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Holding the line on euthanasia.

Holding the Line on Euthanasia

Most arguments against easing the legal prohibition of active euthanasia fall into one of two categories. They argue either that active euthanasia is intrinsically immoral or that the consequences of easing the restriction will be unacceptable. I want to focus on this latter concern and suggest an entire set of consequences that has been largely ignored.

Usually when people talk about the consequences they fear, they talk of slippery slopes, of abuse, and of error. I want to offer a different argument: Not that we will find ourselves sliding down a slope and mired in the muck of predictable human incompetence and malice, but rather that we will lose the ground we have spent years trying to secure. For over a decade we have labored to shape decent law and medical practice to govern termination of treatment decisions and the care of those dying. It is a struggle not yet complete. In fact right now we face some new and serious setbacks--the O'Connor decision in New York, the Cruzan decision in Missouri, and proposed New Jersey legislation to rob even competent patients of the right to refuse one whole category of invasive treatment.(1) But my argument is that the standing legal prohibition of active euthanasia has been the necessary backdrop for what progress we have made.

That prohibition has served as a dam. We have staked out territory on the very edge of life and worked to humanize it. But this is land we have claimed and tilled by restraining the waters. Remove that dam and a flood will surely overwhelm us. The courts and prosecutors will rush in. Our own ambivalence toward the dying will surge forward. Informality in decisionmaking, our commitment to care at the end of life, and the safety of the bedside will be swamped. It is not a matter of keeping the current landscape--the law and practice for the termination of treatment--intact and simply taking another step, as some would have it, in furtherance of established principles of liberty and self-determination. That landscape cannot remain untouched by such a change.

Let me make the case: that the progress made has depended in part on this dam, and that the consequences of removing it will be unfortunate.

Keeping the Waters Back

The legal prohibition of active euthanasia, I wish to argue, has had major benefits for the development of tolerable law and practice for the termination of treatment. First, that prohibition has to a large extent allowed the law to stay out of the way. Judges generally have encouraged those involved in termination of treatment decisions to steer clear of the courts; legal authorities have almost always determined these bedside treatment decisions are not the province of the criminal law; and the states for the most part have avoided requiring a great deal of formality and paperwork. Thus there has been an overall toleration of relatively informal, nonlegalistic processes and a trust in the commitment of physicians to do no harm.

Second, maintenance of the prohibition has allowed a properly expansive reading by the courts of the right to refuse life-sustaining treatment. The courts have recognized this right for nonterminal patients, including those whose treatment is relatively simple and unburdensome. Dealing with active euthanasia, the courts might have been far more reluctant to reach the nonterminal, less burdened patient. Even the right of incompetents might have been threatened.

Third, the prohibition has demanded unswerving attention to dying patients. Deprived of an easy "out," clinicians have had to pay attention to the symptoms, pain, and distress of these people to the end.

Finally, the prohibition has made the bedside a safer context in which to work out the conflict and emotions that attend termination of treatment than were euthanasia allowed. Termination of treatment decisions are particularly emotional and are likely to bring to the fore any differences among those involved. The interdiction of euthanasia at least sets a limit on how much can be acted out and how far the participants can go.

These four claims require some elaboration.

Get thee behind me, lawyer. Physicians (and others) have rightly deplored a regime of lawyers at the bedside. To be sure, recourse to the courts is sometimes inescapable. However, the courts have properly kept their distance. The basic theme was sounded as early as Quinlan.

We consider that a practice of applying to a court to confirm such decisions would generally be inappropriate, not only because that would be a gratuitous encroachment upon the medical profession's field of competence, but because it would be impossibly cumbersome.(2)

The opinion suggested that the courts could stay out because of a tradition of bedside treatment decisions without court involvement, and because of a trust that medical standards exist to govern decisions about life-sustaining treatment. There was also no legal tradition of required review for the decisions involved in termination of treatment and care of the dying.

Would the courts have been so sanguine to leave these decisions to the bedside participants if one of the weapons in the physician's arsenal were lethal injection or other means of active euthanasia? I doubt it. There is no medical tradition of euthanasia to govern the practice--in fact the act has traditionally been abhorred by the medical profession. Moreover, there is a clear legal tradition of required and extensive review whenever a person is to be killed directly; capital punishment is the paradigm. Thus, were active euthanasia one of the options, it is hard to believe the courts would not require considerably more review, process, and formality.

Anxiety over the law would increase as well. The rule against euthanasia has helped keep the courts not only out of sight but out of mind. As the law's attention has turned to the termination of treatment beginning with Quinlan, it has been tough to persuade clinicians that what they should do is continue practicing good and ethical medicine. Instead, legal concerns have loomed large. Fear of the law and erroneous myths about its dictates run rampant, exacerbated by poor legal advice. It has been a struggle to assure clinicians that the law is actually quite deferential to medical standards. A linchpin to that proper reassurance has been that the law has recognized repeatedly that good-faith treatment decisions are not the province of the criminal law.(3) The prosecutors are not roaming the halls.

Yet this assurance could not have been offered if euthanasia were part of the physician's arsenal. Even if euthanasia were entirely decriminalized, prosecutors would still patrol the margins, checking for error and abuse. And they would be right to do so. Decriminalization would carve out an exception to the criminal interdiction of direct killing. But beyond the borders of this safe area would lie behavior that is well within the purview of the criminal law. Indeed, homicide is its heartland. This is in marked contrast to the law on termination of treatment. Those treatment decisions have traditionally been made without legal interference, subject to civil rather than criminal accountability.

Thus, authorizing euthanasia would bring a whole new set of actors into the room--the agents of the criminal law: prosecutors and police. We have struggled to keep them out since Quinlan, and to keep the minds of all those present fixed first on the patient's needs rather than their own needs for legal protection. Were euthanasia approved, that struggle would surely be lost.

The Scope of the Right. Proponents of euthanasia frequently advocate restricting the category of those eligible; the recited requirements often include competence, terminality, and intractable pain.(4) In contrast, the courts in the termination of treatment cases have gradually recognized that the category of those who can refuse life-sustaining treatment, or have it refused on their behalf, is very broad.(5) From the start that category has included the incompetent, but it also now includes those who are not terminal, and indeed could live for many years. It further includes those whose burden is not maximal, and even those who feel no burden at all, the unconscious.

Would vindication of the right to refuse treatment have extended so far if there were a right to euthanasia limited to a narrow set of patients? Theoretically the two groups might be differently delimited, yet this would generate substantial tension. This point can be turned into a slippery slope argument: that access to euthanasia, even if initially limited, would gradually have expanded to all groups recognized to possess the right to refuse treatment. However, the argument can run the other way as well: that if euthanasia were an accepted option limited to the few, this would exert pressure similarly to confine the right to refuse treatment.

Indeed, the latter is probably the stronger likelihood. The legislatures have typically restricted to the terminally ill the statutory protection of the right to refuse treatment through an advance directive.(6) The courts in some cases have likewise shown a tendency to confine the right to refuse to the terminally ill. And the courts have periodically suggested that this right belongs only to those in very bad shape or whose treatment is a particularly dismal ordeal.(7) This inclination to restrict the category of those who can refuse life-sustaining treatment has generally been beaten back in the courts. But against the background of a restricted right to euthanasia, the inclination might well have prevailed.

With limited euthanasia permitted, even the inclusion of incompetents among those entitled to termination of treatment might have been threatened. The recent O'Connor and Cruzan cases reveal lingering skepticism about treatment refusal for incompetents. In O'Connor the highest court of New York, which had already confined surrogate decision-making in a way that rejected the approach prevalent in other jurisdictions, further confined it. Now in New York a surrogate can only refuse life-sustaining treatment on behalf of an incompetent patient when the patient has left clear instructions covering the treatment question that arises. The degree of foresight demanded is entirely unrealistic. In effect, the Court of Appeals has deprived most New York citizens of the right to refuse treatment once they lose competence.

The Cruzan decision is equally skeptical. There the court found that the state's interest in maintaining life outweighed the right of a patient in a persistent vegetative state to have a feeding tube removed. The Cruzan court was sweepingly disapproving of surrogate decisionmaking. But in dicta they went even further, offering comments disparaging the whole notion that a patient's choice prevails, whatever her prognosis. The decision shows a clear urge to narrow the category of those who can refuse treatment or have it refused on their behalf.

If the courts are beginning to show some inclination to retreat from their prior liberalism, allowing euthanasia would only give momentum to that trend. It would increase the courts' vigilance over the full set of decisions being made, termination of treatment decisions as well as euthanasia. The question is then whether the category of those who can refuse life-sustaining treatment would not be limited over time to bring it more into line with whatever category of patients could opt for euthanasia--presumably the competent, terminal, and severely burdened.

Humanizing the Edge. It is not a new claim that rejecting euthanasia has forced us, and continues to force us, to focus on how to supply palliative care and pain relief expertly. If we had permitted the "out" of euthanasia, there would have been less pressure to make the sometimes painful end a bearable process.

Yet this familiar claim is really part of a larger point. By refusing to allow euthanasia, we have strengthened our commitment to supporting those who face great discomfort and death. We pay enormous attention now to the proper care of the dying. Devotion to detail in this entire area of clinical practice--whether to the role of weaning when a respirator is withdrawn, or the merits or demerits of "Do Not Intubate" orders--has been intense. Still, there is more to be done.

The more freely available euthanasia, the greater the temptation to avoid these complexities of care altogether. The case recounted in "It's Over, Debbie"(8)--though the case may be fictional and would be disapproved by even an ardent proponent of euthanasia--illustrates the point. There the administration of euthanasia effectively short-circuits steps that might have been taken to address the patient's needs for pain relief and support. It is easy to declare with great fanfare that we will brook no diminution in our commitment to supporting and caring for those at the edge, even if euthanasia is allowed. But the lesson of "Debbie" is more potent than that. Clinicians are fallible, hospitals are bureaucracies, and stress is real. There is ample cause to fear that providing an exit marked "euthanasia" would make all--families, clinicians, and researchers--less prone to linger in the room of the dying.

A Safer Context for Ambivalence. A number of scholars have counseled careful attention to ambivalence and conflict at the bedside. One important voice has been Jay Katz, who has argued that conflict in the doctor-patient relationship is inevitable.(9) Certainly conflict can be avoided if the patient is willing to act in a subservient and nonparticipating manner.(10) But law, ethics, and the conventions of clinical practice now urge that the patient do otherwise--that the patient act as partner.

Robert Burt has likewise illuminated the ambivalence that pervades the doctor-patient relationship:

Rules governing doctor-patient relations must rest on the premise that anyone's wish to help a desperately pained, apparently helpless person is interwined with a wish to hurt that person, to obliterate him from sight.(11)

This ambivalence jumps out of the text of "It's Over, Debbie." The author, supposedly a gynecology resident, writes of entering the patient's room and feeling "It was a gallows scene..." Clearly, to the resident the scene is not just an occasion for mercy; this is an execution.

If we take seriously the insight that conflict, ambivalence, and the wish to harm abide in all clinical relationships, then the prohibition of euthanasia is a great comfort. The clinicians and family, even as they predictably wish the patient's death at times, will not be able to bring it about through euthanasia. Nor will the patient be able to command the same.

The very fact that people sometimes wish for the power to kill the patient outright should make us extremely hesitant to cede them that power. Often the opposite is suggested, that the existence of the wish is good reason for granting it. Yet one can only argue from the wish to its fulfillment by ignoring the dynamic Katz and Burt describe.

The existence of the limit we now have--the prohibition of active euthanasia--has thus made the bedside a safer place in which to work out the emotions that attend termination of treatment decisions and death, than were that limit absent. Safer in two senses: First, literally safer for the patient. She will not be killed by euthanasia no matter who wishes it. Nor will there be an opportunity to abuse some accepted process of active killing. Second, the prohibition makes the bedside a safer place for everyone else. They can recognize and deal with their wish for the patient's death. There is no threat that this wish will be fulfilled in an act of euthanasia.

"And Lose Tomorrow the Ground

Won Today"

The focus of my argument is narrow: not the immorality of euthanasia, its incompatibility with the mission of doctors, the difficulty of devising a protective but humane process for its administration, or the potential for slipping into killing the defenseless. Rather, this is a look at the territory already claimed, the gains already achieved. The progress made toward decent law and practice for the termination of treatment has relied in part on the illegality of euthanasia. Any argument for easing that prohibition must deal with the consequences--the threat to that progress, the advance of the flood waters, the loss of ground hard won.


The author would like to thank George Annas, Daniel Callahan, and Fenella Rouse for helpful discussion, and the Greenwall Foundation for its support.

References 1 In re O'Connor, No.312 (N.Y. Oct. 14,1988); Cruzan v. Harmon, No. 70813 (Mo. Nov. 16, 1988); N.J. Assembly No. 3084 (1988). 2 In re Quinlan, 355 A2d 647, 669 (N.J.), cert. denied sub nom., Garge v. New Jersey, 429 U.S. 922 (1976). 3 See generally Leonard H. Glantz, "Withholding and Withdrawing Treatment. The Role of the Criminal Law," Law, Medicine & Health Care 15:4 (1987/88),231-41. 4 See, for example, Marcia Angell, "Euthanasia," New England Journal of Medicine 319:20 (1988), 1348-50 (Dutch restrictions); Yale Kamisar, "Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation," in The Slide Toward "Mercy Killing", Child and Family Reprint Booklet Series (1987), 4-5 (English and American proposals). 5 See Daniel Wikler, "Not Dead, Not Dying? Ethical Categories and Persistent Vegetative State," Hastings Center Report 18:1 (1988), 41-47. 6 See Society for the Right to Die, Handbook of Living Will Laws (1987 edition). 7 See, for example, In re Quinlan; In re Conroy 486 A2d 1209 (N.J. 1985). 8 "It's Over, Debbie," Journal of the American Medical Association 259:2 (1988),272. 9 Jay Katz, The Silent World of Doctor and Patient (New York: Free Press, 1984),99. 10 See Susan M. Wolf, "Conflict Between Doctor and Patient," Law, Medicine & Health Care 16:3-4 (Fall/Winter 1988), 197-203. 11 Robert A. Burt, Taking Care of Strangers, (New York: Free Press, 1979), vi.
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Title Annotation:Mercy, Murder, & Morality: Perspectives on Euthanasia
Author:Wolf, Susan M.
Publication:The Hastings Center Report
Date:Jan 1, 1989
Previous Article:The California Humane and Dignified Death Initiative.
Next Article:Assisted suicide: pro-choice or anti-life?

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