Assisted suicide and euthanasia: the cases are in the pipeline.
When I first wrote about this subject 36 years ago,(1) the chance that any state would legalize le·gal·ize
tr.v. le·gal·ized, le·gal·iz·ing, le·gal·iz·es
To make legal or lawful; authorize or sanction by law.
le assisted suicide assisted suicide: see euthanasia. or active voluntary euthanasia seemed minuscule. The possibility that any court would find these activities protected by the Due Process Clause seemed so remote as to be almost inconceivable. Not anymore.
Before this decade ends, at least several states probably will decriminalize de·crim·i·nal·ize
tr.v. de·crim·i·nal·ized, de·crim·i·nal·iz·ing, de·crim·i·nal·iz·es
To reduce or abolish criminal penalties for: decriminalize the use of marijuana. assisted suicide and/or active voluntary euthanasia. [Editor's note Editor's Note (foaled in 1993 in Kentucky) is an American thoroughbred Stallion racehorse. He was sired by 1992 U.S. Champion 2 YO Colt Forty Niner, who in turn was a son of Champion sire Mr. Prospector and out of the mare, Beware Of The Cat.
Trained by D. : In November, Oregon became the first state to legalize physician-assisted suicide Noun 1. physician-assisted suicide - assisted suicide where the assistant is a physician
assisted suicide - suicide of a terminally ill person that involves an assistant who serves to make dying as painless and dignified as possible , allowing doctors to prescribe lethal medication for competent, terminally ill Terminally Ill
When a person is not expected to live more than 12 months.
Any gifts given out by the afflicted person at this time may be considered as a dispersion of the estate rather than a gift. adults who request it.!
A distinct possibility also exists that the U.S. Supreme Court will announce a constitutional right to assisted suicide. I continue to believe the Court will not discover or recognize such a right, but the possibility that it may do so can no longer be disregarded.
Three cases challenging the constitutionality of the criminal prohibitions against assisted suicide are now in the "judicial pipeline."
The likelihood that this issue will continue to divide the state courts and lower federal courts until the highest court in the land resolves the matter is evidenced by events last May: Within the space of seven days, a federal district court in Seattle and a state appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. in Michigan reached opposite conclusions as to whether there is a constitutionally protected "right" or "liberty" to assisted suicide.(2)
On May 3, Chief Judge Barbara Rothstein of the U.S. District Court in Seattle, Washington This page is protected from moves until disputes have been resolved on the .
The reason for its protection is listed on the protection policy page. , became the first federal judge to strike down a statute outlawing assisted suicide on Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1
Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens due process grounds. In Compassion in Dying v. Washington,(3) Judge Rothstein invalidated in·val·i·date
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.
in·val a Washington state law prohibiting assisted suicide insofar in·so·far
To such an extent.
Adv. 1. insofar - to the degree or extent that; "insofar as it can be ascertained, the horse lung is comparable to that of man"; "so far as it is reasonably practical he should practice as it placed an undue burden on competent, terminally ill adults who seek this assistance. According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the court, a terminally ill person's right to choose physician-assisted suicide is no less intimate or personal a decision and no less deserving of constitutional protection than a pregnant woman's right to choose abortion.
Only one other court in this country, a Michigan trial court, had ever held that there is a constitutional right to assisted suicide.(4) But on May 10, the Michigan Court of Appeals reversed that court on this point. A 2-1 majority rejected the argument that the right to suicide or to suicide assistance is a "logical extension of [the] catalog of rights" protected by the "guarantee of personal privacy."(5)
Two months later, the odds that the U.S. Supreme Court soon will grapple with this issue increased. Three terminally ill patients and three physicians who care for such patients (among them Dr. Timothy Quill quill: see pen. , probably the nation's most eloquent proponent of physician-assisted suicide) filed suit in federal district court in Manhattan, seeking to invalidate New York's anti-assisted suicide law.(6) The lawsuit is being financed by Compassion in Dying, the same Washington state group that achieved a favorable ruling in the Seattle case.(7)
Assisted Suicide v. Euthanasia
Although all three cases involve the right to assisted suicide, not active voluntary euthanasia, I think this is a distinction without a difference. In physician-assisted suicide, the doctor makes the lethal means available to the patient, who then performs the last act herself In active voluntary euthanasia, the physician not only provides the means of death but carries out the final death-causing act as well.
Some proponents of assisted suicide say there is an important distinction between this practice and euthanasia. Other proponents tend to lump the two practices together (under the labels "physician-assisted death" or "aid-in-dying"). I agree with the second group.
Assisted suicide and voluntary euthanasia are much more alike than they are different. Each involves the active intervention of another to bring about death. If and when the right to assisted suicide is established, it will be extremely difficult to stop short of active voluntary, euthanasia.
If a patient's inability to commit suicide Verb 1. commit suicide - kill oneself; "the terminally ill patient committed suicide"
kill - cause to die; put to death, usually intentionally or knowingly; "This man killed several people when he tried to rob a bank"; "The farmer killed a pig for the holidays" for either physiological or psychological reasons entitles her under certain circumstances to the active intervention of another person in order to bring about her death,(8) why shouldn't a patient's inability--despite preliminary assistance --to perform the last death-causing act, for either physiological or psychological reasons, entitle her to active voluntary euthanasia?
If assisted suicide is appropriate when patients "need more help from the physician than merely abating treatment, but less help than would be required if they were asking the physician to kill them,"(9) why isn't active voluntary euthanasia appropriate when less help than "killing them" would not suffice? When patients are unable to perform the ultimate act and thus nothing less than "killing them" is required to "help" them the an "easy" death?
Suppose a patient is unable to swallow the pills that will bring about her death or is otherwise too weak to perform the last act (for example, push a button or pull a string) that will fulfill a persistent wish to die. If there is or ought to be a right to assisted suicide, how can a right to active voluntary euthanasia be denied simply because a person can't perform the final death-causing act alone?
The distinction between assisted suicide and euthanasia is too thin to endure for very long. Indeed, even now, it is a distinction that the media, the public, and even many commentators are either unable or unwilling to take seriously.
The one formidable distinction is the distinction between the termination of medical treatment (even life-sustaining treatment) and the active intervention of another to promote or to bring about death. This is the distinction that proponents of assisted suicide are attacking. If this bridge falls, the flimsy bridge between assisted suicide and active voluntary euthanasia seems sure to follow.
Task Force Report
Earlier this year, when the New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of State Task Force on Life and the Law issued its report on the law and ethics of death and dying, it addressed both assisted suicide and voluntary active euthanasia
Voluntary Active Euthanasia is the name of a paper by Dan W. Brock in which it the morality and legality of Euthanasia is studied. .(10) (Recognizing the important moral and social issues presented by an assisted suicide case involving Dr. Quill and one of his patients,(11) the State Board for Professional Misconduct professional misconduct,
n conduct inappropriate to the practice of health care.
professional misconduct Behavior by a professional that implies an intentional compromise of ethical standards. had asked the task force to provide guidance in this area.(12)) The 24-member body issued a 181-page report unanimously rejecting proposals to legalize either voluntary euthanasia or assisted suicide.
An officer of the Hemlock hemlock, any tree of the genus Tsuga, coniferous evergreens of the family Pinaceae (pine family) native to North America and Asia. The common hemlock of E North America is T. Society immediately disparaged the report by noting that the task force included representatives of religions that prohibit suicide.(13) But only six task force members were clerics; they were greatly outnumbered by medical school deans, physicians, lawyers, bioethicists, and state health officials. Why did all 24 members vote to keep the total ban against assisted suicide intact?
The task force is an influential body whose previous legislative proposals had reflected deep respect for individual autonomy. Seven years earlier this same group had taken the position, at a time when the issue was still hotly disputed, that the right of the individual to terminate life support should include the right to withhold and withdraw artificially provided food and water.(14) But in 1994 the task force balked balk
v. balked, balk·ing, balks
1. To stop short and refuse to go on: The horse balked at the jump.
2. at crossing the historic divide between the individual's right to the termination of medical treatment and an individual's right to request the active intervention of another to promote or to bring about death:
In light of the pervasive failure of our
health care system to treat pain and diagnose
and treat depression, legalizing
assisted suicide and euthanasia would
be profoundly dangerous for many
people who are ill and vulnerable. The
risks would be most severe for those
who are elderly, poor, socially disadvantaged,
or without access to good
The task force recognized that one can posit "ideal" cases in which all the recommended safeguards for assisted suicide would be satisfied: Patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive, committed family and doctor.(16) But it concluded that "constructing an ideal or `good' case is not sufficient for public policy" if, as here, "it bears little relation to prevalent medical practice."(17)
Although Judge Rothstein had read the "right to die" cases as establishing a broad individual right to determine the timing and manner of one's death, the task force maintained that "these cases stand for the more limited proposition that individuals have a right to resist bodily intrusions, and to preserve the possibility of dying a natural death."(18) The report emphasized that "the imposition of life-sustaining medical treatment against a patient's will requires a direct invasion of bodily integrity and, in some cases, the use of physical restraints, both of which are flatly inconsistent with society's basic conception of personal dignity."(19)
It is this right against intrusion--not a general right to control the timing and manner of death--"that forms the basis of the constitutional right to refuse life-sustaining treatment,"(20) the task force maintained. Restrictions on suicide, on the other hand, "entail no such intrusions but simply prevent individuals from intervening in the natural process of dying."(21)
Although the task force's analysis of the "right to die" may influence some members of the Supreme Court, the justices are more likely to be impressed by the tone, quality, depth, and documentation of the task force's public policy arguments. They will likely be affected by
* its thoughtful discussion of the "state of vulnerability" produced by serious illness;
* the uncertainty in estimating a patient's life expectancy Life Expectancy
1. The age until which a person is expected to live.
2. The remaining number of years an individual is expected to live, based on IRS issued life expectancy tables. and the fallibility fal·li·ble
1. Capable of making an error: Humans are only fallible.
2. Tending or likely to be erroneous: fallible hypotheses. of medical practice generally;
* the severe shortcomings A shortcoming is a character flaw.
Shortcomings may also be:
n an approach to health care that is concerned primarily with attending to physical and emotional comfort rather ;
* the very small number of people who make an informed, competent choice to die by suicide (particularly if appropriate pain relief and supportive care supportive care,
n medical and other interventions that attempt to support and make comfortable rather than to cure. are provided) and who cannot achieve their goal without another person's assistance;
* the close link between assisted suicide and active voluntary euthanasia;
* the elasticity and instability of the criteria now proposed as safeguards if and when assisted suicide and euthanasia are integrated into medical practice (for example, once euthanasia becomes "an accepted `therapy'" there is a distinct possibility that patients incapable of consenting will in certain respects "seem the `best' candidates for the practice"); and
* the recognition that assisted suicide and euthanasia "will be practiced through the prism of social inequality and prejudice that characterizes the delivery of services in all segments of society, including health care."(22)
Dr. Quill said last July that the lawsuit he and his colleagues brought challenging the constitutionality of New York's anti-assisted-suicide law "counters" the New York State Task Force.(23) But if Dr. Quill wants to respond to the task force report he is, I believe, in the wrong forum.
The report is not a monograph on due process, equal protection, or the right of privacy. It is addressed to the legislature, not the courts. Although the report does contain a brief discussion of whether there is a constitutional right to assisted suicide or euthanasia, its principal theme is that legalizing assisted suicide would be unwise and dangerous public policy and that the risks would be the greatest for the powerless and the socially disadvantaged.
The report underscores this nation's failure to treat pain adequately or to diagnose and treat depression properly. It also takes cognizance The power, authority, and ability of a judge to determine a particular legal matter. A judge's decision to take note of or deal with a cause.
That which is cognizable to a judge is within the scope of his or her jurisdiction. of the social inequality and prejudice that characterize the delivery of American health American Health Inc. is a company that manufactures health supplements. It is located in Holbrook, New York. One of its products is labeled the "Chewable Original Papaya Enzyme" with the attached registered trademark, "The 'After Meal Supplement'". care.
The way to "counter" this report, it seems to me, is to try to refute its findings, assumptions, and public policy arguments--not to claim that prohibiting assisted suicide is beyond the power of the legislature.
Over the years, many proponents of assisted suicide and active voluntary euthanasia have tried hard to convince the public that the only substantial objections to their proposals are based on religious doctrine.(24) The New York State Task Force report is a graphic demonstration that this is not so.
It is hard to believe that a majority of the U.S. Supreme Court will rule that a legislature that was troubled by the same nonreligious concerns that led the task force to oppose the legislation of assisted suicide--and reached the same basic conclusions the task force did--acted unconstitutionally.
(1) Yale Kamisar Yale Kamisar is the Clarence Darrow Distinguished University Professor of Law Emeritus and Professor Emeritus of Law at the University of Michigan Law School as well as a tenured professor at the University of San Diego School of Law. , Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation, 42 MINN MINN Minnesota (old style) . L. REV. 969 (1958).
(2) See notes 3 and 5 infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. and accompanying text.
(3) 850 F. Supp. 1454 (W.D. Wash. 1994). For trenchant criticism of Judge Rothstein's opinion, see Alexander Morgan Capron, At Law-Easing the Passing, HASTINGS CENTER The Hastings Center, founded in 1969, is an independent, nonpartisan, non-profit bioethics research institute dedicated to examination of essential questions in health care, biotechnology, and the environment. REP., July-Aug. 1994, at 2.
(4) People v. Kevorkian, No. 93-11482,1993 WL 603212 (Mich., Wayne County Wayne County is the name of sixteen counties in the United States of America, some named for the American Revolutionary War general Anthony Wayne:
(5) The court made its ruling in Hobbins v. Attorney General, 518 N.W.2d 487 (Mich. Ct. App. 1994), which had been consolidated on appeal with Kevorkian. See discussion in 518 N.W.2d 487,492-94. Despite its refusal to recognize a constitutional right to assisted suicide, the court did agree with Ms. Hobbins and Dr. Kevorkian that the anti-assisted suicide law violated a state constitutional procedural requirement: By both establishing a commission to study certain issues relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc death and dying and amending the penal code penal code
A body of laws relating to crimes and offenses and the penalties for their commission.
the body of laws relating to crime and punishment
Noun 1. to create the crime of assisted suicide, the law had run afoul of a·foul of
1. In or into collision, entanglement, or conflict with.
2. Up against; in trouble with: ran afoul of the law. a state constitutional provision that no law shall embrace more than one object. See discussion in 518 N.W.2d 487, 489-92.
(6) See Timothy E. Quill, The Care of Last Resort, N.Y. TIMES, July 23, 1994, at 19.
(7) See Lawsuit Challenges New York's Law Banning Assisted Suicide, N.Y. TIMES, July 22, 1994, at B3.
(8) See Robert F. Weir, The Morality of Physician-Assisted Suicide, 20 LAW, MED. & HEALTH CARE 116, 118 (1992).
(10) THE NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CON TEXT (1994) [hereafter 1994 TASK FORCE REPORT!.
(11) See generally TIMOTHY E. QUILL, DEATH AND DIGNITY: MAKING CHOICES AND TAKING CHARGE (1993).
(12) See 1994 TASK FORCE REPORT, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 10, at 4-5.
(13) See Elisabeth Rosenthal, Panel Tells Albany to Resist Legalizing Assisted Suicide, N.Y. TIMES, May 26, 1994, at 1 (reporting the response to the report by Sidney Rosoff, president of the Hemlock Society).
(14) THE NEW YORK STATE TASK FORCE ON LIFE AND THE LAW, LIFE SUSTAINING TREATMENT: MAKING DECISIONS AND APPOINTING A HEALTH (ARE AGENT, V (1987) (Executive Summary).
(15) 1994 TASK FORCE REPORT, supra note 10, at ix (Executive Summary).
(16) Id. at 120.
(18) Id. at 68. Although the task force report was published three weeks after the decision in the Compassion in Dying case, the report was written before Judge Rothstein issued her ruling in that case.
(19) Id. at 71.
(22) See id. at 72, 121, 125, 131-33, 145, 147.
(23) See Quill, supra note 6.
(24) The primary reason I wrote Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation, supra note 1, in 1958 is that I disagreed strongly with the view of Glanville Williams Glanville Llewelyn Williams QC, LL.D., F.B.A. (born 15 February 1911, died 10 April 1997) was an influential Welsh legal professor and formerly the Rouse Ball Professor of English Law at the University of Cambridge. , the leading proponent of active voluntary euthanasia at the time, that "euthanasia can be condemned only according to a religious opinion." GLANVILLE WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW 312 (1957).