Physician-assisted suicide: "slippery slope" or civil right?

The issue of physician-assisted suicide for the terminally ill has once more landed on the front pages of the nation's newspapers due to four major court rulings earlier this year. Both supporters and opponents of physician-assisted suicide agree that the rulings are likely to have a major impact, although they disagree as to the effects. In the eyes of those who oppose physician-assisted suicide, the proverbial "slippery "slippery slope" has become a sheet of glazed ice, slick and dangerous. In the eyes of those who support the death-with-dignity movement, the rulings were a resounding triumph for civil rights. The language in both cases has been similar to the response that Roe v. Wade provoked from abortion opponents and supporters, and for good reason: both issues touch on those most intimate of human concerns--life and death, tradition and innovation, medicine and religion. And considering that state authorities have already promised to appeal two of the rulings to the U.S. Supreme Court, the issue of physician-assisted suicide is likely to remain on the front pages for many years to come.

In many respects, the modern death-with-dignity debate is an extension of the ethical, legal, and medical arguments surrounding the New Jersey Supreme Court's unanimous ruling on March 31, 1976, that allowed Julia and Joseph Quinlan to remove their daughter Karen from life-support equipment. Some medical ethicists warned then that the ruling was the beginning of a trend--the so-called slippery slope--which, followed to its logical conclusion, could lead to decisions to end a person's life being made by third parties not only on the basis of medical condition but also on such considerations as age, economic status, or even ethnicity.

After 20 years, and within the space of several months, four new court rulings have significantly expanded the reasoning behind the Quinlan decision. The most sensational of the four were the March 9 and May 14 acquittals by Michigan juries of Dr. Jack Kevorkian, who has attended the suicides of 28 seriously ill people since 1990, of charges in connection with the deaths of four of them. But while the Kevorkian verdicts were the subject of much popular attention, it was the other two decisions which had the experts opining on the nation's op-ed pages and on the more substantive interview shows.

The first of these decisions came on March 6, 1996, when the U.S. Court of Appeals for the Ninth Court in San Francisco overturned a Washington State law that made assisted suicide a felony. The other occurred on April 2, 1996, when the U.S. Appeals Court for the Second Circuit in New York struck down that state's law making it illegal for doctors to help terminally ill people end their own lives. While acknowledging that "people of good will can and do passionately disagree about the proper result" of assisted suicide, Ninth Circuit Judge Stephen Reinhardt wrote in the majority opinion:

Like the decision of whether or not to have an abortion, 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."

But whereas the Ninth Circuit decision was based on the Fourteenth Amendment and privacy issues, the Second Circuit ruling in April invoked an "equal protection" argument that people suffering terminal illnesses should have the same right as those, such as Quinlan, who are in a coma and have the law on their side in the decision to halt life-sustaining nourishment or treatment. "Physicians do not fulfill the role of `killer' by prescribing drugs to hasten death," wrote Second Circuit Judge Roger J. Miner, "any more than they do by disconnecting life-support systems."

After the federal appeals court decisions came down, I contacted Alan Meisel, professor of law and director of the University of Pittsburgh's Center for Medical Ethics. Meisel picked up on the Ninth Circuit Court's abortion language and its expansion of termination of life support to the right to assisted suicide, which he calls physician aid in dying. "This is an issue that is going to get thoroughly aired over the next decade or two in the way that abortion has in the past two decades," Meisel predicted and went on to add:

It's an issue about which people have very strong opinions and on which there is no clear consensus. We have accepted as a society for 20 years allowing physicians to terminate life support for terminally ill patients. That goes back to the Karen Quinlan case. We have in effect recognized, most certainly in the case of competent patients ... that people have a right not to be made to suffer if it is their competent choice that death is preferable. So, if we're going to talk about physician-assisted suicide, the only thing we're talking about is a different means of accomplishing the same end. I don't think it's my personal opinion alone; I think that Judge Reinhardt shares the same view.

I think the difference between withholding treatment and actually intervening to help people end their lives is a fictitious difference. There is no real difference between the two, because even when we terminate treatment, we act to end their lives. When we remove, for instance, the feeding tube, that brings about someone's death. Whatever difference there might be is too inconsequential to result in any legal or moral difference.

But Lois Snyder, J.D., a faculty associate at the University of Pennsylvania Center for Bioethics, disagrees with Meisel's assessment. During a telephone interview, she said:

It's important for us as a society to say that we do care how people die. It's not just a matter of their control to go off and kill themselves. I strongly support the patient's right to stop treatment, including life-support treatment. The difference is about your right to be left alone in one case, to allow nature to take its course. On the other side, in physician-assisted suicide, you're talking about actively bringing about death, and you're asking for something to be done as opposed to nature just taking its course and refusing additional treatment. Snyder thinks the "slippery slope" argument is important:

But that's not the whole argument against physician-assisted suicide. It's sort of the more practical argument. I just don't think it's a good idea for society to put its seal of approval on assisted suicide. It sends the wrong message, and it's doubly bad to give the role of assisted suicide to physicians, who are by training and tradition supposed to be healers and comforters and not agents of death.

This is a very important turning point for the nation. I'm not convinced that what people want so much is a right to physician-assisted suicide as more care, comfort, and compassion at the end of life. A lot of what has been going on has been an indictment of our ability to give people the kind of care they need at the time of death.

Alexander Capron, a professor of law and medicine at the University of Southern California, raised a similar theme in his response to the Ninth Circuit ruling. "Whatever the legal issues," he told the New York Times, "this clearly stands as a reminder to the medical profession that the public regards it as having failed it abysmally, with the high-tech prolonging of life, in terms of assuring that a patient's wishes will be respected."

Dr. Charles W. Plows, chair of the American Medical Association's Council on Ethical and Judicial Affairs, previously addressed the failure of the medical community to adequately deal with death in a letter to the editors of the New York Times on September 17, 1995. Responding to an article about physician-assisted euthanasia, Plows wrote: "Physicians must do better at discussing end-of-life treatment decisions with patients and at providing optimal comfort care and emotional support in the final stages of disease. `Unacceptable suffering' cannot serve as a ground for euthanasia because in almost all cases severe pain can be relieved."

Another letter in the same issue of the Times, written by Edward J. Halloran, a North Carolina registered nurse, expressed a like sentiment:

Assisted suicide is neither necessary nor desirable when hospice services are initiated. Maintaining hope, independence, and comfort is a far better choice than suicide or an agonizing death.

What is required for the dying is to have access to hospice counseling early in the process. I cannot help believe that the benefit of extended hospice services would accrue to both the dying and those who pay for the extensive hospital services used at the end of many American lives.

The role and duty of healer and of the medical profession have been debated at least since the ancient Greeks, when Hippocrates tried to codify the physician's job and responsibilities in the oath that bears his name.

Snyder and her colleague, Dr. Arthur Caplan, director of the University of Pennsylvania Center for Bioethics, cited the oath in a summer 1995 article they cowrote for the Philadelphia Lawyer. Calling the oath "a fundamental tenet of medicine that physicians be, and be seen as, healers and comforters, not agents of death," they asserted that doctors have taken the oath for thousands of years, vowing

to do no harm and "give no deadly medicine to anyone if asked, or suggest any such counsel." Doing otherwise would compromise the physician-patient relationship and the trust that is necessary to sustain it. It would also undermine the integrity of the profession. Slippery slopes are invoked about the possibilities for misuse and abuse of power and about cracks in our moral infrastructure that could lead to crumbling.

But the oath can be interpreted different ways, according to Barbara Daly, codirector of the Clinical Ethics Program at University Hospitals of Cleveland. During a telephone interview, she said:

The easy answer to this is that the oath specifies the physician's primary duty above all is to do no harm. But that leaves quite open the question of what constitutes harm. Death is not the worst outcome in some cases; sometimes the greater harm is living a life that is devoid of meaning. If you accept that premise, then the prohibition against doing harm translates into a prohibition against doing things to people that continues that life or withholding your ability to help a patient to end his life.

William H.A. Carr, president of the Hemlock Society of Indiana, pointed out in the September/October 1995 issue of the Saturday Evening Post that, not only can the proscription against doing harm be read in at least two ways, the oath contains other elements which have become time-worn and irrelevant, rendering it meaningless in the assisted-suicide debate. "Those who invoke the Hippocratic oath inevitably find themselves defending a document that, for many years, has been more honored in the breach than in the observance," Carr wrote. He cited the oath's beginning, in which the new physician swears by Apollo, Aesculapius, Hygieia, Panacea, and all the other Greek gods and goddesses. He asked:

Are we to assume that every physician who takes the oath thereby forswears Christianity, Judaism, or any other modern religion in favor of the old pagan gods and goddesses?

Realistically, the Hippocratic oath should be viewed as a quaint and admirable relic of the distant past, part of the truly glorious history of medicine--but not as a restriction on physicians who want to provide their patients with the best possible care.

And Alan Meisel concurs in declaring the oath moot: "Physicians are not legally bound to follow the Hippocratic oath. It is a historical doctrine, subscribed to by a group of physicians in ancient Greece. Other physicians rejected it. The Supreme Court has rejected that it has any relevance to modern-day law."

As for modern-day medicine, the American Medical Association has stood firmly against physician-assisted suicide. AMA President Dr. Nancy Dickey articulated the association's stance in her response to the Second Circuit Court's ruling. Doctors recognize a clear line between using medical technology to keep a dying person alive and using it to end a life, she told the Los Angeles Times. "Stepping over that line [to assist a suicide] is not in the best interest of patients or society."

But fissures have appeared even among doctors. Late last year, a group of eight physicians, calling themselves Physicians for Mercy, announced that they were endorsing the use of the term patholysis for physician-assisted suicide; the term was invented by Dr. Jack Kevorkian and defined by him as meaning "to relieve suffering." This explanation was the core of the argument Kevorkian's lawyer Geoffrey Fieger used in his successful defense of the doctor this year.

Physicians for Mercy also proposed 10 guidelines for physician-assisted suicide that its members said they hoped would help win acceptance of the practice. Those guidelines, similar to proposals by Kevorkian and to guidelines contained in the Oregon law legalizing physician-assisted suicide, include a review by doctors of any such request by a competent adult; consultation with a qualified obitiatrist (a doctor who specializes in helping people die); consultation with a physician and also a specialist dealing with the patient's specific disease; and consultation with a specialist in pain management.

Guidelines in the Oregon law, which was approved by that state's voters on November 8, 1994, include requirements that the patient be referred to a specialist for counseling "if appropriate," that the next of kin be notified by the patient, that the patient have the right to rescind the death request at any time, that there be verification "immediately prior to writing the prescription that the patient is making an informed decision," and that all of these procedures be documented.

Alan Meisel believes such safeguards will help prevent the doomsday predictions that economically and socially disadvantaged people could be forced or pressured into ending their own lives:

I think that there are risks that people will be pressured to seek physician aid-in-dying. And I think there are risks that this will occur more with certain vulnerable sectors of the population. However, there is the same risk that that will occur with terminating treatment. And there is no greater danger that people will seek physician aid-in-dying than they will in seeking termination of life support. The way to deal with these risks is not to prohibit this practice but to regulate it, and that's exactly what the [Ninth Circuit] judge has said in this case--that the state of Washington can't prohibit it but can regulate it.

But the federal appeals court rulings are not the final word on this issue, as suggested by Alexander Capron in his New York Times interview: the ruling "seems so inconsistent with what the Supreme Court has said in the past that it almost forces its hand in reviewing the case. Legally it doesn't make sense. The right to refuse treatment is clear. It applies across the board. But who has the right to assisted suicide?"

Erwin Chemerinsky, a professor of constitutional law quoted in the same article, noted that, "in the last 10 years, the Ninth Circuit has probably been reversed by the Supreme Court more than any other." Yet the Second Circuit, which came down on the same side as the Ninth, is seen as a more conservative court. Judge Miner, who wrote the majority opinion, was appointed as a district judge by President Reagan in 1981. The Second Circuit's decision cites an additional reason for the unconstitutionality of banning physician-assisted suicides: discrimination. "This [equal protection] provides a more modest and narrow path," Harvard law professor Laurence H. Tribe told the Los Angeles Times. "There is something utterly arbitrary and unintentionally cruel in condemning some competent terminally ill patients to continue their suffering because they have not been put on respirators."

Ethicists disagree on whether the U.S. Supreme Court should review this issue just yet. Snyder, who believes the Supreme Court would not support the lower federal court rulings, wants the High Court to rule. "I don't know that it's a national political issue," she said. "It's getting a lot of attention in the media, as it should, and it will probably become a big issue for the states, depending on whether the Supreme Court takes one of these cases and on what they say. I think the Supreme Court should definitely hear one of the cases."

Daly and Meisel disagree. "At this very moment, I see no need for them to hear a case," Daly said. "The states seem to be handling it well. As a country, we're going more in the direction of states controlling medical issues anyway."

"I would like to see the Supreme Court stay out of it until lower federal and state supreme courts have had more of an opportunity to debate the issue," Meisel said. "I believe that, if the Supreme Court does take a position on this issue, it is not likely to provide support for it."

The tone of the nation's assisted-suicide debate is similar to the hyperbole and passion of the abortion debate. Kevorkian has been called Dr. Death, the devil, a national hero, and a serial killer. He has been chastised for his courtroom demeanor during the two recent trials that ended in acquittals. He has been lauded for standing up to national criticism and for coming down on the side of principle.

In the June 12, 1995, issue of the conservative National Review, retired professor and psychoanalyst Ernest van den Haag called Kevorkian "a rare and courageous exception" to the doctors who know how to help patients end their lives but refuse "because of moral obligations or in fear of legal liabilities [and who] impose their own socially supported moral beliefs on patients who do not share them but cannot act unaided."

Peter J. Bernardi, a Catholic priest, invoked the abortion analogy against assisted suicide in an article he wrote for the April 30, 1994, issue of America magazine. According to Bernardi:

Once the privacy principle was so legally enshrined in Roe as to allow the taking of innocent human life, it has become increasingly difficult, if not impossible, to brake the descent. A momentum has been established whereby the former presumption in favor of human life has given way to myriad forms of rationalizing and excusing the taking of life. Just as most abortions now are no longer "hard case" but "convenience" abortions, so will the circle of candidates for assisted suicide inevitably increase.

But van den Haag dismissed the abortion analogy in his National Review piece, arguing that the comparison is invalid because the fetus has no choice in the matter, while a competent adult is able to make an informed decision. He wrote:

Conceivably the fetus could have an interest in survival. If allowed to develop, the fetus may be expected to desire and enjoy life. In contrast, assisted suicide shortens the life of a patient who has decided himself that prolongation does not serve his interests. Surely, the normal fetus could not be assumed to have an interest in self-destruction. The suicidal patient does.

Bernardi also defended the religious view, arguing that life and death decisions belong in the realm of God: "Ultimately the religious conviction that life is a gift from God that we are not free to end on our own terms is the most effective motive for remaining opposed to doctor-assisted self-killing. But what effect would that argument have on someone who is not religious or who does not believe in God?"

Van den Haag's answer:

Only in our time has it come to be believed that individuals collectively own society, rather than vice versa. They also are thought to own themselves. Without God (or slavery) no one else really could. Owners can dispose of what they own as they see fit. We thus each become entitled to control our life, including its duration, to the extent nature permits, provided that this control does not harm others in ways proscribed by law.

Robert P. George, a lawyer who teaches legal and political theory at Princeton, and William C. Porth, Jr., also a lawyer, dismissed van den Haag's "ownership" theory in a response published in the June 26, 1995, National Review. They argued that people are not "owned" by God or by anybody else (including themselves), but that their value exists simply in their humanity:

As subjects of moral rights and obligations, people are not chattels to be owned, traded, or disposed of as they or anyone else "sees fit." As persons, not merely things, human beings have intrinsic, not merely instrumental, value. Hence people possess a dignity to which rights attach that not even they have the moral authority to waive, i.e. inalienable rights.

In defending a right to commit suicide, Van den Haag makes an implicit appeal to J. S. Mill's principle that people ought to be free to do as they please so long as they do not directly harm others. Mill himself, however, saw that his "harm principle" could not rationally be stretched to authorize people to "dispose of themselves as they see fit." For example, he famously denied that people have a moral right to sell themselves into slavery. Whatever is ultimately to be said for and against his philosophy of liberty, Mill stands with Jefferson, not Van den Haag, on the question of inalienable rights.

Snyder also stands with Mill:

I'm not personally a religious person, though I guess some of these arguments would have a lot in common [with religious arguments]. I'm concerned that we've gone too far in arguing about the sanctity of the right to autonomy as a legal right and as an ethical matter. I think that just as you shouldn't have the right to give up your freedom by selling yourself into slavery, you shouldn't have the right to give up your self-determination [through assisted suicide].

The law sets the minimum standards by which we function as a society, and I would like it to reflect what I think is the right thing ethically. There are people who will say it doesn't matter what laws get passed, any individual physician doesn't have to participate. But I think that misses the point about what we as a society stand for, and I also think that it's not a good idea to pass laws which people then can't actually get implemented. Abortion would be an example of that; we have a right to abortion under certain circumstances, but there aren't that many obgyns out there who perform abortions. It poses a hardship to the right to abortion to not really be able to have full access; so in physician-assisted suicide, if we're going to have laws that say not only is it okay but it's your right, then we're going to need to have doctors participate in it.

Precisely the point, argues Meisel:

One of the most important things to remember is that no one is being forced either to aid patients in ending their life or to end their life against their will. This assumes the voluntary participation of a willing patient and a willing physician. Different religious groups will have their view on it, but I don't think that one can properly characterize it as exclusively a religious, ethical, or legal issue. It partakes of all of those things.

And what of that "slippery slope"?

Snyder and Caplan, in the Philadelphia Lawyer essay, cited a report from the Netherlands, where euthanasia is illegal but the law is not strictly enforced. According to Snyder and Caplan, the report said that the Dutch physicians "sometimes act without patient requests in performing euthanasia and that there was a sense among some patients that they had a duty to die."

Suggesting with some sarcasm that perhaps the Dutch need better checks and balances, Snyder and Caplan wrote that, while regulation and safeguards might ease some concerns about possible abuse, the safeguards are a "lawyer's dream" and a "physician's nightmare," and such a bureaucratic process would demoralize patients wishing to end their lives with "dignity."

George and Parth also cited the Dutch experience in their response to van den Haag, and they offered an accounting of current practice and future possibility:

We are well into our slide. Consider the widespread approval . . . of depriving comatose patients of food and water. Consider recent proposals from the highest ranks of the American medical profession to allow harvesting of organs from anencephalic infants before death. Consider the even more "advanced" state of affairs in the Netherlands, where non-consensual euthanasia is common. Does all this appear to be anything but a perfectly logical progression? It is but a short step from judging that a person who is old, infirm, and in pain can rationally "choose death" to concluding that it is irrational for such a person to refuse to make that choice. As our population ages, government will face increased burdens in caring for the elderly. It is not unrealistic to fear that government may assume what began as a private prerogative, and move from making life-and-death decisions for the comatose, to making them for the insane, for the retarded, for those of less-than-average intelligence, and finally for those who are entirely rational and intelligent but whose desire to cling to life brands them as obstinate, uncooperative, and just plain unreasonable. Are we then to rely on nothing but the heroism of individual doctors to restrain the abuses of government? If so, let us hope there are some "rare and courageous exceptions" among physicians of a rather different stripe from Dr. Jack Kevorkian.

One final ethical argument arises in the defense raised by Kevorkian's lawyer, Geoffrey Fieger, to obtain his latest acquittals. The defense cannot necessarily be faulted for building its case on a legal loophole--Michigan law contains a clause that exempts doctors from legal culpability for a patient's death if the patient dies as a result of treatment which is intended to relieve pain and suffering. But what this case was really about, for both the public and the medical community, was a physician making it easier for people to take their own lives. As Caplan argued in a column for King Features Syndicate after Kevorkian's March acquittal.

[Fieger] took aim at the "intent" loophole and steered Kevorkian toward it. The attorney said Kevorkian did not provide carbon monoxide and gas masks to people with the intent of causing their death. he argued that he had always merely intended to relieve suffering. Oh, please. What utter nonsense.

Whatever else you believe about physician-assisted suicide, lugging carbon monoxide and gas masks with you on house calls is not the road to pain relief. . . .

That lack of moral conviction is precisely why his place in the right-to-die debate should be as the John Brown of the movement--a loony fanatic who stirred a nation to confront an important issue, but no one that anyone could take seriously.

I believe Caplan's right on that. A principled stand, lacking the principle, has no legs. Ethicists on both sides of the issue agree that it deserves serious public debate. Sadly, Kevorkian cheated us of that in these trials