leads to the conclusion that assisted suicide should not be legalized.
(e) Sanctity of Human Life
One of the main arguments opposing physician-assisted suicide is the sanctity of human life. This argument is that each person’s body is created in the image of God. It is the property of God, and no one has the right to destroy God’s property. God is the creator of life, and thus, only God has the right to take it. Suicide is a violation of God’s sacred trust of life. It is a rejection of God’s sovereignty. Life should not be terminated or shortened out of considerations for a patient’s convenience or usefulness, or even out of sympathy for a patient’s suffering. No human life is more or less sacred than any other. Individual autonomy is secondary to the sanctity of human life.
Based on the foregoing belief, physician-assisted suicide is opposed by many religions and churches, such as: Anglican Orthodox Church, Assemblies of God International Fellowship, Church of God in Christ (Mennonite), Episcopal Church, Evangelical Lutheran Church in America, Greek Orthodox Church, International Pentecostal Church of Christ, Jehovah’s Witness, Judaism, Mennonite Church (General Conference), Mormon Church of Latter-day Saints, National Baptist Convention of America, Presbyterian Church in America, Primitive Methodist Church in the United States, Roman Catholic Church , and Southern Methodist Church. Some of these religions do recognize a persons right to withhold or withdraw life-sustaining procedures, as this allows life to follow its natural course as opposed to the active ingesting of a drug, the purpose of which is to immediately bring life to an end.
Even if one does not accept the theological belief regarding the sanctity of human life, I suggest that we all should recognize the concept that something has to be sacred in human existence. Something has to exist in which there is no analysis performed as to the benefits, costs, and perceived consequences. The taking of one’s life as a result of physical and mental suffering is a statement that life is only sacred when the benefits outweigh the costs. It is a statement that life is purely about one’s level of enjoyment, and that life has no deeper meaning than the search for the greatest physical and mental pleasure. It is a statement that hardship, pain, suffering, and discontent have no purpose. It is a statement that God either does not exist or that God is indifferent to human suffering.
I choose to believe that there is a higher meaning to our existence than simply the seeking of pleasure. Hardship, pain, suffering, and discontent are possibly meant to test our compassion and faith. Only through sincere compassion and faith will we be able to live in a community where the concern for others is as important as the love of oneself. Self-love is not necessarily a bad thing because it does provide us insight into caring for others. However, self-absorption to the point where life is judged by a benefit/cost analysis is tragic. It is not a community, but a group of self-centered individuals who merely choose to live among one another because they perceive this to provide them the most physical security and material benefits.
Death is a time for us to reflect upon our life, and impartially analyze the mistakes we have made. It is a time to speak with family members we have ignored; and to express our love for people who we care about most, and especially those who may not know it. It is a time to express to others the positive impact they had on our lives. It is a time for us to attempt to correct our errors, and most important, let those we have wronged know that we are sorry. It is a time for peace. Each month, week, day, minute, and second that we take away from this dying process (especially the moments of most physical and mental torment), the less likely we will experience this need to make amends. One simple apology or expression of affection from a dying person to a family member, relative, or friend could have a life-altering impact on the survivor.
I am certainly not trying to suggest that the issue of assisted suicide is the turning point in humanity and community, but I am suggesting that we as society must determine that something is absolutely sacred. Otherwise, nothing is sacred. If nothing is sacred, then nothing has permanent importance. Without permanent importance, commitment will eventually succumb to hardship. Without commitment, the fulfillment of our most important hopes and dreams occur only by chance. I submit that if we are going to agree on one thing being sacred, it should be life.
(f) Mistakes in Diagnosis and Prognosis
Undue Influence over the Patient
Proponents of physician-assisted suicide contend that competent, terminally ill patients with less than six months to live should have the right to terminate life. Even assuming the rationality of this legislation, advocates are presuming that physicians will be able to properly diagnose a patient’s condition and prognosis; determine whether the patient is terminally ill; whether the patient has less than six months to live; whether the patient is competent; whether the patient is acting under undue influence; and whether the patient’s pain and depression can be treated.
Supporters of assisted suicide argue that doctors should reach the accurate diagnosis and prognosis ninety percent of the time. Assuming this to be true, despite a lack of evidence supporting this conclusion, why would it be better that one patient die prematurely and without cause in order for nine patients to die with “dignity”? The one person’s life saved could be a person who has an extremely positive affect on others, and possibly even a community, state, region, country, or world. We simply never know for sure the impact one person may have on others. On the other hand, the nine people who die by assisted suicide would, on average, have died within three weeks, and could have been adequately treated by pain medication and counseling, and if necessary, total sedation.
If a person’s suffering is truly unbearable (even after the administering of pain medication and psychological and family counseling), does the person not have the option to cease accepting nutrition and hydration? Admittedly, death through this means (even with pain medication) may be somewhat unpleasant and undignified, but the person does have the option to do this if the situation is truly unbearable. If a person is not willing to die in this manner, then the person generally must find the thought of unassisted suicide to be more unbearable than continuing to live in his/her present physical and mental condition. If a person’s condition is such that he/she finds unassisted suicide to be more unpleasant than continuing to survive, do we as society want to approve assisting him/her to commit suicide?
Additionally, one of the most troubling aspects of assisted suicide is the physician’s subjective interpretation of the facts. In all proposed legislation to legalize assisted suicide, a physician must determine that a terminally ill patient is competent. Stated differently, the physician must find the terminally ill patient’s request to die to be rational under the circumstances. Such an analysis will always be in large part a subjective determination. When determining whether a person’s decision to hasten death is rational, the doctor will be making a decision whether the doctor himself would desire suicide under the same circumstances, or at least can imagine someone rationally desiring it. The physician is thus making an independent decision on the value of human life under the circumstances.
For example, a quadriplegic often requires the use of mechanical respiration in order to survive. A doctor who himself would not wish to live as a quadriplegic on mechanical respiration might determine that the patient’s wish to remove the life sustaining machine is logical, whereas a doctor who has seen quadriplegics live productive and happy lives might consider the patient’s decision ill-informed and not based upon competent facts. The determination of the competency of a terminally ill patient will always be subjective from the viewpoint of the doctor and the witnesses making the decision. If those individuals would choose death under the circumstances, or at least contemplate it, then the patient’s decision seems rational and competent. If those individuals would not possibly choose death under the circumstances, then the patient’s decision seems irrational and incompetent.
What will likely result from the legalization of physician-assisted suicide is that the vast majority of assisted suicides will be performed by a minority of doctors, and will specifically be performed by those doctors who judge the value of life from the perception that life is not worth living if a person does not have the autonomy to pursue happiness in a traditional manner. For example, doctors such as Jack Kervorkian will certainly be more willing and likely to perform multiple assisted suicides than doctors who are deeply religious.
Another concern is that the treating physician is in a position that carries an enormous influence over the patient. As stated by one scholar on the issue of physician-assisted suicide:
Physicians possess medical knowledge and experience with life and death situations, while patients and their families are made vulnerable and uncertain by illness and impending death. While most decisions are to some extent influenced by the preferences and opinions of others, a physician’s capacity to shape patient choices in euthanasia is considerable, both by selective control of information and by the initial formulation of the problem and solution presented for consent. The potential for abuse inherent in the physician-patient relationship needs to be taken into account: the opportunities for conscious or unconscious manipulation exist, even for the best-intentioned physician.”
A physician’s consent to aid a patient to commit suicide implies to the patient that the act is moral and acceptable. This affirmation of such an act by a person in power can be overwhelming for terminally ill patients, and lead them to consent to such a procedure without adequate reflection and understanding. An interesting case of this involves Timothy E. Quill, M.D. and Diane, his patient. Diane was diagnosed with leukemia. She had approximately a twenty-five percent chance of surviving if she had submitted to painful and prolonged treatment. Without treatment, she was going to die within a few months. Diane did not wish to undergo treatment. Doctor Quill, as well as Diane’s family, had reservations about Diane’s refusal to accept treatment, and they attempted to persuade her otherwise. However, Diane was determined to commit suicide in the least painful way possible. Thus, Quill prescribed her barbiturates and informed her the dosage she would need to take to commit suicide. In effect, Quill consented to her suicide and aided her suicide. He implicitly or explicitly was informing Diane and her family that Diane’s decision was moral, rational, and justifiable under the circumstances, despite the fact that she had a twenty-five percent chance of survival.
As stated by Professor Arthur Dyck, “[i]n effect, those most able to give Diane strong reasons to wish to extend her life are all encouraged to accept what is perceived to be her wish to die. One stout advocate for Diane’s life might have made a difference.” Certainly, if Dr. Quill had refused to aid Diane with a painless and expedient form of death, then Diane would have had to make the decision whether to commit suicide without assistance or whether to attempt to fight for her life. With these options, she may have chosen to fight for life, and she may be alive today to raise and care for her family.
In addition to physician influence, a patient can be unduly influenced by family members, relatives, and friends. In today’s time people are often consumed by their daily hectic lives and find any interruptions a nuisance and inconvenience, especially when the interruption involves witnessing and caring for a dying person. The longer this interruption lasts, the more perturbed and anxious people become. Many people, especially those without a close family relationship or those with a financial interest in the death, may implicitly or explicitly pressure a terminally ill person to succumb to assisted suicide. Advocacy groups for the disabled and vulnerable have expressed a significant concern with this possibility. For example, The Advocacy Center for Persons with Disabilities, Inc. is a Florida non-profit corporation organized pursuant to an Executive Order of the Governor of Florida. This group has the responsibility of carrying out the federally mandated protection and advocacy system for persons with disabilities in the state of Florida. In an amicus brief to the Florida Supreme Court, this advocacy group wrote:
To give someone, including a physician, the right to assist a person with a severe disability in killing himself or herself is discrimination based on a disability. It lessens the value of a person’s life based on health status and subjects persons with severe physical and mental disabilities to undue pressure to which they may be especially vulnerable. . . . [Individuals] with severe physical and mental disabilities, who are particularly vulnerable to being devalued as burdens of society would be at grave risk.
Additionally, the New York State Task Force on Life and the Law concluded that: “American society has never sanctioned assisted suicide or mercy killing. We believe that the practices would be profoundly dangerous for large segments of the population, especially in light of the widespread failure of American medicine to treat pain adequately or diagnose and treat depression in many cases. The risks would extend to all individuals who are ill. They would be most severe for those whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, or membership in a stigmatized social group.”
The potential errors in diagnosis and prognosis, and the potential undue influence a physician and/or family members have over a patient, are too great a risk to legalize assisted suicide.
(g) Slippery Slope
Another concern expressed by opponents of physician-assisted suicide is that the legalization of assisted suicide will lead to voluntary and involuntary euthanasia. I agree with this position.
In the Netherlands physician-assisted suicide and voluntary euthanasia have been practiced for more than twenty years. Just this year, physician-assisted suicide and voluntary euthanasia became officially legal in the Netherlands. As of 1995, approximately 3,700 persons died in the Netherlands each year by physician-assisted suicide or voluntary euthanasia, with an additional 1,000 persons dying from involuntary euthanasia, which is forbidden under the Dutch practices and laws.
In America, even though physician-assisted suicide and euthanasia are illegal, approximately eleven percent of physicians are willing to hasten a patient’s death by prescribing medication knowing the patient’s intention is to commit suicide. Approximately seven percent are willing to provide a legal injection (active euthanasia). In fact, sixteen percent of the physicians who have received a request for life ending medication have prescribed it, and fifteen percent of the cases in which oncologists have unlawfully participated in euthanasia or assisted suicide has been without the patient’s request. If this type of voluntary and involuntary euthanasia is being practiced while assisted suicide is illegal, one can only imagine the surge in these practices if physician-assisted suicide were legalized.
Physician-assisted suicide is only legal in Oregon and in the Netherlands, yet authors are already attempting to justify the expansion of this doctrine. The following are but two of the arguments presently being presented:
The contention that there is no need for active euthanasia fails to take into account the fact that passive euthanasia can sometimes be a drawn out and painful process (for others as well as the patient). While treatment is withdrawn or withheld, the patient slowly lapses into death, by dehydration, by starvation, or by pneumonia. Active euthanasia in cases such as these would mean a quick and painless death.
Suppose now a person who is not terminally ill but stricken with a progressively degenerative neural disorder comes forward and requests PAS [physician-assisted suicide]. Do we yield or not? It is not the height of iniquity to want, morally, to think about this question; for we all know that there are some lives that hold in the offing a quality of life so dismal that we would not wish that life on anyone, and some people who have such degenerative neural disorders have publicly proclaimed themselves to have such lives. Thinking about permitting such cases is a part of what it is to think morally about cases in medicine. . . . Should there come a time when hospital resources, the financial resources of the community, the time of doctors and nurses, and so forth, go into the mix of factors in the case? All kinds of issues come in this discussion, and we already in many areas of medical ethics engage in debate about the factors that should morally influence our judgments in such a case. There is no suggestion whatever that we pass from voluntary to involuntary killing in the absence of more such discussions and thoughts, but equally no suggestion that we should agree to ignore arguments having to do with the best interests of a patient.
Without a doubt if physician-assisted suicide is legalized, organizations and individuals will immediately seek the legalization of voluntary and involuntary euthanasia. The argument will be made that there is no difference between a physician providing someone a pill (physician-assisted suicide) and a physician injecting someone with medication (euthanasia). It will be argued that if we do not permit voluntary euthanasia to terminally ill patients, then we are discriminating against those persons who need it most—people who are unable to swallow a pill on their own. Additionally, supporters of euthanasia will argue that if we legalize assisted suicide for terminally ill patients who have less than six months to live, then we should also legalize it for terminally ill patients who are not yet dying; for example, individuals with Huntington’s disease, multiple sclerosis, amyotrophic lateral sclerosis (Lou Gehrig’s disease), Alzheimer’s, AIDs, or even those in the early stages of cancer. What about people who are incurable but not terminal; for example, quadriplegics, severe brain damage, or severely and permanently mentally ill? If it is humane and moral to assist the suicide of a person who has less than six months to live, then is it not even more humane to assist a person who has years of suffering remaining or has absolutely no quality of life?
There should also be a concern that the legalization of assisted suicide will reduce the pressure on the government, corporations, and medical providers to improve palliative care, and reduce education and training in the counseling and treatment of depression. Some scholars even argue that if physician-assisted suicide is legalized, then it will become the preferred method of dying because it makes it possible to control the time, place, and manner of one’s death. In fact, in the Netherlands deaths from physician-assisted suicide and voluntary euthanasia have risen from 2,700 in 1990, to 3,600 in 1995, a thirty-three percent increase in five years.
Proponents of physician-assisted suicide argue that assisted suicide should be legalized because there is no difference between withdrawing life-sustaining medical treatment and prescribing someone a pill. The result is the same, a humane and dignified death. If this is a legitimate argument, then it is just as legitimate to contend that there is no difference between prescribing someone a pill (physician-assisted suicide) and providing someone an injection (euthanasia). It is also logical that if we can prescribe medication or inject someone who is suffering from incurable pain with a life expectancy of less than six months, then we should also be able to prescribe medication and inject someone who is suffering from incurable pain and will die within one year, or five years, or ten years. The slippery slope argument as applied to physician-assisted suicide is not speculative, it is already occurring. For this reason, we should not expand one’s right to withhold and withdraw life-sustaining procedures to assisting someone with suicide.
(h) We Do Not Live in a Vacuum
We do not live life in a vacuum. We live in a community whereby our actions, and lack thereof, affect others. Sometimes the effect is positive and sometimes negative. Most often, we do not even know whether the effect will ultimately cause us to be a better or worse person.
The day I left Jennifer Cowart at the hospital and was driving back to Pensacola I thought it was unconscionable that the medical community cavalierly acted to attempt to prolong Jennifer’s life. Her chance of survival when she entered the hospital was less than ten percent. She was begging to die, and wanted to die, and no one could dispute that her condition was such that her decision to die was rational under the circumstances. I wanted to aid Jennifer in ending her life, and sparing her and her family the pain and suffering.
Over the next nine months I continued to visit Jennifer, and I noticed her desire to live change. She was terribly disfigured and was in horrendous pain, and it was clear that she would not get out of the hospital for several years, and would have to undergo an estimated one hundred more surgeries. She would always live in pain and never live even a fraction of a “normal” life. The pain was tremendous. Medication, without total sedation, could not resolve her pain. Interestingly the longer Jennifer endured her condition, the more she desired to live. She came to appreciate the fact that the doctors did not heed her words to let her die.
Every time I left Jennifer’s side, I was inspired by her will to live and her strength. I realized that my problems and concerns were trivial, and I learned to appreciate what I had. After Jennifer’s death, the family was sent numerous letters and cards from Jennifer’s medical providers. The letters expressed exactly what I had felt in Jennifer’s presence—Jennifer was an inspiration to all around her. She was more concerned with everyone else’s mundane problems, than her own incomprehensible condition. She permanently changed many peoples’ lives. The following are but a very few of the letters which were written to Jennifer by her medical providers and caregivers after her death:
Dear Jennifer: When I first met you I wondered what I was getting in to. Well, all I can say now is thank you for being part of my life. All the talks we had about life, death, family, etc. have made me aware of what I really have to live for. I’ve seen you come from being dependent on us for strength to us depending on you; you’ve shown me how to fight. I’m never going to forget you and the lessons you’ve taught me. I love you. See you in my dreams--you promised me.
Dear Jenny: You endured more than any other human being I’ve ever known. At first, I did not know why you had to endure the pain and suffering, and I often asked why? But after being with you, you made my heart smile and gave me such a beautiful feeling inside that now I know. Thank you Jennifer for the inspiration, love, and laughter you gave to more people than you’ll ever know.
Dear Jenny: A million little stars twinkling above and not all of them together shine as brightly as you. The honeysuckle blossoms growing on the vine envy your sweetness. The savage warrior of the plains withers when faced with your courage. All the birds singing in the trees cannot compare to your song. The sunburst that comes with the dawn only pales in your presence. Your essence is everywhere and in everything. I love you. You’ve changed my life forever.
Dear Jen: You’ve been gone for twelve hours and I’ve been thinking about the time we spent together and some things I want to tell you. You helped me to become a wiser person. You showed me that there is something to laugh about, and to cry about, every day, and it is up to each of us to choose. You brought the meaning of life to me. Thank you for all that you have given me. I will never forget.
What I learned from my experience with Jennifer is that the value of each and every life is incalculable, and we are all impacted and affected by others—sometimes positively and sometimes negatively. While our interaction with some can cause our views of mankind to become jaded, our interaction with others can cause us to become more compassionate and understanding. There is simply no way to know the ultimate outcome from an experience until after it has occurred and time has passed.
As Justice Stevens stated in his concurring opinion in Glucksberg, “[t]he State has an interest in preserving and fostering the benefits that every human being may provide to the community—a community that thrives on the exchange of ideas, expressions of affection, shared memories, and humorous incidents, as well as on the material contributions that its members create and support. The value to others of a person’s life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life.”
V. CONCLUDING REMARKS
The United States Supreme Court decision in Glucksberg is not the final word on an individual’s right to physician-assisted suicide. The Court merely held that the Washington law forbidding physician-assisted suicide is constitutional. The Court did not rule that a state is forbidden from authorizing assisted suicide. This is still a debated issue. Presently, the state of Oregon permits physician-assisted suicide, and United States Attorney General John Ashcroft is trying to legally prevent this. The United States Supreme Court will likely be requested to address this issue.
Unfortunately, there is no easy answer to the question of physician-assisted suicide--not in theology, philosophy, medicine, or law. It is a question that the greatest theologians, philosophers, medical providers, and attorneys throughout history have disagreed, and will continue to disagree. I believe that the sanctity of human life is more important than comparing pleasure versus pain. I believe that a person’s autonomy over the timing and manner of his death does not mean he should have the right to have another person assist him to commit suicide. I believe that the very few incidents that could qualify for assisted suicide under proposed legislation do not justify demeaning the sanctity of human life, and experiencing the potential severe negative repercussions. I also believe that legalizing assisted suicide would quickly expand to acts of voluntary and involuntary euthanasia, whether legal or not. Thus, many people will prematurely and unnecessarily die when they could have been properly treated for their medical condition or at least for their depression and hopelessness.
We all have days in which the pressure of life seems overwhelming. One can only imagine the feelings and thoughts that a terminally ill person, enduring extreme pain, must experience. Many such persons must have frequent thoughts of death, and the peace it can bring. If a physician were permitted to aid a person with ending life, the temptation to commit suicide would often be too appealing to refuse. It is one thing to think about death, and another thing to take your own life. The more recognized and accessible suicide is, the more likely a person will agree to perform it, especially in a fragile physical and mental state with government, medical, and family approval. A physician’s and family’s influence over a patient is tremendous, yet the physician’s and family’s recommendation to the patient is subjective and based on personal ideology.
Legalization and physician participation in assisted suicide would be an explicit and implicit statement that the value and sanctity of life can be weighed in terms of benefits (pleasure) and costs (pain). It is an explicit and implicit statement that suicide can be moral and rational. It is an explicit and implicit statement that life is not sacred, and is subject to a utilitarian type calculation. I refuse to believe this. It demeans the value of human life; it demeans our existence; it demeans our opinion and respect for ourselves; and it demeans our opinion and respect for the lives of others.
Finally, it is important to note that Americans have the right to withhold and withdraw life-sustaining procedures, and to receive powerful medication for pain relief and sedation. Virtually every state authorizes a person to establish a “living will” that documents his/her specific desire regarding future life-sustaining efforts. In my opinion, these remedies are more than sufficient to guarantee a person’s autonomy and freedom, without making the most important decision in someone’s life (whether to live) as convenient and quick as having a physician prescribe life-ending medication. While there may be a fine line between discontinuance of life-sustaining procedures and physician-assisted suicide, a line has to drawn somewhere.
Advocates of physician-assisted suicide contend that individuals who oppose assisted suicide should not object to its legalization because opponents can refuse to participate in the acts. Specifically, physicians who oppose assisted suicide do not have to prescribe lethal medication. Terminally ill patients who wish to endure their suffering have this right. As argued throughout this paper, I do not accept the contention that an individual’s choice for assisted suicide does not affect others. Moreover, even if the legalization of assisted suicide does not immediately affect me, history has proven that we all have a duty to speak out against all forms of injustice and immorality, and I do perceive physician-assisted suicide as being unjust and immoral. As Reverend Martin Niemoeller, a prisoner in Nazi Germany, wrote on a wall in Auschwitz:
In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.
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