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Even in defeat, Proposition 161 sounds a warning.

Occasionally law that isn't made may be as significant as law that is. One such instance was the rejection on 3 November of Proposition 161 by a 54-46 majority of California voters. Had this initiative passed, the state would have been the first in the world since the Nazi era formally to permit physicians to perform active euthanasia. Even though defeated, the strong showing for this ballot measure--and the even stronger support it enjoyed outside the voting booth--sounds a loud alarm for health care professionals not just in California but across the country.

Proposition 161's defeat should not obscure the remarkable fact that millions of people are so fearful of how they think they'll be treated by the health care system when they're very ill that they'd rather be dead. Surveys taken in March and April this year showed that 75 percent of California voters favored the basic concept of physician aid-in-dying, 54 percent strongly so.

The percentage who opposed active euthanasia on moral or religious grounds stayed relatively constant from the early surveys until election day. But the ranks of those voting no swelled as the opposition coalition focused its advertising during the final weeks on what worked a year earlier to bring down a similar measure in Washington State by an identical margin: voters' fears that mistakes would be made. Among those who voted against, 43 percent told exit-pollsters that inadequate safeguards was the primary reason for their opposition.

Not surprisingly, the measure fared best among more liberal, highly educated, and younger voters. Male voters split 50-50, while females opposed 56-44; whites were only slightly opposed (52-48%), but the margin of defeat among black and Hispanic voters was 20 percent. What this suggests is that less powerful people (such as older, minority women) felt themselves more at risk from the measure, fearing that a policy of active euthanasia might be used against them because the law would provide insufficient protections for them.

Second Warning

The public has now twice given notice that something radical has to be done about the care of dying patients. Although specific aspects of the legislation proposed have caused some voters to back away from approving laws that they support in principle, a euthanasia initiative might well pass if physicians and others fail to remedy the underlying problems that propel this issue onto the public agenda.

If resources were the only problem, the health care system should be able to respond--after all, it consumes nearly one dollar in every six of our gross domestic product. Yet despite (or perhaps, because of) the system's extraordinary array of life-saving technology, average people are so dissatisfied, so dismayed at how death occurs in this country, and so distrustful of physicians' ability or willingness to give them a "good death" that they will consider overturning thousands of years of medical ethics and societal prohibitions to legalize direct killing by physicians.

Some of those who favored Proposition 161 may have done so under the mistaken but unfortunately widespread impression that it was needed if patients are to avoid having their dying extended indefinitely by artificial means, such as respirators and tube feeding. In California and virtually every other state, patients need have no such fears, as the law protects their refusal of life-extending techniques beyond the point they judge to be of value, and allows authorized surrogates to refuse on their behalf if they become incapable of making their own decisions. Yet if some voters favored Proposition 161 to avoid an artificially extended dying, that merely shows the system has failed to educate patients about their rights, to encourage them to communicate their wishes about care at the end of life, and to reassure all concerned that respecting patients' wishes entails no risk of criminal or civil liability.

Another portion of those who favored Proposition 161 may have wanted to ensure that they would be able to assert control over their dying process even if they were not being sustained by artificial means. For instance, Betty Rollin has described how her mother displayed a great sense of relief once she was able to have at her bedside the means to take her own life.[1] Yet this only further indicates that people feel the health care system does not really listen to patients and does not provide care and attention for their individual needs.

As though these readings of the narrow defeat of Proposition 161 aren't sufficient indictments of the care provided dying patients, it seems undeniable that many who favored the proposal--along with some of those who voted no because its safeguards were inadequate--regard the dying process in contemporary America as worse than death itself.

Medicine's Failure

This public perception is justified, given the failure of far too many medical practitioners to understand and apply modern pain management. The reason most lay people don't know that pain can be relieved in virtually every case (usually with means and doses that need not render patients unable to interact with their environment) is that many have themselves gone through illnesses or surgical recoveries without appropriate pain control or, worse yet, have seen loved ones die in unrelieved pain. Physicians, nurses, and other providers can--and must--overcome their cognitive and psychological impediments to providing adequate, patient-centered pain relief.

Equally if not more important will be overcoming the tendency of many physicians to withdraw from interaction with patients once cure no longer seems possible. Illness already creates a sense of isolation and loss of control in patients. No health care practitioner should ever say, "There's nothing more I can do," when his or her support and even mere presence--all that medicine could and did offer in most cases until the modern era of miracle drugs and high-tech surgery--would be of great value. Patients and their families who receive this final therapy of caring comfort are unlikely to see a need for active euthanasia.

Unless the health care providers who opposed Proposition 161 realize that its showing at the polls is a clear public cry for help, akin to an individual's suicide attempt, and unless they change those aspects of the system that make a quick death such an attractive alternative, support for legalizing euthanasia is sure to build and eventually to prevail. The votes in California and Washington should not be taken as encouragement for medical-practice-as-usual but as the public's wise choice to give a little more time to reform the way we care for the dying. One hopeful sign--the campaign recently launched by the state medical society in Washington to educate health care providers about care of dying patients and appropriate means of controlling pain--should inspire provider groups and medical and nursing educators across the country, without waiting for legislation or the threat of legislation elsewhere.

Out of the Voting Booth, into the Doctor's Office

Both those who favor legalizing active euthanasia and those who oppose it should make it clear to their physicians and hospitals that the defeat of Proposition 161 in California may be the last warning before some state starts the ball rolling beyond education and into the law. Such a move might come fairly soon if a ballot initiative were to succeed in a smaller state such as Oregon, where the Hemlock Society now has its national headquarters. Oregon's smaller size makes a statewide campaign much less expensive and complex than in a state like California.

Change might also arise directly through legislation. In Michigan, where the activities of Dr. Jack Kevorkian have led to the passage of a bill that would outlaw assisting a suicide,[2] another proposal introduced this year would legalize physician-performed euthanasia. The uneasiness that even proponents of this practice feel can be seen in the latter bill, however. Critics of Proposition 161 had pointed out that while it required a witness when people executed advance directives to indicate their desire for aid-in-dying if they ever were diagnosed as terminally ill, no witness was needed at the time of the actual request for euthanasia or when it was performed. To overcome this objection, the Michigan bill would require that the performance of euthanasia be videotaped, a step that runs counter to the very notions of privacy and autonomy which motivate many supporters of active euthanasia. Yet at the same time, this supposed safeguard seems unlikely to uncover the sorts of overreaching by relatives or caregivers who intentionally or unintentionally pressure dependent patients into requesting that their physicians end their lives by active means.

Finally, legal change could come through court decisions. If physicians and hospitals continue to do a poor job of relieving suffering and listening to their patients' wishes, judges may adopt as holdings what Judge Compton expressed as dictum in his concurrence in Bouvia, namely, that patients have not only a right to refuse life-sustaining treatment but to command physicians' aid in ending their lives swiftly and painlessly. Although proponents of patients' rights and "the right to die" in particular have insisted for many years that withholding or withdrawing treatment is not the same as active killing, future court cases on behalf of not-quite-imminently dead patients may insist on the equivalence of the two.

So far courts that allowed the refusal of life-support have held it not to be suicide, thus also holding that cooperating physicians and nurses are not assisting suicide. The judges probably sensed the pragmatic value in maintaining distinctions that permitted physicians, nurses, and others to "have it both ways," allowing limits to be placed on medicine's ever-extending abilities to sustain biological existence while holding fast to the central cultural prohibition on killing.[3] But legal analysts have increasingly repudiated that distinction,[4] just as many philosophers deny any significant, intrinsic, moral difference between suicide and active voluntary euthanasia[5] or between euthanasia and "allowing to die."[6]

It may well be that the power to kill on request is not one that physicians should have nor one that most want, but unless they learn to take better care of dying patients, it may be a power that the public will thrust upon them.


[1.] Betty Rollin, Last Wish (New York: Simon & Schuster, 1985).

[2.] "Michigan Doctor Aids 6th Suicide," New York Times, 24 November 1992.

[3.] Yale Kamisar, "Law, Morality and Death: The Status Quo Is a Pragmatic Way Out of Quandary," Los Angeles Daily Journal, 3 November 1992.

[4.] Sanford Kadish, "Letting Patients Die: Legal and Moral Reflections," California Law Review 80 (1992): 857-88; Note, "Physician-Assisted Suicide and the Right to Die with Assistance," Harvard Law Review 105 (1992): 2021.

[5.] Dan Brock, "Voluntary Active Euthanasia," Hastings Center Report 22, no. 2 (1992): 10-22, at 10.

[6.] James Rachels, The End of Life: Euthanasia and Morality (New York: Oxford University Press, 1986), pp. 106-49.
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Title Annotation:California
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Jan 1, 1993
Previous Article:Commentary.
Next Article:Is there a right to die?

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