Phisician Assisted Euthanasia

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Physician Assisted Euthanasia




               Edited by
          Rajitha Tadikonda




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            Amicus™ Books
       The Icfai University Press
Physician Assisted Euthanasia
Editor: Rajitha Tadikonda
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                               Contents

Overview                                                           I


1.   A History of Ideas Concerning the Morality of Suicide,        1
     Assisted Suicide and Voluntary Euthanasia
     Craig Paterson

2.   Euthanasia – A Dignified End of Life!                        45
     Vaibhav Goel

3.   Assisted Suicide – How Far Justifiable?                      65
     Dr. B. R. Sharma

4.   Physician Assisted Death: From Rhetoric to Reality in        85
     Oregon
     Arthur Birmingham LaFrance

5.   Bioethics and Law in the United States: A Legal Process     104
     Perspective
     Charles H. Baron

6.   Intractable Pain, Palliative Management and the Principle   134
     of Medical Futility
     George P. Smith, II

7.   Physician-Assisted Suicide: A Review of the Literature      169
     Concerning Practical and Clinical Implications for UK
     Doctors
     Madelyn Hsiao-Rei Hicks
8.   The Right to Die with Dignity: An Argument in Ethics       213
     and Law
     Raphael Cohen-Almagor

9.   De-Moralized: Glucksberg in the Malaise                    229
     Steven D. Smith

10. In the Laboratory of the States: The Progress of            255
    Glucksberg’s Invitation to States to Address End-of-Life
    Choice
     Kathryn L. Tucker

11. Can Legalization Improve End-of-Life Care? An Empirical     280
    Analysis of the Results of the Legalization of Euthanasia
    and Physician-Assisted Suicide in the Netherlands and
    Oregon
     Jackson Pickett


     •    List of Cases                                         323

     •    Index                                                 325
                              Overview

The word Euthanasia originated from the Greek language: eu means “good”
and thanatos means “death”. The Merriam-Webster dictionary defines
euthanasia as derived from the Greek for “easy death” is “the act or practice
of killing or permitting the death of hopelessly sick or injured individuals …
in a relatively painless way for reasons of mercy.” It is also the intentional
termination of life by another at the explicit request of the person who
wishes to die. The term euthanasia normally implies that the act must be
initiated by the person who wishes to commit suicide. However, some
people define euthanasia to include both voluntary and involuntary
termination of life. In “Voluntary Passive Euthanasia” (VPE) or assisted
suicide, physician supplies information or the means of committing suicide
for example a prescription for lethal dose of sleeping pills, or a supply of
carbon monoxide gas. Proponents of euthanasia and assisted suicide often
use euphemisms like “deliverance,” “death with dignity,” “aid-in-dying” and
“gentle landing”. PAS is to bring about death for “compassionate reasons”.
It begins with a patient’s request for help in ending their life. Usually, the
physician offers counseling, information, and instructions to the patients
who want to end their life.
II


There are certain conditions to perform physician-assisted suicide. A
physician prescribes the medication that will end the patient’s life but does
not otherwise participate in the act. The first requirement is that the patient
must have a condition that is incurable and associated with severe,
unrelenting suffering and understand the prognosis. Secondly the physician
must be sure that the request is not made because of inadequate control of
pain control. Thirdly the patient must repeatedly be firm in his request to
die. Fourth condition is that the physician must be sure of patient’s
judgment. Fifth, the physician-assisted suicide should be carried out in a
meaningful doctor- patient relationship so that the physician is not forced to
participate in any act that he deems unethical. Sixth condition is
consultation with another experienced physician to ensure that it is a sincere
request. Under the Oregon Death with Dignity Act 1997 patients of only
sound mind can request for a prescription of a lethal dose of medication.
Hence two doctors must confirm a diagnosis of terminal illness with not
more than six months to live. Two witnesses, one non-doctor who is not
related to the patient, must also confirm the patient’s request, and the
patient must make a second request after 15 days.

The ethics of PAS continue to be a topic of debate. Some argue that PAS is
ethical. Often this is argued on the grounds that PAS is a rational choice for
a person who desires to escape unbearable suffering. Furthermore, the
physician’s duty to alleviate suffering may, at times, justify the act of
providing assistance with suicide. These arguments rely a great deal on the
notion of individual autonomy besides recognizing the right of competent
people to choose for themselves the course of their life, including how it has
to end. The opponents argue that PAS runs directly counter to the
traditional duty of the physician to preserve life. Furthermore, many argue if
PAS is made legal, abuses could take place. For instance, the poor or elderly
might be covertly pressurized to chose PAS over more complex and
expensive care options.
                                                                             III


Over the last decade advocacy for PAS has arisen in a number of
jurisdictions in favor of the legalization of physician-assisted suicide.
Physician-assisted suicide and euthanasia are legal in the Northern Territory
of Australia but are illegal in many countries. In the Netherlands, physician-
assisted suicide and euthanasia are illegal but have been permitted under
certain guidelines. In the United States, the legal status of physician-assisted
suicide varies across the states. Oregon and Washington passed laws
permitting assisted suicide. Belgium permits both euthanasia and assisted
suicide. Although euthanasia and assisted suicide are illegal in Switzerland,
assisted suicide is penalized only if it is carried out “with selfish motives”.

In the clinical setting, a request for physician-assisted suicide or euthanasia
should be taken seriously. It is important to clarify a request, assess the
underlying motives and re-emphasize the alternatives. Our society greatly
needs ways to improve end-of-life care. The Court’s rulings also recognize
this importance and leave it to the state to decide to enact laws to assist
patients who wish to end their lives in exceptional circumstances.

This book attempts to give an idea of the topics currently being debated
with respect to physician assisted suicide.

In the article “A History of Ideas Concerning the Morality of Suicide,
Assisted Suicide and Voluntary Euthanasia” author Craig Paterson
explores questions concerning the legitimacy of the practices of suicide,
assisted suicide, and voluntary euthanasia. The aim of this article is of
identifying some of the main historical protagonists, and delineating some
of the key arguments that have been used for the acceptance or rejection of
these practices.

Author Vaibhav Goel in his article “Euthanasia – A dignified end of life!”
opines that The term “Voluntary Passive Euthanasia” (VAE) is becoming
commonly used for physician assisted suicide. In VAE a physician supplies
information and/or the means of committing suicide to a person, so that he
IV


can easily terminate his own life. In ancient Greece and Rome helping
others to put an end to their lives was permitted in certain situations. Indian
philosophical tradition has justified the idea of wishing to die at one’s will.
Veer Savarkar and Vinobha Bhave are the well known examples who choose
to end their lives by refusing the intake of food. Even Mahatma Gandhi
supported this idea. Mythology says Lord Rama and his brother took
Jalasamadhi in river Saryu near Ayodhya. Ancient history tells that Lord
Buddha and Lord Mahavir achieved death by seeking it. These mythological
beliefs suggest that trace of right to die existed in various religions followed
in India. Rishi Dadhichi is also known to have chosen his death.
In the article “Assisted Suicide – How Far Justifiable?” author B. R.
Sharma opines that would be in the best interest of dying patients to be able
to regulate practices that are currently being used covertly for assisted
suicide. Such regulations would also provide safeguards for practitioners
who are currently complying illegally with patient requests out of
compassion. Medical arguments contend that competent and terminally ill
patients wishing to choose assisted suicide may feel abandoned by physicians
who refuse to assist them. The criticism that doctors agreeing to assist in
suicide would be violating the Hippocratic Oath is refuted on several
grounds. Legal arguments against assisted suicide include concerns about
civil suits resulting from premature or unnecessary termination of life
following a diagnostic error or incorrect prognosis. There are also concerns
over enforcement of legal procedures devised to prevent against misuse,
abuse and improper application or coercion in assisted suicide.
In the article “Physician Assisted Death: From Rhetoric to Reality in
Oregon” author Arthur Birmingham LaFrance explains how Oregon,
adopts legislative authorization for physicians to assist people to die.
Oregon’s Death with Dignity Act became effective in 1997. The Oregon’s
Death with Dignity Act is available only for Oregon residents. A number of
other states have considered similar laws, but so far have not chosen to enact
similar legislations. Australia briefly had a physician assisted death statute in
                                                                          V


the Northern Territory in 1996 and the Netherlands adopted authorizing
legislation in 2002. But each was different from Oregon’s legislation in
significant ways.
Author Charles H. Baron in his article “Bioethics and Law in the United
States: A Legal Process Perspective” expresses the view that tension
between pro-life and pro-choice political forces in the United States has
shaped the development of “the right to die” from its beginning. The
movement was intended to improve the living conditions of terminally ill
patients and to prevent them from being forced by outdated laws to endure
long periods of suffering and indignity as part of the dying process.
However, American courts have, for the most part, continued to play their
traditional role of moderating extreme influences of the movement and
protecting traditions of individual liberty in many areas of the law,
including that regarding “the right to die.”

In the article “Intractable Pain, Palliative Management and the Principle
of Medical Futility” author George P. Smith, II examines the issue of
existential or psychological pain and how it has been dealt with by hospice
or palliative care—concluding, as such, that terminal or deep sedation
should be embraced more widely within the Ethic of Adjusted Care as a part
of the compassionate management of the dying. As the role of the patient
increases in choosing care, so does the debate surrounding futile care. It
might be suggested that futility is the point at which one should draw the
line on the advancement of patient autonomy.

In the article “Physician-Assisted Suicide: A Review of the Literature
Concerning Practical and Clinical Implications for UK Doctors” author
Madelyn Hsiao-Rei Hicks summarizes some of the problematic, clinical and
practical issues that became apparent from a review which undertook to
clarify what evidence exists to make a case for or against PAS. Requests for
physician-assisted suicide and doctors’ decisions to assist suicide can be
influenced by coercion and by unconscious motivations in doctors, patients
VI


and caregivers. Depression is greatly under-recognized in terminally ill
patients and increases the risk of the inappropriate use of PAS. Depression
influences requests for hastened death in terminally ill patients, but is often
under-recognized or dismissed by doctors, some of whom proceed with
assisted death anyway. Psychiatric evaluations, though helpful, do not solve
these problems.

In the article “The Right to Die with Dignity: An Argument in Ethics
and Law” author Raphael Cohen-Almagor discusses the way people wish to
die, analyzing the legal situation in countries that permit either euthanasia
or physician-assisted suicide. It is also very sad, and many people cannot
cope with the fact that their loved one is suddenly dying. For these reasons,
the physician assisted suicide decision has to be adopted without any
pressures. The patient should state this wish repeatedly over a period of
time. This recommendation is similar to the one invoked in laws and
guidelines in Oregon, the Netherlands, Belgium and Australia.

Author Steven D. Smith in his article “De-moralized: Glucksberg in the
Malaise” expresses the view that with respect to the specific legal issues
presented in the case Washington V Glucksberg, Glucksberg remains, as a
good law so that States may choose to prohibit physician-assisted suicide.
Conversely, in so far as Glucksberg announced a more general framework to
constrain the unruly enterprise of “substantive due process,” the decision
status is precarious. Allusions to “letting nature take its course” in
controversies like Glucksberg are vestiges of thinking on subjects like suicide
and euthanasia that has occurred over the centuries, but that often has been
more forthright about its assumptions with respect to the normative
dimension of nature.

Author Kathryn L. Tucker in her article “In the Laboratory of the States:
The Progress of Glucksberg’s Invitation to States to Address End-of-
Life Choice” opines that the debate on assisted suicide has indeed
continued for the past ten years, and there have been two particularly
significant developments worthy of close examination.
                                                                         VII


First, Oregon has been implementing its Death with Dignity Act (“Dignity
Act”) since 1997. Second, an important evolution has occurred in the
terminology used to discuss the choice of a mentally competent, terminally
ill patients to self-administer medications to bring about a peaceful death.
The term “assisted suicide” has been replaced with more accurate and value-
neutral terms such as “aid in dying” or “physician assisted dying. The
availability of the option of aid in dying gives the terminally ill autonomy,
control, and choice, which physicians in Oregon have identified as the
overwhelming motivational factor behind the decision to request assistance
in dying.

Author Jackson Pickett in his article “Can Legalization Improve End of-
Life Care? An Empirical Analysis of the Results of the Legalization of
Euthanasia and Physician-Assisted Suicide in the Netherlands and
Oregon” opines that there is an impressive series of reports from the
Netherlands and Oregon summarizing the results of legalization of assisted
suicide and euthanasia. In both the Netherlands and Oregon, vulnerable
groups are less likely to select euthanasia or assisted suicide. The mentally
handicapped, psychiatric patients, and children are underrepresented among
patients selecting euthanasia or assisted suicide in the Netherlands. Most
physician-aided deaths without the patient’s consent occur with treatment
of symptoms or ending of treatment; both are part of normal medical
treatment.
                                                   1
    A History of Ideas Concerning the
    Morality of Suicide, Assisted Suicide
        and Voluntary Euthanasia
                                              Craig Paterson*

        The article examines from an historical perspective some of the
        key ideas used in contemporary bioethics debates both for and
        against the practices of assisted suicide and euthanasia. Key
        thinkers examined--spanning the Ancient, Medieval and Modern
        periods--include Plato, Aristotle, Augustine, Aquinas, Hume,
        Kant, and Mill. The article concludes with a synthesizing
        summary of key ideas that oppose or defend assisted suicide and
        euthanasia.”


Introduction

Q   uestions concerning the legitimacy of the practices of suicide, assisted
    suicide, and voluntary euthanasia are some of the most controversial applied
    ethical topics currently being debated. 1 However, the issues raised by those
debates are not new, and have a long history informed by many centuries of
thought. 2 The challenge of engaging in an exhaustive review and analysis of that

*   Consultant Bioethicist and Independent Scholar based in California, USA.
    E-mail: cpaterson65@aol.com

© 2005 Craig Paterson. All rights reserved.
2                      PHYSICIAN ASSISTED EUTHANASIA



history would, however, take us way beyond the scope of this article. The aim of
this article, rather, is the more modest one of identifying some of the main
historical protagonists, and delineating some of the key arguments that have
been used concerning the acceptance or rejection of those practices. Due to
practical limitations concerning the scope of the article, our analysis will be
confined to the ‘stage’ of the Western tradition. 3

    Further, concerning questions of scope, it should be pointed out that it will not
give any substantive consideration to an evaluation of the claims of Christian
faith concerning the existence or non-existence of prohibitions contained in
Hebrew or Christian Scripture against the practices of suicide and euthanasia.
The evaluation of such special or privileged sources of knowledge concerning
morality are beyond the scope of our inquiry, based as it is on philosophy, not
theology. This question of scope is not to discount the importance of such lines of
inquiry concerning the relationship between faith and reason. 4 Rather, it is
merely to state that the scope necessarily has to be limited to questions of what
can and cannot be justified by natural reason in the light of our attempt to pose
publicly accessible reasons that can, in principle, inform ‘secular’ morality and
law in this area. 5

   The history of suicide and euthanasia practices may, at first glance, seem to
have only a distant influence upon the contemporary debate. Yet, the historical
development of thinking on the subject is vital if we are to adequately
contextualise the contemporary arguments made against traditional negative
prohibitions; prohibitions that have hitherto formed the status quo in the West. 6
Being able to claim historical support lends credence to claims, especially when
those figures or sources appealed to have had a significant impact on
contemporary patterns of thought. 7 It is to the task of reviewing and analysing
those historically rooted ideas, that I now turn.

Ideas from Greek and Roman Thought
Socrates/Plato
In the thought of Socrates and Plato, the idea of an objective order of moral
truth, based upon an examination of human nature, as apprehended by the use
of human reason, is discussed and defended. 8 The human person is not merely
               A History of Ideas Concerning the Morality of Suicide,                3
                     Assisted Suicide and Voluntary Euthanasia


an instinctual creature, but is also a creature of reason. The human person
possesses a higher power or intellect that is capable of apprehending knowledge
of an array of concerns, including a knowledge of what constitutes good human
conduct. 9

    For Socrates and Plato, ignorance of objective truth concerning the good life
is ultimately a constitutive source of misery and unhappiness. 10 The exercise of
wisdom in the conduct of life is the central focus of Socratic ethics. The good life
was not merely the useful or the pleasant. Rather, at is most perfect, it was to be
equated with the noble good of the interior life of the human soul. 11

    Turning to a brief assessment of the characterisation of Socrates’ view on the
human soul, it is important to consider a text that relates the last days of his life –
the Phaedo [61d]-[62d]. Here Socrates presents something of a Pythagorean
opposition to the idea of suicide. 12 Life is not the possession of the person, to be
taken or disposed of at will. As dependent beings, we have been placed in the
body by the gods and are therefore not free to abandon this station. 13 Socrates
certainly recognises the many impediments to wisdom that the human body can
place in the path of a seeker of truth – pain, suffering, desires, etc. However, the
body cannot ultimately be despised, since it is a necessary instrument. 14 Any
dualism between body and soul that exists in Socrates’ thought does not
therefore entail the necessary conclusion that the care of the body can be
readily rejected once certain impediments to the flourishing of the person come
into play. 15

     For Socrates and Plato, there is a fundamental teleological good in
overcoming deficiencies in this life in preparation for life after death. For, if this
were not so, why could not death be more quickly sought by intentional design?
It is precisely this sort of challenge that Augustine would subsequently make to
those over-eager for the choice of martyrdom. 16 Here, I think, Socrates is relating
something of an embryonic discrimination between wishing or anticipating an
outcome and deliberately and intentionally acting to bringing that outcome
about. 17

  Critics of Socrates’ opposition to suicide in the Phaedo turn to Plato’s
Republic as offering some support for the licitness of suicide or voluntary
4                      PHYSICIAN ASSISTED EUTHANASIA



euthanasia under certain circumstances. Does not Plato argue that rational
suicide is possible where there is an incurable and wasting disease or disability
that the person is suffering from? 18

    It does not follow, however, as Cooper perceptively argues, that Plato’s
argument in Republic III 405a-410 leads to that conclusion. 19 The discussion is
set within the boundary of what is just, a term that has a deep, objective
teleological reality for Plato. Plato understood that there was a natural law, or a
natural justice, which was the foundation of all law. The laws of a state should be
just in that they should reflect and participate in the Ideal Laws, and justice
should reflect and participate in those ideals. It is not ideal justice to strive
officiously with every possible means to keep alive. 20 The soul has an ultimate
purpose beyond bodily life. To maintain the body at all costs may actually harm,
not further, the perfection of the soul. There is, for Plato, a via media to be
discerned (albeit somewhat anachronistically) between the use of every means to
sustain bodily life and what can be termed ‘reasonable means’ based on an
assessment of the person’s benefits and burdens. The tenor of what Plato is
advocating here is more a case of what we would now call cases of allowing to
die rather than cases of intentional self-killing. 21

    Our concise analysis of Plato’s thought derives an added layer of complexity
due to his discussion of suicide in the Laws [873c-d]. 22 Some commentators have
argued that Plato, when he is removed from the context of a deep metaphysic,
influenced by mysticism, states his support for certain acts of suicide and
euthanasia. 23

     I find such a conclusion unconvincing, however, since the apparent exceptions
listed in support of this claim – compulsion, misfortune, disgrace – need not be
interpreted as dispensations from the general ground shared by Socrates and
Plato for opposition to those practices. 24 Rather, they can be plausibly interpreted
as enacting ameliorative legal measures designed to show some compassion
towards those who have acted in taking their own lives. They should not, for
example, be denied a burial by family members. This hardly seems to imply a
condonation of the practice but rather an easing of the otherwise harsh effects of
Athenian law. 25
               A History of Ideas Concerning the Morality of Suicide,              5
                     Assisted Suicide and Voluntary Euthanasia


Aristotle
Moving on to consider the thought of Aristotle, we see that he raises the question
of the licitness of suicide in the Nicomachean Ethics [1138a]. 26 For Aristotle,
every human act, performed voluntarily and intentionally, has a built in
purposefulness – a teleology. His ethics is, therefore, an inherently teleological
one, the purpose being a good life centred on the pursuit of human happiness
(flourishing). 27 Intellectual and moral virtues are required in order to promote the
integral pursuit of full human development. 28 It is the task of prudence to discern
in the particular context of action, the practical undertaking, of ‘doing’, what is
an appropriate fit between the action and the goods that form the proximate
ends of the action. 29

   For Aristotle, one of the moral virtues to be considered in relation to suicide is
justice – the moral virtue of rendering to each person his or her due. As with
Plato, Aristotle also considered the act of suicide to be an act of injustice, but he
reached that judgement on different grounds. Suicide per se is not considered an
act of injustice against the person who takes his or her own life (i.e., against the
interests of perfecting the human soul, as it was for Socrates and Plato), but
rather, is considered an act of injustice against the very state or society that is
deprived of the shared participatory life of that person. 30 For Aristotle, justice
requires an interpersonal dimension. Thus, whilst persons, strictly speaking,
cannot render unto themselves an injustice, such an injustice can be visited upon
forms of human society. 31

   Aristotle’s analysis concerning justice does not end here, for he thinks that
laws should help to render people virtuous and suppress vice. If suicides
generally were determined to be acts contrary to virtue in other ways, the law
could seek to function to justly suppress that vice. Aristotle makes such a
judgement under the heading of a vice against moderation (or temperance) in
the Nicomachean Ethics at [1116a]. Suicide is considered wrong because it is
not a moderate act, but rather, is judged an excessive act. It can be summarised
by the judgement that he considered suicide to result from a lack of courage, a
weakness in the face of affliction, or from the contrary excess, rashness, i.e., an
excess of courage. 32 The person of practical wisdom (the phronimos) is the very
6                       PHYSICIAN ASSISTED EUTHANASIA



person, who, by the cultivation and application of the intellectual virtue of right
reason, is able to discern the mean between excesses. Thus, for Aristotle, no right
thinking, well balanced person, would commit the immoderation of suicide. 33

    This passage seems to illustrate a general opposition to suicide (per se) since
a person is said to lack the requisite fortitude needed to put up with the trials and
tribulations of life’s lot. James Rist and Droge and Tabor, however, assert that
Aristotle’s remarks should not be taken as a condemnation of suicide as such. 34
They suggest that Aristotle appears to recognise exceptions, since the list of
exclusionary categories covered does not appear to be exhaustive. 35

   Yet, contrary to their interpretation on this point, it seems entirely plausible to
argue that an act of ‘rashness’ could also cover, say, the ignominy of loss in
battle, dishonour, etc., and that, in consequence, Aristotle does not endorse “the
normal Greek view,” that certain categories of suicide were morally acceptable to
the phronimos, the standard setter of right reason. 36

Stoicism
The Stoic philosophy of life and death was in large measure responsible for the
intellectual justification of suicide in later Greek and subsequent Roman society. 37
In Roman society, many of the famous ‘cults’ of suicide could trace their
inspiration to Stoic doctrines via the examples of the deaths of some of its
leading exponents. 38 The founder of the school, Zeno of Citium, was said to have
committed suicide by holding his breath because he had suffered a fall and had
fractured one of the digits of his foot. 39

    The Stoic philosophy was centred on the idea of determining the reason or
order of things – the logos – a kind of eternal metaphysical rationality governing
the structures of the universe. The primary object of life was to discern this
rationality, and to conduct both one’s life and one’s death in conformity to this.
Thus the goal of all human beings was to live in accordance with this reasoned
understanding of nature, as given by the logos. Decisions made should not be
governed by reactions to the world surrounding the individual, but by a cultivated
indifference to the things of the world as they can impinge upon the individual
will centred on the logos. 40
               A History of Ideas Concerning the Morality of Suicide,                7
                     Assisted Suicide and Voluntary Euthanasia


   The only goods present in human life were acts of virtue in conformity with the
logos, and the only evil, vice. All other acts were indifferent. Of indifferent acts,
there was a further categorisation into ‘indifferent but preferred’ and ‘indifferent
but not preferred’. 41 Life was normally to be preferred and death not normally to
be preferred. For a transition from one preference category to another, however,
the presence of a virtuous reason was required. For the Stoics, only suicide in
accordance with reason was morally acceptable, since it alone instantiated the
necessary virtue to justify the act. 42 What then were those conditions?

   Firstly, there was the notion of suicides in fulfilment of obligations to others.
Since life in itself was only a preference, a virtuous reason could be provided by
appealing to suicide for the sake of country, friends, family, causes, etc. 43

   Secondly, suicides associated with shame or dishonour. A good example of
this kind of suicide would be the death of Cato. After Cato’s troops, in the service
of Pompey, were defeated by Caesar, he decided to take his own life by stabbing
himself, thus absolving himself from the ignominy of defeat in battle. 44

   Thirdly, cases in the more contemporary sense of ‘rational’ suicide – self-
killing in order to offset the effects of pain, mutilation, or incurable illness.
Suicide was rational for anyone faced with an imbalance in the kind of things
likely to threaten the ability of the individual will to remain properly indifferent to
them. Death, so to speak, was an act of reasserting control, thus acting virtuously
in defeating the threat to indifference. 45

   Whilst there was a general acceptance amongst the Stoics that suicide could
indeed be a morally justifiable practice, there is a notable exception to this in the
thought of Cicero. 46 Cicero affirmed that there is indeed a natural law, accessible
to human inquiry, by the function of right reason to apprehend the ends of
human goodness. Whilst he agreed that there is a primacy to the internal good
of self-mastery over the impact of external contingencies, and with it a fostering
of the virtues necessary to achieve this, he affirmed the importance of
recognising the integration of the person in mind and body. 47 In a manner
somewhat reminiscent of the thought of Socrates and Plato, Cicero believed that
bodily life could not be treated as a dispensable instrumentality, a mere
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preference, in the pursuit of the more ‘noble good’ (i.e., the perfectibility of the
human soul). A person could not, in consequence, take his or her own life, even
in more extreme cases, unless there was a clear sign from the gods that the act
was in conformity with the natural law dictated by right reason (human reason in
conformity with the will of the eternal). 48

Epicureanism
Certain accounts of Epicureanism, such as the account posed by Robert Barry,
suggest that the Epicureans granted approval to suicides under any
circumstances. 49 Yet this is a somewhat overstated claim (coloured, no doubt, by
later contemporary images as to what adherence to a doctrine of ‘hedonism’
necessarily entailed). For example, the founder of the school, Epicurus, died in
quite a different manner from the death of Zeno of Citium. Epicurus died of
natural causes that resulted in immense pain during his last days. 50 On the face
of it, this seems odd, since the Stoic school taught that virtue was the good to be
pursued and the Epicureans hedonistic pleasure. Yet, the key to understanding
Epicurus’s stance is that he was in fact rather more wary of embracing suicide
than Zeno. He taught, for example, that an important part of the goal of meeting
our desires was to overcome fear of death (death representing annihilation or
extinction) and to resist the physical impulses of pain in order to achieve the
‘higher pleasure’ of overcoming this fear of death. 51

    Such nuances of thought can easily be glossed over under the belief that
Epicureanism was necessarily a narrowly hedonistic doctrine. Rather than being
heavily permissive towards the practice of self-killing, their attitude can be better
described as more one of toleration for those who were not able to demonstrate
the necessary degree of control. 52 It was far from being regarded as an ideal or
model to follow. 53 In Epicureanism, therefore, there was no widespread
enthusiasm for the practice of suicide, an enthusiasm present amongst many of
the Stoic writers. The boldest statement permitting certain suicides was made by
Hegesias who taught the desirability of suicide as a means of ending painful
existence that could no longer be endured. 54 Yet, even this endorsement was
significantly more restrained than the general impression current amongst
popular conceptions as to what Epicureanism actually entailed. 55
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Ideas from Augustinian and Thomistic Thought
Problem of Martyrdom
One of the perplexities to confront early Christian communities was the question
of human conduct in the face of persecution. Margaret Battin, for example,
makes the claim that prior to the teaching of Augustine, there was practically an
epidemic of “voluntary martyrdom” that threatened the very survival of early
Christian communities. 56 In my view, however, such a statement serves to confuse
more than it illuminates, for it fails to adequately consider the complexity of the
issue of what was deemed to constitute suicide. 57

    In analysing further questions of martyrdom, such cases almost have to be
judged on a case-by-case basis. Here, I will simply point out one possible model
that could be used, in certain cases, to justify martyrdom, and thus differentiate it
from cases of intentional self-killing. When faced with the challenge of
renouncing faith or facing death (or other punishment), the martyr accepts the
latter. Death may be foreseen as a certainty. The ‘call of eternal salvation’ can
even be ‘wished for’ and be a source of consolation. However, it does not
necessarily follow from a foreknowledge of the consequences, that death is, as
such, intended. Whilst the choice made is voluntary, to accept death rather than
deny faith, death itself need not be said to form a part of the scope of the
martyr’s intention. 58 In analysing cases of ‘voluntary martyrdom’ (whatever the
cause; defence of religion, defence of political goals, etc.), 59 the term merely
stresses a willingness to accept death for the sake of a ‘just’ cause, and does not
sufficiently discriminate between cases where martyrdom has been brought about
by means of self-intended death from those where it has not. 60

Augustine of Hippo
Although Augustine was heavily influenced in his thought by neo-Platonic
influences (e.g., by Plotinus and Boethius), he resisted any strong tendency to
devalue the corporeal body in anticipation of eternal life. 61 He stressed the gift of
life as a free gift of God to be reverenced and respected. 62 The incarnation was a
profound truth for Augustine as it was for Christians generally. Jesus accepted
death and in doing so brought about the redemption of the world. 63
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    Augustine’s understanding of the significance of the life of Jesus was in
contrast to those zealously eager for martyrdom (e.g., the Circumcellions and the
Donatists) a zealotry that, to his mind, neglected the gift of earthly life and the
duties of responsible stewardship. 64 Such responsible stewardship for Augustine
was evident in the case of Christian virgins who did not seek revenge for their
defilement by killing themselves, as had often been the Roman practice (Lucretcia
being the prototype of this form of martyrdom). 65 Their refusal to kill themselves
demonstrated the virtues of heroism and courage in the face of adversity. Thus,
for Augustine, such is the value of bodily life, that even such a grave affront to
human dignity could not justify an act of suicide. 66 Whilst he expressed
compassion for their predicament, such is the value of bodily life and the call of
responsible stewardship, that even those circumstances could not empower a
private individual with a right of authority to determine the manner and timing of
his or her own death. 67
    In Augustine’s interpretation, authentic martyrdom required a limitation of
means in witnessing faith. Death, even certain death, can be accepted or even
welcomed in anticipation of the good being pursued. However, it cannot be
attained by a resort to intentional self-killing (in contravention of his
understanding of the scope of the Fifth Commandment). 68 In contrast, authentic
martyrdom was considered to be an act which was aimed at the good of witness
and not at self-destruction. In Augustine’s thought here we can see the implied
use of the principle of double effect as it became known in subsequent tradition,
and which was itself considered to be a refinement of the Pauline maxim that evil
may not be done that good may come of it. 69

Thomas Aquinas
In Aquinas’s thought, we can observe a synthesising of Aristotelian philosophy
and Christian revelation. 70 With Aristotelian metaphysics, Aquinas was able to
more systematically explain the relationship of the soul and body in one ‘body-
person’. 71 The soul constituted the form of the body. The human being,
therefore, was neither essentially soul or body but rather a unique synthesis of
two principles of form and matter in one unitary substance. 72 Aquinas, therefore,
rejected any dualistic tendency to devalue the corporeal body instrumentally in
the name of the immortality of the soul (although dualism, as we have seen with
our discussion of Plato, need not be logically compelled to reach such a
conclusion). 73
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     Aquinas insisted that the elemental norms of the Decalogue can (in principle
at least) be apprehended by the use of right reason, accessible to all. 74 As such,
reason need not appeal to such special or privileged sources of knowledge to
inform common morality. Through the use of right reason, the human person
can recognise the goodness of certain basic inclinations of human existence. The
first self-evident precept apprehended by reason, operating practically, is that
“good is to be done and pursued and evil is to be avoided.” 75 Such a precept is
apprehended by the insight of practical reason. In pursuing and doing the good,
Aquinas means precisely the pursuit of those goods, apprehended by our
capacity for practical reason, as being genuine goods of the human person.
Aquinas enumerated (at least) five such primary goods perfective of the human
person, including the inclination to preserve human life in its existence. 76 Taken
together, these bona humana are directed to the intermediate end of human
flourishing (apprehended by reason), and are ultimately considered by Aquinas
to be ordered towards the final end of heavenly beatitude (apprehended by
faith). 77

    Concerning the preservation of human life, Aquinas, as with Augustine, made
certain exceptions for divine command intervening in the life of the person (e.g.,
Abraham’s sacrifice of his son Isaac), for the conduct of just war, and for the use
of delegated authority for the punishment of criminals. 78 Aquinas, however
clearly denies the licitness of any private use of intentional killing, whether self
inflicted or inflicted by another. 79

    Such denial of the private use of intentional killing can be seen in his
discussion of self defence, and can be said to represent the locus classicus of the
principle of double effect. 80 A person can use force, even lethal force, if
necessary (undertaken as a last resort), to protect human life from the action of
an aggressor. 81 A crucial qualifying point here, however, is that the use of lethal
force need not have the intended object of inflicting death as the means of
bringing about the good of protecting human life from unjust attack. Aquinas
stressed the scope of the person’s intention relating to the order of goodness.
The object intended needs to be self protection and not the actual death of the
aggressor. 82
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    Turning now to his analysis of suicide in II-II, q. 64. a 5, Aquinas posits four
reasons for a condemnation of suicide. In Aquinas’s first non-philosophical
argument, he rejected suicide on the basis of a claim to have dominion. Such a
power belongs to God (and in certain limited circumstances to God’s delegates
in civil government), not to the individual. 83

    Secondly, he considered suicide to be an act of injustice against the
community. Drawing upon Aristotle, he developed the notion that the individual
does not exist as an isolate, whose individual actions consequently cannot be
severed from their impact on the wider community, instantiated in the framework
of a shared participatory common good. 84 Such is the value of innocent human
life that a community may never justly sanction its taking. One of the primary
rationales for the justification of state authority and the force vested in it is
precisely to protect innocent human life from all threats of private killing that
disturb the order of a common framework of mutual obligation. 85

    Thirdly, Aquinas’s main natural law argument against suicide in and of itself,
concerns the basic apprehension of the good of human life itself, one of the
bona humana, corresponding to the natural inclination to preserve life. Being
human, for Aquinas, entails an apprehension of the nature of this good as
understood by our capacity for practical human reason. 86 To intentionally act
against such a good is therefore to disrupt the order of moral goodness
communicated to us by our capacity for practical reason, that grasps the nature
of certain goods, and with it, the duties imposed upon choice that we have in
relation to the proper apprehension of those values. 87

    Fourthly, to act contrary to this good was to act against charity – love owed to
all – including the self. Suicide was regarded as an infliction of harm against this
charity owed to self. One cannot truly love the self (in terms of the full
signification of what is said to truly perfect or actualise the self) and yet
intentionally seek the very destruction of self (an act of ontological deprivation
that intentionally wounds the self by self-inflicted destruction). 88

   Finally, in an earlier article of the Summa, II-II q. 58, a. 1, Aquinas reiterates
Aristotle’s objection to suicide as an act against the virtue of fortitude. All people
have a responsibility to develop the required virtue to do what is right even under
the most pressing of circumstances. This requires the cultivation of resolve in the
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face of pressure to the contrary. In an act of suicide, there is not the required
resolve present to suffer the effects of adversity and thus hold on to that which is
constantly good – the innocent life that continues to inhere in the body of the
person. 89

Francisco de Vitoria
To inquire in to the subsequent development of scholastic and neo-scholastic
thought would take us too far afield, limited as we are by the constraints of
length. 90 It must suffice, for our purposes, to note the work of Francisco de Vitoria
as indicative of the trend of further refinement in the arguments already
essentially adduced by Aquinas – firstly, the development of casuistry in the
differentiation of seemingly similar cases (informed by an analysis of the
principle of double effect), and secondly, the extent to which a person was
subjected to measures to preserve his or her own life. 91

    In his De Homicidio and his Commentary on the Summa Theologiae II-II
q. 64, we find Vitoria ruling out all forms of direct self-killing as contrary to the
inclination to preserve human life. 92 However, certain forms of self-killing which
may apparently be considered intentional acts of self-killing cannot be regarded
as such. It is here that Vitoria introduces a certain ‘fleshing out’ of Aquinas’s
thought on the legitimacy of, and scope for, the operation of the principle of
double effect.

    It is sufficient here for the purposes of illustration to consider only one case –
the martyr, Apollonia. She is said to have leapt into the fire prepared by her
tormentors to kill her. Did she not intentionally will the hastening of her own
death? Vitoria, argues, however, that such a judgement would be mistaken.
Firstly, she did not intentionally co-operate in her own death. She was assuredly
going to be executed shortly anyway and there was no possible means of
escape. Rather, in acting the way she did, she intended only to deprive her
tormentors of the further pleasure of holding unjust power over her life. Her
precise scope of intention then could be described as ending the spectacle, and
in doing so, preserve her dignity in the face of it, whilst bearing witness to her
faith in God. 93
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    Turning to the second question, of duties to preserve life, Vitoria makes the
important point that “in order to preserve life, it is not necessary to use all means –
but only those which of themselves are both fitting and suitable.” 94 Vitoria is
essentially making the claim that a person is not obliged to use all possible
means to preserve life (a point, as already noted, that can in fact be traced,
embryonically, to Plato), and that the use of means must be judged in relation to
a consideration of a person’s contingent circumstances. Whilst there is always
considered to be a direct negative obligation never to intentionally take innocent
human life, there was an obligation to be realistic in the claims made concerning
the duties of action to positively preserve life. It is important to be clear here that
this claim did not entail that there could not be an intention to self-kill by
omission. Rather, there is recognition here that some omissions are consistent
with the purpose of avoiding certain burdens and that death need not, therefore,
be intended. 95

Ideas from Renaissance and Early Modern Thought
Ideational Change
During the Renaissance it is possible to detect the first signs of an intellectual and
cultural weakening on the prohibition against suicide found in Latin Christianity.
The impact of learning derived from the Stoic and Epicurean visions of humanity
led to a renewed questioning of the grounds for its moral condemnation under
all circumstances. 96 Typical of this renewed interest in Greek and Roman learning
was a questioning and searching for answers to the meaning of life
independently of the answers provided by the attempts to synthesis faith and
reason in the Mediaeval schools of thought. 97 It was during the Renaissance that
we can observe the first strains of what can be described as a ‘turn to the
subject’, and with it the idea that humanity is more beholden to its own created
image of self than of any external design (whether that design be imposed by
nature or by divinity). 98
   In his Oration on the Dignity of Man, for example, Pico della Mirandola,
expressed the idea that the human person is more the shaper and fashioner of its
own being than any extrinsic source. 99 For Mirandola, suicide could be a sign of
the dignity of the human person as effective sculptor of his or her own life, for
whilst life depended on the will of others to bring it to be, death was dependent
largely on the self. 100
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Michel de Montaigne
It is with the Essays of Montaigne that the question of approval of suicide is taken
up as a subject for detailed examination. 101 Whilst not original, he expressed a
blending of Stoic and Epicurean views to support the licitness of suicide under
certain circumstances. 102 Through the guise of an essay on events practised on
the Isle of Cea (an Ancient Greek society that kept a public store of poison for
suicide), he took to task, by weight of example, the prohibition on all forms of
suicide. From the tenor of his examples it is clear that he finds unconvincing the
notion that the manner and timing of death are left in the hands of God, for
“death is a remedy against all evils: it is a most assured haven, never to be
feared, and often to be sought… . The most voluntary death is the finest. Life
depends on the pleasure of others; death upon our own.” 103

    What is significant in Montaigne’s account of suicide is his desire to separate
it from the context of theological speculation and place it’s assessment firmly
within an ‘experiential’ mould. 104 When viewed through the light of so many
renowned ancient authors who justified the practice, he came to the conclusion
that questions of pain, suffering, and fear of a worse death, could justify suicide
and kindly assistance in suicide. 105

     Here we can see some affinity with the idea of the plasticity of the human
condition remarked upon earlier by Pico della Mirandola. The clear implications
of this thought are not hard to draw, and have an ‘unmistakable ring’ that
resounds today. 106 The question of suicide should be viewed more as a question
of personal decision making, to be left to the judgement and conscience of the
individual, and should not, therefore, be the subject for any sort of absolutist
imposed norm prohibiting the practice (at least in circumstances where the act of
killing is informed by a merciful motivation in conditions of pain and suffering).

John Donne
The primary weakening of opposition to the immorality of suicide, in the early
modern period, took place amongst some Anglican clerics. 107 Amongst their
number can be included Robert Burton’s Anatomy of Melancoly and John
Donne’s Biathanatos. (Only Donne’s text will be considered.) 108
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   Donne’s work was notable for its attempt to demonstrate that suicide was not
incompatible with the law of nature or the law of reason. 109 As such, it takes the
form of an implicit attempt to refute the arguments made by Aquinas in the
Summa Theologiae, on the immorality of suicide. 110 His treatise, in several key
respects, foreshadowed the subsequent attack on Aquinas’s arguments made by
David Hume a century and a half later. 111

    In Part one of Biathanatos, Donne argued, contrary to Aquinas, that
everything does not always seek naturally to preserve itself, regardless of
circumstance. If life can be said to be natural, so too can death itself. There can
be said to be a natural desire for dying that is part and parcel of the human
condition. On natural grounds, therefore, it cannot be demonstrated that the
claims of a tendency to ‘self-preservation’ must always, so to speak, ‘trump’ this
other tendency inherent in nature. He drew upon many classical instances of self-
induced death to demonstrate that the desire for ‘death as release’ is also part of
‘nature’s fabric’. 112

    In Part Two of Biathanatos, Donne turned to argue that suicide cannot in all
circumstances be regarded as against the law of reason as found in civil and
canon law. There was no necessary wrong in suicide such that it must necessarily
be regarded as a crime against the state or the community. Certain forms of
suicide do not endanger the state or the community. There was therefore no
necessary relationship between suicide and the claim that it necessarily entailed
an act of injustice. Whilst Donne was against certain forms of suicide, e.g.,
suicides motivated by vengeance, atonement for past sins, avoidance of future
sin, etc., he was highly doubtful of the efficacy of the law to deter them. 113

Thomas Hobbes

Notwithstanding those arguments of Donne, inspired by sympathetic motivations
towards the relief of intense human suffering, the onset of the new materialist
oriented scientific outlook (inspired by the method of Francis Bacon), initially
brought in its wake a rejection of ideas of suicide. 114 This rejection can be seen
most forcefully in the work of Thomas Hobbes and his understanding of what
constituted the “law of human nature.” 115
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    Unlike previous natural law based theories (i.e., Plato, Aristotle, and Aquinas),
based as they are on a teleological understanding of the good ends of the
human person, as apprehended by human reason, Hobbes saw human nature
as essentially a complex of material sense perceptions and passions, chief
amongst them being drives of egotistical desire. 116 This led Hobbes to deny that
the human person was capable of grasping the traditional fonts of natural law
theory based on teleology and reason, “[f]or there is no such finis ultimus, utmost
aim, or summum bonum, greatest good, as is spoken of in the books of the old
moral philosophers. … Felicity is a continual progress of desire, from one object
to another ….” 117

    Given Hobbes’s materialist view of human nature reduced to a consideration
of desires and aversions, it is simply a recurring drive of human nature, so
conceived, for human beings to seek the means of their own self-preservation. 118
The central aim of his political philosophy was to create sets of conditions
whereby peace and security would promote the self-interested conditions
necessary to sustain the self in existence, viz., the promotion of peace and
security in the Leviathan state. 119 Reason was understood only to operate in an
instrumental fashion in order to further the pursuit of the self-interested drives of
human nature. 120

    Since Hobbes considered it axiomatic that the human bundle of desires and
aversions necessarily seeks to perpetuate itself in existence, it would be contrary
to this law of our nature to positively act against this impulse. Thus, as we have
this strong perpetual desire, so it would be acting against this law of our nature
to thwart it. 121 For Hobbes, only the state of madness itself (non compos mentis
by virtue of inner torment), could bring a person to reach the conclusion that the
‘unnaturalness’ of acting against the impulse towards self-preservation, could
possibly be opted for. 122

Ideas from Enlightenment Thought
General Overview
With the rise of enlightenment thought in the 18th century, there were several
notable proponents of suicide who thought that there was nothing essentially
contrary to reason in the idea of suicide. 123 In this regard they represented an
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increasing ‘secular’ challenge to the waning traditional opinion that suicide and
assistance in death were necessarily immoral acts. Several authors whose names
can be mentioned here include Robeck, Montesquieu, Voltaire, Rousseau,
Beccaria, Helvetius, Vauvenargues, D’Holbach, Condorcet, and Charron. 124
Here it can be summarily stated that all those authors saw suicide as a legitimate
practice for a variety of life’s predicaments, e.g., unremitting pain, uncontrollable
suffering, and deep-seated melancholia. Space prevents any detailed
elaboration on the many nuances of thought expressed by those thinkers. Suffice
it to make the following remarks. Charles Montesquieu, stressed the point that it
was absurd to think that a good and loving God could wish to see a person
suffer and pretend to turn it in to a blessing for the afflicted. 125 Voltaire (François
Marie Arouet) recognised that suicidal thoughts were often symptoms of physical
illness and a loss of control over self. In such circumstances, the act was beyond
punishment or moral condemnation. 126 Jean Jacques Rousseau returned to the
ancient theme that by an act of suicide we do not destroy the person, only the
body, and thus we should not view the mater with such significance. 127

   For the remainder of this section I shall restrict myself to the views of two
prominent philosophers, who, in differing ways, stand at the apex of
enlightenment thought – David Hume and Immanuel Kant.

David Hume
Hume’s scepticism concerning the claims made on behalf of human reason to
acquire knowledge, especially moral knowledge, led him to reject the possibility
of deriving or ‘reading off’ normative claims from descriptive propositions of
human nature – whether based upon Aristotelian natural teleology or Hobbes’s
materialist framework of egoistic self-interest. 128

    In the first book of his Treatise of Human Nature, Hume forcefully presented
the distinction between ‘fact’ and ‘value’, and the logical non-derivability of the
latter from the former, in the following terms:

   In every system of morality, which I have hitherto met with, I have always
remark’d, that the author proceeds for some time in the ordinary way of
reasoning, and … makes observations concerning human affairs; when of a
sudden I am surpriz’d to find, that instead of the usual copulations of
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propositions, is, and is not, I meet with no proposition that is not connected with
an ought, or an ought not … [as] this ought, or ought not, expresses some new
relation or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d;
and at the same time that a reason should be given, for what seems altogether
inconceivable, how this new relation can be a deduction from others, which are
entirely different from it. 129

    In his posthumously published essay, On Suicide, Hume argued that suicide
could in principle be justified, since none of the prevailing arguments against its
universal prohibition were sound. 130 In the text, Hume applies both his sceptical
epistemology and his moral theory of natural sentiment (essentially emotivist
approval and disapproval) to his evaluation of the subject. Reason cannot
discover what is good or bad in life. Rather, the ‘good’ is that which we are
inclined to think useful based on our sentiments, and badness that which does
not hold for the satisfaction of sentiments. 131

    In the first philosophical argument tackled by Hume, that suicide be contrary
to nature (the argument from self-preservation), Hume makes the point that
human kind interferes constantly with all manner of natural laws, so why should
the question of life or death be viewed any differently from all other manner of
interference? If there be such a tendency in nature towards the preservation of
life, this cannot dictate whether or not it is right or wrong to end a life any more
that it is right or wrong to interfere with any other natural occurrences in the
scheme of things. 132 Hume therefore claims that an act of committing suicide is
as much an interference against nature as treating, say, a naturally occurring
disease of the body. In the words of Hume, “if I turn aside a stone which is falling
upon my head, I disturb the course of nature”, so why should that change of a
natural course be any different from ending one’s life? 133 Hume, therefore,
concluded that if it is acceptable to interfere with a law of nature, then suicide
cannot be held to be wrong on account of disturbing such laws. 134

   Hume’s second philosophical argument (contrary to the claim that suicide was
an act of injustice against society) was designed to demonstrate that suicide did
not entail any necessary act of injustice against neighbour. 135 Society, in Hume’s
view existed to ensure mutual benefit, and the bonds that tied a person to society
cease when there was no longer a mutuality of benefit to be derived. An
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individual faced with great suffering was in just such a situation, and any claim
on the individual by society was extinguished, for there was no longer any bond
that must be preserved. 136

    In Hume’s defence of suicide, there can be discerned clear lines of
argumentation utilised in the contemporary debate concerning acts of assisted
suicide and euthanasia. In short, suicide need not be considered an ‘irrational’
or ‘unnatural act’ contrary to reason, but rather can be viewed as an act perfectly
compatible with a broadly utilitarian outlook rooted in natural sentiment towards
contentment. As the toils and tribulations on an individual’s life increase, so the
claims made on behalf of society for that life’s preservation, diminish to the point
of extinction. 137

Immanuel Kant

In Kant’s Groundwork of the Metaphysic of Morals, we see an attempt to provide
an alternative foundation to morality based on the idea of pure reason divorced,
from any attempt to root morality in the passions (Hume), in selfish drives
(Hobbes), or in a teleological theory of the good (Aristotle, Aquinas). 138

    For Kant, a will that is governed by passion or feeling is not an autonomous
will but a heteronomous will. 139 Desires or other extrinsic attractions, as such,
cannot be rational, since they only arise due to the contingent and changeable
aspects of the human condition. If we are to find a will in correspondence with
his ideal of rationality, it is a will in conformity with the call of duty. 140 For Kant,
the source of morality is located in a will that acts only out of the pure guiding
light of rationality, which is nothing less than a will that conforms to the
imperatives of human reason. 141

   Having stressed the importance Kant attached to the notion of a will acting in
conformity with duty, Kant details for us the nature of the test that is required if
the will is to act in conformity with the call of duty – the Categorical
Imperative. 142 The Categorical Imperative commands action, not as a means to
any end, but by delimiting action that is right by reference to its form. The will
therefore does not determine morality by any external appeal beyond its own
necessitating structure. 143
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    The key feature that underpins Kant’s Categorical Imperative is form driven
universality. This is the form imposed upon the concrete particulars of the
empirical world brought to bear by the agent. 144 In order to test the legitimacy of
a proposed maxim, it is necessary to subject it to the objective order manifested
in the Categorical Imperative. 145

   What then is this supreme principle of morality? Kant states it as follows:

    (1) “act only on that maxim through which you can at the same time will that
it should become a universal law.” 146 Immediately following on from this
formulation, however, a second variant follows: (2) “act as if the maxim of your
action were to become through your will a universal law of nature.” 147 In fact,
Kant thought that there were three variations of the Categorical Imperative. 148
The third variation can be stated as follows: (3) “so act as to treat humanity,
whether in your own person or in that of any other, always at the same time as
an end, and never merely as a means.” 149

   In his analysis of morality, Kant applied his moral law to the case of suicide
and concluded that it cannot be adopted as a universal law. With reference to
the first and second formulations of the Categorical Imperative he stated that:

    A man reduced to despair by a series of misfortunes feels wearied of life, but
is still so far in possession of his reason that he can ask himself whether it would
not be contrary to his duty to himself to take his own life … His maxim is: From
self-love I adopt it as a principle to shorten my life when its longer duration is
likely to bring more evil than satisfaction. It is asked then simply whether this
principle founded on self- love can become a universal law of nature. Now we
see at once that a system of nature of which it should be a law to destroy life by
means of the very feeling whose special nature it is to impel to the improvement
of life would contradict itself, and therefore could not exist as a system of nature;
hence that maxim cannot possibly exist as a universal law of nature. 150

    Further, when considering the application of the Categorical Imperative in its
third form, he argued that:

   He who contemplates suicide should ask himself whether his action can be
consistent with the idea of humanity as an end in itself. If he destroys himself in
order to escape from painful circumstances, he uses a person merely as a means
22                      PHYSICIAN ASSISTED EUTHANASIA



to maintain a tolerable condition up to the end of life. But a man is not a thing,
that is to say, something which can be used merely as means, but must in all his
actions be always considered as an end in himself. 151

     For Kant, therefore, it is evident that he opposed the legitimacy of suicide on
the grounds that such an act could not be reconciled with the moral order
apprehended by the imperatives inherent in reason. Suicide offends the moral
order precisely because it denies in the person the proper regard for duties to self
and to others. 152 In committing suicide, the person denies his or her own
objective worth, that resonates throughout his or her being, and secondly,
denigrates that worth to others, who are part and parcel of the wider picture of
humanity, and who bear witness to the act of self-destruction. In short, to deny
the image of humanity in self is to become a kind of bearer of false image that
offends against the worth of persons generally. 153

Ideas from Classical Utilitarian Thought
Jeremy Bentham

In turning to this school of thought, we encounter a movement in moral and
political philosophy, foreshadowed by Hume, that sought to place the locus of
value on the idea of utility. 154 Actions or rules are to be assessed in terms of their
ability to maximise utility and minimise disutility. 155 The key founder of classical
utilitarianism was Jeremy Bentham who adopted a narrowly hedonistic approach
to his ‘felicific calculus’. People seek pleasure and avoid pain:

     Nature has placed mankind under the governance of two sovereign masters,
pain and pleasure. It is for them alone to point out what we ought to do as well
as what we shall do. On the one hand the standard of right and wrong, on the
other the chain of cause and effect are linked to their throne. They govern us in
all we do, every effort we can make to throw off their subjection will serve but to
demonstrate and confirm it. In a word man may pretend to abjure their empire;
but in reality he will remain subject to it all the while. The principle of utility
recognises this subjection, and assumes it for the foundation of that system the
object of which is to rear the fabric of felicity by the hand of reason and law. 156
              A History of Ideas Concerning the Morality of Suicide,              23
                    Assisted Suicide and Voluntary Euthanasia


    Happiness for Bentham was more narrowly construed than any account of
hedonism posed by classical Epicureanism. 157 Bentham’s views on the question
of suicide were essentially those stated by David Hume, that if life became too
much of a burden of suffering, it could be morally justifiable to seek to end it, the
life having outlived its benefit or usefulness. Society’s claim on the life of the
individual loses its hold. 158

    Bentham’s work can be seen as a practical translation of the idea of utility
into the governance of law. Contrary to the ‘superstitions’ of the age, Bentham
thought that law should be based on the purely rational foundation of utility.
Laws should be enacted that promote the greatest happiness for the greatest
number. 159 Upon such a principle, the laws of a state ought to be framed and
should be the basis for their validity. On the basis of this line of reasoning,
therefore, Bentham opposed, in principle, the imposition of criminal sanctions
that prohibited the practice of suicide. 160 Such a law would not be conducive to
promoting the greatest happiness for the greatest number of people, for, as
Hume had recognised, once life loses its beneficiary powers, due to pain and
suffering, it ceases to be an overall good and instead can become a positive
harm to the affected person. 161

   Bentham was a strong opponent of the idea of natural law and natural rights,
regarding such notions as “nonsense on stilts.” 162 For Bentham, a hedonism
based on an assessment of the outcomes of an action was the sole basis for
judging the rightness and wrongness of an action. 163 Bentham, for example,
opposed the notion of the centrality of good or bad intentions to the moral
assessment of an action. Much of his key criticism of natural law and natural
rights theory was directed at its manifestation in the English legal system under
the influence of William Blackstone’s Commentaries on the Laws of England.
Bentham’s notion of action assessment radically turned on its head the emphasis
of existing legal categories centred on the notion of the agent’s mens rea. 164 For
Bentham, we need not ask whether an agent’s intention in performing an action
was good or bad – such subjectivity and prejudice should be eschewed. Rather,
the scientific approach of the utilitarian would be an objective assessment of the
net benefits and/or harms to proceed from an action in terms of its
consequences. 165 As Bentham stated, only the happiness (consequences) of the
result of an action is “the right and proper, and the only right and proper and
universally desirable end of human action.” 166
24                     PHYSICIAN ASSISTED EUTHANASIA



    The morality of assessing the consequences of an action led Bentham to be
highly critical of what he took to be major systemic inconsistencies in traditional
natural law theory concerning the evaluation of actions concerning killing. For
example, what was it exactly about non-innocent human life that justified killing
another person? Why did that life cease to have sanctified protection? Was there
any coherent systematic theory of justification for innocent life’s immunity?
Bentham thought that traditional natural theory was riddled by inconsistency due
to the exceptions it tried to create around the notion of innocent human life,
inconsistencies further compounded by its object-intention centred account of
action theory that radically downplayed the significance of consequences in
moral assessment. 167

John Stuart Mill
The influence of utilitarianism in the contemporary era is linked to the extensions
made to the philosophy by John Stuart Mill. 168 Whilst Mill rejected Bentham’s
narrow hedonistic account of value, opting for a eudemonistic account that
admitted of qualitative distinctions between pleasures and not simply quantitative
distinctions, he nevertheless embraced the essential pillar of Bentham’s moral
and political philosophy, namely, that the evaluation of actions ought to be tied
to the promotion of the greatest happiness for the greatest number. 169

    Mill, however, contrary to Bentham, was aware of the ambiguities of pursuing
such a principle when confronted with the realities of a myriad of permutations of
choice concerning the weighing and balancing of the consequences of human
actions. 170 Mill’s solution was to focus on individual liberty and freedom from
constraint as the best mechanism for promoting the maximisation of human
happiness. 171 Allowing for freedom of choice and self-development would
provide the best conditions for promoting this general utilitarian goal. Liberty
enhances “the permanent interests of man as a progressive being” and in so
doing promotes the general end of human happiness to the many. 172

    Mill’s defence of liberty of action is famously expressed in the so-called harm
principle, “the only purpose for which power can be rightfully exercised over any
member of a civilised community, against his will, is to prevent harm to others.
His own good, either physical or moral is not sufficient warrant (my
emphasis).” 173
              A History of Ideas Concerning the Morality of Suicide,               25
                    Assisted Suicide and Voluntary Euthanasia


   For Mill, only significant other regarding harms could justify the imposition of
the coercion of the law on adults retaining a capacity for rational/deliberative
thought. 174 To coerce an adult with deliberative capacity into accepting a
particular course of self-regarding action does not generally promote human
happiness, since it forces people into moulds of restriction that basically affect
only them, not other people. The spread of human happiness, for Mill, was
increased by the recognition of such a principle. 175

    Whilst this was a general principle in Mill’s moral and political philosophy, he
nevertheless thought that some primarily self-regarding harms could be restricted
for the sake of preserving liberty itself where they went manifestly against the
promotion of greater good of “the permanent interests of man as a progressive
being.” 176 Thus Mill, for example, justified laws prohibiting slavery on the
grounds that it was sometimes necessary to restrict choice for the sake of
preserving the robust idea of liberty for the greater good, even of those who
would care to voluntarily relinquish it. 177 Restriction for the very sake of liberty
itself could provide sufficient warrant to restrict some self-regarding harms, in
narrow circumstances. 178

     Mill nevertheless was heavily circumspect about the use of state coercion in
general to restrict the activities of its citizens. The basic idea of Mill is that the
state should preserve a large penumbra of neutrality about enforcing theories of
coercion based on narrow perfectionist accounts of the good life. Mill’s
utilitarianism admitted of far greater diversity and balance between an array of
goods than Bentham’s hedonism would permit. The limits on liberty, for Mill, are
therefore drawn at wide margins. Yet margins are indeed drawn, for to claim
that government should be neutral about imposing a narrow thick overarching
sense of the good, is not to claim that government should be neutral about
everything. The case for neutrality draws on a distinction between the right and
the good: the state should be neutral with respect to a wide range of competing
conceptions of the good, though not with respect to the right. In Mill’s thought, it
is therefore possible to discern the idea that neutrality supposes that individuals
are free to pursue their conception of the good without governmental
interference, within broad limits, and that these outer limits are set by the need to
prevent other regarding harm that infringes on the rights of others (or, some
narrowly circumscribed categories of self-regarding harm).
26                      PHYSICIAN ASSISTED EUTHANASIA



     Whilst Mill never directly argued the point that a regulated scheme of assisted
suicide or voluntary euthanasia could be permitted by the state, others in the
contemporary era have advocated this idea on the basis of his thought. It is, of
course, not difficult to draw that conclusion, for once it is admitted that there is a
general liberty to live or die as one wishes (providing one does not significantly
and directly harm another individual, and provided that the choice is rationally
and voluntarily undertaken), it is but a short step to justify the provision of
assistance by third parties to facilitate the execution of such a choice. If a
rationally thinking person chooses to die quickly, especially for motives of intense
pain or suffering, then that should be viewed as a legitimate exercise of liberty
and should not fall within the purview of state authority to ban the practice. 179

     With this Millian turn on the problematic of liberty and the strong limitations
imposed by it on the right of the state to interfere paternalistically with its
exercise, we have now encountered, in outline form, many of the strong
ideational impetuses arising in the West that have helped to shape more
contemporary arguments for and against the practices of assisted suicide and
voluntary euthanasia. Before turning to the task of examining contemporary
arguments for the practices of assisted suicide and voluntary euthanasia in our
next chapter, I shall, by way of conclusion, finish this chapter with a brief
synthesising summary of the main arguments made.

Summary of the Main Ideas
Ideas against Self-killing

The human soul. With the thought of Socrates and Plato we can observe the
influential idea that self-killing is considered to be contrary to the notion of the
perfectibility of the human soul. Plato’s influence was expanded and extended
with the rise of Neo-Platonism and its reception into subsequent Christian
thought. With the thought of Augustine, in particular, the notion of the
perfectibility of the human soul is synthesised into the Judaeo-Christian idea of
God’s dominion over human life. Such a theme recurs in the thought of the
West, and informs a significant part of the thought of Aquinas and the
subsequent tradition of scholasticism.
              A History of Ideas Concerning the Morality of Suicide,              27
                    Assisted Suicide and Voluntary Euthanasia


    Value of human life. In the thought of Aristotle, we can observe the judgement
of the wise man, the man of practical reason, regarding the valuational status of
human life. Human life is a natural good to be respected and promoted. Such a
good can be objectively apprehended by human reason, independently of Plato’s
metaphysically ambitious claims concerning the immortality of the soul. The
human being is naturally ordered to the preservation of life and the avoidance of
threats to life. To protect that good, the cultivation of human virtue is required.
Courage is needed in the face of suffering and adversity to resist the temptation
to act against this good, one of the primary constituents of integrated human
flourishing or well-being.

    In the thought of Aquinas, the inclination of life-preservation, apprehended by
reason as a human good, is considered to be intrinsically valuable, a good
valued for its own sake, a bonum honestum, not a bonum utile. Given such a
status, to act against such a good was thought to run contrary to the
foundational precept of the natural law, that good is to be done and evil
avoided. The intentional taking of innocent human life was thus considered to be
an evil.

   The good of preserving human life expressed in Aquinas, and in the
subsequent tradition of scholasticism, was given an overtly materialist turn in the
metaphysics of Thomas Hobbes. For Hobbes, the human person is basically a
being driven by egoistic instincts that control and influence basic patterns of
human behaviour. Since the human person is one governed by egoism, egoism
being natural, Hobbes concluded that an attack on the self would be bad since
the end of action is the perpetuation of selfish interests. Interests could not be
perpetuated without the existence of the subject, therefore, intentional self-killing
was wrong.

     Killing and letting die. In the thought of Plato, we observed the first signs of
awareness of a distinction between the provision of active means to intentionally
bring about death and the notion of the withdrawal or non-provision of
treatment due to its burdensomeness. Turning to the thought of Augustine and
the question of martyrdom, and also the thought of Aquinas concerning the
conditions of self-defence, the importance of the direction of intention concerning
its impact on human goods was increasingly regarded as crucial. Vitoria, at the
28                      PHYSICIAN ASSISTED EUTHANASIA



height of the scholastic natural law tradition, draws out in greater detail the
implications of negative and positive duties concerning the preservation of
human life, placing the question of intention into central focus for an action’s
moral evaluation. In this tradition the conditions associated with the framework
of double effect reasoning were developed.

    Justice and societal demands. Aristotle and Aquinas both considered suicide
to be a act of injustice against the state and society. If individuals are distinct
substances, they are also social beings whose duties surpass individual interests.
An act of self-killing deprives society of the existence of one of its members. The
radical contribution that a person makes to society is not to be judged upon that
person’s usefulness or utility to society. Individuals belong in part to the
community and cannot divorce their individual actions from the interests of the
state in fostering and promoting respect for the foundational good of protecting
human life. The private lethal use of force, even when directed against self, has
many potentially disruptive ramifications for wider society. These ramifications
are especially acute when the act of self-killing is supported by the actions of
third parties, who assist in, or actually administer, the death dealing means.

    Idea of universal humanity. Kant considered suicide and assistance in suicide
a self contradiction based on his formulations of the Categorical Imperative – the
universal moral law of reason. It is not consistent to will that it become a
universal law that an individual may chose to kill himself or herself by intentional
design. For Kant, it was illogical for a person to seek to abolish his or her life on
the basis of the challenges that life itself presents to us. If self-love be the
motivation informing such an act, why does this motive of self-love attack the
very nature of self that gives rise to the notion in the first place, the condition of
all possibility?

    Kant thought that self-killing cannot be a respectful means in pursuing a goal
to be free from suffering, because any individual is an exemplar of humanity. By
attacking humanity in the subjectivity of his or her own person, one is attacking
the idea of humanity generally. 180 The individual cannot readily be treated as a
discrete self-standing monad, who can be viewed independently from his or her
fundamental connectedness with the rest of humanity.
              A History of Ideas Concerning the Morality of Suicide,              29
                    Assisted Suicide and Voluntary Euthanasia


Ideas Permitting Self-killing
Soul not hindered. For the Stoics, with the notable exception of Cicero, the
human soul is perfected by its ability to remain indifferent to the trials and
tribulations of life. If the circumstances of life radically impinge on the person’s
ability to remain indifferent to them and master them, then earthly life may be
ended in the service of this indifference. For the Stoic, bodily life was not to be
regarded as an indispensable good, but rather as a preference only in the
service of the projects of the person in line with the person’s understanding of the
ends of the logos. The soul could be perfected by protecting the indifference of
the person to the impinging events of the world.

   Influenced by Stoic ideas, Montaigne found no essential incompatibility
between the idea of self-inflicted death and preserving a person from the trials
and tribulations of life. Why would such an action ultimately harm the soul? For
Montaigne, such an act could be a way of preserving the soul from further
unwarranted contumely, and give it a release from what would otherwise be an
overly burdensome life.

    Such a theme is also strongly echoed in the work of John Donne. Donne did
not think that the soul of a person would necessarily be harmed by a self-inflicted
act of suicide in conditions where the person was subjected to intolerable
impositions of suffering. Surely, the ending of earthly life in such circumstances
would be a blessing for the soul as it was released from its attachment to bodily
life; a bodily life that could no longer serve the best interests of the soul. If God
has dominion over life, then why is it wrong to end that life in conditions where it
is possible to suppose that ending life need not be viewed as an act contrary to
the will of God?

   Life’s intolerable burden. For the Epicureans, life was a valued good as long
as it was possible to cultivate the higher pleasures of life. Once life ceased to be
able to provide that balance for the individual, life itself could be severed. The
preference of life itself can be commensurated with other goods such as freedom
from pain and suffering to judge whether or not life was worth continuing with.

   This Epicurean theme, of life ceasing to be an overall good, and instead
becoming an unbearable burden, is manifested in most subsequent arguments in
favour of intentional self-inflicted death. Montaigne, Donne, Hume, Bentham,
30                     PHYSICIAN ASSISTED EUTHANASIA



and Mill, all thought that suicide, in some circumstances, could be justified by
some form of a commensuration of goods whereby the good of life itself could
be outweighed by the burdens of its continuation.

    The notion that the ending of human life by intentional design is contrary to
human nature, is strongly challenged by the work of David Hume. For Hume, as
well as Immanuel Kant, who followed Hume on this, there is a logical fallacy in
proceeding from a descriptive claim relating to human nature to the subsequent
creation of normative obligations from such description. For Hume, the
naturalism of the natural law tradition (including Hobbes’s ‘state of nature’
approach) rested on the mistaken presupposition that one could proceed from
factual and descriptive observations of human nature to the derivation of
normative obligations. For Hume, therefore, to suppose that there was a natural
inclination to preserve life, could in and of itself tell us nothing about the extent
of our duties to preserve life, especially when those duties conflicted with other
contrary inclinations.

    Consequences of an action. With the thought of David Hume, Jeremy
Bentham, and J.S. Mill, there is a rejection of the notion that the morality of an
action can be determined by the notion of the intended object of an action. If
other forms of killing can be justified upon the basis of the value of the
consequences appealed to, then why not suicide or euthanasia? If authors in the
natural law tradition have justified killing on the basis of self-defence and capital
punishment, is it not really a case of justifying an action on the basis of an
appeal to its resultant consequences?

    Hume, Bentham, and Mill eschewed all notions that an action can be
regarded as intrinsically right or wrong depending on the object of the action.
Consequently, there was no need for anything resembling the principle of double
effect. For Bentham, in particular, the morality of the action is to be determined
by the foreseeable and predictable consequences that the action performed will
bring in its wake. Where certain types of action would bring about a greater
balance of utility rather than disutility as a result of their performance, they were
justifiable and should not be the focus of condemnation or disapproval,
especially by state intervention by criminal sanction.
               A History of Ideas Concerning the Morality of Suicide,                  31
                     Assisted Suicide and Voluntary Euthanasia


    State Non-interference. With the thought of J.S. Mill, there is a strong
articulation of the notion of limits on government to pursue a perfectionist
account of what constitutes the good life for human beings to pursue.
Government interference with the exercise of liberty should be restricted to
actions and activities that significantly impinge on the rights of others. Given the
importance of liberty to the promotion of human happiness, there needs to be
preserved a wide penumbra of freedom for the individual to pursue his or her
own judgement as to what human happiness should concretely mean.

    Suicide is simply seen as one of the last options available to the individual to
assert self control in the face of adverse events that affront the person.
Paradoxically, whilst Kant first gave rise to the notion of the autonomous will, it is
in fact J. S. Mill whose thought has given this notion most fully over to individual
self-determination, and with it, a large claim for freedom of action, especially
self-regarding action, in the face of external impositions.

About the Author
Dr Paterson is now a Consultant Bioethicist and Independent Scholar based in
California, USA. Previosuly he taught Philosophy at Providence College, Rhode
Island, USA. He holds a PhD in Bioethics from Saint Louis University, USA, an LLB
degree in Jurisprudence from The University of Edinburgh, Scotland, and an MA
in Philosophy from The University of York, England. He is the author of Assisted
Suicide and Euthanasia: A Natural Law Ethics Approach: Aldershot, England:
Ashgate 2008. Dr Paterson is an elected Fellow of the Royal Society of Arts
(FRSA), The Royal Society for Public Health (FRSPH), and The Royal Asiatic Society
(FRAS)."

Endnotes
1    Margaret P. Battin, Ethical Issues in Suicide (Englewood Cliffs: Prentice-Hall, 1995),
     1-3.
2    Jack C. Willke, Assisted Suicide and Euthanasia: Past and Present (Cincinnati: Hayes,
     1998), 2-6; Georgia Noon, “On Suicide,” Journal of the History of Ideas 39 (1978):
     371-73.
3    For an interesting comparative account engaging some of those other traditions
     (Buddhist, Hindu, Shinto, etc.) see generally, Jennifer M. Scherer and Rita J. Simon,
     Euthanasia and the Right to Die: A Comparative View (Lanham: Rowman & Littlefield,
32                       PHYSICIAN ASSISTED EUTHANASIA




     1999). See also, To Die or Not to Die: Cross-Disciplinary, Cultural and Legal
     Perspectives on the Right to Choose Death, eds. Arthur S. Berger and Joyce Berger
     (New York: Praeger, 1990); Kenneth L. Vaux, Death Ethics: Religious and Cultural
     Values in Prolonging and Ending Life (Philadelphia: Trinity Press International, 1992).
4    Tensions with my own position concerning the relationship between faith and reason
     exist on two fronts: firstly, certain authors such as Ronald Dworkin blur the line
     between the kinds of truth that can be know by reason and kinds of truth that can be
     known only by an appeal to faith based considerations; secondly, there is the
     problem of thinkers and politicians who support the state sanctioning of religion, at
     least in the ‘broad sense’ of the Judaeo-Christian heritage. For a stimulating account
     of the general relationship between faith and reason, somewhat sympathetic to my
     own perspective, see Philip Devine, Natural Law Ethics (Westport: Greenwood
     Press, 2000), 1-13.
5    Devine, Natural Law, 1-13. For sources on the question of whether or not the
     Hebrew and Christian Scriptures supported a strong prohibition on suicide and
     euthanasia, see Norman L. Farberow, “Cultural History of Suicide,” in Suicide in
     Different Cultures, ed. N. L. Farberow (Baltimore: University Park Press, 1975), 3-4;
     George Rosen, “History,” in A Handbook for the Study of Suicide, ed. Seymour Perlin
     (New York: Oxford University Press, 1975), 4-5 [previously published as “History in
     the Study of Suicide,” Psychological Medicine 1 (1971): 267-85]; Jacques Choron,
     Suicide (New York: Charles Scribner, 1972), 13-14; Georges Minois, History of
     Suicide: Voluntary Death in Western Culture (Baltimore: Johns Hopkins University
     Press, 1999); Arthur Droge and James Tabor, A Noble Death: Suicide and
     Martyrdom Among Christians and Jews in Antiquity (San Francisco: Harper San
     Francisco, 1992); Robert Barry, Breaking the Thread of Life (New Brunswick:
     Transaction, 1994); Edward J. Larson and Darrel W. Amundsen, A Different Death:
     Euthanasia and Christian Tradition (Downers Grove: InterVarsity Press, 1998).
6    Minois, History, 5-9.
7    Minois, History, 5-9; G. Gruman, “An Historical Introduction to Ideas about
     Voluntary Euthanasia,” Omega 4 (1973): 87-91.
8    See Terence Irwin, Plato’s Ethics (New York: Oxford University Press, 1995), 25-49.
9    Irwin, Plato, 25-49. See also Alfonso Gómez-Lobo, The Foundations of Socratic
     Ethics (Indianapolis: Hackett, 1994), ch.2.
10   Pamela Huby, “Greek Ethics,” in New Studies in Ethics, ed. W.D. Hudson (New York:
     St. Martin’s Press, 1971), 17-42.
11   Such a position contrasted strongly with the position of many Sophists who extolled
     human impulses at the expense of reasons discernment of the perfectibility of the
     human soul. See Irwin, Plato, 23-37; Huby, “Greek Ethics,” 28-41.
12   Plato, Complete Works: Phaedo, trans. John M. Cooper (Indianapolis: Hackett,
     1997).
               A History of Ideas Concerning the Morality of Suicide,                       33
                     Assisted Suicide and Voluntary Euthanasia



13   John M. Cooper, “Greek Philosophers on Euthanasia and Suicide,” in Suicide and
     Euthanasia: Historical and Contemporary Themes, ed. Baruch Brody (Dordrecht:
     Kluwer Academic, 1989), 16.
14   Michael M. Uhlmann, “Western Thought,” in Last Rights?: Assisted Suicide and
     Euthanasia Debated, ed. Michael H. Uhlmann (Washington, D.C.: Ethics and Public
     Policy Center; Eerdmans, 1998), 14-18.
15   David Novak, Suicide and Morality: The Theories of Plato, Aquinas and Kant (New
     York: Scholars Press, 1975), 11-13. The problem for later thought, especially
     modern thought after Descartes, was a tendency to devalue more directly the body
     into a mere machine like instrumentality at the behest of the “conscious
     substantiality” of the human person.
16   See the discussion on martyrdom and Augustine of Hippo infra.
17   That death should be intentionally hastened is nowhere argued by Socrates, nor by
     Plato. On the contrary, a careful reading of the Phaedo concerning the relationship
     of body and soul, strongly suggests that the pains and tribulations of life are
     necessary to bear in the process of acquiring wisdom, for it is highly unlikely that the
     soul can be improved by an act that intentionally seeks to destroy the body in the
     name of the soul’s benefit. See Novak, Sucide and Morality, 17; Cooper, “Greek
     Thought,” 16.
18   Paul Carrick, Medical Ethics in Antiquity: Philosophical Perspectives on Abortion and
     Euthanasia (Boston: D. Reidel, 1985), 138-40.
19   Plato, The Republic, trans. G. M. A. Grube (Indianapolis: Hackett, 1992); Cooper,
     “Greek Thought,” 12-14.
20   Christopher Rowe, Greek Ethics (London: Hutchison, 1976), 55-60.
21   Cooper, “Greek Thought,” 12-14; Novak, Suicide, 27-31; Uhlmann, “Western
     Thought,” 16-18. Plato’s account in book III of the Republic is, therefore, compatible
     with the view that not everything must be done in the context of family and society to
     preserve life at all costs. This does not mean that, for Plato, it is just to intentionally
     kill a dying person. His words are compatible with the idea that death can be said to
     occur by reason of the underlying pathology due to cessation of treatment no longer
     deemed in the best interests of the patient.
22   A later treatise dealing with the practicalities of governance. See Plato, The Laws,
     trans. G. M. A. Grube (Indianapolis: Hackett, 1984).
23   Droge and Tabor, Noble Death, 20-22; Battin, Ethical Issues, 58-59. See also Alfred
     Alvarez, Savage God (London: Weidenfeld and Nicolson, 1971), 59-60; R. Garland,
     “Death Without Dishonour. Suicide in the Ancient World,” History Today 33
     (Jan. 1983): 33-37; D. Gourevitch, “Suicide Among the Sick in Classical Antiquity,”
     Bulletin of the History of Medicine 43 (1969): 501-18.
34                        PHYSICIAN ASSISTED EUTHANASIA




24   Carrick supports this general interpretation. See his Medical Ethics, 140.
25   Plato is very much concerned with questions of social order and the practicalities of
     governance – of what may be called the teleology of the political common good. By
     granting a dispensation to these categories, he was recognising that powerful
     psychological forces are at work that often compel people to act. His chief object of
     prohibition by the framing of law this way can plausibly be seen to be one of rational
     suicide prevention and not the punishment of those overcome with passion or mental
     disorder, whom he insightfully thought could not be deterred by the power of the law
     to punish. Plato’s work brings out the importance of motive and the psychological
     dimension to suicide. He does not think the law should punish in those cases, for it
     cannot deter. He is concerned with rational and deliberate acts of self-killing since
     they are considered more amenable to control by the social order. In the Laws,
     therefore, he presents a tempering of the limits on what the operation of the law can
     reasonably seek to protect and promote for the good of society, without conceding
     that suicide need be considered a morally acceptable species of act on the part of
     the individual citizen. See further Novak, Suicide and Morality, 20-25.
26   Aristotle. Nicomachean Ethics. The Basic Works of Aristotle, ed. Richard McKeon,
     trans. W. D. Ross (New York: Random House, 1941).
27   J.L. Ackrill, Aristotle (Oxford: Clarendon Press, 1981), 135-55.
28   W. F. R. Hardie, Aristotle’s Ethical Theory. 2nd ed. (Oxford: Clarendon Press, 1980),
     73-89.
29   Ackrill, Aristotle, 135-41.
30   See Cooper “Greek Philosophers,” 22-34.
31   On the nature of justice in Aristotle see further Fred. D. Miller, Nature, Justice, and
     Rights in Aristotle’s Politics (Oxford : Clarendon Press, 1995); Curtis Johnston,
     Aristotle’s Theory of the State (New York: St. Martin’s Press, 1990).
32   Carrick, Medical Ethics, 143.
33   Uhlmann, “Western Thought,” 18-21; A.W. Mair, “Suicide (Greek and Roman),” in
     Encyclopaedia of Religion and Ethics, vol. 12, ed J. Hastings (Edinburgh: T & T.
     Clark, 1992), 26-30. See further Kenneth W. Kemp, “Euthanasia,” American
     Catholic Philosophical Quarterly 72 (1998): 315-27.
34   James Rist, Stoic Philospohy (Cambridge: Cambridge University Press, 1969), 236;
     Droge & Tabor, Noble Death, 23.
35   Rist, Stoic Philospohy, 236; Droge & Tabor, Noble Death, 23.
36   Cooper “Greek Philosophers,” 22-34.
37   Michael J. Seidler, “Kant and the Stoics on Suicide,” Journal of the History of Ideas
     44 (1983): 429-32. He points out that Kant was influenced by the Stoic doctrines but
     rejected them on the ground that his moral law made suicide a contradiction of
     humanity and could not be justified.
               A History of Ideas Concerning the Morality of Suicide,                   35
                     Assisted Suicide and Voluntary Euthanasia



38   Rist, Stoic Philosophy, 233-35; Henry Romilly Fedden, Suicide: A Social and
     Historical Study (London: P. Davies, 1938), 85.
39   Rist, Stoic Philosophy, 242-43.
40   Miriam Griffin, “Roman Suicide,” in Medicine and Moral Reasoning, eds. K. W. M.
     Fulford, Grant R. Gillett and Janet Martin Soskice (Cambridge: Cambridge University
     Press, 1994), 109-10. See also F. H. Sandbach, The Stoics, 2nd ed. (Indianapolis:
     Hackett, 1989), 48-52.
41   Sandbach, Stoics, 48-52.
42   Miriam Griffin, “Philospohy, Cato, and Roman Suicide,” Greece and Rome 33
     (1986): 64-66.
43   Griffin “Philosophy,” 72-75. See also Russell Noyes, “Seneca on Death,” Journal of
     Religion and Health 12 (1973): 223-40.

44   Griffin, “Roman Suicide,” 119-20; Sandbach, Stoics, 48-52.

45   Griffin, “Roman Suicide,” 115; Sandbach, Stoics, 48-52.

46   Fedden, Suicide, 83-84.

47   Cicero, De Senectute, xx, stating Pythagoras’s view that people should not “depart
     from their guard or station in life without the order of their commander, that is, of
     God”).

48   Unless there was a sign of divine permissibility, therefore, life should be pursued and
     not intentionally ended.

49   Robert Barry, “The Development of the Roman Catholic Teachings on Suicide,”
     Notre Dame Journal of Law, Ethics and Public Policy 9 (1995): 449-501, 486.

50   Choron, Suicide, 112-14.

51   Id.

52   Cooper, “Greek Philosophers,” 29.

53   Griffin, “Roman Suicide,” 113.

54   Griffin, “Roman Suicide,” 114.

55   E.g. Barry, “Roman Catholic Teaching,” 486-87.

56   Battin, Ethical Issues, 1-5. For similar lines of argumentation see Droge and Tabor,
     Noble Death, 129-31, 138-40; Robert Martin, “Suicide and Self-Sacrifice,” in
     Suicide: The Philosophical Issues, eds. Margaret P. Battin and David J. Mayo (New
     York: St. Martin’s Press, 1980), 48-68.
36                        PHYSICIAN ASSISTED EUTHANASIA




57   It also fails to take cognisance of the attempts of several of the Church Fathers who
     preceded Augustine to seek to constrain certain forms of martyrdom. Justin Martyr,
     for example, discouraged the impulse to hasten departure by one’s own action and
     abandon earthly existence simply in order to embrace eternal life. Such an action
     instead of being said to fulfil the will of God was said to instantiate an opposition to
     the will of God as it neglected the value of earthly life and the duties of stewardship.
     A similar point is echoed by Clement of Rome, Lactantius, John Chrysostom,
     Ambrose, and Jerome. The Christian ought not to take his or her own life, and whilst
     the Christian should be ready to accept martyrdom and not deny faith, such
     acceptance should not translate into a disregard for earthly life and a proper
     attention to duties of self-preservation. The one exception that appears in Orthodox
     thought concerning suicide, approved of by Ambrose and Jerome, was the case of
     the Virgin who took her own life rather than suffer a violation of virginity (such was
     the regard held for the preservation of this good). It took a thinker of the stature of
     Augustine to eventually iron some of those inconsistencies. See Amundsen, “Suicide
     and Early Christian Values,” 96-122.
58   See Augustine Regan, “The Worth of Human Life,” Studia Moralia 6 (1968): 220-29.
     See also Regan, “The Accidental Effect in Moral Discourse,” Studia Moralia 16
     (1978): 99-127.
59   Consider, for example, the case of Bobby Sands, a well known IRA hunger striker
     who starved himself to death rather than accept the authority of the British
     Government to imprison and detain him. See James W. McGray, “Bobby Sands,
     Suicide, and Self-sacrifice,” Journal of Value Inquiry 17 (1983): 65-76. See also
     Christopher Kaczor, “Faith and Reason and Physician-Assisted Suicide, “ Christian
     Bioethics 4 (1998): 183-201.
60   Of course I realise that this begs the question of the credibility of such an account of
     action theory, an account that needs to be argued for and not simply assumed. As
     was said in the introduction, this is the task of later analysis. For now it is sufficient
     for our purposes to demonstrate an alternative account of such deaths in order to
     avoid the ready conclusion that acts of suicide here are being disingenuously
     shrouded under the guise of martyrdom or selfsacrifice. See Regan, “Worth,”
     220-29; Kaczor, “Faith and Reason,” 184-87.
61   Christopher Kirwan, Augustine (New York: Routledge, 1989), 61-63.
62   Darrel. W. Amundsen, Medicine, Society, and Faith in the Ancient and Medieval
     Worlds Baltimore: Johns Hopkins Press, 1996), 103-20.
63   Larson and Amundsen, Different Death, 116-23. See also Augustine Regan,
     “Human Body in Moral Theology: Some Basic Orientations,” Studia Moralia 17
     (1979): 151-88.
64   William E. Stempsey, “Laying Down One’s Life for Oneself,” Christian Bioethics 4
     (1998): 204-8.
65   Kirwan, Augustine, 204-8.
               A History of Ideas Concerning the Morality of Suicide,                   37
                     Assisted Suicide and Voluntary Euthanasia



66   Augustine of Hippo, City of God, trans. H. Bettenson (London: Penguin, 1972), I, 19;
     I, 20.
67   Indeed, such was the value of life, for Augustine, that it could never be abandoned
     in the face of atonement for sin. Such was the gravity of suicide for Augustine that
     the suicide was said to deprive himself or herself of the gift of salvation, for in an
     effort to atone for previous sins, they compounded their earlier action by a final act
     of severance from God’s grace. See Augustine, City of God, I, 22-7.
68   Larson and Amundsen, Different Death, 121-23; Stempsey, “Laying Down One’s
     Life,” 213-14. See also Barry, Breaking the Thread of Life.
69   Romans 3:8. On the historical development of the principle of double effect see J. T.
     Mangan, “An Historical Analysis of the Principle of Double Effect,” Theological
     Studies 10 (1949): 41-61. See also Anthony Kenny, “The History of Intention in
     Ethics,” in Anatomy of the Soul (Oxford; Basil Blackwell, 1973).
70   Vernon J. Bourke, Ethics (New York: MacMillan, 1966), 8-13, 41-3. For further
     elaboration of the relationship between faith and reason from an analytical
     perspective see John Haldane, “What Future Has Catholic Philosophy?” American
     Catholic Philosophical Quarterly 71 (1997): S79-90. Whilst I focus only on Aquinas,
     scholastics of all philosophical stripes were generally opposed to suicide. For
     example, Bonaventura saw the act of suicide as one of unrestrained self-love. In
     acting thus, the suicider places his own apprehension of love over true self-effacing
     love that alone is consonant with placing oneself in the mercy of God’s hands. Duns
     Scotus placed particular emphasis on the question of the usurpation of power
     claimed by someone that commits an act of homicide on himself or herself. Only the
     direct intervention of God can dispense a person from this commanded obedience.
     See Minois, History, 32-36.
71   Armand Maurer, “Descartes and Aquinas on the Unity of a Human Being,” American
     Catholic Philosophical Quarterly 67 (1993): 497-511.
72   Regan, “Human Body,” 161-6; Maurer, “Descartes and Aquinas,” 505-9.
73   There may of course be a psychological tendency that flows from dualism to
     underestimate the worth of the body. See Mary Rousseau, “Elements of a Thomistic
     Philosophy of Death,” The Thomist 43 (1979): 582-601. See also Frederick
     Copleston, Aquinas (London: Penguin Books, 1955); Patrick Lee, “Human Beings are
     Animals,” in Natural Law and Moral Inquiry, ed. Robert P. George (Washington, DC:
     Georgetown University Press, 1998), 135-51.
74   The derivation of the commandments from the first precept of the natural law is
     therefore possible for Aquinas although passions and errors in reasoning can
     corrupt or distort the process of recognising the precepts of the natural law that flow
     from its first principle.
75   Thomas Aquinas, Summa Theologica, trans. English Dominican Fathers (New York:
     Benziger, 1948), I, II q. 94, a. 2.
38                       PHYSICIAN ASSISTED EUTHANASIA




76   Summa Theologica I, II q. 94, a. 2.

77   See Servais Pinckaers, Sources of Christian Ethics, trans. Mary Noble. 3rd ed.
     (Washington, DC: Catholic University of America, 1995), 405-8; Benedict Ashley,
     Living the Truth in Love (New York: Alba House, 1996), 108; Craig Paterson,
     “Renewing the Moral Life: Some Recent Work in Virtue Theory,” New Blackfriars 81
     (May 2000): 238-44.

78   See for example the following commentaries on Aquinas’s thought concerning some
     of those issues: George I. Mavrodes, “Innocence and Suicide,” Faith and Philosophy
     16 (1999): 315-35; Matthew J. Kelly, and George Schedler, “St. Thomas and the
     Judicial Killing of the Innocent,” Journal of Thought 14 (1979): 17-22; Garrett
     Barden, “Defending Self-Defence,” Irish Philosophical Journal 1 (1984): 25-35;
     Steven A. Long, “St. Thomas Aquinas and the Death Penalty,” Thomist 63 (1999):
     511-52. On the question of the intervention of God changing the moral species or
     nature of an act, building upon the theological and philosophical reflections of St.
     Augustine and St. Thomas Aquinas, see Patrick Lee, “Permanence of the Ten
     Commandments,” Theological Studies 42 (1981): 422-43.
79   Joseph Boyle, “Praeter Intentionem in Aquinas,” Thomist 42 (1978): 649-65.
80   Boyle, “Praeter Intentionem,” 649-65.
81   Joseph Boyle, “Towards Understanding the Principle of Double Effect,” Ethics 90
     (1980): 527-38.
82   See John Finnis, “Object and Intention in Moral Judgements According to
     St. Thomas Aquinas,” in Finalité intentionnalité: doctrine Thomiste et perspectives
     modernes (Paris: Éditions Peeters, 1992), 127-48.
83   Stempsey, “Laying Down Ones’ Life,” 215; Barry, Breaking the Thread, 127,
     137-44. As with Augustine, he accepts the intervention of God as a grounds for
     killing. However, unlike Augustine he considered that the nature of a divine
     intervention changed the ‘moral species’ of the action. It ceased to be an act of
     homicide and instead became an act of obedience to the will of God.
84   See Augustine Regan, “Moral Argument on Self-killing,” Studia Moralia 18 (1980):
     301-7.
85   John Finnis, Aquinas (Oxford: Oxford University Press, 1998), 275-94.
86   Joseph Boyle, “Sanctity of life and Suicide: Tensions and Developments within
     Common Morality,” in Suicide and Euthanasia: Historical and Contemporary Themes,
     ed. Baruch Brody, 221-50.
87   Summa Theologica II-II, q. 64. a 5.
88   Rousseau, “Elements,” 584-88; Regan, “Moral Argument,” 301-7. For Aquinas,
     therefore, all forms of private homicide whether by one’s own hand or at the hand
     of another have a basic deprivation attached to them They represent a disorder
     against the order of goodness.
               A History of Ideas Concerning the Morality of Suicide,                 39
                     Assisted Suicide and Voluntary Euthanasia



89   Bourke, Ethics, 354.
90   On the development of neo-scholastic thought generally see Joseph Donceel, “A
     Survey of Some Neo-Scholastic Theories,” New Scholasticism 39 (1965): 295-315.
91   Gary M. Atkinson, “History of Catholic Teaching on Prolonging Life,” in Moral
     Responsibility in Prolonging Life Decisions, eds. Donald G. McCarthy and Albert
     Moraczewski (St. Louis: Pope John Center, 1981), 95-115.
92   Francisco de Vitoria, Reflection on Homicide & Commentary on Summa Theologiae
     II-II Q. 64, intro. & trans. John P. Doyle (Milwaukee: Marquette University Press,
     1997).
93   Vitoria, Reflection on Homicide, 30-1, 174-5.
94   Vitoria, Reflection on Homicide, 55.
95   However, even if some omissions are not intended to cause death they may still
     entail some culpability. Whilst a patient or physician may not precisely intend death
     they can be culpable through a failure to address the proportionality of means to the
     end of life preservation. See Atkinson, “History,” 95-115.
96   Jacques Choron, “Death as a Motive of Philosophic Thought,” in Essays in Self-
     Destruction, ed. Edwin S. Shneidman (New York: Science House, 1967), 62-63.
97   See Brian P. Copenhaver and Charles B. Schmitt, Renaissance Philosophy (Oxford:
     Oxford University Press, 1992), 24-37.
98   Gary B. Ferngren, “The Ethics of Suicide in the Renaissance and Reformation,” in
     Suicide and Euthanasia: Historical and Contemporary Perspectives, ed. Baruch
     A. Brody, 155-81.
99   Giovanni Pico della Mirandola, Oration on the Dignity of Man, trans. A. Robert
     Caponigri (Washington, DC: Regnery/Gateway, 1956).
100 Jacques Choron, Death and Western Thought (London: Macmillan, 1963), 96-101;
    Copenhaver and Schmitt, Renaissance, 162-77. The impact of Stoic and Epicurean
    ideas on Renaissance humanism were captured in the literature of the period. Thus,
    for example, William Shakespeare wrote no less than eight tragedies containing
    some fourteen suicides. See M. D. Faber “Shakespeare’s Suicides: Some Historic,
    Dramatic and Psychological Reflections,” in Essays in Self-Destruction, ed. Edwin
    S. Shneidman, 30-58.
101 Michel de Montaigne, The Essays, trans. Charles Cotton (Chicago: Britannica,
    1952). For commentary on Montaigne in historical context see Jakob Amstutz,
    “Philosophers on Death,” Essence 2 (1978): 129-38.
102 On rekindled Roman influences and their influence on later Renaissance humanism
    see Mark Sacharoff, “Suicide and Brutus,” Journal of the History of Ideas 33 (1972):
    115-22.
40                      PHYSICIAN ASSISTED EUTHANASIA




103 Montaigne, Essays, 25.
104 Amstutz, “Philosophers on Death,” 32-6; Charon, Death, 98-102.
105 Ferngren, “Ethics of Suicide,” 159-62.
106 Minois, History, 89-92.
107 Although there was little toleration of suicide amongst the Anglican clergy generally
    during this period. Indeed, several treatises were written employing the arguments
    against suicide already made by Augustine and Aquinas (e.g., Thomas Cranmer,
    John King, George Abbot, and John Sym). See Ferngren, “Ethics of Suicide,”
    168-73; Minois, “History,” 127-35.
108 Robert Burton, Anatomy of Melancholy, 3 vols. (Oxford: Clarendon Press, 1989-94);
    John Donne, Biathanatos, ed. Michael Rudick and Margaret P. Battin (New York:
    Garland, 1982).
109 Or the law of God. In Part Three of Biathanatos, Donne argued that there is no
    necessary contravention between suicide and the will of God. He argued that suicide
    is nowhere prohibited in the canon of the Bible. Moreover, humanity is a co-operator
    in discerning the will of God in the circumstances of a person’s own life. Given the
    natural tendency also to die, there seemed to be no necessary contravention in an
    individual hastening his or her own death.
110 Samuel E. Sprott, The English Debate on Suicide from Donne to Hume (La Salle:
    Open Court, 1961), 2-5, 66. See further David Daube, “The Linguistics of Suicide,”
    Philosophy and Public Affairs 1 (1972): 387-437.
111 See latter section for discussion on Hume.
112 Donne, Biathanatos, 45-83.
113 Donne, Biathanatos, 84-144.
114 Michael MacDonald and Terence R. Murphy, Sleepless Souls: Suicide in Early Modern
    England (Oxford: Clarendon Press, 1990), 165-69.
115 Minois History of Suicide, 159-60.
116 Thomas Hobbes, On the Citizen, trans. Richard Tuck and Michael Silverthorne
    (Cambridge: Cambridge University Press, 1998), viii-xxxii. See further the
    commentary on Hobbes’s moral philosophy by Richard Tuck “Hobbes’s Moral
    Philosophy,” in The Cambridge Companion to Hobbes, ed. Tom Sorell (Cambridge:
    Cambridge University Press, 1996), 184-93.
117 Thomas Hobbes, Leviathan, (Cambridge: Cambridge University Press, 1996), 70.
118 See Gary B. Herbert, “Fear of Death and the Foundations of Natural Right in the
    Philosophy of Thomas Hobbes,” Hobbes Studies 7 (1994): 56-68.
               A History of Ideas Concerning the Morality of Suicide,                 41
                     Assisted Suicide and Voluntary Euthanasia



119 See Charles D. Tarlton, “To Avoid the Present Stroke of Death: Despotical Dominion,
    Force, and Legitimacy in Hobbes’s “Leviathan”,” Philosophy 74 (1999): 221-45.
120 Bernard Gert, “Hobbes’s Psychology,” in Cambridge Companion to Hobbes, 169-71.
121 Herbert, “Fear of Death”, 56-68.
122 Thomas Hobbes A Dialogue between a Philosopher and a Student of the Common
    Laws of England (Chicago: University of Chicago Press, 1971), 88-89.
123 See generally Lester G. Crocker, “The Discussion of Suicide in the Eighteenth
    Century,” Journal of the History of Ideas 13 (1952): 47-72.
124 Minois, History, 210-66; Choron, Suicide, 124-27.
125 Crocker, “Discussion,” 61; Minois, History, 228-30.
126 Crocker, “Discussion,” 61-62; Choron, Suicide, 124-25.
127 Crocker, “Discussion,” 67-69; Choron, Suicide, 126; Minois, History, 221-23.
128 See David Fate Norton, “Hume, Human Nature, and the Foundations of Morality,”
    in The Cambridge Companion to Hume (Cambridge: Cambridge University Press,
    1993), 148-59.
129 David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge and P.H. Nidditch
    (Oxford: Clarendon Press, 1978), 469-70.
130 Published posthumously in 1784. David Hume, “Of Suicide,” in Applied Ethics, ed.
    Peter Singer (Oxford: Oxford University Press, 1986), 19-27. As with the approach
    of John Donne, discussed above, the structure of Hume’s text can loosely be seen as
    a reply to the arguments made by Aquinas against the moral licitness of suicide.
131 See R. G. Frey, “Hume on Suicide,” Journal of Medicine and Philosophy 24 (1999):
    336-51; Tom Beauchamp, “An Analysis of Hume’s Essay ‘On Suicide’,” Review of
    Metaphysics 30 (1976): 73-95. See also John Immerwahr, “God and Morality in
    Hume’s Suppressed Essays,” International Studies in Philosophy 11 (1979): 91-102.
132 Hume, “Suicide,” 22.
133 Id.
134 Hume, “Suicide,” 23.
135 This is not Hume’s second textual argument, for he makes also a theistic argument
    that is chronologically second. In this he points to the utter insignificance of human
    life from the perspective of the rest of creation, “the life of a man is of no greater
    importance than that of an oyster.” Further, he states that since God uses all manner
    of natural phenomenon to bring about death then why not an act of suicide? See
    Hume, “Suicide,” 23.
136 Hume, “Suicide,” 25-27.
42                       PHYSICIAN ASSISTED EUTHANASIA




137 See Kenneth R. Merrill, “Hume on Suicide,” History of Philosophy Quarterly 16
    (1999): 395-412. See also R G. Frey, “Hume,” 74-77.
138 Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New
    York: Harper & Row, 1964), 56-60. On Kant’s moral theory generally see B. E. A.
    Liddell, Kant on the Foundation of Morality (Bloomington: Indiana University Press,
    1970).
139 Kant, Groundwork of the Metaphysic of Morals, 109-10.
140 Kant, Groundwork of the Metaphysic of Morals, 64-68.
141 Kant, Groundwork of the Metaphysic of Morals, 121-23.
142 Kant, Groundwork of the Metaphysic of Morals, 82-84.
143 Liddell, “Kant,” 112-24, 119-22.
144 J.B. Schneewind, “Autonomy, Obligation, and Virtue: An Overview of Kant’s Moral
    Philosophy,” in The Cambridge Companion to Kant, ed. Paul Guyer (Cambridge:
    Cambridge University Press, 1992), 317-18; T. C. Williams, “The Traditional
    Interpretation of the Categorical Imperative,” in T.C. Williams, The Concept of the
    Categorical Imperative: A Study of the Place of the Categorical Imperative in Kant’s
    Ethical Theory (Oxford: Clarendon Press, 1968), 37-41.
145 Kant, Groundwork of the Metaphysic of Morals, 88; Williams, “Traditional
    Interpretation,” 37-38.
146 Kant, Groundwork of the Metaphysic of Morals, 88.
147 Kant, Groundwork of the Metaphysic of Morals, 89.
148 Kant, Groundwork of the Metaphysic of Morals, 103-4.
149 Kant, Groundwork of the Metaphysic of Morals, 96.
150 Kant, Groundwork of the Metaphysic of Morals, 83-84.
151 Id.
152 Novak, Suicide and Morality, 132-38.
153 Michael J. Seidler, “Kant and the Stoics,” 429-32. In making such an argument, we
    can see strong affinities here between Kant’s thought and the philosophy of Benedict
    de Spinoza. For Spinoza, everything that exists is a manifestation of the one ultimate
    reality that existed, a manifestation of one universal substance. The desire to be
    cannot be extinguished arbitrarily at the will of the person since it offends against the
    very humanity that resides in all persons as a manifestation of universal substance.
    On Spinoza see Regan, “Moral Argument,” 311; cf. Choron, Death, 121-28.
154 On Hume and utility see A.J. Ayer, Hume (Oxford: Oxford University Press, 1980),
    82-83.
               A History of Ideas Concerning the Morality of Suicide,                 43
                     Assisted Suicide and Voluntary Euthanasia



155 See Geoffrey Scarre, Utilitarianism (London: Routledge, 1993), 10-14.

156 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in
    Utilitariarism, ed. Mary Warnock (London: Fontana, 1979), 33.

157 Scarre, Utilitarianism, 72-91.

158 See Mary P. Mack, Jeremy Bentham (New York: Columbia University Press, 1963),
    112-13, 213. The comparison with Hume is made by the utilitarian James Rachels in
    his End of Life (New York: Oxford University Press, 1986), 19.

159 Bentham, Principles of Morals and Legislation, 34-35.

160 Mack, Jeremy Bentham, 112-13.

161 See discussion of Hume supra.

162 See Ross Harrison, Bentham (London: Routledge, 1983), 77-78.

163 Bentham, Principles of Morals and Legislation, 35-7.

164 Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon
    Press, 1986), 308-13.

165 See A.J.P. Kenny “Intention and Purpose in Law,” in Essays in Legal Philosophy, ed.
    R.S. Summers (Berkeley: University of California, 1968), 146-63.

166 Bentham, Principles of Morals and Legislation, 33.

167 See Harrison, Bentham, 77-105.

168 John Stuart Mill, Utilitarianism. On Liberty, ed. Mary Warnock (London: Fontana,
    1962).

169 Wendy Donner, The Liberal Self (Ithaca: Cornell University Press, 1991), 37-41.

170 Scarre, Utilitarianism, 90-95.

171 See discussion of this in David Lyons, “Liberty and Harm to Others,” Mill’s On
    Liberty: Critical Essays, ed. Gerald Dworkin (Lanham: Rowman & Littlefield, 1997),
    115-36.

172 Mill, On Liberty, 136.

173 Mill, On Liberty, 135.

174 C.L. Ten, “Mill on Self-regarding Actions,” Philosophy 43 (1968): 29-37.

175 See Max Charlesworth, Bioethics in a Liberal Society (Cambridge: Cambridge
    University Press, 1993), 15-20.
44                         PHYSICIAN ASSISTED EUTHANASIA




176 Mill, On Liberty, 136.

177 Jonathan Riley, Mill on Liberty (London: Routledge, 1998), 132-35.

178 Riley, Mill, 132-35.

179 See for example Dan Brock, “Physician-Assisted Suicide is Sometimes Morally
    Justified,” Physician-Assisted Suicide, ed. Robert Weir (Bloomington: Indiana
    University Press, 1997), 86-103; James Rachels, “Euthanasia,” in Matters of Life and
    Death, ed. Tom L. Beauchamp and Tom Regan, 3rd ed. (New York: McGraw-Hill,
    1993), 30-68; Margaret P. Battin, The Least Worse Death (New York: Oxford
    University Press, 1994), 3-29, 101-29.

180 G.K. Chesterton expressed well Kant’s reasoning here when he stated, albeit
    somewhat dramatically, that “he who kills himself kills all men.”
                                                2
Euthanasia – A Dignified End of Life!
                                         Vaibhav Goel*

        Survival is undoubtedly valuable but some time and in certain
        condition life becomes painful and impossible or unbearable, in
        that stage survilance seems, like a curse or abuse. Euthanasia –
        a new word for masses become common about four years back
        in the month of December 2004 because of Venkatesh plea for
        granting him right to die. Euthanasia is nothing else but a
        permit or license to the medical professional for ending the life
        of a person in question. No doubt if it will be permitted in laws,
        may be the biggest threat to the creature. In fact the concept is
        debatable; here the key question is “What should be the
        ingredients of law which would legalize Euthanasia?” Hence the
        purpose of writing this article is to examine the questions
        pertaining to Euthanasia, especially in the light of traditional
        perspective besides legal dimensions of MTP and to suggest
        legal aspects of the same to make life with dignity even at the
        time of end. In addition the second key question may be that if it
        permitted weather it will be on the recommendation of the
        doctors or in the consent of the relative of the Patient?



*   Faculty of Law Addis Ababa University Addis Ababa Ethiopia. E-mail: vaibhav_hnlu@yahoo.co.in.

© 2008 Academic Journals. International NGO Journal Vol. 3 (12), pp. 224-231, December, 2008. Open
Access article.
Source: http:// www.academicjournals.org/INGOJ
46                     PHYSICIAN ASSISTED EUTHANASIA



Introduction
Antipathy is not a word but it is the position or it is a feeling because of which
Jurisprudence has been generated. No doubt, father of Jurisprudence, Bentham,
not only describe antipathy as the deciding factor of law and legislation but also
as an exercise which cause a powerful influence over the morals of man. As
Bentham defined antipathy in six distinct parts as repugnance of sense, wounded
pride, individual resistance and power, confidence in future, desire of unanimity
and last but not the least envy. Bentham describes it as a cause that gives rise to
the feeling of sympathy in the society.

    The theory of pleasure and pain is described as a test through which
sanctions may be formed. Undoubtedly pleasure and pains are corresponding to
each other but sometimes the pain is too severe to explain not only to a
particular but also for their near and dear along with the attached part of society,
this type of pain is really questionable that whether it can be perfectly cured by
any law by the end of subject matter or to left the subject matter in its position to
fight with its pain. In fact pain and sufferings in the way of dying is a more
terrible lord of mankind than even death itself. Here, it can be said “It is not
death one fears to face, but dying”. It means that one does not fear to face the
darkness of death but fears to go through the sufferings in dying when everyone
knows the result – that is, ultimately the end of subject matter.

   To give the end to the subject matter in a spite of unbearable sufferings and
pain where death is certain, is known as concept of euthanasia.

Meaning of Euthanasia
Euthanasia is the intentional killing by act or omission of a dependant human
being for his or her alleged benefit [www.euthanasia.com (visited on March
24, 2008)]. Some how the meaning of Euthanasia is explained in light of suicide
while suicide is, many agree, considered as murder except that it is the victim
who is the author himself. One of its kinds is assisted suicide which happens
when someone provides an individual with the information, guidance, and
means to take his or her own life with the intention that they will be used for this
purpose (http://www.euthanasia/index/html/deffinitions, last visited February
25, 2008). When it is a doctor who helps another person to kill themselves it is
called “physician assisted suicide.”
                       Euthanasia – A Dignified End of Life!                       47



   As per Canadian Law Reforms Report (See Canadian Law reforms, ILI LIB.
343.611/614(71) (047); further see www.cbc.ca/on eutha.htm, visited on
February 25, 2008).

     “The word “euthanasia” is some what ambiguous and has several possible
meaning. Hence it is appropriate to explain what we mean by the term whenever
it is used. For the purpose of this Report, euthanasia will mean the act of ending
the life of a person from compassionate motives, when he is already terminally ill
or, when his suffering has become unbearable.”

     Normally – Euthanasia is defined as gentle and easy death: bringing of this
especially in the case of incurable and painful diseases (The Concise Oxford
Dictionary of Current English, 2004, Ed. By R. E. Allen 403). The word
Euthanasia comes from the Greek – “Euthanatos” derived from the words ‘eu’
meaning good and ‘thanatos’ meaning death. It has been defined as - mercy
killing of the hopelessly ill, injured or incapacitated (J. Podgers (1992) ‘Matters of
life and Death: Debate Grows over Euthanasia’ American Bar Association
Journal 60) or the ending as painlessly as possible of the life of the person who
is fatally ill and suffering pains (Rallsl, 1997, The Doctor’s Dilemma: Relieve
Suffering or prolong life?’ South African Law Journal 1-40). That is, euthanasia
may be conducted with consent (voluntary euthanasia) or without consent
(non-voluntary euthanasia) (Melvin I. Urofsky, Philip E. Urofsky, The Right to Die,
1996, p. 823) Since involuntary euthanasia is conducted without an individual’s
specifically given acquiescence, in the opinion of some, this equates involuntary
euthanasia to murder. Non-voluntary euthanasia may be conducted when the
person is incapable of making a decision and it is thus left to a proxy. Euthanasia
by proxy consent is highly controversial, especially because multiple proxies may
claim the authority to decide for the patient (Ibid).

   A patient once diagnosed as suffering from one of these ailments is doomed
to suffer with despair and dejection. He loses all hopes and peace. Some time
medical assistance is phenomenally high and beyond the reach of many and
who are frightening for death restlessly. It may therefore be asked that will it not
be prudent to legalize euthanasia so that crying may be minimized by giving
death and surly peaceful and dignified death.
48                     PHYSICIAN ASSISTED EUTHANASIA



Classification
There are many different types of euthanasia which all have distinct definitions
(Omayer Hashmi, 2003; The Issue of Euthanasia, p. 07). Euthanasia may be
classified as (Shailender Kaur (ADJ) 2005 March, DJA Journal; 4 (1): 85-86).

Passive Euthanasia
It is defined as hastening the death by altering some form of support and letting
nature take in course by following one the methods such as removing life
supporting medical procedure, medication etc., or stopping food and water and
allowing the person to dehydrate or starve to death or not delivering CPR
(cardio-pulmonary resuscitation) and allowing a person, whose heart has
stopped, to die (Baume et. al., 1995: “Professed Religious Affiliation and the
practice of Euthanasia”, Journal of Medical Ethics 21: 49-54). These procedures
are performed on terminally ill, suffering persons so that natural death will occur
sooner.

Active Euthanasia
This involves causing the death of a person through a direct action, in response
to a request from that person.

Physician Assisted Suicide (PAS)
A physician supplies information and/or the means of committing suicide (e.g.
a person prescription for lethal dose of sleeping pills, or supply of carbon
monoxide gas) to a person, so that he can easily terminate his own life. The term
“Voluntary Passive Euthanasia” (VPE) is becoming commonly used.

Involuntary Euthanasia
This term is used to describe the killing of a person who has not explicitly
requested aid in dying. This is most often done to patients who are in persistent
vegetative state or in coma and will probably never recover consciousness.

    The advancement in medical science has generated various questions
amongst the concerned individual and the groups who ponder to know - what is
Right to Life? Does it mean merely staying alive or does it include meaningful
life? Similarly, a debate is also on about the constantly changing meaning of
                        Euthanasia – A Dignified End of Life!                        49



“natural death”. The advance medicine can sustain human life artificially through
various life support systems. Thus the question emerges, “when can one actually
define natural death?”

Significance of Euthanasia
On the one hand the good will of a dead body is considered and on the other
hand one who do not want to live on the mercy of any one, can’t have right to
have a dignified end of his/her life? “Surveys in European countries indicate that
many thousands of people are routinely assisted to die by doctors in one of the
two latter ways every year” [The Hindu (April 21, 2002) editorially observes].

   In 1992, Sue Rodriguez forced the right-to-die debate into the spotlight in
Canada. In a video statement played to members of Parliament, the Victoria
woman, diagnosed with Lou Gehrig’s disease in 1991, asked lawmakers to
change the law banning assisted suicide and euthansia (www.cbc.ca/on
eutha.htm).

    “If I cannot give consent to my own death, whose body is this? Who owns my
life?” she said (Ibid).

    The Supreme Court of Canada ultimately ruled against Rodriguez, but her
struggle galvanized the public. Rodriguez committed suicide in 1994 with the
help of an anonymous doctor.

    Act 21 of the Indian Constitution guarantees “right of life” which mean “right
to live with dignity”. Undoubtedly it can not be said. That guarantee of right to
life includes right to die. The right to life including the right to live with human
dignity would mean the existence of such a right up to the end of natural life
(Gyan kaur V. State of Punjab, 1996 2 SSC 648/A; Chandra (2004) Right to
Dignified Death -How far is it fundamental. Mewer Law Journal p. 6). This also
includes the right to a dignified life up to the point of death including a dignified
procedure of death. In other words this may include the right of a dying man to
also die with dignity when his life is ebbing out (Rao, 1998: Euthanasia – A
licence to kill, ILI report on global health conferences at p. 7). But this right to die
with dignity at the end of life is not to be confused with the right to die and an
unnatural death curtailing the natural span of life as it attract the provision
of 309IPC.
50                     PHYSICIAN ASSISTED EUTHANASIA



    There are number of cases of various states which clearly shown the
inconsistency of criminal law in its response to the medical practitioners who take
life limiting decision.

    In R. v. Cox [(1992) 12 B.M.L.R. 38] the doctor literally followed the
instructions of his distressed dying patient and deliberately injected her with
strong potassium chloride resulting in the death of the patient, the jury for
homicide convicted the doctor. This in spite of the fact that all nearer, dearer and
family members considered that the doctor has provided a merciful release to the
old patient. Many member of the jury openly wept when the verdict was returned.

    In Airedale NHS Trust v. Bland [(1993) 2 W.L.R. 316], House of Lords, was
called upon to decide the legality of withdrawal of feeding. In the case ‘x’ was
severely injured in the hill borough stadium disaster. AS a result of interruption of
supply of oxygen, he had remained for three-years inpersistence vegetative
stage. He had lost all the higher brain function. There was clear medical opinion
that there was no hope of this ever-regaining brain functions. He was fed and his
other bodily functions met by artificial means and he received antibiotic
treatment to combat recurring injection.

    Before the accident, he had not expressed any opinion as to how he should
be treated in these circumstances. The hospital authorities supported by the
parents of ‘x’, this sought by the declaration to the effect that they might lawfully
discontinue all the life saving treatment and medical assistance. They also
desired to discontinue medical assistance exception enabling the patient to end
his life with dignity. The House of Lords held that there was no duty on the past
of the doctors to continue such treatment when the patient had no further interest
in being kept alive. The house further directed that until a body of experience
and practice was built up application should be made to the family division of
the high court in any case where it was considered that continued treatment and
benefit (Law India 1993, 2(4); 10).

    There are many definitions for the word “terminal.” For example, Jack
Kevorkian who participated in the deaths of more than 130 people before he
was convicted of murder said that a terminal illness was “any disease that curtails
life even for a day” (“Dr. Death: ‘No law is needed on euthanasia,” USA
Today, October 28, 1992, p. 6A. Kevorkian’s attorney, Geoffrey Feiger
                       Euthanasia – A Dignified End of Life!                      51



said, “Any disease that curtails life-span is terminal.” Geoffrey Fieger, Letter to
the Editor, Detroit Free Press, December 11, 1990) Dutch psychiatrist Dr.
Boudewijn Chabot who provided a fatal dose of drugs to a depressed, but
physically healthy, woman, stated that “persistently suicidal patients are, indeed,
terminal” (“CO. Interview: Arlene Judith Klotzko and Dr. Boudewijn Chabot
Discuss Assisted Suicide in the Absence of Somatic Illness,” 4 Cambridge
Quarterly of Healthcare Ethics (1995),.

    In India supreme Court, through not called upon to examine the issue directly
but in the case of Venkatesh, on 17 December, 2004 (Times of India
dt.18 December 2004) (BBC News 15th December 2004, South Asia) when he
died in a sleep, prior to his death his plea to Andhra Pradesh H. C. to be allowed
to donate his organs was turned down. The hospital said on the question of
donation of organ in the very case it amounted to euthanasia or mercy killing,
which is illegal in India. The court agreed. “The law does not allow transplanting
organs from a person who is still alive,” High Court judges Devender Gupta and
Narayan Reddy said. “The existing law has no such provision and such a request
cannot be conceded,” they added Even his mother K. Sujatha has not yet given it
up. She has vowed to light it out in the court so as to make mercy killing legal in
India. But as there is no law regarding Euthanasia in our country the following
things happened:

i. The boy’s final wishes of helping some one in need has been remained
   unfulfilled.

ii. The mother and other relatives fell hurt as they couldn’t fulfill the boy’s final
    wish.

iii. The few needy patients who could have been saved by the boy’s healthy
     organs have been deprived of a chance to line a healthy life.

   In another case of Terri Schiavo, who passed away recently is indifferent in its
nature. She was unable to make a decision for herself as she was in persistent
vegetative state for 15 years after an extensive brain damage. The case gained
world wide publicity and after the intervention of US president when the feeding
tube was pulled off after 12 days, Terri left this world.
52                     PHYSICIAN ASSISTED EUTHANASIA



   In fact Euthanasia is a very difficult decision and no doubt here it is important
to explain the thinking of the lawmakers to revert the decision of S. C. in P.
Rathiram Vs UOI [(1194) 3SCC 394] and in Gyan Kaur Vs UOI [(1996) 2 SCC
648]. Actually the right die when first time permitted justice B. L. Hanasaria
observed that Act 21 speaks right to live never means a right to live a force life
[(1994) 3 SCC p. 410 Para 35]. But once a suicide has been omitted from IPC,
the welfare concept diminish as the duty of state to check over crime is lacked, as
there was no fear behind it for those who make the attempt to suicide, hence
before doing so one have to think it pros and quinces if he fails to die.

   In history Euthanasia already existed in some form or the other by various
societies and groups. The revival of classical learning in the medieval era evoked
sympathetic public feelings towards suicide. Suicides committed for avoiding
disgrace and humiliation, real or imaginary were considered with admiration
and favor (Groller Encyclopedia, 1954).

   The foundation of medieval ecclesiastical view and with it the legal sanction
against suicide begun to suffer tremor as a serious of doctrinal views begun to
shower relentless criticism against them.

    Montague, the first scholar to question the orthodox view, had thought that
suicide motivated by pain and fear of suffering the worst death is excusable
(Thakur L. History of Suicide in India, 1986). In ancient Greece and Rome
helping others to put an end to their lives was permitted in certain situation.
Indian philosophical tradition has justified the idea of willing one’s death
(ichacha maran). Veer Savarkar and Vinobha Bhave are the well-known
examples of the person choosinf to end their lives by refusing the intake of
all-nutritious. Even Mahatma Gandhi supported this idea. Mythology syas Lord
Rama and his brother took Jalasamadhi in river Saryu near Ayodhya. Ancient
history tells that Lord Budha and Lord Mahavir achieved death by seeking it.
These mythological believe suggest that trace of right to Die existed in various
religions followed in India. Rishi Dadhichi is also well known to choose his death
himself. Last But not the least the name of Bhishma Pitamaha can not forgotten
to choose his death as per his wish.

   In recent past, Vimla Devi Bhansali’s good bye to society enlighten the question
of right to live and right to die once again. In present case, the 60-year-old
                        Euthanasia – A Dignified End of Life!                        53



woman had chosen to observe Santhara or Sellekhana Vrata a traditional Jain
ritual of voluntary non-violent abnegation of one’s physical body-giving up food
and water, gradually starving herself to death over a period of time. It is argued
that while rituals like Santhara are evolved acts aimed at achieving spiritual
liberation, the desire for suicide or impulsive taking of one’s life arises from a
desire to life in order to end sufferings. This implies that those being driven to
suicide because of failure percep-tion-for instance jilted in love, poor
performance in examination, unemployment, bad debts and painful sufferings-
require counseling and care. Instead, the law punishes those who attempt to
commit suicide, and this only aggravates their suffering. However, even after
counseling and serious consideration of the situation if an individual still wants to
end his life, it is his right to do so but without disturbing or disrupting the lives of
others.

    So far as Quaran (Khan (1997) Right to Die or Not to Die: A Note on the
Supreme Court Judgment, SCJ 1: 34-44.) is concern Islam categorically rejected
of suicide. Prof. Masudul Hasan in his the digest of the Holy Quaran writes Islam
forbids suicide. Man is the vicegerent of Allah on earth and he who commits
suicide runs away from his obligation to God. This can be more following verses
of Quaran.

   “Make     not your own        hands     contribute to    your destruction.”

   “Do not kill or destroy yourself.”

   “It is Allah who gave you life: who will cause you to die ….“.

    Islam considers life is very precious and it wants every man to devote their
lives in serving oneself and the society also. Life is not meant for oneself only.
Allah is given you life for serving the society. The value of one’s life can be
judged from the following verse of Quaran.

    “Whoever kills one person without any person having been killed or for
creating disturbances on earth he kills the whole human race and one who saves
a life he saves the whole human race.”

   Generally Islam prohibits something to be eaten; they are carrion and blood
and swine flesh and the dead through beating and the dead through falling from
54                      PHYSICIAN ASSISTED EUTHANASIA



height and that which hath been killed by horns etc. But in some emergent
situations, to save the life, one is allowed to eat what is prohibited because life is
so precious that to save what is prohibited is allowed.

    The most explicit and very candid attack against the Christian attitude on
suicide was made by Voltaire [Encyclopedia of Philosophy, 1967 (On Suicide)].
He wondered why suicide was made a crime while war which cause “much more
harmful to the human race than self-murder” (Ibid) was not. As he did not
consider suicide as antisocial he therefore, condemned the degradation of the
suicide’s body. He admired the ancient Romans who were not censured to live, to
think or to die and propose society to follow their example.

    Charles Moor (Ibid) on his monumental work on suicide advocates the
patristic view. He thought suicide as a wrong not because man in his life knows
not for certain what is in store for him. Even if life appears to be unattractive he
can never be certain if it will go on like that in the future; a suicide by his abrupt
departure may counteract some hidden design of the almighty, Glanville
criticized this view as an “argument for never taking any decision.”

Misgivings
Euthanasia is in debate from state highlighted its positive feature but it negative
aspects or MTS giving can also not be ignored at all like.

i. It will be check over the discovery of new treatment.

ii. Medical professions are known for saving the life and not one that helps
    people to die.

iii. There can be mis-diagnosis.

iv. People Regard for doctor will go down.

v. Legally sanctioned killing will always make any society move callous about
   the death.

    In addition of the above in a country like India where public is backing
beyond the money, it is observed that euthanasia may be misused by the masses
in case of the property or else where disputes.
                       Euthanasia – A Dignified End of Life!                     55



   The opponents of euthanasia fear that, when euthanasia is legalized, it may
become the first option, not necessarily because killing is contagious but because
the concept of life-not-worth living is open to numerous interpretations. It is this
perspective that is highlighted by those who oppose this slipper slope.

   The objection is not to Euthanasia but against the projected consequences-
such as sick, elderly, disabled being pushed into death just to spare the families,
energies, emotion and money. In a study of 1,150 critically ill patients who died
during the study, in only 14% was there an attempt to resuscitate. Twenty years
ago most would have been. If all life-prolonging care would be forbidden, it
would only save one out of eight dollars spent on health care J. Lynn,
Terminally ill, Forgoing.... Care, Dartmouth, Boston Globe, May 21, 1994. Also
see http://www.lifeissues.org/Euthanasia\why_cant_we_love_them_both_25.
asp.htm Visited on February 25, 2008).

   There are many who believe that Euthanasia might brutalize those carrying it
out. Once doctors get accustomed to sending certain categories of people of
death, they may be indifferent to suffering inflicted on other. As Cardinal Roger
Mahonet, Archbishop of Los Angeles points out; all that it serves is the attitude
that we can solve the problem of people by getting rid of people (Colbum D.,
Biscupic, May 15, 1994, “Patient has Right to commit Suicide” The Guardian
Weekly).

MTP and Euthanasia
A Distinction may be made between Euthanasia and abortion. Abortion is a
waste of start of human life. Death intervenes before life in earnest has even
begun. In Euthanasia people make decision about death at the other end of life,
after in earnest has ended (Dworkin, 1993 – “Life’s Dominion”, Alfred A. Knopf
New York 233-234).

   Under Medical Termination of Pregnancy Act 1971, all abortions carried out
require the consent of women and all abortions after twenty weeks are illegal.
The Act Specifies the situations when pregnancy may be terminated by registered
medical practitioners (Section 3, Medical Termination of Pregnancy Act, 1971):

i. Not with standing contained in the Indian Penal Code, a registered medical
   practitioner shall not be guilty of any offence under the code or under any
56                       PHYSICIAN ASSISTED EUTHANASIA



     other law for the time being in force, if any pregnancy is terminated by him in
     accordance with the provision of this Act. ii.) Subject to the provision of Sub
     Section (4) a pregnancy may be terminated by a registered medical
     practitioner.

     a. Where the length of the pregnancy does not exceed twelve weeks, if such
        medical practitioners, or

     b. Where the length of the pregnancy exceeds twelve weeks but does not
        exceed twenty weeks, if not less than registered medical practitioners are
        of opinion, formed in good faith that –

     iii. The continuance of the pregnancy would involve a risk to the life of the
          pregnant women or of grave injury to her physical or mental health; or

     iv. There is a substantial risk that if the child were born, it would suffer from
         such physical or mental abnormalities as to be seriously handicapped.

Explanation 1
Where pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by such pregnancy shall be presumed to constitute a
grave injury to the mental health of the pregnant women.

Explanation 2
Where any pregnancy occur as a result of failure of any device or method used
by any married women or her husband for the purpose or limiting the number of
children, the anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant woman.

   The MTP Act emphasizes that legally, a pregnant woman can abort whether
she is married, single or widowed. The abortion can be performed at
government hospitals, Primary Health Centers, authorized Nursing Homes and
Hospitals (sec. 4 MTP Act 1971).

   In India, abortion is legal with few exceptions but everyday illegal and unsafe
abortions are performed due to lack of information about MTP Act and
affordable services. A tenth of maternal deaths in our country are due to septic
                        Euthanasia – A Dignified End of Life!                        57



abortions that kill form 4 to 25% of the women that decide to have illegal
abortions. The cost of an illegal abortion depends on the degree of the risk
involved: the more advance the pregnancy the more expensive the abortion.

    To terminate a pregnancy is permissible when the foetus is seriously
abnormal – when a baby would be born born with Tay-Sach disease or without a
brain – then it becomes permissible to end the life of suffering patient who wants
to die or a patient who is in the persistent vegetative situation (RDworkin, 1993-
“Life’s Dominion”, Alfred A . Knopf New York pp. 233-234).

   Is it not the Euthanasia? As the basic purpose behind MTP is provide a
dignified life to mother and ensure a dignified life to the unborn after birth,
definitely it is alike Euthanasia in its main objective and characteristic. Actually all
type of the MTP as above are legalize in India then why not Euthanasia for the
benefit of mankind?

Present Legal Position of Euthanasia in Various States
Euthanasia – Law and practice in the Netherlands: According to the Dutch Penal
Code, euthanasia is a crime. However, it is not qualified as murder (As in some
other countries), but dealt within a separate action, according to Article 293,
anyone who takes another person’s life at his explicit and earnest request will be
punished by imprisonment to a maximum of 12 years. In the same year Royal
Dutch Medical Association issued an influential statement on euthanasia.

   In order to provide guidance to the profession as to under which conditions
euthanasia could be permissible, it formulated a set of criteria developed by the
Courts.

i. The requests for euthanasia must come form the patient and be entirely free
   and voluntary well considered and persistent.

ii. The patient must be experiencing intolerable sufferings (Physical or mental)
    with no prospect of improvement and with no acceptable solutions to alleviate
    the patient’s situation.

iii. Euthanasia must be performed by a physician after consultation with an
     independent colleague who has experience in this field.
58                     PHYSICIAN ASSISTED EUTHANASIA



    Euthanasia policy of Netherlands is unique in the world and it may be an
example to other to follow its policy. In February 2008, Luxembourg passed a
law to permit euthanasia and assisted suicide. However, the law will not go into
effect until additional procedures are completed. Implementation is expected in
mid-2008.

    Euthanasia law in Australia: In March of 1998, Australia’s remote Northern
Territory (Darwin) becomes the first place to legalize voluntary euthanasia.
Although Australia does not hold the same notoriety as the Netherlands, the
history of the bill has been volatile and controversial. A new proposal in South
Australia makes assisted suicide available to those who are “hopelessly ill.”
According to the “Dignity in Dying Bill 2001” A person is hopelessly ill if the
person has an injury or illness (a) that will result, or has resulted, in serious
mental impairment or permanent deprivation or consciousness; or (b) that
seriously and irreversibly impairs the person’s quality of life so that life has
become intolerable to that person” (“Dignity in Dying Bill 2001,” South
Australian Parliament, introduced on March 14, 2001 by Australian Democrats
state deputy leader Sandra Kanck. Also available at http:www.democrats.org.au/
sa/parlt/autumn2001/0314_e. htm on May 29, 2001).

   Euthanasia law in USA: Presently the majority of states in America have laws
against assisting suicide despite suicide and attempted suicide, are no longer
considered crimes.

   Euthanasia law in UK: In UK, the Courts and legislators have consistently
refused to remove the fundamental criminal law objection to the practice of
euthanasia. This shows legal limits in this sphere by which doctor’s cannot follow
their individual consciences how good it may be. In 1994, New England Journal
of Medicine published an article recommending legalization that would permit
assisted suicide not only for individuals who have terminal conditions but also for
those with “incurable debilitating illnesses.” [Franklin G. Miller, Timothy E. Quill,
Howard Brody et. al., “Sounding Board: Regulating Physician-Assisted Death,”
331 New England Journal of Medicine, 1994).

   Likewise, the Hemlock Society, citing the fact that many people fear becoming
a burden, has publicly supported a man’s legal attempt to “empower his wife to
                       Euthanasia – A Dignified End of Life!                       59



have a doctor end his life by lethal injection, without criminal liability, should he
be stricken by a debilitating illness.” (http://biz.yahoo.com/prnews/981231/
co_hemlock_1.html , visited on February 25, 2008).

   Euthanasia law in India: In India Euthanasia is yet to be discussed. There are
no special provisions regarding this either in law of legislation.

   In India special legislations is needed: In India special legislation is at need.
In this regard Justice J. S. Verma mentioned:

   “Euthanasia is not lawful at common law. It is of course well known that there
are many responsible members of our society who believe that euthanasia
should be made lawful; but result could. I believe, can only be achieved by
legislation which express the democratic will and it is so fundamental that a
change should be made in out subject to appropriate supervision and control…”.

   In India M. R. Masani is advocating the practice of euthanasia. The idea of
euthanasia is more or less a hidden concept of those people. Who cannot think
of the patient in suffering? When people seeing a patient in acute pain and
endless suffering say “May God bless him death or why death does not come to
him”, that shows the hidden euthanasia concept. Perhaps when these ideas will
be fully expressed in an organized manner we will be in crisis. To avoid this,
certainly we need a hot debate over this issue. They believe the implementation
of euthanasia should be made under some conditions.

   There are generally five individually necessary conditions for candidacy for
voluntary euthanasia. They contend that if a person;

i. is suffering from a terminal illness;
ii. is unlikely to benefit from the discovery of a cure for that illness during what
   remains of her life expectancy;

iii. is, as a direct result of the illness, either suffering intolerable pain, or only
   has available a life that is unacceptably burdensome (because the illness has
   to be treated in ways that lead to her being unacceptably dependent on
   others or on technological means of life support);
60                      PHYSICIAN ASSISTED EUTHANASIA



iv. has an enduring, voluntary and competent wish to die (or has, prior to losing
    the competence to do so, expressed a wish to die in the event that conditions
    (i)-(iii) are satisfied); and
v. is unable without assistance to commit suicide, then there should be legal and
   medical provision to enable him/her to be allowed to die or assisted to die
   [Encyclopedia of Philosophy, 1967 (On Suicide)].
    Further there are so many questions like that who may be member of that
judicial body? How it can be decided that a person is in irreversible coma as it
was found in some cases of coma the patient come out of this coma and medical
science simply said “ It is the wonder of God” In fact there are so many problems
for which debates are going on. In addition of the above one things should also
be considered by the judicial body that who ever want the benefit from
euthanasia, must donate the body organs for the benefit of the society.

Conclusion
Euthanasia, too, is a controversial subject, not only because there are many
different moral dilemmas associated with it, but also in what constitutes its
definition. At the extreme ends of disagreement, advocates say euthanasia, also
known as physician aid in dying, or physician assisted suicide, is a merciful
method of death. At the other end are opponents of euthanasia, who may
consider this method as a form of murder. After the detail study of various states
legislations and the detail study of the Rati Ram’ case and Gyan Kaur’ case, still
the matter is a question of debate that whether Euthanasia is a suicide or
dignified end of life. Many state legalize Euthanasia but in the high profile state
as well as in India Euthanasia is not permitted even after their broader verdict
that right to life means dignified life and this right to life include dignified end of
life too. On the one hand most of the countries are not legalizing the Euthanasia
and on the other hand they are providing the legislation for wish for death (for
unborn living), no doubt MTP Act 1971 is one in India. As one of their major
goals, euthanasia proponents seek to have euthanasia and assisted suicide
considered “medical treatment.” If one accepts the notion that euthanasia or
assisted suicide is a good medical treatment, then, opponents say, it would not
only be inappropriate, but discriminatory, to deny this good treatment to a
person solely because that person is too young or mentally incapacitated to
request it.
                       Euthanasia – A Dignified End of Life!                      61



    The real alternative to euthanasia is to provide loving, competent care for the
dying. A new concept for the dying arose in England, where institutions called
Hospices specialize in compassionate, skilled care of the dying. This concept has
spread throughout the Western world. Once a patient feels welcome and not a
burden to others, once his pain is controlled and other symptoms have been at
least reduced to manageable proportions, then the cry for euthanasia
disappears. Proper care is the alternative to it as soon as there is adequate
instruction of medical students in a teaching hospital. Technically the concept of
Euthanasia and right to die are not in themselves degrading concepts. Rather
they develop the idea of contentment of human beings.

    Oregon permits assisted suicide [Oregon’s “Death with Dignity Act”
(ORS 127: 800-897) passed in November 1994 and went into effect in 1997].
The Netherlands and Belgium permit both euthanasia and assisted suicide.
Although euthanasia and assisted suicide are illegal in Switzerland, assisted
suicide is penalized only if it is carried out “from selfish motives.” Although both
euthanasia and assisted suicide had been widely practiced in the Netherlands,
they remained technically illegal until passage of a bill for the “Review of cases of
termination of life on request and assistance with suicide” was approved in April
2001 (http:www.internationaltaskforce/holland.htm. last visited on February 23,
2008 Oregon “Death with Dignity Act” [ORS 127.800 §1.01 (12)]. Belgium’s law
was passed on May 16, 2002. Swiss law states, “Whoever, from selfish motives,
induces another to commit suicide or assists him therein shall be punished, if the
suicide was successful or attempted, by confinement in a penitentiary for not
more than five years or by imprisonment” (Article 115 of the Penal Code).

    Various theories of sociologist dealing with the social aspects of suicide leads
to positive conclusions that examination and correction of social condition that
directly or indirectly contributes towards the incidents of suicide is essential of a
society and family don’t take the trouble that the person is unhappy.

    It is the duty of the family to see the social and psychological condition of the
frustrated person. Our state India being a social welfare state is interested with
the duty to take suitable steps. Providing punishment for an attempt to suicide
and making it an offence in IPC is not only the solution of this problem. With
62                     PHYSICIAN ASSISTED EUTHANASIA



this, some more is required to be done. As it is known as – death wish – mercy
death – painless killing of a patient suffering from incurable disease – irreversible
coma, it can be permitted on following basis:

i. There should be clear cut spinier of a penal of the Doctors of the hospital that
   the person in question can not survive.
ii. The consent of the entire family member should be taken.

iii. If the patient is in a position that he can accord his consent, it must be
     obtained.
iv. There should be a judicial body at Dist-level to who, on the basis of grounds,
    plea of Euthanasia be pleaded and obtained.
v. In the cases of AIDS, irreversible coma and incurable diseases it may be
   granted by the judicial body as a matter of right.
    To provide an ultimate healing touch for the dying, the logical, the common
sense, the compassionate approach for Euthanasia can be legalized by the
interference of law and legislation for the permissive Euthanasia society. And so
far as the misuse is concern it is known that every boon possesses some curse,
even Code of Medical Ethics (Sec. 33 of Indian Medical council Act 1956) may
also be treated as a safeguard while legalize Euthanasia as a safeguard for the
curse.

   Thus this right to dignified end of life should be bestowed upon the
individuals, family, physicians and the society at large with necessary dogmatic
mechanism. A decision in time can avoid torment to the dying, can release
recourses to save other retrievable lives and avert emotional and fiscal agony to
the survivors.

Journals
1. American Journal of Law and Medicine.
2. The Guardian weekly – Columbia Journal.
3. Delhi Judicial Academy Journal.
4. Journal of Medical Ethics.
                       Euthanasia – A Dignified End of Life!                 63



5. American Bar Association Journal.
6. Journals of Indian Law Institute.

7. Excise Law Times.

8. Supreme Court Journal.

9. Canadian Law Reforms.

10. Keown, D. Keown J., (1995) Killing Karma and caring Euthanasia in
   Buddhism and Christianity. Journal of Medical ethics.

Articles
Melvin IU, Philip EU (1996) The Right to Die, P. 823.

Ralls I (1997). The Doctor’s Dilemma: Relieve Suffering or prolong life?’ (South
African Law Journal) pp.1-40.

Podgers J (1992). ‘Matters of life and Death: Debate Grows over Euthanasia’
American Bar Association Journal 60.

Omayer H (2003). The Issue of Euthanasia, p.07.

Shailender K (ADJ) (2005). March, DJA Journal; 4(1): 85-86.

Peter B, Emma OM, Adrian B (1995). “Professed Religious Affiliation and the
practice of Euthanasia”, Journal of Medical Ethics. 21: 49-54.

Chandra, Umesh (2004). Right to Dignified Death – How far is it fundamental.
Mewar Law Journal p. 6.

Thakur L (1986). History of Suicide in India, p. 200.

Sheeraz LAK (1997). Right to Die or Not to Die: A Note on the Supreme Court
Judgment, SCJ 1: 34-44.

Dworkin R (1993) “Life’s Dominion”, Alfred A . Knopf New York pp. 233-234.

Franklin GM, Timothy EQ, Howard Brody (1994). “Sounding Board: Regulating
Physician-Assisted Death,” 331.
64                     PHYSICIAN ASSISTED EUTHANASIA



References
A Books and Acts
Constitution Law of India.
Indian Penal code.
Code of Medical Ethics.
Law of India-Volume -2- NO-4.
Life’s Dominion- By R.D Dworkin.
MCI Act 1956.
MTP Act 1971.
                                                      3
               Assisted Suicide – How Far
                       Justifiable?
                                           Dr. B. R. Sharma*

        Reasonable and well-informed people come to different
        conclusions on the meanings and implications of the data
        concerning assisted suicide. These positions grow out of
        different philosophies, value systems, and life experiences, and
        each can represent high levels of moral development.
        Individuals may strongly oppose or support assisted suicide,
        believing that it is the appropriate position of compassionate and
        socially responsible citizens. Both proponents and opponents of
        assisted suicide agree that there are costs and benefits to
        permitting versus banning the practice. However, they differ in
        their assessment of these relative costs and benefits.
        Furthermore, the current state of understanding of all of the
        issues surrounding assisted suicide is incomplete. The data that
        do exist are far from definitive and the lack of consensus on the
        interpretation of these data, contribute to the differences in
        opinion about assisted suicide. Currently there is no way of
        identifying the sequelae of legalizing assisted suicide and given

*   M.B.B.S., M.D., Professor & Head, Dept. of Forensic Medicine and Toxicology, Govt. Medical College &
    Hospital, Chandigarh - 160030 India. E-mail: drbrsharma@yahoo.com

© 2009 Icfai University Press. All rights reserved.
66                     PHYSICIAN ASSISTED EUTHANASIA



      the current state of the discourse on assisted suicide, it seems
      premature for any prudent person to take a stand supporting or
      opposing assisted suicide.


Introduction
Assisted suicide is the process by which an individual, who may otherwise be
incapable, is provided with the means (drugs or equipment) to commit suicide. In
some cases, the terms ‘aid in dying’ or ‘death with dignity’ are preferred [1].
These terms are often used to draw a distinction from suicide; in some legal
jurisdictions, “suicide” (whether assisted or not) remains illegal, while “aid in
dying” is permitted in several jurisdictions, including Belgium, the Netherlands,
Switzerland, and American states of Oregon (via the Oregon Death with Dignity
Act), Washington (by Washington Initiative 1000), and Montana (through a trial
court ruling made on December 6, 2008). The province of Quebec has recently
acquitted a man charged with assisted suicide, which opens the door to its
legalization [2, 3].

   Under the Oregon Death with Dignity Act policy in Oregon, patients of sound
mind can request a prescription for a lethal dose of medication. Two doctors
must confirm a diagnosis of terminal illness with no more than six months to live.
Two witnesses, one non-doctor unrelated to the patient, must confirm the
patient’s request, and the patient must make a second request after 15 days [4].
The 2008 Washington law is closely modeled on the Oregon law, which was
passed in 1994.

    Arguments supporting or opposing assisted suicide are generally made from
several frames of reference. These include ethical and moral arguments, legal
arguments, medical arguments, and arguments regarding safeguards and the
slippery slope.

Arguments in Support of Assisted Suicide
Ethical and moral arguments include the principle of self-determination to
control the time, place, and nature of one’s death, placing quality at the end of
life above the sanctity of life. Other factors include the desire to preserve dignity
and personhood in the dying process and opposition to prolonging life by using
                      Assisted Suicide – How Far Justifiable?                     67



sophisticated medical technology when it is recognized that care is futile. Closely
related to self-determination is the principle of autonomy. This principle states
that persons should have the right to make their own decisions about the course
of their own lives whenever they can. By extension, they should also have the
right to determine the course of their own dying as much as possible.

    According to these arguments, even when choices are socially shaped they
should be respected as autonomous as long as there is appropriate evaluation of
decisional capacity. No person should have to endure terminal suffering that is
unremitting, unbearable, or prolonged. When the burdens of life outweigh the
benefits because of uncontrollable pain, severe psychological suffering, loss of
dignity, or loss of quality of life as judged by the patient, and when the
circumstances are not remediable, the dying person should be able to ask for
and receive help in assisted suicide. It is further argued that assisted suicide for
incurably ill persons experiencing extreme suffering can be distinguished from
euthanasia used for the purpose of genocide on the grounds that it is based on
principles of dignity, honor, and respect and is chosen and enacted by the dying
individuals, rather than being forced on them against their will.

    Legal arguments state that it would be in the best interest of dying patients to
be able to regulate practices that are currently being used covertly for assisted
suicide. Such regulations would also provide safeguards for practitioners who are
currently complying illegally with patient requests out of compassion.

    Medical arguments contend that competent terminally ill patients wishing to
choose assisted suicide may feel abandoned by physicians who refuse to assist.
The criticism that medical doctors agreeing to assist in suicide would be violating
the Hippocratic Oath is refuted on several grounds. First, the original Oath
prohibiting killing also prohibited abortions, surgery, and charging teaching fees,
all of which have been modified to meet contemporary realities. Second, assisted
suicide, unlike euthanasia, does not involve the ending of life by a physician, as it
is the dying person himself or herself who takes the steps to end his or her life.
Third, the Oath requires physicians to take all measures necessary to relieve
suffering, and some interpret this to include assisted suicide when that is the only
way suffering can be relieved.
68                     PHYSICIAN ASSISTED EUTHANASIA



    The argument regarding safeguards and the slippery slope holds that it is
possible to protect people from abuse through appropriate regulation which
would provide oversight by a combination of state legislation and professional
regulation by palliative care consultants and ethics committees that would include
professionals and community representatives. Several models for safeguards
have been proposed and typically include confirmation of diagnosis, prognosis,
treatment options, and decision-making capacity; assessment for alternative
means of alleviating suffering; nondirective counseling; education of physicians;
and education of the public.

    It is further argued that widely utilized and commonly accepted legal end-of-
life interventions such as withholding or withdrawing treatment, double effect,
and terminal sedation are also subject to the slippery slope or to abuse and yet
are considered to be controllable by standards of care and appropriate
regulation and oversight. Likewise, financial concerns may be a factor in requests
for legal interventions as well as in requests for assisted suicide and yet are not
considered as a justification for prohibiting these other interventions.

    The safeguards argument points that involving mental health professional to
provide appropriate and comprehensive treatment planning would improve
quality of care and reduce the potential for abuse regarding all end-of-life
interventions that may affect the time of death. Regarding the issue of depression
which, if treated, could change a terminally ill person’s request for assisted
suicide, it is pointed out that first, treatment of depression does not always
change the desire for assisted suicide, and second, psychologists can play a
major role in assessment and treatment of depression and other psychological
factors that may affect judgment and requests for a variety interventions that
affect the time of death including but not limited to assisted suicide.

Arguments in Opposition to Assisted Suicide
Ethical and moral arguments begin with the principle of protection of the socially
and economically disadvantaged. Concerns are raised that persons whose
autonomy and well-being are compromised by poverty or by membership in a
stigmatized social group, (such as women, persons with disabilities, ethnic,
sexual, and other minorities, and ill older persons in general) will be coerced into
assisted suicide. The pressure to choose suicide may not be explicit and
                      Assisted Suicide – How Far Justifiable?                   69



personal, because persons who experience stigma may internalize a diminished
sense of entitlement to resources, and may be the ones who most strongly argue
for their own demise. The principle of individual choice in dying is viewed as a
fiction in a highly stratified society, such as the United States, where access to
basic health care is highly variable and dependent upon personal income and
private insurance. Many seriously ill persons may not have the resources
necessary for implementation of the choice to live.

    From within this perspective, the individual paradigm of decision-making,
with its emphasis on independence and choice, is seen as obscuring the reality
that decisions about care at the end of life are typically made by physicians with
some consultation with family members and with cost containment being an
important factor in these decisions. Another ethical argument opposing assisted
suicide comes from the principle of respect for human life and the related beliefs
that killing is wrong, even if a person consents to it. Some, who see assisted
suicide as similar to euthanasia, believe that moral objections to assisted suicide
are strengthened by examining historical precedents, specifically the experience
of Nazi Germany in which “undesirable” groups of people (including Jews,
persons with disabilities, and sexual minorities) were put to death.

   Legal arguments against assisted suicide include concerns about civil suits
resulting from premature or unnecessary termination of life following a
diagnostic error or incorrect prognosis. There are also concerns about
enforcement of legal procedures devised to prevent against misuse, abuse, and
improper application or coercion in assisted suicide.

   Medical arguments against assisted suicide include the possibility of
misdiagnosis, the potential availability of new treatments, and the probability of
incorrect prognosis. Because medicine is fallible and research is ongoing,
incorrect diagnoses may result in unnecessary requests for assisted suicide or in
requests that are carried out just before the introduction of a new treatment that
could prolong life. Another medical argument is that requests for assisted suicide
may indicate that improved palliative care, aggressive pain management, and
better psychosocial support are needed. Further, there is serious concern that the
availability of assisted suicide may create a disincentive to providing appropriate
but costly medical treatments or to improving the quality and availability of
palliative and hospice care.
70                      PHYSICIAN ASSISTED EUTHANASIA



    In addition, the American Medical Association has asserted that physician-
assisted suicide is fundamentally incompatible with the physician’s role as healer
and that it poses serious societal risks, such as ill persons’ feeling abandoned or
losing trust in the health care system if providers participate in this practice.
Finally, it is argued that physicians are barred from helping persons to die
because of the Hippocratic Oath, which states that doctors should not kill.

    The argument against assisted suicide regarding safeguards and the slippery
slope maintains that once assisted suicide is accepted as an available option for
competent terminally ill adults, it may be permitted for ever-larger groups of
persons, including the non-terminally ill, those whose quality of life is perceived
to be diminished by a physical disability, persons whose pain is emotional
instead of physical, and so forth. Critics point to the fact that permitting
euthanasia and assisted suicide, as is done in the Netherlands, does not prevent
violation of procedures (e.g., failure to report) or abuse (e.g., involuntary
euthanasia).

   It is further contended that adequate safeguards are not possible. For
example, requiring written requests to be repeated over a period of time and
witnessed by two unrelated witnesses while at the same time involving at least
two physicians and a psychiatrist’s or psychologist’s examination is unrealistic.
Persons at the end of their lives typically have neither the energy nor the ability to
meet such conditions. A related argument is that the option of assisted suicide for
mentally competent, terminally ill people could give rise to a new cultural norm
of an obligation to speed up the dying process and subtly influence end-of-life
decisions of all sorts.

What Experience Teaches: Oregon and the Netherlands
The Oregon Experience
When controversy surrounds an issue, psychologists have been trained to turn to
research and data for enlightenment. However, in the area of assisted suicide,
which only recently has been explicitly legalized in the United States in the state
of Oregon, there is an understandable dearth of research. Nevertheless, the
experience with assisted suicide in Oregon is relevant to the recommendations in
this report. It is, therefore, worth exploring in some depth.
                      Assisted Suicide – How Far Justifiable?                     71



The Oregon Death with Dignity Act States the Following
An adult who is capable, is a resident of Oregon, and has been determined by
the attending physician and consulting physician to be suffering from a terminal
disease, and who has voluntarily expressed his or her wish to die, may make a
written request for medication for the purpose of ending his or her life in a
humane and dignified manner in accordance with ORS [5].

    Other sections of the law are designed to provide safeguards for the practice.
For example, the written request must be witnessed by two unrelated persons;
there must be a consulting physician; the patient must make an informed
decision; the attending or consulting physician can request a referral to a
licensed psychologist or psychiatrist if they suspect that a psychiatric condition or
depression may be causing impaired decision- making; and family notification is
recommended.

   A study of Oregon’s first year of legalized assisted suicide analyzed data for
all terminally ill Oregon residents who received prescriptions for lethal
medications [6, 7]. A total of 23 persons receiving prescriptions were reported to
the Oregon Health Division; 15 died after taking the medications, six died from
the underlying illnesses, and two were still alive as of January 1, 1999. The 15
assisted suicides accounted for five out of every 10,000 deaths in Oregon
in 1998. Eight of the 15 were male and seven were female, and all were of
European American descent. Only four of the candidates had psychological or
psychiatric consultations.

    The researchers reported that the primary factor cited by the physicians of
those who requested assisted suicide was the importance of autonomy and
personal control. No person who chose assisted suicide had expressed financial
concerns to their doctors, nor was pain associated with the illness cited as a
major factor. The researchers concluded that requests for and use of lethal
prescriptions to end life were associated with views on autonomy and control
rather than fear of pain or economic concerns. The only statistically significant
differences between those who died by lethal medication and matched controls
were that the former were more likely to be divorced or never married and they
were higher in physical functioning.
72                     PHYSICIAN ASSISTED EUTHANASIA



    Advocates for and opponents of assisted suicide have different reactions to
these findings. Advocates view these results as evidence that independence and
autonomy are strong personal values for persons seeking assisted suicide.
Opponents argue that if those persons had better psychosocial support and close
caregivers they may not have chosen to die at that time. Advocates also
interpreted the difference in physical functioning to demonstrate values of
independence and control. Opponents expressed concerns about the influence of
internalized negative views concerning physical disabilities and suggested that
with more time to adjust to disabilities, as well as better services and less social
stigma, these individuals might have chosen to live longer.

    There has been criticism of the study and its conclusions on methodological
grounds [8]. All information about the cases was provided by the physicians;
thus, there are no data in the study from the individuals who died of assisted
suicide or their family members, so there are only anecdotal discussions of the
psychological motivations of the person requesting assisted suicide and the
interpersonal cultural context in which the decision to use the Death with Dignity
Act developed [9]. Information about the health of patients is limited to diagnosis
and prognosis and no data are available regarding the basis on which the
physicians made the diagnoses and prognoses. There is no independent way to
ascertain how adequately physicians addressed palliative and hospice care
options, how thoroughly they assessed the reasons for requests for assisted
suicide, or whether they were fully informed about the economic and social
circumstances of patients. The report also does not indicate the basis on which
physicians referred the four patients for psychiatric or psychological evaluation
and what, if any, assessments were conducted following referral.

    The report of the second year of the Oregon Death with Dignity Act was
released in late February, 2000 [10, 11]. The document updated the 1998 data
and provided information for 1999. The analyses for the second year report
included 26 people who received prescriptions and used them in 1999 as well as
one person who received the medication in 1998 but did not use it until 1999.
The median age of these 27 people was 71, 16 were male, 26 were European
Americans, and 17 had cancer. All of them had health insurance and 21 were
enrolled in hospice prior to death. One person became unconscious before
consuming all the prescribed medication and, as a result, took 26 hours to die.
                      Assisted Suicide – How Far Justifiable?                   73



Two others took more than 11 hours to die. The relatively long period from when
the medication was taken to when death occurred would have been considered a
“clinical problem” in the Netherlands [12]; however, variations in the length of
time from ingestion to death are expected [13].

   The 27 people who died were demographically similar to the people who
used the Act in 1998, except they were significantly more likely to be married.
These individuals were demographically similar to other Oregonians who died of
similar diseases except they were significantly more likely to be college educated.
Ten of the 27 people who used the Act had been referred for a mental health
evaluation. These 27 people accounted for nine out of every 10,000 deaths in
Oregon in 1998.

    Similar to 1998, the most frequent concerns recorded by physicians about
those who died of assisted suicide were loss of autonomy and decreasing ability
to participate in activities that made life enjoyable. The 1999 report also
contained the results of interviews with family members of 19 people, who died
between mid-September, 1998 and mid-October, 1999. These significant others
cited individual concerns about losing autonomy, losing control of bodily
functions, and physical suffering. Nearly 75% of the family members also
volunteered that the dying person wanted to control the time and manner of
death.

    Another research study related to the Oregon Death with Dignity Act was
released at the same time as the second year report. This article examined
physicians’ experiences with the Act [14]. The researchers reported that their
survey of all eligible Oregon physicians revealed that 144 of the respondents
(65% response rate) had received 221 requests for assisted suicide under the Act.
Twenty-nine of these individuals received medication and 17 used the
prescription to die. Twenty percent had symptoms of depression and none of
these received a prescription. Physicians implemented substantive palliative care
interventions for 68 patients, 10 of whom eventually used the prescribed
medication; 46% of those who received an intervention changed their minds
about using the Death with Dignity Act, whereas only 15% of those who did not
receive a substantive intervention decided against assisted suicide.
74                     PHYSICIAN ASSISTED EUTHANASIA



   The data contained in the second year report [10, 11] and in the Oregon
physician experience study [14] are yet to be broadly examined by proponents
and opponents of the Oregon law [15]. However, just as the data from 1998
were used by both sides of the debate to bolster their arguments, the same
process is bound to happen with the new reports.

The Netherlands Experience
A second example of differential interpretation of data concerning assisted
suicide is apparent in the research published on assisted suicide and euthanasia
in the Netherlands. Before discussing the data, it must first be noted that the
policy and practice of assisted suicide, and the context of such practice in the
Netherlands, are different from those of assisted suicide in the United States [16].
Unlike the United States, both assisted suicide and euthanasia are decriminalized
and permissible in the Netherlands under prescribed circumstances. Also, in the
Netherlands, there is universal health coverage; the population is more
homogeneous, with a smaller range of cultural diversity; and family doctors have
typically known their patients for long periods of time. Thus, it is difficult to
generalize from Dutch policy and practice to the situation in the United States.
However, with these differences in mind, it is useful to examine the data from the
Netherlands.

    A 1991 article summarized the findings of a nationwide study of physicians
reporting on their practice of assisted suicide and euthanasia in the Netherlands
[17]. This report indicated that out of the roughly 130,000 deaths that occurred
in the Netherlands in 1990, 2300 (1.8%) were the result of euthanasia. Another
400 (0.3%) were assisted suicides. The report found that in the 2700 cases
reviewed, the medical guidelines were met. This means that the patients were
mentally competent adults who were suffering without alternatives and who
requested assisted suicide or euthanasia voluntarily, consistently, and repeatedly
over a reasonable time. The requests were documented. According to the
reporting physicians, the patients were suffering intolerably with no prospect of
relief and the primary doctors consulted with another physician not involved in
the case. However, the report also noted that there were an additional 1,000
deaths (0.8%) caused by euthanasia in which the patient was not concurrently
competent, a clear violation of the guidelines. About a quarter of the physicians
admitted causing death without an explicit request.
                      Assisted Suicide – How Far Justifiable?                   75



    Opponents of assisted suicide in the United States point out that data that is
based on physician’s reports is unreliable. They also argued that the deaths of
the 1000 people who were not concurrently competent was evidence that the
slippery slope is occurring. They suggested that further erosion of the guidelines
could occur, resulting in involuntary euthanasia being performed on older adults,
persons with disabilities, and adults who were not mentally competent [18, 19].

   Proponents of assisted suicide, referring to the same data, pointed out that
the results showed a very cautious use of euthanasia and assisted suicide,
accounting for only a small fraction of the total deaths. Moreover, only one in
three people who requested assisted suicide and euthanasia were granted it,
which did not indicate any great trend on the part of physicians to accede to such
requests. With regard to the 1,000 persons who died from euthanasia without
any consent, interviews with the attending doctors indicated that over half had
earlier stated a desire for euthanasia and that most were “moribund” at the time
euthanasia was performed, so that these were cases of euthanasia without
concurrent consent (i.e., nonvoluntary) rather than euthanasia without any
consent (i.e., involuntary).

    A follow-up study, completed in 1995, focused on two issues. The first was
whether a slippery slope existed with regard to medical care at the end of life
[20]. The second concerned the efficacy of a new notification procedure designed
to enable better monitoring of euthanasia and assisted suicide that became law
in 1994 [21]. The authors of the first report concluded that there was little
evidence of a slippery slope occurring. Dutch doctors seemed to “continue to
practice physician-assisted dying only reluctantly and under compelling
circumstances” [19]. The notification procedures, however, had only partial
success. The numbers of reported physician-assisted deaths increased but
doctors found the procedures unduly difficult and were still concerned about the
legal status of admitting to euthanasia.

   Critics of assisted suicide in the US have challenged the findings of the second
study. They disagreed with the conclusion that there is no evidence that
“physicians in the Netherlands are moving down a slippery slope” [22]. They
pointed out that in the past two decades, the Netherlands has moved
from considering assisted suicide . . . to giving legal sanction to both
76                      PHYSICIAN ASSISTED EUTHANASIA



physician-assisted suicide and euthanasia; from euthanasia for terminally ill
patients to euthanasia for those who are chronically ill; from euthanasia for
physical illness to euthanasia for psychological distress; and, from voluntary
euthanasia to nonvoluntary and involuntary euthanasia.

     These opponents of assisted suicide also reanalyzed the data and showed an
increase over time in the estimated number and percentage of deaths caused by
active physician intervention.

     Thus, the results of the same study have been interpreted in widely different
ways depending on the point of view of those studying the data. As was the case
with the Oregon data, the meaning and implications of the Netherlands data
have varied.

Other Related Studies

In addition to research conducted where assisted suicide is legal or
decriminalized (e.g., Oregon and the Netherlands), there have been other
studies conducted where the practice continues to be illegal. Predictably, only a
few involved terminally ill people who actually died as a result of assisted suicide.
These studies [23 – 25] indicate that pain plays a minor role in the reasons why
people die by assisted suicide; factors such as concerns about loss of control,
perceived loss of dignity or sense of self, and suffering other than physical pain
appear to be crucial issues [26].

     Some investigations on end-of-life decisions have included people who are
terminally ill [27 – 33]. The results of several of these studies reveal that high
levels of clinical depression and hopelessness, low perceived levels of social
support, the perception that suffering is inevitable, and the perception of being a
burden are associated with increased interest in assisted suicide or a desire to
die. Similarly, some studies of chronically, but not necessarily terminally, ill
individuals [34] have found that depression is an important influence on the
desire for assisted suicide whereas others [35], have found that symptom level is
more important than the degree of depression in determining the acceptability of
assisted suicide. Furthermore, some research [36] has revealed that concerns
about costs (together with age and depression) can influence a person’s decision
                      Assisted Suicide – How Far Justifiable?                    77



to give up on life-extending measures. A retrospective study of Dr. Kevorkian’s
cases also showed that general psychological distress and concerns about being
a burden were common among the women who died with his assistance [24].

   There have been a few investigations of the impact of assisted suicide on
significant others [37 – 39]. This research indicates that loved ones of people
who have died by assisted suicide are not necessarily traumatized by their
awareness of or involvement in the actions that lead to death. Rather, it appears
as though concern about legal repercussions can lead to significant anxiety, and
that trauma can occur if loved ones felt obligated to take an active role in the
death in unanticipated ways because the planned method was unsuccessful.

    Research involving health care professionals is also relevant to this discussion
(the Resource Guide will contain a review of surveys of attitudes of health care
providers about assisted suicide). For example, some evidence suggests that
physicians tend to under-recognize depression [40, 41]. In addition, primary care
physicians underestimate older persons’ preferences for life-extending care while
hospital-based physicians (emergency and critical care physicians), like family
surrogates, overestimate older persons’ preferences for life-extending care. In
addition, there are data indicating that physicians’ training and experience with
serious medical illness affects their perception of the desirability of different
options. Specifically, clinicians with the least exposure to seriously ill and dying
patients are more willing to endorse assisted suicide and/or euthanasia than
oncologists; this is also true for social workers, compared to nurses [42, 43].
Other factors that contribute to greater willingness to support assisted suicide are
a limited knowledge of pain management [43] and a conservative attitude
toward resource use [44].

   Finally, there is evidence to suggest that the majority of those willing to serve
as consultants to evaluate a person’s competence for assisted suicide favor the
practice [45, 46]. This may be the result of the fact that many health
professionals who are opposed report that they would refuse to participate in the
process. Bias in the mental competence evaluation may result, because those
who support assisted suicide as an option may be more willing to find a dying
person’s judgment to be unimpaired while opponents indicate that even if they
found the person’s judgment to be unimpaired, they would attempt to prevent
the person from receiving assisted suicide.
78                      PHYSICIAN ASSISTED EUTHANASIA



Some Interesting Views Expressed Regarding the End of Life
Decisions
“I will not relinquish old age, if it leaves my better part intact. But, if it begins to
shake my mind, if it destroys its faculties one by one, if it leaves me not life but
breath, I will depart from the putrid or tottering edifice. ------- If I must suffer
without hope or relief, I will depart, not through fear of the pain itself, but
because it prevents all for which I would live”. Seneca, the great Roman
Statesman of 1st century AD, spoke these words two millennia before the
Netherlands became, on 28th November 2000, the first country in History and
the only country in the World, to legalize euthanasia [47].

    “Protecting vulnerable lives may not mean prolonging life”, but surely does
not mean extinguishing it. Supporting the lives of those who are vulnerable
means caring for them enough to help their pain or anguish. How can a
mentally ill person’s wish to go to heaven be interpreted as a request to have
their life terminated? The life of mentally handicapped people is usually strongly
influenced by the care of others because most of them are dependent on help
with all types of activities. Also, many of the decisions of other people have
repercussions on their way of living and dying, an important example being
decisions at the end of life that might hasten death. If the legislation permitting
euthanasia is passed who can assure us that, in 30 year’s time, mentally ill, or
incurably ill people will not fulfill the criteria of personhood? [48]

    “Human life, as the most valuable, unique and non-repeatable possession of
human beings, must not be put into the hands of anyone to be destroyed, under
any circumstances”. [49] In today’s context, ending a life to end suffering is a
very poor exercise of the scientific and technological advances made by
medicine, as well as a crude misinterpretation of the ethical duty to alleviate
suffering (attributable to pain or other causes) without neglecting the dignity of
the person who suffers.

   Good care aims at ending patient’s suffering, not their life. The acid test for
any society that claims to be civilized is whether it really protects the life and
promotes the wellbeing of its most vulnerable citizens. [50]
                      Assisted Suicide – How Far Justifiable?                   79



    Palliative care, a widely accepted type of total care (physical, psychological
and even religious when necessary) for severely ill patients, particularly during
their last weeks or days of life, has demonstrated that so-called terminal patients
ask only for relief from their suffering and very seldom, if ever, for an abrupt,
artificial end to their lives.[49]

   The dominant debates in the media no longer address the morality of
euthanasia as such but, rather, focus on procedural arrangements to regulate
the practice as carefully as possible [51].

    The guiding principles of medicine – autonomy, beneficence, non-
maleficence and justice – are often argued to be less concerned with
consequences. On the other hand, euthanasia is often considered taboo in the
context of medical practice even though it is the topic of debate in many
countries. The Dutch physicians are sometimes aggressively addressed for killing
instead of caring by the opponents of euthanasia. Current international opinion
regarding the end of life decisions is without any consensus and an open
international debate in this regard is desirable [52].

References
1.   Sharma BR. To legalize physician-assisted suicide or not – a dilemma. J
     Clinical Forensic Medicine 2003; 10 (3): 185 - 190.

2.   Ganzini L, Goy E R, Dobscha S K. Prevalence of depression and anxiety in
     patients requesting physicians’ aid in dying: cross sectional survey. BMJ,
     2008; 337: 1662.

3.   Rietjens J, Van-Delden J, Onwuteaka-Philipsen E, Buiting H, Van-der-Maas
     P, Van-der-Heide A. Continuous deep sedation for patients nearing death in
     the Netherlands: descriptive study. BMJ Apr 2008; 336: 810 – 813.

4.   Sharma BR. The end of life decisions: Should physicians aid their patients in
     dying? J Clinical Forensic Medicine. 2004; 11 (3): 133 – 140.

5.   Task Force to Improve the Care of Terminally-Ill Oregonians (1998). The
     Oregon Death with Dignity Act: A guide book for health care providers.
     Portland, OR: Center for Ethics in Health Care, Oregon Health Sciences
     University 1998; 127.800 to 127.897.
80                    PHYSICIAN ASSISTED EUTHANASIA



6.   Chin A E, Hedberg K, Higginson G K, Fleming DW. Legalized physician-
     assisted suicide in Oregon -- The first year’s experience. New England
     Journal of Medicine 1999; 340: 577-583.

7.   Coombs Lee B, Werth J L. Jr. Observations on the first year of the Oregon
     Death with Dignity Act. Psychology, Public Policy, and Law 2000; 268 –
     290.

8.   Foley K, Hendin H. The Oregon report: Don’t ask, don’t tell. Hastings
     Center Report 1999; 29: 37-42.

9.   Reagan P. Helen, Lancet 1999; 353: 1265-1267.

10. Sullivan AD, Hedberg K, Fleming DW. Oregon’s Death with Dignity Act: The
    second year’s experience. Portland, OR: Oregon Health Division, 2000.

11. Sullivan AD, Hedberg K, Fleming DW.. Legalized physician-assisted suicide
    in Oregon -- The second year, New England Journal of Medicine 2000;
    342: 598-604.

12. Groenewoud JH, Van der Heide A, Onwuteaka-Philipsen B D, Willems DL,
    Van-der Maas PJ, Van-der Wal G. Clinical problems with the performance
    of euthanasia and physician-assisted suicide in the Netherlands, New
    England Journal of Medicine, 2000; 342: 551-556.

13. Schnabel J, Schnabel G. Pharmacy information. In The Task Force to
    Improve the Care of Terminally Ill Oregonians 1998 Ed, The Oregon Death
    with Dignity Act: A Guidebook for Health Care Providers Portland, OR:
    Oregon Health Sciences University, Center for Ethics in Health Care.
    pp. 33-37.

14. Ganzini L, Nelson HD, Schmidt TA, Kraemer DF, Delorit MA, Lee MA.
    Physicians’ experiences with the Oregon Death with Dignity Act, New
    England Journal of Medicine 2000; 342: 557-563.

15. Nuland S B. Physician-assisted suicide and euthanasia in practice, New
    England Journal of Medicine 2000; 342: 583-584.

16. Griffiths J, Bood A, Weyers H. Euthanasia & law in the Netherlands.
    Amsterdam: Amsterdam University Press1998.
                     Assisted Suicide – How Far Justifiable?                  81



17. Van-der Maas PJ, Van Delden JJM, Pijnenborg L, Looman CWN. Euthanasia
    and other medical decisions concerning the end of life, Lancet 1991; 338:
    669-674.

18. Gomez G. Regulating death: Euthanasia and the case of the Netherlands.
    New York: The Free Press 1991.

19. Angell M. Euthanasia in the Netherlands-Good news or bad? New England
    Journal of Medicine 1996; 335: 1676-1678.

20. Van-der Maas PJ, Van-der Wal G, Haverkate I, deGraaff C L M, Kester
    JGC, Onwuteaka-Philipsen BD, Van-der Heide A, Bosma JM, Willems DL.
    Euthanasia, physician-assisted suicide, and other medical practices involving
    the end of life in the Netherlands, New England Journal of Medicine 1996;
    335: 1699-1705.

21. Van-der-Wal G, Van-der-Maas PJ, Bosma JM, Onwuteaka-Philipsen BD,
    Willems DL, Haverkate I, Kostense PJ. Evaluation of the notification
    procedure for physician-assisted death in the Netherlands New England
    Journal of Medicine 1996; 335: 1705-1711.

22. Hendin H, Rutenfrans C, Zylicz Z. Physician-assisted suicide and euthanasia
    in the Netherlands: Lessons from the Dutch. JAMA 1997; 277: 1720-1722.

23. Back AL, Wallace JI, Starks HE, Pearlman RA. Physician-assisted suicide and
    euthanasia in Washington State: Patient requests and physician responses.
    JAMA 1996; 275: 919-925.

24. Canetto SS, Hollenshead J. Gender and physician-assisted suicide: An
    analysis of the Kevorkian cases, 1990-1997. Omega 1999; 40: 165-208.

25. Preston TA, Mero R. Observations concerning terminally ill patients who
    choose suicide. Journal of Pharmaceutical Pain & Symptom Control 1996;
    4: 183-192.

26. Wilson KG, Viola RA, Scott JF, Chater S. Talking to the terminally ill about
    euthanasia and physician-assisted suicide. Canadian Journal of Clinical
    Medicine 1998; 68-74.
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27. Breitbart W, Rosenfeld BD, Passik SD. Interest in physician-assisted suicide
    among ambulatory HIV infected patients. American Journal of Psychiatry
    1996; 153: 238-242.

28. Brown JH, Henteleff P, Barakat S, Rowe CJ. Is it normal for terminally ill
    patients to desire death? American Journal of Psychiatry 1986; 143: 208-
    211.

29. Chochinov HM, Wilson KG, Enns M, Lander S. Depression, hopelessness
    and suicidal ideation in the terminally ill, Psychosomatics 1998; 39, 366-
    370.

30. Chochinov HM, Wilson KG, Enns M, Mowchun N, Lander S, Levitt M,
    Clinch, J. Desire for death in the terminally ill. American Journal of
    Psychiatry 1995; 152: 1185-1191.

31. Ganzini L, Johnston WS, McFarland BH., Tolle SW, Lee, M. A. Attitudes of
    patients with amyotrophic lateral sclerosis and their caregivers toward
    assisted suicide. New England Journal of Medicine 1998; 339: 967-973.

32. Rabkin JG, Remien R, Katoff L, Williams JBW. Suicidality in AIDS long-term
    survivors: What is the evidence? AIDS Care 1993; 5: 401-411.

33. Suarez-Almazor ME, Belzile M, Bruera E. Euthanasia and physician-assisted
    suicide: A comparative study of physicians, terminally ill cancer patients,
    and the general population. Journal of Clinical Oncology 1997; 15: 418-
    427.

34. Emanuel EJ, Fairclough DL, Daniels ER, Clarridge BR. Euthanasia and
    physician-assisted suicide: Attitudes and experiences of oncology patients,
    oncologists and the public. Lancet 1996; 347: 1805-1810.

35. Sullivan M, Rapp S, Fitzgibbon D, Chapman CR. Pain and the choice to
    hasten death in patients with painful metastatic cancer. Journal of Palliative
    Care 1997; 13: 18-28.

36. Covinsky KE, Landefeld CS, Teno J, Connors AF Jr., Dawson N, Youngner S,
    Desbiens N, Lynn J, Fulkerson W, Reding D, Oye R, Phillips RS. Is economic
    hardship on the families of the seriously ill associated with patient and
    surrogate care preferences? Archives of Internal Medicine, 1996; 156:
    1737-1741.
                     Assisted Suicide – How Far Justifiable?                  83



37. Ogden R. Euthanasia, assisted suicide, and AIDS. New Westminster, British
    Columbia: Peroglyphics 1994.

38. Jamison S. Final acts of love: Families, friends, and assisted dying. New
    York: Tarcher/Putman 1995.

39. Cooke M, Gourlay L, Collette L, Boccellari A, Chesney MA, Folkman S.
    Informal care givers and the intention to hasten AIDS-related death.
    Archives of Internal Medicine 1998; 158 69-75.

40. Conwell Y, Caine ED. Rational suicide and the right to die: Reality and myth.
    New England Journal of Medicine 1991; 325: 1100-1102.

41. Peruzzi N, Canapary A, Bongar B. Physician-assisted suicide: The role of
    mental health professionals. Ethics and Behavior 1996: 6: 353-366.

42. Bachman J, Alscer K, Doukas D, Lichtenstein R, Corning A, Brody H.
    Attitudes of Michigan physicians and the public toward legalizing physician-
    assisted suicide and voluntary euthanasia. New England Journal of
    Medicine 1996; 334: 303-309.

43. Portenoy RK, Coyle N, Kash KM, Brescia F, Scanlon C, O’Hare D, Misbin
    RI., Holland J, Foley KM. Determinants of the willingness to endorse assisted
    suicide. Psychosomatics 1997; 38: 277-287.

44. Sulmasy DP, Linas BP, Gold KF, & Schulman KA. Physician resource use and
    willingness to participate in assisted suicide. Archives of Internal Medicine
    1998; 158: 974-978.

45. Fenn DS, Ganzini L. Attitudes of Oregon psychologists toward physician-
    assisted suicide and the Oregon Death With Dignity Act. Professional
    Psychology: Research and Practice 1999; 30: 235-244.

46. Ganzini L, Fenn DS, Lee MA, Heintz RT, Bloom JD. (1996). Attitudes of
    Oregon psychiatrists toward physician-assisted suicide, American Journal of
    Psychiatry 1996; 153: 1469-1475.

47. Sharma BR Withholding and withdrawing of life-support – a medicolrgal
    dilemma. American J Forensic Medicine and Pathology. 2004; 25 (2):
    150 – 155.
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48. Van Thiel GJMW, van Delden JJM, de Haan K, Huibers AK; Retrospective
    study of doctors’ end of life decisions in caring for mentally handicapped
    people in institutions in the Netherlands; BMJ 1997; 315: 88 - 91.

49. Juan Mendoza-Vega in response to Euthanasia - the twenty-sixth speciality;
    Surg Neurol 1998; 50: 97 - 103.

50. Gunning KF; End of life decisions; BMJ, 1997; 315: pp1164.

51. Janssens RMJPA, Ten Have HAMJ, Zylicz Z. Euthanasia and palliative care:
    critical annotations to the Dutch debate under publication paper quoted at
    Med. Sci. Law. 1997; 37 (4): 289 - 295.

52. Beachemp TL, Childress JF. Principles of biomedical ethics, 3rd Ed. New
    York Oxford University Press; 1989: 25 - 66.
                                                  4
        Physician Assisted Death: From
         Rhetoric to Reality in Oregon
                                Arthur Birmingham LaFrance*

        The practice of assisting a terminally ill patient to die is a well
        understood practice in various forms. Oregon was the first state
        in USA to legalize assisted suicide. Approximately 50 to 60
        people year avail them of the Oregon statute; some 90% have
        cancer, all with terminal diagnosis, all deemed medically
        competent. The article analyzes the procedures and experience
        under the Oregon physician-assisted death statute, drawing
        heavily on official reports and articles in scholarly medical
        journals. Essentially the author’s conclusion is that the
        constitutional challenges to physician-assisted death are refuted
        by experience, which shows patients are treated fairly, without
        discrimination on education or wealth, and without abuse or
        oppression. Approximately 50 to 60 people year avail them of
        the Oregon statute; some 90% have cancer, all with terminal
        diagnosis, all deemed medically competent. The article has
        enduring importance, as other jurisdictions – most recently the
        state of Washington – consider adopting a statute similar to
        Oregon's.

*   Professor of Law and Former Dean, Lewis & Clark Law School, Portland, Oregon.
    E-mail: lafrance@lclark.edu
© 2008 Arthur Birmingham LaFrance Lewis. This article was originally published in 8 WYO. L. REV. 333 (2008).
Reprinted with permission.
Source: www.ssrn.com
86                     PHYSICIAN ASSISTED EUTHANASIA



Introduction
The topic is physician assisted death, and there is no easy way to transition into it
except to say that it is a subject of importance to every person in this room, and
for that matter, every person in America. We all face death at some point, and
we all have friends or relatives who are either facing death or have already done
so. And so this is a part of our lives. The subject of assisting people to die is
particularly close to me because my state, Oregon, has adopted what is, in the
world, the only legislative authorization for physicians to assist people to die.

    Ten years ago, actually this month, November of 1997, Oregon’s legislation
became effective. It was adopted by referendum two years earlier, and as
everything does, it wound its way through the courts. An injunction was dissolved
in 1997 and the legislation became effective. For a second time, as well, in 1997
it was reaffirmed by yet a second referendum. Thus, on two separate occasions,
we Oregonians voted that we wanted this option to be available to Oregonians
who are facing a terminal illness. It is ten years this month, November of 2007,
that we have been living with what is, in all the world, a unique legislative
experience and experiment.

    Additionally, the Oregon Department of Human Services maintains an
extensive “Web site detailing the nature and extent of this experiment and
experience. 1 Among other resources, that Web site has eight annual reports
posted to it. Those reports reflect in extensive detail all of the experience under
the legislation since its inception. That Web site also has references to scholarly
articles and commentary, as well as the legislation itself. Much of this is reflected
in the handout, which I hope all of you have picked up. Of course there are a
number of good books, some of which I’ve noted towards the end of this
handout. 2

    As we approach this subject, we will first discuss the place of death in life,
then we will review the statute and the experience under it, and then we’ll turn to
some of the criticisms of the statute, and conclude with the present and future
legal status of the Oregon legislation. In a nutshell, as I’ve said, the law became
effective in 1997. There was a challenge that went to the United States Supreme
Court which decided in favor of Oregon in 2006. 3 By this year, and this month,
November of 2007, two-hundred and ninety-seven [297] Oregonians have
           Physician Assisted Death: From Rhetoric to Reality in Oregon           87



chosen to end their lives pursuant to the legislation. That is a significant number
of people – about thirty [30] each year for the past ten [10] years. Perhaps more
significant, of those who successfully qualify through the screening process, some
twenty-five [25] percent choose not to go through with it.

    A number of other states have considered similar laws, but those with which I
am familiar have so far chosen not to enact similar legislation. There was a bill
before the California Legislature this year which died in the Committee. Australia
briefly had a physician assisted death statute in the Northern Territory in 1996, 4
and the Netherlands adopted authorizing legislation in 2002. But each was
different from Oregon’s legislation in significant ways. 5

Death as a Part of Life
Physician assisted death as a concept seems to put people off. But all of our lives
and all our parents and grandparents lives, we have been living with death, and
dealing with it in ways with which we are familiar, ways which are not entirely
different from physician assisted death. Life leads to death, and death is very
much a part of life.

   When I was six or seven, our elderly next door neighbor, Mr. Chapman, who
had read stories to us, played with our dogs, whose wife made those great
Concord grape jelly jars – the ones with the funny paraffin wax on top – which as
a kid I always ate before the jelly – died. And I still recall my mother saying, with
sadness one day, that Mr. Chapman had died, a concept I didn’t understand,
but that we could say “good-bye” before he left forever. So we dressed up and
went next door and there was Mr. Chapman in a casket in his home, in the front
parlor of his New Hampshire house, where I had visited any number of times.
And he didn’t look exactly like Mr. Chapman, but he looked a lot like
Mr. Chapman, and we paused and we passed, and we said “good-bye” to
Mr. Chapman.

   I’ve always been happy that I had that experience. It’s stayed with me all
these uncounted years since. I mentioned it to my sister the other day, in
preparation for this presentation, and she recalled the occasion vividly and
thankfully, as do I. Yet in those post-war years, America was already beginning
to build the huge hospital industrial complex of today, so that the opportunity to
88                     PHYSICIAN ASSISTED EUTHANASIA



include death in life has been compromised or lost, and more and more, dying
has become something that is done in hospitals. Somewhere between eighty [80]
and eighty-five [85] percent of Americans die in a hospital – a foreign place, a
place that is necessarily sterile, regulated, staffed by strangers; no matter how
well done, no matter how well supported, far removed from the place where we
lived our lives.

    But the practice of assisting people to die, whether to die at home or in
hospital, remains quite commonplace and we’ve lived with it for decades. A
“D.N.R.” is a “do not resuscitate” notation, which is a common order in hospitals
for people who are facing terminal illness. It is a notation that, should the person
expire, he or she should not be resuscitated. The team that races out in E.R. or
Gray’s Anatomy shbuld not race out and clap those paddles around and shock
somebody back to life. We also, when somebody is hooked up to life support,
understand that the person may be unhooked from the ventilator or that tubes
and nutrition and hydration may be withdrawn. That’s a practice with which
we’re well familiar.

    These are familiar practices in critical settings. As well, there is also a term
called “futility,” a common sense concept, that when care and treatment cease to
have the probability or possibility of success, then treatment becomes futile and
we should stop. We should end efforts which are unavailing. Pointless care can
become cruelty. For those of us who remember the Terry Schiavo controversy of
a few years ago, futility was at the center of the debate.

   So, in a hospital, assisting someone to die is a well understood practice in
various forms. Legally, for those of us who do estate planning or do elder law,
tools like advanced directives and health care powers of attorney are for people
to execute in advance of a life crisis – in advance of becoming incompetent and
facing death. These then become the context for the hospital to respect in
assisting a patient to die, by withholding the heroic measures the patient has
chosen against.

   Finally, increasingly in America, the good news is that hospice care is
available in almost every community, not only in the United States, but
throughout the world. With hospice, people are towards the end of life and may
receive support and care in their dying days or dying weeks. There is a hospice
           Physician Assisted Death: From Rhetoric to Reality in Oregon           89



just over in Cheyenne, which my students and I have visited, built with a gift of
over $8,000,000, as comfortable and welcoming a place as anyone could
choose for a vacation ... or for dying. I have visited hospices all the way from
Houston, to Christchurch, New Zealand, to Houston, and points in between.
Hospice is a philosophy, as well as a methodology, as well as a place, and it
offers hope and comfort for people who are dying. It is one of the important
tools that we should have available to us, but physician assisted death is as well,
another such tool.

Physician Assisted Death
Qualifying under the Statute
Let me then talk about physician assisted death. What does it add to the other
techniques of assisting people to die – DNRs, and withdrawal of support, and the
concept of futility, and the support methods of hospice? In essence, and perhaps
this is obvious, physician assisted death enables people to choose, independently
of professionals or even family, when and where they will die; it creates the real
possibility of moving death back into the home, as a part of life.

    First of all, significantly, the Oregon Death With Dignity Act is available only
for Oregon residents. There was in the debate, the assertion that Oregon would
become “death tourists” site of choice, bringing new meaning to the term,
“destination resort.” I’m not sure that that would be a bad thing, but it’s not a
possible thing under the Oregon statute. 6

   Secondly, a person must have received a terminal diagnosis – that is, the best
medical judgment is that he or she in all probability will be dead within six [6]
months. That has to be confirmed. The initial diagnosis is by an attending
physician and then the second is by a consulting physician. Almost always at
least one of these is an oncologist; eighty [80] to ninety [90] percent of these
patients have cancer of varying kinds.

   The next step is the person must be competent – that is defined in the statute,
but it is a term that is familiar to all of us – able to make a choice, understanding
what he or she faces, and what another choice available might be. Moreover,
the attending physician has to conclude that there is not a clinical depression. If
there is, then there has to be a referral to a specialist either to deal with the
90                      PHYSICIAN ASSISTED EUTHANASIA



depression or to report back that the person simply does not qualify to proceed
under the physician assisted death statute. Early on there were a number of
these, I’m thinking about twenty [20] percent, but over the last few years the
numbers have dwindled to about five [5] to ten [10] percent. Most of those who
are so classified, that is depressed, are simply shunted out of the process – they
do not ultimately qualify for prescription.

    Those patients who are competent and have a terminal diagnosis make two
oral requests and a written request. The written request is on a form on the
Department of Health Web site. It is fairly plain vanilla for such an important
subject that’s readily understandable. Fifteen [15] days have to pass between the
two [2] oral requests. What the person is basically saying to the physician is “I’ve
been given a diagnosis, what I want to do is to be assisted in dying and I would
like a prescription from you to make that happen.” The attending physician
advises of the alternatives and requests that the person notify the next-of-kin.
There’s no requirement that the person do that, which was the subject of some
controversy. Our American tradition is one of autonomy, and choice, and
privacy. And so, for those of us who have problematic relatives, not having to
notify them at a problematic time is an option well worth having available.

   The prescription is written within the fifteen [15] days of the last request. Since
1999 the pharmacist must be told the purpose of the prescription. The
prescription will be of a barbiturate which will be prescribed for a number of
purposes, Secobarbitol or Pentabarbitol. The pharmacist is told the purpose so
that he or she may opt out – it’s sort of a conscience clause for those who do not
want to participate. Again, this is the subject of some controversy, but it is there
and it is part of the process.

    The last point about the statute is that there is extensive reporting. The forms
that the physicians fill out on every patient are on the DHS Web site and are
gathered in the routine. One point I should mention is that the patient’s names
are submitted to the Department of Health, but the Department of Health says
they are nowhere recorded. The only purpose is to check them against the death
certificate that is ultimately filed, which reflects the underlying cause of death as
the disease, cancer, or ALS or HIV. It does not reflect that the person has availed
of this statute. The notes of the names are destroyed after a year’s time.
           Physician Assisted Death: From Rhetoric to Reality in Oregon           91



Some Distinctions
Many people confuse the Oregon approach with euthanasia, or the practices in
the Netherlands, or the work of Doctor Kevorkian. It is quite narrower and safer,
and practices elsewhere would be illegal in Oregon, as they would be here in
Wyoming.

    First of all, methodology is limited to prescription. The choice could have been
injection, a fatal injection, as was permitted in Australia or is now allowed in the
Netherlands. But the point of having a prescription is simply to enhance the
patient’s autonomy. He or she makes the choices of when and where, takes the
medication, and nobody else need be present. The distinction is an important
one. The physician need not be present, although in fact physicians are present
in about thirty [30] percent of the cases. In fifty [50] percent of the cases another
provider is present. 7 Almost never are the patients alone; often times there are a
number of people present with them when they take the medication.

    The patient need not take the prescription – it’s an important point. About
sixty [60] prescriptions are written each year and about forty [40] people take
them. That means about one-quarter [1/4] to one-third [1/3] of the people are
not taking them. When I talked about this in New Zealand a member of the
audience said “this stuff is sitting in someone’s medicine cabinet, it could be sold
to children on elementary playgrounds!” And I said, “Well, you know, it could be.
But I don’t think it is. These patients have six [6] month diagnoses; in all
likelihood, their medicine cabinets will be cleaned out when their homes are
cleaned out, after their deaths.” The truly significant aspect of this is that people
are making choices at each point along the way, even at the very end.

   Another important point, truly crucial, is that any other method or any other
agent is homicide. For those of us who remember Jack Kevorkian, Michigan’s
Doctor Death, recently released from prison, who was involved in administering
death by injections arid convicted of homicide – he would be prosecuted for
homicide in Oregon as well. The only permitted technique in Oregon is orally
taking the medication; and the actor is the patient himself or herself. No
physician may do it to or for the patient, nor may anyone else.
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   Finally I want to distinguish the Netherlands which for two to three decades
had what could properly be characterized as euthanasia – that is to say,
physicians in the Netherlands were killing patients, and were doing so pursuant
to an unwritten understanding that they would not be prosecuted criminally.
In 2002, the Netherlands adopted explicit authorization for physicians there to
put people to death. That is in fact euthanasia. Oregon does not practice
euthanasia.

   The most recent reports from the Netherlands, I think, are quite scary because
while they had previously been focusing chiefly on the elderly, physicians in the
Netherlands are now putting to death young infants born with massive disabilities
or birth complications. 8 It’s not clear that they’re doing so with the knowledge or
consent of the parents. And, it is absolutely clear that in the Netherlands they do
not have the extensive system of reporting we have in Oregon; the controls are
missing. We should be concerned about the Netherlands.

The Experience
The Practice
Starting in 1997, there were twenty-three [23] prescriptions written for patients
with a terminal diagnosis. The annual number has been slowly moving up to
about sixty [60] to sixty-five [65] a year. 9 This means diat a person has gone
through all the stages I described earlier, and the physician has concluded that
he or she should receive a prescription to use for purposes of hastening death.
The prescriptions consumed amount to about two-thirds [2/3] on the average.
The last report for the year 2006, recited that thirty-five [35] out of sixty-five [65]
took the prescriptions. Nineteen [19] died of the underlying disease, eleven [11]
are still alive, but eleven [11] in 2006 took prescriptions from 2005.

   Forty [40] M.D.s participated in 2006 – that number has been pretty
consistent over the years. Several write prescriptions for two [2] or three [3]
patients. As I recall, the maximum is one physician who in one year, dealt with
seven patients. It is not a specialty that physicians are fighting for, and it is a
problem to find physicians who are willing to participate since, like all other
practitioners, they really entered the medical profession to keep people alive.
           Physician Assisted Death: From Rhetoric to Reality in Oregon             93



Assisting people to die is not an attractive undertaking. It’s also, for physicians, in
some settings, a source of criticism and stigma. But about forty [40] physicians
regularly participate.

    The terminal diagnosis about ninety [90] percent of the time is cancer, of a
number of different kinds. The balance is A.I.D.S. and A.L.S. Those two are
interesting. Obviously H.I.V. is a terrible source of disease and death, but
because of success in treating them, over the past five [5] to ten [10] years, the
percentage of people with H.I.V. using physician assisted death is relatively small,
of all of those with H.I.V. On the other hand, A.L.S. is a relatively small
population, but about fifty [50] percent of those in Oregon with A.L.S. avail
themselves of physician assisted death. I think it is simply because they
understand they are facing a slow, wasting, horrific death and there simply is no
treatment.

    In 2006, there were forty [40] to fifty-four [54] days from the final request to
death, less than two months. On the average, death came within twenty-nine
[29] minutes from the taking of the medication. Folks are unconscious within five
[5] minutes of taking the medication. These are averages. One fellow after a
passage of twelve [12] to fourteen [14] hours woke up and said, “What the hell,
I’m supposed to be dead!” And then followed through and did achieve that
objective. But on the average, most are gone within thirty [30] minutes.

   In terms of complications, the only complication which is recurring is simply
nausea and vomiting from the medications themselves. I will come to talk about
a case where a woman volunteered to be recorded and interviewed and so her
entire experience is available to anybody who’d like to read it. One of the things
she said was “The stuff just tastes awful.” So I think she had to wash it down with
Gatorade. or something else.

   Insurance covers it. The statute specifically says that insurance shall be
unaffected by somebody taking the medication. So if, for example, an insurance
policy had an exclusion for suicide, physician assisted death would not be
excluded from life insurance. Medicaid in Oregon will cover assisted death, but
only with state funds. For those of us who know about Medicaid, about fifty [50]
to seventy [70] percent of the funding is federal, so the state has to be
very careful to track the monies involved. The monies involved here are
94                     PHYSICIAN ASSISTED EUTHANASIA



not huge: going to see a doctor, you’ve got cancer, you’ve had your diagnosis,
you pick up a prescription. Lots of us pick up prescriptions regularly, Lipitor for
example, and the costs are within that range.

   One of the criticisms as the legislation was being debated was that you
cannot trust the M.D.s – who will they be? What specialties will be involved?
There will be pressures on them to engage in malpractice and the like. There
hasn’t been a single instance of that reported. There have been reports to the
Board of Medical Examiners of physicians inadequately filling out the reports,
which are quite extensive. Each of those has been corrected and there have been
no sanctions physically. So, the performance of the M.D.s has been within the
professional norm.

The Patients
Ninety-three [93] percent of the patients die at home. Now, home may be a
friends home, or a friends apartment, but they’re at a home. In the definition of
“home” as the reports use it, a hospice may also qualify. About three-quarters
[3/4] of these folks are dying in hospice. This practice of hospice varies from
community to community. In hospice in Christchurch, fewer than half [1/2] of the
patients die in the hospice facility. That was surprising to me. In hospices in
Houston, Texas, about ninety [90] percent of the patients die in the facility. They
would come in about a week before they would die and that was the chief
function of the hospice facility. In Cheyenne, patients dying in hospice take on
average fourteen [14] to eighteen [18] days.

    Most hospices do not participate in assisted death, simply because the
practice is limited to Oregon. But of course, they support people who are dying,
while they die. In Oregon, as I have said, about three-quarters [3/4] of these
folks, who qualify for assisted death, go to hospice and they die there. Of those
present at the death event, most are family member and friends; M.D.s are
present about thirty [30] percent of the time, another provider about fifty [50]
percent.

   The majority of the patients are in their sixties. The median age in 2006 was
seventy-four [74], which is up significantly from previous years. They are
educated: forty-one [41] percent have a Bachelor of Arts degree. They tend to be
          Physician Assisted Death: From Rhetoric to Reality in Oregon          95



employed and insured: sixty-four [64] percent have private insurance, one-third
[1/3] have Medicaid. Fifty-four [54] percent are male, and of them, forty-six [46]
percent are married. Of the balance, half [1/2] were divorced, and half [1/2]
were either widowed or had never been married.

    The reasons given for seeking assisted death were fairly consistent, year to
year: dignity and autonomy with some fear of pain. Significantly in 2006, forty-
four [44] people said they were motivated by the fear of pain at the end of life
with cancer. The previous years the numbers had been around twenty-two [22].
So for whatever reason, in 2006, many more people were concerned with pain
at the end of life than previously.

    The average length of the relationship with the physician had been about
twelve [12] weeks or three [3] months. Now that will be with the physician who
wrote the prescription. There will also have been other physicians typically in the
picture. The average experience of the physician was about twenty [20] plus
years in practice. On average, they were in their forties, and were family doctors,
internists or oncologists.

    Still on the human dimension, it helps to put a human face on these patients.
This is difficult, because of the guaranties of privacy and the respect due those
who are dying and pursuing the difficult path of death with dignity. But the
Portland Oregonian newspaper was recently able to follow one such patient, with
her full cooperation, as she prepared to die and in fact did so, by means of
physician assisted death. 10 Lovelle Svart died September 30th, perhaps a month
or six [6] weeks ago. For somebody here who would like to get a feeling for the
feeling of this experience, her contribution is extraordinary because she agreed,
after she got her diagnosis of six [6] months terminal cancer, to be video taped,
to be interviewed, and to have the final events taped with a reporter present. This
is uncommon courage and uncommon commitment to the community. But she
was an uncommon lady – a very feisty lady who the afternoon of the death event
danced the polka with a counselor, George Eighmey, from Compassion and
Choices, who has devoted his career to assisting people to die.

   Lovelle Svart had lung and throat cancer; chemo and radiation failed; in June
she got a six [6] month diagnosis. July 1st, she filled out the form. August 7th,
Lovelle fills the script. The morning of the event she bought food, she visited a
96                     PHYSICIAN ASSISTED EUTHANASIA



park, she actually had the battery of her car charged because the car was going
to the son of a friend, and she wanted to make sure the car was operating well.
She visited with friends privately in her bedroom, took the pills and went to the
bedroom with her mother, came back danced the polka, had a hugging line, she
had one last cigarette, then she went to bed. She took the liquid, went to sleep,
and in five [5] hours she was dead. Her case obviously took much longer than
the average of thirty [30] minutes, but there was little about Lovelle Svart that was
average in life or death.

   Reading the Oregonian articles, and visiting the Web site, are both journeys
well worth undertaking.

The Critics and the Criticism
So, this is the human dimension. Let us now turn to the polemics, the critics and
the criticism. 11

    The criticisms, first of all, were that physician assisted death would
discriminate against people; the poor, the disabled, the elderly, the poorly
educated. The demographics of the State of Oregon Reports indicate that this
has simply not happened. As well, interviews with family members support the
conclusion that the feared discrimination has not happened. 12 There was a fear
as well of imposition for financial concerns. But the participants themselves list
financial concerns as a very minor position in their choosing to go through with
this. The remarkable thing with most of these folks is that they have enough to
support themselves, both by way of insurance and their own personal resources.
There was also a fear that there would be misfire or malfunctioning – that
somebody would be rendered brain dead or in a persistent vegetative state or in
a coma, due to maladministration of the medication. There is not one instance of
that.

    Most tellingly, I think, the critics have advanced palliative care as an
alternative. They argue that if someone is approaching the end of life and
experiencing pain, there is palliative care available – ultimately Morphine or
increasing dosages of Morphine or some other pain killer so that the person
need not be hastened to the end, and may in fact live out somewhat close to a
natural span. Other people respond differently to this, that surviving in a heavily
           Physician Assisted Death: From Rhetoric to Reality in Oregon             97



sedated state is not living or dying with dignity. My own response is I think it’s
important for palliative care to be available as a choice, and I think equally that
physician assisted death should also be available as a choice.

    Finally there are those that simply object to the statute because it involves the
inflicting of harm and the ending of life and we ought not to do that, we should
leave death in God’s hands. I cannot really respond to that except to say that if
these choices and these tools are made available to us, then maybe that is part
of the natural order as well. Indeed, the Roman Catholic view is that increasing
sedation is permissible even if it will ultimately hasten death, 13 under the
principle of double effect.

Legal Status
Homicide
I’ve already distinguished the Oregon practice of assisted death from euthanasia.
It is a permissible medical practice, although the medical community is much
divided about whether physicians should be participating in this practice.

   The statute specifically relieves practitioners of criminal and civil liability. The
key point is that the physician does not administer the death agent; only the
patient does do. It is not euthanasia, which would, in fact, be homicide in
Oregon, as elsewhere.

    While I was teaching this spring in New Zealand, I attended meetings there of
groups advocating legislation similar to Oregon’s. There had been cases where
family had assisted people to die. The prime mover, a remarkable woman
named Lesley Martin, 14 had in fact smothered her own mother, after injecting
morphine, as she lay in pain, dying of cancer. There had been other cases.
However compelling and sympathetic such stories may be, the result there and
here is the same: the act is homicide, and any compassion we may feel is
reflected only in a light sentence, usually around two years in prison.

Continued Validity
It seems clear that Oregon will continue to authorize physicians to write
prescriptions assisting terminal patients to choose the time and place of their
deaths. We have twice done so by state-wide referenda. The leading advocate in
98                      PHYSICIAN ASSISTED EUTHANASIA



Oregon, an extraordinary nurse practitioner and attorney, and a former student
of mine, Barbara Coombs Lee, Executive Director of Compassion and Choices,
recently told me that the main opponents have now accepted physician assisted
death as a part of the Oregon healthcare landscape.

     The chief threat comes from without, from conservatives in Washington, both
Congress and the White House. Congressional critics have been unsuccessful
because of the uniquely unanimous support of Oregon’s Congressional
delegation, Republican and Democrat. But the Bush Administration persists in its
opposition, and has sought to terminate Oregon’s practice by withdrawing the
Drug Enforcement Administration (D.E.A.) licenses of participating Oregon
physicians. These licenses are essential to medical practice of participating
physicians, such as family doctors, internists and oncologists, whose practices
would simply shut down without them. So the Bush Administration’s approach is
hugely, and disproportionately, punitive, punishing the physicians, not simply
blocking the assistance to thirty or forty Oregonians annually. The in terrorem
effect alone would prospectively and totally shut down Oregon’s legislation.

     The Drug Enforcement Agency ranks medications and has a list of those
which are simply unavailable – marijuana for example. There is another list of
medications which are available for general practice and the medications used in
assisted death, Secobarbitol and Pentabarbitol, are on that list. They are
regularly used as pain killers and anti-nausea treatments and occasionally to
help people sleep. Their use in assisting death is not due to their properties, but
to the size of the prescribed dosage.

     What the D.E.A. was trying to do was to sanction physicians for appropriately
prescribing a licensed medication, but for what the D.E.A. considered
impermissible purposes. The short of it is, that the US Supreme Court rejected the
challenge, in Gonzalez v. Oregon and the practice as it is currently undertaken in
Oregon is legal and constitutionally permissible. I should add, however, that the
grounds of the Supreme Courts decision were that Congress had not authorized
the D.E.A. to determine what the proper practice of medicine is. Should Congress
do so, then the constitutional issues would be squarely raised: can Congress’
            Physician Assisted Death: From Rhetoric to Reality in Oregon            99



Interstate Commerce powers regulate the local practice of medicine? Can die
First Amendment protect the doctor-patient relationship? Does a patient have a
right to die? 15

   These are fundamental, difficult issues, which the Supreme Court typically
avoids reaching unnecessarily. And Congress would be reluctant to force them
on the Court. So, I think with a presently liberal majority in Congress, Oregon’s
legislation is secure for the foreseeable future. But if the issues were to come
before the presently conservative Court, the outcome is in doubt. On the one
hand, conservatives believe in deference to states under the doctrine of
federalism; on the other, they tend to have an expansive view of Congress’
authority. And the balance would turn on how the then majority of the Court
would view the individual rights at issue . . . the right to death, with dignity ... to
autonomy and choice ... as an aspect of the First Amendment or the Due Process
Clause.

Conclusion
My friends who are constitutional law scholars tell me that Oregon’s legislation
would lose in a frontal challenge in the Supreme Court. But I’m not so sure. In
the end, Court nominees are selected in part because of their human qualities.
And they, and we, are all growing older, and fear the kind of isolated, inhumane
death that awaits us in hospital ICUs. I bank on that as a tipping factor in
motivating Justices, as with voters.

   When I speak to audiences such as this, comprised of voters, I am often
asked why more states haven’t adopted Oregon’s approach. Legislative reform
efforts have failed in other states and I’ve talked with people who’ve been
involved with them and there are just differing reasons, but the short of it is that
assisting people to die is a troubling practice and people in different states have
different demographics and different political makeups. Oregonians tend to be, I
think, a lot like the folks who live here in Wyoming – independent minded and
thoughtful in ways that, let’s say, Massachusetts or California, may be missing.

  One consideration is the Netherlands specter and people are concerned
about a slippery slope – if we do this, then maybe we’ll do this next, and it’s a
100                    PHYSICIAN ASSISTED EUTHANASIA



legitimate fear, but I think the safeguard is simply that you don’t slide down the
slippery slope! You establish safeguards or fail-safes. Oregon has done that, to
avoid abuses.

    The hospitals and pharmaceutical industries are very powerful forces in
resisting change in American health care, and they dig in their heels in resisting
assisted death because they fear liability and lawsuits. The hospice and palliative
care movements are also in opposition, because they take away some of the
apparent necessity for the Oregon approach.

    One other consideration that is hard to capture or express is the difference
between fearing the general but supporting the specific. Those who fear abuses if
assisting death is authorized might well understand and support it in specific
cases where the need and circumstances are compelling, as with the case of
Lovelle Svart or Lesley Martin. And the truth is, as with Lesley Martin, we have a
way of accommodating to individual cases, by labeling them homicide and
giving light, compassionate sentences, or – as in the Netherlands for decades –
simply not prosecuting. The trouble with this approach is that it is too hit-or-miss,
and people may be treated very unevenly, or be deterred by uncertainty from
acting at all, even in extreme, compelling cases.

   But two things that I think work in favor of other states considering Oregon’s
approach are demographics and common sense. The demographics are clear
and they’re simple. We have an aging population in the United States. More of
the middle class are contemplating the possibility of high tech death and it’s ugly.
The option of a more comforting and comfortable death is attractive. The more
we immediately face this, the more urgent becomes the need to have physician
assisted death as an option.

   Finally, I truly do believe there is something about dignity and humanity in a
process empowering a person, who is ultimately going to die like all of us will
die, but will die soon, predictably and possibly without dignity. I think there’s
something about dignity and humanity in permitting that person to make a
choice that brings death into life and blends the two together. Call it the legacy
of Mr. Chapman.
          Physician Assisted Death: From Rhetoric to Reality in Oregon                 101



About the Author
Professor Arthur Birmingham LaFrance has taught courses in healthlaw and
bioethics at Lewis and Clark Law School in Portland, Oregon for twenty years, as
well as at universities in Perth, Australia; Houston, Texas; Christchurch, New
Zealand and most recently, the University of Wyoming. He is the author of a
book, Bioethics: Healthcare, Human Rights and the Law (2d Ed., 2007, Lexis
Pub.), as well as a number of articles in the field of bioethics. He confesses to
being an avid cyclist, a mediocre tennis player, and an ineffectual, but
committed, flyfisherman. The present article is based on lectures Professor
LaFrance delivered to the national judiciary at Tongoriro National Park in New
Zealand in March of 2007 and the Rudolph lecture delivered in November
of 2007 at the University of Wyoming.

Endnotes
1   See generally http://www.oregon.gov/DHS/index.shtml (It is a useful resource on die
    history of the adoption of the Oregon legislation, as well as a reference for scholarly
    writings on the subject. Additionally, the Department has posted eight annual reports
    on the practice and experience under the Death With Dignity Act, providing most of
    the data reflected in this paper. Because this paper, while accurate according to
    scholarly traditions, is not a conventional scholarly piece, many of the references one
    might usually find are omitted, in anticipation that the motivated reader will visit the
    Oregon DHHS website for further sources and validation).

2   See WILLIAM H. COLBY, LONG GOODBYE: THE DEATHS OF NANCY CRUZAN (2003); ELISABETH
    KUBLER Ross, ON DEATH AND DYING (2007); SHERWIN NULAND, THE AMERICAN WAY OF DEATH.

3   Gonzales v Oregon, 546 US 243 (2006) (The author wrote an amicus curiae brief in
    that case, on behalf of two dozen law professors, presenting much of the data
    reflected in this speech. Most of the challenges to Oregon’s law were factually
    grounded: that it would discriminate against the poor or ill educated or disabled;
    that it would be a means of abuse and over reaching; that it would go badly and
    lead to bad outcomes for patients; that assisting death is not properly the practice of
    medicine. The Amicus brief argued the contrary, relying on the facts reflected in the
    Annual Reports on the DHHS website and reviewed in this article).

4   See A.B. LaFrance, Physician Assisted Death: A Comparison of the Oregon and
    Northern Territory Statutes, 1 NEWCASTLE LAW REVIEW 33 (1996) (The Australian statute
    was a marked contrast to Oregon’s: it required the physician to be present and
    deliver the deadly substance and the patient to exhaust palliative care before the
102                       PHYSICIAN ASSISTED EUTHANASIA




      death event. The Australian statute thus tapped the Commonwealth tradition of
      public health, while – as the present text develops – the Oregon statute
      respects the American traditions of individual rights and autonomy).

5     The literature on the Netherlands is vast and troubling. Until 2002, euthanasia was
      practiced without explicit authorization or clear reporting and review. Since then,
      explicit authority has been provided, and it is reported that euthanasia has been
      extended to infants, with inconsistent reporting by physicians. The safeguards and
      limitations in the Oregon Death With Dignity Act are missing. The Oregon DHHS
      website provides leads for the interested reader, who will find ample recent research
      on the Netherlands in the New England Journal of Medicine.

6     The Oregon Death With Dignity Act is set out in full at the DHHS website, and, as
      well, may be found in the Oregon Revised Statutes at ORS § 127.800-995. As my
      discussion proceeds in the text, I will not provide, contrary to the usual custom,
      frequent section references. These may easily be found and consulted by the
      interested reader.

7     Perhaps this need not be said, but the text discussion of the statistics and practices
      and patients under the Oregon DWDA are based on the eight annual reports on the
      DHHS website. The interested reader will probably find all she or he needs by
      consulting the Eighth Annual Report, since it is cumulative. One might also find there
      references to articles based on the Reports by Hedberg et. al., in the New England
      Journal of medicine over the past ten years.

8     In the United States, of course, these conditions and practices would trigger
      protections and sanctions of the Americans with Disabilities Act, 42 U.S.C. § 12101
      (1990). Concerns that the disabled would be victimized by the Oregon DWDA
      prompted disabilities groups to file Amicus in the United States Supreme Court,
      challenging the Oregon Act.

9     For reasons that are not clear, the total number of people using the DWDA has
      stabilized at about sixty [60] or so. One would think that the number would continue
      to climb, as the population increases, and the aged increase in number.

10    Video Diary: Living to the End, available at http://blog.oregonlive.com/multimedia/
      living_to_the_end/.

11    The literature on assisted death is vast and the critics numerous. For case of
      manageability, the reader might find most informative reviewing the briefs of the
      parties and the amici in Gonzales v. Oregon, 546 US 243 (2006), where the critics
      were forced to focus and substantiate, as best they could, their criticism. The briefs
      are all available on the Supreme Court website or through Westlaw.

12    It is important to note, on behalf of the critics, that what we know about the
      motivations and independence of the patients was largely gathered by their
      caregivers. Few patients were interviewed, due to privacy concerns, as to their
           Physician Assisted Death: From Rhetoric to Reality in Oregon            103




     motivations and feelings and freedom of choice. Hence, critics would argue that
     much of the supposed data was gathered by the very people who might most profit
     by the persons death.

13   The Roman Catholic Church has a highly developed set of principles, codified as THE
     ETHICAL AND RELIGIOUS DIRECTIVES ON HEALTHCARE, supported by commentary and
     frequently updated. These guide the Catholic Church’s opposition to Oregon’s
     DWDA, and were the basis of the Church’s continuing opposition, despite the
     principle of double effect. The ERDs are available on the Church’s website, at
     http://www.usccb.org/bishops/directives.shtml.
14   Ms. Martin has written two books about her experience.
15   Obviously, these are complex questions and there is abundant case law from a
     number of courts on them. See among others, In re Quinlan 70 N.J. 10, 355 A.2d
     647 (1976); Bouvia v. Superior Court, 255 Cal. Rptr. 297, 300 (Ct. App. 1986);
     Cruzan v. Director, MDH, 497 US 261 (1990); Planned Parenthood v. Casey, 505
     US 833 (1992). These case names on Westlaw will provide an easy to guide to
     abundant commentary in the JLR database.
                                                  5
      Bioethics and Law in the United
    States: A Legal Process Perspective
                                        Charles H. Baron*

        An analytical exposition of the law regarding a patient’s “right
        to die” as it has developed in the United States over the last 30
        years provides an exemplar overview of the variety of legal
        mechanisms that American legal institutions can and do bring to
        bear to deal with the challenges posed by new developments in
        medicine and the biosciences. Opposing “pro-life” and
        “pro-choice” ideological and political forces have been
        channeled through the federal and state legislative, judicial, and
        executive branches, where the various legal actors have
        developed legal principles that so far provide patients with a
        right to refuse any form of life-prolonging treatment while
        denying them (in all but one state) the right to physician-assisted
        suicide. The tension between these forces continues to exist, and
        the law is in a constant process of change.


1. Introduction
Over the last few decades, America has served in the avant-garde of the effort to
develop new law to respond to the challenges presented by rapid advances in

*   Professor Boston College Law School. E-mail: Baron@BC.edu
© 2007 Charles H. Baron. This article is originally published in Diritto Pubblico Comparato ed Europeo
1653 (2008).
Source: www.law.wayne.edu
       Bioethics and Law in the United States: A Legal Process Perspective      105



medicine and the life sciences. A meaningful substantive overview of all these
developments cannot be provided in a short essay. First, the areas of challenge
are numerous, cover a broad range, and are evergrowing. They include, but are
not limited to, such issues as patients’ rights, abortion, organ transplantation,
fetal and embryonic research, stem cell research, genetic research and therapy,
etc. Second, the legal system of the United States is multi-layered and
complicated. Legal regulation may take the form of laws made by state and local
governments as well as the federal government, and they may be issued not only
by legislatures, but also by administrative agencies within the executive branch,
and they may be developed by the state and federal judiciary who interpret state
and federal constitutional provisions and apply principles of judge-made
common law. Thus, I will provide here an overview of only one (and one of the
earliest) of the areas of development of “Law and Bioethics” in the United States,
in the hope that it will be valuable not only for its coverage of the substantive law
in that area, but also for the aid it may offer as a key to understanding the way
that the American legal process is able to respond to the challenges raised in all
such areas. 1

    In the last thirty years, a body of law has developed in the United States that
establishes for American medical patients what has come to be called “the right
to die.” The high water mark of that development thus far was reached in the last
decade of the Twentieth Century. In 1990, the United States Supreme Court
rendered its opinion in Cruzan v. Director, Missouri Department of Public Health,
in which it recognized a federal constitutionally based right of patients to refuse
unwanted life-saving medical treatment – including artificial nutrition and
hydration. 2 In 1994 the voters of the state of Oregon passed by initiative process
America’s first (and still only) state law legalizing and regulating physician-
assisted suicide. 3 But today, the process of further development of the right to die
seems to be stalled, and the law protecting this right is left at an awkward,
unstable, and even dangerous stage. Beyond that, there are indications that
some of the progress made in protecting patient autonomy in this area is in peril
of being undone. “Pro-life” political forces are currently engaged, over a
wide-range of issues of modern bioethics and medical ethics, in a reactionary
effort to undo many of the legal trends of the last three decades and retard
future development. In the larger context of current political tensions in the
106                     PHYSICIAN ASSISTED EUTHANASIA



United States between protection of individual liberties and efforts to promote
religious and moral conformity, it is unclear how the law will develop in the near
future.

2. Judicial Development of “The Right to Die”
Tension between pro-life and pro-choice political forces in the United States has
shaped development of “the right to die” from its beginning. The movement to
improve the plight of terminally ill patients – to prevent them from being forced
by outdated laws to endure long periods of suffering and indignity as part of the
dying process – arose against the background of the effort to legalize abortion
and of the US Supreme Court’s 1973 landmark decision in Roe v. Wade. 4 When
the Supreme Court of New Jersey decided the first of the right-to-die cases, In re
Quinlan, 5 in 1976, it was no surprise that recognition of such a right would come
first from the courts of the state rather than from its legislature or its executive
branch. The decision in Roe had heightened the level of political activism of
right-to-life groups across the country. Elected officials were predictably wary of
the price they might pay at the polls for appearing weak on issues of respect for
human life in all its forms. Thus, it was natural that Karen Quinlan’s father
should turn to the courts of his state to seek relief when his daughter’s physicians –
fearing prosecution for homicide or assisting suicide – refused to remove life-
support from his 22 year old daughter, Karen, who had been determined to be
in a permanent vegetative state. Judges in New Jersey, like federal judges and
judges in many other American states, are appointed to the bench and do not
stand for popular election. As a result, they are not as vulnerable as legislators to
the threat of political retribution. Moreover, the courts offered other advantages
over the legislature as institutions for modifying the law to accommodate the
pressures on society created by progress in medicine and biotechnology.
Although, common law judges clearly “make law,” the tradition is for them to do
so by incorporating values from, and building incrementally upon, judicial
precedents established in earlier cases. And, in deciding the cases before them,
they are expected to write opinions that explain their decisions in a fashion that
limits, as much as possible, the rule justifying the result to only what is necessary
to reach the decision on the facts of the particular case. Unlike legislators, they
need not draft laws in broad, sweeping form and in a fashion which anticipates
and accommodates all possible exceptions. They can make law tentatively. They
can establish a rule in one case; broaden the rule in a later case if it is
       Bioethics and Law in the United States: A Legal Process Perspective       107



determined to have been fashioned too narrowly, limit it if it was stated too
broadly, or overrule it altogether if the court concludes it to have been a mistake.
In all of this, they are able to draw on the work of sister courts, state and federal,
employing decisions of other jurisdictions as “persuasive authority,” building
upon them by accepting what seems reasonable and modifying or rejecting what
does not. As I have pointed out in an earlier article on this subject, it was in just
this fashion that American courts dealt with the challenges of new technology in
the Nineteenth Century:

   During the Nineteenth Century, when American society was challenged by
   the development of new technologies such as the railroad and the
   telegraph, it was the common law courts of the various states that crafted
   legal responses attempting to balance the various interests involved. The
   justices of the state supreme courts worked together in developing a new
   body of common law to govern these new technologies. They wrote
   opinions in which they claimed to be drawing their norms from basic
   values already recognized in past common law decisions in both America
   and England and to be applying those norms to the facts of the cases
   before them. The Supreme Judicial Court of Massachusetts was one of the
   leading courts in this effort. The Court’s Chief Justice, Lemuel Shaw, came
   to be called “America’s Greatest Magistrate” in recognition of his
   contribution to the framing of law in this area. But justices from many
   courts, building on each other’s decisions, contributed to the establishment
   of these legal norms on a case-by-case basis. 6

    Beginning with the decision of the New Jersey court in Quinlan, American
courts, in the last third of the Twentieth Century, engaged themselves in a
cooperative effort to develop principles for providing patients with the power to
control the timing and circumstances of their deaths. In Quinlan, the New Jersey
court granted Karen’s father the authority as her guardian to exercise what they
found to be her constitutionally based right to refuse treatment under her medical
circumstances. But, it is important to note that the decision did not rest upon
recognition of an absolute right to refuse treatment. Indeed, as the New Jersey
court notes in its opinion, recognition of such a right would have been
inconsistent with decisions it had rendered only a decade before in which it had
authorized physicians to force blood transfusions upon Jehovah’s Witness
108                   PHYSICIAN ASSISTED EUTHANASIA



patients who objected to such treatment on religious grounds. 7 The court’s
holding in Quinlan was restricted to cases like Karen’s where medical treatment
offered no hope of being restored to a meaningful “quality of life.” Her case was
different from that of the Jehovah’s Witnesses, said the court, in that the latter
were “most importantly [patients] apparently salvable to long life and vibrant
health; – a situation not at all like the present case.” 8 The driving factor in
Quinlan appeared to be the fact that allowing a patient in a permanent
vegetative state to die was the reasonable and humane thing to do. In the end,
the court did not even require that Karen Quinlan’s wishes be taken into
consideration in deciding whether or not she should be removed from life
support. Testimony that had been offered at trial of what she had told friends she
would want if she were ever permanently on life support was rejected by the
court as being “without sufficient probative weight.” 9 Instead of attempting to
establish Karen’s wishes, the court gave discretion to her physicians to decide
whether or not life support should be withdrawn -so long as that decision was
agreed to by her guardian, her family, and a hospital ethics committee.

   Quinlan, in many ways, represented an effort on the part of the medical
profession to take back a freedom from regulation it had enjoyed prior to the
advent of modern high-technology medicine. When patients died at home, under
the care of family physicians, and in a context that did not afford seemingly
unlimited options for prolonging life, attending physicians regularly made
decisions for patients and families that “enough was enough.” But by the 1960’s
and 1970’s, hospital staff was being confronted with the need to make
increasingly stark life and death decisions in a frighteningly public environment.
The very recent history of legal treatment of abortion decision-making was not
such as to inspire confidence that doctors could consider themselves immune
from legal prosecution. In the wake of the Thalidomide abortion controversy in
the United States, professional practices regarding abortion had come under
public scrutiny and legal control had been tightened in many jurisdictions. The
solution to this problem had come with the decision in Roe in 1973. On the basis
of a “right to privacy” it had previously found in the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, 10 the Roe Court had
delegated to the pregnant woman’s attending physician almost all aspects of the
determination of whether or not an abortion could be performed.
       Bioethics and Law in the United States: A Legal Process Perspective       109



    In Quinlan, the New Jersey Supreme Court essentially followed the lead of
Roe. Where Roe had used the federal constitutional right to privacy to protect
professional autonomy at the beginning of life, Quinlan used that right (and a
right to privacy that the court found in the New Jersey Constitution as well) to
protect professional autonomy at the end of life. Because the patient was in a
permanent vegetative state, and there was no reasonable chance that medical
treatment could restore her to a higher “quality of life,” the patient’s right to life
was outweighed by her right to privacy. Thus, her physician could lawfully hasten
her death by removing her from her ventilator so long as this was agreed to by
her guardian, her family, and an appropriate hospital ethics committee.

    In 1977, the year following Quinlan, the Supreme Judicial Court of
Massachusetts rendered a decision in a case that was very like Quinlan in many
ways but unlike it in significant respects as well, and the Massachusetts court
extended the principles of Quinlan in some ways and restricted them in others.
The case was Saikewicz v. Superintendent of Belchertown State Hospital. 11 It was
brought by physicians at a state hospital for the mentally retarded who were
seeking permission to withhold chemotherapy treatment from a 67 year old,
profoundly mentally retarded inmate who was terminally ill with cancer. Without
chemotherapy, the patient would die of his cancer within weeks or months. With
the treatment, the patient might live for as much as a year, but at the cost of the
serious side effects of chemotherapy. A decision to treat him was complicated by
the fact that his profound state of mental retardation would prevent him from
understanding why he was being subjected to the discomforts of chemotherapy.
It would also prevent him from enjoying the sense of hope that a competent
patient might obtain from the sense that every effort was being made to defeat
the disease.

    The Massachusetts court, like the New Jersey court in Quinlan, provided the
physicians with legal permission to withhold treatment. Like the Quinlan court,
the Saikewicz court based its decision on the right to privacy (which it, like the
New Jersey court, found in its state constitution as well as in the federal
constitution), and it held that this right outweighed interests in preserving life in
circumstances, like those in the case before it, where treatment could not
significantly improve the patient’s “quality of life.” Thus, Saikewicz followed
Quinlan and even extended its holding to apply to patients who were being
110                     PHYSICIAN ASSISTED EUTHANASIA



treated for a terminal illness – not just to patients in a permanent vegetative
state. However, in other important respects, Saikewicz represented a significant
break from Quinlan. Rather than empowering physicians to make decisions for
incompetent patients (so long as the patient’s guardian, family members, and a
hospital ethics committee agreed), the court held that physicians were bound to
follow the wishes of the patient. The “informed consent” or “informed refusal” of
the patient, and not professional discretion, were to govern. And where the
power to consent or refuse could not be exercised by a patient because of mental
incompetency, physicians looking for legal protection would be required to ask a
court to decide what the patient would want for himself. “We do not view the
judicial resolution of [the question] whether potentially life-prolonging treatment
should be withheld from a person incapable of making his own decision [as] a
“gratuitous encroachment’ on the domain of medical expertise,” said the court.
“Rather, such questions of life and death seem to us to require the process of
detached but passionate investigation and decision that forms the ideal on which
the judicial branch of government was created. Achieving this ideal is our
responsibility and that of the lower court, and is not to be entrusted to any other
group purporting to represent the ‘morality and conscience of our society’ no
matter how highly motivated or impressively constituted.” 12

    Over the next decade, the courts of Massachusetts made good use of this
mandate to further refine the “informed refusal” principles of Saikewicz. By the
end of this process, patient autonomy would become the bedrock norm of “the
right to die.” But Saikewicz, like Quinlan, had not itself recognized an absolute
right of patients to refuse life-saving treatment. In Saikewicz, the court limited its
holding to cases where treatment could be characterized as merely “life-
prolonging,” rather than “life-saving.” The Massachusetts court claimed it was
relying upon “a substantial distinction in the State’s insistence that human life be
saved where the affliction is curable, as opposed to the State interest where, as
here, the issue is not whether but when, for how long, and at what cost to the
individual that life may be briefly extended.” 13 In a series of cases decided from
1978 to 1980, the Massachusetts courts supplanted such “quality of life” factors
with criteria based on the objective “intrusiveness” of the proposed treatment.
Thus, in Lane v. Candura, 14 a 77 year old woman was permitted to refuse a
lifesaving amputation of her leg because “[t]he magnitude of the invasion
           Bioethics and Law in the United States: A Legal Process Perspective   111



proposed in this case is decisive in applying the balancing test.” 15 And in the
cases of Commissioner of Correction v. Myers 16 and In re Spring, 17 the
Massachusetts Supreme Judicial Court decided that a patient could refuse life-
saving kidney dialysis because such therapy was “intrusive.” Although dialysis did
not “require the sacrifice of a limb or entail substantial pain,” said the Court, it
was, nonetheless, “a relatively complex procedure, which requires considerable
commitment and endurance from the patient who must undergo the treatment
three times a week.” 18 Finally, in 1986, in Brophy v. New England Sinai
Hospital, 19 the court reached the conclusion that even proof of objective
“intrusiveness” should no longer be required as a condition for the exercise of
the right of “informed refusal.” Mr. Brophy, a patient in a permanent vegetative
state, had made very clear while mentally competent that, if he were ever forced
to live on life support in an unconscious state, he would want someone to “just
shoot me, pull the plug.” To comply with his wishes, his family asked to have him
removed from all life support – including artificial nutrition and hydration. The
court granted the family’s request despite the fact that Mr. Brophy was neither
“terminally ill nor in danger of imminent death from any underlying illness” and
despite the fact that nutrition and hydration might not be considered intrusive in
any objective sense. It was enough, the court held, that Mr. Brophy would
consider the treatment intrusive because it stood in the way of his dying with
dignity.

   These developments in Massachusetts were being closely observed by courts
in other states including those of New Jersey. When, in 1985, the New Jersey
Supreme Court was faced with In re Conroy, 20 its first “right to die” case since
Quinlan, the court adopted most of the principal points of doctrine that had been
developed in the courts of Massachusetts. The patient in that case, Claire
Conroy, was a mentally-incompetent eighty four year old nursing home patient
who was being kept alive by, among other things, artificial nutrition and
hydration. “She suffered from arteriosclerotic heart disease, hypertension, and
diabetes mellitus; her left leg was gangrenous ... ; she had [bed sores] on her left
foot, leg, and hip; an eye problem required irrigation; she ... could not control
her bowels; she could not speak; and her ability to swallow was very limited.” 21
Believing that Ms. Conroy should be allowed to die, her guardian (who was also
her nearest relative) applied to the courts for permission to have her removed
112                    PHYSICIAN ASSISTED EUTHANASIA



from life support. Despite the fact that Ms. Conroy was not in a permanent
vegetative state nor terminally ill, the court decided that she could be removed
from life support if it could be proved that this is what she would have wanted if
competent. The court admitted it had erred in Quinlan when it disregarded
“evidence of statements Ms. Quinlan made to friends concerning artificial
prolongation of the lives of others who were terminally ill.” 22 And it made clear
that it was placing no objective limits on Ms. Conroy’s right to refuse continued
life support. “Ms. Conroy’s right to self-determination,” said the court, “would not
be affected by her medical condition or prognosis.” 23 Indeed, said the court, “a
young, generally healthy person, if competent, has the same right to decline life-
saving medical treatment as a competent elderly person who is terminally ill.” 24

    By 1990, when the US Supreme Court decided the narrow constitutional
question presented to it in Cruzan, 25 the Court could note that state supreme
courts across the United States had made it the general law of the country that
patients had a right to refuse any sort of medical treatment. By slow steps, on the
facts of one case at a time, and by means of a cooperative dialogue, the courts
had first recognized such a right only where the courts and the medical
profession agreed that the decision seemed a reasonable one, but ended in
protecting the autonomy of patients to make even choices that seemed
“irrational.” As a capstone to this development, in 1992, in the case of In Re
Hughes, 26 the New Jersey Supreme Court took the long-overdue step of making
its earlier case law regarding Jehovah’s Witnesses consistent with developments
since Quinlan. In a decision that essentially overruled those earlier cases, the
court stated: “[A] competent Jehovah’s Witness or person holding like views has
every right to refuse some or all medical treatment, even to the point of
sacrificing life... Should a patient decide, with full knowledge of the potential
situation, to refuse life-sustaining medical treatment and the patient
communicates this decision via clear and convincing oral directives, actions or
writings, the patient’s desires should be carried out.” 27

3. Legislative Procedures for Proxy Decision-making
While these legal developments were taking place in the courts of New Jersey
and Massachusetts, there was, for many years, no action taken by the
legislatures of those states. This was unfortunate. Although there are advantages
       Bioethics and Law in the United States: A Legal Process Perspective       113



to law-making by gradual judicial development of a body of precedent, there
are, of course, advantages to law-making by legislatures. Such advantages are
typically the correlatives of the advantages of law-making by courts. There are,
for example, the obvious advantages of law-making by an elected body that can
give the people what they want rather than what a court thinks they should want.
There are the advantages of having general rules laid out in advance of the
occurrence of problems so that the problems may be avoided. There are the
advantages that stem from not having to justify law-making on the basis of
principles of “reason” When law-making calls for the establishment of essentially
arbitrary rules, e.g., rules of the road regarding right of way, speed limits,
minimum requirements of age and competence for a driver’s license, etc., the
job cannot easily be performed by a court. And there are many other advantages
as well. In Conroyjhe New Jersey Supreme Court explicitly noted some of these
advantages. “Perhaps it would be best,” said the court, “if the Legislature
formulated clear standards for resolving requests to terminate life-sustaining
treatment for incompetent patients. As an elected body, the Legislature is better
able than any other single institution to reflect the social values at stake. In
addition, it has the resources and ability to synthesize vast quantities of data and
opinions from a variety of fields and to formulate general guidelines that may be
applicable to a broad range of situations. 28

   By 1987, in the face of a continuing absence of “right to die” legislation in
New Jersey, the state court felt obliged to take steps that might have been better
left to the legislature. In the case of In re Peter 29 the court noted with regret the
absence of legislation providing for the execution of a “living will” – “a written
statement that specifically explains the patient’s preferences about life-sustaining
treatment.” 30 Many other states, the court observed, had passed statutes
recognizing the validity of “living wills” and prescribing procedures for their
execution. “Unfortunately,” said the court, “the New Jersey Legislature has not
enacted such a law.” 31 New Jersey also had not enacted a health care proxy law –
a type of statute, passed in many other states, that enabled patients to appoint
health care agents empowered to make life-sustaining treatment decisions if the
patients became mentally-incompetent. Despite the lack of such statutory
114                     PHYSICIAN ASSISTED EUTHANASIA



authority, Hilda Peter, the patient in the case before the court, had executed a
document purporting to appoint a friend as her agent to make health care
decisions for her. The court decided to grant legal validity to the document. It did
so by providing a strained construction to New Jersey’s general statute providing
for the appointment of agents. “Although the statute does not specifically
authorize conveyance of durable authority to make medical decisions,” said the
court, “it should be interpreted that way.” 32

   But, the court continued to make clear that it would prefer that the legislature
play its proper role in law-making. In an effort to encourage action from the state
legislature, the New Jersey court gave evidence of backing away from its reliance
upon the right to privacy as its principal basis for the “right to die.” In 1985, in
Conroy, the court held that the right to refuse artificial nutrition and hydration
could be justified entirely upon common law principles of informed consent and
refusal. There was no need, the court thought, to consider whether Ms. Conroy’s
rights were protected as well by the federal and state constitutions. In 1987, in In
re Farrell, 33 the court held that a patient’s right to refuse treatment rested
“primarily” on the common law. As a later court pointed out, these were
decisions to “smooth the path for legislative action.” 34 American legislatures have
the power to overrule common law, but they do not have the power to override
constitutional rights. Massachusetts and some other states that had earlier relied
upon the right to privacy followed the New Jersey lead. 35 In 1991, the New
Jersey legislature finally enacted legislation providing for “advance directives for
health care.” 36 Earlier, the Massachusetts legislature had passed legislation
providing for the appointment of “health care proxies.” 37 In doing so, the two
state legislatures brought their jurisdictions in step with the vast majority of
American states. By 1994, 47 states had enacted some form of living will
legislation, 38 and all but two states had passed some form of health care agency
act. 39 These statutes achieved progress of a sort that is difficult to work out on a
case-by-case, common law basis. They laid out clear and precise general
procedures for establishing the validity of living wills and for appointing health
care proxy decision-makers. And, to deal with situations where patients failed to
take advantage of living will or health care proxy laws before becoming
        Bioethics and Law in the United States: A Legal Process Perspective      115



incompetent, a growing number of jurisdictions also began to warn patients that,
failing a choice on their part, health care proxies would be selected for them on
the basis of criteria chosen by the legislature. 40

     Some of the state statutes went beyond merely prescribing procedures for
formalizing expressions of patient will. In such instances, tension could be
generated between the courts and legislatures of the states. For example, in
McConnell v. Beverly Enterprises, 41 the Supreme Court of Connecticut found itself
confronted with a statute in which the legislature seemed clearly to have
eliminated a patient’s right to refuse artificial nutrition and hydration. 42
Mrs. McConnell, the patient in the case before the court, was a fifty-seven year
old woman who had worked as a nurse in emergency medicine up until the time
of an accident that had rendered her comatose. On the basis of her professional
experience, she had communicated to her friends and family her firm wish never
to be kept on any sort of life support in the event of permanent incapacity.
Despite the clear language of statute, all of the judges of the Connecticut court
held that Mrs. McConnell had a right to have artificial nutrition and hydration
stopped. At least one of the justices would have decided the case on the basis of
either the right to privacy (which would have overridden the statute) or the
common law (which he argued had not been explicitly supplanted by the statute).
A majority of the justices felt obliged to decide the case under the statute, but
they did so only after giving the statute a strained interpretation that would avoid
questions regarding the statute’s constitutionality. The court first noted how often
it, like the Supreme Court of New Jersey, had called upon its state legislature to
take action in this area of the law. “When the legislature has attempted to
respond to this urgent request for statutory assistance, we have an obligation to
pursue the applicability of statutory criteria before resorting to an exploration of
residual common law rights, if any such rights indeed remain.” The court then
interpreted the statute to prohibit only cessation of spoon feeding and water
provided by mouth. This interpretation, said the court, permitted a decision
employing the statute and, at the same time, avoided the possibility that the
statute might be found unconstitutional. Subsequently, the Connecticut legislature
amended the language of the statute, not to overrule the McConnell decision,
but rather to bring it into explicit conformity with the interpretation that the court
had given it in that case.
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4. Physician-assisted Suicide and Active Euthanasia
Until 1986, all “right to die” decisions of the Massachusetts Supreme Judicial
Court were unanimous. In that year, in Brophy, three of seven justices wrote
dissenting opinions. One of the dissenting justices wrote:

   [The trial judge in this case] found that “Brophy’s decision, if he were
   competent to make it, would be primarily based upon the present quality
   of life possible for him, and would not be based upon the burdens
   imposed upon him by receiving food and water through a G tube, which
   burdens are relatively minimal.” ... Suicide is primarily a crime of
   commission, but can, and indeed must, also be conceived of as an act of
   omission at times. See In re Caulk, 125 N.H. 226, 228, 231-232, 480
   A.2d 93 (1984) (suicide can be committed by starvation [or dehydration]).
   If nutrition and hydration are terminated, it is not the illness which causes
   the death but the decision (and act in accordance therewith) that the illness
   makes life not worth living. There is no rational distinction between suicide
   by deprivation of hydration or nutrition in or out of a medical setting –
   both are suicide. 43

   Unlike Jehovah’s Witnesses refusing blood transfusions, Mr. Brophy had no
objections to the form of treatment – there was nothing to indicate that he found
artificial nutrition or hydration particularly horrific or that he would have refused
them if there was hope of being restored to a normal, sapient existence. Unlike
Mr. Saikewicz, Mr. Brophy had no objections to treatment because it was better
to die sooner from a terminal disease by refusing burdensome treatment than to
live a slightly longer life while suffering painful and disorienting side effects.
Mr. Brophy’s objections were based on the fact that he would rather be dead
than continue subsisting in a meaningless and undignified state that imposed
pointless costs on his family and society in general. As the Brophy dissenters
pointed out (in terms that anticipated those Justice Scalia would use in his
concurring opinion in Cruzan, 44 ) it is impossible to differentiate this sort of
“refusal of treatment” from physician-assisted suicide without a display of legal
legerdemain and the use of legal fictions. Nonetheless, American courts have
thus far resisted all efforts to have them take the next logical step and judicially
       Bioethics and Law in the United States: A Legal Process Perspective       117



extend the “right to die’ to include requests by terminally ill patients for physician
assistance in hastening death by prescribing lethal medication that patients can
use to end their lives at a time and in circumstances of their own choosing.

    Three state appellate courts have so far ruled on this question under their
state constitutions and the 14th amendment to the US Constitution. In 1997, in
Krischer v Mclver; 45 the Florida Supreme Court overturned a lower court ruling
that had held that a Florida statutory prohibition on assisting suicide violated the
state’s constitutional provision protecting a right to privacy to the extent that the
statutory ban prevented a competent, suffering, terminally-ill patient from
obtaining assistance in hastening death from a willing physician. In reversing the
lower court, the Supreme Court based its decision on acceptance of a
conventional distinction between “active” and “passive” means of hastening
death – finding the latter, but not the former, to be constitutionally protected. The
court expressed belief that clinging to the distinction was necessary to prevent a
slide down a “slippery slope” to approving involuntary euthanasia and cited, as
support for this, the conclusion of a 1994 New York Task Force on Life and the
Law that proposed “a clear line for public policies and medical practice between
forgoing medical interventions and assistance to commit suicide or
euthanasia.” 46 In 2001, in Sampson v. State, 47 the Supreme Court of Alaska also
held statutory prohibitions on assisted suicide to be constitutional – even as
applied to terminally ill patients seeking assistance from willing physicians. In
that case, the court found that privacy rights explicitly guaranteed under the state
constitution had been compromised, stating that “[t]o the extent that the ...
statute’s general prohibition of suicide prevents terminally ill patients from
seeking a physician’s help in ending their lives, the provision substantially
interferes with [patients’] general privacy and liberty interests, as guaranteed by
the Alaska Constitution” 48 However, the court concluded that the burden on such
rights was justified by state interests in preventing abuses that might follow on
approval of such “active” means of hastening death and, again, relied upon and
reaffirmed the distinction between acts and omissions to act in causing death. In
People v. Kevorkian, 49 decided in 2001, the Michigan Court of Appeals rejected
a physician’s claim that state and federal constitutional provisions required
reversal of his second degree murder conviction arising from his use of active
measures to hasten the death of a consenting, terminally ill patient. Again, the
court justified denying constitutional protection based on a concern that
118                     PHYSICIAN ASSISTED EUTHANASIA



“expanding the right to privacy would begin, as the steps in the progression of
defendant’s argument supporting voluntary euthanasia clearly indicate, the slide
down the slippery slope toward [involuntary] euthanasia.” 50

    The US Supreme Court weighed in on this matter in two companion cases
in 1997. Washington v. Glucksberg 51 was an appeal from a decision in which
the US Court of Appeals for the Ninth Circuit had declared Washington’s
statutory prohibition of assisted suicide (to the extent that it prohibited competent,
terminally ill, suffering patients from obtaining medication that could be used to
voluntarily hasten their deaths) to be unconstitutional under the Due Process
clause of the Fourteenth Amendment. Vacco v. Quill 52 was an appeal of a similar
decision by the US Court of Appeals for the Second Circuit invalidating a similar
New York law, but under the Equal Protection clause of the Fourteenth
Amendment. Both decisions were overturned in the Supreme Court by a 9 to 0
vote. The result was complicated by the fact that, in addition to Chief Justice
Rehnquist’s opinion for the court in the two cases, five justices, Stevens,
O’Connor, Souter, Ginsburg, and Breyer wrote their own opinions. A majority of
the justices seemed agreed that the court’s decision in Cruzan was to be
explained as not recognizing a fundamental right to die “deduced from abstract
concepts of personal autonomy” 53 but rather resting merely upon long-standing
principles of bodily integrity protecting individuals from unconsented-to touching.
Because statutes prohibiting physician-assisted suicide do not impinge upon the
right to be free from such touching, the court held that such statutes are to be
subjected to less strict constitutional scrutiny than laws that force treatment on
patients, and it found that those statutes could be justified by a number of
rational state interests, including concern that suicidal patients might be clinically
depressed, that vulnerable populations of patients might suffer pressure or
discrimination from family members and medical personnel, and that allowing
physician-assisted suicide might lead to the practice of involuntary euthanasia. In
part, the court seemed to rest its decision on the belief that legalization of
physician-assisted suicide was made unnecessary by the fact that adequate
palliation of suffering was available to terminally ill patients, and the court
seemed to give legal sanction to practices such as “terminal sedation”
(medicating suffering patients into unconsciousness, after which artificial nutrition
hydration might be terminated) and use of Catholic doctrine regarding the
       Bioethics and Law in the United States: A Legal Process Perspective       119



principle of “double effect” to justify injecting painkillers in amounts high enough
to hasten the death of suffering patients so long as the intent of the doctor is
merely to suppress pain.

5. Tensions and Dangers in the Current Doctrine
The reasoning of the decisions dealing with physician-assisted suicide do not
bear close scrutiny. Under current law, positive acts, like switching off a
ventilator, are treated as mere “omissions to act.” Physicians’ acts in hastening
death with pain medication are considered not to be acts of homicide so long as
the physician who prescribes the medication is thinking (while prescribing) that
he or she is primarily trying to suppress pain and only incidentally shortening life.
These conceptual oddities are defended as providing “bright line” distinctions
between what is forbidden and what is permitted in ending the lives of terminally
ill patients. But, there is little evidence that they work in practice. Even opponents
of physician-assisted suicide admit the difficulty physicians presently have in
understanding and applying current criteria for deciding what is lawful and what
is not in hastening the death of patients. 54 Moreover, experience over the years
since Quinlan shows that grabbing at bright-line distinctions doesn’t keep us
from sliding down slippery slopes. Quinlan’s recognition of the right of a patient
in a permanent vegetative state to refuse (by proxy) an indefinite existence on a
ventilator, for example, seems to be on the verge of becoming today’s right of
any competent patient to hasten death by refusing to eat or to drink. 55 Advocates
of a bright-line distinction are continually forced to look for new stopping points.
Yale Kamisar, who used to argue that respect for human life would be
unalterably undermined if laws regarding homicide and assisted suicide were
interpreted to allow patients to refuse life-prolonging treatment, now argues only
against allowing exceptions for physician-assisted suicide and active
euthanasia. 56

    Attempting to cling to bright-line distinctions does not seem to offer us much
protection, and it comes at significant cost. Denying physician-assisted suicide as
an option to terminally ill patients means enforced suffering for many patients. If
hastening of death is available only to those who can obtain it through refusal of
life-prolonging treatment, such as cardiopulmonary resuscitation or artificial
ventilation, then patients who do not need such treatment are required to soldier
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on. Opponents of physician-assisted suicide warn that the price of too much
compassion for a particular suffering, terminally ill patient may be abuse of other
patients and a general undermining of respect for human life. These seem to be
empirical claims-appeals to laws of cause and effect. However, it is sometimes
hard to know exactly what is being predicted. That doctors or relatives will not
fully understand how to use the criteria for determining when it is all right, and
when not, to assist a suffering patient to end his life? That they will make
mistakes in determining the relevant facts? That they will, cheat (out of self-
interest, on the basis of prejudice, and the like)? Or is it a more global claim that
the bonds of civilization will be generally cast aside once our society no longer
enshrines as an absolute principle the sanctity of human life? Whatever the
precise import of the claims, they are serious and deserve to be taken seriously.
They were, of course, taken seriously by the US courts that gradually fashioned
what has become the right to refuse life-prolonging treatment. At each stage, the
courts recognized that respect for the rights of individual suffering patients
required more than merely giving in to fear of the unknown. Taking tentative
steps, the courts promulgated substantive standards and procedural protections
that were designed to mitigate the risk of slippery slope problems while freeing
palliative care practitioners to act with greater respect for patient autonomy and
increased compassion for the plight of the terminally ill.

    Would legalizing physician-assisted suicide make the risks any greater or
more intractable? The patient who is considering a hastened death by refusal of
life support is no less vulnerable to depression, coercion, prejudice, financial
pressure, ineffective communication, mental incompetence, failure of adequate
palliative care, impatience of medical personnel, or mistaken prognosis or
diagnosis than the patient who is considering a hastened death by physician-
assisted suicide. Indeed, as to some of these risks, legalization of refusal of
treatment would seem more dangerous than legalization of physician-assisted
suicide. Is a vulnerable patient more likely to succumb to a request that she
commit suicide or to the statement, “You know, Mrs. Jones, maybe we’ve put you
through enough. Maybe it’s time to think of giving up?” Are impatient or
prejudiced medical personnel more likely to be tempted to cut financial and
emotional costs by means of physician-assisted suicide or by terminating
       Bioethics and Law in the United States: A Legal Process Perspective      121



life-prolonging treatment that they can claim has become “medically
inappropriate?” Ironically, there may be less slippery-slope basis for denying
patients the option of physician-assisted suicide than for denying them the right
to refuse treatment. At the very least, there is no more.

    Despite the illegality of physician-assisted suicide and euthanasia, many
American health care professionals admit to engaging in one or the other
practice when they feel circumstances require it. Although the American Medical
Association takes a public stand against physician-assisted suicide, 57 it seems
opposed only to its legalization, not to its practice. Despite a number of articles
reporting fairly widespread practice of physician-assisted suicide-some of them
published in the pages of its own journal 58 – the association has not taken steps
to find out who these physicians are in order to have them disciplined Indeed, it
has not even expressed shock to find that the practice is going on. Rather than
being concerned with protecting society and patients from the evils of assisted
suicide, the American Medical Association appears concerned to protect its
members from the evils of legalization-the bad public relations or increased legal
oversight that might result from an admission that doctors sometimes take
positive steps to terminate the lives of suffering patients. Moreover, mercy killings
by family members are regularly reported in the American press; many more
most likely go unreported and undetected. Prosecutions are often dropped,
grand juries do not indict, and trial juries acquit. When there are convictions,
they are usually followed by light sentences. Overall, mercy killings receive
increasingly lenient treatment. Judges and prosecutors express decreased
willingness to pursue such cases because they view them more compassionately
than they previously did and because of “lack of evidence, uncooperative family
members, and juries’ reluctance to convict defendants.” 59

    Maintaining the present legal regime unduly heightens the risk of deadly
mistakes and abuse in the treatment of terminally ill patients. In the face of
increasing sympathy for the plight of suffering patients, the legal system largely
looks the other way when physicians – and even family members – assist in
suicide. Of course, persons providing assistance have to keep in mind that there
is always the chance that they could be caught and punished, and some argue
that the threat of punishment provides a check against abuse sufficient to ensure
that assistance in suicide and euthanasia will be employed in only the most
122                    PHYSICIAN ASSISTED EUTHANASIA



compelling and meritorious cases. In the 1970s some commentators similarly
argued that the threat of criminal punishment was enough to regulate decisions
to withdraw life-prolonging treatment from terminally ill patients. 60 However,
American medicine has wisely abandoned the “slow codes” and secret do not
resuscitate orders of days gone by in favor of open procedures for permitting
patients to die without undergoing last-ditch efforts at resuscitation. Post hoc
criminal review is a very rough tool for regulating such sensitive decisions –
especially when both the life of the patient and the freedom and reputation of the
actor are at stake. Criminal review comes too late to rectify errors and at a time
when patients can no longer be interviewed as to whether steps were taken on
the basis of their competent, informed, and voluntary consent. Leaving regulation
to the possibility of post hoc criminal review also discourages honest
communication among health care professionals and between professionals and
their patients. 61 It inhibits helpful professional consultations and the development
of medical protocols. Fear of open discussion creates the possibility that
physician’s orders or patient’s wishes will be misread. 62 Making matters worse,
the chilling effect of post hoc criminal review extends beyond the realm of
technically illegal practices such as physician-assisted suicide. Among other
things, physicians’ fear of appearing after the fact to have intentionally hastened
a patient’s death with morphine is a leading cause of undertreatment of pain in
terminally ill patients. 63

    The risk of deadly mistakes and abuse in the treatment of terminally ill
patients is exacerbated in yet another way by the current regime. In attempting to
maintain a bright-line distinction between physician-assisted suicide and refusal
of life-prolonging treatment, the regime does not treat decisions opting for the
latter as seriously as it should. Decisions like that in the Brophy case – to refuse
treatment because life is no longer worth living – raise the same issues of patient
autonomy and compassion toward suffering patients that are raised by
physician-assisted suicide, and they face all the same risks of abuse and mistake.
Yet the present regime categorizes them as mere determinations to “let nature
take its course.”

6. Statutory Responses to the Situation
The five justices who wrote individual opinions in Glucksberg all made clear that
they were leaving the door open for a future case that might convince them that
       Bioethics and Law in the United States: A Legal Process Perspective      123



physician-assisted suicide should be constitutionally protected. Justices
O’Connor, Ginsburg, and Breyer suggested that such a case might be one that
established the unavailability of adequate treatment for palliation of the pain and
suffering of the terminally ill. Justices Stevens and Souter argued more generally
that new facts of other sorts relevant to the balancing of individual rights and
state interests might lead them to reach a different result. Although Chief Justice
Rehnquist responded to these opinions in a footnote 64 that suggested it was
possible that future facts could lead to a different result in specific cases, he
concluded his opinion for the Court by saying: “There is no reason to think the
democratic process will not strike the proper balance between the interests of
terminally ill, mentally competent individuals who would seek to end their
suffering and the state’s interests in protecting those who might seek to end life
mistakenly or under pressure. As the Court recognizes, states are presently
undertaking extensive and serious evaluation of physician-assisted suicide and
other related issues. In such circumstances, ‘the ... challenging task of crafting
appropriate procedures for safeguarding ... liberty interests is entrusted to the
“laboratory” of the states in the first instance.’” 65

    The democratic process in the United States has, in fact, shown some slow
progress in protecting the rights of terminally ill, mentally competent patients. But
it has been more obviously the arena for a hard-fought ideological battle in
which there have been steps backward as well as forward. Public opinion in the
United States is increasingly favorable to allowing terminally ill patients the right
to a physician-hastened death. In 1947, 54 percent of respondents to a Gallup
poll answered “no” when asked, “When a person has a disease that cannot be
cured, do you think doctors should be allowed by law to end a patient’s life by
some painless means if the patient and his family request it?” Another 9 percent
said “don’t know” and only 37 percent said “yes.” 66 However, by 1973, these
percentages were nearly reversed. When asked the same question by Gallup in
that year, 53 percent of respondents said “yes,” 7 percent were undecided, and
only 34 percent were opposed. 67 Surveys conducted between 1988 and 1993
showed a 15 percent gain in support for death with dignity laws. In 1988, 58
percent of respondents answered “yes” to a Roper poll that asked, “When a
person has a painful and distressing terminal disease, do you think doctors
should... be allowed by law to end the patient’s life if there is no hope of
recovery and the patient requests it?” Only 27 percent of those polled said “no”
124                     PHYSICIAN ASSISTED EUTHANASIA



and 14 percent were undecided. 68 By 1990, a Gallup poll produced a 65
percent favorable response. 69 In 1993, a Harris poll recorded 73 percent of
respondents answering “yes.” 70 And in 1996, a Gallup poll reported 75
percent. 71 Nonetheless, because of strong and well-financed campaigns fought
largely by religious groups opposed to legalization, the legislative process has
shown itself slow to respond to public opinion.

     In 1991, proponents of physician-hastened dying in the State of Washington
bypassed their state legislature and went directly to the voters with an initiative
proposition that would have legalized euthanasia by lethal injection. The
proposed law lost by a vote of 46 to 54 percent. In the next year, a similar
initiative proposal was put to the voters in California. In a battle which was hard
fought and heavily financed, the proposal lost by the same margin. However,
in 1994, voters in Oregon were offered an initiative proposition which proposed
legalizing only physician-asssisted suicide and expressly prohibiting “lethal
injection, mercy killing [and] active euthanasia.” 72 Known as the “Oregon Death
with Dignity Act,” the law was passed by a margin of 51 to 49 percent.
Opponents of the law continued their battle against it, first by obtaining an
injunction in federal court 73 and, then, while the injunction held up the operation
of the law, by arranging to put a repeal question before the voters in the 1997
election. In February of 1997, the injunction was lifted by the Court of Appeals
for the Ninth Circuit, 74 and, at the November election, the repealer was defeated
by a vote of 60 to 40 percent. Since 1997, the Oregon Death with Dignity Act
has operated without any of the dire consequences or abuses that had been
predicted by its opponents. By the end of the first year, even the strongest
opponents of the act admitted that it was working in exemplary fashion. The
head of the Oregon Hospice Association, which had opposed the law,
acknowledged that the act was “giving Oregonians one more option at the end
of life. It’s just one of many choices.” 75 A Catholic priest in charge of health care
ethics for Oregon’s Catholic hospital network said: “It’s not the harbinger of
destruction that people thought it was going to be.... We’d rather people didn’t
choose it, but it challenges us to provide better care so they won’t choose it.” 76

   The act permits terminally ill, adult Oregon patients to obtain a lethal
prescription from a participating physician only so long as (1) the physician and
a consulting physician confirm the patient’s diagnosis and the fact that he is
       Bioethics and Law in the United States: A Legal Process Perspective      125



terminally ill, (2) the physician and a consulting physician determine that the
patient is capable of competently making the request and that the patient’s
judgment is not impaired by depression or some other psychiatric or
psychological disorder (if there is doubt, the patient must be referred to
psychiatrist or psychologist for counseling), and (3) the physician informs the
patient of all feasible alternatives to assistance in dying, such as pain control and
hospice care. The patient must make a request in writing and make two oral
requests at least 15 days apart. All prescriptions written under the act must be
reported to the Oregon Health Division. Each year, the Health Division must
report statistics in order to monitor the act’s operation. In February 1999, the
Oregon Health Division reported that, in the first year under the act, 23
terminally ill patients had been prescribed lethal medication, 15 had died after
taking the medication, 6 had died from underlying illnesses, and two were still
alive. Comparison of the 15 cases with a selected group of control patients
strongly suggested that “sex, race, urban or rural residence, level of education,
health insurance coverage, and hospice enrollment” were not factors in whether
patients received physician assistance in dying. Ten of the 15 were under hospice
care at the time of death, and three of the others refused it. Only one patient
gave “inadequate” pain control as a reason for requesting aid in dying. The
predominant reasons given were “loss of autonomy due to illness” and “loss of
control of bodily functions.” 77 The Oregon Health Division has continued to
publish annual reports. 78 Over the first six years of the acts operation, there was
a significant increase in prescriptions issued (67 in 2003) and patients using
physician-assisted suicide (42 in 2003). But in the last three years, the numbers
have held steady or decreased 79 and the Health Division characterizes the
numbers as still very small compared to the average 31,000 Oregon deaths
every year. Most important, there is still no suggestion that opponents fears of
abuse have been realized in any way.

    At present, Oregon remains the only American state where physician-assisted
suicide is legal. A Michigan attempt at passing an initiative, very quickly cobbled
together after the success in Oregon, was soundly defeated at the polls in 1998.
A better organized initiative effort in Maine in 2000 was also defeated, but by a
margin of only 49 to 51 percent. In 2002, Hawaii came close to being the first
126                    PHYSICIAN ASSISTED EUTHANASIA



state to have physician-assisted suicide legalized by a state legislature rather than
by popular initiative process. As this is written, legalization efforts, through
legislation or the initiative process are being mounted and planned in several
states.

7. Current Political Efforts to Undo Protection of the “Right to
Die”
Frustrated in their efforts to undo the Oregon experiment in that state’s
legislature and the federal courts, opponents of legalization of physician-assisted
suicide were forced to resort to the national legislature and executive branch.
In 1998, US Congressman Henry Hyde proposed legislation (“The Lethal Drug
Abuse Prevention Act”) 80 that would have amended the federal Controlled
Substances Act to remove Drug Enforcement Agency (DBA) prescription authority
from any physician who “has intentionally dispensed or distributed a controlled
substance with a purpose of causing, or assisting in causing, the suicide or
euthanasia of any individual.” This would have denied any Oregon physician
who prescribed a controlled substance under the Death with Dignity Act the right
to prescribe controlled substances for any purpose. The bill was never passed
into law, in great part because of opposition from the American medical
community which feared putting the federal government in charge of deciding
whether physicians who prescribed pain medication for dying patients were
doing it merely to control pain or also to shorten life. For similar reasons, a
modified version of the bill, called the “Pain Relief Promotion Act” 81 and
proposed in the Congress in 1999, was never enacted into law. In the face of
those legislative defeats, newly-elected President Bush’s Attorney General, John
Ashcroft, issued a directive that made it unnecessary to amend the Controlled
Substances Act. On November 6, 2001, he advised the American medical
community that the Department of Justice would interpret the act as already
prohibiting use of controlled substances for physician-assisted suicide on the
ground that assisting suicide was not a “legitimate medical purpose” within the
meaning of the statute and related regulations. 82 However, the Attorney
General’s directive never achieved its intended effect. Immediately challenged in
federal court in Oregon on constitutional and statutory grounds, the directive’s
operation was suspended by the issuance of an injunction 83 which was affirmed
in May of 2004 by the US Court of Appeals for the Ninth Circuit. 84 On
       Bioethics and Law in the United States: A Legal Process Perspective      127



January 17, 2006, the United States Supreme Court put a final end to Ashcroft’s
end run around the legislature, holding (by a 6 to 3 vote), that the Attorney
General’s directive went beyond the authority granted him by Congress under
the Controlled Substances Act. 85

     In the national effort to undo the progress made in the “right to die”
movement over the last thirty years, reactionary forces have appealed to the
legislative and executive branches in the states as well. Ironically, one of the most
prominent recent instances of such an effort is reminiscent of Quinlan – the case
where the movement all began. Like Karen Quinlan, Terri Schiavo was a woman
whose continuance on life support had become the subject of highly-publicized
litigation. In 1990, when she was 26 years old and residing in Florida with her
husband, Mrs. Schiavo suffered a cardiac arrest from what doctors believe was a
potassium imbalance, and she was ultimately diagnosed as being in a
permanent vegetative state. She had never executed a living will or health care
proxy, but Florida law provided that her husband should serve as her proxy
decision-maker, and he reported that conversations with her made clear to him
that she would prefer to have artificial nutrition and hydration removed and be
permitted to die a natural death. Mrs. Schiavo’s parents, Robert and Mary
Schindler, publicly disputed both the diagnosis of permanent vegetative state and
the conclusion that their daughter would prefer to be dead. The matter was then
taken to court for resolution of the factual disputes. On four separate occasions,
the courts of Florida had ruled against the parents. 86 As the Schindlers lost in the
courts, however, they gained national publicity for their cause and drew the
support of various right to life groups who, among other things, promoted a
massive campaign of protest letter writing to the Florida state legislature and
Florida Governor Jeb Bush. In response to the letters, the Florida legislature, on
October 21, 2003, took the unprecedented step of passing a law that authorized
Governor Bush to issue a stay of the court orders, and Governor Bush
immediately granted the stay. Mr. Schiavo then filed suit in the courts of Florida
to have the statute and Governor Bush’s action declared a violation of both the
Florida and US constitutions. On May 5, 2004, the Florida circuit court held the
stay to be unconstitutional. 87 On September 23, that decision was unanimously
affirmed by the Supreme Court of Florida in an opinion that reproved Governor
Bush and the Florida legislature for violating principles of separation of powers
by claiming the ability to stay a judicial proceeding. 88
128                    PHYSICIAN ASSISTED EUTHANASIA



    The Schindlers and their right to life allies then trained their efforts on the
federal government. First, they attempted an appeal to the United States
Supreme Court from the decision of the Florida court. However, on January
24, 2005, the high. Court refused review. The Florida decisions had been based
upon state law and the state constitution, and they presented no proper federal
question to be reviewed by the Court. Thereafter, the Schindlers brought political
power to bear on the US Congress and the President of the United States. On
March 8, 2005, a Republican representative from Florida, David Weldon,
introduced legislation aimed at continuing the artificial feeding of Mrs. Schiavo.
After two weeks of highly publicized debate in both houses of the Congress,
including an extraordinary and pointed Senate session on Palm Sunday, the
Congress passed and the President signed, on March 21, 89 a “private bill” that
purported to authorize the Federal District Court for the Middle District of Florida
to hear the Schindler claims that had already been rejected by the US Supreme
Court and to require the court to issue an order that the artificial feeding be
continued. When suit was filed in the designated court the next day, the judge
refused to issue the requested order to continue Mrs. Schiavo’s feeding, finding
there was no valid federal legal basis for doing so. Over the following weeks, the
Schindlers brought repeated suits and appeals to the state courts and federal
courts in Florida, to the United States Court of Appeals for the 11th Circuit (which
includes Florida) and the to the Supreme Court of the United States. All of these
efforts were held to be without merit. On March 31, 2005, Mrs. Schiavo finally
died. An autopsy was ordered, and, on May 17, the Medical Examiner issued a
report concluding that Mrs. Schiavo’s condition was consistent the diagnosis that
she was in a permanent vegetative state and that, in any event, the damage to
her brain was irreversible: “No amount of therapy or treatment would have
regenerated the massive loss of neurons.” 90

    In the end, the only winners coming out of the Schiavo affair appear to have
been the courts. As a result of performing in a fashion that suggested they
remained steadfastly true to the law while being placed under enormous political
pressure, the judges involved seem to have bolstered the reputation of the
judiciary. The US Congress and President did not fare so well. A Harris Poll
released on April 15, 2005 reported that 58% of the people polled disapproved
of how the Congress handled the case and 51% disapproved of how President
Bush handled it. 91 The Congress’ involvement of the Schiavo affair was made an
       Bioethics and Law in the United States: A Legal Process Perspective         129



issue in the November 2006 midterm elections, and it may well have played a
role in the Democrats winning majorities in both the House and the Senate.
However, national right to life organizations have exploited the publicity
surrounding the case as a basis for having the legislatures of Florida, Alabama,
and Georgia consider legislation that would restrict the right to refuse life-
prolonging treatment within the narrowest constitutional bounds consistent with
the US Supreme Court’s decisions in Cruzan, Glucksberg, and Quill. 92

8. Conclusion
As with most areas of American law, that dealing with the “right to die” is in a
state of flux. There are a number of lines of tension at work in this development.
The most obvious are ideological ones that currently permeate American politics
in which traditional constitutional and common law principles of individual liberty
are regularly placed in conflict with pressures toward religious and moral
conformity. For a variety of reasons, the more political branches of government
in the United States seem at present to be particularly vulnerable to the pressures
of religious and moral conformism. However, American courts have, for the most
part, continued to play their traditional role of moderating extreme influences of
the moment and protecting traditions of individual liberty in many areas of the
law, including that regarding “the right to die.” There are no signs that this
tension will be significantly reduced in the near future.

Endnotes
1   For a broader and more detailed, although somewhat outdated, treatment of this
    same subject, see Charles H. Baron, DROIT CONSTITUTIONAL ET BIOÉTHLQUE:
    L’EXPERIENCE AMÉRICAINE (Economica 1997).
2   497 US 261 (1990).
3   Oregon Death with Dignity Act.
4   410 US 113(1973).
5   355 A.2d 647 (N.J. 1976).
6   Charles H. Baron, Normativité et Biomédecine aux Etats-Unis, in Brigitte Feuillet-Le
    Mintier (ed.), NORMATTVITÉ ET BIOMÉDECINE at 13, (2003).
7   Quinlan, 355 A.2d at 661-62.
8   Id. at 663.
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9     Id. at 664.
10    See Griswold v. Connecticut, 381 US 479 (1965).
11    370 N.E.2d 417 (Mass. 1977).
12    Id. at 435.
13    Saikewicz, 370 N.E.2d at 425-26.
14    376 N.E.2d 1232 (Mass. App. Ct. 1978).
15    Id. at 1233 n.2.
16    399 N.E.2d 452 (Mass. 1979).
17    405 N.E.2d 115 (Mass. 1980).
18    Myers, 399 N.E.2d at 457.
19    497 N.E.2d 626 (Mass. 1986).
20    486 A.2d 1209 (N.J. 1985).
21    Id. at 1217.
22    Id. at 1230.
23    Id. at 1226.
24    Id.
25    Cruzan v. Director Missouri Dep’t of Public Health, 497 US 261 (1990). The court’s
      narrow holding in the case was that Missouri had not violated the US Constitution by
      requiring proof of the wishes of a PVS patient at a level of “clear and convincing
      evidence” before artificial nutrition and hydration could be removed.
26    529 A.2d 404 (N.J. 1987).
27    Id. at 1153. For a detailed discussion of the legal developments in the United States
      regarding Jehovah’s Witnesses and blood transfusions, see Charles H. Baron, Blood
      Transfusions. Jehovah’s Witnesses and the American Patients’ Rights Movement. 3
      JOURNAL OF CHINESE AND COMPARATIVE LAW 19 (2000).

28    Conroy, 486 A.2d at 1220-21 (footnote omitted).
29    529 A. 2d 419 (N.J. 1987).
30    Id. at 426.
31    Id.
32    Id.
33    529 A. 2d 404 (N.J. 1987).
           Bioethics and Law in the United States: A Legal Process Perspective      131




34   Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 27 (NJ. 1992) (Pollock, J.
     concurring).
35   See, for example, Norwood Hospital v. Munoz, 564 N.E.2d 1017 (Mass. 1991).
36   Advance Directives for Health Care, N.J. STAT. ANN. §§ 26: 2H-53 to -78 (West
     1996).
37   HEALTH CARE PROXIES, MASS. GEN. LAWS ch. 201 D (1996).
38   Alan Meisel, THE RIGHT To DIE § 11.12 (1989 & 1994 supp. No. 2).
39   Choice in Dying, 1991 REFUSAL OF TREATMENT LEGISLATION, Intro - 2 (1994 update).
40   Id.
41   553 A.2d 596 (Conn. 1989).
42   CONN. GEN. STAT. ANN. §§ 19a-570 to -580d (West. Supp. 1977).
43   Id. at 642-643.
44   497 US 261, 292 (1990) (Scalia, J, concurring).
45   697 So.2d 97 (Fla. 1997).
46   New York State Task Force on Life & the Law, When Death is Sought: Assisted
     Suicide and Euthanasia in the Medical Context (1994).
47   31 P.3d 88 (Alaska 2001).
48   Id. at 95.
49   639 N.W.2d 291 (Mich. App. 2001).
50   Id. at 306.
51   521 US 702 (1997).
52   521 US 793 (1997).
53   Id. at 719.
54   See, for example, Katherine Foley, “Compassionate Care, Not Assisted Suicide,” in
     The Case against Assisted Suicide: For the Right to End-of-Life Care, edited by
     Katherine Foley and Herbert Hendin (Baltimore: Johns Hopkins University
     Press 2002), 293-309, 304.
55   See Rob McStay, “Terminal Sedation, Palliative Care for Intractable Pain, Post
     Glucksberg and Quill,” 29 American Journal of Law & Medicine 45 (2003).
56   Compare Yale Kamisar, “Some Non-religious Views against Proposed ‘Mercy-
     Killing’ Legislation,” 42 Minnesota Law Review 969, 977 (1958) with Yale Kamisar,
     “Rise and Fall of the ‘Right’ to Assisted Suicide,” in The Case against Assisted
     Suicide: For the Right to End-of-Life Care, edited by Katherine Foley and Herbert
     Hendin (Baltimore: Johns Hopkins University Press 2002), 72-74.
132                       PHYSICIAN ASSISTED EUTHANASIA




57    P.R. Muskin, “The Request to Die: Role for a Psychodynamic Perspective on
      Physician-Assisted Suicide, 279 Journal of the American Medical Association 2099
      (1997).
58    A.L. Back, J.I. Wallace, H.E. Starks, and R.A. Pearlman, “Physician-Assisted Suicide
      and Euthanasia in Washington State: Patient Requests and Physician Responses,”
      275 Journal of the American Medical Association 919 (1996); S.H. Miles,
      “Physicians and Their Patients’ Suicides,” 271 Journal of the American Medical
      Association 1786 (1994).
59    S.P. Freedberg, “Murder or Mercy?” St. Petersburg (Fla.) Times, January 31, 1999,
      A1.
60    See, for example, R.A. Burt, “Conversations with Silent Patients,” in Genetics and The
      Law II edited by A. Milunsky and G.J. Annas (New York: Plenum, 1980) at 159.
61    See, Back, et. al., footnote 59, above.
62    D.A. Asch, “The Role of Critical Care Nurses in Euthanasia and Assisted Suicide,”
      334 New England Journal of Medicine 1374, 1376 (1996).
63    Katherine Foley, “Compassionate Care, Not Assisted Suicide”, footnote 55, above.
64    521 US 702, 734 n.24.
65    Id. 735-36.
66    Gallup Poll, June 6-11, 1947, Gallup Organization.
67    Gallup Poll, July 6, 1973, Gallup Organization.
68    Roper Organization Poll, February 1988, Roper Center for Public Opinion Research.
69    Gallup Poll, November, 1990, Gallup Organization.
70    Harris Poll, November, 1993, Harris Interactive.
71    Gallup Poll, April, 1996, Gallup Organization.
72    Oregon Death with Dignity Act, sec. 127.805.
73    Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995).
74    Lee v. Oregon, 107 F.3d 1382 (9th Cir., Feb 27, 1997).
75    Michael Vitez, In Oregon, Some Find Comfort in Assisted-suicide Option,
      Philadelphia Inquirer, Jan. 19, 1999, at A1.
76    Id.
77    Chin A. E., Hedberg K., Higginson G. K., Fleming D. W., Legalized Physician-
      assisted Suicide in Oregon – The First Year’s Experience, 340 New England Journal
      of Medicine 577 (1999).
        Bioethics and Law in the United States: A Legal Process Perspective           133




78   See Sullivan A. D., Hedberg K., Fleming D. W., Legalized Physician-assisted Suicide
     in Oregon — The Second Year, N Engl J Med 2000; 342:598-604, Feb 24,2000.
     Special Reports; Sullivan A. D., Hedberg K., Hopkins D., Legalized Physician-Assisted
     Suicide in Oregon, 1998-2000, N Engl J Med 2001; 344:605-607, Feb 22,2001.
     Correspondence; Hedberg K., Hopkins D., Southwick K., Legalized Physician-
     Assisted Suicide in Oregon, 2001, N Engl J Med 2002; 346:450-452, Feb 7,2002.
     Correspondence; Hedberg K., Hopkins D., Kohn M., Five Years of Legal Physician-
     Assisted Suicide in Oregon, N Engl J Med 2003; 348:961-4, Mar 6,2003.
     Correspondence; and Richard Leman, MD & David Hopkins, MS, “Sixth Annual
     Report on Oregon’s Death with Dignity Act”, Oregon Department of Human
     Services, Office of Disease Prevention and Epidemiology, March 10, 2004. Available
     at: http://www.dhs.state.or.us/publichealth/chs/pas/ar-index.cfm.
79   In 2006, 65 prescriptions were filled, 35 patients took the medications, 19 died of
     their underlying disease, and 11 were alive at the end of the year. Since the law was
     passed in 1997, 292 patients have died under the terms of the law. Summary of
     Oregon’s Death with Dignity Act — 2006, Death With Dignity National Center,
     http://egov.oregon.gov/DHS/ph/pas/docs/year9.pdf.
80   HR 4006, 105th Cong., 2d Sess. (1998).
81   HR 2260, 106th Cong., 1st Sess. (1999).
82   Fed. Reg. 56, 607 (Nov. 9, 2001).
83   Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D. Or. 2002).
84   368 F.3d 1118 (9th Cir.(Or.) May 26, 2004).
85   Gonzales v. Oregon, 546 US 243 (2006).
86   See Schindler v. Schiavo, 780 So.2d 176 (Fla. 2d DCA 2001); Schindler v. Schiavo,
     792 So.2d 551 (Fla. 2d DCA 2001); Schindler v. Schiavo, 800 So.2d 640 (Fla. 2d
     DCA 2001); and Schindler v. Schiavo, 851 So.2d 182 (Fla. 2d DCA 2003).
87   Schiavo v. Bush, 2004 WL 980028 (Fla.Cir.Ct, May 5, 2004).
88   Bush v. Schiavo, 885 So.2d 321 (2004).
89   S.686, An act for the relief of the parents of Theresa Marie Schiavo.
90   Medical Examiner, District Six, Pasco & Pinellas Counties, Florida, Report of Autopsy,
     Theresa Schiavo, Case No. 5050439 (May 17, 2005).
91   Harris Poll, April, 2005, Harris Interactive.
92   See, for example, Alabama House Bill 104 (2004).
                                                6
       Intractable Pain, Palliative
     Management and the Principle of
             Medical Futility
                                       George P. Smith, II*

        This monograph examines the issue of existential or
        psychological pain and how, heretofore, it has been dealt with
        by hospice or palliative care – concluding, as such, that
        terminal or deep sedation should be embraced more widely
        within the Ethic of Adjusted Care as a part of the compassionate
        management of the dying.
        The first element of palliative treatment in hospice care is
        symptom control – pharmacological and psychological – in the
        dying patient. Today, pain relief – be it physical, mental, social
        or spiritual – is being recognized more and more as a
        fundamental human right. If voluntary refusals by competent
        dying patients of hydration and nutrition are tolerated routinely
        by both the legal and medical professions, as well as society at
        large – even though these actions hasten death – then, surely,
        under the Doctrine of Mercy and/or Principle of Beneficence,
        assistance in relieving chronic, irremediable pain should be
        allowed when requested. The Principle of Medical Futility,
*   Professor Catholic University Law School, Washington. E-mail: SMITHG@law.edu
© 2007 George P. Smith II. This article derives from a paper presented at the Thirtieth Congress of the
International Academy of Law and Mental Health, Padova, Italy, June, 2007.
Source: http://medicalfutility.blogspot.com/
    Intractable Pain, Palliative Management and the Principle of Medical Futility135



      supplemented by the Doctrine of Double Effect, can serve as a
      decisive tool for both physicians and judges when called upon to
      evaluate end-of-life care. If a patient is in a futile condition,
      efficacious treatment should be given even if the secondary
      effect of that assistance means hastening life’s cruel and
      inhumane ending. Terminal sedation is just that: recognized
      treatment. It should not be confused, taxonomically, by
      denominating it as euthanasia, murder, or assisted suicide.
      Rather, it is but an act of self-determination.
      The time has come to step outside the mired and endless moral
      argumentation over the “slippery slope consequence” of
      validating a right, however exercised, to a good (painless) death
      and acknowledge – decisively – that standards of common
      decency, compassion and mercy demand nothing less.



I. Palliative Management
One of the dominating issues in contemporary health care management is
end-of-life care – this, simply because everyone dies. 1 While death is, indeed,
but an inevitable aspect of the human condition, dying badly is not. As a social
problem, dying badly, then, requires a social solution. 2 Through hospice care
and palliative management, bold – yet compassionate – steps may be taken to
resolve this problem by the advancement of epidemiologically well-grounded
approaches to end of life care systems. 3 These systems seek to balance the “new
epidemiology of dying” 4 which demands virtually automatic heroic procedures to
be followed with oftentimes confused family responsibilities to essentially “micro-
manage recurring series of life-threatening complications within a progressively
degenerative and incurable chronic disease.” 5

   What is needed at the end of life is a level of confidence that professional
care will be provided by care givers who are competent and kind and bring
comfort and show respect through the entire dying process. 6
136                    PHYSICIAN ASSISTED EUTHANASIA



    The first element of palliative treatment in hospice care is symptom control,
pharmacological and psychological, in the dying patient. Palliative care, then,
seeks to relieve the experience of total pain – physical, mental, social and
spiritual – for patients

    where care or prolongation of life are no longer attainable goals. 7 Once
physical pain is controlled or managed, attention is given over to psychological,
social and spiritual care. 8 By palliating the whole person, then, the phenomenon
of existential pain is addressed and the core value of palliative care – quality of
life – is revealed. 9

Mercy, Chanty, Compassion and Dignity
Mercy is seen as a complex cluster of phenomena – formulated obscurely and
imposed imperfectly. 10 Among the ten modes of mercy which have been
classified, 11 compassionate mercy, for purposes of this paper, is the cornerstone
for justifying end of life assistance in terminal illness. It becomes, as well, a
fortifying template when the Principle of Continuing Adjusted Care to Medical
Needs is recognized as controlling. When, for example, a patient is physically
incapable of taking his own life or, where the process of dying has gone awry,
the physician must be allowed to intercede; and ethics justification is validated
when compassionate mercy is read into the Principle of Adjusted Care. 12
Assistance in ending a terminal medical condition is seen, rightly then, as but a
supplement to Principle of Adjusted Care and not as an extension of it. 13

   Defined as an acknowledgment of another’s suffering which prompts a
response to assist in alleviating the suffering, compassion is often regarded as
the motivation for subsequent merciful acts. 14 Mercy is oftentimes used
synonymously with compassion or benevolence. 15 Indeed, acts of this nature
have been termed “responsible benevolence.” 16

   For others, charity is seen as the ultimate value in caring for the dying; 17 and
they suggest beneficence and benevolence may combine, properly, to become
“loving charity.” 18 When there is suffering, its elimination or management is
central and can well be seen as trumping the biomedical principles of
autonomy. 19
    Intractable Pain, Palliative Management and the Principle of Medical Futility137



   Acknowledging every person’s intrinsic human dignity might also be seen as
grounds which prompt a response to suffering. 20 Although human dignity should
properly be seen as intrinsic – conferred, as such, by God – and neither capable
of being ‘lost’ nor ‘gained’ by human judgments, 21 its loss is, nevertheless, one
of some nineteen conditions of discomfort and distress which haunt most
individuals as they approach death. 22

   While no universal conception of dignity is to be found, it is better understood
and applied within specific contexts and built, as such, upon two notions of Basic
Dignity and Personal Dignity. 23 The tenets of Basic Dignity are grounded in the
Kantian idea that there is an intrinsic universal worth found in all human beings
deserving of respect. 24 Personal Dignity references particular notions of dignity
within a social and individual context. 25

   Rather     than     grapple     with   taxonomical    subtleties, contemporary
palliative care practitioners refrain from attempting to define dignity altogether
and, instead, subsume concerns about it under quality of life issues which in turn
conduce – essentially – to determining, and then executing, patient wishes and
desires for a dignified death. 26 Stated otherwise, the search in palliative
management is for validation of a human right to “a mercifully easy death.” 27

   The alleviation of existential pain or profound psychological distress at the
end-stage of a terminal illness is nothing more, for many, than but recognition of
a basic human right to a merciful death. Accordingly, in those cases where
medical treatment is deemed futile, terminal sedation should be recognized as
an integral part of symptom control in palliative care.

   At its core, the Principle of Mercy directs that one not only refrain from
causing pain or suffering and – when ethically appropriate as a complement to
the Principle of Adjusted Medical Care – act to relieve it. 28 Under this view of
mercy as an operative principle or normative standard of conduct, the bioethical
principles of non malfeasance and beneficence are synthesized and morph into
mercy. 29

II. Shaping the Issue of Medical Futility
When medical treatment is deemed to be “futile,” it frees the physician from the
moral, medical, and legal duty to provide it. 30 While most reasonable persons
138                     PHYSICIAN ASSISTED EUTHANASIA



agree with this proposition, much disagreement exists as to the definition of futile
treatment and who decides whether a given treatment is futile.

    The Council on Ethical and Judicial Affairs of the American Medical
Association determined in June, 1994, that “physicians are not ethically obliged
to deliver care that, in their professional judgment, will not have a reasonable
chance of benefitting their patients. Patients should not be given treatments
simply because they demand them. Denials of treatment should be justified by
reliance on openly stated ethical principles and acceptable standards of care 31 . . .
not on the concept of ‘futility’ which cannot be meaningfully defined.” 32

    This position can be seen as definitive or merely as a mechanism to validate
the transfer of authority to make ethically charged decisions from patients to
physicians. 33 Is the doctrine of medical futility inexplicable as the AMA Council
has determined, or can it provide a framework for principled medical decisions?
I shall conclude, however, that this doctrine is, indeed, an invaluable construct
for medical decision making.

   Physicians often make these end-of-life decisions without informing the
patient or family. As a result, extraneous factors such as race, wealth, gender,
and age of the patient, as well as judgments on the quality of the patient’s life
and concerns with cost containment, may cloud a physician’s determination to
withhold or withdraw treatment. A clear working definition of futility is needed to
ensure that physicians not only inform patients and their families about the
decision to withdraw or withhold treatment, but also to provide the patients, their
families, and the courts with objective criteria against which they may judge the
medical decision. 34

   The issue of futility sparks the most discussion when the patient is in a
Persistent Vegetative State (PVS) and when the physician directs a Do Not
Resuscitate (DNR) order. 35 A patient diagnosed as being in such a state has no
chance of regaining consciousness or returning to a sapient existence. 36
Similarly, when a patient suffers from severe and irreversible dementia 37 –
meaning that he is unable to initiate any purposeful activity and only accepts
nourishment and bodily care in a helpless, passive state – his condition could be
classified as futile. The definitional scope of futility could also include treatment
for those in a deep, irreversible coma for an extended period of time (i.e., six
    Intractable Pain, Palliative Management and the Principle of Medical Futility139



months to a year), as well as those who are permanently vegetative. 38 The
central point to any determination that medical treatment would be futile should
be an understanding, if not a realization, that terminal illness should not be the
sole and necessary criterion for withholding treatment. For example, many
comatose or barely conscious patients are not terminally ill yet are in such an
irrevocable state of mental and physical deterioration – with no realistic hope of
a qualitative restoration of health – that they should be properly classified as
outside the bounds of treatment. 39

    A DNR is ordered when a physician concludes that it is not worth the effort to
Effect Cardio Pulmonary Resuscitation (CPR) in the event of cardiac or respiratory
arrest. While the law does not prevent a physician from ordering a DNR,
problems arise due to the absence of clear guidelines for making the DNR
decision and the fact that patients and their families are often unaware whether
and why such a decision is made. 40

III. Medical Futility v. Patient Autonomy: A True Battle?
The debate over medical futility has increased over the years with the expansion
of patient autonomy. Thirty-five years ago, there was no need for this debate
because technology had not given physicians the tools to provide many
treatments that are available today and because few patients questioned their
doctors’ orders. As the role of the patient increases in choosing care, so does the
debate surrounding futile care. It might be suggested that futility is the point at
which to draw the line on the advancement of patient autonomy. This is not
necessary, however, because the goals of patient autonomy and cessation of
futile treatment are not inconsistent. Patient autonomy does not convey the right
to demand futile treatment. In effect, offering or administering futile treatment
undermines patient autonomy by raising false expectations of recovery. 41 Patient
autonomy includes the right to be a fully informed participant in every aspect of
the medical decisionmaking process, as well as the right to refuse medically
prescribed lifesaving treatment. 42

    In 1990, in a concurring opinion in the ease of Cruzan et we. v. Dir. Missouri
Dept. of Health et. al, Justice Sandra Day O’Connor of the US Supreme Court
observed that the artificial delivery of food and water should be viewed properly
as medical treatment and – as such – may be rejected under the principle of
liberty found within the Due Process Clause of the Constitution. 43
140                    PHYSICIAN ASSISTED EUTHANASIA



   English Law is unequivocal in allowing a competent person the right to refuse
medical treatment altogether even though such a refusal results in death. 44
Accordingly, patient rights of autonomy or self-determination are abridged, not
when there is a denial of opportunities to make any medical decision, but rather
when there is a denial of an opportunity to make “a rightful medical decision.” 45
Patient autonomy does not give the patient the right to demand futile treatment
because this is not a rightful medical decision. The patient does not have a right
to the treatment because it has been determined that the treatment is not
warranted for persons in his condition. The patient does not have a right to opt
out of the class to which his medical condition relegates him.

    Patient autonomy gives rise to a negative right rather than a positive right –
for, the patient has a right to refuse a given treatment but not a corresponding
right to demand a given treatment. 46 Once it has been determined what is futile,
a patient’s autonomy is not invaded or sacrificed if the physician does not honor
the request for such treatment because patients are simply not entitled to futile
treatment. The physician, by virtue of his training and expertise, is given the right
to determine what treatment alternatives are available to the patient. “No ethical
principle or law has ever required physicians to offer or accede to demands for
treatments that are futile.” 47 Even civil malpractice standards in America do not
require a physician to render useless interventions. Moreover, a physician does
not have a legal duty to act contrary to his conscience. Therefore, because
patient autonomy does not give the patient the right to demand futile treatment,
autonomy is not invaded when the physician withholds treatment on these
grounds. 48

    On the contrary, withholding or withdrawing futile treatment furthers the
goals of the patient autonomy movement because administering futile treatment,
in fact, undermines patient autonomy. Offering treatments known medically to
be futile, erode, if not destroy, the principle of autonomy or self-determination
because use of such intervention invites a level of hope and raises false
expectations of recovery. Indeed, “[s]uch offers send a mixed message, implying
a real choice when none exists.” 49 Deception of this sort distorts the patient’s
perspective and deprives him of the opportunity to make informed decisions.
Thus, the doctrines of futility and patient autonomy share the same goals of
giving the patient reasonable control over his treatment. A patient will have the
    Intractable Pain, Palliative Management and the Principle of Medical Futility141



right to refuse any treatment offered, but that right does not extend so far as to
require the physician to yield to demands for treatments that are futile. By
withholding futile treatment, the physician is showing respect for the patient by
simply being honest about the chances of recovery and the futility of providing a
given treatment.

    Some may contend that a patient or his family has a greater right to demand
that treatment be continued once the physician has begun to treat. The mere fact
that a physician has begun treatment, however, does not obligate him to
continue to administer that treatment once it becomes apparent that it is futile. 50
Patients and their families alike cannot successfully argue for the continuation of
such assistance. 51 Even if a patient and his family could justify such a demand on
a reliance theory, physicians would simply find other reasons for not
administering the treatment in the first place. 52 This would frustrate, rather than
further, the goals of patient autonomy because physicians would be depriving
patients of care to which they are rightly entitled.

IV. The Duty Not to Administer Futile Treatment
Three reasons why physicians should have a duty not to provide futile treatment
may be advanced. 53 It has been argued that if it were an option, rather than a
duty, physicians could use the term “as a subterfuge for rationing, cost
containment, or refusals to treat vulnerable patients.” 54 If each physician was
given the discretion to provide treatment deemed to be futile, patients with the
means – either independent wealth or superior insurance – could bypass the
doctrine of futility by merely changing physicians. This would limit drastically its
effect by relegating it to a device for depriving treatment for those who cannot
afford it.

    It is next argued that since the public looks to the medical profession to set
medical standards, making ad hoc assessments of futility by individual physicians
rather than enforcing objective criteria developed by the medical profession
would be an abdication of professional responsibility. 55 A substantial burden
must be placed on the medical profession to take action in order to preserve its
stature and credibility by mandating uniform treatment for all patients in a given
condition.
142                     PHYSICIAN ASSISTED EUTHANASIA



    Lastly, it is maintained that offering futile care exploits the public’s fear of
death and exaggerates the results that medicine and science can achieve. This
leads to false expectations and inevitable disappointment, which in turn,
undermines the public’s confidence. While these arguments support the
proposition that physicians should have an affirmative duty not to administer
futile treatment, more compelling arguments can be found.

Scientific and Ethical Futility
In America, it is accepted generally that scientifically futile treatment need neither
be offered nor provided a patient who requests it. Put directly, when the medical
result expected by either the patient or his family cannot be achieved, it is termed
scientifically futile. 56 For example, even if a request by a seriously ill cancer
patient is made for use of laetrile drug therapy, it need not be honored by the
attending physician – this, simply because this drug is useless under this
particular circumstance. Similarly, antibiotics need not be prescribed to a child
with a viral illness – this, again, even though the child’s parents request it. The
reason for this position is that, as a matter of science, the antibiotic will be
ineffective in treating that illness. Finally, even though a patient with a cold may
request a CAT scan, the physician may refuse to issue the order. Since there is no
reason to believe that there will be any efficacious connection between what can
be discovered on the scan and the appropriate treatment of the cold, the CAT
scan is inconsequential or futile. 57

    The question becomes more complicated when a patient’s request for
treatment, though not scientifically futile, is – in the opinion of the health care
provider – ethically futile. Care is deemed ethically futile if it will not serve the
underlying interests of the patient.

   One example will suffice. To keep a patient’s body aerated and nourished
when that patient is in a persistent vegetative state, is thought by some providers
to be ethically futile. Under these circumstances, healthcare providers maintain
that it is beyond the scope of medicine to sustain corporeal existence if nothing
qualitatively can be achieved beyond that level of mere existence. And, if
conditions arose where CPR became an option, these same conservative
healthcare providers would deem it ethically futile to perform this procedure
when the object of the intervention would be but to prolong the patient’s life by a
few hours. 58
    Intractable Pain, Palliative Management and the Principle of Medical Futility143



    When conflicts arise in cases of the nature that I have just posited, regarding
the standards for determining ethical or even scientific futility, the best route to
follow in order to keep issues out of the courts, is to refer such cases to Hospital
Ethics Committees where non-binding recommendations can be made and
which, in turn, can assure the certainty of fair, objective judgment that patients
and their families need in critical end of life care. 59

   Futility disputes are inevitably about optimizing end of life care. 60 The
transition from curative to palliative measures requires good lines of
communication between the clinician, patient, and family; and ethics committees
can be a tool for effecting these lines. Ideally, this transition becomes simply the
exchange of curative goals of care for comfort measures. 61 Simply stated, then,
the shared goal is “to reach a mutual understanding about disease trajectory
and what goals of care might be appropriate given the changing medical facts
and patient/family preferences.” 62

Pain Management or Patient Preference
The argument that efforts should always be undertaken to eliminate pain or other
symptoms of human suffering, rather than the person exhibiting them, 63 ignores
completely the principle of autonomy or self-determination. Pain management,
from a communitarian standpoint, may salve the conscience of the health care
provider by forestalling, or perhaps, dispelling the need to even consider
euthanasia – instead, allowing time to take its course passively. From the
competent patient’s standpoint, however, pain management ignores his moral
and legal right – acting for whatever purposes are clear to him – to end his life
with a semblance of dignity.

    While patient pain may be managed effectively today, what occurs when this
is merely palliative and the disease that gave rise to the pain continues its
malignant progression toward terminality? What if, as a consequence of the
reduction in pain, an individual becomes exceedingly debilitated and his overall
quality of functional existence becomes low or even worthless because of the
consequent restrictions or reductions in lifestyle and the utter dependence upon
others for daily life assistance? Are individual patient preferences, recognized as
futile by all reasonably objective medical standards, to be subsumed under a
contrived medical mandate of sanctified purposefulness? 64 Sadly, today there are
144                     PHYSICIAN ASSISTED EUTHANASIA



no well established strategies for evaluating and managing refractory existential
distress. 65 Whose values and preferences, then, should be given priority – the
individual patient’s or those of the medical community?

     In a 1997 United States Supreme Court case, Washington v. Glucksberg, the
Court held that a statutory prohibition in the state of Washington against
“causing” or “aiding” a suicide does not offend the Fourteenth Amendment to
the Federal Constitution either on its face or “as applied to competent, terminally
ill adults who wish to hasten their deaths by obtaining medication prescribed by
their doctors.” 66

   As significant as this holding is, the concurring opinion by Justice Sandra Day
O’Connor has more direct relevance here. For, in this opinion, she states –
unequivocally – that “a patient who is suffering from a terminal illness and who is
experiencing great pain has no legal barriers to obtaining medication, from
qualified physicians, to alleviate that suffering (by palliative care), even to the
point of causing unconsciousness and hastening death.” 67

    In England, while it is recognized as unlawful for a physician to administer
drugs to bring about a patient’s death – even if such action is prompted by the
goal of relieving his suffering, it is also recognized that if – in accordance with
proper medical practice – a physician prescribes drugs to relieve pain not to end
life, no actionable offense will arise. Interestingly, in cases where high qualities of
pain relieving drugs have been given with result death, there have been few
prosecutions. And, in those prosecutions, it is rare for a conviction to be
obtained. 68

   There is a global effort being undertaken presently to advance the notion that
pain relief should be – indeed – recognized as a human right. 69 Defining chronic
pain as persisting or recurring for more than three months, the representatives
from the World Health Organization, the International Association for the Study
of Pain and the European Federation of the International Study of Pain, found
over a third of households in Europe (36%) have chronic pain sufferers and in the
United States, some 43% of all households surveyed report chronic pain. 70
Chronic non-cancer related pain and pain in at-risks groups is of particular
concern. 71
    Intractable Pain, Palliative Management and the Principle of Medical Futility145



    Seen as a basic human right, pain relief – of whatever character or modality –
must be extended logically and with compassion to those with existential pain
when it becomes refractory and cannot be controlled. In such cases when this
extreme type of psychological distress is encountered in the case of terminal
patients, and – despite aggressive efforts to identify a tolerable therapy which
does not compromise consciousness – terminal or deep sedation should be
deemed appropriate as consistent with the Principle of Adjusted Care.

    Some physicians maintain improvements in hospice and palliative care now
result in allowing even the most stricken patients to be helped effectively through
their final days, 72 others maintain between 3% and 10% of the terminally ill
cannot be helped by pain killers. 73 Even though palliative or terminal sedation is
uncommon, 74 it must remain as a medically sound and compassionate response
to refractory pain – be it physical or psychological. The question is thus framed:
Why should an individual within this group be denied the freedom to die with
carefully supervised assistance? 75

    Should the fear of a proverbial “slippery slope” to ward public approval of
active euthanasia be allowed to trump a standard of common dignity and mercy
at the end-stage-of life for the terminally ill? In truth, “the slippery slope is the
human condition.” And, thus, “we are already on it and unable to escape.” 76 “It
is our destiny to struggle along in life, upwards or downwards, with very
uncertain footing. There is no safe plateau of moral security; we are constantly
faced with painful dilemmas ... (with the goal of human moral effort) but to keep
seeing and drawing the line, and struggling to stay above it.” 77

Proportionality
The principle of proportionality is closely related to the principle of medical
futility. Proportionality recognizes that overuse, as well as underuse, of medical
treatment and advanced life extending technologies may create an unreasonable
burden where the harm and suffering inflicted by such a modality of treatment
may be disproportionate to any realistic benefit to be derived from it. When this
happens, it is recognized that there is no obligation to provide specific treatment.

   Proportionality is relatively easy to state and visualize as a cost-benefit theory
where costs are balanced against benefits. In practice, however, seeking to
quantify both factors in the balancing equation is quite difficult. It is generally
146                     PHYSICIAN ASSISTED EUTHANASIA



thought that this principle can be actualized or structured with considerable less
difficulty and more precision through the use of advanced medical directives.
Sadly, experience has shown popular and widespread use of such directives to
be wanting.

A British Resolution
This very issue of proportionality was resolved in August, 2006, by the Court of
European Human Rights in Strasbourg when it heard an appeal by a 46-year-old
British citizen suffering from Friedreich’s ataxia – a rare and progressive
neurological condition. The appeal was from a judgment by the British Appeal
Court which held physicians have a right to withdraw food and water, as medical
treatments, from an incapacitated patient if, in their judgment, it is in the
patient’s best interests. 78 Leslie Burke, the plaintiff, had argued that he had the
right to receive artificial nourishment and hydration when the progress of his
illness prevents his communication of this wish. 79

    While acknowledging the British law shows a clear preference for prolonging
life wherever possible, the Strasbourg court ruled that since nutrition and
hydration were properly seen as medical treatment, the National Health System
could not guarantee that treatment when physicians, to the contrary, held the
opinion that such was not in a patient’s best interests. 80

    Interestingly, as this case unfolded in the British judicial system, in May, 2005,
the British Government – through its Health Secretary – stated that it would be
unfair for the courts to require the General Medical Council to expend 1,500 in
British Pound Sterling a day (approximately $3,000.00 in US dollars) for any life
insured within the National Health Service. 81

   A spokesman for the Secretary said judicial interference and oversight in
health care management, especially requirements of life prolonging treatment is
contraindicated cases of futility, would create serious consequences for the
functioning of the NHS. 82

   While, under current GMC guidelines, a competent patient may decide
between treatment options offered by a physician, the patient cannot require his
physician to offer treatment options which are clinically inappropriate “or which
cannot be offered for other reasons – having regard to the efficient allocation of
resources. 83
   Intractable Pain, Palliative Management and the Principle of Medical Futility147



A Roman Catholic Construct
In 1957, His Holiness Pope Pius XII addressed the issue of care at the end of life
and laid a foundation for Catholic teaching by stating that under certain
circumstances – when, that is, treatments are deemed “extraordinary” and
excessively burdensome – they may, licitly, be withdrawn. 84

   Building upon this foundation, in 1980, the Sacred Congregation for The
Doctrine of the Faith issued its Declaration on Euthanasia which provides a useful
construct for the Catholic Christian. In discussing the terms, “proportionate” and
“disproportionate” in the context of medical treatment, the Congregation
declares “... it will be possible to make a correct judgment as to means by
studying the type of treatment to be used, its degree of complexity and
comparing these elements with the result that can be expected taking into
account the state of the sick person and his or her physician and moral
resources.” 85 Dr. Edmund D. Pellegrino, Chairman of the President’s Council on
Bioethics, and a pre-eminent Catholic ethicist, suggests a “disproportionate”
means would, in fact, be a futile means. 86

The Catechism
The second edition of THE CATECHISM OF THE CATHOLIC CHURCH
published in 1997 has two important and relevant paragraphs to our present
inquiry. Paragraph 2278 states,

   Discontinuing medical procedures that are burdensome, dangerous,
   extraordinary, or disproportionate to the expected outcome can be
   legitimate; it is the refusal of “over-zealous” treatment. Here one does not
   will to cause death; one’s inability to impede it is merely accepted. The
   decisions should be made by the patient if he is competent and able or, if
   not, by those legally entitled to act for the patient, whose reasonable will
   and legitimate interests must always be respected.
Paragraph 2279 goes on to state:
   Even if death is thought imminent, the ordinary care owed to a sick person
   cannot be legitimately interrupted. The use of painkillers to alleviate the
   sufferings of the dying, even at the risk of shortening their days, can be
   morally in conformity with human dignity if death is not willed as either an
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   end or a means, but only foreseen and tolerated as inevitable Palliative
   care is a special form of disinterested charity. As such it should be
   encouraged.

V. An Ethical Construct for Decision-making
When does treatment become futile? Stated otherwise, when does the futility of
existence become so obvious that sustaining it becomes useless or, indeed, of no
socio-legal, philosophical, ethical, or religious “value”?

   The concepts of ordinary versus extraordinary lifesaving treatment must be
recognized as highly relative or situational – not only as to time and locale, but
also in their application to individual cases. Indeed, both of these concepts have
the ultimate effect of serving as value judgments which determine whether a
given modality of treatment poses an undue hardship on the patient or provides
positive hope for a direct and positive benefit. Accordingly, if a particular mode
of either medical or surgical intervention imposes either too great a burden on
the patient, or offers no reasonable hope of beneficial recovery, such treatment
could be classified as extraordinary, and thus, nonobligatory. This determination
is essentially a quality of life statement; in reaching it, either knowingly or
unknowingly, a substituted judgment is made that if the proxy decisionmaker
were in a similar situation to the patient, he would (or would not) wish to survive
in such a state of impairment. Alternatively, a best interests standard could be
utilized with the central question being: What course of action is in the patient’s
best interests? 87

   The basic ethical goals of man should be to respect, safeguard, and advance
individual autonomy, seek equity and justice in dealing with one another, and
undertake beneficent actions which minimize human suffering and seek to
actualize the social utility of the purposes of life. From a Judeo-Christian
perspective, the meaning of life is tied to two inextricable components of love:
love of God and love of neighbor – for it is through love of others that God is, in
turn, recognized and loved. 88 Under this interpretation, the very meaning of life
is to be found in human relationships and the qualities of respect, concern,
compassion, and justice that support these associations or relationships. 89
    Intractable Pain, Palliative Management and the Principle of Medical Futility149



Social Justice
Under the theory of social justice, each individual is recognized as having an
equal opportunity to maximize his potential. A point may be reached, however,
where maintenance of an individual defies the very concepts of humanitarianism
and justice. Accordingly, when an individual’s medical condition reaches a level
where it represents a complete negation of those qualities associated with being
a human and maintaining a “relational-potential” 90 with others, the best and
most reasonably prudent decision regarding treatment would be that it not be
undertaken or that it be withdrawn and only palliative care be administered. 91
When maintenance of life means the prolongation of pain, with little or no
chance of a real or sustainable level of qualitative recovery, there is no
opportunity to grasp or seek the overall meaning of life or “relational-potential,”
or to seek “growth in love of God and neighbor” through continued human
relationships. At this point, such actions should be recognized as being futile and
cease. 92

    In attempting to structure an ethical construct for decision-making in critical
at-risk cases, a balancing test should be utilized that weighs the gravity of the
harm in allowing lifesaving actions versus the utility of the benefits stemming
from the actions. Accordingly, the gravity of the harm would be assessed in terms
of not only social and economic costs that might induce serious financial
hardships to all members of the primary or afflicted interest group (e.g., the
family), but the religious, philosophical and ethical “costs” (or compromises) as
well. The utility of the benefits would be measured in terms of an evaluation of
the positive consequences that flow to the threatened individual and to society. In
truth, then, this balancing test seeks to arrive at a cost-effective decision through
a cost-benefit analysis. 93

    In order to strengthen and add substance to the balancing test, a number of
specific factors may be considered or utilized. Indeed, the late Dr. Joseph
Fletcher, an Anglican priest, posited a number of such factors that he termed,
alternatively, as qualities or indicators of humanhood. 94 The central most factor
to be considered in any balancing equation is whether the at-risk patient has a
functioning cerebral cortex – for without it one is “nonexistent and an object
rather than subject. Minimal intelligence combines with rationality to build self-
awareness and self-control, as well as an ability to be emotive and intuitive.
150                      PHYSICIAN ASSISTED EUTHANASIA



Other factors of importance include: time consciousness, a sense of futurity tied
to a theological assertion, a sense of the past, the ability to display curiosity
instead of indifference, changeability, a capability to relate to others, compassion
or an ability to express concern for others, an ability to communicate, the ability
to be idiomorphous or distinctive, and the ability to assert control in life-directing
situations and not display utter helplessness. 95

   Taken together, the Fletcher indicators present a test of humanhood which is
shaped by the exigencies of each situation. As such, these factors are shaped or
even controlled by a situational ethic which flexibly adapts to each individual
problem instead of being directed uniformly by a rigid and unyielding a priori
ethical standard. Driven by a case-by-case methodology, the boundaries of the
situation ethic are incapable of absolute determination. Yet, the basic norm used
in decision-making will be love, human compassion, common dignity or simply
mercy. 96 Some of the indicators of humanhood may have greater or lesser
significance depending upon the diagnosis and prognosis of each case and the
balance sought to be struck. For example, some patients and their families might
well make trade-offs, desiring to place greater value and emphasis on self-
control over a sense of the past and an ability to be emotive and intuitive. Other
patients and families may value an ability to communicate over compassion and
the ability to express concern for others. In employing the reasonableness
standard as the lynchpin in any ultimate medical decision regarding the
continuation of medical treatment or the recognition that such would be
medically futile, two primary questions under the ethical construct for
decision-making will be proposed here: (1) Whether the medically               at-risk
individual possesses a real likelihood of sustaining a “relational-potential” with
others?; and (2) Whether the present or proposed course of medical treatment
not only minimizes suffering, but also seeks to maximize the potential utility of a
life that functions at qualitative levels of cognition? 97

VI. Cases on Point
Four paradigmatic examples may now be presented which show the scope, the
complexity, and the need for basic common sense together with a sense of
compassion or mercy in palliative care management.
    Intractable Pain, Palliative Management and the Principle of Medical Futility151



The Switzerland Decision
It was announced in February, 2007, that Switzerland’s high court, the
Bundesgericht, or Supreme Court, held that – under appropriate conditions –
people with serious mental illnesses could receive assistance to die – this, in a
country where physician-assisted suicide for a terminally ill patient is, under
certain circumstances, allowed. The effect of this decision is to place mental
illness on the same level as physical ones. 98

    In this case, a 53-year-old Swiss national suffering from a bipolar disorder,
who had attempted suicide on several previous occasions, joined an association
called “Dignitas” from which he learned how to end his life. In order to take this
step, he was advised to obtain 15 grams of sodium phenobarbital which he
could in fact obtain without a prescription. He followed the procedure necessary
to make application for the drug and stated, voluntarily, his intention to obtain
this chemical through Dignitas. His application was denied by the Heath
Directorate for Zurich on the grounds that that drug was an addictive,
psychotropic chemical which could be obtained properly only with a doctor’s
prescription.

    The High Court found that severe psychic illness can – as with physical illness –
rob a patient of his will to live. In some cases of this nature, the use of sodium
phenobarbital is not contraindicated or foreclosed as a violation of a physician’s
ethical duties. An important distinction should be drawn, however, between
someone wishing to die because of a curable psychic illness and someone who
wishes to undertake the same act, is competent, and resolves this course of
action after a medical evaluation.

   A medical evaluation, in situations of this nature, needs to be supported
through expert psychological opinion. The responsibility for the proper
administration of sodium phenobarbital cannot be delegated to a suicide
assistance organization such as Dignitas or Exit, for example. Indeed, in order to
validate the genuineness of the suicide desire and test the competence of the
individual   requesting   assistance   in   ending   his   life,   examination   and
determination must be made by medical specialists and not by organizations
who seek to accommodate, on demand, suicide assistance.
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   Professor Arthur Caplin of the Bioethics Center at the University of
Pennsylvania, cautioned that if this policy were to be implemented widely in
Switzerland or, for that matter, elsewhere, it would place physicians in a most
difficult position: namely, “distinguishing ‘competent’ requests from persons with
mental illness from ‘incompetent’ or ‘temporarily desperate’ persons with mental
illness – something psychiatry and psychology are not always adept at doing.” 99
Dr. Caplin continued by observing that this High Court ruling would allow
anyone alleging that they are suffering unbearable psychological or emotional
pain to request assistance in dying –pain, as such, for example, from burns
disfigurement, or emotional trauma occasioned by the loss of a child or spouse
or even from career setbacks or failure. 100

   As we know, the Netherlands legalized euthanasia in 2001 and Belgium
followed suit in 2002. 101 Interestingly, in 2006, the University of Lausanne
announced that it would allow terminally ill mentally stable patients to undertake
assisted suicide within the hospital, itself. As such, it became the first hospital in
Europe to allow this. 102

The Katrina Tragedy

In the aftermath of Hurricane Katrina in Louisiana, on July 19, 2006, the
Attorney General of the State ordered charges of “Mercy Killing” filed against a
physician and two nurses in New Orleans who injected four patients with a
combination of morphine and midazolam. As many as 14 bodies showed
indications that a lethal dose of drugs had been administered. In combination,
these drugs are administered routinely to relieve pain or anxiety. 103

   The patients who died, ranging from 61 to 90 years of age, were literally
stranded on the seventh floor of Memorial Medical Center in a long term care
unit. In all, some 250 patients were unable to leave the hospital because of high
flood waters. The four patients at the center of the controversy were among 24
who died on the seventh floor. Because of their chronic medical needs, the
seventh floor patients were non-ambulatory and in need of supportive care.
None were considered in imminent danger of dying, however, prior to the onset
of the hurricane. 104 Inside the hospital, itself, the temperature rose to 100
    Intractable Pain, Palliative Management and the Principle of Medical Futility153



degrees, there was no electricity and no waste disposal system. In a word, the
hospital was in a crisis, and none of the patients had asked for assistance in
euthanizing themselves. 105

    The stranded patients were triaged or rated according to their potential for
survival. 106 “Red” was the color used to denote critical care; “Black” meant
moribund with only comfort care administered. The salvageable were, over time,
put on helicopters and transferred to a local airport where the airport personnel
re-evaluated them again before routing them to other health care facilities
outside of New Orleans. Some of these patients rated red and needing critical
care, were classified as moribund or black and not given heroic treatments.
Different levels of care were given according to the availability of medical
resources at specific locations. 107

    Should the physician and her two nurses been seen as murderers or, as
humane physicians acting in a manner justified medically under the
circumstances? Is this not a direct case on point for application of the principle of
ethical futility? I suggest that instead of being vilified as criminals, the physician
and her nurses acted with humaneness, compassion and mercy in sedating their
moribund patients trapped on the seventh floor of Memorial Hospital.

Emilia’s Case
Since December 28, 2006, Children’s Hospital in Austin, Texas, has been the
home, upon his birth, of a baby named Emilio Gonzales. Placed in a pediatric
intensive care unit, Emilio sleeps most of his days – a sleep induced, as such
from pharmacological agents. He breathes only because of the respirator to
which he is tethered. In March, 2007, the hospital declared his case to be futile.
Within the provisions of the Texas Futile-Care Law, Emilio’s mother was given a
ten-day notice to find another facility to accept and care for him. The case is
complicated by the fact that although the baby does not meet the criteria to be
declared brain dead – rather, he has been diagnosed with a terminal
neurometabolic disorder called Leigh’s disease. In order to sustain the baby, a
transferring hospital must perform tracheotomy and insert and maintain a
feeding tube. In this way, Emilio can live out his life either in the hospital or at
154                     PHYSICIAN ASSISTED EUTHANASIA



home with his mother. The medical report is dire in that continuing treatment of
this nature is potentially painful and merely prolongs the baby’s suffering. Thirty-
one health care facilities have been contacted regarding transfer care and none
expressed a willingness to accept Emilio as a patient. 108

    Texas is one of two states, 109 in addition to Virginia, 110 which has enacted
futile care legislation. Under the Texas law, a hospital ethics committee is
empowered to declare the care of a terminally ill patient to be of no medical
benefit and to discontinue care, accordingly, as seen, within a ten-day time
frame. Within that limit, the family is required to find a medical facility willing to
accept their terminal relative. If no transfer can be arranged, the hospital may
proceed to withdraw life support. In Virginia, the transfer period is 14 days after
a futile care decision is made. 111

    In a 2005 report by the National Right to Life Committee, eleven states were
found to have legislation requiring patient care (consisting of life-sustaining
treatment) – with no decline – until a transfer is completed. Fifteen other states,
together with the District of Columbia, have laws which mandate treatment
pending a patient’s transfer yet, interestingly, do not define the type of treatment
required. Twenty-four other states have laws addressing the issue but are
complex and even ambiguous regarding treatment pending a transfer. 112

    Led by Texas Right to Life and others, Texas legislators are being lobbied to
change the present futile care law so that no deadline is imposed until an actual
patient transfer is made. The lead attorney in the Emilio Gonzales case framed
the issue thusly: “The benefit of treatment for this child is continued life. Yes, he
will never be a normal little boy, but there are plenty of people out there who are
not normal but continue life and enjoy it to the level they are capable of.” 113

   In mid May, the Texas Senate approved an amendment to the futility law by
extending the period of medical evaluation from ten days to twenty-one, thus
barring any transfer until this period of time has elapsed. 114 A hospital ethics
committee would, ultimately, be responsible for making the prognosis and the
legislation would demand nutrition and hydration be continued regardless of his
classification of medical futility. And, even more disconcerting, for some, is the
provision within the proposed legislation which allows for appeals by relatives to
the judicial process in order to extend the life of such patients even longer. 115
    Intractable Pain, Palliative Management and the Principle of Medical Futility155



While this Senate Bill 439 was defeated subsequently, the Texas Hospital
Association agreed to lengthen the time frame before life support is withdrawn
and to prepare uniform guidelines for futile care. 116 And sadly, on May 30th, the
very day the Senate Bill died, so also did Emilio, of natural causes. 117

The Casey House Protocol
The Montgomery County Hospice in Rockville, Maryland, known as Casey House,
has what must be considered to be the prototype of the most humane,
compassionate and – indeed – merciful protocol for respite terminal sedation
rather than continuous sedation. It is also a protocol sensitive to the legal
penumbra surrounding euthanasia and physician assistance at death.

    At the end-stage of hospice care, most often seven to ten days before death,
patients oftentimes suffer (quite naturally) existential or psychological pain. Under
the Casey House Protocol, a competent patient within this group, could request
deep, or respite sedation. Accordingly, the patient is sedated for three days and
then revived; thereupon he is asked whether he wishes to be sedated for another
three to four day period. Normally, three sequences of this procedure would be
adequate to ease the final period before death. The purpose of the sedation is to
relieve mental pain NOT to end life and, thus, is proper from a legal standpoint
and valid ethically under the Principle of Double Effect.

   An interesting situation might arise if, upon initial admission to a hospice or
the beginning of home care – provision for which is normally provided under
Medicare in America up to 120 days – the patient is suffering from deep
depression and does not respond to pharmacological treatment. Should such a
patient be allowed to elect terminal sedation then and there; or, should he be
required to make a good faith effort to “hold out” until the last week to ten days
of the hospice confinement or until his pain is intractable? I would argue that
once admitted to hospice care, a competent patient should be able – under the
principle of self-determination – be allowed to be terminally sedated. One enters
hospice care because his condition is diagnosed as medically futile. Why then
should not terminal or deep sedation be seen as a proper form of adjusted
medical care? Similarly, for the incompetent patient, I would argue that this
option be presented to that patient’s health care decision makers for their
consideration. And, in cases where there are no designated surrogate
156                     PHYSICIAN ASSISTED EUTHANASIA



decisionmakers, I would suggest an attending physician be encouraged to act,
within the code of professional ethics, to manage all forms of pain – physical or
mental-being experienced by the patient. 118

VII. Conclusion
Dying is, “[b]y and large, a messy business.” 119 It is both “ugly and dirty” in a
world that is intolerant of such qualities. 120 Perhaps the only true dignity found
within the occurrence of death is a full appreciation of the life that precedes it. 121

    The management of death can surely be both more humane and more
efficient when the principle of medical utility is harmonized with patient
autonomy. By defining medical utility as the maximization of the welfare of
patients in need of treatment, it is clear that criteria are essential in determining,
in a fair and equitable manner, who will receive and benefit from an initial use
or continuation of scarce medical resources, and conversely, who will not.
Utilitarianism, then, in choosing which course of action to follow, will evaluate
those actions which produce the greatest benefit for the greatest number of
individuals. Social utility is used as an integral part of the balancing equation.
Herein lies the problem: How can the needs and prognosis of a particular patient
be balanced against the needs of society? Stated otherwise, how can physicians
serve two masters, society and patients, in determining the type and amount of
medical care?

    The principle of medical futility, delineated and tested in the manner
proposed here, can serve as a catalyst for public action, acceptance, or both.
Furthermore, medical futility can serve as the dominant vector of force in
validating the very essence of utility, and thus, resolve the inherent conflict
between patient needs and greater societal goals. The fact that there is a
pressing national and international need for a clear, objective, and practical
definition of futility is without doubt. Yet, the reality of the situation dictates that
regardless of the definition settled upon, a debate between and among the
medical professionals and social policy makers will inevitably arise. The public,
because of its inherent lack of sophistication in this area, will depend upon both
groups to educate them and win their acceptance. To fail in this mission means,
simply, an increase in suits for medical malpractice by uninformed patients and
their families or proxy decisionmakers. Once defined criteria for medical futility
    Intractable Pain, Palliative Management and the Principle of Medical Futility157



are accepted by health care providers and the public which they serve, this
restructured principle affords the ideal construct for determining the utilitarian
balance between patient and majoritarian preferences, wants, or needs. It
achieves this by institutionalizing a balancing point that distinguishes the medical
actions agreed upon as useful, reasonable, or promotive of restorative quality
under particular circumstances with various patient profiles, and those actions
not beneficial to patients or economically feasible for society to undertake. In a
real way, then, these criteria act as a socio-legal-ethical-medico-economic triage,
providing various medical and surgical interventions not regarded as reasonable
for use by certain patients with profiles which show that there is no assurance of
a sustained level of qualitative rehabilitation or salvageability. 122

   Stated otherwise, again, Dr. Pellegrino suggests that the primary goal in
dealing with cases of futility is achieving for the patient a level of “total good.”
This, in turn, then, is realized when a carefully calibrated balance is struck
between three criteria: effectiveness, benefit and burden reached, co-operatively,
within an “alliance” between the treating physician, the patient or his surrogate
decision-maker. 123

   For Dr. Pellegrino, futility is not an isolated, empirical yes/no test. Rather,
each judgment of futility takes all aspects of a patient’s total life experience into
account – physical, mental, spiritual together with life goals. As such, each
judgment “demands prudential assessments for a particular person in a
particular experience of illness and within a particular metaphysical and
theological context.” 124

   Physicians must always be leery of being forced to practice “irrational
medicine” – demanded by the patient, as such, who expects “everything be
done” even though treatments may be judged futile by his physician. 125 Indeed,
to attempt to demand or to order treatment when a medical condition is
diagnosed as futile “violates [Dr. Pellegrino] the first principle of traditional
medical ethics – beneficence” which mandates that actions taken by a physician
always be for the patient’s good. 126

   Upon the acceptance or adoption of guidelines for determining futility, a
three-tiered decisional structure has been proposed as a mechanism for
determining whether a given treatment for a given patient falls within the scope
158                     PHYSICIAN ASSISTED EUTHANASIA



of these guidelines. Accordingly, the treating physician would be given the
primary responsibility for making the decision to withdraw or withhold treatment
on the grounds of futility. Although he would be under a duty not to prescribe
treatment deemed futile by him, he would be obliged to inform the patient, and if
necessary, the family of this decision and its rationale. This would provide the
patient and family a basis for an “appeal” to a hospital ethics committee, if such
course were elected. 127 Any further appeal from an adverse finding by the
committee would be to the courts, where a limited review of the reasonableness
of the decision to withdraw or withhold treatment would be undertaken.

    Absent both a redefinition of death to include a PVS and a failure to achieve a
broad consensus to establish criteria for treatment based upon the extent and
duration of neurologic damage, perhaps a less contentious approach to the
effort of redefining the principle of medical futility would be the acceptance of a
presumption that those permanently existing in a vegetative state would not want
to be kept alive for an indefinite period of time. Accepting this presumption
would, in turn, allow a standard of care to be established that would include
routinely a cessation of treatment after a reasonable time. Although the standard
of reasonableness would vary with medical circumstances or situations, it would
be tied with sufficient clarity to a recognition of irreversibility. Consistent with this
new medico-legal presumption would be a shift in the burden to those wishing
maintenance of a vegetative state to show that they are acting in accordance with
what they know from clear and convincing evidence to be the wishes of the
patient himself. 128

   Since administering futile medical treatment is tantamount to inflicting cruel
and unusual punishment on the patient and an abridgement of his rights of self-
determination, it is incumbent upon physicians to recognize that they should
accept the imposition of an affirmative legal, professional, moral, and ethical
duty not to prescribe a modality of treatment that falls clearly within the scope of
being considered futile, freakish, andtortious. The utilitarian value of a
revalidated and operative principle of futility is all too apparent. Let it be used in
a reasonable and compassionate manner to end the cruel punishment of
terminal and hopeless cases of “human” existence and, at the same time,
hopefully, give rise to an ethic of palliative care and less to a relentless pursuit of
technologies that extend futility to the point of indecency and inhumaneness. 129
    Intractable Pain, Palliative Management and the Principle of Medical Futility159



    Linguistic ambiguity has plagued the role of palliative sedation versus
terminal sedation within palliative care management 130 in much the same way as
it has when efforts are made to find a clear line of demarcation between
physician assisted suicide and active euthanasia. 131 Taxonomical purities are
simply not to be found. Instead, shadow boxing becomes the principal spectator
sport – with eyes riveted to efforts to discern the distress patient’s intent as to
treatment or non-treatment 132 as well as that of his treating physicians. 133

    While autonomy or self-determination has, heretofore, been the cornerstone
of health care management, and especially so in end-stage illness, perhaps
more clarity into the whole decision making process could be obtained if
benevolence were to be either substituted for autonomy or merged into it. In this
way, instead of challenging intentional acts of professional competence designed
to acknowledge cases of medical futility through actions measured by mercy,
compassion or charity, emphasis would be placed on a reformulated justification
for palliative sedation for end-stage refractory pain – either physical or
psychological. Accordingly, proportionality would become pivotal in any legal,
ethical, or medical inquiry. 134 And, mercy, compassion or charity would then be
properly integrated or subsumed into the inquiry as normative standards for
actions designed to abate the pain – guided, as such, by the situation ethic
advanced by Dr. Fletcher.

   Two ethical guidelines are seen in direct conflict when a physician is forced to
deal with a patient experiencing refractory symptoms in a terminal illness:
specifically, the ethical mandate to relieve the patient’s suffering and, at the
same time, not cause his death. 135 While not considered absolute, these
principles may not be overridden unless for compelling reasons. 136

    The balance necessary to address these conflicting guidelines is to be found in
the standard of proportionality which, in turn, is an underlying vector of force in
applying the Doctrine of Double Effect. 137 Thus, in dealing with the
administration of opiods and sedatives intended to have therapeutic effects and
unintended “side” effects which are not desired, but accepted, 138 compassion,
benevolence, or mercy allows a higher priority to be placed by the physician on
“relieving refractory symptoms than to prolonging an existence by severe
suffering for a few hours or days or even ...a few months.” 139
160                         PHYSICIAN ASSISTED EUTHANASIA



    Quite simply, if lower doses of opiods or sedatives fail, then dosages may be
increased. Because of individual responses to therapy and drug tolerance, a
policy setting dosage ceilings should be viewed as not only inappropriate, 140 but
lacking compassion. With a detailed plan or protocol for the administration of
palliative sedation in place which considers (among other issues) patient, family
and medical team goals together with continuity of adjusted care, the time frame
for death once medication is administered, spiritual values and psychological
concerns, proper documentation in medical records regarding dosing, levels of
nursing care and monitoring, 141 this – in the final analysis – provides a template
for relieving a dying patient’s intractable suffering. 142

Endnotes
1     Singer, Martin & Kelner, Quality of End-of-Life Care, 281 JAMA 163 (Jan. 13, 1999).
2     Jennings, Ryndes, D’Onofrio & Daily, Access to Hospice Care: Expanding
      Boundaries, Overcoming Barriers, 33 HASTINGS CENTER RPT. S3 (Special Supp.
      2003).
3     Murray & Jennings, The Quest to Reform End of Life Care: Rethinking Assumptions
      and Setting New Directions, 35 HASTINGS CENTER RPT. S52, S54 (2005).
4     See J. LYNN, SICK TO DEATH – AND NOT GOING TO TAKE IT ANYMORE (2004).
5     Supra note 3 at S 54.
6     Supra note 4 at 12.
7     See HOSPICE: THE LIVING IDEA (C. Saunders, D. H. Summers & N. Teller eds.
      1981).
8     Saunders, Spiritual Pain, 4 J. PALLIATIVE CARE 29 (1988).
      See also Fife, Are Existential Questions the Norm for Terminally ill Patients?, 5
      J. PALLIATIVE MED. 815, 817 (2002).
9     Kaasa & Loge, Quality of Life in Palliative Care: Principles and Practice, 17
      PALLIATIVE MED. 11(2003).
10    Tudor, Modes of Mercy, 28 AUSTRALIAN J. LEGAL PHIL. 79, 100 (2003).
         See also S. TUDOR, COMPASSION AND REMORSE: ACKNOWLEDGING THE
      SUFFERING OTHER (2001).
11    Tudor classifies mercy as: magnanimous; stoic; pardoning; exploitative; favouring;
      compromising; unconfident; reforming; forgiving and compassionate. Id., Modes of
      Mercy at 89-100.
     Intractable Pain, Palliative Management and the Principle of Medical Futility161




12   M. P. BATTIN, ENDING LIFE: ETHICS AND THE WAY WE LIVE 66 (2005). See
     George P. Smith, II, Monograph, WHEN MERCY SEASONS JUSTICE (2007).
13   D.C. THOMASMA & G. C. GRABER, EUTHANASIA: TOWARD AN ETHICAL
     SOCIAL POLICY 129 (1990).
14   Supra note 10, Modes of Mercy, at 95. See also Guinan, The Christian Origin of
     Medical Compassion, 5 NAT’L CATHOLIC BIOETHICS Q. 21 (2005).
15   Supra note 10, Modes of Mercy, at 81.
16   L. VAN ZYL, DEATH AND COMPASSION: A VIRTUE BASED APPROACH TO
     EUTHANASIA 197 (2000).
17   Pellegrino, Decisions at The End of Life: The Use and Abuse of the Concept of Futility
     in THE DIGNITY OF THE DYING PERSON (Proceedings of the Fifth Assembly of the
     Pontifical Academy of Life, Feb. 1999), (J.V. Correa & E. Sgreccia eds. 2000).
18   Id. at 225, 241.
19   Shepard, Sophie’s Choice: Medical and Legal Responses to Suffering, 72 NOTRE
     DAME L. REV. 103,106,119(1996).
20   Shepard, Dignity and Autonomy After Washington and Glucksberg: An Essay about
     Abortion, Death and Crime, 7 CORNELL J. L. & PUB. POL’Y 431, 465-466 (1998).
21   Pellegrino, supra note 17.
22   D. HUMPHRY, FINAL EXITS 135-136 (1991).
23   Macklin, Reflections on the Human Dignity Symposium: Is Dignity a Useless Concept?
     20 J. PALLIATIVE CARE 212 (2004).
24   Id. at 212.
25   Id., passim.
26   Street, Constructions of Dignity in End-of-Life Care, 17 J. PALLIATIVE CARE 93, 95,
     99 (2001).
27   MARGARET P. BATTIN, ENDING LIFE: ETHICS AND THE WAY WE DIE 8 (2005).
28   Id. See also Shepard, Face to Face: A Call for Radical Responsibility in Place of
     Compassion, 77 ST. JOHN’S L. REV. 445 (2003).
29   See BATTIN, supra note 27 at 90.
30   Lawrence J. Schneiderman & Nancy Jecker, Futility in Practice, 153 ARCH. INTERN.
     MED. 437, 440 (1993) (stating that “overwhelming agreement has been reached in
     the medical community that physicians are not required to provide futile treatment”).
         A physician has no duty to continue treatment, once it has proved to be
     ineffective. Although there may be a duty to provide life-sustaining machinery in the
     immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its
162                        PHYSICIAN ASSISTED EUTHANASIA




      use once it has become futile in the opinion of qualified medical personnel. Barber v.
      Superior Court, 147 Cal. App. 3d 1006, 1017-18(1983).
          “[I]f a treatment is clearly futile ... there is no obligation to provide the
      treatment.” Nancy S. Jecker & Lawrence J. Schneiderman, Medical Futility: The Duty
      Not to Treat, 2 CAMBRIDGE Q. HEALTHCARE ETHICS 151, 156 [hereinafter Medical
      Futility] (quoting THE HASTINGS CENTER, GUIDELINES ON THE TERMINATION OF
      LIFE-SUSTAINING TREATMENT AND THE CARE OF THE DYING 19 (1987)).
31    Council on Ethical and Judicial Affairs, American Medical Association, Current
      Opinion, 2.03, CODE OF MEDICAL ETHICS (1994).
32    Id., Opinion 2.035 (“Futility”).
33    BARRY R. FURROW, THOMAS L. GREANEY, SAUNDRA H. JOHNSON, TIMOTHY
      S. JOST & ROBERT L. SCHWARTZ, BIOETHICS: HEALTH CARE LAW AND
      ETHICS (5th ed. 2004) at 310.
34    See George P. Smith, II, Utility and The Principles of Medical Futility: Safeguarding
      Autonomy and The Prohibition against Cruel and Unusual Punishment, 12
      J. CONTEMP. HEALTH L. & POL’Y. 1(1995).
35    Robert D. Truog, et. al., Sounding Board: The Problems with Futility, 326 NEW ENG.
      J. MED. 1560 (1992).
36    See Marcia Angell, The Case of Helga Wanglie: A New Kind of ‘Right to Die’ Case,
      325 NEW ENG. J. MED. 511, 512 (1991).
37    Sidney H. Wanzer, The Physician’s Responsibility Toward Hopelessly ill Patients , 310
      NEW ENG. J. MED. 955, 958 (1984).
38    See DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING
      SOCIETY, 181 (1988).
      See also GEORGE P. SMITH, II, LEGAL AND HEALTHCARE ETHICS FOR THE
      ELDERLY (1996).
39    Nancy K. Rhoden, Litigating Life and Death, 102 HARV. L. REV. 375, 442-43 (1988).
40    See Marni J. Bonnin et. al., District Criteria for Termination of Resuscitation in the
      Out-of-Hospital Setting, 270 JAMA 1457 (1993).
41    See Kathleen Boozang, Death Wish: Resuscitating Self-determination for the Critically
      III, 35 ARIZ. L. REV. 23 (1993).
42    Lawrence J. Schneiderman et. al., Medical Futility: Its Meaning and Ethical
      Implications, 112 ANNALS INTERNAL MED. 949 (1990).
          It has been suggested that the ethical principle of autonomy should be re-shaped
      and thus redefined as the principle of relational authority. Accordingly, a variety of
      relationships a patient experiences and obligations he assumes would be factored
      into health care decisions. Communitarian ideals would, thus, direct ultimate actions
      rather than individualistic concepts. HERRING, infra note 44 at 125-130.
     Intractable Pain, Palliative Management and the Principle of Medical Futility163




43   497 US 261 at 288, 289 (1990).
         In 1999, the British Medical Association defined medical treatment to include
     food and water delivered through tube. It went further and endorsed the withholding
     and/or withdrawal – or, if you will, purposeful missions – of tube delivered food and
     water not only from patients in persistent vegetative states, but from those suffering
     from severe dementia or serious stroke. KEOWN, infra, note 44 at 20.
44   JONATHAN HERRING, MEDICAL LAW AND ETHICS 421, 482 (2006).
        See also JOHN KEOWN, EUTHANASIA, ETHICS AND PUBLIC POLICY: AN
     ARGUMENT AGAINST LEGISLATION 58 passim (2002).
45   Nancy S. Jecker & Robert A. Pearlman, Medical Futility: Who Decides?, 152
     ARCHIVES INTERNAL MED. 1140, 1142 (1992).
46   See Lance K. Stell, Stopping Treatment on the Grounds of Futility: A Role for
     Institutional Policy, 11 ST. LOUIS U. PUB. L. REV. 481, 484 (1992).
47   Supra Schneiderman, note 42 at 950.
48   See generally Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting
     Rights and Obligations in the Physician-patient Relationship, 10 J. CONTEMP.
     HEALTH L. & POL’Y 47 (1993).
49   Stuart J. Younger, Futility in Context, 264 JAMA 1295 (1990).
50   Supra Schneiderman, note 42 at 950.
51   Id. at 953.
52   Supra note 46 at 487-88.
53   Nancy S. Jecker & Lawrence J. Schneiderman, Medical Futility, supra note 30 at 155
     (1987).
54   Id. at 155.
55   Id.
56   Supra BATTIN, note 4 at 309.
57   Id.
58   Id., at 311.
           When used in patients dying of some underlying fatal disease or when the heart
     muscle is, itself, damaged seriously, cardiopulmonary resuscitation is of dubious, or
     little – if any – value at all. Edmund D. Pellegrino, Decisions at The End of Life, supra
     note 17 at 219-241.
59   See George P. Smith, II, The Ethics of Ethics Committees, 6 J. CONTEMP. HEALTH
     L. & POL’Y 157 (1990).
164                       PHYSICIAN ASSISTED EUTHANASIA




60    JOSEPH J. FINS, A PALLIATIVE ETHIC OF CARE 85 (2006).
61    Id., at 86.
62    Id.
63    See Margaret A. Somerville, The Song of Death: The Lyrics of Euthanasia, 9
      J. CONTEMP. HEALTH L. & POL’Y 1, 74 (1993).
64    See HELGA KUHSE, THE SANCTITY-OF- LIFE DOCTRINE IN MEDICINE (1987).
65    Paul Rousseau, Existential Suffering and Palliative Sedation: A Brief Commentary with
      a Proposal for Clinical Guidelines, 18 AM. J. HOSPICE & PALLIATIVE CARE 151
      (May/June 2001).
66    Washington v. Glucksberg, 521 US 702 (1997).
          In a companion case, Vacco v. Quill, a New York state prohibition on assisting
      suicide was found not violative of the Equal Protection Clause of the 14th
      Amendment, 531 US 793 (1997).
          See generally Rob McStay, Terminal Sedation: Palliative Care for Intractable Pain,
      Post Glucksberg and Quill, 29 AM. J. L. & MED. 45 (2003).
67    521 US at 736, 737, O’Connor, J.
68    HERRING, supra note 44 at 426, 427. See also ch. 8 for an expanded analysis.
69    Arthur G. Lipman, Pain as a Human Right: The 2004 Global Day against Pain, 19
      J. PAIN & PALLIATIVE CARE PHARMACOTHERAPY 85 (2005).
70    Id. at 88.
71    Id. at 90.
72    Doctors Change Euthanasia Stance, BBC NEWS, http://news.bbc.co.Uk/2/hi/
      health/5123974.stm (accessed June 30, 2006).
73    Minette Marrin, An Acceptable Way to Arrange our Death, http://www.timesonline.
      co.uk/article/0,,2088-2179494,00.html (accessed May 16, 2006).
74    Bernard Lo & Gordon Rubenfeld, Palliative Sedation in Dying Patients, 294 JAMA
      1810, 1815 (Oct. 12, 2005).
75    Supra note 73.
76    Id.
77    Id.
78    R (on the application of Burke) v. General Medical Council [2005] EWCA CIV. 1003;
      [2006] QB 273 [2005] 3 FCR 169, 85 BMLR.
79    Id.
     Intractable Pain, Palliative Management and the Principle of Medical Futility165




80   Doughty, Patient Loses his Last Plea to Stop Doctors from Letting him Die, DAILY
     MAIL, Aug. 9, 2006, at 24.
81   Lister, Minister Puts a Price on The Right to Life http://www.timesonline.co.uk/
     article/0, ,2-1 618268,00.html (May 19, 2005).
82   Id.
83   Id.
84   Pellegrino, supra note 17 at 219.
85   Id. at 229.
86   Id.
87   TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL
     ETHICS at 171-73 (3d ed. 1989).
88   Richard McCormick, To Save or Let Die: The Dilemma of Modern Medicine, in HOW
     BRAVE A NEW WORLD? 346 (Richard McCormick ed. 1981).
89   Id.
90   Id. at 347.
91   See GEORGE P. SMITH, II, FINAL CHOICES: AUTONOMY IN HEALTH CARE
     DECISIONS ch. 4 (1989).
92   Supra note 88 at 347.
93   George P. Smith, II, Quality of Life, Sanctity of Creation: Palliative or Apotheosis, 63
     NEB. L. REV. 709, 734 (1984).
94   Joseph Fletcher, Indicators of Humanhood: A Tentative Profile of Man, HASTINGS
     CENTER RPT., Nov. 1972 at 1.
95   Id. at 1-3.
96   BATTIN, supra note 27 at 8.
97   Supra note 94 at 734-35.
98   X v. Health Directorate of Zurich, Feb., 2006, (Peter B. Rutledge transl.). See
     http://www.bger.ch/index/jurisdiction/jurisdiction-inherit-template/jurisdiction-
     recht/jurisdiction-recht-urteile2000.htm.
        See also http://www.findlaw.eom/12international/countries/ch.html             (Swiss
     Supreme Court).
99   AP, Mentally ill in Switzerland Could Win Right to Die, http://www.msnbc.msn.com/
     id/16951542/print/1/displaymode/1098/ (Mar. 8, 2007).
100 Id.
166                      PHYSICIAN ASSISTED EUTHANASIA




101 For a discussion of the European approach to patient’s rights to self determination,
    see T.S. JOST, READINGS IN COMPARATIVE HEALTH LAW AND BIOETHICS at 278-
    340 (2d ed. 2007).
102 Desperate Battle for Death with Dignity, YORKSHIRE POST, Feb. 13, 2007, at 1.
103 Peter Whoriskey & Catherine Skipp, 3 Arrested in New Orleans Hospital Deaths,
    WASH. POST, July 19, 2006, at A3.
104 Tyler J. Curiel, Murder or Mercy: Hurricane Katrina and The Need for Disaster
    Training, 355 N. ENG. J. MED. 2067 (Nov. 16, 2006).
105 Id. at 2068.
106 George P. Smith, II, Triage: Endgame Realities, 1 J. CONTEMP. HEALTH L. & POL’Y
    143 (1985).
107 Supra note 103.
108 Moreno, Case Puts Texas Futile-Treatment Law Under a Microscope, WASH. POST,
    April 11, 2007, at A3.
109 TEX. CODE ANN., Health & Safety, § 166.046 (Vernon’s 2002).
110 VA. CODE ANN. § 54.1-2987 (2000).
111 Id.
112 Moreno, supra note 108.
113 Id.
          See Ramshaw, Bills Challenge Care Limits for Terminal Patients, DALLAS
      MORNING NEWS, Feb. 15, 2007, at A1 (providing statistics which set the costs for
      providing life sustaining treatment to individuals in a vegetative state at between
      $60,000.00 to $80,000.00 and observing in most cases of this nature, a private
      insurer or the government handles them as charities).
114 Ramshaw, Senate OKs Longer End-of-Life Care, DALLAS MORNING NEWS, May 15,
    2007, at A4.
115 Id.
116 Ackerman, Futile Care Bill Dead, HOUSTON CHRONICLE, May 30, 2007, at A1.
117 Grabell, Boy Dies After Dispute, DALLAS MORNING NEWS, May 31, 2007, at B1.
118 See http://www.montgomeryhospice.org/patients/caseyhouse.phys.
          The author had two telephone conversations with Dr. Charles F. Harrison, then
      of the Casey House staff in 2005, who explained the respite (or terminal) sedation
      protocol in place there at that time.
    Intractable Pain, Palliative Management and the Principle of Medical Futility167




         See generally Beth Baker, Finally (or Not), Relief: Palliative Care Aims to Salute
     the Sickest, WASH. POST, Aug. 26, 2003, at HE 1 (discussing the work of Casey
     House and Dr. Harrison).
119 SHERWIN B. NULLAND, HOW WE DIE: REFLECTIONS ON LIFE’S FINAL CHAPTER
    142 (1994).
120 Id. at 255.
121 Id. at 242.
122 See generally Smith, supra note 106.
123 Pellegrino, supra note 17 at 227.
124 Id. at 240.
125 Id. at 235.
        But see Pam Belluck, Even as Doctors Say Enough, Families Fight to Prolong Life,
     N.Y. TIMES, Mar. 27, 2005, at A1.
126 Pellegrino, supra note 17 at 223.
127 George P. Smith, II, All’s Well that Ends Well: Toward a Policy of Assisted Rational
    Suicide or Merely Enlightened Self-determination, 22 U.C. DAVIS L. REV. 275, 415
    (1989).
128 Marcia Angell, After Quinlan: The Dilemma of the Persistent Vegetative State, 330
    NEW ENG. J. MED. 1534, 1535 (1994).
129 Nancy S. Jecker & Lawrence J. Schneiderman, Is Dying Young Worse Than Dying
    Old?, 34 THE GERONTOLOGIST 66, 71 (1994).
130 W. Clay Jackson, Palliative Sedation vs. Terminal Sedation: What’s in a Name?, 19
    AM. J. HOSPICE & PALLIATIVE CARE 81 (Mar./April, 200).
        See generally George P. Smith, II, Euphemistic Codes and Tell-tale Hearts:
     Humane Assistance in End-of-Life Cases, 10 HEALTH MATRIX J. LAW-MED. 175
     (2000).
131 Nicholas Dixon, On The Difference between Physician-assistance Suicide and Active
    Euthanasia, 28 HASTINGS CENTER RPT. 25 (1998).
        See also Smith, supra note 127.
        See generally ROGER S. MAGNUSSON, ANGELS OF DEATH, EXPLAINING THE
     EUTHANASIA UNDERGROUND (2002).
132 McStay, supra note 66 at 52.
133 Id. at 55 passim.
134 Lo & Rubenfeld, supra note 74 at 1813.
168                      PHYSICIAN ASSISTED EUTHANASIA




135 Id.
136 Id.
137 Id.
      See Alexander McCall Smith, Euthanasia: The Strengths of The Middle Ground, 7
      MED. L. REV. 195, 206-07 (1999).
138 Lo & Rubenfeld, supra note 74 at 1812.
139 Id. at 1813.
      See generally Timothy E. Quill & Ira R. Byock, Responding to Intractable Suffering,
      132 ANNALS INTERNAL MED. 408 (2000).
140 Lo & Rubenfeld, supra note 74 at 1815.
141 Id. at 1814, 1815.
142 See George P. Smith, II, Terminal Sedation as Palliative Care: Revalidating a Right to
    a Good Death, 7 CAMB. Q. HEALTHCARE ETHICS 382 (1998).
                                                   7
    Physician-Assisted Suicide: A Review
        of the Literature Concerning
     Practical and Clinical Implications
               for UK Doctors
                                   Madelyn Hsiao-Rei Hicks*

        A bill to legalize physician-assisted suicide in the UK recently
        made significant progress in the British House of Lords and will
        be reintroduced in the future. Until now there has been little
        discussion of the clinical implications of physician-assisted
        suicide for the UK. This article describes problematical issues
        that became apparent from a review of the medical and
        psychiatric literature as to the potential effects of legalized
        physician-assisted suicide. Most deaths by physician-assisted
        suicide are likely to occur for the illness of cancer and in the
        elderly. GPs will deal with most requests for assisted suicide.
        The UK is likely to have proportionately more PAS deaths than
        Oregon due to the bill's wider application to individuals with
        more severe physical disabilities. Evidence from other countries

*    Honorary Lecturer, Health Service and Population Research Department, Sections of Community Mental
     Health and Cultural Psychiatry, Institute of Psychiatry, King's College London, UK.
     E-mail: mjhhicks@aol.com

© 2006 licensee BioMed Central Ltd. This is an Open Access article distributed under the terms of the
Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0), Which permits
unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Source: www.biomedcentral.com/content/pdf/1471-2296-7-39.pdf
170                     PHYSICIAN ASSISTED EUTHANASIA



       has shown that coercion and unconscious motivations on the
       part of patients and doctors in the form of transference and
       countertransference contribute to the misapplication of
       physician-assisted suicide. Depression influences requests for
       hastened death in terminally ill patients, but is often under-
       recognized or dismissed by doctors, some of whom proceed with
       assisted death anyway. Psychiatric evaluations, though helpful,
       do not solve these problems. Safeguards that are incorporated
       into physician assisted suicide criteria probably decrease but do
       not prevent its misapplication. The UK is likely to face
       significant clinical problems arising from physician-assisted
       suicide if it is legalized. Terminally ill patients with mental
       illness, especially depression, are particularly vulnerable to the
       misapplication of physician-assisted suicide despite guidelines
       and safeguards.
Background
A bill to legalize physician-assisted suicide in the UK recently progressed further
than ever before in the British House of Lords. In 2005 Lord Joffe revised his
Assisted Dying for the Terminally 111 Bill, originally written to legalize
Euthanasia and physician-Assisted Suicide (EAS), to narrow the focus to
Physician-Assisted Suicide (PAS) in England and Wales. The bill subsequently
progressed to its second reading in the House of Lords in May 2006. Though
peers voted to block the bill, Lord Joffe has declared his intention to continue
reintroducing his bill to legalize PAS until it has proceeded through all parliamen-
tary stages. Over the course of this legislative process, there has been little
discussion of the clinical implications of physician-assisted suicide for the UK [1, 2].

    This article summarizes some of the problematical clinical and practical issues
that became apparent from a review I undertook to clarify what evidence exists to
make a case for or against PAS. Searches were done on Medline and
Google using the terms ‘assisted suicide’ and ‘euthanasia’. Euthanasia was
included because it overlaps with PAS in many respects and because its
legalization has accompanied that of PAS in Belgium and in the Netherlands [3].
        Physician-Assisted Suicide: A Review of the Literature Concerning      171
                Practical and Clinical Implications for UK Doctors


In addition, Lord Joffe has described this bill as the first step “forward in
incremental stages” (pp 53) [4] and there is no reason to think that the goal to
legalize euthanasia in the UK has been abandoned. Also reviewed were the
House of Lords Select Committee on the Assisted Dying for the Terminally III Bill
Report and Evidence [4], Lord Joffe’s Assisted Dying for the Terminally 111 Bill
[5], and the Oregon Department of Human Services report on PAS [6]. Websites
of UK health professional societies were viewed for position statements.

    In addition to drawing on the substantial medical and research literature on
PAS, this article addresses psychiatric issues that have been overlooked in the UK
debate. The paper is framed in terms of the anticipated effects of PAS for UK
doctors who would deal with these requests and addresses the following
questions: What do doctors actually do in PAS? How will PAS likely affect a
doctor’s practice? How well do safeguards work to protect vulnerable patients
and to prevent coercion, both overt and covert? And what role can doctors
validly take in the UK debate on PAS?

Discussion
What does the Doctor do in Physician-assisted Suicide?

Physician-assisted suicide is when a doctor provides a patient a lethal overdose
of medication for self-administration with the explicit goal of enabling the patient
to commit suicide. It is ethically and legally distinct from prescribing medication
with the express goal of pain relief while understanding that death could occur
earlier as a secondary effect (the double effect principle). GPs will deal with most
assisted suicide requests in the UK, as they do in Oregon and the Netherlands.

   In Oregon, doctors assist suicide by prescribing an overdose of barbiturates
that the patient takes orally as several ounces of liquid. In 2005, the prescribing
doctor was present at 23% of PAS deaths. The complication of vomiting occurred
in 5% of cases. After taking the overdose, patients became unconscious in 2-15
minutes (median 5 minutes) and died within 5 minutes-9.5 hours (median 26
minutes). One patient took the overdose, lost consciousness in 25 minutes, and
then regained consciousness 65 hours later. This individual did not obtain
another PAS prescription and died 14 days later of the underlying illness [6].
172                    PHYSICIAN ASSISTED EUTHANASIA



    In the Netherlands, doctors assisting suicide prescribe an antiemetic and an
overdose of barbiturates in liquid or crushed tablet form. Euthanasia is by
intravenous barbiturates followed by a muscle relaxant to paralyse breathing.
Dutch doctors also administer high-dose opioids with the explicit intention of
causing death. Despite acknowledging this to be euthanasia, Dutch researchers
have not counted these cases in reported numbers of voluntary, involuntary, and
unreported euthanasia [7] in their publications [8,9] or in evidence to the House
of Lords [4]. Complications occur in 7% of assisted suicides. Doctors proceed to
carry out euthanasia in 18% of initial PAS cases, usually because death took
longer than expected, coma did not occur or the patient awoke from the
coma [10].

    Lord Joffe’s bill would “enable an adult who has capacity and who is suffering
unbearably as a result of a terminal illness to receive medical assistance to die at
his own considered and persistent request” [5]. Similar to Oregon, the doctor
who agrees to participate in the PAS process is responsible for determining the
following: the patient has a terminal illness that will cause death within six
months, the request is voluntary (uncoerced), he has mental capacity, and his
‘unbearable suffering’ (subjectively defined by the patient and either mental or
physical) arises from the terminal illness, irregardless of whether suffering can be
relieved or treated. The doctor ensures that a palliative care specialist sees the
patient to provide information on palliative care. A referral to a second doctor is
made to confirm these criteria.

The likely Scope of Physician-assisted Suicide in the UK
Most deaths by PAS are likely to occur for the illness of cancer and in the elderly.
In 2005, 84% of Oregon PAS deaths were for cancer. Also in 2005, 68% of
Oregon PAS deaths were of individuals aged 65 and older, consistent with
previous years [6]. Oregon’s PAS data have been cited somewhat out of context
by some authors [1,11] who say that patients using PAS are ‘younger’, to imply
that they are not elderly and so vulnerability is not an issue. To be more
accurate, what the Oregon data show is that younger patients are more likely to
use PAS than older patients if they receive a terminal diagnosis, but older
patients constitute most PAS deaths. Also, the report states that the median age
of patients dying by PAS is 70 as opposed to the median age of 78 in non-PAS
deaths [6].
         Physician-Assisted Suicide: A Review of the Literature Concerning      173
                 Practical and Clinical Implications for UK Doctors


    Oregon legalized PAS in 1997. Since a peak in 2003 of 13.6 PAS
deaths/10,000 total deaths, the rate of PAS has stabilized with a 2005 rate of
12.0/10,000 deaths, which is about 1 in 800 Oregon deaths [6]. A recent survey
comparing the UK to other European and Commonwealth nations shows that the
illegal practice of euthanasia and PAS rarely occurs, with a current rate of 0% of
deaths by PAS in the UK [12]. Although it has been estimated based on Oregon’s
experience that passage of Lord Joffe’s bill would result in approximately 650 UK
deaths by PAS annually [4], the UK is likely to have proportionately more PAS
deaths than Oregon due to the bill’s wider application to individuals with more
severe physical disabilities. Lord Joffe’s bill allows looser criteria for patients’
signatures and a greater degree of physician assistance (Table 1) specifically to
include individuals with greater physical disability in the PAS process.

    In terms of how often individual doctors in the UK may face a PAS request,
this will likely be infrequent. In 2005, 39 Oregon doctors wrote a total of 64
prescriptions for PAS overdoses, one writing eight [6]. Most Dutch GPs may do
euthanasia or physician-assisted suicide (EAS) a few times in a lifetime, while a
few EAS advocates may do up to eight a year [7]. The infrequency with which
individual doctors are involved in PAS reflects two factors: First, most patients do
not have a terminal illness, and the vast majority of those who do, do not request
assisted suicide. Second, patients and families who want PAS tend to seek out
doctors who will agree to their request, leading to some concentration of PAS in
doctors who are known supporters of the practice. Patients are not required to
forgo PAS if their long-term GP or other consulting doctors assess that they do
not meet criteria. And some GPs may refer such patients due to concern over
ethics, legal liability, or technical and clinical aspects of PAS. Though UK doctors
may seldom be directly involved, all would need to be educated on PAS due to its
clinical, legal and ethical complexity and seriousness.

Coercion in Physician-assisted Suicide
The British Geriatrics Society believes that elderly patients are particularly
vulnerable to coercion in PAS requests [13]. The problem of coercion may be
exacerbated by the Joffe Bill’s ‘signature’ criterion in which third parties can sign
for physically disabled and dependent patients. But coercion potentially affects
any PAS request and can do so at any stage of the process. It can affect the
decision to request the overdose, whether the overdose is taken, and how long
174                     PHYSICIAN ASSISTED EUTHANASIA



the patient chooses to live between making the request and overdosing.
Coercion can be difficult for doctors to detect, and even when detected it is
sometimes ignored despite guidelines (Table 2). The prevalence of coercion in
EAS requests is unknown since it is unstudied and relatively few case histories
[14-17] are described. But before assuming that the examples of Table 2 are
unusual, it is useful to consider that Cases 2 and 4 were in the public domain
because pro-EAS societies suggested them for newspaper and television
documentaries, respectively, implying that these cases are considered paragons
of the appropriate application of EAS.

Transference and Countertransference in Physician-assisted Suicide
Reasons that patients and doctors give for PAS such as ‘dignity’, ‘autonomy’ and
‘control’, have been extensively documented. In this section, I attempt to balance
the wide recognition given to these reasons with an overview of some less
recognized forces that can affect PAS decision-making: Transference and
countertransference. Transference and countertransference feelings are normal
and can occur in any doctor-patient relationship. When these feelings heighten
around emotionally intense issues, they can exert coercive pressure on clinical
decision-making with an obligatory quality that is difficult to resist. Recognition is
complicated by the frequent involvement of unacceptable feelings and urges that
both doctor and patient wish to deny. That specialized training is needed to
systematically recognize transference-countertransference may underlie the
finding that Dutch GPs are worse than Dutch psychiatrists at recognizing when
transference or countertransference has affected a request for EAS [18]. A survey
of Dutch psychiatrists found that transference and countertransference influenced
doctor-patient decision-making in 25% of all EAS requests for which psychiatric
consultation was sought. Transference and countertransference influenced 19%
of cases in which the request for PAS or euthanasia was granted, despite the
advice of the consultant [18]. This study demonstrates the importance of
transference and countertransference as potentially distorting forces in PAS
requests but does not describe the prevalence of specific forms of transference
and countertransference. This section outlines potential forms of transference and
counter-transference that can influence decision-making even in apparently
patient-generated PAS requests [19] and provides examples from cases of PAS
and euthanasia.
        Physician-Assisted Suicide: A Review of the Literature Concerning          175
                Practical and Clinical Implications for UK Doctors


 Table I: Some Differences between Physician-assisted Suicide Criteria in Oregon
                             and in Lord Joffe’s Bill

What constitutes a ‘signature’ on the written request declaration

Oregon & Lord Joffe’s Bill:              Signed by the patient.

Lord Joffe’s Bill:                       OR patient leaves his mark OR third party
                                         signs at patient’s direction if patient cannot
                                         due to physical infirmity.

                     Degree of assistance from the doctor in the suicide

Oregon & Lord Joffe’s Bill:              Doctor prescribes overdose.

Lord Joffe’s Bill:                       OR Doctor prescribes overdose and provides
                                         the means for patient to self-administer if
                                         patient cannot take overdose orally.



      Table 2: Cases of Coercion in Physician-assisted Suicide and Euthanasia
Case 1, Oregon: An 85-year-old cancer patient with worsening dementia requests
PAS but her psychiatrist believes that she is being pressured by family.
Nevertheless, she is then approved for PAS by a psychologist and receives assisted
suicide [16].
Case 2, Oregon: Louise, who has a degenerative neurological disease, requests PAS.
As her disease progresses, those in her network who support her suicide become
increasingly anxious that she will become too mentally or physically incapacitated
to act on her request. This includes her doctor, her mother, a friend who will be
present at her suicide, and the Oregon Compassion in Dying PAS advocate who has
arranged for a New York Times reporter to fly in and cover the suicide. Louise says
she is almost ready but not quite. She wants a week to relax and be with her
mother. On learning indirectly that her doctor thinks she will not be able to act if
she waits, she appears startled. Her mother tells her, “It’s OK to be afraid.” She
replies: “I’m not afraid. I just feel as if everyone is ganging up on me, pressuring
me. I just want some time” [ 15].
                                                                               Contd…
176                     PHYSICIAN ASSISTED EUTHANASIA



 …Contd

 Case 3, The Netherlands: A wife who no longer wishes to care for her sick, elderly
 husband gives him a choice between euthanasia and admission to a nursing home.
 Afraid of being left to the mercy of strangers in an unfamiliar place, he chooses
 euthanasia. His doctor ends his life despite being aware that the request was
 coerced [14].

 Case 4, The Netherlands: Cees requests euthanasia one month after being
 diagnosed with ALS (MND). As required, his request is assessed by the primary
 doctor who will carry out the euthanasia and by a consultant. During their
 assessments, both doctors allow Cees’s apparently resentful wife to answer all the
 questions directed to him, even though his speech is still understandable and he
 can type on a computer. His ambivalence about euthanasia is expressed by
 repeatedly pushing the date back. It is also expressed by weeping in response to
 the doctor’s pro forma question of whether Cees is sure he wants to go ahead with
 euthanasia. His wife quickly answers affirmatively for him and then tells the doctor
 to move away from Cees, saying it is better to let him cry alone. At no point does a
 doctor ask to talk with Cees alone before his euthanasia [ 15].

   Transference is when a patient relates to the doctor in a way that primarily
replicates other important, usually parental, relationships. It frequently acts on an
unconscious level to covertly affect the patient-doctor interaction. As a general
example, patients may relate to the doctor as an omnipotent parental authority
figure. Their communications and behaviour may express a wish for approval, a
wish for comfort and restoration, fear of abandonment, or rage at perceived
abandonment [20]. In any suicidal patient, including the terminally ill, the
request to die can be a plea for help or an attempt to be given a reason to live.
A request for PAS can be an entreaty for the doctor to take the terminally ill
patient’s situation or despair more seriously, or a test of the doctor’s true feelings
about the patient’s value now that he is nearing death [19,20]. One patient’s
request for euthanasia was described as “the patient’s way of ‘testing the medical
team...to make sure they would not be abandoned. Moreover, as the patient had
a difficult relationship with their family -who had asked for euthanasia to be
carried out – this request enabled the patient to hear that they still had a certain
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                 Practical and Clinical Implications for UK Doctors


value in the eyes of the medical team” (pp. 592) [21]. Another example is that of
Mr. C., a 72-year-old man with severe obstructive lung disease. This patient
asked his doctor, “Can’t you do something to just bring it to an end? ...Just put
me out of my misery. It would save everyone a lot of trouble.” Ms doctor replied
rather awkwardly, “Even though you feel like a burden, I can’t do that.” Mr. C.
asks, “Why not? You’d do it for your dog.” Ms doctor answers, “Because you
aren’t a dog, Mr. C. You’re my patient and I’m your doctor, and I’m trying to
help you. And I’ll keep trying to help you as long as I have to.” Mr. C. took the
doctor’s hand in both of his and said, “Thank God. I thought everyone had given
up on me” (pp 67-68) [17]. The authors suggest that the doctor was powerfully
influential at this vulnerable point in the patient’s life, related to the transference
of feelings about early caretakers onto the doctor and the doctor’s role as
caretaker. They propose that if the doctor had taken a neutral role or agreed,
there would have been a different outcome. Certainly not all patients who request
PAS are looking for reassurance of their value, but careful exploration of the
patient’s motivations, needs and wishes is clearly critical in order to avoid readily
confirming a patient’s diminished sense of worth and for a real understanding of
what is at stake for a patient who requests PAS.

   For some patients, the PAS request can be a paradoxical attempt to regain
control over life by setting the conditions for death [19, 20, 22]. Patients with
amyotrophic lateral sclerosis (ALS, also known as motor neuron disease or MND
in the UK) have an increased perception of control over their disease
management if they choose to hasten death [23]. The intense drive and
motivation that some patients have for PAS can overwhelm doctors with a sense
of urgency, momentum, and a sense of losing control. These very determined
patients can have a powerful effect on doctors, and potentially on doctors’
decisions: “I’ve always sort of felt like patients should be in charge, but he was in
charge of a process that I wasn‘t that familiar with” (pp 455) [24]. “And I
remember thinking that it’s kind of like a lot of things, you get your nose into the
tent, and then the next thing you know, here you are in the middle of this thing,
and it kind of takes on a mind of it’s own” (pp 456) [24]. “It was like talking to a
locomotive. It was like talking to Superman when he’s going after a train”
(pp 196) [25]. “In these cases it’s just “boom” a patient walks in the door and
178                     PHYSICIAN ASSISTED EUTHANASIA



“boom” you are right up there on this incredible interaction. It’s very powerful
emotionally” (pp 456) [24]. As described in the last quote, the effect of being
swept up is not necessarily unpleasant for doctors, but some doctors regretted
that they ended up involved in the logistics of PAS before fully understanding the
reasons for the patient’s wish to commit suicide [24].

   Some medically ill patients can experience a split or fragmented sense of self
in which the ‘sick’ or ‘bad’ part of the self is felt to be alien, with the feeling ‘I
don’t know the person I’ve become’ or This isn’t me’ [20]. One man in a study of
EAS attitudes in patients with HIV or AIDS described dying slowly, “a little piece at
a time” (pp 363) [26]. In such cases, a request to die may express the fantasy of
killing off the bad self, leaving the healthy self to survive or be reborn [20]. PAS
requests may express rage: rage at the doctor for distancing himself or for not
providing a cure, rage at the world, or rage at themselves. Rage can induce a
wish for revenge with fantasies of harming others by dying [19, 20]. EAS requests
based on revenge have been documented in palliative care patients [21]. Guilt
may motivate PAS requests in patients who equate their illness with personal
failure. For example, it has been suggested that a patient might attribute her
cancer to unacceptable emotions or bad deeds and a PAS request could reflect
the need for self-punishment and atonement [19, 20]. In one case, a teacher
with end-stage AIDS is allowed through his doctor’s exploration of his suicide
wish to reveal how exhausted he is by trying to “be a role model” and “put on a
good face” for others (pp 216-217) [27]. It would seem that he may feel guilty or
ashamed at not living up to the perceived standards of others, and suicide allows
him to save face. The author’s [27] description of how the doctor’s social
intervention facilitated the patient and his loved ones adapting to his changed
needs is an excellent example of how doctors might deal constructively with a
terminally ill patient’s wish for suicide. Not every request for PAS is determined by
psychodynamics, but this cannot be known unless the doctor has the training and
capacity to consider these possibilities and to talk with the patient in depth. To act
on a PAS request because the patient is judged rational and competent without
exploring the possible hidden meanings of the request is simplistic and can
ignore the patient’s unspoken needs [20].
         Physician-Assisted Suicide: A Review of the Literature Concerning         179
                 Practical and Clinical Implications for UK Doctors


     Countertransference, the mirror image of transference, is when a doctor
reacts to the patient based on his or her own intrapsychic issues or background.
It is generally assumed that doctors can accurately assess patients’ requests for
PAS apart from their own intrapsychic conflicts and personal history. However, it
has been cautioned that Countertransference can affect doctors’ assessments of
PAS requests, potentially leading to errors in classifying patients as appropriate
or inappropriate for assisted suicide [19]. Doctors who are affected by counter-
transference or who have psychologically committed themselves to PAS may be
prone to accepting patients’ reasons for PAS at face value without thorough
exploration [28,29], as illustrated by the following examples. An Oregon doctor
who provides PAS said, “... I learned it very quickly... trying to talk somebody out
of it or to really assess their motivation... the patients were quite resentful of that.
Pretty quickly I could take at face value what they’re saying and then spend most
of the rest of the time exploring with them how they understand about their
options” (pp 458) [24]. Patients and their family members described doctors who
were willing to prescribe a lethal overdose but who avoided discussing the
patient’s motivations or state of mind in requesting PAS. A wife said, “My
husband, with the advice of a doctor friend that lives in [another state], went to
his cardiologist... And he told the doctor that he needed Seconal. And this doctor
has known my husband for a long time, and all he said was, ‘I trust you have a
good reason’, and gave it to him, a prescription for it” (pp 1261) [30]. In a more
extreme example, a family member found that after a visit with the patient’s
oncologist, the prescription for a lethal overdose had been tucked into her bag
secretly during the appointment [30]. A case report of a man with terminal lung
cancer is notable for the difference between assessments of his psychiatric history
by clinicians who prioritized PAS and by clinicians who prioritized treatment
(Table 3) [16].

   One of the commonest Countertransference reactions is over-identification
with the patient. Doctors treating terminally ill patients can experience
‘pseudoempathy’, feeling the patient’s suicidal wish is ‘normal’ and that they
would feel the same way [20, 29]. Doctors often over-identify with strong-willed,
determined patients in PAS, as found in an Oregon study [24]. It is not always
evident when ‘identification’ becomes ‘over-identification’. For example, doctors
working with HIV patients in the San Francisco Bay area were more likely to have
180                     PHYSICIAN ASSISTED EUTHANASIA



assisted a suicide if they identified their sexual orientation as gay, lesbian or
bisexual [31]. The authors believe this finding could have two explanations: The
doctor’s sexual orientation may facilitate a therapeutic identification, allowing a
better understanding of the patient’s situation, or it may contribute to over-
identification that distorts doctor-patient decision-making around the patient’s
PAS request.

    Two psychiatrists [32, 33] analyzed a case of PAS as reported by Dr. Timothy
Quill, an American internal medicine physician who is a PAS proponent. Early in
his advocacy for PAS, Quill published articles [34, 35] and a book [36] about
assisting the suicide of a patient, Diane. Diane requested PAS soon after being
diagnosed with leukaemia, with a 1 in 4 chance of survival with treatment. She
told Quill how she was enraged at the oncologist’s assumption that she wanted
treatment and she was convinced that she would die during treatment. Diane
asked Quill for PAS saying she wanted to be in control. Wesley [33] and Hendin
[32] argue that Quill’s over-identification with Diane and her need for control led
to his rapid acceptance of her request for PAS, without exploring why she wished
so desperately for control. Quill’s over-identification can be seen in one of his
articles about this patient when he asserts, “Diane was a friend as well as a
patient” (pp 1039) [35]. The titles of Quill’s publications on Diane’s case
reinforce the impression that he values PAS as an expression of control and
autonomy: ‘Death and dignity: a case of individualized decision making’ [34]
and ‘Death and Dignity: Making Choices and Taking Charge’ [36]. Wesley [33]
interprets that Quill’s assumption that Diane’s request “made perfect sense” (pp
693) [34], and his quick response to Diane’s PAS request with a referral to the
Hemlock Society, may have conveyed the message that he agreed “if you cannot
be fully independent, you are better off dead” (pp 483) [33]. Quill’s familiarity
with the Hemlock Society, which was known to few doctors at the time, is
proposed to imply that Quill had a preexisting interest in PAS that may have
influenced how he dealt with this patient’s request [33]. Certainly Wesley’s point
is a fair one: “It is not a neutral act to refer a patient contemplating suicide to the
Hemlock Society...” (pp 483) [33]. Similarly, it has been suggested that doctors
may influence patients’ decisions when doctors explicitly suggest PAS, as is
common in the Netherlands [14].
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               Practical and Clinical Implications for UK Doctors


Table 3: Clinical and Legal Complexity in a Request for Physician-assisted Suicide

Mr. A, a 63-year-old Oregonian, called a PAS helpline to request PAS the day he
received a diagnosis of terminal lung cancer. He was distraught and saw no
purpose in chemotherapy, saying “I might as well end it”. The worker informed him
that he had actually called a group offering support and palliative care for
individuals considering PAS. He ended up discussing his concerns and described
having suicidal feelings that first began after his mother committed suicide when
he was 21. After her death, he attempted suicide 3 times and was treated for
depression in a psychiatric hospital. With the worker’s support, he decided to get
treatment for his depression from his GP and to start chemotherapy and radiation
treatment which alleviated his physical symptoms. He disclosed his diagnosis to his
daughter, who became involved.

One year later, he obtained a PAS prescription from a doctor who had actively
publicized assisting the suicide of a depressed patient, and who did not consider a
psychiatric consultation to be “necessary” for Mr. A. Another doctor associated
with the PAS movement was in contact with Mr. A to discuss the PAS option. When
asked if this doctor knew of his psychiatric history, Mr. A replied that they “didn’t
get into that. Our conversations were superficial”.

Six months later, Mr. A was admitted involuntarily to a psychiatric ward for suicidal
and homicidal thoughts. In addition to being diagnosed with a depressive disorder
and narcissistic personality traits, he was diagnosed with intermittent delirium,
probably from his numerous sedative medications. During his hospitalization, some
of his doctors did not provide comprehensive psychiatric assessment or treatment,
seeming to compartmentalize his suicidal symptoms under the rubric of PAS. Prior
to his discharge, although firearms were removed from his house based on his risk
to self and others, and guardianship was set up due to his “periods of confusion
and impaired judgement”, his treating doctors did not remove the assisted suicide
drugs prescribed by the PAS doctor because they were unsure of their legal right to
do so. Mr. A had now long outlived his original prognosis of 6 months, so a PAS
doctor gave him a new prognosis of 6 months to live so that his assisted suicide
would be “legal”.

                                                                            Contd…
182                    PHYSICIAN ASSISTED EUTHANASIA



 …Contd

 Mr. A’s suicidal urge receded, but returned 3 weeks before his death when he
 experienced pain from constipation and from stopping his pain medicine in the
 midst of confusion and paranoia. He was desperate from the pain and on the verge
 of taking the overdose. His PAS doctor offered to sit with him while he took it. His
 GP and palliative care worker offered him reassurance, rehydration and a morphine
 pump. He accepted these interventions and his confusion, pain, fear and suicidality
 quickly cleared. He was much relieved in the remaining weeks of his life despite his
 physical deterioration [16].

    As with many patients who request PAS, doctors can have a low tolerance for
situations they cannot control. It is especially difficult to endure a terminally ill
patient’s suffering and to bear his distress [29, 37, 38]. In a survey, 44% of
doctors admitted that they found the anxiety of a terminally ill patient sometimes
unbearable [39]. Lack of knowledge about what to do may lead doctors to
‘do something’ by assisting suicide. The less knowledge doctors have of palliative
care, the more they support HAS [40, 41]. Once doctors know how to alleviate
suffering in terminal cases and no longer feel helpless, support for PAS in those
cases recedes [14]. Oncologists have described providing terminal care and the
associated frustration and sense of failure due to limited therapeutic success as
major factors in job burnout [42]. Hendin [14] suggests that some doctors,
unaware of palliative care alternatives and unable to tolerate lack of control,
may attempt to regain their illusion of mastery over disease and to alleviate their
sense of helplessness or failure by taking an active role in the PAS process,
making death a medical decision. Rene Diekstra, a pioneer of PAS in the
Netherlands, described how some doctors coming before a committee that
reviewed PAS cases were prematurely ready to provide PAS when feelings of
helplessness about the patient’s condition influenced them to overestimate the
rationality or inevitability of the patient’s suicide [32]. Fear of inadequacy and of
abandoning patients by denying the PAS request can be observed in Dobscha
et. al.,’s [24] interviews with Oregon doctors. One doctor favorable to PAS said,
“...I think I would just feel really uncomfortable if I couldn’t help” (pp 455) [24].
Whether or not a doctor chooses to provide PAS, the patient’s request for PAS
can be perceived as a rejection or a condemnation of the doctor’s inadequacy.
As one doctor said, “It’s almost as if your treatments and attempts to make the
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                Practical and Clinical Implications for UK Doctors


patient comfortable have been a complete failure if they’re going to ask for that”
(pp 455) [24].And another: “I feel like there’s something with physician assisted
suicide, personally, where I see it as a rejection of care...somehow the patient is
saying, ‘Whatever you’re doing isn’t good enough. It’s not meeting my needs.’”
(pp 455) [24].

    Some doctors feel deep disgust towards disease and can have a profound
fear of death and the helplessness that accompanies illness. Dr. Lewis Thomas
writes, in an unusually naked portrayal of these feelings, “Death is shocking,
dismaying, even terrifying...A dying patient is a kind of freak...an offense against
nature itself” [43]. Some individuals become doctors as a way of dealing with
their death anxiety [44, 45]. Doctors’ fears of death and of other issues around
PAS can contribute to their avoiding much-needed discussions with patients
about their impending death, both in doctors who support and who reject PAS.
An Oregon doctor said about a PAS request, “I kind of dealt with the medical
issues and I didn’t square up with it...I avoided it” (pp 454) [24]. This reaction
can lead to doctors giving PAS prescriptions to patients without adequate
evaluation [30], as described earlier. But importantly, this can also lead doctors
who are against PAS to reject any discussion about death with the patient; in
some cases the doctor severs the relationship altogether in reaction to a PAS
request [46]. For example, a patient terminally ill with cancer “described how she
could detect that her oncologist became “really uncomfortable” talking about PAS
or “anything” about dying, and she changed the subject for him. She said, “I
learned that he’s a baseball fan and much more comfortable if I change the topic
to baseball...It’s awful when you have to try to make them feel comfortable, but
that’s the way it is” (pp 1260) [30]. In the case of another patient, who wept with
frustration as she described trying to get her doctor “to sit down and listen”, “Her
clinician’s unwillingness to discuss PAS resulted in missed opportunities to
connect with this patient’s deepest concerns, which included her quality of life,
her prognosis, and her suffering” (pp 1261) [30].

   Back et. al., [30] observed that terminally ill patients used talking about PAS
as a gateway to talking about dying and that a therapeutic relationship was often
more important to patients interested in PAS than a lethal prescription. Whether
or not doctors provided PAS, therapeutic relationships could be maintained
based on open communication and on the doctor setting clear boundaries for his
184                    PHYSICIAN ASSISTED EUTHANASIA



or her role [30], and, it would seem, on the doctor keeping the focus on the
patient’s feelings and needs rather than on the doctor’s feelings about PAS.
Meier et. al., [47] give another example of how doctors who choose not to pro-
vide PAS can shut down their patients’ attempts to discuss their impending death:
“Mrs T, a 55-year-old successful lawyer, had struggled with progressive renal
cancer for several years and was increasingly distressed by her progressive
dependency and feelings of isolation. She asked her doctor for advice on ending
her life, saying that she “just [couldn’t] take it any more.” Her doctor recalls
feeling distressed by her request and her evident despair and ill equipped to
explore the reasons for it with her. Instead, she tried to encourage her, saying that
she didn’t believe in helping her patients die and that now was not the time to
give up hope. “You are a fighter and I know that you want to beat this.” She
closed the visit by saying, “Hang in there,” and then gave the patient a pat on the
back. Mrs T...took an overdose of sleeping pills 1 week later” (pp 3011) [47]. The
authors suggest that the doctor’s discomfort with both her patient’s desperation
and the request for PAS interfered with exploring the patient’s reasons for the
request, and may have left the patient feeling alone and without options.

    Doctors can experience PAS very positively. Many in an Oregon study
emphasized how involvement in PAS caused them to become better at talking
about death and providing palliative care [24]. That the PAS request functions as
the means towards having an open discussion about the patient’s death echoes
reports by patients and families who seek PAS [30]. Both studies [24, 30] give the
impression that for doctors who participate in PAS, PAS is the necessary stimulus
to deal with death in a way that is meaningful and adequate for patients, and the
doctors thereafter associate provision of PAS with the gratifying experiences of
mastering death and of achieving a special relationship with their patients. The
studies also give the impression that doctors who do not provide PAS often
continue to avoid talking about death altogether. This pattern raises the question
of whether most doctors do a disservice to patients if a PAS request is considered
the necessary basis for addressing patients’ needs around their death.

   As another way of positively experiencing PAS, one doctor described the
pleasure of embracing death while controlling its process so that it is done ‘right’
through PAS: “You know, it’s an odd thing, and you’ve probably heard this from
other physicians, but if you don’t sidestep the process of dying, it becomes almost
         Physician-Assisted Suicide: A Review of the Literature Concerning      185
                 Practical and Clinical Implications for UK Doctors


as pleasurable a thing helping people die right as giving birth.. .And done well,
the process of helping somebody die right is very rewarding” (pp 458) [24]. This
doctor’s interesting equation of death with birth, two biological opposites, hints at
an avoidance of the finality of death through using the fantasy of death as a
‘rebirth’. The fantasy of reunion after death is another way that doctors and
patients can deny the finality of death, as described in cases of PAS [32, 33]. In a
Dutch case that was highly publicized because PAS was used for psychological
distress without any physical illness, a bereaved mother demanded PAS from a
psychoanalytically trained psychiatrist, Dr. Chabot, saying that she felt “pulled to
her boys” (pp 146) [32]. One son had died by suicide and the other by cancer.
As ‘Netty’ drank her overdose of barbiturates during her PAS, she lay on her
younger dead son’s bed in his room with photographs of both dead sons next to
her. Dr. Chabot suggested to her, “Think of your boys” (pp 149) [32] as she lost
consciousness. It seemed that Dr. Chabot had colluded with his patient’s fantasy
of reunion after death [32]. In another case [32,33], Diane, whom Dr. Quill had
provided with a prescription for a lethal dose of barbiturates, came to say
goodbye before her suicide, promising him “a reunion in the future at her
favourite spot on the edge of Lake Geneva, with dragons shining in the sunset”
(pp 693) [34]. In the conclusion of his account of her PAS and of his
participation, Quill writes that he wonders if he “will see Diane again, on the
shore of Lake Geneva at sunset, with dragons swimming on the horizon”
(pp. 694) [34].

    Some doctors share with their patient, or experience unilaterally, an intense
sense of closeness and intimacy through PAS, as Hendin [32] proposes that
Dr. Quill and Dr. Chabot did while assisting in their patients’ suicides. A Dutch
palliative care physician, Dr. Cohen, who estimated that he had performed
euthanasia somewhere between 50 to 100 times and had consulted in many
more, was asked why he became so involved with euthanasia. He replied, “There
is satisfaction in being involved in the terminal phase of life. You become part of a
family...There is a special warmth and intimacy and harmony” (pp 137-138) [32].
Dr. Cohen knew that some might find it strange, but he would often bring a
bouquet of flowers to the euthanasia appointment [32]. A doctor’s need for
closeness can sometimes be intrusive to the patient or family. In the opinion of
one family member, their PAS doctor “lacked boundaries” (pp 1262) [30]. This
doctor had an intense relationship with the patient that included daily telephone
186                    PHYSICIAN ASSISTED EUTHANASIA



calls and home visits. On the night the patient attempted PAS, the doctor carried
out a backup plan after the oral overdose failed. The family member recounts
that after the patient’s death, “[The physician] would go over to the hospital to
see a patient, and she’d call me at 10 o’clock PM and say she wanted to come
over [to our house] and sit in the room where he died and ‘hang out.’ And I’d say
no, and she’d come over anyway” (pp 1262-1263) [30]. After a couple of these
incidents, the relative wrote to the doctor requesting no more contact because he
felt burdened by her behaviour [30].

    An assumption underlying the proposal that doctors, and only doctors, be
legally sanctioned to assist suicide is that doctors are beneficent. Undercutting
this assumption is another long-documented form of countertransference
experienced by doctors: hatred of the patient, often expressed in the guise of love
[29, 48]. The effect of hostile countertransference on doctors’ decision-making
has been described in regard to patients in general [48] and with suicidal
patients specifically [49]. Hostile counter-transference can potentially affect
doctors who accede to PAS requests and doctors who refuse them. I outline the
theoretical origins and effects of hostile countertransference for PAS here, and
follow this with an examination of possible hostile countertransference in two
cases of PAS.

    A doctor may resent the drain of terminally ill and suicidal patients on his time
and emotions. He may unconsciously act out caregivers’ aggressive feelings or
distress, which can stem from exhaustion, their own over-identification with the
patient, or hostility [19, 29]. On a deeper level, a doctors’ inability to cure can
threaten his or her fantasy of omnipotence and provoke a sense of inadequacy,
and this can trigger rage or hatred toward the patient [19, 29, 50]. Doctors may
deal with countertransference hostility in a number of ways: They may attempt to
disavow or counteract their hostility by becoming over-involved. They may feel
obligated to accede to the patient’s request for PAS. Doctors who disagree with
PAS may abandon the patient, both therapeutically and emotionally. Doctors
may transgress professional boundaries normally maintained. They may distance
themselves and ignore opportunities to reassure the patient’s fears or to explore
his ambivalence about death and suicide. Some may simply act out their hostility
by contributing to the patient’s suicide [19, 29, 50]. For doctors in general, the
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                 Practical and Clinical Implications for UK Doctors


understandable need to deny aggressive urges makes it particularly difficult for
them to recognize this reaction to patients: “In some way we are always
reassuring ourselves that our motives are beyond cjuestion because we have
chosen to spend our days in the business of understanding others and helping
them to improve their lives” (pp 253) [50].

   During my search for examples of countertransference, I found no published
analyses of hostile countertransference affecting EAS decisions. This could be due
to a self-reporting bias against disclosing a taboo feeling, possible low
participation of doctors with hostile countertransference in studies of doctors’
characteristics in EAS, or perhaps because hostile countertransference is rare in
the situation of EAS. I did find two accounts by doctors of their participation in
PAS that suggest possible elements of hostile countertransference.

     In his paper, The ambiguity of clinical intentions’ [35], Dr. Timothy Quill
explores his motivations in assisting the suicide of his patient. He asks, “What
were some of my true intentions in prescribing barbiturates for Diane?” In his
exact words, number 3 on his list of’intentions’ is this: “3. To cause her death (to
kill her). Diane was a friend as well as a patient. I wanted her to be able to live as
long as she could find any meaning in her life, and then to die as peacefully as
possible. I had no desire to determine the time or to be the agent of her death,
and to say that I intended to kill her is outrageous. Yet, why the barbiturates ?
There are much safer drugs for sleep. My intentions must have been more
complex” (pp 1039-1040) [35].

     In the above passage, Dr. Quill demonstrates his ambivalence about facing
the nature of, as he later puts it, his “multilayered intentions” (pp 1040) [35]. He
first states that he intended “to kill her”, then immediately disavows this intention
with the disclaimer, “to say that I intended to kill her is outrageous”. His
prescription, which was specifically given for and calculated to be a lethal
overdose, is contemplated as something “to cause death (to kill her)”, then “for
sleep”, then acknowledged as something that is ‘not safe for sleep’ (pp 1039-
1040) [35]. What Quill does not write is interesting as well. He does not write
that it was ‘as though’ or ‘as if he intended to kill her. He specifically writes that
he ‘intended’ to kill her. Another intention he identifies is, “5. To allow her to kill
188                    PHYSICIAN ASSISTED EUTHANASIA



herself” (pp 1040) [35]. But his intention, “3. To cause her death (to kill her)” is
distinct from this. It stands alone and comes higher on his list. At no point in his
paper does Quill write that he feels hatred or rage towards Diane or towards
what she may have symbolized to him. But to intentionally kill someone is surely
one of the most hostile acts possible, and from his own account it appears that
assisting Diane’s suicide had, on some level and to some degree, this meaning
for Dr. Quill. As he summarizes, “...multilayered intentions are present in most, if
not all, end-of-life decisions” (pp 1040) [35].

    Dr. Jack Kevorkian is a pathologist who carried out a confrontational and
exhibitionistic crusade for PAS in the United States for a decade until his sentence
for second-degree murder in 1999 for assisting the suicide of a man with ALS
(MND), an event broadcast on national television. His style and methods in
providing PAS to a series of patients were so repugnant and bizarre that, with few
exceptions [51], those on both sides of the PAS debate share an almost visceral
aversion to referring to him in discussions of PAS. Certainly he is not
representative of the average doctor who provides PAS. However, examination of
his case is informative in terms of possible manifestations of countertransference
in PAS. The following dialogue is quoted from a verbatim transcript of the
videotape Dr. Kevorkian made of his meeting with Marjo-rie Wantz, Sherry Miller
and their families to plan the assisted suicides of the two women the next
day [52]. The videotape was made with their knowledge and broadcast over
television. Marjorie Wantz was a 58-year-old woman with chronic pelvic pain
and Sherry Miller was a 43-year-old woman with progressive multiple sclerosis.
An edited version of their dialogue is presented in Table 4 with phrases italicized
for emphasis.

   In his meeting, Dr. Kevorkian moves from the beginnings of a well-structured
examination of the goals and understanding of these two women and their
families about their wish for PAS. These individuals seem to be deeply relieved
and grateful that they have found a doctor to end their suffering. Then, in a
disorienting shift, Kevorkian moves the group’s focus onto what is clearly an
essential part of his agenda in providing PAS: his interest in organ donation and
human experimentation. I believe that in terms of countertransference, the real
interest here is not in his bizarre preoccupation, but rather in how he relates to
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                 Practical and Clinical Implications for UK Doctors


these two women and what role he designates them in the context of his
preoccupation, of which PAS is part. Interestingly, he couches his proposition in a
caricature of patient autonomy, offering “choices”, “maximum latitude in
choosing”, “options”, and “self determination”. The most revealing phrases he
uses seem to be these: “Sherry’s liver could save two babies.” “Our death is really
valueless, it’s negative...” When Sherry and Marjorie just want PAS, they ‘just
want to get out quick’, he counters, “Sure... some people would say, ‘What do I
owe society?”‘ “...you don’t feel an obligation to other people. I can see your
reasoning there. There’s no judgment at all on my pan” (Table 4). It seems that to
Kevorkian, these two women are Valueless’ and ‘negative’ in their death. Their
only value is if they allow themselves to be disassembled into their useful parts,
as one would recycle the salvageable parts of a wrecked car. He almost seems
impatient, and resentful, that they cling to pieces of themselves that they can’t
use anyway. In Kevorkian’s written description to accompany a painting he did
that shows a man clawing at the sides of a chasm as he falls screaming into a
black void, Kevorkian writes, “This depicts how most human beings feel about
dying...Most of us will do anything to thwart the inevitable victory of biological
death...pleading wantonly and unashamedly, clutching any hope of salvation
through medicine or prayer...” [53]. My sense is that the main feeling that
Kevorkian conveys through his relating to Marjorie and Sherry, and through his
reaction to the human terror of death, is contempt. He may affirm his patients’
lack of fear and their wish to ‘just get out’ instead of ‘clutching on’, but he seems
more to resent that they are not willing to abrogate themselves completely and
on his terms. Freud commented that the opposite of love is indifference rather
than hate [54]. It seems as if his two patients are not real enough to Kevorkian
for him to hate them personally. But what they symbolize to him, the situation of
contending with helplessness and terror in the face of death, is perhaps
something that he reacts to with a deep hostility. On hostility and contempt,
Gabbard [48] suggests that contempt can provide a self preservative function. A
doctor might regard a patient with contempt as a way of exaggerating the
differences between themselves and their patient in order to preserve their own
identity and separateness (pp. 89) [48]. Kevorkian’s most real relationship may
be with his own death anxiety rather than with his patients.
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   Table 4: Extracts from the Transcript of Dr. Jack Kevorkian’s Videotape of his
    Meeting with Marjorie Wantz and Sherry Miller to Arrange their Physician-
                               assisted Suicides [52]

 Dr. Kevorkian begins the meeting by identifying each patient, friend and family
 member present He systematically checks with each patient and family member on
 their wishes, feelings and understanding of the situation. He confirms for the
 record that the patients wrote to him, that they clearly understand assisted suicide
 means they will die, that this is what they definitely want and that their wish has
 been consistent Each woman is very clear that PAS will result in her death and that
 she wants to die. The patients and their families recount their struggles with the
 illness, previous suicide attempts gone wrong, and how they came to ask Dr. Kevorkian
 for assisted suicide. The general sense from this part of the transcript is that the
 patients and families are definite about wanting assisted suicide and that they are
 deeply relieved and grateful that this doctor is going to provide it Kevorkian
 repeatedly checks with each woman, “Are you afraid at all? Do you have any fears?”

 At this point there is an abrupt shift when Kevorkian changes the focus of the
 group by beginning, “I think there should be several options for people...The one
 option is to humanely, quickly and painlessly to have life ended, that’s one
 option...The second option is for example, let’s take Sherry’s case. Now Sherry has
 got a good heart and good organs, except the central nervous system. And I ask
 patients — I do this routinely because it’s just sort of a research project – The
 second option...which is donating organs. Now, Marge you probably could have
 that option too. How old are you?” Marge replies, “Fifty-eight” Kevorkian goes on,
 “Very close to the limit of donating organs, though. And...you have an infectious
 process, too. Isn’t that infected? So you probably couldn’t donate organs, but
 Sherry could.” “...Sherry’s liver could save two bob/’es...And the third option would
 apply to you and Sherry...lt’s a prolonged process in which you’re put to sleep
 under anaesthesia like a hospital operation, routine operation. And you just won’t
 wake up...option three is to do an experiment and you would get choices there.
 See, I want to give the patient the maximum latitude in choosing value of life and
 death. As it is now, none of us really has a maximum opportunity to choose our
 value of our lives, and our death. Our death is really valueless, it’s negative.” “...So,
 these are options that patients should have because that maximizes the self
 determination.”
                                                                                 Contd…
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                Practical and Clinical Implications for UK Doctors


 …Contd
 Marjorie interjects, “What I want to know is...” and asks him a series of intent
 questions to make sure she will get a very detailed autopsy to find out what a
 doctor has “done wrong” to her during her pelvic surgeries. Kevorkian quickly
 brings the conversation back: “Now Marge, what would you pick?” and outlines
 again the “three options” of assisted suicide only, organ donation or experiments.
 Marge seems slightly thrown off, “I never have given it a thought and I’m trying to
 think - [Kevorkian cuts her off] “You will have to think about it and we’ll get back
 to you later on this. Sherry, what would you pick of the two options?” Sherry says,
 “I just want out..Although I’ve never really given it any thought.” Others in the
 group become interested in Kevorkian’s organ donation idea and start to ask
 detailed questions. Specific body parts are discussed in terms of their viability for
 organ donation: heart central nervous system, kidneys, lungs, liver, eyes and
 corneas.

 In response to Sherry’s and Marjorie’s choice of “We just want it quick, you know”,
 Kevorkian several times assures them, “No one judges you that you just want a
 quick one. No one judges you. I mean, it’s just the choice of a person himself or
 herself.” “...Sure, that’s understandable. And beside that, some people would say,
 “What do I owe society? It’s done nothing for me.” “I don’t blame them for that...”
 “I understand your situation, when it’s your own life and your own death, you don’t
 feel an obligation to other people. I can see your reasoning there. There’s no
 judgment at all on my part” Sherry’s friend, Karen, now derails Kevorkian: “I’d like
 to know what’s going to happen to Sherry after it’s over.” And the rest of the
 meeting moves into planning how to handle the media coverage and the logistics
 of the suicides the next day.

     Medicine, a profession dedicated to helping others, can provide an ideal
opportunity to conceal sadism [50]. It is not unusual for altruistic individuals to
have chosen the field of medicine as a defense against their own aggression,
that is, to keep from hurting others [44]. Patients are generally protected from
doctors acting on urges to kill by the ethical and legal boundaries prohibiting
killing, to the extent that this is considered a non-issue in medicine apart from
rare, deviant cases. The legal sanctioning of doctors to assist patients in killing
themselves may create a new, undesirable conduit for the expression of hostile
countertransference. Because of the difficulty of recognizing transference and
countertransference in general, many doctors will deny or be unaware when
192                    PHYSICIAN ASSISTED EUTHANASIA



these forces play a role in PAS decisions and monitoring is inherently com-
promised. Of additional concern, it has been found that even when transference
or countertransference is recognized as driving patients’ requests for HAS, with
psychiatrists involved in the assessment process, it is not unusual for the patient’s
request for HAS to be granted anyway [18].

Unrecognized Depression in Terminal Illness and Physician-assisted
Suicide
The PAS criteria for Oregon, the Netherlands and Lord Joffe’s bill assume that a
doctor assessing mental capacity will recognize depression and appreciate its
influence on a patient’s request for assisted suicide. Those who rely on this
safeguard to prevent the provision of PAS to clinically depressed, suicidal patients
further assume that when depression is recognized, PAS will not proceed. The
evidence suggests that these assumptions are ill-founded. After training on
depression, UK GPs recognize depression in only 39% of all depressed patients
attending their practices [55]. Specialists are not necessarily better. Oncologists
recognize 33% of mild-to-moderate cases of depression and only 13% of severe
depression cases in their cancer patients [56], and nurses similarly under-identify
severe depression in this group [57, 58]. Recognizing depression in suicidal
patients can be complicated by the phenomenon that having decided on suicide,
some individuals appear far from incompetent to make treatment decisions.
Rather, they are calm and relaxed while laying out an eminently cogent case for
why they should be hopeless and want suicide. As part of the negativity of
depression, a patient with a terminal illness may also denigrate palliative
measures and dismiss the possibility of relief, making suicide seem an even more
‘obvious’ choice [19]. Depression can also affect the patient’s perception of the
doctor: Depressed cancer patients are more likely than non-depressed cancer
patients to have increased trust in doctors who mention euthanasia or PAS
explicitly [59].

   Detecting depression in patients requesting PAS is particularly difficult for
several reasons. First, doctors providing PAS are less likely to know the patient
well due to the doctor-shopping that can occur in the patient’s search for PAS. In
Oregon, the median duration of the doctor-patient relationship before death by
assisted suicide is 8 weeks (range 0 to 678 weeks) [6]. Second, depression is
harder to diagnose in patients with terminal illnesses [37]. Depression is
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                 Practical and Clinical Implications for UK Doctors


significantly overlooked and under-treated in late-stage cancer [56, 60] and is
generally under-recognized in palliative care settings [61, 62]. Third, in severely
ill patients, even when low mood is recognized, doctors tend to consider it
‘normal’: an understandable reaction to the situation. This can lead to treatment
not being initiated or advanced [19] or to administration of EAS anyway,
particularly if the patient is elderly and has a serious physical illness [18, 63 ].
There is reason to think that under-rec-ognition of depression will be replicated
in UK PAS situations: UK GPs have been found to consider late-life depression
‘understandable’ even in the absence of terminal illness and to have a strong
nihilism that nothing can be done for these patients [64]. Furthermore, UK GPs
report that their treatment of depression is limited by their skills and by lack of
resources including referrals and time [64, 65].

    Beyond the problem of recognizing depression, the influence of depression on
the wish to die in terminally ill patients can be underappreciated. In the debate
about PAS, individual studies are sometimes cited to argue either that depression
is associated with the desire for PAS, or that it is not, depending on the study and
on the individual’s stance on PAS. In order to clarify the relationship between
depression and the wish for PAS, I searched and found a total of 23 studies of
terminally ill patients that examined both depression and the wish for a hastened
death, including PAS or euthanasia, and that used a control group for
comparison. These studies include the top three diseases for which patients die
by PAS rather than by their illness: ALS (MND), HIV/AIDS, and cancer [6]. The
pattern that emerged was this: Fifteen of the 18 studies that used a standardized
measure of depression, whereby the patient is asked a series of questions
specifically to identify a depressive illness, found that depression is significantly
associated with requests for PAS, euthanasia, or the wish for a hastened death
(83% of studies, 95% CI 61 to 94) [23, 59, 66-81]. In contrast, none of the four
studies that relied solely or predominantly on a clinician’s or car-egiver’s
impression of whether the patient had depression, sometimes based on recall
going back four years [82], found any significant association between depression
and requests for PAS, euthanasia, or the wish for a hastened death (0% of
studies, 95% CI 0 to 0.5) [26, 82-84]. One study that used a standardized
assessment had mixed results, finding that depression was associated with
greater desire for a hastened death, but not with whether the patient would
consider asking for a PAS prescription [85]. Reliance on clinicians’ superficial
194                    PHYSICIAN ASSISTED EUTHANASIA



impression of depression is of questionable validity in studies examining the
relationship between depression and the wish for hastened death since it has
been found repeatedly that clinicians under-recognize depression in medically ill
patients, as described above. In conclusion, studies that systematically assess
depression in terminally ill individuals do not show that all requests for PAS arise
from depression, but they do provide robust evidence that depression plays a
role in the desire for a hastened death, including PAS or euthanasia, in a
significant proportion of those with terminal illness.

   A description by Dutch researchers of their pre-study hypothesis in regard to
the relationship between depression and requests for euthanasia illustrates both
the difficulty of recognizing depression in terminally ill patients and the clinical
bias that can affect assessments of depression in the context of EAS: “Our clinical
impression was that such requests were well-considered decisions, thoroughly dis-
cussed with healthcare workers and family. We thought the patients requesting
euthanasia were more accepting their impending death and we therefore
expected them to be less depressed. To our surprise, we found that a depressed
mood was associated with more requests” (pp 6611) [80]. Using standardized
depression questionnaires, the authors found that depressed cancer patients
were four times more likely to request euthanasia [80]. It is concerning that
examination of their data shows euthanasia proceeded on an unspecified
number of these patients with identified depression, without any indication of
depression treatment or reassessment of the euthanasia request.

    As distinguished from depression, hopelessness is another factor clearly
associated with the wish for a hastened death, PAS and euthanasia [23, 66-68,
71, 75, 81, 86], and can have a stronger effect than depression [71, 86]. Pain
has not been found to play a significant role in the wish for a hastened death
[59, 67, 68, 71, 74, 75, 78], with the exception of two studies [69, 70]. In
HIV/AIDS patients, cognitive impairment has been associated with a wish for
hastened death [87]. It is not only the case that mental illness or distress can
affect requests for PAS. In turn, requests for PAS can affect the quality of
treatment of mental illness and distress: Patients with mental illness who then
develop a terminal disease can receive substandard treatment for their
psychiatric relapses after requesting PAS, partly because doctors become
confused by the competing interests of PAS and clinical care [16] (Table 3).
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                 Practical and Clinical Implications for UK Doctors


Decisions about Physician-assisted Suicide and Euthanasia
can Change
Requests for HAS are often motivated by terror of what will happen rather than
by current symptoms [14, 16, 21]. Facing uncertainly, some patients fill the
vacuum with fantasies and fears. When fears and palliative care needs are
addressed, the request for an assisted death usually disappears, as illustrated by
specific cases [16, 32, 46]. But a tendency to adhere to the minimum legal
standards for assessing mental capacity for PAS, and for doctors to cut off
discussion of PAS if they do not agree with the practice, can cause missed
opportunities for resolving the unnecessary fears that can motivate PAS requests,
for example, a patient’s fear that she will be forced to have a feeding tube [28]
or the unnecessary fear of a man with ALS (MND) that he will die in pain, with
the sensation of burning legs, and choking on his own secretions [46].

    In the terminally ill, the desire to die has been found to decrease over time [69].
Over two months, half of terminally ill cancer patients had changed their minds
about wanting euthanasia or PAS. Decision instability was particularly associated
with depressive symptoms [70]. Anti-depressant treatment can alleviate the desire
for death due to major depression even in terminally ill patients [88]. In addition
to antidepressants, effective depression treatments in the terminally ill include
rapid-acting psychos-timulants, electroconvulsive therapy and focused
psychotherapy [89-92]. Improvement in depression is generally accompanied by
an increased desire for life-sustaining interventions in the elderly and the
terminally ill [93-96]. In the Netherlands, pain alleviation resulted in 85% of
patients withdrawing their requests for EAS [97]. In an Oregon study of PAS
requests, 46% of patients who received substantive palliative interventions
changed their minds about assisted suicide, as compared to 15% of patients who
received no substantive intervention. Interventions had been implemented in
about half of instances where they were recommended [98]. Delirium can affect
mental capacity and decision stability in PAS [16]. Delirium can be present in up
to 85% of patients in the final stages of cancer, yet is often misdiagnosed or
unrecognized by non-psychiatric doctors [92]. In one study, patients’ requests for
euthanasia were more persistent when both the family and the patient wanted
euthanasia, suggesting that when families reinforce the request it may be harder
for patients to change their minds and retract their request [21].
196                    PHYSICIAN ASSISTED EUTHANASIA



Psychiatric Evaluations and Physician-assisted Suicide
In Oregon and in Lord Joffe’s bill the patient is to be referred to a psychiatrist or
psychologist if a PAS doctor believes that the patient’s judgment is impaired by a
psychiatric or psychological disorder. Referral rarely takes place. In Oregon, only
5% of PAS cases were referred for a psychiatric evaluation in 2005, down from
31% in 1998 [6]. In the Netherlands, EAS requests for reasons of physical illness
are to be referred for a psychiatric opinion as per the Oregon guidelines.
Furthermore, in all cases of EAS for a mental disorder, which became legal in the
Netherlands in 1994, referral to a psychiatrist is advised. Ten percent of Dutch
EAS deaths were for reason of a mental disorder. But only 4% of all Dutch EAS
requests were referred to a psychiatrist, indicating a serious under-refer-ral rate
for the psychiatric assessment of EAS requests. What is more, EAS is sometimes
carried out when a psychiatrist has assessed that the case does not meet criteria,
despite Dutch guidelines [18].
    The application of EAS to patients solely for a mental illness is worth
addressing here as an aside since Lord Joffe has stated that he favors an
eventual “much wider application” (pp53) [4] and that the current bill “is based
on the principle of autonomy and only a competent patient can make a decision
in relation to his or her own life. For people who are mentally incompetent there
needs to be, perhaps, a different system... “ (pp56) [4]. Euthanasia and PAS are
legally applied to individuals solely for their mental disorder in both Belgium and
the Netherlands [3]. Patients requesting EAS for a mental disorder in the
Netherlands tend to be younger and female, with psychiatric diagnoses in
completed EAS cases consisting of mood disorders, personality disorders, and
‘unspecified’ [18]. Highly publicized Dutch cases include EAS by psychiatrists of a
woman for major depression and bereavement [7] and a woman for depression
and anorexia nervosa [99]. Patients in the Netherlands and in Belgium who want
EAS for reason of their mental illness generally ask their psychiatrists to assess
their request for assisted suicide or euthanasia. If the psychiatrist agrees, he
usually takes on the additional role of prescribing the lethal overdose or carrying
out euthanasia [3 ]. It has been observed that evaluating a patient’s wish to die
while treating the patient for a mental illness destroys the therapeutic boundaries
that facilitate treatment [29, 99], and the situation of a psychiatrist carrying out
euthanasia on his patient is suggested to be “a highly complex situation, which
has to be treated cautiously” (pp 406) [3].
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    For patients requesting PAS for their terminal physical illness, a thorough
psychiatric evaluation can be a crucial catalyst for treatment and can alleviate
distress [14]. But the evidence suggests that mandating psychiatric evaluations for
all PAS requests will not solve the problem of patients inappropriately receiving
PAS. Only 6% of Oregon psychiatrists were very confident that in one evaluation
they could adequately assess whether a patient had the mental capacity for a
PAS request [100]. Indeed, it has been suggested that the assessment of PAS
requests in the terminally ill is so complex that it should be done by liaison
psychiatrists [37]. But because many UK hospitals to not have access to a liaison
psychiatry service [4], UK patients will not have uniform access to psychiatrists
qualified to assess their PAS requests. Bias may exist in psychiatric competency
evaluations because the majority of psychiatrists willing to evaluate a patient’s
capacity for PAS are in favour of PAS [100] and psychiatrists’ ethical views for
and against PAS affect clinical opinions regarding patient capacity for PAS in
different directions [101]. In addition, psychiatrists are not immune to the effects
of transference and countertransference, as illustrated by the earlier case
example of Dr. Chabot’s participation in his patient’s assisted suicide [32].

   Cases of PAS in Oregon show that if a patient is assessed as depressed or
lacking capacity for PAS, the patient or her caregivers may continue to seek
assessments until the desired outcome is provided by agreeable doctors, includ-
ing psychiatrists and psychologists [16, 28]. In the Australian Northern Territory,
where EAS was legal for a short period before revocation and psychiatric
assessments for EAS were mandatory, psychiatrists found that patients requesting
EAS sometimes withheld key information because they saw the psychiatric
assessment as a legal hurdle to be overcome. A gatekeeper role for psychiatrists
was found to be unworkable [102].

The Effect of Physician-assisted Suicide on Doctors
Studies have varied in how they represent the effect of EAS on doctors, possibly
because of doctors’ mixed feelings and the varied effects of participating in PAS.
In a national survey in the US, 58% of doctors who had assisted a suicide
reported feeling very comfortable with having taken that role, yet only 39% would
definitely do it again [103]. Among oncologists, 53% reported receiving comfort
from helping a patient with EAS and 24% regretted having performed EAS. A
third felt that the emotional burden associated with performing EAS had affected
198                     PHYSICIAN ASSISTED EUTHANASIA



their practice of medicine, some positively by making them more sympathetic
listeners and others negatively, for example through emotional burnout [104].
Dealing with requests for assisted suicide or euthanasia is emotionally intense
and often engenders discomfort [24, 32, 105, 106]. A Dutch doctor who had
carried out euthanasia many times said, “The price of any dubious act is doubt...I
don’t sleep for the week after” (pp 138), and “The idea that each case gets easier
and easier is just rubbish” (pp 137) [32]. Doctors rarely seek support from their
colleagues when dealing with PAS requests, and contend with the issues in
professional isolation [24,106]. In doctors who control their aggression through
the practice of helping others [44], or whose sense of self is carefully constructed
on the basis on being a beneficent and caring figure [29], participating in PAS
may create a sense of instability or conflict. For example, one doctor said, “I find
I can’t turn off my feelings at work as easily... because it does go against what I
wanted to do as a physician...” (pp 457) [24]. Another said that ending a
patient’s life made him or her feel “conflicted, at odds with myself [and my role]”
(pp 510) [104]. And another worried about “playing God a little too much” (pp
510) [104]. Dob-scha et al. [24] suggested that some Oregon doctors feared
being ‘damaged’ by participating in PAS, giving the example of a doctor asking,
“Are you doing something that you’re going to be uncomfortable with
later?...you’ve got an indelible mark upon your soul?” (pp 453-454) [24]. Oregon
doctors usually feel unprepared to deal with PAS requests, having dealt with few
in their practice, and worry about lack of training and making legal mistakes.
Not knowing the patient well makes decision-making harder. Most who choose
to assist in suicide find that it requires a large investment of their emotions and
time. Doctors whether they had refused or acceded to the PAS request did not
regret their decision, yet many who had acceded were uncertain whether they
would do so again [24]. One described the surprise of experiencing the
difference between abstract agreement with PAS and carrying out PAS: “Yeah,
there is a huge gap between idealistic agreement with a thought and actually
being involved in it. It’s just an immeasurable gap that I hadn’t anticipated” (pp
454) [24]. Others described an unsettling mismatch between the reality and what
they had imagined as the type of person they would assist to commit suicide: “I
kind of imagined that if I had been asked it would be by somebody that was
already at the state of being in pain and feeling like they were a burden. And at
that point, she was living on her own and doing very well” (pp 454) [24]. “But to
actually do this to a person who is functional, who is not clearly terminally ill, that
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                Practical and Clinical Implications for UK Doctors


is a, that’s a whole different ballgame” (pp 454) [24]. Doctors also need to
consider how they would feel if a patient they assisted in suicide were found not
to have a terminal illness. The Royal College of Pathologists points out that post-
mortem studies consistently show a 30% error rate in diagnosing cause of death
[4]. In a recent case, a woman with depression falsified documents to create a
history of terminal liver cirrhosis. The Swiss doctor who was thus deceived and
administered her lethal injection committed suicide after discovering from a
routine autopsy that she had no physical disease [107].

Guidelines and Reporting in Physician-assisted Suicide
As shown by the examples above, countries that legalize PAS or euthanasia using
safeguards such as in Lord Joffe’s bill can decrease but not eliminate the number
of patients who are inappropriately assisted in suicide despite not meeting PAS
criteria. In regard to the success of guidelines in achieving full reporting of PAS
and euthanasia, this varies substantially. The Oregon Department of Human
Services notes that it can monitor PAS only in patients who legally receive
prescriptions for lethal medications and not in patients and doctors who may act
outside the provisions of the law [6]. However, a survey of dying Oregonians
identified no unreported cases of PAS [108], suggesting either no, or negligible,
underreporting of PAS in Oregon.

   In contrast, reporting of PAS and euthanasia in the Netherlands is very poor.
Despite multiple revisions of the Dutch HAS monitoring system, almost half of
HAS cases were still unreported by doctors in 2001 [109]. In cases of unreported
HAS [110], the most common reasons given by doctors for not reporting EAS
were primarily self-serving: 92% of GPs did not report ‘to spare himself the
bother of a judicial inquiry’ and 79% of nursing home doctors did not report
because they believe that the law has no place in EAS decisions. This suggests
that the power of legal safeguards to determine the practice and monitoring of
PAS may be limited primarily by doctors’ willingness to comply based on their
own interests.

The Medical Profession and Physician-assisted Suicide
Lord Joffe’s bill would make doctors uniquely exempt from the legal offence of
assisting suicide, an offence that would still apply to all other categories of
person with a penally of up to 14 years’ imprisonment. In a culture that
200                    PHYSICIAN ASSISTED EUTHANASIA



encourages medical action, therapeutic omnipotence, and technological aspects
of care [29], the administration of death by doctors on request may be culturally
attractive. In common with other Western cultures, British society’s ideal of ‘the
good death’ increasingly incorporates the value of personal autonomy in terms
of control over the detailed circumstances of death, and also idealizes the nature
of the process by which doctor and patient arrive at the conclusion that PAS is the
best means to achieve that end [22]. In view of Switzerland’s proof that the
technical aspects of assisting suicide do not require a doctor’s skill, it would seem
that despite PAS proponents’ emphasis on personal autonomy, doctors are
needed on some deeper level to fulfill another sort of role in PAS. It may be anal-
ogous to the situation of transference; British society wishes doctors to be
omnipotent and beneficent, providing reassurance, sanctioning its choices, and
absolving it of responsibility for life and death decisions.

UK Doctors should Consider their Stand in the Physician-
assisted Suicide Debate
In a recent representative survey of UK GPs and hospital specialists who reported
on their most recently attended patient death, 97.4% did not think that a new UK
law allowing euthanasia or PAS would have enabled the patient to receive better
or more appropriate care, and it was rare for doctors to feel that the current law
had interfered with their preferred management of the patient’s death [12].
Medical professional societies in the UK have varied in their response to Lord
Joffe’s bill to legalize PAS. The British Geriatrics Society opposes PAS and
considers elderly patients to be vulnerable to its misuse [13]. The Royal College
of Psychiatrists considers assisting suicide to be incompatible with the
psychiatrist’s role of trying to prevent suicide, and is deeply worried about the
possible pressures that legalized PAS could place on psychiatric patients [111].
Both the Royal College of General Practitioners and the Royal College of
Physicians reversed from neutrality to opposition to the legalization of PAS. The
British Medical Association is currently taking a neutral stance and considers the
legalization of physician-assisted suicide to be ‘a matter for society’. Like many
others, the BMA has responded to concern about PAS by emphasizing the need
to ‘press for robust safeguards’. But as described in this paper, safeguards have
not adequately protected patients in other countries from the misapplication of
PAS and doctors should not feel reassured that they will in the UK. Findings from
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                Practical and Clinical Implications for UK Doctors


other countries also indicate that patients who experience depression during their
terminal physical illness may constitute a group particularly vulnerable to the
misapplication of PAS, especially if they are elderly or have a previous history of
mental illness.

    The British government is taking a neutral stance while observing the
reactions of society, Parliament and UK professionals to Lord Joffe’s bill. UK
doctors have access to an adequate body of research and clinical expertise to
inform themselves, government and the public of the clinical repercussions of
legalizing PAS in the UK. It is incumbent on doctors to formulate their position on
PAS and to decide whether providing PAS to the few who would correctly qualify
in legal terms truly outweighs our responsibility to advocate for the protection of
other patients who would be place at risk by its legalization.

Summary

• A bill to legalize Physician-assisted Suicide (PAS) in the UK recently made
  significant progress in Parliament and will be reintroduced in the future.

• Requests for PAS and doctors’ decisions to assist suicide can be influenced by
  coercion and by unconscious motivations in doctors, patients and caregivers.

• Depression is greatly under-recognized in terminally ill patients and increases
  the risk of the inappropriate use of PAS.

• Evidence from other countries shows that safeguards do not adequately
  protect vulnerable patients from the misapplication of PAS.

Competing Interests
An early draft of this paper was provided to the Law Commission for its review of
the murder law in England and Wales as it pertains to suicide pacts and mercy
killing and to the Royal College of Psychiatrists in response to a call for members’
comments on the Assisted Dying for the Terminally ill Bill. Subsequently, the
author was asked to join a working group developing the Royal College of
Psychiatrists’ statement on physician-assisted suicide. An early draft of the paper
was provided in response to a request by Professor the Baroness Finlay of
Llandaff, a member of the House of Lords Select Committee on the Assisted
202                     PHYSICIAN ASSISTED EUTHANASIA



Dying for the Terminally ill Bill. A limited number of summary points and
examples from an earlier version of this paper was presented by the author to
the All Party Parliamentary Group on Dying Well ‘Assisted Dying for the
Terminally ill Bill’ seminar at the House of Lords on 27 April, 2006.

Acknowledgement
Funding: none. Opinions in this paper are the author’s alone and do not rep-
resent those of any institution or organization.

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Pre-publication history
The pre-publication history for this paper can be accessed here:

http://www.biomedcentral.eom/1471-2296/7/39/prepub
                                                  8
       The Right to Die with Dignity: An
         Argument in Ethics and Law
                                   Raphael Cohen-Almagor*

        The article discusses the way people wish to die, analyzing the
        legal situation in countries that permit either euthanasia or
        physician-assisted suicide. While criticizing the Dutch, Belgian
        and Swiss models, I argue that the Oregon model is the one with
        apparently little abuse. Building on the experiences of Oregon,
        the Netherlands, Belgium, Switzerland, and the Northern
        Territory of Australia, the article ends with a set of guidelines to
        improve the conduct of PAS.


M    y journey in the field of medical ethics has started in 1991. The major result
     of this journey is a book entitled: The Right to Die with Dignity: An Argument
in Ethics, Medicine, and Law, which was published in 2001 (Rutgers University
Press). The journey began when I participated in a seminar conducted by Ronald
Dworkin on “Abortion, Dementia, and Euthanasia” at Oxford University,
England. At the time, he was writing Life’s Dominion, a book that was published
in 1993 (Knopf). This was the most fascinating seminar I had ever attended. My
research there took an unexpected twist and influenced my life and career in
many ways, as I still commit some 30 percent of my research time to death,
dying, and end of life issues.

*   Chair in Politics and Deputy Dean for Research. The University of Hull.
    E-mail: R.Cohen-Almagor@hull.ac.uk

© 2008 Health Law and Policy. This article was originally published in American University Washington
College of Law Health Law and Policy Brief, Health Law & Policy, Vol. 2, Issue 1 (Spring 2008), pp. 2-8.
Reprinted with permission.
Source: http://www.ceeol.com/aspx/
214                    PHYSICIAN ASSISTED EUTHANASIA



   I decided to title my book The Right to Die with Dignity. Dignity has many
meanings. To have dignity means to look at oneself with self-respect, with some
degree of satisfaction. Some of us, not all of us, would like to be able to
determine the time of our death. We are born with no idea that we are about to
come into this world and, in turn, some of us would like to decide the time in
which we depart from this world. This is the argument that some people offer –
that individuals should be allowed, whenever it is possible, to choose the time of
their death.

   Another issue I would like to discuss is the way that people die. Nowadays,
many people die in hospitals, but that is not true in all countries throughout the
world. In the Netherlands, many people die at home. This begs the question of
whether we should die with the help of medical professionals or whether we
should die with the help of our loved ones. It is a question of whether we can
maintain our autonomy and self-respect at the end of life, without humiliation
and without losing our honor and dignity. These are all questions we face at the
end of life, especially when one considers the individuals who live with lingering
diseases for months and even years, and are afflicted by certain kinds of cancers
and other illnesses we are currently unable to cure.

    Life qua life is not that important; instead, what one does with one’s life is
significant. Life in earnest is important, not just the mechanical forces that define
life in the provincial meaning of the term. This is the argument offered by
individuals who want to control the time of their death. The fact that one’s heart
is beating or that one is able to breathe are not sufficient reasons to maintain
life. You must try to reconcile the duty of keeping a person alive – a duty
bestowed upon medical professionals through the Hippocratic Oath – with the
individual’s right to keep her dignity, which may also be considered to have
intrinsic value.

   We face a dilemma. Suppose there is a person who suffers great pain and
wants to die. Those who believe life is intrinsically valuable object to taking life
and to taking any action on the person’s desire because the end of life is
something granted only to nature, and is not a decision that is incumbent on
human beings. However, this objection ignores the autonomy of the agent’s
concerns, because she might say: “I would like to die. I would rather die in these
           The Right to Die with Dignity: An Argument in Ethics and Law          215



circumstances because I don’t feel that I am adding anything just by surviving.”
Can life be intrinsically valuable independent of the interests of the individual?
Does the state have the right to impose its will over the will of the individual? This
is the dilemma we face.

   I would like to introduce another notion that accompanies the notion of
dignity – the notion of respect. The objections to the sanctity of life moral that
speaks about a higher being or nature as the only agent entitled to take life is
accompanied by a respect-for-others’ argument, derived from Immanuel Kant
and the Kantian theological school which accords all people equal respect.
Respect for a person means conceiving of the other as an end rather than as a
means to something. As Kant explains, persons are not merely subjective ends
whose existence has an effect on our actions, but such beings are objective ends;
they exist as ends in themselves. An objective end, Kant maintains, is one for
which there can be substituted no other end, for otherwise nothing of absolute
value would be found anywhere.

   We should give equal consideration to the interest of others and grant equal
respect to a person’s life objects so long as they do not deliberately undermine
the interests of others by interfering in a disrespectful manner. The popular
culture of a democratic society is committed to seeking the influence of social
cooperation that can be discerned on the basis of mutual respect between free
and equal individuals. This line of reasoning should be supplemented by our
emphasis on the notion of concern, which is seen as the value of well-being. We
ought to show equal concern for each individual’s good, to acknowledge that
human beings are not only rational creations but irrational, emotional creatures.
Treating people with concern means treating them with empathy – viewing
people as human beings who may be furious and frustrated while, at the same
time, are capable of smiling and crying, of careful decision-making, and of
impulsive reactions. Concern means giving equal weight to a person’s life and
autonomy. This is a combination of mind, body, and communication between
the agent and those around her bed.

   In opposition to those who speak about the sanctity of life, there is another
school of thought that emphasizes quality of life. Quality of life in many respects
has positive connotations, for example in rehabilitation, in cosmetic treatments,
216                     PHYSICIAN ASSISTED EUTHANASIA



in psychiatry, and in psychology. However, when discussing end-of-life issues,
ethicists who support euthanasia and Physician-assisted Suicide (PAS), often refer
to quality of life in a negative sense rather than in a positive sense; they do not
seek to improve the patient’s life, but rather to end it because the individual’s
quality of life is so poor. Quality of life considerations feature in end-of-life
discussions, both in scholarly settings and in hospitals corridors.

   I am a political scientist. I do not believe in pure philosophizing and being
aloof from reality. Thus, after learning and studying what has been done in
end-of-life care in the democratic world, I carried out fieldwork in hospitals and
research centers. I should say that my conclusions are confined to the democratic
world. I am not concerned with all countries around the world, not because I
don’t think that what I am saying is inappropriate or irrelevant to the entire
world, but simply because I am realistic. If a country is not founded on the
notions of equality, liberty, pursuit of happiness, individuality, and autonomy,
then it would be futile for me to speak about these values. I can speak endlessly,
but it would not strike any chord.

An Examination of Various Countries’ End of Life Laws
In 1996, the Australian Northern Territory, comprised of mainly native
Australian-indigenous people, enacted a law that allowed PAS in that province.
For six months, this law was in operation, evoking a lot of criticism and debate in
Australia at large. After six months, the national Senate of Australia decided to
strike down and annul the law. During that period of time, a few people were put
to death with PAS. For a short period of time, however, Australia’s law created an
important precedent.

   As background, euthanasia, according to the Dutch definition, is the
deliberate ending of life by taking action, usually by injection, to the veins of the
patient, in order to kill him or her. PAS gives the control to the patient rather than
the doctor. The doctor prescribes a certain lethal medication that can be put into
yogurt or pudding, and the patient can ingest the yogurt with the lethal
medication and kill herself. The major difference between the two is that, with
euthanasia the doctor is in control, but with PAS, the patient is in control.
          The Right to Die with Dignity: An Argument in Ethics and Law        217



    In England, there is no law allowing either PAS or euthanasia. There had
been a few precedents with people in persistent unawareness, people with
conditions similar to that experienced by Terry Schiavo. Most recently in the
United Kingdom, there was the case of Diane Pretty, a woman in her fifties who
suffered from ALS (Lou Gehrig’s Disease), a degenerative disease which spreads
from the limbs up, and eventually suffocates the patient. Unfortunately, this
terrible illness is deadly and untreatable. Diane Pretty attempted to change the
country’s laws so that she could end her own life with the help of a doctor, and
her case went all the way to the House of Lords (Queen on the application of
Dianne Pretty v. Director of Public Prosecutions and Secretary of State for the
Home Department UKHL 61 (29 November 2001)) and later to the European
Court of Human Rights, where it was ultimately unsuccessful. The European
Court of Human Rights ruled that England could decide on these matters. At
present, the position in England is that neither PAS nor euthanasia is permissible.

     Most if not all 50 states in the United States had, at some point or another,
initiatives to legislate end-of-life laws, either PAS or some sort of end-of-life
mechanisms. All such laws, with the exception of one, have failed. There may be
some further attempts in Maine, Vermont, and California, but only Oregon to
date has enacted PAS legislation. Every year, Oregon publishes a very detailed
report about the previous year. Since the legislation was enacted in 1997, the
situation has been more than satisfactory. Oregon can serve as a model for
other nations.

    Canada does not have any laws on PAS or euthanasia. The most important
precedent in the country took place in 1993, when Sue Rodriguez, another ALS
patient seeking to end her life with the country’s approval, appealed her case to
the Supreme Court of Canada (Rodriguez v. British Columbia (Attorney General)
[1993] S.C.J. No. 94). In a 5-4 decision, the Court decided not to grant her
permission to receive PAS. In spite of the unfavorable decision, Ms. Rodriguez
received PAS from an anonymous physician, and the case was closed because of
lack of public interest. I spoke with three Canadian Supreme Court justices about
her case. One of them, who sat on this judgment, a very respectable judge in the
five-person majority, told me that this was the most difficult decision he had
faced in his life.
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    Switzerland has taken the most interesting position on these end-of-life issues.
Since the 1960s, several end-of-life organizations can be contacted to cater for
assisted suicide. The end-of-life services do not need to be performed by a
doctor; anyone can perform the service. Although most people might opt for a
doctor, a relative (wife, husband, sister, brother, father, or mother) is permitted to
assist the person seeking end-of-life services. In addition, the assistance is not
provided in hospitals; rather, it is done wherever it is feasible to be performed.
One of the leading supporting organizations, DIGNITAS, is actually renting
places to provide end-of-life services. At one point, the organization was renting
an apartment, but neighbors grew upset because they saw people coming in and
bodies going out. They felt such occurrences were bad for the reputation of the
building. Then the organization opted for hotels, but hotel managers also did not
like the idea of guests coming in and corpses coming out, since it was damaging
the hotels’ reputation. I understand that, consequently, DIGNITAS provided its
services in remote parking lots, which was fine according to the organization.

   The Netherlands and Belgium have legislation permitting euthanasia.
Euthanasia has been popular in the Netherlands since the early 1970s, so it has
almost 40 years of experience with euthanasia. Similar developments took place
in Belgium, and relevant laws were passed in both countries in the span of six
months during 2002.

    I would like to highlight some of the concerns I have with regard to these two
countries. When I wrote The Right to Die with Dignity, it was clear to me that I
could not write this book without paying attention to the Netherlands. When I
started my journey, I was very much in favor of euthanasia. Ethically speaking, I
was convinced of the importance of euthanasia. As a political scientist, however,
I had to examine the actual practice of euthanasia on the ground.

    In 1994, I was invited to The Hastings Center in upstate New York, which is a
great place for people interested in medical ethics. The Hastings Center is a
relatively small institute with vast resources on medical ethics. For six weeks I
read many journals and books about Dutch euthanasia. I was puzzled before I
started; I was even more puzzled when I ended this seven-week-long research
excursion.
          The Right to Die with Dignity: An Argument in Ethics and Law          219



   The data about the Netherlands is quite clear. Since euthanasia is such an
important issue, the country’s government decided to appoint a committee of top
researchers in the fields of medicine, sociology, statistics, and research
methodology to study all aspects of euthanasia. The committee gathered
qualified physicians who interviewed practitioners of euthanasia. The lengthy
questionnaire was comprised of 250 questions. In 1990, the Netherlands
published the first extensive report. I commend the country’s government for
taking this initiative. The data was clear, but the interpretations contradictory. As
an academic, you learn that life is not black and white, but full of shades of gray
and pink. In contrast, the interpretations of this report were disparately varied;
some said the report and its findings show that the Netherlands was on the right
track, presenting a model that more nations should follow, whereas others said
the Netherlands served as a model to explain why euthanasia should never be
permitted, advising other countries not to follow suit because the Dutch system
was risky. As a researcher, I was baffled. Thus, in order to resolve this issue, I
had to visit the Netherlands. At this point, my book was nearly finished, and its
thrust was in favor of euthanasia.

   I went to the Netherlands in 1999. Before arriving, I got in touch with the
major figures in the Dutch euthanasia policy and practice. I contacted the person
who wrote the law, the people who were part of that prestigious committee, the
person in charge of medical ethics in the Dutch Ministry of Justice, the people
who were heading the medical ethics departments in the Netherlands, scholars
who wrote about euthanasia, and practitioners who practiced euthanasia. In
total, I contacted 30 highly distinguished people who were very familiar with the
topic, far more familiar than I was, as at that time I had been working on these
issues for a mere eight years. Only one person, Dr. Chabot, explicitly declined
my request for interview. He did, however, answer some questions in writing.

   I went to the Netherlands as a supporter of euthanasia. After extensive
research about death and euthanasia, however, I could no longer endorse
euthanasia. Morally speaking, I can think of individual cases in which a person
may ask and should receive euthanasia. However, there is a fine line between
ethics and policy, and when you are thinking as a policymaker, you must be very
careful because peoples’ lives are affected by the practice of your policy
220                     PHYSICIAN ASSISTED EUTHANASIA



decisions. In the Netherlands, I heard of abuse — lots of abuse — and, as a
result, I had to change my view about the practice of euthanasia. At the same
time, I do support PAS.

   I have visited the Netherlands five times for follow-ups. My findings are
included in many articles and in a book, Euthanasia in the Netherlands,
published in 2004 (Springer-Kluwer), in which I gave a voice to the issues, and
detailing all that I found in the Netherlands. Here, I will present the data that
troubled me the most.

   Both the Netherlands and Belgium have accepted the Dutch definition,
namely: euthanasia is the taking of someone’s life by another upon her request.
It follows, then, that euthanasia does not apply to incompetent people. If you are
incompetent, if you cannot voice an opinion, if you are a minor, or if you are in a
state of unawareness, euthanasia is inapplicable. It should not be practiced
according to the Dutch medical guidelines, which were later translated into law.
With regard to incompetent people, there is a different definition for termination
of life. Stopping treatment conceived as “futile” is not euthanasia, and the term
should not be used in these cases. What is sometimes termed indirect
euthanasia, or the use of analgesics with the possible effect of shortening life, is
also clearly distinguished from euthanasia. Euthanasia refers to using an
injection in order to provide mercy killing; this principle must be very clear.

   The Dutch attracted international criticism because of this practice. The Dutch
government took it upon itself to issue comprehensive reports. As said earlier, the
first euthanasia report was published in 1990; the following reports were
published in 1995, 2001, with the last one in 2005.

   The most worrying data in all the Dutch euthanasia reports from 1990 until
the present is that, consistent within the Dutch culture for twenty years or so, 0.4
percent of deaths were the result of the use of lethal drugs, not at the explicit
request of the patient. This means that lethal drugs were injected to patient
although the patient did not clearly state: “I want to die.” This statement is now a
prerequisite of the Dutch law and guidelines. The patient must sustain her wish to
die, and express her desire to die over a period of time to provide evidence of
           The Right to Die with Dignity: An Argument in Ethics and Law        221



her wishes. However in 0.4 percent of the cases, this did not happen. All
published reports indicate that, every year, between 900 and 1,000 patients
were put to death without clear volition to die.

   According to the survey published in 2007, when life was ended without the
explicit request of the patients, there had been previous discussions of the act or
previous permission of the patient to perform the act in 60 percent of the
patients, as compared with 26.5 percent in 2001. In 2005, the ending of life was
not discussed with patients because they were unconscious (10.4 percent), or
incompetent owing to young age (14.4 percent), or because of other factors
(15.3 percent). Of all cases of the ending of life in 2005 without an explicit
request by the patient, 80.9 percent had been discussed with relatives. That
means that there was no evidence in writing, discussions with family substituted
the need to discuss this important issue with the patient whose life was at stake,
and unconscious patients were put to death although the law stipulates
euthanasia is only for competent patients. In this context, one should further note
that not all families are harmonious, especially when the patient is very ill and
the possibility exists that there may be some ulterior motives.

   One way to address this abuse is to advocate for PAS for all patients who are
able to swallow the medication. In the Netherlands, however, there is a tradition
in which the doctors administer the lethal drugs, and these doctors like to have
control over the process. In both the Netherlands and Belgium, you find very few
cases of PAS. What I suggest to both countries is to put this issue on public
agenda, and speak to the public and the physicians about the findings and fear
of abuse, and suggest PAS as a substitute for euthanasia. One thing that became
clear to me when I spoke with doctors and physicians in both countries was that
General Practitioners (GPs) have significant influence over their patients. In every
case where the physician preferred euthanasia, his patients requested
euthanasia. I met one doctor who did not like euthanasia, preferring PAS.
Suddenly all his patients preferred PAS. The influence of doctors over their
patients cannot be underestimated. We need to speak with doctors, to persuade
them that the main consideration is not control: the issue is abuse, and this issue
is far more important than having control over the process.
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    The last examination of euthanasia in the Netherlands shows that the number
of cases has dropped. In 2005, 1.7 percent of all deaths in the Netherlands were
the result of euthanasia, more than one-third less than the 3,500 cases in 2001.
Only 113 cases were through PAS. Requests for euthanasia are most frequently
from cancer patients, because cancer apparently is the most painful disease on
earth. Furthermore, consistently since the 1990’s, most acts of euthanasia have
been carried out by GPs. A worrying development is the rise in number of
terminal sedation (or terminal palliation) cases. Further research should be
conducted in this sphere to verify that end-of-life decisions are carefully reached,
serving the best interests of the patients.

   In September 2004, the first major study into the effects of Belgium’s new
legislation permitting euthanasia found that approximately twenty terminally ill
people per month asked doctors to help them die. This is not a large number.
The study found that 259 acts of legal euthanasia were carried out in Belgium up
until the end of 2003, about 17 registered cases each month. About 60 percent
of euthanasia cases occurred in hospitals; this is in contrast to the Netherlands,
where the act is performed by GP’s in patients’ homes. In both countries, the vast
majority of people asking to be euthanized were suffering from terminal cancers.

    My research in the Netherlands in 1999 revealed that the agenda of
euthanasia had been pushed, while the issue of palliative medication had been
largely ignored. Palliative medication had been underdeveloped in the
Netherlands for many years. Palliative care is very expensive. If you want to opt
for palliative care, you must invest a lot of resources, and up until that time, the
Dutch government decided it did not want to invest those resources. The quickest
way to die is through euthanasia, where there is no need for palliation. Indeed,
until 2000, palliative care was underdeveloped in both Belgium and the
Netherlands. In 2000, the Dutch government decided to develop palliative care,
and at present, it is far more developed than it used to be when I started my
research there. Research on palliative care should continue, and comparisons
should be drawn to see the extent to which palliation is being developed in these
two countries as compared with other European countries.

   In both countries, physicians are not obliged to carry out euthanasia.
However, the culture in both countries is such that, if a physician is not willing to
perform euthanasia, then her position might be undermined. A physician will find
          The Right to Die with Dignity: An Argument in Ethics and Law         223



it difficult to advance to any higher rank in which she would be overseeing
decisions if she opposes euthanasia. Euthanasia is part and parcel of the state,
and a physician must be able to give full advice on all end-of-life-issues. Doctors
are required to inform their patients that they do not provide euthanasia before
starting to treat them so that the patients can decide if they want to work with the
physician. Unsurprisingly, the majority of GPs in the Netherlands support
euthanasia – it is part of the culture.

    As a result of the euthanasia law, a Dutch physician is required to devote
energies to explain everything to the patient and her loved ones, consult with
specialists, and communicate with people with relevant concerns. There is scope
to consider an improved physician-patient communication model. In the United
States, Jack Kevorkian presents an example of a bad model for end-of-life issues.
Jack Kevorkian helped 130 patients to die between 1990 and 1999. Some of
those patients were healthy. They thought they were sick, but a coroner’s
examination found nothing medically wrong with them. Dr. Kevorkian was a
retired pathologist who was accustomed to dealing with corpses, not with living
people. For him, the issue of their illness was secondary — the main
consideration was autonomy, that they wanted to die. The individuals sent
Dr. Kevorkian their medical files and he agreed to provide the service without
ever getting to know them professionally. In his book, Prescription Medicide
(Prometheus Books, 1991), Dr. Kevorkian wrote that he knew his very first
patient, Janet Atkins, for a short while before he assisted in her suicide. In my
view, Dr. Kevorkian presented a rogue model of an overenthusiastic, self-
promoter, media-crazed physician. There were no control mechanisms over his
practice; he simply believed he recognized the need and entered into the legal
lacuna with shocking insensitivity. As I noted earlier when I spoke about the issue
of dignity, concern, and respect, some people want to determine the time of their
death; 130 such people simply hired Dr. Kevorkian to help them do just that. I
think Dr. Kevorkian’s overzealousness is the wrong model to pursue.

   One troubling issue is that, for many years, the Dutch believed that the issue
of administering death was a personal and private issue, an issue between
patients and their GP. Therefore, even though the Dutch Medical Association
demanded and prescribed that the doctors must report euthanasia when it was
performed, most of these physicians failed to report because they argued it was a
224                    PHYSICIAN ASSISTED EUTHANASIA



breach of privacy and a breach of trust between them and their patients.
In 1990, only 18 percent of doctors reported having performed euthanasia. After
the law was passed legitimizing euthanasia, approximately 80 percent of doctors
filed reports. While there has been a significant improvement in reporting, the
goal is to reach 100 percent, where all doctors report participating in euthanasia
cases.

    Another issue that is highly troubling is the issue of consultation. The Dutch
law prescribes that a physician must consult with an independent colleague who
is an expert on the patient’s disease before performing euthanasia. My fieldwork
revealed that most of the time the doctors consulted a colleague in the same
office, and thus, the consulting physicians were not independent nor were they
necessarily experts of the disease under consideration. Moreover, my research
revealed that sometimes consultations were devised over the phone. This is in
breach of the Dutch guidelines because the role of consulting is said to be
twofold. One aspect of consultation involves verifying the patient’s medical
situation, and the Dutch stipulate you cannot do this by looking at the files alone.
Indeed, many of the doctors whom I met in the Netherlands, the United States,
the United Kingdom, Canada, and Israel say it is necessary to do a physical
examination to reach an accurate decision. The second important role of the
consultant is to verify that euthanasia is the independent, autonomous wish of the
patient. If it is only the physician who discusses the patient’s condition with the
consultant, then could the consultant know what the patient wants? I hope that
such a bad practice of phone consultation is no longer in existence. I am told
that Dutch physicians no longer conduct consultations over the phone.

   The Dutch believed that the practice of doctors agreeing to serve as
euthanasia consultants for each others’ patients was not the best way.
Consequently, they created a special committee of experts called Support and
Consultation of Euthanasia in the Netherlands (SCEN) that began in Amsterdam
and later spread throughout the country. At present, I am told most consultations
about euthanasia are done with SCEN doctors. An expert who the GP is said not
to know comes and examines the patient. Belgium has adopted a similar
consultation mechanism. I applaud this development, as it is far better than
independent deals between not-so-independent doctors.
          The Right to Die with Dignity: An Argument in Ethics and Law        225



    I previously mentioned the Oregon model and indicated it was a good model
to follow for end-of-life issues. When the state first authorized the practice
in 1994, the worry was that once the system was in place, the practice would
spread and there would be many, many cases of PAS. However, there was not a
huge increase in the number of people asking for PAS; more or less, there are
the same number of people requesting PAS – about 30 each year (341 in ten
years, 1997-2007). The highest number of PAS cases was in 2007, when 49
Oregonians ended their lives by taking a lethal drug dose. Secondly, the other
concern was that PAS would be disproportionately applied to kill the poor, the
uneducated, the neglected, the deserted, those who could not take care of
themselves, and the underprivileged. This has not happened. Most of the people
asking for and accepting this service are well-educated middle class people, and
it seems there is no abuse of the system. Therefore, I think this model is a good
path for others to follow. That being said, Oregon should continue to have close
annual scrutiny of the practice and keep an alert eye against potential abuse.

Guidelines for End-of-Life Issues
I have devised a set of guidelines to improve the current system. I would like to
advance the issue of PAS, because I recognize that individuals should have the
power to decide end-of-life issues, and because I oppose euthanasia. I
developed these guidelines by studying what has been done in Oregon, the
Netherlands, Belgium, Switzerland, and the Northern Territory of Australia. Let
me conclude with the following recommendations and suggestions:
• The physician should not suggest PAS to the patient. Instead, it is the patient
  who should have the option to ask for such assistance. What I discovered in
  my independent field research in the Netherlands is that, many times, the
  patients did not ask for euthanasia. It was the doctor, a trusted GP whom the
  patient had known for many years, sometimes 30 or 40 years, who offered
  death to the patient with cancer. This practice may compromise the issue of
  voluntariness; it is difficult for many patients to contest the advice of a loyal
  GP. The GP may present the patient the range of available options without
  manipulation, and with due respect for patient’s life and wishes.
• The request for PAS should be voluntary and come from a competent adult,
  18 years-of-age or older, who suffers from an intractable, incurable,
  irreversible disease. The decision should be made by the patient, and not by
226                    PHYSICIAN ASSISTED EUTHANASIA



   the family or as a result of family pressures. Some families can make the
   decision to end life because they feel overwhelmed by the individual’s illness –
   it is troublesome and very demanding to have a cancer patient in the home. It
   is also very sad, and many people cannot cope with the fact that their loved
   one is suddenly dying. For these reasons, the PAS decision has to be reached
   without any pressures. The patient should state this wish repeatedly over a
   period of time. This recommendation is similar to the one invoked in laws and
   guidelines in Oregon, the Netherlands, Belgium, and Australia.
• It is the task of social workers to examine to what extent the patient is affected
  by external pressures. The decision-making process shall include a second
  opinion in order to verify the medical diagnosis and minimize the chances of
  misdiagnosis, as well as to allow the discovery of other medical options. A
  specialist who is not dependent on the first doctor should provide the second
  opinion. A committee like the Netherlands’ SCEN can be a good system. It is
  advisable for the identity of the consultant to be determined by a committee of
  specialists who will review the request for PAS.

• At times the patient’s decision might be influenced by severe pain, and
  therefore, the role of palliative care can be, and is, crucial. Palliative care is
   required in both Belgium and Oregon.

• The patient must be informed of her situation, the prognosis for recovery or
  escalation of her disease, and the degree of suffering that may be involved.
  There must be an exchange of information between doctors and patients. The
  laws in Belgium and Oregon contain these guidelines.

• Sometime prior to the performance of PAS, a doctor and a psychiatrist shall
  be required to visit and examine the patient to verify that this is the genuine
  wish of a person of sound mind, and that the individual is not depressed or
  being coerced or influenced by a third party. The conversation between all
  doctors and the patient should be held without the presence of family
   members in order to avoid familial pressures.

• The patient must be able to rescind her decision to pursue PAS at any time
  and in any manner, as it is the case in Australia and Oregon. In Belgium, the
   patient can withdraw her declaration at anytime.
          The Right to Die with Dignity: An Argument in Ethics and Law     227



• PAS may be performed only by a doctor in the presence of another doctor. I
  am very much opposed to family members administering assisted suicide (or
  euthanasia), as I think it can lead to abuse. The decision-making team should
  include at least two doctors and a lawyer who will examine the legal aspects
  involved and ensure there is protocol in place which will prevent against
  possible abuse. Perhaps a public representative should also be present during
  the entire procedure, including the decision-making process and the
  performance of PAS.
• PAS may be conducted in one of three ways, all of which should be discussed
  openly and decided upon by the physician and the patient: (1) Oral
  medication; (2) Self-administered, lethal intravenous infusion; or (3) Self-
  administered lethal injection. In this context, I should note that some
  medication may be difficult or impossible for patients to ingest because of
  nausea or other side-effects of the illness. The only exception in which the
  physician would be allowed to administer the lethal injection would occur in
  the event that medications have been provided and the patient’s dying
  process has been lingering on for long hours. I would only allow euthanasia
  after the failing of PAS, or if the patient cannot physically administer the
  medications to herself.
• Doctors may not demand a special fee for the performance of PAS. There
  must be no financial incentive to perform or assist with the procedure since
  the motive for PAS is humane. There should be no special payment that might
  cause commercialization or promotion of such procedures.
• There must be extensive documentation in the patient’s medical file,
  including: (1) the disease diagnosis and prognosis by the attending and the
  consulting physicians; (2) attempted treatments; (3) the patient’s reasons for
  seeking PAS; (4) the patient’s request in writing or documented on a video
  recording; (5) documentation of conversations with the patient; (6) the
  physician’s offer to the patient to rescind her request; (7) documentation of
  discussions with her beloved people; and (8) a psychological report
  confirming the patient’s condition.
• The drugs required to end one’s life are known. Since there are 900 to 1,000
  patients in the Netherlands who are killed every year without clear volition,
  pharmacists should be required to file a report every time lethal medications
228                    PHYSICIAN ASSISTED EUTHANASIA



   are sold to act as a control mechanism. Then it would be possible to track
   down the medication to the doctor, and keep track of how many times PAS
   was performed.

• Doctors should not be coerced into taking actions that conflict with their
  conscience, particularly since some religious individuals think only nature
  should be left to take its course. No coercion should be involved in the
  process.

• The local medical association should establish a committee whose role should
  be to investigate underlying facts of cases which are reported, as well as to
  investigate whether there were mercy cases which were not reported or cases
  which did not comply with the guidelines. There were some cases in both
  Belgium and the Netherlands that reached the courts because there was a
  perception that the law was compromised. The common penalty for those
  physicians was reprimand. This cannot be said to be a severe deterrence.
  Further sanctions should be taken to punish health care professionals who
  violate the guidelines, fail to consult with other physicians or file reports,
  engage in involuntary termination of life without the patient’s consent, or
  engage in involuntary termination of life with incompetent patients. Physicians
  who fail to comply with the guidelines should be charged and procedures to
  sanction them should be enforced by the disciplinary tribunal of the relevant
  medical association. Sanctions should be significant and include revocation of
  the physician’s medical license.

Acknowledgement
Keynote presentation given by Raphael Cohen-Almagor, D.Phil., during “The
Right to Die with Dignity: An Argument in Ethics and Law” lecture held during a
symposium presented by the Health Law Project, Program on Law and
Government, at American University Washington College of Law on January 30,
2008. Professor Cohen-Almagor is the Chair in Politics at the University of Hull in
England and is currently a Fellow at the Woodrow Wilson International Center
for Scholars in Washington, DC. He would like to thank Professor Corrine Parver
for inviting him to speak on this important societal topic.
                                                9
     De-Moralized: Glucksberg in the
                Malaise
                                         Steven D. Smith*

        Ten years down the road, what is the enduring significance of
        the “assisted suicide” cases, Washington v. Glucksberg and
        Vacco v. Quill? The cases reflect an unusually earnest, but
        nonetheless unsuccessful, attempt by the United States Supreme
        Court to grapple with a profound moral issue. So, why was the
        Court unable to provide a more satisfying justification for its
        conclusions? This essay, written for a symposium on the tenth
        anniversary of Glucksberg, discusses that question. Part I
        examines some of the flaws in reasoning in the Glucksberg and
        Quill opinions and suggests that these flaws stem from the
        opinion-writers' inability to recognize and articulate their
        underlying normative assumptions. More specifically, both the
        Justices and the lower court judges, on both sides of the issue,
        evidently attributed normative significance to something like a
        “natural course of life” (even when they denied doing so), but
        none were willing or able to make this attribution explicit.
        Part II discusses the modern separation of moral reasoning
        from the metaphysical or theological perspectives that might
*   Professor of Law, University of San Diego. E-mail: smiths@sandiego.edu

© 2008 The Michegan Law Review Association. This article was originally published in the Michegan Law
Review, June 2008, Vol. 106, No.8. Reprinted with permission.
Source: http://www.accessmylibrary.com
230                    PHYSICIAN ASSISTED EUTHANASIA



      once have endowed “nature” with normative significance, and it
      suggests that the deficiencies in Glucksberg-Quill are evidence
      of how that separation renders moral reasoning problematic.
      The Conclusion wonders whether in this situation, a renewed
      emphasis on formalism or tradition might make legal reasoning
      less unacceptable.



A    mong the scores of cases decided by the Supreme Court each Term, only a
     few achieve more than passing attention in the news media and the scholarly
literature. As this tenth anniversary symposium reflects, Washington v.
Glucksberg 1 (together with its companion case, Vacco v. Quill 2 ) is among these
select few. But is continuing attention warranted? Ten years out, what are
Glucksberg’s status and significance?

   On the level of constitutional doctrine, these questions elicit modestly
confident answers. With respect to the specific legal issue presented in the case,
Glucksberg remains, as we say, “good law”: states may if they choose prohibit
physician-assisted suicide. Conversely, insofar as Glucksberg announced a more
general framework to constrain the unruly enterprise of “substantive due
process,” the decision’s status is precarious. Glucksberg declared that in order to
be elevated into the elite circle of unenumerated constitutional rights, a candidate
right must meet the demanding dual requirements of being “deeply rooted in this
Nation’s history and tradition” and susceptible of “careful description.” 3 But that
framework did not accurately describe substantive due process decisions
preceding Glucksberg, 4 and the dual requirements seem to have been tacitly
repudiated just six years later in Lawrence v. Texas. 5 Nelson Lund and John
McGinnis observe that “[t]he rejection of the Glucksberg test [in Lawrence] is not
only unacknowledged and unexplained, but it is a total rejection.” 6

   To be sure, either of these verdicts could be overturned at any time. The Court
might revisit the issue and decide that prohibitions on assisted suicide are
unconstitutional after all; several of the Justices carefully left themselves ample
room to reach a different result in future cases. Conversely (and with the addition
of Chief Justice Roberts and Justice Alito this is perhaps more likely), the Court
could breathe new life into Glucksberg’s constraining framework for substantive
due process; indeed, one study indicates that lower courts continue to give more
                      De-Moralized: Glucksberg in the Malaise                      231



deference to Glucksberg than to Lawrence, not so much out of conviction or
defiance but rather because Lawrence provides almost no practical guidance
about how to extract meaning from the due process clause. 7 So the situation is
far from stable, but for the moment it appears that Glucksberg’s specific ruling
retains its vitality while its more ambitious pronouncements languish in a sort of
legal limbo.

    Considering the decision merely in terms of constitutional doctrine, however,
may miss the deeper questions. Glucksberg ought to have some larger
significance, it might seem, for questions concerning the normative authority of
“morality” (whatever that is 8 ) in law. After all, euthanasia with its corollary issues
is one of the standard cases presenting the controversy about what is sometimes
called “legal moralism.” 9 In addressing a subset of those issues, the Glucksberg
and Quill cases produced majority opinions that were unusually earnest in their
reasoning (at least by contrast to other cases in the substantive due process line,
such as Bowers v. Hardwick 10 or Roe v. Wade 11 ), as well as a diverse array of
concurring opinions 12 – not to mention the much trumpeted “Philosophers’ Brief
authored by John Rawls, Ronald Dworkin and a company of like-minded
luminaries. 13 So, doesn’t the Glucksberg-Quill tandem have something of
significance to teach us about the role of “morality” in law – as a basis for legal
restrictions, perhaps, or as a guide to interpreting the Constitution?

    Yes and no. Or, rather, no and maybe. In fact, Glucksberg says nothing very
clear either about whether law may regulate morality or about the role of moral
reasoning in constitutional interpretation. Indeed, although the interests offered
to support the Washington prohibition may well have a moral (or even
theological) character, the majority studiously avoided describing these interests
in such terms. The majority opinion in Quill, by contrast, featured an exercise in
moral casuistry that was impressive (for a judicial opinion) in its subtlety – but not
in its cogency. 14 So no clear instruction about the relation of “law and morality”
emerges from Glucksberg-Quill.

    But this unexciting conclusion – or non-conclusion – may itself be instructive.
The earnest futility of the Court’s performance is itself portentous: it displays the
difficulties that plague efforts to engage in serious moral reasoning today, at
least in a public context. In this essay, I will discuss those difficulties and try to
show how they are poignantly manifest in Glucksberg and Quill.
232                    PHYSICIAN ASSISTED EUTHANASIA



I. Hiding the Ball? The Court’s Concealed Casuistry
In justifying its reversal of Court of Appeals decisions that had invalidated the
Washington and New York prohibitions on physician-assisted suicide, the
Supreme Court faced two basic challenges. Primarily, the Court needed to show
that a state can have a legitimate reason for prohibiting a terminally ill patient
from receiving assistance in ending his or her life. In addressing this challenge,
the Glucksberg majority offered a list of interests served by such a prohibition:
these included preserving life, preventing suicide, “protecting the integrity of the
medical profession,” “protecting vulnerable groups” against “the real risk of
subtle coercion and undue influence in end-of-life situations,” and avoiding the
slippery slope “down the path to voluntary and perhaps even involuntary
euthanasia.” 15 Although the character and sufficiency of these interests are
contestable, 16 one or more of them was sufficiently attractive to gain the votes of
all the Justices in the case. 17

    However, the Court also faced a secondary but more difficult challenge.
Washington and New York prohibited assisted suicide, but they permitted
patients to refuse or terminate treatment, even when the predictable consequence
would be death. 18 Patients making this choice might require, and receive, a
physician’s assistance – in removing food and hydration tubes, for instance.
Consequently, proponents of these regimes needed to explain why one method
of bringing about a patient’s voluntary death should be legally protected while a
different (arguably more efficient and humane) method remains subject to
criminal sanctions.

A. “Killing” vs. “Letting Die”?
A familiar response asserts that there is a crucial difference between
administering a lethal drug, which is a form of “killing,” and refusing treatment,
which merely amounts to “letting die.” Though widely embraced, 19 however, this
distinction is also elusive. “[W]hen we try to become clear about that distinction, “
Judith Jarvis Thomson observes, “we find ourselves in a philosophical mess and
tangle ....” 20

   A majority of the lower court judges found the preferred distinction untenable.
“To us,” Judge Stephen Reinhardt wrote for the Ninth Circuit, “what matters most
                     De-Moralized: Glucksberg in the Malaise                    233



is that the death of the patient is the intended result as surely in one case as in
the other.” 21 The Philosophers’ Brief agreed that

   there is no morally pertinent difference between a doctor’s terminating
   treatment that keeps [the patient] alive, if that is what he wishes, and a
   doctor’s helping him to end his own life by providing lethal pills he may
   take himself, when ready, if that is what he wishes – except that the latter
   may be quicker and more humane... . If it is permissible for a doctor
   deliberately to withdraw medical treatment in order to allow death to result
   from a natural process, then it is equally permissible for him to help his
   patient hasten his own death more actively, if that is the patient’s express
   wish. 22

    By contrast, in Quill the Court tried to defend the distinction between “killing”
and “letting die” through the refusal of treatment. Indeed, the Court offered two
different rationales in support of the distinction. But neither rationale stands up
well under inspection.

    1. The “causation “ rationale. The first rationale suggests that when a patient
refuses-or, perhaps with a doctor’s help, removes – life-sustaining treatment such
as feeding or hydration tubes, this human action does not cause the patient’s
death. Instead, some underlying “natural” cause – starvation, perhaps, or
dehydration – causes the death: the patient’s and physician’s actions amount to
nothing more than a refusal to intervene in this natural process. Conversely, if a
doctor assists a patient to inject a fatal drug, the doctor’s and patient’s actions
actually cause the death. “[W]hen a patient refuses life sustaining medical
treatment,” the Quill majority maintained, “he dies from an underlying fatal
disease or pathology; but if a patient ingests lethal medication prescribed by a
physician, he is killed by that medication.” 23

   But the argument from causation wilts under examination. 24 Compare the two
characteristic situations: at the patient’s request a doctor removes the intravenous
tube by which a patient is supplied with food and water, thus allowing the patient
to die; and at a patient’s request a doctor prescribes a lethal drug and helps the
patient to inject the drug. In each case, the most immediate cause of death is in a
sense biological and “natural” – the heart stops beating, the brain stops
234                    PHYSICIAN ASSISTED EUTHANASIA



functioning – while in each case human decision and deliberate action figure
conspicuously in the more extended causal sequence that leads to death. 25 If we
understand “causation” in the familiar “but for” sense, in other words, then the
patient’s decision and the doctor’s cooperative action are “but for” causes of the
death in both cases: “but for” those actions, the death would not have occurred
when it did.

    In many situations, moreover, we surely would say that removal of a feeding
tube is a “legal” cause as well as a “but for” cause of death, and that the person
who removed the tube thereby killed the patient. We would draw this conclusion,
for example, if a doctor removed feeding tubes without the patient’s consent, and
we would regard as frivolous the doctor’s contention that “I didn’t kill the patient;
starvation did.” Judith Jarvis Thomson illustrates the problem:

   If somebody is attached to a life-support system in a hospital, and I
   wander in and for my own purposes pull the plug, surely I do kill my
   victim. If a deep-sea diver is attached by a pipe to a breathing apparatus
   on board ship, and I’m a passenger and cut the pipe, surely I do kill the
   diver.... It seems to me counter-intuitive in the extreme to deny these
   things. 26

   So it seems that if in the refusal of treatment situation we decline to call the
removal of the tube a “cause” of the death, we must be expressing a conclusion
based on something other than merely empirical or conventional observations
about the causal sequence.

    2. The “intent” rationale. The inadequacy of a purely causal account of the
“killing/ letting die” distinction might suggest that the real difference lies in the
intentions that animate the patient’s and doctor’s actions. In the “refusal of
treatment” situation, the argument goes, doctor and patient may foresee that the
result of their choices and actions may be death, but they do not intend to
produce death. Death is merely a foreseeable consequence, or side effect, of
what is directly intended – that is, avoidance or elimination of treatment. In the
“assisted suicide” situation, by contrast, doctor and patient consciously intend to
produce the patient’s death.
                     De-Moralized: Glucksberg in the Malaise                    235



   The Quill majority endorsed this rationale as well:

   [A] physician who withdraws . . . life sustaining medical treatment
   purposefully intends, or may so intend, only to respect his patient’s wishes
   and “to cease doing useless and futile or degrading things to the patient
   when [the patient] no longer stands to benefit from them.”... The same is
   true when a doctor provides aggressive palliative care; in some cases,
   painkilling drugs may hasten a patient’s death, but the physician’s
   purpose and intent is, or may be, only to ease his patient’s pain. A doctor
   who assists a suicide, however, “must, necessarily and indubitably, intend
   primarily that the patient be made dead.” Similarly, a patient who commits
   suicide with a doctor’s aid necessarily has the specific intent to end his or
   her own life.” 27

    The intent rationale typically provokes discussions of the “doctrine of double
effect.” 28 Though the doctrine can become highly refined, the basic distinction
animating the doctrine is between consequences of an act that are actually
intended – that provide, in other words, the reason for acting – and other
consequences that are foreseen but not actually intended. Proponents of the
double-effect doctrine typically maintain that it is morally impermissible to act
with the intent to produce a bad effect either as an end in itself or as a means to
a good end- good ends do not justify evil means- but it is sometimes permissible
to act with the intent to produce a good end even though the act will have
foreseeable harmful side effects. Death in itself is an evil, so by this reasoning it
is impermissible to act with the intent of producing death, even as a means of
relieving suffering. Conversely, it is permissible to refuse treatment, or to
administer heavy doses of pain medication, even when these measures will
foreseeably lead to the patient’s death – so long, that is, as the intent or reason
for acting is not to produce death but rather to avoid objectionable treatment or
to eliminate pain.

      The doctrine of double effect has been debated at length in academic
literature. Critics doubt that the distinction between “intended” and merely
“foreseen” consequences can bear the moral weight that the doctrine places on
it 29 ; proponents answer that we all intuitively resort to some such distinction in
sorting out our moral judgments. 30 Whatever the merits of the doctrine of double
236                     PHYSICIAN ASSISTED EUTHANASIA



effect, though, the problem with the doctrine in the Glucksberg-Quill context is
that it does not appear to vindicate the legal distinction in question – the
distinction, that is, between, committing suicide and refusing life-sustaining
treatment.

    The distinction that the doctrine of double effect makes crucial, in other
words, is between acts intended to produce death and acts undertaken without
this intention. But although acts classified as suicidal are by definition intended to
bring about death, the converse proposition- namely, that refusals of life-
sustaining treatment are not intended to produce death-does not follow. The
most that can be inferred, as the Court’s language in Quill coyly acknowledges,
is that the refusal of treatment might not be intended to produce death. But it is
equally possible that a decision to refuse treatment is intended to do just that.

    In some cases, such as that of the religious believer who refuses treatment for
religious reasons, it may be plausible to characterize death as a foreseeable but
unintended consequence. But in the broad run of cases in which a patient has
decided after reflection to terminate treatment necessary to sustain life, it seems
possible and even likely that the patient acts with an intent to bring about death-
not as an end in itself, perhaps, but as a means of relieving suffering. Indeed,
most patients would likely have difficulty even grasping the central distinction. “Is
your intention [in refusing life-sustaining treatment, or in taking lethal
medication] to end your pain, or to bring about death?” asks the double-effect
theorist. And the typical response would likely be “Well. . ., umm,. . . yes.”

   Under the “double effect” doctrine, it seems, such cases are morally
indistinguishable: the motivation (to end suffering) and the intent (to produce
death) are the same in both kinds of cases. Thus, the Court’s attempt to explain
the distinction between suicide and termination of life-sustaining treatment in
terms of different intentions was unpersuasive.

B. The Intrinsic Normativity of “Nature’s Course”?
The failure of the Court’s efforts to rationalize a distinction between “killing” and
“letting die” reflected in Washington and New York laws might tempt us to
conclude that these laws were unconstitutional on equal protection or
“substantive due process” grounds. And this was precisely what the appellate
courts had concluded. 31
                     De-Moralized: Glucksberg in the Malaise                    237



   Still, it is, or should be, no light matter to dismiss as irrational a distinction
that has been so long and so widely embraced. So perhaps a second look is in
order. Might there be more to the “killing”/“letting die” distinction than meets the
eye?

    We might begin by noticing a slightly different formulation that continually
pops up in this context: proponents of the traditional distinction suggest that
administering a lethal drug is “killing” while refusing life-sustaining treatment is
merely “letting nature take its course.” In this vein, Chief Judge Thomas Griesa of
the Southern District of New York observed in Quill that “it is hardly
unreasonable or irrational for the State to recognize a difference between
allowing nature to take its course, even in the most severe situations, and
intentionally using an artificial death-producing device.” 32 The locution implies
that there is a normative dimension intrinsic to something like a “natural course
of life,” and that actions are distinguishable by whether they artificially interfere
with that natural course or instead respect and defer to it.

   This again is an elusive notion. But we may get some help from a surprising
source-Ronald Dworkin. “We believe,” Dworkin asserts,

   that a successful human life has a certain natural course. It starts in mere
   biological development – conception, fetal development, and infancy – but
   it then extends into childhood, adolescence, and adult life... It ends, after
   a normal life span, in a natural death. 33

   These stages combine to form a “natural course of human life.” 34 And the
termination of life at any stage before “natural death” is regrettable as-
Dworkin’s pronouncement here is quietly and perhaps inadvertently portentous –
“a kind of cosmic shame.” 35

    This last phrase is trenchant because it transforms what might otherwise be
taken as a purely descriptive, normatively agnostic statement – as a matter of
empirical fact human lives often follow a pattern of conception, infancy,
adolescence, and so forth- into a deeply normative claim. But that transformation
might also be expected to provoke strenuous objections. Doesn’t the view
outlined by Dworkin commit the classic fallacy of deriving an “ought” from an
“is”?
238                    PHYSICIAN ASSISTED EUTHANASIA



    Human lives often do in fact follow a typical course; therefore (Dworkin seems
to say), human lives should follow that course: it is a “cosmic shame” if they do
not. At least since Hume, we know that such inferences of moral “ought” norms
from natural “is” facts reflect a fundamental error in reasoning. Don’t we?

   Indeed, the attempt to draw normative conclusions from biological facts may
seem a particularly egregious form of this error. Isn’t this much like the kind of
pre-Kitty Hawk thinking that insisted that “If humans had been meant to fly, we’d
have been given wings”? Isn’t it the same type of thinking that leads some
people to draw dubious inferences about the proper role of women – or the
“natural” form of sexuality, or the impermissibility of some kinds of genetic
research or technology – from biological facts?

   Perhaps. Surely one plausible response to Dworkin’s assertion of what “We
believe” is that, whether or not his statement is accurate as a description of
widely held opinions, those opinions are also transparently fallacious – and
hence incapable of providing a normative justification for a law restricting liberty.

    Before peremptorily dismissing the appeal to “nature’s course” as a basis for
normative judgments, however, we might pause to notice that even the judges in
Glucksberg and Quill who rejected the states’ reasoning and who most insisted
on personal autonomy as the decisive criterion quietly betrayed a lingering
commitment to the same kind of “nature’s course” logic. These judges tacitly
agreed that there is a vital and normatively significant difference between some
self-chosen deaths that are “natural” and others that are not. Thus, although
favoring a right to physician-assisted suicide, they carefully limited that right to
“terminally ill” patients. And their explanations for this limit were terse but
suggestive.

    Judge Barbara Rothstein, the district judge in Glucksberg, ruled against the
state but explained that the right to assistance in dying should be limited to the
terminally ill because “[o]bviously, the State has a strong legitimate interest in
deterring suicide by young people and others with a significant natural life span
ahead of them.” 36 Judge Eugene Wright, dissenting from the Ninth Circuit’s
panel decision reversing Judge Rothstein’s decision, conceded the state’s interest
in preserving life and preventing suicide but argued that this interest diminishes
“as natural death approaches.” 37 Judge Stephen Reinhardt, writing for the en
                     De-Moralized: Glucksberg in the Malaise                     239



bane Ninth Circuit majority, declared the Washington prohibition an
unconstitutional infringement on the liberty of terminally ill patients. But Reinhardt
also emphasized that the state has a valid interest in discouraging suicide by
those who are not terminally ill: that is because in these instances suicide would
amount to the “senseless loss of a life ended prematurely.” Conversely, suicide in
the case of a terminally ill person is not tragic or “senseless,” Reinhardt opined,
because “death does not come too early.” 38

    These pronouncements were in tension with these judges’ heavy emphasis on
individual autonomy as the decisive consideration and their dismissal of the
states’ own “natural course” logic. Nonetheless, the assumption running through
these comments is discernible: human beings enjoy a “natural life span,” and
even a competent person’s self-chosen death that occurs before the fulfillment of
that natural span is normatively to be regretted. Such a death is “senseless”-
perhaps even a “cosmic shame”? – because it is “premature” or “too early”; and
the state is accordingly entitled to discourage or prevent such unnatural deaths.

    In the end, therefore, and contrary to initial appearances, it seems that the
deeper disagreement in the cases was not so much over whether there is
normative significance in “nature’s course,” but rather over the proper
interpretation of “nature” in this context. 39 For the Glucksberg-Quill majority, it
seems, any death intentionally brought about by the patient and doctor through
lethal injection is not proper or “natural.” Or at least a state is permitted to make
that judgment. By contrast, for judges like Reinhardt, this kind of self-chosen
death is proper so long as it occurs during the terminal stage of life; but a self-
chosen death that occurs earlier in life is “premature” or “too early,” and thus not
a “natural death.”

    It is hard to assess these competing views, however- or even confidently to
articulate them – because none of the judges gave any explicit account of how
“nature” could have the normative significance they subtly ascribed to it. Their
moral intuitions can be cautiously extrapolated, but their overall normative
frameworks remain mostly hidden – from us, and perhaps from the judges
themselves. Thus, the Quill majority attempted to explicate its moral intuitions in
the terms of causation and intent but, as we have seen, that vocabulary is
inadequate to convey or support what is evidently a more elusive understanding
of “nature’s course.” And the deeper normative assumptions of judges like
240                    PHYSICIAN ASSISTED EUTHANASIA



Reinhardt, Wright, and Rothstein are even harder to fathom, since on the surface
these judges stressed individual autonomy as the key moral criterion: but a death
consciously chosen by a competent person is not “too early” by that criterion. 40

    But why should it be so difficult for seasoned judges to explain their
fundamental normative premises, to us and perhaps to themselves as well? To
think about that question, we need to step back and look at Glucksberg from a
more long-term historical perspective.

II. The Separation of Normativity and “Nature”: Emancipation or
Collapse?
Allusions to “letting nature take its course” in controversies like Glucksberg are
vestiges of thinking on subjects like suicide and euthanasia that has occurred
over the centuries, but that often has been more forthright about its assumptions
with respect to the normative dimension of nature. Indeed, from classical until at
least early modern times, the sort of thinking that we classify as “moral” typically
proceeded unapologetically on the assumption that the cosmos itself – or
“nature,” or “human nature”- contain or reflect some sort of intrinsic normative
order. 41

   This assumption might have a theistic character, as in medieval scholastic
thought, or it might not, as in the thought of Aristotle. Leon Kass observes that
the classical, teleological conception of nature appeared in a variety of versions:

   Perhaps the two grandest and most influential alternatives are these: The
   biblical view of a teleological and created world with its various forms
   specially created after God’s plan, and the Aristotelian view of a
   teleological but eternal nature with its various forms kept in being,
   generation after generation, by the immanent workings of eternal species
   (eide). 42

    In this view, the function of moral reasoning is to determine what kinds of
actions, or what sort of life, conform to a normative order inherent in nature
itself. Thinking on issues like suicide often reflected some such assumption. Thus,
Michael Seidler explains that “[t]o answer the general question of legitimation
facing the potential suicide, some Stoics turned occasionally to the idea of divine
                    De-Moralized: Glucksberg in the Malaise                     241



calling which Socrates had already used as a justification ...: it is wrong to leave
life, to forsake our post in the world, unless God calls us.” 43 In a similar vein,
John Locke maintained that “men being all the workmanship of one omnipotent,
and infinitely wise maker,. . . they are his property, whose workmanship they are,
made to last during his, not one another’s pleasure . .. .” From this premise,
Locke inferred, it followed that “[e]very one ... is bound to preserve himself, and
not to quit his station wilfully . . . ,” 44

     A good deal of thinking about suicide, and about moral questions generally,
still operates on some such assumption. 45 In academic and especially legal
contexts, however, explicit appeals to a normative dimension in nature are
typically deemed inadmissible: moral reasoning is supposed to operate
autonomously, without reliance on religious or metaphysical premises. In part
this modern approach reflects the conclusion that the older view of nature as an
“ontotheological synthesis,” or as harboring some indwelling “telos,” is ruled out
by the findings of modern science. Nobel Prize-winning physicist Steven
Weinberg’s observation is typical: “The more the universe seems
comprehensible, the more it also seems pointless.” 46 Bertrand Russell waxed
rhapsodic on the theme of ultimate cosmic meaninglessness:

   That man is the product of causes which had no prevision of the end they
   were achieving; that his origin, his growth, his hopes and fears, his loves
   and his beliefs, are but the outcome of accidental collocations of atoms;
   that no fire, no heroism, no intensity of thought and feeling, can preserve
   an individual life beyond the grave; that all the labors of the ages, all the
   devotion, all the inspiration, all the noonday brightness of human genius,
   are destined to extinction in the vast death of the solar system, and that the
   whole temple of man’s achievement must inevitably be buried beneath the
   debris of a universe in ruins-all these things, if not quite beyond dispute,
   are yet so nearly certain that no philosophy which rejects them can hope
   to stand. Only within the scaffolding of these truths, only on the firm
   foundation of unyielding despair, can the soul’s habitation henceforth be
   safely built. 47

    In some (especially academic) quarters, some such view is virtually axiomatic-
at the core of “what we know now.”
242                    PHYSICIAN ASSISTED EUTHANASIA



    In legal contexts, the classical approach may seem ruled out by a different
kind of consideration as well. The classical view of nature, even in its less overtly
theistic versions, strikes the modern eye as suspiciously religious. By contrast,
public and especially legal discourse are supposed to be secular. 48 And it has
become axiomatic in modern constitutional law that government can act only for
“secular,” not “religious” purposes. 49 Such thinking is apparent in Justice
Stevens’ rejection, in abortion and “right to die” cases, of a state’s asserted
interest in protecting “life” on the ground that the interest is “theological.” 50

     So, what are the consequences of cutting off normative or moral reasoning
from its classical foundation in “nature”? Opinions differ- antithetically. 51 One
view, understandably common in academic contexts, is that moral reasoning is
thereby liberated from influences and impediments that served mainly to obstruct
its functioning. Just as science could develop more freely when unencumbered by
older, animistic assumptions or superstitions, so moral theorizing can operate
more rationally when released from religious or metaphysical shackles. In this
vein, Martha Nussbaum asserts that

   if we really think of the hope of a transcendent ground as uninteresting or
   irrelevant to human ethics, as we should, then the news of its collapse will
   not change the way we think and act. It will just let us get on with the
   business of reasoning in which we were already engaged. 52

    But the analogy to science might also support a diametrically different
conclusion. How would science fare, one might wonder, if cut off from its
connections to the natural world? And the answer, it seems, would be that
science would not continue at all. The natural world is science’s essential subject
matter. Consequently, if appeals to the natural world were deemed inadmissible
then science would no longer be possible: whatever might go on under the label
of “science” would not in fact be science. In a similar way, if moral reasoning is-
or was-reasoning about the normative order intrinsic in nature, then if appeals to
that order come to be forbidden (either because we no longer believe any such
order exists, or because such appeals offend cultural or constitutional constraints
against “religious” or “theological” reasons), moral reasoning will no longer be
possible. Anything that goes on under that label will be something quite
different- and probably, if it fails to recognize this revolutionary change,
something profoundly confused.
                        De-Moralized: Glucksberg in the Malaise                      243



   This more critical assessment may be endorsed by thinkers of different stripes.
One sort of thinker happily accepts the modern verdict that there is no normative
order intrinsic in nature, and shares as well in the sort of optimism expressed by
Nussbaum- but concludes that the only sensible kind of evaluative talk is
consequentialist in nature. How can we achieve the most of the things that we in
fact want- pleasure, happiness, preference-satisfaction? That is the kind of
discussion worth having. To this sort of thinker, misty talk about “duties,” “rights”,
and “obligations,” that haunt us from some spooky deontological domain seems
obscurantist and nonsensical, or almost literally incomprehensible 53 – unless,
perhaps, it is understood as an obfuscating translation of more consequentialist
considerations. In this vein, Mill argued that Kantian morality must be understood
in consequentialist terms, Kant’s own protestations notwithstanding. “To give any
meaning to Kant’s [categorical imperative], the sense put upon it must be, that
we ought to shape our conduct by a rule which all rational beings might adopt
with benefit to their collective interests.’” “Otherwise he uses words without a
meaning . . . “ 54

   Of a different view and temperament are thinkers who are not prepared to
relinquish the belief in an intrinsically normative nature, or who acquiesce in the
more modern view but with a profound sense of real and perhaps irreparable
loss. In this vein, Alasdair Maclntrye has famously argued that modern moral
discourse consists of the now incoherent fragments of a kind of reasoning that
made sense on older metaphysical assumptions. 55 His diagnosis elaborated on a
view more succinctly expressed in a classic essay by Elizabeth Anscombe. 56 The
Australian philosopher Raimond Gaita observes that “[t]he secular philosophical
tradition speaks of inalienable rights, inalienable human dignity and of persons
as ends in themselves. These are, I believe, ways of whistling in the dark, ways of
trying to make secure to reason what reason cannot finally underwrite.” 57 John
Rist contends that in fact there are only two coherent metaethical positions: a
robust metaphysical moral realism and . . . nihilism. “[A]ll other possibilities [are]
good-natured         muddles     to   be    collapsed    by   the   clear-headed      into
                        58
Thrasymacheanism.”           Positions that purport to be neither objectivist nor nihilist
(i.e., many of the positions commonly defended by contemporary philosophers)
are maintained only through “deception and self-deception (including outright
244                     PHYSICIAN ASSISTED EUTHANASIA



lying)”- which is one source of the “deceptions, equivocations, and outright lying
and humbug in public debate.” 59 A similar verdict was expressed a generation
earlier in a classic and despairing essay by Yale law professor Arthur Leff. 60

   Between these extremes there is of course a series of gradations in views.
Thinkers like Richard Joyce and John Mackie maintain, for example, that
normative considerations are in fact pragmatic or consequentalist in nature and
that morality is a “myth” or “fiction”; but it is a useful fiction that (contrary to the
cruder consequentialist view) we should not be in a hurry to abandon. 61

   From any of these more critical perspectives, the sort of distinctively “moral”
discourse practiced in academic and legal contexts is almost predestined to
produce an unedifying spectacle. Unmoored from its subject matter, necessarily
trading on suppressed premises and commitments, such discourse is incapable
of providing any real satisfaction. And its deficiencies routinely manifest
themselves, the critic may observe, in the performances of moral reasoning that
we regularly observe- performances that in addition to being unpersuasive are
also distinctly peculiar.

   Typically, contemporary moral theorizing attempts to reflect and impose some
sort of order on- or draw inferences from – the “moral” intuitions people have
about various problems. Often the inference-generating problems are fictional
and fanciful 62 : thus, we encounter polemical meditations about violinists
biologically hooked up to sleeping strangers, 63 or endless variations on the
hypothetical case of the trolley car that will kill several people unless it is diverted
onto a different track where it will kill only one person. 64 Such reasoning can be
impressive in its intricacy – but it rarely convinces anyone not already well
disposed to the reasoner’s conclusion.

     More importantly, there is no apparent reason why anyone should be
convinced. After all, what credentials can these intuitions claim? 65 What exactly
are they intuitions about? Suppose I do have a “moral” intuition (whatever that
is 66 ) that, say, same-sex relationships are “wrong” (whatever that means). So
what? I may also harbor an obsessive fear of traveling on airplanes, or an
abiding premonition that something horrible will happen if I leave the house on
Friday the thirteenth. Unless these feelings, intimations, or intuitions are
                    De-Moralized: Glucksberg in the Malaise                   245



grounded in something rational and objectively real, the proper response in each
case, it seems, would be therapeutic in nature; it would be a response calculated
to help me and others subject to such influences to “Get over it!” Conversely,
insofar as contemporary deontological thinkers shun the therapeutic response
and instead treat such intuitions with utmost respect, it is hard to resist the
suspicion that they are acting on lingering assumptions – their own, or those of
the people whose intuitions provide them with their material – about an intrinsic
normative order.

   This is not the place, of course, to try to resolve metaethical debates between
those who believe that moral reasoning can get along just fine, thank you,
without any metaphysical or theological support and those who believe that such
reasoning is an exercise in futility and self-delusion. But we can perhaps say this
much: If the critical diagnosis of our situation is correct, then we would expect
moral arguments on controversial subjects to leave us with the suspicion that the
considerations that are in fact leading the various advocates to their preferred
conclusions are not being candidly presented, but instead lurk somewhere
beneath the surface of the discourse. We would expect, in other words, to see
performances such as those in ... Glucksberg and Quill – not just the majority
opinion, but the concurring and lower court opinions as well.

    Glucksberg would not be unique, of course, as a manifestation of the moral
malaise. In his classic critical treatment of modern moral reasoning, Alasdair
Maclntyre picked the then recent case ofBakke v. Regents as an example. The
various opinions in Bakke revealed, Maclntyre thought, how an issue such as
affirmative action exceeds the resources of modern moral discourse to resolve; 67
and certainly nothing in the Court’s affirmative action jurisprudence since Bakke
has shown this judgment to be mistaken. 68

    Though they are hardly unique, however, the assisted suicide cases stand as a
distinctively powerful manifestation of our condition. In part this may be because,
as is often observed, life-and-death decisions can pose moral questions in their
starkest form. And perhaps for that reason, the question of terminating life forced
judges on all sides of the issue to resort, at some point, to fall back on
assumptions about an intrinsic normative order implicit in the “natural course of
246                     PHYSICIAN ASSISTED EUTHANASIA



life”- assumptions that the judges could neither openly avow nor entirely conceal.
Thus, the earnest inefficacy of Glucksberg and Quill pays eloquent if oblique
witness to the predicament of modern moral reasoning.

Conclusion
This is, to be sure, a demoralizing (and, perhaps, de-moralizing) conclusion, and
it is unlikely to be cheerfully received in legal contexts for just that reason.
Alasdair Maclntyre concluded his critical assessment of modern moral thought
with the less than gladsome comment that “the new dark ages ... are already
upon us” and that we may have no choice but to wait- to wait “not for a Godot,
but for another – doubtless very different- St. Benedict.” 69 Perhaps philosophers,
who principally aspire (or at least may aspire to aspire) to true understanding,
can be content with this sort of deferred illumination. (Though most are not
content, which may explain why Maclntyre’s analysis, for all the attention it has
received, is generally ignored in academic moral philosophizing.) But however
the case may be with philosophers, law is an inescapably practical enterprise: it
involves decisions that must be made today, and that will not wait for someone
to devise a more sensible approach to the questions. So if somebody- a
Maclntyre, a Nietzsche, an Arthur Leff – tells us that our normative reasoning is
simply not cogent on modern assumptions, then no matter how powerfully
persuasive the indictment may be, we are likely to spurn it. “Your assessment
may or may not be correct,” we may respond, “but either way, and more
importantly, it is not helpful. If you are right, we would not be able to continue
doing what we do- what we must do. So we have no choice but to reject your
assessment. Come back when you have something constructive to offer.”

    Still, this response to the critical assessment can hardly leave us feeling wholly
satisfied. “I have to get to New York,” someone says, “and this train is the only
mode of transportation out of here today, so even though all indications are that
the train it isn’t going anywhere in the direction of New York, I’m taking it
anyway.” How much wisdom is there is such an attitude?

   So, are there any alternatives? Perhaps. If moral reasoning is inefficacious
under current conditions, courts might try to forego such reasoning; they might
adhere to a course of legal “formalism” that eschews moral judgments (or at
least leaves them for someone else to make). So it is not surprising that
                     De-Moralized: Glucksberg in the Malaise                    247



“formalism,” once an epithet, has enjoyed a sort of renaissance in recent years. 70
In a roundabout way, Glucksberg may instruct us in some of the reasons for that
resurgence.
    Or, if (as I suspect) formalism is not enough, courts might self-consciously
give more deference to “tradition” and “convention” – and to the moral notions
embedded in those sources. 71 In debates over law and morality, academicians
instinctively side with what is sometimes styled “critical morality” over the sort of
traditional or “conventional morality” favored by advocates such as Patrick
Devlin. 72 It is understandable that academic theorists would prefer the sort of
morality that claims to be an active manifestation of what they are ostensibly
good at-”reasoning.” But if the assessment of contemporary moral discourse
suggested above is correct, “reasoning” as practiced in academic contexts today
will be constitutionally unable to fathom the deeper normative assumptions that
animate our moral judgments. Conversely, “tradition” or “convention” may be
slightly more faithful (if often confusing, or confused) carriers of our genuine
moral convictions. 73 And so it might turn out that an unprepossessing, tradition-
oriented decision like Bowers v. Hardwick is less deserving of the contempt it
received than, say, more grandiloquent decisions like Lawrence v. Texas, which
overruled it. 74
    Realistically, though, neither legal formalism nor legal traditionalism is likely
to achieve a dominant position in constitutional jurisprudence. The pretensions of
“reason”- and of judges and legal scholars to be the proponents and
practitioners of reason – are too strong for that. The effective overruling of
Glucksberg’s broader pronouncements in Lawrence suggests as much:
Glucksberg’s dual requirements for substantive due process- that a right be
“deeply rooted in this Nation’s history and tradition” and susceptible of “careful
description” – resonated respectively in tradition and formalism: but Lawrence
had no use for this “paralyzing carapace,” as Professor Post puts it. 75 Nor is it
likely that the constraints discouraging any forthright appeal to an intrinsically
normative “nature” will be relaxed or that any full-bodied version of “natural
law” will flourish in the contemporary American jurisprudential environment 76
any time soon.
    And so for the foreseeable future we can expect to see, in the academic
literature and quite likely in Supreme Court opinions as well, arguments like
those variously deployed in Glucksberg and Quill. We can expect to see
248                       PHYSICIAN ASSISTED EUTHANASIA



arguments ostentatiously offering what purports to be reasoning; but hardly
anyone will feel entirely sure exactly what the normative claims contained in such
arguments are claims about, or whether these arguments and claims are in any
case the real bases of the various advocates’ opinions. And so no one will be –
or will actually be expected to be- persuaded.

Acknowledgement
I thank Larry Alexander, Michael Perry, Sai Prakash, and George Wright for
helpful comments on earlier drafts.

Endnotes
1     521 US 702 (1997).
2     521 US 793 (1997).
3     521 US at 721.
4     For example, far from being “deeply rooted” in the Nation’s history and tradition,
      the abortion right announced in Roe v. Wade, 410 US 113 (1973), was inconsistent
      with the law of most states at the time of the decision. See Lucinda M. Finley, The
      Story of Roe v. Wade, in Constitutional Law Stories 359, 361-74 (Michael C. Dorf
      ed. 2004). And far from being amenable to “careful description,” the right of
      “privacy” animating Roe and successor decisions has defied efforts by judges and
      scholars to say just what it is, or what it encompasses. The right’s refractory character
      is amusingly reflected in a subchapter heading in one of the leading casebooks. The
      heading reads:
         What Shall We Call This Segment – The Right to Engage in Homosexual
         Sodomy? Adult, Consensual Homosexual Conduct in the Home? The
         Autonomy of Private Sexual Choices? Sexual Expression and Control of One’s
         Body? Unconventional Sexual Lifestyles? The Right to Control One’s Intimate
         Associations? The Right to Make Choices about the Most Intimate Aspects of
         One’s Life? The Right to Be Let Alone?
      Jesse H. Choper et. al., Constitutional Law: Cases – Comments – Questions 489
      (10th ed. 2006).
5     539 US 558 (2003).
6     Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich.
      L. Rev. 1555, 1579 (2004). Robert Post’s judgment, though more celebratory and
      leaning to the grandiloquent, is similar in substance: Lawrence “simply shatters, with
      all the heartfelt urgency of deep conviction, the paralyzing carapace in which
      Glucksberg had sought to encase substantive due process.” Robert C. Post,
      Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L.
      Rev. 4, 96 (2003).
                      De-Moralized: Glucksberg in the Malaise                         249




7    Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process Since
     Lawrence v. Texas, 105 Mich. L. Rev. 409 (2006). The Note concludes that “[t]he lower
     courts almost certainly understand the political and social message Lawrence intended
     to convey, but as a matter of law, the decision provides almost no guidance ....”
     Id. at 443.
8    Although legal scholars and others often talk about law’s relation to “morality” as if
     there were some accepted understanding about what sort of thing the word refers to,
     an excursion into metaethics might prompt a bleaker conclusion. A leading
     metaethicist notes that “if one thing becomes clear by reading what philosophers
     writing in meta-ethics today have to say, if is surely that enormous gulfs exist
     between them, gulfs so wide that we must wonder whether they are talking about a
     common subject matter.” Michael Smith, The Moral Problem 3 (1994). For my
     own attempt to think about what “morality” might be, see Steven D. Smith, “The
     Religious,” “the Secular,” and “the Moral”: What Are We Talking About?, 36 Wake
     Forest Law Rev. 487 (2001).
9    For a helpful overview of the debate, see Larry Alexander, The Legal Enforcement of
     Morality, in A Companion to Applied Ethics (R.G. Frey and Christopher Wellman
     eds. 2003).
10   478 US 186(1986).
11   Mark Tushnet has described “Justice Blackmun’s opinion in Roe as an innovation ...
     the totally unreasoned judicial opinion.” Mark Tushnet, Red, White, and Blue: A
     Critical Analysis of Constitutional Law 54 (1988).
12   Cf. Ronald Dworkin, Sovereign Virtue 465 (2000) (observing that “[t]he opinions of
     the six justices make up the fullest and most candid debate between the historicist
     and the integrity understandings of the due process clause for many decades”).
13   See http://www.nybooks.com/articles/1237.
14   See infra notes and accompanying text.
15   521 US at 728-32.
16   For example, the asserted interest in protecting life may seem wholly unobjectionable
     when we are thinking about protecting the lives of people who desire to remain
     alive, as with a homicide law. But does the state have a legitimate interest in
     compelling individuals to remain alive if they do not wish to do so? Justice Stevens
     has argued that the claimed interest in preserving life for those who do not desire it
     is impermssibly “theological.” See Cruzan v. Director, Missouri Dep’t of Health, 497
     US 261, 346-51 (1990) (Stevens, J., dissenting). Justice Souter, though concurring in
     the judgment in Glucksberg, declined to embrace the “preserving life” type of
     rationale because he believed it reflected a “moral judgment contrary to [the
     patients’].” 521 US at 782.
17   In particular, the interest in preventing undue influence seemed persuasive even to
     Justices like Souter who were dubious about the state’s more general interest in
     preserving life. 521 US at 782-88. This interest has been powerfully presented both
250                        PHYSICIAN ASSISTED EUTHANASIA




      in academic literature and in fiction. See, e.g., Yale Kamisar, Physician-Assisted
      Suicide: The Problems Presented by the Compelling, Heart-Wrenching Case, 88 J.
      Crim. L. & Criminology 1121 (1998). For a gripping fictional presentation of this
      concern, see P. D. James, The Children of Men 104-11 (1992). (Like most of the
      engaging features of the novel, this scene was not presented in the movie of the
      same name.)
18    This permissive policy may be constitutionally required. See Cruzan v. Director,
      Missouri Department of Health, 497 US 261 (1990).
19    See David P. T. Price, Assisted Suicide and Refusing Medical Treatment: Linguistics,
      Morals, and Legal Contortions, 4 Medical L. Rev. 270, 272-73 (1996) (“Jurisdictions
      throughout the world have almost invariably declined to view refusals to competent
      patients of medical treatment which could prolong life as physician-assisted
      suicide.”).
20    Judith Jarvis Thomson, Killing and Letting Die: Some Comments, in Intending Death:
      The Ethics of Assisted Suicide and Euthanasia 104, 107 (Tom L. Beauchamp ed.
      1995).
21    Compassion in Dying v. Washington, 79 F.3d 790, 824.(9th Cir. 1996).
22    Philosophers’ Brief, supra note, at II.B.
23    521 US at 801.
24    For a careful critical assessment of the causation rationale, see Price, supra note
25    Cf. Raymond G. Frey, Intention, Foresight, and Killing, in Intending Death, supra
      note at 66, 77 (“The doctor cannot... pass the buck to nature, to claim that the
      maladies of the patient were what killed the person, for the decision not to intervene
      is a partial cause of the person’s death.”).
26    Thomson, supra note at 106. As these examples suggest, moreover, the difference
      between “killing” and “letting die” cannot be satisfactorily explained by reference to
      the legal distinction between “acts” and “omissions” any more than it can be
      explained by familiar notions of causation. Often the elimination of life-sustaining
      treatment will involve a conscious decision and affirmative steps by patient or doctor.
      So the exercise of that acknowledged right will often involve “actions,” not mere
      “omissions.” Thomson’s example of the malicious interloper who sneaks into a
      hospital room and deactivates a patient’s life support demonstrates the point: we
      would surely say that the interloper “acted” to “cause” the patient’s death.
27    521 US at 801-02 (citations omitted).
28    For a helpful presentation of the doctrine, see Allison Maclntyre, Doctrine of Double
      Effect, in Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/
      double-effect/ (2004).
29    See, e.g., Jonathan Bennett, The Act Itself 194-225 (1995).
                       De-Moralized: Glucksberg in the Malaise                             251




30   Cf. Maclntyre, supra note at 2. (“Many morally reflective people have been
     persuaded that something along the lines of double effect must be correct.”).
31   The Second Circuit ruled that in prohibiting assisted suicide while permitting
     assistance in the refusal life-sustaining treatment, New York law irrationally
     discriminated among similarly situated persons, thus offending equal protection.
     Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996). The Ninth Circuit en bane court spoke
     in “substantive due process” terms, ruling that Washington’s prohibition on assisted
     suicide restricted liberty without any rational basis. The court discounted the interests
     asserted by the state, suggesting that since these interests would apply equally to
     situations in which patients chose to refuse life-sustaining treatment but the state did
     not attempt to vindicate the interests in those situations, these interests could not in
     fact be very important. 79 F.3d at 822-24.
32   870 F. Supp. at 84 (emphasis added).
33   Ronald Dworkin, Life’s Dominion 88 (1993) (emphasis added).
34   Id. at 89.
35   Id. at 13. However, Dworkin argues that the harm is “less if it occurs after any
     investment [in life] has been substantially fulfilled, or as substantially fulfilled as is
     anyway likely.” Id. at 88.
36   Compassion in Dying v. Washington, 850 F. Supp. 1454, 1464 (W.D. Wash. 1994)
     (emphasis added).
37   Compassion in Dying v. Washington, 49 F.3d 586, 594 n. 2 (9th Cir.1995)
     (emphasis added). The Second Circuit decision agreed that “[s]urely, the state’s
     interest [in preserving life] lessens as the potential for life diminishes.” Quill, 80 F.2d
     at 729.
38   79 F.2d at 820 (emphasis added), 821 (emphasis added).
39   A similar disagreement runs through the larger public debate. One interpretation
     suggests that so long as a person’s body can continue functioning – without
     “extraordinary” artificial support, perhaps?-- then nature has not yet signaled that
     this person’s part is over. But it is also possible to interpret terminal illness- combined
     with extreme suffering, perhaps?-- as a person’s cue to exit; someone who insists on
     clinging to life under those conditions is like an actor who won’t get off the stage
     even though his role is finished. To shift the metaphor, people disagree about
     whether particular death-hastening actions – removing a food or hydration tube,
     injecting a lethal dose of morphine – are more like “running out the clock,” as the
     rules of the game permit, or more like running off the field before the game is over.
40   Cf. Albert R. Jonsen, Criteria that Make Intentional Killing Unjustified, in Intending
     Death, supra note at 42, 50-52 (arguing that although most proponents of a “right
     to die” would limit the right to terminally ill persons, this limit cannot be squared with
     the professed commitment to self-determination as the decisive value).
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41    Louis Dupre explains the         classical   assumption   that   nature   reflects    an
      “ontotheological synthesis”:
         Nature teleologically directs organic processes to their destined perfection. It
         establishes the norms that things developing in time must follow if they are to
         attain their projected end. The more comprehensive term kosmos constitutes
         the ordered totality of being that coordinates those processes as well as the
         laws that rule them. Kosmos includes, next to ihephysis of organic being, the
         ethos of personal conduct and social structures, the nomos of normative
         custom and law, and the logos, the rational foundation that normatively rules
         all aspects of the cosmic development.
      Louis Dupre, Passage to Modernity 17 (1993).
42    Leon Kass, A More Natural Science: Biology and Human Affairs 259 (1985).
43    Michael J. Seidler, Kant and the Stoics on Suicide, 44 J. Hist. Ideas 429, 432 (1983).
44    John Locke, Second Treatise on Government 9 (C. B. Macpherson ed. 1980)
      (emphasis in original).
45    For a particularly salient example, see John Paul II, The Gospel of Life (Evangelium
      Vitae) at secs. 64-67 (1995).
46    Steven Weinberg, The First Three Minutes: A Modern View of the Origin of the
      Universe 154 (1977).
47    Bertrand Russell, A Free Man’s Worship, in Why I Am Not a Christian 104, 107
      (1957).
48    For discussion, see Steven D. Smith, Law’s Quandary 33-37 (2004). Though today
      regarded as almost axiomatic, this restriction is in fact of comparatively recent
      vintage. Stuart Banner explains that during the nineteenth century, “[f]rom the United
      States Supreme Court to scattered local courts, from Kent and Story to dozens of
      writers no one remembers today, Christianity was generally accepted to be part of
      the common law.” Stuart Banner, When Christianity Was Part of the Common Law,
      16 Law & Hist. Rev. 27, 43 (1998). Charles Reid shows that courts regularly invoked
      beliefs about the divinely-ordained status of marriage in domestic relations cases
      until well into the twentieth century. Charles F. Reid , Jr., (Forthcoming).
49    See Lemon v. Kurtzman, 403 US 602, 612 (1971).
50    See Cruzan v. Director, Missouri Dep’t of Health, 497 US 261, 346-51 (1990)
      (Stevens, J., dissenting); Webster v. Reproductive Services, 492 US 490, 565-72
      (1989) (Stevens, J, dissenting and concurring).
51    A revealing sample of such opinions is provided in Richard Posner’s Holmes lecture
      of a few years ago and the various passionate reactions to that lecture. See Richard
      A. Posner, The Problematics of Moral and Legal Theory, and responses by Ronald
      Dworkin, Charles Fried, Anthony Kronman, John T. Noonan, Jr., and Martha
      Nussbaum, in 111 Harv. L. Rev. 1637 (Issue 7, 1998).
                       De-Moralized: Glucksberg in the Malaise                       253




52   Martha C. Nussbaum, Skepticism about Practical Reason in Literature and the Law,
     107 Harv. L. Rev. 714, 740 (1994).
53   See, e.g., Richard Posner, The Problematics of Moral and Legal Theory 3-90 (1999).
54   J. S. Mill, Utilitarianism 97 (Roger Crisp ed. 1998).
55   Alasdair Maclntyre, After Virtue (2d ed. 1985).
56   G.E.M. Anscombe, Modern Moral Philosophy, in A. Martinich & David Sosa, Analytic
     Philosophy: An Anthology 381-92 (2001). In a similar vein, see W. T. Stace, Man
     Against Darkness and Other Essays 10 (1967).
57   I encountered this quotation in Michael J. Perry, Morality and Normativity (work-in-
     progress). Perry quotes and discusses a number of other philosophers who make
     similar claims.
58   John M. Rist, Real Ethics: Rethinking the Foundations of Morality 44 (2002).
59   Id. at 37, 1-2.
60   Arthur Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229. See also
     Perry, supra note    I have developed similar criticisms at greater length elsewhere.
     See, e.g., Steven D. Smith, The Constitution and the Pride of Reason 15-30, 84-91
     (1998); Smith, supra note
61   Richard Joyce, The Myth of Morality (2001); J. L. Mackie, Ethics: Inventing Right and
     Wrong (1978).
62   See, e.g., Francis Kamm, 1 Morality, Mortality 7 (1993):
        We present hypothetical cases for consideration and seek judgments about
        what may and may not be done in them. The fact that these cases are
        hypothetical and often fantastic distinguishes this enterprise from
        straightforward applied ethics ....
63   Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47, 59-61 (1971).
64   The problem, by now discussed in countless articles and books, is said to have been
     introduced in Philippa Foot, The Problem of Abortion and the Doctrine of the Double
     Effect in Virtues and Vices (1978).
65   For a helpful presentation of some of these questions as they arise in adjudication,
     see R. George Wright, The Role of Intuition in Judicial Decisionmaking, 42 Houston
     L. Rev. 1381, 1391-98 (2006). For a careful attempt to defend ethical intuitionism
     by attaching it to Kant’s moral imperatives, see Robert Audi, The Good in the Right
     (2004). Even if an account such as Audi’s is persuasive, however, that account would
     not necessarily provide a good justification for the way intuitions are used in moral
     philosophizing today. Thus, Audi notes that “[a]ppeals to intuitions in resolve moral
     questions are a pervasive strategy in contemporary ethical discourse,” but that “only
     a small proportion of the many who appeal to intuitions ... as evidence in ethical
     theorizing would espouse ethical intuitionism. “ Id. at 24.
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66    For a discussion of the difficulty of saying what a “moral” judgment, feeling, or
      intuition is, see Alexander Miller, An Introduction to Contemporary Metaethics 43-46
      (2003).
67    Maclntyre, supra note at 253.
68    For a critical discussion, see Larry Alexander & Maimon Scharzschild, Grutter or
      Otherwise: Racial Preferences and Higher Education, 21 Const. Comm. 3 (2004).
69    Maclntyre, supra note at 263.
70    For a description of this reversal in fortunes and a defense of formalism in law, see
      Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis,
      Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. Const. L.J. 155,
      166-84 (2006).
71    For a modest and pragmatic proposal in this vein, see Cass R. Sunstein, Burkean
      Minimalism, 105 Mich. L. Rev. 355 (2006). For my own defense of a traditionalist
      approach in establishment clause jurisprudence, see Steven D. Smith, Separation as
      a Tradition, 18 J. Law & Politics 215 (2002).
72    Devlin’s position is presented in Patrick Devlin, The Enforcement of Morals (1965).
      For one among many arguments criticizing Devlin for giving too much weight to
      convention and too little to reasoning in determining morality, see Ronald Dworkin,
      Taking Rights Seriously 240-55 (1977).
73    This would be a somewhat different rationale for the use of tradition in constitutional
      law than the ones discussed and criticized in Cass R. Sunstein, Due Process
      Traditionalism, SSRN.
74    For a thoroughgoing criticism, see Lund & McGinnis, supra note        . Lund and
      McGinnis argue that “the Lawrence opinion is a tissue of sophistries embroidered
      with a bit of sophomoric philosophizing.” Id. at 1557. See also Kalscheur, supra
      note     at 3 (“The opinions produced by the Justices ... in Lawrence provide
      compelling evidence that the persistent American confusion about the proper
      relationship between law and morality has now borne fruit in doctrinal
      incoherence.”).
75    See supra notes and accompanying text.
76    For a lengthy assessment of that environment, see Smith, Law’s Quandary, supra
      note, chs. 3, 4, and 7.
                                             10
    In the Laboratory of the States: The
    Progress of Glucksberg’s Invitation
      to States to Address End-of-Life
                   Choice
                                      Kathryn L. Tucker*

        It has now been ten years since the Supreme Court handed
        down Glucksberg and Quill, rulings on laws that forbid
        “assisted suicide.” In that time, normative and legal
        developments in the fields of law, medicine, and psychology
        have changed the landscape of the discourse on the choice of a
        mentally competent, terminally ill individual to choose to
        self-administer medications to bring about a peaceful death.
        Although the Court rejected petitioners’ claims that state laws
        denying them the ability to end their terminal illnesses through
        self-administered medication violated the Constitution, it left
        states with the opportunity to experiment with legislation that
        would allow terminally ill individuals the choices they had
        previously sought through litigation. Oregon’s experience with
        its Death with Dignity Act, which grants terminally ill, mentally

*   Director of Legal Affairs, Compassion & Choices; Adjunct Professor of Law, Lewis and Clark School of
    Law. E-mail: ktucker@compassionandchoices.org

© 2008 The Michigan Law Review Association. This article was originally published in MICHIGAN LAW
REVIEW, June 2008, Vol. 106, No. 8. Reprinted with permission.
Source: http://www.highbeam.com/Michigan+Law+Review
256                    PHYSICIAN ASSISTED EUTHANASIA



      competent individuals the choice to end their lives through self-
      administered medication, has proven that such laws provide
      comfort not only to those who, faced with the prospect of a
      horrible death from a terminal illness, choose to end their lives
      in a peaceful and dignified manner, but also to those to
      ultimately choose not to. Additionally, Oregon’s experience
      shows that the fears that originally attended the “assisted
      suicide” debate are unfounded so long as proper procedures are
      in place. Because Oregon’s Death with Dignity Act has proven
      both useful and harmless, this Article concludes that it is time
      for other states to follow Oregon’s lead and enact their own
      legislation to allow their citizens an alternative to what otherwise
      could be a prolonged and painful death from terminal illness.


Introduction
Invoking continued debate, the US Supreme Court concluded its 1997 decision
in Washington v. Glucksberg with these words: “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.” 1

   The debate has indeed continued these past ten years, and there have been
two particularly significant developments worthy of close examination. First,
Oregon has been implementing its Death with Dignity Act 2 (“Dignity Act”) since
1997. This law empowers terminally ill, mentally competent adult Oregonians to
control the timing and manner of their deaths, subject to careful procedures. A
fraction of dying patients confront a dying process so prolonged and marked by
such extreme suffering and deterioration that, even with excellent pain and
symptom management, they determine that hastening impending death is the
least-bad alternative. The data show that passing this law has harmed no one
and has benefited both the relatively few patients in extremis who make use of it,
and a great many more who draw comfort from knowing this option is available.
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 257
                      to States to Address End-of-Life Choice


    Second, an important evolution has occurred in the terminology used to
discuss the choice of a mentally competent, terminally ill patient to self-
administer medications to bring about a peaceful death. It is increasingly
recognized that it is inaccurate to consider this choice to be “suicide.” The Dignity
Act itself states that such actions “shall not, for any purpose, constitute suicide,
assisted suicide, mercy killing or homicide, under the law.” 3 The Oregon
Department of Human Services, which reports on the implementation of the
Dignity Act, rejects referring to this as “assisted suicide” or “physician assisted
suicide.”

    From a mental health perspective, “suicide” and the choice of a dying patient
to hasten impending death in a peaceful and dignified manner are starkly
different. 4 The American Psychological Association has recognized that “the
reasoning on which a terminally ill person (whose judgments are not impaired by
mental disorders) bases a decision to end his or her life is fundamentally
different from the reasoning a clinically depressed person uses to justify
suicide.” 5

   Many medical experts 6 and legal experts 7 have also come to recognize that
the term “suicide” or “assisted suicide” is inappropriate when discussing the
choice of a mentally competent, terminally ill patient to seek medications that he
or she could consume to bring about a peaceful and dignified death. The term
“assisted suicide” has been replaced with more accurate and value-neutral terms
such as “aid in dying” or “physician-assisted dying.” 8 The only active opponents
of this evolution in terminology are opponents of the practice who continue to
malign the choice for aid in dying by labeling it “suicide.”

   It is timely now, ten years after Glucksberg, to assess the lessons learned from
the experience in Oregon, and to consider if the laboratory ought to and/or can
be expanded beyond Oregon, as well as the likelihood that such expansion will
occur. Part I of this Article reviews the constitutional landscape in the wake of
Glucksberg and Vacco v. Quill. 9 Part II describes the Oregon statute, the legal
challenges it has survived, and the record of its implementation. Finally, Part III
reviews the support and opposition to aid-in-dying laws nationwide and
concludes that there are substantial prospects that other states will enact laws
258                     PHYSICIAN ASSISTED EUTHANASIA



similar to Oregon’s.

I. The Constitutional Landscape
A. Where did Glucksberg and Quill Leave us?
In an effort to establish that competent, dying patients have the right to openly
choose a humane, physician-assisted death, laws prohibiting assisted suicide in
New York and Washington were challenged on federal constitutional grounds in
the cases of Vacco v. Quill 10 and Washington v. Glucksberg. 11

    In these cases, patients and physicians challenged the assisted suicide laws to
the extent that they prohibited doctors from providing medications to competent,
dying patients that the patients could use to hasten death if they so chose. 12
Liberty and equality guaranteed by the Fourteenth Amendment of the US
Constitution formed the basis of the claims. 13 Two federal courts of appeals,
including the Ninth Circuit sitting en bane, agreed that statutes preventing
patients from exercising this option were unconstitutional. 14 The Supreme Court
reversed these decisions, but left the door open to both future legislative reform
and a future successful constitutional claim. 15

    The opinions, both majority and concurring, invited legislative reform. The
majority did so in the passage quoted at the beginning of this Article, and Justice
Souter’s concurring opinion stated an explicit preference for legislative action in
this area. He wrote that “[t]he Court should . . . stay its hand to allow reasonable
legislative consideration,” 16 and that “the legislative process is to be preferred.”17
Similarly, Justice O’Connor’s concurrence demonstrated her concern that state
legislatures be given the first opportunity to address the issue: “States are
presently undertaking extensive and serious evaluation of physician-assisted
suicide and other related issues. . . . In such circumstances, the ... challenging
task of crafting appropriate procedures for safeguarding ... liberty interests is
entrusted to the ‘laboratory’ of the States....” 18

   In the course of these cases’ movement through the courts, the subject of a
dying patient’s right to choose to hasten impending death by self-administering
medications – prescribed by a physician for this purpose – stimulated a
tremendous amount of public education and debate. 19 In support of the patients
and physicians in Glucksberg and Quill, many citizens of Washington and New
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 259
                      to States to Address End-of-Life Choice


York shared their stories in an amicus brief to the Supreme Court, detailing the
suffering of loved ones who did not have access to medications that they could
self-administer to hasten death when their dying process became intolerable. 20
Countless citizens began the discussion about physician-assisted dying in the
wake of the publication of these stories. Media of many varieties also addressed
the issue. 21

B. Aggressive Pain and Symptom Management
In Glucksberg and Quill, several members of the Court suggested that patients
may have a right to aggressive pain management. In a concurring opinion
joined by Justice Breyer, Justice O’Connor stated that “a patient who is suffering
from a terminal illness and who is experiencing great pain has no legal barriers
to obtaining medication, from qualified physicians, to alleviate that suffering,
even to the point of causing unconsciousness and hastening death.” 22 She further
wrote that “[t]here is no dispute that dying patients . . . can obtain palliative care,
even when doing so would hasten their deaths.” 23

   Thus Justices O’Connor and Breyer answered a question that the parties had
not actually posed, appearing to recognize a constitutional right to adequate
pain medication – including the practice of terminal or palliative sedation. 24 In
the years since the decisions issued, the practice has become steadily
incorporated in end-of-life care, and authoritative literature in medical journals
detailing the practice is burgeoning. 25 Where patients can expect good pain and
symptom management, the argument that all that is really needed is simply
better pain and symptom management 26 has little traction. 27

II. The Oregon Experience: Has the Laboratory Served its
Function?
A decade after the Supreme Court’s invitation for legislative reform, and with a
decade of experience with Oregon’s landmark aid-in-dying law, what have we
learned? Has the laboratory envisioned by the Court served its purpose?

A. Challenges to the Death with Dignity Act
The Dignity Act was passed in 1994 through the initiative process.
Implementation was obstructed for several years by a lawsuit arguing that the
260                    PHYSICIAN ASSISTED EUTHANASIA



law denied the terminally ill equal protection of the laws. The Ninth Circuit
dismissed the case on the grounds that the plaintiffs lacked standing. 28
Opponents also made an effort to force a repeal through another ballot initiative
in 1997. That effort failed when sixty percent of Oregon voters rejected the
repeal. 29 The Dignity Act began to be implemented in 1998.

    Although the law became fully effective in 1998, opponents of the law
continued to seek to overturn it. One strategy was to seek relief from the federal
government, urging the Drug Enforcement Administration (“DEA”) to take action
against Oregon physicians acting in compliance with the law on the basis that
such activity violated the Controlled Substances Act (“CSA”). 30 The DBA initially
opined that its agents could revoke the registrations of physicians who assisted in
hastening deaths under the Dignity Act. However, US Attorney General Janet
Reno overruled this position, concluding that the CSA did not reach such
conduct. 31 Reno stated that “[t]here is no evidence that Congress, in the CSA,
intended to displace the states as the primary regulators of the medical
profession, or to override a state’s determination as to what constitutes legitimate
medical practice in the absence of a federal law prohibiting that practice.” 32

    Opponents then sought, in two successive sessions of Congress, to expand
the scope of the CSA to reach the Dignity Act. 33 Both efforts failed in the face of
strong opposition from the medical community, founded on the concern that the
proposed measures would exacerbate physicians’ fears regarding the use of
controlled substances in pain management. 34

    A change in federal administration and philosophy led to a change in legal
interpretation. The Bush Administration’s first Attorney General, John Ashcroft,
issued a directive in November 2001 (the “Ashcroft Directive”), advising that the
Department of Justice had concluded that prescribing controlled substances
under the Dignity Act violated the CSA. 35 The directive stated that “assisting
suicide is not a ‘legitimate medical purpose’ within the meaning of the
regulations governing implementation of the CSA, and therefore “prescribing,
dispensing, or administering federally controlled substances to assist suicide
violates the [CSA].” 36 In particular, “[s]uch conduct by a physician registered to
dispense controlled substances may ‘render his registration . . . inconsistent with
the public interest’ and therefore subject to possible suspension or revocation
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 261
                      to States to Address End-of-Life Choice


under [the CSA].” 37

   The Ashcroft Directive was challenged in federal court by the state of Oregon,
an Oregon physician, and a group of terminally ill Oregonians, who asserted
that it violated the CSA, the Administrative Procedure Act, and the US
Constitution. The district court reached only the question of whether the directive
was within the scope of the CSA. The court concluded that it exceeded the
authority granted under the CSA, and a permanent injunction was entered:

   The determination of what constitutes a legitimate medical practice or
   purpose traditionally has been left to the individual states .... The CSA was
   never intended, and the USDOJ and DBA were never authorized, to estab-
   lish a national medical practice or act as a national medical board. To
   allow an attorney general – an appointed executive whose tenure depends
   entirely on whatever administration occupies the White House – to
   determine the legitimacy of a particular medical practice without a specific
   congressional grant of such authority would be unprecedented and
   extraordinary. 38

   The Ninth Circuit Court of Appeals issued a ruling with much the same
reasoning. 39 In January 2006, the US Supreme Court affirmed, leaving Oregon’s
landmark law intact and the door to state experimentation with aid in dying
open. 40

B. Implementation and its Implications
The Oregon Death with Dignity Act demonstrates that aid-in-dying laws can, and
do, work well. The Dignity Act establishes tightly controlled procedures under
which competent, terminally ill adults who are under the care of an attending
physician may obtain a prescription for medication to allow them to control the
time, place, and manner of their own impending death. 41 The attending
physician must, among other things, determine that the patient is mentally
competent and an Oregon resident, and confirm the patient’s diagnosis and
prognosis. 42 To qualify as “terminally ill,” a person must have “an incurable and
irreversible disease that has been medically confirmed and will, within
262                   PHYSICIAN ASSISTED EUTHANASIA



reasonable medical judgment, produce death within six months.” 43

   The attending physician must also inform persons requesting such medication
of their diagnosis and prognosis, the risks and probable results of taking the
medication, and alternatives to taking their own lives, including – although not
limited to – hospice care and pain relief. 44 A consulting physician must confirm
the attending physician’s medical opinion. 45

    Once a request from a qualifying patient has been properly documented and
witnessed, and all waiting periods have expired, 46 the attending physician may
prescribe, but not administer, medication to enable the patient to end his or her
life in a humane and dignified manner. The Dignity Act protects physicians and
pharmacists who act in compliance with its comprehensive procedures from civil
or criminal sanctions and any professional disciplinary actions based on that
conduct. 47

   The Dignity Act requires healthcare providers to file reports with the state
documenting their actions. 48 Oregon’s experience with aid in dying has therefore
been extensively documented and studied. To date, the Oregon Public Health
Division and Department of Human Services have issued nine annual reports
that present and evaluate the state’s experience with the Dignity Act. 49 Related
reports and articles have also been published in leading medical journals. 50
These reports constitute the only source of reliable data regarding actual
experience with legal, regulated physician-assisted dying in America.

C. The Laboratory has Served its Function
In invoking the laboratory of the States, the Court in Glucksberg contemplated
that one courageous state could address this controversial issue, and other states
could watch and learn. This is exactly what has happened in Oregon.

   The experience in Oregon has demonstrated that a carefully drafted law does
not place patients at risk. 51 In a report examining the Oregon experience to
assess whether vulnerable populations were put at risk, the researchers
concluded that there was no evidence supporting this concern. 52 The Oregon
experience has caused even staunch opponents to admit that continued
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 263
                      to States to Address End-of-Life Choice


opposition to such a law can only be based on personal, moral, or religious
grounds. 53

    The Oregon reports have shown the dire predictions of those initially opposed
to the Dignity Act to have been unfounded. The data demonstrate that the option
of physician-assisted dying has not been unwillingly forced upon those who are
poor, uneducated, uninsured, or otherwise disadvan-taged. 54 In fact, the studies
show just the opposite. For example, the eighth annual report found that a
higher level of education is strongly associated with the use of physician-assisted
dying; those with a baccalaureate degree or higher were 7.9 times more likely
than those without a high school diploma to choose physician-assisted dying. 55
The report found that 100% of patients opting for physician-assisted dying under
the Dignity Act had either private health insurance, Medicare, or Medicaid, and
92% were enrolled in hospice care. 56 Furthermore, the reports demonstrate that
use of physician-assisted dying is limited. During the first nine years in which
physician-assisted dying was a legal option, only 292 Oregonians chose it. 57
And although there has been a gradual increase in the rate of those opting for
physician-assisted dying, the overall rate remains low: the 38 terminally ill adults
who chose this option in 2005 represented only 12 deaths for every 10,000
Oregonians who died that year. 58 A 2000 survey of Oregon physicians found
that they granted 1 in 6 requests for aid in dying, and that only 1 in 10 requests
resulted in hastened death. 59 Roughly one-third of those patients who complete
the process of seeking medications under the Dignity Act do not go on to
consume the medications. These individuals derive comfort from having the
option to control the time of death yet ultimately die of their disease without
exercising that control. 60

   Outside observers, after carefully studying implementation of the aid-in-dying
law in Oregon, have concluded that the law poses no risk to patients. For
example, a report prepared for the Vermont legislature, after thoroughly
reviewing the Oregon experience, concluded that “it is quiet [sic] apparent from
credible sources in and out of Oregon that the Death with Dignity Act has not
had an adverse impact on end-of-life care and in all probability has enhanced
the other options.” 61 Leading scholars have come to conclusions such as this: “I
worried about people being pressured to do this .... But this data confirms . . .
264                     PHYSICIAN ASSISTED EUTHANASIA



that the policy in Oregon is working. There is no evidence of abuse or coercion,
or misuse of the policy.” 62

    Indeed, rather than posing a risk to patients or the medical profession, the
Dignity Act has galvanized significant improvements in the care of the dying in
Oregon. Oregon doctors report that since the passage of the Dignity Act, efforts
have been made to improve their ability to provide adequate end-of-life care. 63
These efforts include improving their knowledge of the use of pain medications
for the terminally ill, improving their ability to recognize depression and other
psychiatric disorders, and more frequently referring their patients to hospice
programs. 64 One survey of Oregon physicians on their efforts to improve end-of-
life care since 1994 found that 30% of respondents increased their number of
referrals to hospice care and 76% made efforts to increase their knowledge of
pain medication. 65 A survey of hospice nurses and social workers in Oregon
reveals that they observed, during a period from 1998 to 2003, an increase in
physicians’ knowledge of palliative care and willingness both to refer and to care
for hospice patients. 66

   In addition to the improvement of end-of-life care, the legal option of aid in
dying has psychological benefits for both the terminally ill and the healthy. The
availability of the option of aid in dying gives the terminally ill autonomy, control,
and choice, which physicians in Oregon have identified as the overwhelming
motivational factor behind the decision to request assistance in dying. 67 Healthy
Oregonians know that if they ever face a terminal illness, they will have control
and choice over their manner of death.

   The data demonstrate that, far from posing any hazard to patients or the
practice of medicine, making the option of assisted dying available has gal-
vanized improvements in end-of-life care and benefited all terminally ill
Oregonians. A central argument against allowing patients access to aid in dying
has been that risks would arise if the option were available. 68 Actual experience
demonstrates that these risks do not, in fact, exist. And the lack of these risks
undermines the argument against aid in dying. 69 This has led some major
medical organizations to conclude that passage of Oregon-type aid-in-dying
laws is good policy and to adopt policy supporting passage of such laws. 70

III. Are Other States Ready for an Assisted Dying Law?
     In the Laboratory of the States: The Progress of Glucksberg’s Invitation 265
                     to States to Address End-of-Life Choice


The arguments against aid in dying are unpersuasive. Once those arguments are
dismissed, the question remains: given the successful experience in Oregon, can
and should other states adopt laws permitting aid in dying?

A. Support and Opposition
Since 1991, when Washington voters were the first in the nation to consider the
question of legalizing physician-assisted dying, the issue has been in the public
eye. In early 1993, Compassion in Dying, now called Compassion & Choices,
was formed as a non-profit public interest organization. This group provides
direct counseling to patients confronting end-of-life decisionmaking and
advocates for improved end-of-life care and expanded choices for terminally ill
patients, including aid in dying. This group has been operating since 1993,
advancing the public dialogue on this subject, speaking in public forums, and
counseling thousands of individuals and their families in states across the nation.

    Though Oregon is the only state yet to have legalized the option of physician
aid in dying, support for the option is widespread nationwide. A poll released by
the Pew Research Center in January 2006 found that 60% of Americans “believe
a person has a moral right to end their life if they are suffering great pain and
have no hope of improvement,” an increase of nearly 20 percentage points
since 1975, and 53% “believe a person has a moral right to end their life if
suffering from an incurable disease.” 71 A Harris poll published in January 2002
found that 65% of respondents supported legalization of the right to physician-
assisted dying, and 61% favored implementation of a version of the Dignity Act
in their own states. 72 Another group of studies found that between 63% and 90%
of people with a terminal illness supported a right to physician-assisted dying
and would like to have the option available to them. 73 In California, surveys in
February 2005 and February 2006 found that 70% of California residents
supported the idea that “incurably ill patients have the right to ask for and get
life-ending medication.” 74

   Support is also strong among physicians. A national survey conducted in
February 2005 found that 57% of the 1088 physicians polled believed it is
ethical for a physician to assist a competent, dying patient to hasten death. 75
A 2001 survey published by the Journal of the American Medical Association
found that 51% of responding physicians in Oregon supported the Dignity Act
266                    PHYSICIAN ASSISTED EUTHANASIA



and legalization of physician-assisted dying. 76 A nationwide survey published in
2001 in the Journal of General Internal Medicine found that 45% of responding
physicians believed that physician-assisted death should be legal, whereas only
34% expressed views to the contrary. 77 Some medical associations have adopted
policies supporting passage of aid-in-dying laws, 78 while others, recognizing the
division within the medical community on the question, have opted to embrace a
position of neutrality on the question of legalizing physician-assisted dying. 79
Women’s health advocates also support legalization of aid in dying. For
example, the National Women’s Law Center and the National Women’s Health
Network endorsed passage of the aid-in-dying law (“AB 374”) 80 proposed in
California in 2007. The National Women’s Law Center drew a connection to the
issue of reproductive rights:

   As an organization that supports reproductive rights, the Center is
   committed to making sure that the religious beliefs of some individuals or
   entities do not impose barriers to health care quality or access. We have
   seen tremendous opposition to certain care at the end of life from the
   same forces that oppose women’s right to reproductive health care.
   Because these two issues implicate similar interests of privacy, autonomy,
   bodily integrity, and respect for the patient’s conscience and beliefs, we
   feel compelled to support AB 374. . . . This bill would place California,
   along with Oregon, at the forefront of efforts to respect individuals’ right
   to consult with their doctors to make the health care decisions they deem
   best, and perhaps encourage other states to do the same. 81

   One might conclude that, with such strong support for legalizing aid in dying,
other states would be passing laws similar to Oregon’s. However, certain groups
remain staunchly opposed. These include the so-called “right to life” lobby 82 and
the Catholic Church. 83 In addition, a vocal segment of the disability rights
community has raised arguments in opposition to passage of such laws,
contending that legalization of aid in dying for competent, terminally ill patients
would somehow put persons with disabilities into jeopardy. These arguments
have been addressed and shown to be without foundation by a number of
scholars. 84
     In the Laboratory of the States: The Progress of Glucksberg’s Invitation 267
                     to States to Address End-of-Life Choice


B. The Back Alley: Facing the Reality of Leaving Aid in Dying
Unregulated
Although legal only in Oregon, physicians throughout the country report that they
regularly receive requests for assistance in dying. A significant percentage of
primary care physicians and an even larger percentage of oncologists in the
United States report having been asked for their assistance in a patient’s
hastened death; one quarter of them complied. 85
   When aid in dying occurs outside of Oregon – in covert, underground
practice – complications are more likely to occur. For example, there is a much
higher chance of an extended time until death after consuming lethal
medications under covert practice. 86 Moreover, the stress and anxiety for the
patient and family is much higher when no physician can legally be involved to
counsel the patient and family and provide the prescription for medications. 87
   This situation is reminiscent of the era when women could not legally choose
to terminate an unwanted pregnancy and had to resort to the “back alley,”
where a rusty hanger could be the implement used to end the pregnancy,
resulting in countless injuries, deaths, and trauma. 88 Thus, the question is not
whether aid in dying will occur, but whether it will occur in a regulated and
controlled fashion with safeguards and scrutiny or covertly, in a random,
dangerous, and unregulated manner.

C. The California Effort
Efforts to pass laws similar to the Oregon Death with Dignity Act have been
launched in other states, including a recent effort in California. The California
Compassionate Choices Act (“CCCA”), introduced in 2007, was modeled after
Oregon’s Death with Dignity Act and would have allowed a mentally competent,
terminally ill patient with a prognosis of three months or less to obtain a
prescription to bring about hastened death. 89 The CCCA, while modeled after
the Oregon law, was more restrictive in certain respects, as a result of
amendments sought and accommodated in the legislative process. For example,
the CCCA would permit use of the law only when a patient has up to three
months life expectancy, 90 rather than six months as permitted in Oregon. 91 In
addition, the CCCA explicitly required that the patient self-administer the
medications, whereas in Oregon this is implicit. 92 Thus, the akeady stringent
limitations of the Oregon model were made even more stringent by California
268                      PHYSICIAN ASSISTED EUTHANASIA



legislators seeking to devise a measure that addresses public concerns while still
providing comfort and relief to dying patients who find their situation intolerable.
Notwithstanding the strong public support for the CCCA 93 and the many
safeguards and restrictions in the measure, it did not pass and was not
reintroduced in 2008. 94

Conclusion
Ten years after Glucksberg, it is timely, prudent, and humane for other states to
enact laws to empower terminally ill, mentally competent adult citizens to control
the timing and manner of their deaths by enabling them to obtain medications
from their physician that could be self-administered to bring about a peaceful
and humane death, subject to careful procedures.

    Even with excellent pain and symptom management, a fraction of dying
patients confront a dying process so prolonged and marked by such extreme
suffering and deterioration that they determine that hastening impending death
is the least-bad alternative. Passage of aid-in-dying laws harms no one and
would benefit both the relatively few patients in extremis who would make use of
the option and a great many more who would draw comfort from knowing this is
available should their dying process become intolerable.

     Any state now considering the issue does so with a decade of data from the
state of Oregon, which firmly puts to rest the concern that a legal option of aid in
dying poses risk to patients or physicians. The question, finally, is simply this: is a
state sufficiently compassionate to allow the choice of aid in dying to terminally
ill, competent patients who are receiving state-of-the-art end-of-life care but are
still suffering?

Endnotes
1     521 US 702, 735 (1997).
2     OR. REV. STAT. §§ 127.800-995 (2005).
3     Id. § 127.880. Since it is explicit in the law that the death of a patient under the
      Dignity Act does not constitute “suicide,” there is no basis for a suicide exemption
      under an insurance policy which excludes payment of benefits in cases of “suicide.”
4     E. James Lieberman, Letter to the Editor, Death with Dignity, PSYCHIATRIC NEWS,
      Aug. 4, 2006, at 29. Lieberman wrote:
     In the Laboratory of the States: The Progress of Glucksberg’s Invitation 269
                     to States to Address End-of-Life Choice



          The term “assisted suicide” is inaccurate and misleading with respect to the
          [Dignity Act]. These patients and the typical suicide are opposites:
             The suicidal patient has no terminal illness but wants to die; the [Dignity
             Act] patient has a terminal illness and wants to live.
             Typical suicides bring shock and tragedy to families and friends; [Dignity
             Act] deaths are peaceful and supported by loved ones.
             Typical suicides are secretive and often impulsive and violent. Death in
             [the Dignity Act] is planned; it changes only timing in a minor way, but
             adds control in a major and socially approved way.
             Suicide is an expression of despair and futility; [the Dignity Act] is a form
             of affirmation and empowerment.
    Id.
5   Rhea K. Farberman, Am. Psychological Ass’n, Terminal Illness and Hastened Death
    Requests: The Important Role of the Mental Health Professional, 28 PROF. PSYCHOL.:
    RES. & PRAC. 544, 544 (1997), quoted in Brief of Amicus Curiae Coalition of Mental
    Health Professionals in Support of Respondents at 17, Gonzales v. Oregon, 546 US
    243 (2006) (No. 04-623); see also David M. Smith & David Pollack, A Psychiatric
    Defense of Aid in Dying, 34 COMMUNITY MENTAL HEALTH J. 547(1998).
6   The American Medical Women’s Association’s position statement Aid in Dying notes
    as follows:
          The terms “assisted suicide” and/or “physician assisted suicide” have been
          used in the past, including in an AMWA position statement, to refer to the
          choice of a mentally competent, terminally ill patient to self administer
          medication for the purpose of controlling time and manner of death, in cases
          where the patient finds the dying process intolerable. The term “suicide” is
          increasingly recognized as inaccurate and inappropriate in this context and
          we reject that term. We adopt the less emotionally charged, value-neutral,
          and accurate terms “Aid in Dying” or “Physician Assisted Dying”.
    Position Statement, Am. Med. Women’s Ass’n, Aid in Dying (Sept. 9, 2007),
    http://www.amwa-doc.org (follow “Advocacy” hyperlink; then follow “Position
    Statements” hyperlink); see also, CHARLES F. MCKHANN, A TIME TO DIE: THE PLACE FOR
    PHYSICIAN ASSISTANCE (1999); Joseph B. Straton, Physician Assistance with Dying:
    Reframing the Debate; Restricting Access, 15 TEMP. POL. & CIV. RTS. L. REV. 475, 475
    (2006) (arguing that “the process of permitting people to actively end thek lives
    before their disease ends their lives” ought to be referred to as “physician assistance
    with dying,” instead of “physician-assisted suicide.”); Principles Regarding Physician-
    Assisted Suicide, Resolution D01, Am. Med. Student Ass’n House of Delegates
    (March 15, 2008) (on file with author) [hereinafter AMSA Principles] (replacing the
    organization’s use of the phrase “physician-assisted suicide” with “aid in dying” and
    stating that the practice “should not.. . constitute suicide, assisted suicide, mercy
    killing or homicide”); Position Statement, Am. Acad. of Hospice & Palliative Med.,
270                          PHYSICIAN ASSISTED EUTHANASIA




      Physician-Assisted Death (Feb. 14, 2007), available at http://www.aahpm.org/
      positions/suicide.html (rejecting the term physician-assisted suicide as “emotionally
      charged” and inaccurate).
7     E.g., James E. Dallner & D. Scott Manning, Death with Dignity in Montana, 65
      MONT. L. REV. 309, 314-15 (2004). Dallner and Manning note:
            [T]he word “suicide” is well suited to the description of a distraught individual
            with his whole life ahead of him, who in a moment of despair, commits a
            completely senseless and utterly tragic act. In contrast, “suicide” is not well suited
            to describe an elderly cancer patient who in the final days of a horrible and
            agonizing struggle simply wishes to avoid more needless suffering and indignity.
            The first individual’s act destroys what could be a long and productive life. The
            elderly cancer patient does not extinguish the hope of a bright future, but rather
            avoids the last uncharacteristically painful and undignified moments of a life
            already fully lived .... Use of the word “suicide” ... arouses the images of tragic
            loss of life in a situation where the tragedy may be the continuation of life.
      Id.
8     E.g., Kevin B. O’Reilly, Oregon nixes use of term “physician-assisted suicide”, AM.
      MED. NEWS, Nov. 6, 2006, available at http://www.ama-assn.org/amednews/2006/
      ll/06/prscll06.htm (“Oregon’s Dept. of Human Services announced . . . that it no
      longer would use the term ‘physician-assisted suicide’ to describe terminally ill
      patients who ask doctors to help them die.”); Policy Statement, Am. Pub. Health
      Ass’n, Supporting Appropriate Language Used to Discuss End of Life Choices: Policy
      No. LB-06-02 (Nov. 8, 2006), available at http://www.compassionandchoices.org/
      pdfs/APHA_Policy.pdf (urging “that accurate, value-neutral terms such as ‘aid in
      dying’ or ‘patient directed dying’ be used to describe this choice”).
9     521 US 793 (1997).
10    Id.
11    521 US 702 (1997).
12    It should be noted that in these cases, it was assumed that these laws could reach the
      conduct of a physician prescribing medications for this purpose; this is a rather large
      assumption, and a compelling argument could be made that such conduct is simply
      outside the scope of such statutes. As noted elsewhere in this Article, there is an
      emerging consensus that it is inaccurate to refer to the choice of a mentally
      competent, terminally ill patient to seek to hasten death as “suicide”; thus it can be
      persuasively argued that a physician prescribing medications for such a patient
      does not “assist suicide.”
13    These cases have been the subject of extensive commentary. A terms and connectors
      search for the Glucksberg cite in the Westlaw “law reviews and journals” database
      on March 1, 2008 yielded 1625 cites; a similar search with the Quill cite yielded
      467 citations.
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 271
                      to States to Address End-of-Life Choice



14   See Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en bane),
     rev‘d sub nom. Glucksberg, 521 US 702; Quill v. Vacco, 80 F.3d 716 (2d Cir.
     1996), rev‘d, 521 US 793.
15   The fact that the door was plainly left ajar by the Glucksberg Court distinguishes the
     Glucksberg ruling from Bowers v. Hardwick, 478 US 186 (1986), and the two
     decisions ought not be considered of a kind. But see Brian Hawkins, Note, The
     Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas, 105
     MICH. L. REV. 409, 411 (2006) (arguing Gluckberg’s restrictive approach to due
     process is alive and well).
16   Glucksberg, 521 US at 789 (Souter, J., concurring).
17   Id. at 788.
18   Id. at 737 (O’Connor, J., concurring) (second and third omissions in original)
     (citation and internal quotation marks omitted).
19   See J.B. Deisher, Letter to the Editor, Living And Dying – Suffering That Precedes
     Death Should Be The Real Enemy, SEATTLE TIMES, Dec. 20, 1994, at B5; Robert A. Free
     et al., Op-Ed, Compassion, Dignity In Dying – Terminal Patients Turn To Family When
     Living Becomes Unbear able, SEATTLE TIMES, Jan. 12, 1997, at B5; Charlotte B.
     Hammond, Letter to the Editor, Right To Die – Support For Assisted Suicide, SEATTLE
     TIMES, Jan. 17, 1997, at B5; Peter M. McGough, Letter to the Editor, Physician-
     Assisted Suicide – Most Patients Are Unaware of Their Treatment Options,
     SEATTLE TIMES, Nov. 28, 1994, at B5; Carol M. Ostrom, End-Of-Life Issues Prove
     Perplexing – ‘Right To Die’ Raises Legal Questions, SEATTLE TIMES, Oct. 1, 1994, at
     All; Carol M. Ostrom, Physician Survey: Suicide Aid Should Be Legal, SEATTLE TIMES,
     July 14, 1994, at Bl; Carol M. Ostrom, State ACLU Proposes Assisted-Suicide Law,
     SEATTLE TIMES, Nov. 16, 1994, at B3; Nancy L. Purcell, Op-Ed, Coming To Terms With
     How We Treat ‘The End Of Life’, SEATTLE TIMES, Dec. 5, 1996, at B5; Brian
     Willoughby, Suicide Debate Draws 80, COLUMBIAN (Vancouver, Wash.), Aug. 9,
     1994, at Al; State’s Medical Association Repeats Support For Reform, COLUMBIAN
     (Vancouver, Wash.), Sept. 26, 1994, at A5; Study: Terminally III Fear Loss of
     Independence, COLUMBIAN (Van couver, Wash.), Apr. 11, 1996, at A12.
20   Brief of Amicus Curiae of Surviving Family Members in Support of Physician-assisted
     Dying, Glucksberg, 521 US 702 (No. 96-110), 1996 WL 722032.
21   DVD: Ethics in America II: Three Farewells: Medicine & the End of Life (Fred Friendly
     Seminars 2007), available at http://www.learner.org/resources/series207.html; see
     also Frontline: Living Old (PBS television broadcast Nov. 21, 2006), available at
     http://www.pbs.org/wgbh/pages/frontline/livingold (depicting stories of elderly
     patients and then – families struggling to maintain dignity as they face age and
     disease).
22   Glucksberg, 521 US at 736-37 (O’Connor, J., concurring).
23   Id. at 737-38; see also id. at 791 (Breyer, J., concurring) (“[The challenged statutes]
     do not prohibit doctors from providing patients with drugs sufficient to control pain
272                        PHYSICIAN ASSISTED EUTHANASIA




      despite the risk that those drugs themselves will kill.”). Justices Ginsburg, Stevens,
      and Souter also suggested that they might support a right to pain medication. Justice
      Ginsburg supported O’Connor’s opinion without joining it. Id. at 789 (Ginsburg, J.,
      concurring) (“I concur in the Court’s judgments . . . substantially for the reasons
      stated by Justice O’Connor ….”). Justice Stevens’s statement that “there are situa-
      tions in which an interest in hastening death ... is entitled to constitutional protection”
      seems to contemplate aggressive treatment for pain. Id. at 741-42 (Stevens, J.,
      concurring). And Justice Souter indicated “lesser concern” about the difficulty of
      assessing a patient’s wishes “in cases involving limitations on life incidental to pain
      medication.” Id. at 784 n.16 (Souter, J., concurring).
          The practice of sedating patients with intractable pain into unconsciousness and
      withholding food and water until death inevitably ensues is known as terminal or
      palliative sedation and was endorsed as an acceptable option, indeed one seen as
      negating the need for assisted suicide, by the AMA and other amici in the Quill and
      Glucksberg cases. See, e.g., Brief of the American Medical Ass’n et. al., in Support of
      Petitioners at 6, Vacco v. Quill, 521 US 793 (1997) (No. 95-1858), 1996 WL
      656281. For some patients this may be an acceptable option; others (and their
      families) abhor the option of accepting an induced coma and a lingering demise
      while family members stand vigil for the week or ten days it takes for dehydration
      and starvation to bring about death.
24    Many commentators have observed that courts have recognized the constitutional
      right to adequate pain medication. E.g., Robert A. Burt, The Supreme Court Speaks:
      Not Assisted Suicide but a Constitutional Right to Palliative Care, 337 NEW ENG. J.
      MED. 1234 (1997); David Or-entlicher, The Supreme Court and Terminal Sedation:
      Rejecting Assisted Suicide, Embracing Euthanasia, 24 HASTINGS CONST. L.Q. 947,
      951-54 (1997); see also Rob McStay, Terminal Seda tion: Palliative Care for
      Intractable Pain, Post Glucksberg and Quill, 29 AM. J.L. & MED. 45, 52-53
      (2003).
25    E.g., Nat’l Ethics Comm., Veterans Health Admin., The Ethics of Palliative Sedation
      as a Therapy of Last Resort, 23 AM. J. HOSPICE & PALLIATIVE MED. 483, 484 (2007)
      (“There is broad professional agreement that palliative sedation is a clinically and
      ethically appropriate response when patients who are near death suffer severe,
      unremitting symptoms.”); Zev D. Schuman et al., Implementing Institutional Change:
      An Institutional Case Study of Palliative Sedation, 8 J. PALLIATIVE MED. 666 app. at 672
      (2005) (“In the United States, there is legal and professional support for
      palliative sedation. The United States Supreme Court (in Vacco v. Quill. . .)
      recognized the right of patients to receive palliative sedation if that is what is
      required to relieve then – suffering at the end of life.”) (citation omitted); see also
      Bernard Lo & Gordon Rubenfeld, Palliative Sedation in Dying Patients, 294 JAMA
      1810 (2005).
26    For an example of such an argument, see Susan M. Wolf, Pragmatism in the Face of
      Death: The Role of Facts in the Assisted Suicide Debate, 82 MINN. L. REV. 1063, 1100
      (1998).
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 273
                      to States to Address End-of-Life Choice



27   See Kathryn L. Tucker, The Chicken and the Egg: The Pursuit of Choice for a
     Human[e] Hastened-Death as a Catalyst for Improved End-of-Life Care; Improved
     End-of-Life Care as a Precondition for Legalization of Assisted Dying, 60 N.Y.U. ANN.
     SURV. AM. L. 355, 356 (2004).
28   Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995), vacated, 107 F.3d 1382 (9th Cir.
     1997).
29   David J. Garrow, The Oregon Trail, N.Y. TIMES, Nov. 6, 1997, at A31; Kim Murphy,
     Voters in Oregon Soundly Endorse Assisted Suicide, L.A. TIMES, Nov. 5, 1997, at A1.
30   Timothy Egan, Threat from Washington has Chilling Effect on Oregon Law Allowing
     Assisted Suicide, N.Y. TIMES, Nov. 19, 1997, at A18.
31   Statement of Attorney General Reno on Oregon’s Death with Dignity Act, 98 Op.
     Att’y Gen. 259 (1998) (“The Department has conducted a thorough and careful
     review of the issue .... We have concluded that adverse action against a physician
     who has assisted in a suicide in full compliance with the Oregon Act would not be
     authorized by the CSA.”).
32   Id.
33   Pain Relief Promotion Act of 1999, H.R. 2260, 106th Cong. (1999); Lethal Drug
     Abuse Prevention Act of 1998, H.R. 4006, 105th Cong. (1998).
34   See Marcia Angell, Editorial, Caring for the Dying Congressional Mischief, 341 NEW
     ENG. J. MED. 1923, 1923 (1999) (“If the bill becomes law, it will almost certainly
     discourage doctors from prescribing or administering adequate doses of drugs to
     relieve the symptoms of dying patients.”); David Orentlicher & Arthur Caplan, The
     Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care, 283 JAMA
     255, 255 (2000) (“[Progress in [the area of improved pain care] may be dealt a
     severe setback should Congress decide to enact the [PRPA] of 1999 .... [T] he most
     likely effect of PRPA would be to discourage physicians nationwide from adequately
     treating the suffering of then- dying patients.”).
35   Dispensing of Controlled Substances to Commit Suicide, Att’y Gen. Order No.
     2534-2001, 66 Fed. Reg. 56,607 (Nov. 9, 2001).
36   Id. at 56, 608.
37   Id. (omission in original) (citation omitted).
38   Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1092 (D. Or. 2002), aff’d, 368 F.3d
     1118 (9th Cir. 2004), aff’d sub nom. Gonzalez v. Oregon, 546 US 243 (2006).
39   Ashcroft, 368 F.3d 1118, aff’d sub nom. Gonzalez, 546 US 243.
40   Gonzales, 546 US 243; see Kathryn L. Tucker, US Supreme Court Ruling Preserves
     Oregon’s Landmark Death with Dignity Law, 2 NAT’L ASS’N ELDER L. ATT’YS J. 291
     (2006).
274                        PHYSICIAN ASSISTED EUTHANASIA




41    See OR. REV. STAT. § 127.805 (2005).
42    Id. § 127.815.
43    Id. § 127.800(12).
44    Id. § 127.800(7).
45    Id. §§ 127.800(4), .800(8), .820.
46    Id. §§ 127.840-850. The Dignity Act requires a fifteen day waiting period between
      the patient’s initial oral request and the writing of the prescription, and a forty-eight
      hour waiting period between the patient’s written request and the writing of the
      prescription. Id. § 127.850.
47    Id. § 127.885 (1)-(2).

48    Id. § 127.865.

49    Or. Dep’t of Human Servs., Death with Dignity Act Annual Reports, ttp://oregon.gov/
      dhs/ph/pas/ar-index.shtml (last visited Jan. 19, 2008) [hereinafter Annual Reports].

50    E.g., Margaret P. Battin et al., Legal Physician-Assisted Dying in Oregon and the
      Nether lands: Evidence Concerning the Impact on Patients in “Vulnerable” Groups,
      33 J. MED. ETHICS 591 (2007); Andrew I. Batavia, So Far So Good: Observations on
      the First Year of Oregon’s Death With Dignity Act, 6 PSYCHOL. PUB. POL’Y & L. 291
      (2000); Arthur E. Chin et al., Legalized Physician-Assisted Suicide in Oregon – The
      First Year’s Experience, 340 NEW ENG. J. MED. 577 (1999); David Orentlicher, The
      Implementation of Oregon’s Death With Dignity Act: Reassuring, But More Data
      Are Needed, 6 PSYCHOL. PUB. POL’Y & L. 489 (2000) (stating that implementation of
      Oregon law has so far been limited to terminally ill patients with a clear, persistent,
      and voluntary request for hastened death); Amy D. Sullivan et al., Legalized
      Physician-Assisted Suicide in Oregon – The Second Year, 342 NEW ENG. J. MED. 598
      (2000); see also Straton, supra note 6; Timothy E. Quill & Christine K. Cassel,
      Professional Organizations’ Position Statements on Physician-Assisted Suicide:
      A Case for Studied Neutrality, 138 ANNALS INTERNAL MED. 208 (2003).

51    Battin et. al., supra note 50; see also, Quill & Cassel, supra note 50 (urging that
      medical associations adopt a position of neutrality on assisted dying laws); Linda
      Ganzini et. al., Oregon Physicians’ Attitudes About and Experiences With End-of-Life
      Care Since Passage of the Oregon Death with Dignity Act, 285 JAMA 2363 (2001)
      (reviewing Oregon’s experience with its Death With Dignity Act and concluding no
      harm occurred to vulnerable populations); Melinda A. Lee & Susan W. Tolle,
      Oregon’s Assisted Suicide Vote: The Silver Lining, 124 ANNALS INTERNAL MED.267
      (1996); Straton, supra note 6.

52    Battin et. al., supra note 50, at 591. The American Medical Student Association took
      note of the Battin study and findings in reaching its own policy to support aid in
      dying . AMSA Principles, supra note 6 (“WHEREAS the Oregon data showed ‘no
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 275
                      to States to Address End-of-Life Choice



     evidence of heightened risk for the elderly, women, the uninsured .. . people with low
     educational status, the poor, the physically disabled or chronically ill, minors, people
     with psychiatric illnesses including depression, or racial or ethnic minorities ....’”
     (quoting Battin, supra)).

53   See Daniel E. Lee, Physician-Assisted Suicide: A Conservative Critique of Intervention,
     HASTINGS CENTER REP., Jan.-Feb. 2003, at 17.

54   E.g., CTR. FOR DISEASE PREVENTION & EPIDEMIOLOGY, OR. HEALTH Div., DEP’T OF
     HUMAN RES., OREGON’S DEATH WITH DIGNITY ACT: THE FIRST YEAR’S EXPERIENCE 7 (1999),
     available at http://oregon.gov/dhs/ph/pas/docs/yearl.pdf (“Patients who chose
     physician-assisted suicide were not disproportionately poor (as measured by
     Medicaid status), less educated, lacking in insurance coverage, or lacking in access
     to hospice care.”); see also Battin et al., supra note 50; Kant Patel, Euthanasia and
     Physician-Assisted Suicide Policy in the Netherlands and Oregon: A Comparative
     Analysis, 19 J. HEALTH & Soc. POL’Y 37 (2004) (finding no empirical evidence of a
     slippery slope in Oregon, but more potential for a slide in the Netherlands).
55   OFFICE OF DISEASE PREVENTION & EPIDEMIOLOGY, OR. DEP’T OF HUMAN SERVS.,
     EIGHTH ANNUAL REPORT ON OREGON’S DEATH WITH DIGNITY ACT 12 (2006), available at
     http://oregon.gov/dhs/ph/pas/docs/year8.pdf [hereinafter EIGHTH ANNUAL REPORT].
56   Id. at 23.
57   OR. PUB. HEALTH Div., OR. DEP’T OF HUM. SERVS., DEATH WITH DIGNITY ANNUAL
     REPORTS: YEAR 9 – 2006 SUMMARY (2007), http://oregon.gov/dhs/ph/pas/docs/year9.pdf
     [hereinafter NINTH ANNUAL REPORT]. Some commentators have observed that legal
     medical interventions that will bring about death, such as removal of feeding tubes,
     are reluctantly taken, and have reasoned from this that if aid in dying were legal it
     would also be rare. See David Orentlicher & Christopher M. Callahan, Feeding
     Tubes, Slippery Slopes, and Physician-Assisted Suicide, 25 J. LEGAL MED. 389 (2004).
     The Oregon data supports this contention.
58   EIGHTH ANNUAL REPORT, supra note 55, at 4-5.
59   Linda Ganzini et. al., Physicians’ Experiences with the Oregon Death with Dignity
     Act, 342 NEW ENG. J. MED. 557, 557 (2000) (finding that the availability of palliative
     care led some, but not all, patients to change then- mind about hastened death).
60   See Annual Reports, supra note 49; NINTH ANNUAL REPORT, supra note 57 (showing
     number of prescription recipients each year compared to number of deaths from use
     of prescriptions).
61   VT. LEGISLATIVE COUNCIL, OREGON’S DEATH WITH DIGNITY LAW AND EUTHANASIA IN
     THE NETHERLANDS: FACTUAL DISPUTES § 3E (2004), available at http://www.leg.state.vt.us/
     reports/05Death/Death_With_Dignity _Report.htm.
62   William McCall, Assisted-suicide cases down in ‘04, COLUMBIAN (Vancouver, Wash.),
     Mar. 11, 2005, at C2 (quoting Arthur Caplan, director of the Center for Bioethics at
     the University of Pennsylvania School of Medicine); see also Straton, supra note 6, at
276                         PHYSICIAN ASSISTED EUTHANASIA




      480-82.
63    US GEN. ACCOUNTING OFFICE, REPORT TO THE HONORABLE RON WYDEN, US SENATE, END-
                   (2007). According to the report:
      OF-LIFE CARE 17

            Representatives of a hospice-based palliative care provider in Oregon stated
            that the physicians they work with are more comfortable discussing end-of-
            life issues with their patients since the 1997 enactment in Oregon of the
            Death with Dignity Act, which focused attention in the state on end-of-life
            care and the options available to individuals. Representatives of a palliative
            care program operated by a health care system we interviewed stated that
            passage of this act helped create an environment in Oregon where end-of-
            life issues are discussed more openly.

      Id.

64    See Ganzini et. al., supra note 51; see also Lee & Tolle, supra note 51, 268-69;
      Lawrence J. Schneiderman, Physician-Assisted Dying 293 JAMA 501, 501 (2005);
      Quill & Cassel, supra note 50, at 209. Schneiderman notes that

            one of the unexpected yet undeniable consequences of Oregon’s Death with
            Dignity Act permitting physician aid-in-dying is that “many important and
            measurable improvements in end-of-life care” occurred following the Act’s
            implementation. Rather than becoming the brutal abattoir for hapless
            patients that some critics predicted, the state is a leader in providing excellent
            and compassionate palliative care.

      Schneiderman, supra, at 501 (reviewing and quoting PHYSICIAN-ASSISTED DYING: THE
      CASE FOR PALLIATIVE CARE AND PATIENT CHOICE (Timothy E. Quill & Margaret P. Battin
      eds., 2004)).

65    Ganzini et. al., supra note 51, at 2363.

66    Elizabeth R. Goy et al., Oregon Hospice Nurses and Social Workers’Assessment of
      Physician Progress in Palliative Care Over the Past 5 Years, 1 PALLIATIVE & SUPPORTIVE
      CARE 215 (2004).

67    Kathy L. Cerminara & Alina Perez, Therapeutic Death: A Look at Oregon’s Law, 6
      PSYCHOL. PUB. POL’Y & L. 503, 512-13 (2000) (acknowledging possible negative
      effects of legalized aid in dying, but concluding that the data from Oregon in one
      year justifies an optimistic view); see also Linda Ganzini et. al., Experiences of
      Oregon Nurses and Social Workers with Hospice Patients who Requested Assistance
      with Suicide, 347 NEW ENG. J. MED. 582 (2002) (reporting that nurses and social
      workers rated desire to control circumstances of death as the most important reason
      for requesting aid in dying); Linda Ganzini et. al., Oregon Physicians’ Perceptions of
      Patients Who Request Assisted Suicide and Their Families, 6 J. PALLIATIVE MED. 381
      (2003) (finding physicians receiving requests for lethal medication perceive patients
      as wanting to control then- deaths).
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 277
                      to States to Address End-of-Life Choice



68   See, e.g., Washington v. Glucksberg, 521 US 702, 732 (1997) (“We have
     recognized .. . the real risk of subtle coercion and undue influence in end-of-life
     situations.”).
69   See Tucker, supra note 27. Other reasons that put to rest the fear that passage of
     aid-in-dying laws will put patients at risk have been offered. For example, one
     commentator studied the reluctance of patients and providers to withdraw feeding
     tubes, an option legal in every state. See Orentlicher & Callahan, supra note 57, at
     390. He concluded that the data show that feeding tubes are overutilized and argues
     that this demonstrates reluctance to take steps that will precipitate death
     and that such reluctance will apply in the context of aid in dying. Id.
70   See, e.g., AMSA Principles, supra note 6 (“The American Medical Student
     Association!] supports passage of aid in dying laws that empower mentally
     competent, terminally ill patients to hasten what might otherwise be a protracted,
     undignified, or extremely painful death.”); Jay Cohen, CAPG Supports AB 374: The
     Compassionate Choices Act, CAPG UPDATE (Cal. Ass’n of Physician Groups, L.A.,
     Cal.), Mar. 2007, at 9, available at http://www.capg.org/docs/capg_update—
     march_2007.pdf (supporting passage of an Oregon-type aid-in-dying law in
     California); Position Statement, Am. Med. Women’s Ass’n, supra note 6 (“AMWA
     supports the passage of aid-in-dying laws which empower mentally competent,
     terminally ill patients and protect participating physicians, such as ... the Oregon
     Death with Dignity Act.”).
71   News Release, Pew Research Ctr. for the People & the Press, More Americans
     Discussing – and Planning – End-of-Life Treatment: Strong Public Support for Right to
     Die, at 8 (Jan. 5, 2006), available at http://people-press.org/reports/pdf/266.pdf.
72   Humphrey Taylor, 2-to-1 Majorities Continue to Support Rights to Both Euthanasia
     and Doctor-Assisted Suicide, HARRIS POLL, Jan. 9, 2002, http://www.harrisinteractive.com/
     harris_poll/index.asp?PID=278.
73   Andrew I. Batavia, The Relevance of Data on Physicians and Disability on the Right to
     Assisted Suicide: Can Empirical Studies Resolve the Issue?, 6 PSYCHOL. PUB. POL’Y & L.
     546, 553 (2000) (citing William Breitbart et al., Interest in Physician-Assisted Suicide
     Among Ambulatory HIV-Infected Patients, 153 AM. J. PSYCHIATRY 238, 240 (1996),
     and Brett Tindall et. al., Letter to the Editor, Attitudes to Euthanasia and Assisted
     Suicide in a Group of Homosexual Men with Advanced HIV Disease, 6 J. ACQUIRED
     IMMUNE DEFICIENCY SYNDROME 1069, 1069 (1993)).
74   Mark DiCamillo & Mervin Field, Continued Support for Doctor-Assisted Suicide. Most
     Would Want Their Physician to Assist Them If They Were Incurably III and Wanted To
     Die, FIELD POLL (Field Research Corp., S.F., Cal.), Mar 15, 2006, at 1, 2, available at
     http://www.field.com/fieldpollonline/subscribers/RLS2188.pdf.
75   Jewish Theological Seminary, Physician-assisted Suicide Survey, http://www.jtsa.edu/
     x5533.xml (last visited Jan. 19, 2008).
76   Ganzini et. al., supra note 51, at 2365 tbl.2.
278                        PHYSICIAN ASSISTED EUTHANASIA




77    Simon N. Whitney et al., Views of United States Physicians and Members of the
      American Medical Association House of Delegates on Physician-assisted Suicide, 16
      J. GEN. INTERNAL MED. 290, 292-93 (2001). An additional nationwide survey,
      published in the New England Journal of Medicine in 1998, focused on doctors who
      practiced in one of the ten medical specialties identified as likely to encounter dying
      patients (e.g., cardiology, geriatrics, neurology). Of the responding physicians, 36%
      said that, if it were legal to do so, they would be willing to hasten death by
      medication, and 24% stated that they would be willing to do so by injection. Diane
      E. Meier et. al., A National Survey of Physician-Assisted Suicide and Euthanasia in the
      United States, 338 NEW ENG. J. MED. 1193, 1199 tbl.6 (1998).
78    See supra note 70.
79    See, e.g., Position Statement, Am. Acad. of Hospice & Palliative Med., supra note 6.
80    California Compassionate Choices Act, Assemb. 374, 2007-08 Leg., Reg. Sess.
      (Cal. 2007).
81    Memorandum from Judy Waxman, Vice President of Health, Nat’l Women’s Law
      Ctr., to Members of the Cal. State Assembly (May 15, 2007) (footnotes omitted) (on
      file with author). A footnote in the memorandum’s text refers readers wishing to
      obtain more information on the Center’s Religious Restrictions Project to
      http://www.nwlc.org/details.cfm?id=252&section=health.
82    That this advocacy community has turned its attention to end-of-life issues was made
      abundantly clear in the sensationalized case involving Tern Schiavo, where so-called
      right to life groups sought to prevent the patient’s wishes from being implemented
      and to force continued tube feeding on a woman who had permanently lost all
      cognitive function and was in a permanent vegetative state. For extended discussion
      of who these groups were and how they are funded, see JON B.
      EISENBERG, USING TERRI: THE RELIGIOUS RIGHT’S CONSPIRACY TO TAKE AWAY OUR RIGHTS
      (2005), and RELIGIOUS COAL. FOR REPROD. CHOICE, THE MEDICAL RIGHT: REMAKING
      MEDICINE IN THEIR IMAGE (2007), available at http://www.rcrc.org/pdf/MedicalRight_
      fullreport.pdf (examining the concerted effort of the religious right to inject religious
      values into the practice of medicine).
83    In California, Catholic bishops and their political arm have been at the forefront of
      opposition to AB 374. Cardinal Roger Mahony led the attack, charging those who
      support the bill with participating in a “culture of death.” See Jim Sanders, Cardinal
      scolds Nunez on death aid, SACRA MENTO BEE, Apr. 3, 2007, at A1.
84    See, e.g., Battin et. al., supra note 50, at 594-95; Alicia Ouellette, Disability and the
      End of Life, 85 OR. L. REV. 123 (2006); see also Lois Shepherd, Terri Schiavo:
      Unsettling The Settled, 37 LOY. U. Cm. L.J. 297, 320-26 (2006); Kathiyn L. Tucker
      et. al., The Sky is Not Falling: Disabil ity and Aid-in-Dying, in END OF LIFE ISSUES AND
      PERSONS WITH DISABILITIES (Timothy H. Lillie & James L. Werth eds., 2007).
85    A recent study reports that 18-24% of primary care physicians and 46-57% of
      In the Laboratory of the States: The Progress of Glucksberg’s Invitation 279
                      to States to Address End-of-Life Choice



     oncologists have been asked for aid in dying. Elizabeth M. Arnold et al.,
     Consideration of Hastening Death Among Hospice Patients and Their Families, 27 J.
     PAIN SYMPTOM MGMT. 523 (2004). When patients must go underground for medical
     care, the risk of encountering a provider who does not practice competent, ethical
     medicine is greatly increased. The most well known “back alley” provider for patients
     seeking control over then- own death may be Jack Kevorkian, the Michigan
     pathologist who assisted patients with chronic and terminal conditions to end their
     lives, often in the back of an old Volkswagen van. Kevorkian was ultimately
     convicted of homicide in the death of Thomas Youk. After serving part of his prison
     sentence, Kevorkian was granted parole and released on June 1, 2007. See Monica
     Davey, Kevorkian Freed After Years in Prison for Aiding Suicide, N.Y. TIMES,
     June 2, 2007, at A8.
86   See Helene Starks et. al., Family Member Involvement in Hastened Death, 31 DEATH
     STUD. 105 (2007).
87   Id. at 112-17.
88   Cf. Douglas R. Miller, The Alley Behind First Street, Northeast: Criminal Abortion in
     the Nation’s Capital, 1872-1973, 11 WM. & MARY J. WOMEN & L. 1 (2004) (detailing
     history of criminal abortion in Washington, D.C., before Roe v. Wade).
89   California Compassionate Choices Act, Assemb. 374, 2007-08 Leg., Reg. Sess.
     (Cal. 2007).
90   Id. § 7196 (g).
91   OR. REV. STAT. §§ 127.800(12), 127.805 (2005).
92   California Compassionate Choices Act § 7197.7.
93   See supra notes 74, 80 and accompanying text.
94   Legislative Counsel of California, AB 374 Assembly Bill—History, http://www.leginfo.
     ca.gov/pub/07-08/bilVasm/ab_0351-0400/ab_374_bill_20080204_histoiy.html
     (last visited Mar; 16, 2008).
                                               11
          Can Legalization Improve
       End-of-Life Care? An Empirical
         Analysis of the Results of the
       Legalization of Euthanasia and
       Physician-Assisted Suicide in the
          Netherlands and Oregon
                                          Jackson Pickett*

        This articles reviews empirical studies of the results of
        legalization of euthanasia and assisted suicide in the
        Netherlands and Oregon. It points that after reviewing
        thousands of cases the legal system fails to detect criminal
        activity. The evidence shows legalization and reporting shape
        physician behavior. The analysis is limited by classification bias,
        where a physician can call a death treatment of symptoms or
        euthanasia, and by small numbers. Because of the limitations of
        the legal system and empirical studies, the author argues that
        the main purpose of legalization of euthanasia and assisted
        suicide should be to assure optimal end-of-life care.

*   MD at Charleston, South Carolina, USA. E-mail: [jbpicket@Central.UH.EDU

© 2009 The Board of Trustees of the University of Illinois. Reproduced by permission of the publisher from 16
The Elder Law Journal 333 (2009).
Source: http://works.bepress.com
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      281
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

I. Introduction
Imagine you are dying of cancer that has spread throughout your body. 1 After
multiple medical opinions, you are convinced death is near. 2 You ask your
physician to end your suffering. 3 If your physician intends to end your life by
relieving your pain with morphine, she can be charged with murder. 4 If she
intends only to end your pain with morphine, her action will be ignored by the
law. 5 As a practical matter, by using intent to separate murder from routine
medical care, the law has complicated and added uncertainty to medical end-of-
life decision-making. 6

    This hypothetical end-of-life medical decision described is very common.
About 2.4 million people die each year in the United States. 7 Although many
deaths reflect a sudden process, such as an accident, 8 it is common for diseases
to progress to a point where further medical treatment becomes futile. 9 When
this happens, death can become predictable and painful; in this situation some
patients demand that physicians end their suffering. 10

    There are several ways physicians end a patient’s suffering. 11 Physicians can
treat a patient’s symptoms with medications that will end the patient’s suffering
and also her life. 12 For example, morphine can relieve a dying patient’s pain but
can also stop breathing; this form of killing is acceptable in many countries 13
and will be called “treatment of symptoms” in this Article. 14 Also, it is legal for a
physician to end medical treatment of a dying patient even if this kills the
patient. 15 In this Article, this will be called “ending of treatment.” Additionally, it
is legal to sedate dying patients using measures that hasten their deaths; in this
Article, this will be called “terminal sedation.” 16 In practice, the most common
ways for physicians to end their patients’ lives are those accepted in their
jurisdiction. 17

    With rare exceptions, it is illegal for a physician to intentionally give a dying
patient a medication to end the patient’s life. 18 This ban includes euthanasia,
where a physician intentionally kills a dying patient, at the patient’s request, by
giving a lethal medication. 19 Assisted suicide occurs when the physician
intentionally gives a dying patient a lethal medication, which the patient takes
herself. 20 Both voluntary euthanasia and assisted suicide require that the patient
282                     PHYSICIAN ASSISTED EUTHANASIA



be able to make a reasoned decision, or be competent, and request the lethal
medication from the physician. 21 Dividing the legal from the illegal, or the legal
classification, depends on the intent of the physician and consent of the patient.

   This legal classification breaks down in practice. 22 Physician intent may be
hard to discern as the same medication can be used in treatment of symptoms
and in euthanasia; both will end in the death of the patient. 23 Discerning intent is
“mission impossible.” 24 Consent of the patient is not required when a physician
determines that medical treatment is futile and ends medical treatment without
consent of the patient. 25 Conversely, depressed or incompetent patients may
consent inappropriately to euthanasia or physician-assisted suicide. 26 A legal
classification based on physician intent and patient consent fails to cleanly
separate murder from medical care. 27

   Although it is logical to classify euthanasia as murder, most physicians who
perform euthanasia are not punished. 28 This logical inconsistency of the law will
be tested as medical technology makes it possible to extend life beyond the
desires of many dying patients. 29 The meaningless extension of the dying process
by medical technology will be aggravated by the aging of the world
population. 30 Millions of dying patients will push for legalization so they can
control how their lives end. 31

   Fortunately for legalization efforts, there is an impressive series of reports
from the Netherlands and Oregon summarizing the results of legalization of
assisted suicide and euthanasia. 32 An analysis of these reports shows that
reporting and legalization shape physician behavior. In the Netherlands,
physicians are nineteen times more likely to end dying patients’ lives using
procedures for which reporting is not required. 33 Conversely, reporting in
Oregon channels patients who request assisted suicide into hospice care and
promotes treatment of pain. 34

   This Article will first review the common law and statutes of the Netherlands
and Oregon. Next, it will analyze the empirical data from the Netherlands and
Oregon. Third, it will make observations based on the empirical data, point out
limitations of these empirical studies, and make recommendations based on
these empirical studies. In the conclusion, it will argue that a valid goal of
legalization is optimal end-of-life care.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      283
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

II. Assisted Death Law in the Netherlands
A. Common Law

1. Justification of Necessity

According to the Dutch Penal Code, euthanasia and assisted suicide are
crimes. 35 But Dutch courts usually do not punish a physician who ends the
suffering of a dying patient. 36 Punishment is avoided by finding that euthanasia
or assisted suicide was justified because the physician was forced to choose
between her duty to end her patient’s suffering and her duty to preserve life. 37
This justification, or defense, of necessity was accepted by the Dutch Supreme
Court in the Schoon-heim case. 38

   The Schoonheim case involved a general physician whose ninety-three-year-
old female patient requested that he end her life. 39 She made her first request
in 1981 because she was bedridden from a hip fracture; this request was
rejected. 40 By 1982, she was unable to eat or drink and again requested that the
doctor end her life. 41 Her physician found she “was in full possession of her
faculties.” 42 Both her son and the physician-assistant agreed that euthanasia was
appropriate. 43 The physician reported her death to the police. 44

   The Dutch Supreme Court held that the physician violated Article 293 of the
Dutch Penal Code by taking his patient’s life, but accepted the justification of
necessity provided by Article 40 of the Dutch Penal Code, 45 which encompasses
the defenses of duress and necessity. 46 The court accepted the justification of
necessity because the physician was forced to choose between conflicting duties:
the duty to end suffering versus the duty to preserve life. 47 The Schoonheim case
left unresolved when the justification of necessity would be successful. 48

   Reported in the same year, the Admiraal case defined the requirements for
using the defense of necessity. 49 In Admiraal, the court used the “requirement of
careful practice” to acquit an anesthesiologist who performed euthanasia. 50 The
“requirements of careful practice” defined by the Dutch Medical Association
included: “(1). [t]he request for euthanasia must be voluntary; (2). [t]he request
284                    PHYSICIAN ASSISTED EUTHANASIA



must be well-considered; (3). [t]he patient’s desire to die must be a lasting one;
(4). [t]he patient must experience his suffering as unacceptable for him ...; [and]
(5). [t]he doctor concerned must consult a colleague.” 51 After Admiraal, the
Minister of Justice informed the Dutch Medical Association that physicians who
met the “requirements of careful practice” would not be prosecuted. 52

2. Psychiatric Patients
The next question facing the Dutch Supreme Court was whether euthanasia
should be limited to patients with a somatic illness. 53 The Chabot case involved a
fifty-year-old despondent woman who requested that her psychiatrist end her life
after both of her sons and her father died and she divorced a violent husband. 54
She had previously attempted suicide and was concerned that a second suicide
attempt would result in commitment to a mental institution. 55 Her psychiatrist
consulted four other psychiatrists, a general physician, and a professor of ethics,
as well as family members. 56 The medical consultants reviewed the patient’s
medical records, but did not examine her. 57 All agreed that her diagnosis was an
adjustment disorder; there was no evidence of a somatic disease. 58 The patient
refused any medical treatment other than euthanasia. 59 The psychiatrist reported
her euthanasia to the coroner. 60

   The Dutch Supreme Court found that the defense of necessity did not require
a somatic illness or that the patient be in the terminal phase of an illness, but
did, however, require exceptional care by the physician when his patient was not
dying of a somatic illness. 61 Exceptional care usually requires the judgment of
another qualified physician based on his examination of the patient. 62 Because
an independent physician did not examine the patient, the defense of necessity
was rejected and the psychiatrist was found guilty. 63 He was not punished, but a
Medical Disciplinary Tribunal later reprimanded the psychiatrist. 64 By finding that
euthanasia is appropriate for suffering in the absence of a terminal somatic
disease, the Dutch Supreme Court expanded the range of suffering for which
patients and physicians could consider euthanasia. 65

3. Infants
A Dutch Court of Appeals accepted the justification of necessity and did not
punish the euthanasia of an infant in the Kadijk case. 66 The case involved a baby
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      285
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
girl who was born with congenital defects due to trisomy 13. 67 Trisomy 13, or
Patau syndrome, is characterized by small eyes, cleft lip, and an abnormal
number of fingers or toes. 68 In addition to periodically needing mechanical
ventilation and having limited kidney function, 69 the infant developed a skull
defect through which the brain linings protruded and became infected. 70 When
moved, the infant appeared to be in pain 71 and was only expected to live for, at
most, a few months. 72 As a result, further medical treatment or surgical treatment
was rejected, as it would only prolong the dying process. 73 The parents requested
that the physician end the infant’s life. 74 The infant was examined by another
physician, and the attending physician consulted over the phone with a
pediatrician. 75 The three physicians agreed euthanasia was appropriate and
agreed on the means to use; the infant died in her mother’s arms. 76 The
physician reported the euthanasia of the infant. 77

   The Minister of Justice required the courts to review the physician’s ending of
the infant’s life. 78 The Court of Appeals reviewed the case and, based on expert
testimony, accepted the diagnosis of trisomy 13 and the brief life that diagnosis
implied. 79 Further, the court accepted the unanimous opinion of the experts that
the parents’ request for the infant to die at home without further medical or
surgical treatment was reasonable and should have been honored. 80
Nonetheless, the court found that the physician’s decision to end the infant’s life
was murder. 81 The court held, however, that the infant’s murder was justified
because:

   there was no doubt about the diagnosis and the prognosis based on it,
   and the parents as well as the defendant were familiar with these; there
   was no doubt at all as to the well-considered consent of the parents to the
   termination of life; the defendant secured the advice of an independent,
   experienced    doctor   (GP)       and   consulted   one   of   the   responsible
   pediatricians; the defendant brought about the baby’s death in a
   conscientious and careful manner...; and he had carefully given account
   of his conduct in the matter. 82

   Thus, the court of appeals did not punish the euthanasia of an infant who
could not consent. 83
286                    PHYSICIAN ASSISTED EUTHANASIA



4. Lack of Consent
The Dutch Supreme Court decided not to punish a physician who ended the life
of a dying patient without her consent in the Van Oijen case. 84 A dying eighty-
four-year-old woman became unconscious, but suffered with necrosis of her
heels and hip. 85 Her physician gave her pain medication and a sedative to ease
her suffering. 86 Nonetheless, her suffering persisted and the physician consulted
with her daughters. 87 The daughters thought her suffering should end because
“you wouldn’t do that to a dog.” 88 The physician ended the patient’s life by
giving her a drug that paralyzed her muscles. 89 In this case, the court rejected the
defense of necessity because the patient’s suffering was not unbearable (she was
unconscious), the doctor failed to consult other physicians, and the doctor used a
drug that did not treat the patient’s symptoms. 90 Although the Dutch Supreme
Court found the physician guilty of murder, that court did not punish him. 91
Despite the facts in this case, the Dutch Supreme Court accepted that ending a
dying patient’s life without her consent could be excused by the defense of
necessity. 92

5. Normal Medical Practice
For Dutch courts, normal medical practice includes ending a patient’s life by
treatment of symptoms or ending of treatment. 93 Treatment of symptoms often
involves the use of pain or sedative medications; both can hasten a patient’s
death. 94 Physicians who end their patients’ lives by treatment of symptoms or
ending of treatment may report their patients’ deaths as natural. 95 The report of
a natural death will not trigger further investigation by the prosecutor. 96 Avoiding
a possible investigation by the prosecutor may encourage some physicians to
classify more deaths as natural, thus masking a number of assisted deaths. 97

B. Legalization of Euthanasia
In 2002, the Dutch parliament legalized euthanasia and physician-assisted
suicide by modifying the Dutch Criminal Code. 98 The Termination of Life on
Request and Assisted Suicide Act allows euthanasia if a physician follows the
requirements of due care. 99 Due care requires that the physician:
   a. holds the conviction that the request by the patient is voluntary and
      well-considered;
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      287
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
   b. holds the conviction that the patient’s suffering is lasting and
      unbearable;

   c. has informed the patient about the situation he is in and about his
      prospects;

   d. along with the patient, holds the conviction that there is no other
      reasonable solution for the situation he is in;

   e. has consulted at least one other independent physician who has seen
      the patient and has given his written opinion on the requirements of
      due care. 100

   The Act also permits euthanasia of children as young as twelve with their
parent’s consent. 101
    The Act also modified the reporting requirements to include review of
unnatural deaths by a regional review committee in addition to review by the
public prosecutor. 102 A favorable report by the regional review committee ends
the review process; this reduces the power of the prosecutor. 103 Additionally, the
regional review committee provides an annual report giving summary
information for all deaths, 104 which allows for an evaluation of Dutch assisted
suicide and euthanasia in practice. 105

III. Assisted Suicide Law in Oregon
A. Genesis of the Oregon Death with Dignity Act
Unlike in the Netherlands, where euthanasia law evolved over decades, 106 Ballot
Measure 16, or the Oregon Death with Dignity Act, was passed by 51% to 49%
in a referendum vote in 1994. 107 Given the “storm of protest” over the close
vote, supporters expected a legal challenge. 108 The first challenge to the Act, Lee
v. Oregon, yielded an injunction stopping assisted suicide, 109 but on review, the
appellate court found no “actual injury, as required for standing” and vacated
the trial court decision. 110

   At about the same time, the US Supreme Court encouraged challenges to the
Oregon statute by holding that New York and Washington could ban assisted
suicide. 111 In a direct attack on the Act, the US Attorney General asserted that
controlled substances must be used only for a “legitimate medical purpose” 112
288                     PHYSICIAN ASSISTED EUTHANASIA



and argued that assisted suicide was not a legitimate medical purpose. 113 The
Supreme Court struck down this frontal assault by holding that the Controlled
Substance Act could not be used by “the Attorney General to prohibit doctors
from prescribing regulated drugs for use in physician-assisted suicide under state
law permitting the procedure.” 114 Having survived several court challenges, the
Act was put to a second referendum vote and passed 60% to 40% in 1997. 115

B. Requirements of the Oregon Death with Dignity Act

The Oregon Death with Dignity Act is limited to adults over age eighteen 116 who
can make and communicate three separate requests, 117 survive two waiting
periods, 118 and who have an illness that will cause the patient’s death in six
months or less. 119 The two waiting periods include a period of at least fifteen
days that must pass between the first request and the writing of the prescription
and a two-day period between the written request and writing of the
prescription. 120 A consulting physician must evaluate the patient. 121 Also, the
patient must be evaluated to exclude disorders, such as depression, that impair
judgment. 122 Because aiding another in suicide is manslaughter in Oregon, 123
the Act gives complying physicians immunity from criminal and civil liability, as
well as from professional disciplinary action. 124 Finally, the Act requires
physicians to file copies of prescriptions with the Department of Health Services,
which then publishes annual statistical reports. 125

IV. Analysis – Netherlands
A. End-of-Life Practice is Unchanged by Legalization

Paradoxically, the annual rate of euthanasia was reduced significantly by
legalization. 126 The Dutch have published surveys of physician-assisted death
before and after the legalization of euthanasia in 2002. 127 The surveys included
estimates of the frequency of euthanasia, physician-assisted suicide, physician-
assisted death without the patient’s explicit consent (the “no consent” group),
treatment of symptoms, and ending of treatment. 128 The results of these surveys
are shown in table 1 and figures 1 and 2.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      289
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

  Table 1: Percentage of All Dutch Deaths Due to Euthanasia, Physician-assisted
 Suicide, and Physician Induced Death without Consent (No Consent), as well as
 Deaths Hastened by Treatment of Symptoms, Due to Ending of Treatment, and
 Terminal Sedation in 1990, 1995,2001, and 2005, Based on Death Certificates 129
Decision                            1990          1995         2001          2005
Euthanasia
Percentage of deaths                 1.7%          2.4%         2.6%          1.7%
Confidence interval               1.4-2.1       2.1-2.6      2.3-2.8        1.5-1.8
Physician-Assisted Suicide
Percentage of deaths                 0.2%          0.2%         0.2%          0.1%
Confidence interval               0.1-0.3       0.1-0.3      0.1-0.3        0.1-0.1
No Consent
Percentage of deaths                 0.8%          0.7%         0.7%          0.4%
Confidence interval               0.6-1.1       0.5-0.9      0.5-0.9        0.2-0.6
Treatment of Symptoms
Percentage of deaths               18.8%      19.1% 18-    20.1% 19-         24.7%
Confidence interval                18-20             20           21       23.5-26
Ending of Treatment
Percentage of deaths               17.9%          20.2%    20.2% 19-         15.6%
Confidence interval                17-19          19-21           21         15-16
Terminal Sedation
Percentage of deaths                                                          8.2%
Confidence interval                                                         7.8-8.6

    The most common end-of-life practices are treatment of symptoms, ending of
treatment, and terminal sedation (not shown in the figures). 130 Next in frequency
is euthanasia, and the least common are physician-assisted suicide and ending a
patient’s life without consent (the “no consent” group). The “no consent” group
declined in frequency between 1990 and 2005 from 0.8% to 0.4% but otherwise
was relatively constant. The general pattern is that hastening a patient’s death by
treatment of symptoms or ending of treatment is much more common than
euthanasia or physician-assisted suicide, as is evident in table 1.
290                    PHYSICIAN ASSISTED EUTHANASIA



    Euthanasia significantly declined in frequency from 2001 to 2005; physician-
assisted suicide shows a similar trend. 131 This decline shows that the effect of
changing the Dutch Criminal Code was minor, even when measured three years
after the change. 132

   Likewise, between 1990 and 2005, Dutch courts failed to punish euthanasia
in the Chabot (no somatic disease), 133 Kadijk (infant), 134 and Van Oijen (no
consent) 135 cases. This failure to punish would have been expected to increase
the rate of euthanasia and assisted suicide, but between 1990 and 2005
euthanasia and physician-assisted suicide were relatively constant. 136 Again, the
minor change in the rates of euthanasia and physician-assisted suicide between
1990 and 2005 shows that the effect of the Dutch legal decisions during this
period is slight.

   The practices of euthanasia and physician-assisted suicide were determined
by case law and reporting requirements that evolved before the national surveys,
which started in 1990. 137 Most of the elements of the 2002 act can be found in
Dutch case law going back to the Admiraal case in 1985. 138 Between 1982 and
1990, the Dutch evolved a national reporting system that required all cases of
euthanasia and physician-assisted suicide to be reported to the coroner and the
prosecutor. 139 Review by the prosecutor of all cases of euthanasia and physician-
assisted suicide with the possibility of criminal prosecution may have caused
some physicians to favor methods of physician-assisted death that did not require
reporting. 140

B. Physicians Avoid Reporting

Dutch surveys of physician-assisted death show that physicians are much more
likely to end patients’ lives by methods that do not require reporting, as shown in
figures 1 and 2 above. 141 Physicians do not have to report ending a patient’s life
by treatment of symptoms, which includes terminal sedation, or ending of
treatment because Dutch common law accepts them as normal medical
practice. 142 Physicians are required to report only physician-assisted suicide,
euthanasia, and patients in the “no consent” group. 143 Table 2 shows the ratio of
cases where no reporting is required to cases where reporting is required.
         Can Legalization Improve End-of-Life Care? An Empirical Analysis      291
       of the Results of the Legalization of Euthanasia and Physician-Assisted
                       Suicide in the Netherlands and Oregon

     Table 2: Frequency of Physician-assisted Death in Groups where Reporting is
                   Required vs. where Reporting is not Required 144
                        Required                 Not Required             Ratio
                                           (Treatment of Symptoms,    Not Required
                     (Euthanasia and        Terminal Sedation, and    to Required
                     Assisted Suicide)       Ending of Treatment) -

1990                      1.9%                      36.7%                  19
1995                      2.6%                      39.3%                  15
2001                      2.8%                      40.3%                  14
2005                      1.8%                      48.5%                  27
Mean                      2.3%                      41.2%                  19

    Table 2 shows that physicians are nineteen times more likely to end a dying
patient’s life by means that do not require reporting. At least one commentator
argues that Dutch common law effectively legalized euthanasia and assisted
suicide with the Admiraal case in 1985. 145 If euthanasia and assisted suicide
were already de facto legal, then statutory legalization cannot explain this
ratio. 146

C. Reporting Requirements May Lead to Avoidance of Reporting

Between 1990 and 2005 the reporting of cases of euthanasia and assisted
suicide increased four-fold. 147 At the same time, physician-assisted deaths that
did not require reporting increased, as shown in figure 3.

    The reporting rate rose from 18% in 1990 to 80% in 2005, 148 the fraction of
physician-assisted deaths that did not require reporting rose from 36.7% to
48.5%, as shown in table 2. This gives a slope of (48.5% - 36.7%)/(80% - 18%),
or 0.19, which is the same as the calculated slope. The correlation coefficient
is 0.95, which is marginally significant with a p-value of 0.05. 149 Thus, each 5%
increase in the reporting rate is associated with a 1% increase in physician-
assisted deaths that do not require reporting. The increase in physician-assisted
deaths that do not require reporting might be due to the increasing use of
terminal sedation.
292                      PHYSICIAN ASSISTED EUTHANASIA



D. Is “No Consent” Death Murder?
1. Most “No Consent” Death is Normal Medical Care
It is potentially troubling that Dutch physicians end the lives of many dying
patients without their explicit consent at the time of the patients’ death; this is the
“no consent” group. 150 As table 3 shows, most “no consent” deaths occur with
treatment of symptoms or ending of treatment.

 Table 3: Number of Physician-assisted Deaths without Explicit Consent at the Time
                             of the Patient’s Death 151

                                                              Treat        Ending of
                             Euthanasia+     No Consent     Symptoms       Symptoms

Physician-assisted death*             2.6%          0.7%           19.1%         20.2%
No explicit request†                    0%         100%              66%           76%
Number of deaths                         0          950           17,103       20,829
+
    Euthanasia group included physician-assisted suicide.
* Percentage of all deaths. See supra data for 1995 national survey shown in Table 1.
† Percentage of physician-assisted deaths. No explicit request at the time life ended,
but there may have been a prior discussion or stated wish. Percentage excludes
unknown.

   The “no consent” group makes up only about 2.4% of the total number of
deaths lacking explicit consent at the time of the patient’s death. The fraction of
deaths without any consent is similar in the “no consent,” treatment of symptoms,
and ending of treatment groups.

    The 95% confidence intervals of the fraction of patients without consent at the
time of death in the “no consent” group overlaps the 95% confidence intervals of
the fractions in the treatment of symptoms and ending of treatment groups. The
overlap of 95% confidence intervals shows that there is no statistically significant
difference between these groups at the 0.05 level of confidence. 152 This suggests
that the lack of consent may be a normal part of the dying process where
patients become unable to consent as their disease progresses. 153
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      293
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
2. “No Consent” Resembles Treatment of Symptoms
A common reason for “no consent” deaths is that the patient stated an earlier
preference for physician-assisted death, but is unable to consent at the time of
death. In the 1990 and 1995 Dutch national surveys, about 50-80% of patients
in the “no consent” group were not competent to consent at the time of their
death. 154 A lack of competence was also common in the treatment-of-symptoms
group (47%) and ending-of-treatment group (67%). 155 Also, about 50% to 60%
of patients in the “no consent” group had discussed or stated a wish for
physician-assisted death, compared to 24% in the treatment-of-symptoms
group. 156 For example, in the 2005 survey, 60% of the “no consent” group had
expressed a wish for or discussed physician-assisted death before the time of
death, and the remaining 40% had become unable to consent by the time of
death. 157 Furthermore, discussion took place with relatives in 70% to 100% of
patients in the “no consent” group. 158 In this group, morphine was used to end
the patient’s life in 81% of cases, compared to 84% of cases in the treatment-of-
symptoms group. 159 The “no consent” group was also similar to the treatment-of-
symptoms group in that the estimated shortening of life was less than a week in
91% of the “no consent” group and 80% of the treatment-of-symptoms group. 160
In both the “no consent” and treatment-of-symptoms groups, death may have
been due to the patient’s disease and not morphine treatment, as high doses of
morphine are not always lethal. 161 In sum, most of the “no consent” deaths were
in patients who had expressed their desire for physician-assisted death. 162 The
remaining patients were unable to consent and, for most of them, Dutch
physicians treated their symptoms with pain medications. 163

E. Vulnerable Groups are Protected
The Dutch national surveys show the demographic characteristics of patients who
select assisted suicide or euthanasia. 164 First, there is an inverse relationship with
age, as the oldest patients, those aged greater than eighty, are the least likely to
choose assisted suicide or euthanasia. 165 Generally, men are more likely than
women to select euthanasia or assisted suicide. 166 The most common causes of
death, cancer and vascular disease, are those most regularly seen in patients
selecting euthanasia or assisted suicide. 167 Additionally, euthanasia and assisted
suicide were most often handled by a family physician, who probably best knew
294                     PHYSICIAN ASSISTED EUTHANASIA



the patient, and not by a specialist or nursing home physician. 168 The Dutch
national studies do not include data about patients’ financial status, but health
insurance is nearly universal in the Netherlands. 169 There is no evidence that
patients without insurance or elderly patients are more likely to select
euthanasia. 170

   Many patients in the Netherlands consider euthanasia, but few choose to die
that way. 171 Patients are about three times more likely to be interested in the
possibility of euthanasia or assisted suicide at some future time, rather than at a
specific time. 172 A little less than one-half (44%) of the requests are approved. 173
The most common reasons for selecting euthanasia or assisted suicide are
“pointless suffering” 174 (75%) and “deterioration or loss of dignity” (69%); the
least common are “depressed” (4%) and “not wanting to be a burden on family”
(13%). 175 Unrelieved pain is rarely (5%) the only reason for selecting assisted
suicide or euthanasia, but is a factor in the decision in about 40% of cases. 176
Some reasons, such as “pointless suffering,” “tiredness,” “tired of living,” and
“not wanting to be a burden on family,” suggest depression, which is potentially
treatable; patients with these symptoms are more likely to have their requests
rejected. 177 In addition to depression, the other main reasons to reject a patient’s
request are the patient’s lack of competence, a degree of suffering insufficient to
warrant physician-assisted death, and availability of alternative treatments. 178
The factors that guide physicians’ rejections of patients’ requests for physician-
assisted death reflect the legal requirements of the 2002 act. 179

1. Mentally Handicapped Patients

Dutch physicians typically end the lives of their mentally handicapped patients by
the stopping of treatment, as shown in table 4. 180 Compared with the general
population, mentally handicapped patients are more likely to have their lives
ended by ending of treatment and less likely to have their lives ended by
treatment of symptoms or by euthanasia. As shown by the lack of overlap of
the 95% confidence intervals, these differences are significant at the 0.05 level of
confidence. 181 Clearly, Dutch physicians are reluctant to take active measures to
end mentally handicapped patients’ lives.
         Can Legalization Improve End-of-Life Care? An Empirical Analysis      295
       of the Results of the Legalization of Euthanasia and Physician-Assisted
                       Suicide in the Netherlands and Oregon

     Table 4: Proportion of End-of-Life Decisions Made with Mentally Handicapped
           Patients (MHP) Compared with the General Population (Gen. Pop.)

Decision                        All MHP            MHP 1995          Gen. Pop.

Ending of Treatment

Percentage of deaths            30%                34%              20%

Confidence interval             27-33              28-40            19-21

Treatment of Symptoms

Percentage of deaths            11%                10%              19%
Confidence interval             9-13               6-14             18-20

Euthanasia

Percentage of deaths            0.5%               0%               2.4%
Confidence interval             0-0.9                               2.1-2.6

Notes: “All MHP” is all of the 859 mentally handicapped patients and “MHP 1995” is
the 222 mentally handicapped patients evaluated in 1995. General population data
are from death certificates from 1995 and based on 5146 patients.

    The reason for this passive ending of life is that mentally handicapped
patients are rarely competent (6%) and rarely make explicit requests to have their
lives ended (3%). 182 About 35% to 40% of all handicapped patients appeared to
communicate a desire to have their lives ended by “non-autonomous” requests,
where, for example, the patient said “they wanted to go to heaven,” or by
nonverbal means, such as resisting all medical treatment. 183 Dutch physicians
caring for mentally handicapped patients discuss their end-of-life decisions with
relatives or representatives (75%) and other physicians (69%). 184 In the rare cases
where physicians actively ended their patients’ lives – four out of 859 cases,
or 0.47% – the mentally handicapped patients were suffering substantially
despite all other treatment measures or were in the terminal phase of their
illnesses. 185   This   means   that    mentally    handicapped      patients    are
underrepresented in the euthanasia group.
296                       PHYSICIAN ASSISTED EUTHANASIA



2. Psychiatric Patients
Each year, Dutch psychiatrists receive about 320 requests for physician-assisted
suicide and assist in two to five suicides. 186 A typical patient requesting assistance
with suicide is a forty-five-year-old woman with a mood disorder who has
refused medication and psychotherapy and sees no hope of improvement of her
unbearable mental suffering. 187 Most patient requests were refused because the
psychiatrist thought the patient’s mental disorder could be treated (61%), their
suffering was not unbearable (32%), or the psychiatrist opposed assisted suicide
in principle (31%). 188 About 21% of patient requests lead to further consultation
by other physicians to see if the request was well considered (58%) or if there
were other treatment options (58%). 189 After the consultative process, for only 2%
of patients did the psychiatrist assist in the patient’s suicide, although 16% of
requesting patients committed suicide by themselves. 190 Of the patients that the
psychiatrists aided in their suicide, about half had severe medical diseases. 191
Over time, 35% of patients no longer wanted to commit suicide, but 28% made
persistent requests for the psychiatrist to aid their suicide.192 Overall, Dutch psychiatrists
closely follow the legal requirements created by the Dutch Supreme Court. 193
3. Children
The ways Dutch physicians end dying children’s lives are shown in table 5. 194
  Table 5 195 : End-of-Life Decisions in Children Aged 3 Months to 17 Years Compared
                                         with Adults
                        Decision                           Children          Adults*
 Ending of Treatment (17)                                     12%             20.2%
                                                            7.8-17            19-21
 Treatment of Symptoms (21)                                   21%             20.1%
                                                             16-28            19-21
 Euthanasia (1)                                              0.7%             2.6%
                                                            0.1-3.6          2.3-2.8
 Physician-assisted suicide                                    0              0.2%
                                                                             0.1-0.3
 No-consent (3)                                              2.0%             0.7%
                                                            0.8-5.2          0.5-0.9
Number in parenthesis is the number of children studied.
* Adult data is from the national survey data for 2001 and based on death cer-
tificates. 196
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      297
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
   Euthanasia, physician-assisted suicide, and ending of treatment were less
common in children than adults. Treatment of symptoms was about the same in
children and adults. The rate of “no consent” physician-assisted death, often
done at the explicit request of the child’s parents, 197 was relatively high, but
the 95% confidence intervals overlapped the adult rate. The relatively high “no
consent” rate is related to the inability of most (80%) children to consent. 198
End-of-life decisions were always discussed with the child’s parents and made at
the request of parents for 50% of children. 199 Like adults, the most common
diagnosis was cancer, which was the diagnosis in twelve of twenty cases, or 60%,
compared to about 40% in adults. 200 Also, as in the adult treatment-of-symptoms
group, the most common drug used in all child groups was morphine. 201 The
estimated shortening of life in children was less than one week in 40% of
cases. 202 Thus, Dutch end-of-life decisions are similar in children and adults,
except that ending of treatment is much less common in children.

F. Complications

Prolonged death or failure to induce coma are the main complications of
euthanasia (in 5.2% of cases) and assisted suicide (in 14% of cases). 203 Assisted
suicide is also limited by problems with oral administration (in 6.1% of cases) due
to nausea and vomiting (in 3.5% of cases). 204 The main additional problem with
euthanasia is finding a suitable vein to inject the lethal medication (in 1.9% of
cases). 205 Time to death is about ten minutes for euthanasia and about thirty
minutes for assisted suicide. 206

V. Analysis – oregon
A. Assisted Suicide is Rare but Increasing

Over the first ten years of the Death with Dignity Act, relatively few patients have
chosen assisted suicide, but the data in table 6 and figure 5 show the rate is
increasing. 207
298                       PHYSICIAN ASSISTED EUTHANASIA



            Table 6: Annual* Prescriptions, Deaths, and Deaths per 10,000
                                Population in Oregon
 Year               98    99       00     01     02       03    04      05     06     07
 Prescriptions      24    33       39     44     58       68    60      65     65     85
 Deaths             16    27       27     21     38       42    37      38     46     49
 Deaths/10,000      5.5   9.2      9.1    7.0    12.2    13.6   12.3    12    14.7   15.6
 *Only the last two digits of years are given.

   Linear regression confirms that the number of prescriptions, deaths per year,
and deaths per year per 10,000 people are increasing, as shown in table 7.

        Table 7: Regression Analysis of Oregon Physician-assisted Suicide Data
                                Prescriptions     Deaths/Year        Deaths/10,000/Year
Slope coefficient                   5.5                 3.0                  0.87
Slope t-test*                       6.6                 4.6                  4.3
p-value                         p < 0.0003         p <0.002              p < 0.004
* Slope t-test is the ratio of the slope coefficient to the standard of error of the slope.
The p-value measures the statistical significance of the slope. The units of the slope
vary, for example, for prescriptions, the unit is number of prescriptions per year.
Calculations were done with Excel data analysis (regression) software.

    All the slope coefficients are positive and statistically significant. If this linear
relationship persists, then the deaths per 10,000 people should increase by 0.87
to about 16.5 in 2008.

B. Patients Control the Manner of Death
The most common reasons that patients chose assisted suicide were a loss of
autonomy (89%), ability to do pleasurable activities (87%), and dignity (82%); the
least common are financial reasons (3%) and inadequate treatment of
pain (27%), 208 The patients selecting assisted suicide are similar to other dying
patients in age (median age of sixty-nine), race (97% white) and sex (54% male),
but were more likely to have at least a college degree (41%). 209 Most patients
requesting assisted suicide had cancer (82%) and were enrolled in hospice
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      299
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
care (86%); almost all had insurance (99%). 210 Interestingly, patients requesting
assisted suicide were less likely to be completely disabled than patients with
similar diagnoses (21% and 84%, respectively). 211 Family members often describe
patients selecting assisted suicide as desiring to control the manner of their
death. 212

C. Complications
In euthanasia, a primary care doctor or oncologist who has practiced medicine
for about twenty years prescribes the lethal medication, which is almost always a
barbiturate. 213 Coma is induced in five to ten minutes and death in twenty-five to
thirty minutes. 214 Complications include regurgitation in 5% to 9% of cases, and
one (of 341) patient awoke and died two weeks later of his or her illness. 215

VI. Analysis – Empirical Observations, Limitations, and
Recommendations
A. Empirical Observations
1. Physicians Comply with the Law
The empirical evidence shows that physicians comply with the law. 216 In the
Netherlands, all unnatural deaths are screened by the prosecutor. 217 Between
1991 and 1995, screening of 6324 cases of euthanasia and assisted suicide
resulted in prosecution of thirteen physicians (only 0.21% of cases). 218 In the
twenty published cases, three physicians were found guilty but not punished, and
six were given suspended sentences. 219 Although physician compliance is good
in reported cases of assisted suicide and euthanasia, about 20% of cases are not
reported. 220 A comparison of a stratified random sample of sixty-eight reported
and sixty-eight unreported cases revealed a failure to meet procedural
requirements in the unreported cases. 221 The unreported cases were more likely
to lack a written request (only 44% of unreported cases had written requests,
compared to 73% of unreported cases), consultation with another physician (11%
compared to 94%), and a written report (57% compared to 97%). 222 Both the
unreported and reported cases met the substantive legal requirements. 223
Overall, physicians in the Netherlands comply with the law in more than 99% of
cases. 224 Oregon lacks a mechanism to detect underreporting or failure to
comply with law. 225
300                     PHYSICIAN ASSISTED EUTHANASIA



2. Vulnerable Groups are Underrepresented
In both the Netherlands and Oregon, vulnerable groups are less likely to select
euthanasia or assisted suicide. 226 Patients selecting euthanasia or assisted suicide
are typically less than eighty years of age, 227 white, 228 male, 229 and have
insurance. 230 Also, they have typical, predictable causes of death, such as
cancer. 231 Financial reasons (3%) and inadequate pain treatment (27%) are the
least common reasons for patients to select assisted suicide in Oregon. 232 In
Oregon, patients selecting assisted suicide are more educated 233 and less
disabled. 234 The least common reason for selecting euthanasia or assisted
suicide in the Netherlands is feeling depressed (4%). 235 Thus, patients selecting
euthanasia or assisted suicide are younger, more highly educated, and relatively
affluent. 236

    The mentally handicapped, 237 psychiatric patients, 238 and children 239 are
underrepresented among patients selecting euthanasia or assisted suicide in the
Netherlands. Physicians were more likely to stop treatment for the mentally
handicapped and less likely to end their lives by treatment of symptoms or
euthanasia. 240 These differences are statistically significant at the 0.05 level of
confidence. 241 Psychiatrists only grant 2% of requests for assisted suicide, 242
versus an approval rate for euthanasia or assisted suicide of 44% in the general
population. 243 Euthanasia and assisted suicide are both rare in children, 244 with
rates that are less than those in the adult population. 245 The difference for
assisted suicide is statistically significant at the 0.05 level of confidence. 246 The
main reason the mentally handicapped 247 and children 248 are underrepresented
is their inability to consent. For psychiatric patients the main reason they are
underrepresented is because their mental disorder could be treated. 249 The
empirical evidence from both the Netherlands and Oregon is that vulnerable
groups are less likely to select assisted suicide or euthanasia.

3. “No Consent” is Mainly Normal Medical Treatment
Most physician-aided deaths without the patient’s consent occur with treatment of
symptoms or ending of treatment; both are part of normal medical treatment. 250
Reports from the Netherlands separate a “no consent” group from euthanasia
and assisted suicide. 251 A comparison of the “no consent” group with the
treatment-of-symptoms group shows the two groups are similar. 252 The
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      301
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
similarities include: a lack of competence at the time of death; 253 frequent
expression of wish for physician-aided death at an earlier time; 254 the use of
morphine to end the patient’s life; 255 and estimated shortening of the patient’s
life by less than a week. 256 Furthermore, many of the “no consent” deaths may
be due to the patient’s terminal illness, as high doses of morphine are not always
lethal. 257 Overall, the empirical evidence favors the conclusion that most of the
“no consent” group should be viewed as a part of normal medical care.

4. Legalization Shapes Physician Behavior

Despite formal legalization in 2002 258 and de facto legalization in the 1980s, 259
Dutch physicians are nineteen times more likely to choose methods of physician-
assisted death that do not require reporting. 260 Also, as reporting increased
fourfold, from 18% to 80%, the fraction of physician-assisted deaths not
requiring reporting increased. 261 This shows that reporting encourages physicians
to choose methods of physician-assisted death that avoid reporting. 262 While the
requirement of reporting may reduce euthanasia and assisted suicide, legali-
zation allows Dutch patients to select either. 263 A comparison of the Dutch results
with those from other European countries could show the net effect of
legalization and reporting on the rate of euthanasia and assisted suicide.

   Except for euthanasia, the Dutch are similar to other European countries in
their choice of methods of physician-assisted dying, as shown in table 8. 264

      Table 8: Comparison of End-of-Life Decisions in Six European Countries 265
             Belgium      Denmark    Italy       Netherlands    Sweden   Switzerland
Euthanasia
Death (%)          0.3%     0.06%     0.04%             2.6%                   0.27%
CI*            .16-.58      .01-26    0-.27           2.2-3.0                 .14-.51
Assisted Suicide
Death (%)       0.01%       0.06%            0         0.21%                   0.36%
CI*              0-.28     .01-.26                    .12-.38                 .20-.63
                                                                             Contd…
302                     PHYSICIAN ASSISTED EUTHANASIA



…Contd
No Consent
Death (%)       1.5%       0.67%    0.06%           0.6%      0.23%          0.42%
CI*           1.1-2.0     .44-1.0   .01-29        .43-.84     .11-47         .25-70
Treatment of Symptoms
Death (%)        22%         26%      19%            20%        21%            22%
CI*            21-24       24-28    17-20          19-21      20-22          21-23
Ending Treatment
Death (%)        15%         14%       4%            20%        14%            28%
CI*            13-16       13-15       3-5         19-21      13-16          26-29
*CI is confidence interval. The number of patients studied is 2950 in Belgium, 2939
in Denmark, 2604 in Italy, 5384 in the Netherlands, 3248 in Sweden and 3355 in
Switzerland.

    As shown above, euthanasia is fifteen times more common in the Netherlands
than the average of the other European countries. At the time of this study,
euthanasia was only legal in the Netherlands. 266 The Dutch rate of assisted
suicide overlaps the 95% confidence intervals of other European countries, except
for Italy, which is significantly lower. The 95% confidence interval of the Dutch
“no consent” groups overlaps those of about half of the other European
countries. In the Netherlands, 40% of physician-assisted deaths are due to treat-
ment of symptoms and ending treatment, compared to a 40% average for the
other European countries, excluding Italy (and 37% including Italy). The clearest
effect of legalization and reporting is to increase the rate of euthanasia.

5. Reporting Improves End-of-Life Care
In Oregon, legalization and reporting of assisted suicide stimulated the treatment
of pain and also the development of hospice care and the medical system to
allow more patients to die at home. 267 In both the Netherlands and Oregon,
pain is not a dominant reason to choose euthanasia or assisted suicide. 268 This is
true even though about half of deaths reported in the SUPPORT study had
moderate to severe pain in the last three days before death. 269 Furthermore, after
legalization of assisted suicide, Oregon increased its use of morphine by 70%
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      303
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
between 1994 and 1996 and, as a result, led the nation in the amount of
morphine prescribed per person. 270 After the referendum in Oregon, hospice
care expanded to include 86% of all assisted-suicide patients. 271 This increase in
the availability of hospice care is a factor explaining why Oregon has the lowest
rate of death in hospitals in the United States. 272 When given the choice, most
patients would choose to die at home. 273 In Oregon, legalization and reporting
of assisted suicide led to improved end-of-life care.

B. Limitations of Empirical Studies
1. Lack of Controls and Unclear Causality
Some obvious limitations of this Article are its reliance on data from surveys, the
comparison of groups that differ in more than one way, and the inability to infer
causality from correlation. The strengths of the Dutch national surveys are large
numbers, survey reporting rates of about 75%, and comparisons of rates based
on death certificates and interviews. 274 The Oregon annual reports cover all
cases reported. 275 In addition, the Dutch studied the 20% of euthanasia and
assisted suicides that were not reported, finding mainly procedural deficiencies;
this was not done in Oregon. 276 Reporting rates of 75% or more reduces the risk
that the surveys are unrepresentative. 277 Dutch studies on mentally handicapped
patients, psychiatric patients, and children are based on smaller numbers, have
survey response rates of more than 80%, and, except for children, lacked a
comparison of death certificates and interviews. 278 Interviews were confidential,
while death certificates were reviewed by the prosecutor. 279 A comparison of the
death certificate rates with those from interviews gives an estimate of
underreporting. 280 Thus, Dutch studies on mentally handicapped and psychiatric
patients might be biased by underreporting. 281

   None of the results are based on experimental studies of matched groups
studied before and after legalization of euthanasia and assisted suicide. 282 Also,
in the Netherlands, de facto legalization and reporting requirements largely
occurred before the large national surveys between 1990 and 2005. 283 This
makes it difficult to separate the effect of legalization and reporting. 284 There is a
positive correlation between the rate of reporting and the rate of physician-
assisted deaths that do not require reporting. 285 This suggests the reporting effect
is separate from legalization. 286 Correlation, however, does not prove
304                    PHYSICIAN ASSISTED EUTHANASIA



causality. 287 Another weakness of the relationship is that the correlation is based
only on four data points. 288 Although it is plausible that physicians would favor
methods of physician-assisted death that avoid reporting, this ignores the
patient’s wishes. 289 Empirical studies can describe the results of legalization, but
can only suggest a causal relationship between legalization and the results.

2. Classification Bias
Empirical studies are limited to data reported by physicians. 290 Where the law has
made euthanasia illegal, European physicians report low rates of euthanasia,
often less than 0.3%. 291 The rate of euthanasia in the Netherlands is fifteen times
higher, about 2.6%. 292 Yet if the euthanasia rate was 2% in all of Europe, but
classified as “treatment of symptoms” where euthanasia is illegal, 293 there would
be a classification bias. 294 If this were the case, “treatment of symptoms” would
be 2% higher where euthanasia is illegal. Excluding the Netherlands, the average
European treatment-of-symptoms rate is 22%, compared to 20% in the
Netherlands. 295 Empirical studies cannot exclude the possibility that the only
effect of legalization was to change the way 2% of deaths are classified in reports
by physicians. A similar reclassification could partially explain why Dutch national
surveys revealed a decrease in euthanasia and an increase in treatment of
symptoms in 2005. 296 To detect a shift of 2% would require a large number of
cases. 297 For example, to reduce the 95% confidence interval to between 19%
and 21% requires more than 6,000 cases. 298 The expense of analyzing
thousands of cases may explain why Dutch national surveys are only done about
every five years. 299 Even empirical studies based on more than a thousand cases
are not likely to detect a change of 1%.

C. Recommendations Suggested by Empirical Studies
1. Screening for Suspicious Deaths
Using the legal system to monitor physician reports is expensive, as thousands of
cases are reported each year in the Netherlands. 300 Further, investigation of
reported cases by the prosecutor in the Netherlands leads to indictment in 0.21%
of cases; about half are found guilty, but few are punished. 301 Although routine
screening by the prosecutor is costly, it rarely detects substantive violations. 302
Legal resources should be focused on suspicious deaths where the probability of
criminal activity is much higher than a fraction of a percent.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      305
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
2. Reporting to Improve End-of-Life Care
From an empirical point of view, a better function for legalization would be to
encourage optimal end-of-life care, with euthanasia and assisted-suicide playing
only a minor role. 303 An example would be the monitoring of the adequacy of
pain treatment, hospice care, and presence of insurance, as was done in
Oregon. 304 Reports from Oregon show high levels of compliance, with 73% of
assisted-suicide patients having adequate pain treatment, 86% being in hospice
care, and 99% having insurance. 305 To detect 80% compliance with a 95%
confidence interval of plus or minus 8% (72% to 88%) only takes about 100
cases. 306

    In addition to requiring only a small number of cases, it would be relatively
easy to check the accuracy of physician reporting. 307 For example, if the accuracy
of physician reporting of pain control was doubted, then the degree of pain
control could be rated by patients or their families. 308 Thus, if reporting
requirements focused on improving end-of-life care, there would be a legal
incentive for physicians to optimize the care of their dying patients who request
assisted suicide or euthanasia. 309 However, there would be a tendency for
physicians not to report cases with less optimal care, so studies to detect
nonreporting, such as those done in the Netherlands, would be needed. 310
Detecting classification bias would involve studying cases reported as treatment
of symptoms or terminal sedation to see how many were actually euthanasia. By
focusing on optimal end-of-life care, the law would benefit from a closer
alignment of legal, physician, and patient interests.

3. Avoid Waiting Periods or Extensive Evaluations

Delays due to the requirements of optimal end-of-life care are reasonable.
However, mandated waiting periods or evaluations unrelated to optimal care will
only deny patients’ control over how they die. The Dutch national surveys show
that about 15% of euthanasia or assisted-suicide patients are expected to die
within a day, and about 60% within a week, of the time of their request. 311 Given
this high estimated death rate, there should be no required waiting period. Also,
required consultations or other evaluations should be quickly attainable.
306                    PHYSICIAN ASSISTED EUTHANASIA



VII. Conclusion
One goal of legalizing euthanasia and assisted suicide is to protect patients from
harm. Legalization permits euthanasia and assisted suicide in restricted
circumstances and requires reporting. Reporting is done by a physician who has
performed euthanasia or assisted suicide. This physician is also the potential
offender. Given the source of the report, it is not surprising that the legal system,
after reviewing thousands of reports, will only indict a few offenders and punish
almost no one. 312 Routine screening of reports rarely detects criminal offenders.

    Another goal of legalization is to gather information about the results of
legalization, which are quantified in empirical studies. Unfortunately, empirical
studies also depend on potentially biased physician reporting. Furthermore, large
numbers are needed to generate accurate estimates. For example, over 1500
cases are needed to generate 95% confidence intervals of 18% to 22% for the
treatment-of-symptoms group. 313 If a patient’s symptoms were treated with mor-
phine, the physician could classify the death as euthanasia or treatment of
symptoms. In jurisdictions where euthanasia is illegal, physicians could classify all
euthanasia deaths (2% of deaths) as treatment of symptoms. This classification
bias would increase the treatment-of-symptoms group by 2%, from 20% to 22%.
The new estimate for the treatment of symptoms group, 22%, would fall within
the prior estimate’s 95% confidence interval of 18% to 22%. Thus, empirical
studies cannot exclude the possibility that the only effect of legalization is to
change the classification of 2% of physician-aided deaths. Because of
classification bias and small samples, empirical studies are unlikely to detect
changes of 2% without studying more than 1500 cases. 314

     The limitations due to potential classification bias and small samples qualify
the interpretations made by this empirical study. The Dutch annual reports
combine a large number of cases, a total of about 5000, with reporting rates of
up to 80%. 315 These surveys show that physicians favor methods of ending
patients’ lives that do not require reporting nineteenfold over methods that do
require reporting. 316 A study of European countries shows that euthanasia is
fifteen times more common in the Netherlands than the average of other
European countries. 317 At the time of this Article, euthanasia was only legal in the
Netherlands. 318 Furthermore, in the Netherlands, as reporting of euthanasia
increases, physicians end more patients’ lives by methods that do not require
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      307
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon
reporting. 319 Combining these results, it is tempting to conclude that legalization
grants patients more autonomy, although physicians are reluctant to end
patients’ lives with euthanasia or assisted suicide. This interpretation should be
accepted with caution due to the potential limitations of classification bias and
small sample size.

    One of the most important goals of legalization should be to require
physicians to document optimal end-of-life care in their euthanasia and assisted-
suicide patients. The definition of optimal end-of-life care should be left to
medical experts, who might be guided by empirical studies. These requirements
could be condensed into checklists with spaces to explain any deviations from
optimal care. The optimal care checklist would not avoid failure to report, so
studies measuring reporting rates would have to be done. However, uncertainty
due to small samples would be less, because the expected compliance would be
high. 320 For example, to have a 95% confidence interval of 72% to 88%, or 80%
plus or minus 8%, only requires about 100 cases. 321 It may be possible to reduce
classification bias by studying cases labeled as treatment of symptoms or
terminal sedation to see if some are in fact euthanasia. 322 Reducing classification
bias is important, because classification of euthanasia as treatment of symptoms
could be used to circumvent the requirement that patients receive optimal end-of-
life care. Legalization requires protecting patients from harm by screening
reports for criminal offenders and punishing criminal offenders, penalties to
ensure high rates of reporting and low rates of classification bias, and
documentation of optimal end-of-life care. If these requirements are met, then
the minority of dying patients, those who might choose euthanasia, should have
the right to control how their lives end. 323

Acknowledgement
Dr. Jackson B. Pickett is a third-year law student at the University of Houston. He
earned his medical degree from Yale University in 1968 and worked as an
academic neurologist from 1975 to 2003, teaching medical students as an
Assistant Professor of Neurology at the University of California from 1975
to 1981 and as an Associate Professor of Neurology at the Medical University of
South Carolina from 1981 to 2003. His medical articles have been published in
the New England Journal of Medicine and Science, among others.
308                      PHYSICIAN ASSISTED EUTHANASIA



Dr. Pickett also has a Bachelors degree in psychology from Occidental College,
an Bachelor’s degree in electrical engineering from The Citadel, and a Master’s
degree in financial mathematics from Florida State University.

The author would like to thank Professors Chandler and Gray for guiding his
research with their clever minds. Professor Bethany Smith made this paper
possible by introducing the author to legal writing and helping him to shape
ideas into words. The author also thanks the Elder Law Journal for polishing the
rough edges of the manuscript.

Endnotes
1     More than 550,000 people died of cancer in the United States in 2000. WORLD
      HEALTH ORG., TABLE 1: NUMBERS AND RATES OF REGISTERED DEATHS (2000),
      http://www.who.int/whosis/database/mort/tablel_process.cfm (follow “select another
      country/year” hyperlink; then select United States, 2000).
2     In some situations, medical predictions are relatively accurate. G. Stoter et. al.,
      Multivariate Analysis of Prognostic Factors in Patients with Disseminated Non-
      seminomatous Testicular Cancer: Results from a European Organization for Research
      on Treatment of Cancer Multiinstitutional Phase III Study, 47 CANCER RES. 2714,
      2716-17 (1987).
3     Multiple values conflict here: patient autonomy and the physician’s duty
      to end suffering versus the physician’s duty not to kill and the requirement that
      the patient be competent and make a rational decision. Margaret P. Battin & Timo
      thy E. Quill, False Dichotomy Versus Genuine Choice: The Argument over Physician-
      Assisted Dying, in PHYSICIAN-ASSISTED DYING: THE CASE FOR PALLIATIVE CARE AND
      PATIENT CHOICE 1, 6-7 (Timothy E. Quill & Margaret P. Battin eds., 2004); Norman
      L. Cantor, On Hastening Death Without Violating Legal and Moral Prohibitions, 37
      LOY. U. CHI. L.J. 407, 430 (2006).
4     Gina Castellano, The Criminalization of Treating End of Life Patients with Risky Pain
      Medication and the Role of the Extreme Emergency Situation, 76 FORDHAM L.
      REV. 203,226-30 (2007).
5     See Cantor, supra note 3, at 422-29.
6     Castellano, supra note 4, at 225-30.
7     WORLD HEALTH ORG., supra note 1.
8     About 100,000 deaths were due to accidents in 2000 in the United States. Id.
9     See Deborah L. Kasman, When is Medical Treatment Futile? A Guide for Students,
      Residents, and Physicians, 19 J. GEN. INTERNAL MED. 1053, 1054 (2004).
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      309
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

10   See SUPPORT Principal Investigators, A Controlled Trial to Improve Care for Seriously ill
     Hospitalized Patients: The Study to Understand Prognoses and Preferences for
     Outcomes and Risks of Treatments (SUPPORT), 274 JAMA1591, 1593-95 (1995).
11   Cantor, supra note 3, at 409-27.
12   Timothy E. Quill et. al., The Rule of Double Effect – A Critique of Its Role in
     End-of-Life Decision Making, 337 NEW ENG. J. MED. 1768,1768 (1997).
13   Vacco v. Quill, 521 US 793, 802 (1996) (accepting in dicta that “painkilling
     drugs may hasten a patient’s death, but the physician’s purpose and intent is, or
     may be, only to ease his patient’s pain”); MARGARET PABST BATTIN, ENDING LIFE:
     ETHICS AND THE WAY WE DIE 49-55 (2005); N. Ferreira, Latest Legal and Social De
     velopments in the Euthanasia Debate: Bad Moral Consciences and Political Unrest,
     26 MED. & L. 387, 390 (2007) (listing Albania, Denmark, Finland, Germany, Switzer
     land, and the United Kingdom as countries where it is legal to use large doses of
     pain killers that shorten a patient’s life).
14   Peter L. Bailey et. al., Effects of Intrathecal Morphine on the Ventilatory Response to
     Hypoxia, 343 NEW ENG. J. MED. 1228, 1228 (2000); Quill et al., supra note 12,
     at 1768.
15   Cantor, supra note 3, at 410-15.
16   Vacco, 521 US at 802. Cantor, supra note 3, at 409-10; Castellano, supra note 4,
     at 211 (stating there is no legal precedent in the United States); Quill et. al., supra
     note 12, at 1769-70.
17   BATTIN, supra note 13, at 48-55; Agnes van der Heide et al., End-of-Life Practices in
     the Netherlands Under the Euthanasia Act, 356 NEW ENG. J. MED. 1957, 1957
     (2007).
18   Suzanne Rode, End-of-Life Decisionmaking for Patients in Persistent Vegeta
     tive States: A Comparative Analysis, 30 HASTINGS INT’L & COMP. L. REV. 477, 482 n.27
     (2007). Euthanasia is legal in Belgium, Columbia, Japan, and the Netherlands. Id.
     Physician-assisted suicide is legal in Germany, Switzerland, the United Kingdom,
     and Oregon. Id.
19   PENNEY LEWIS, ASSISTED DYING AND LEGAL CHANGE 4-5 (2007).
20   Kathryn L. Tucker & Fred B. Steele, Patient Choice at the End of Life: Getting
     the Language Right, 28 J. LEGAL MED. 305, 311 (2007).
21   LEWIS, supra note 19. Euthanasia is involuntary when the patient is capable of
     consenting but does not do so. Id. at 5.
22   Cantor, supra note 3, at 408-10; Quill et. al., supra note 12, at 1769.
23   Quill et. al., supra note 12, at 1769-70.
24   Cantor, supra note 3, at 423.
25   Kasman, supra note 9, at 1054.
310                       PHYSICIAN ASSISTED EUTHANASIA




26    See Marijke C. Jansen-van der Weide et. al., Granted, Undecided, Withdrawn,
      and Refused Requests for Euthanasia and Physician-Assisted Suicide, 165 ARCHIVES
      INTERNAL MED. 1698,1703 (2005).
27    Cantor, supra note 3, at 427-29.
28    Id. at 423; Castellano, supra note 4, at 225-30.
29    Amy D. Sullivan et. al., Legalized Physician-Assisted Suicide in Oregon – The Second
      Year, 342 NEW ENG. J. MED. 598, 603 (2000); Van der Heide et al., supra note 17,
      at 1958.
30    UN DEP’T OF ECON. & Soc. AFFAIRS, WORLD POPULATION AGEING: 1950-2050, at xxviii-
      xxix, UN Doc. ST/ESA/SER.A/207, UN Sales No. E.02.XIII.3 (2002).
31    The World Health Organization estimated that 55.7 million adults died in
      2000. Emmanuela Gakidou et. al., Adult Mortality: Time for a Reappraisal, 33 INT’L
      J. EPIDEMIOLOGY 710, 712 (2004). In the Netherlands, about 2% of all deaths are
      due to assisted suicide or euthanasia. Van der Heide et. al., supra note 17, at 1961.
      Two percent of 55.7 million deaths a year is 1.1 million annual requests.
32    Sullivan et. al., supra note 29, at 598; Van der Heide et al., supra note 17, at 1957.
33    Infra note 146 and associated table.
34    See Timothy E. Quill, Legal Regulation of Physician-Assisted Death – The Latest
      Report Cards, 356 NEW ENG. J. MED. 1911, 1912 (2007).
35    Article 293 provides that “[a] person who takes the life of another person
      at that other person’s express and earnest request is liable for a term of
      imprisonment of not more than twelve years or a fine of the fifth category.” JOHN
      GRIFFITHS ET. AL., EUTHANASIA AND LAW IN THE NETHERLANDS 308 (1998) (quoting
      a translation in THE DUTCH PENAL CODE (L. Rayar & S. Wadsworth trans., 1997)).
      Article 294 provides that “[a] person who intentionally incites another to commit
      suicide, assists in the suicide of another, or procures for that person the means to
      commit suicide, is liable to a term of imprisonment of not more than three years or a
      fine of the fourth category, where the suicide ensues.” Id. A fourth category fine is
      f 25,000 and a fifth category fine is f 100,000. Id. at 307.
36    Id. at 273.
37    Id. at 62-65. Article 40 provides that “[a] person who commits an offense as a result
      of a force he could not be expected to resist is not criminally liable.” Id. at 307.
38    Schoonheim, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands],
      27 november 1984, NJ 106 (Neth.), translated in GRIFFITHS ET. AL., supra note 35, at
      322.
39    GRIFFITHS ET. AL., supra note 35, at 322-23.
40    Id. at 323.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      311
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

41   Id.
42   Id. at 324.
43   Id.
44   Id. Doctors must fill out a death certificate stating whether their patient’s death was
     due to natural causes or not. Id. at 39. If a death is not due to natural causes, as in
     euthanasia, then the coroner reports the death to the prosecutor. Id. at 39-40.
45   Id. at 308, 324-28.
46   Id. at 326.
47   Id. at 326-28.
48   See id. at 61-63.
49   Id. at 66-67.
50   Id.
51   Id. at 66.
52   Id. at 67.
53   Chabot, Hoge Raad der Nederlanden [HR] [Supreme Court of the Nether lands], 21
     juni 1994, NR 656 (Neth.), translated in GRIFFITHS ET AL., supra note 35, at 329-40.
54   Id. at 330.
55   Id. at 330-31.
56   Id. at 331.
57   Id. at 331-32.
58   Id. at 332. While two-thirds of suicides are due to depression, depression was not
     the diagnosis in this patient. John G. Tierney II, Treatment-Resistant Depression:
     Managed Care Considerations, 13 J. MANAGED CARE PHARMACY 52, S3 (Supp. S-a
     2007).
59   GRIFFITHS ET. AL., supra note 35, at 332.
60   Id. at 330.
61   Id. at 334-35.
62   Id. at 336.
63   Id. at 337-38.
64   Id. at 338-40.
65   Id. at 336.
66   Kadijk, Gerechtshof [Hof] [Court of Appeals], Leeuwarden, 4 april 1996, Tijdschrift
     voor Gezondheidsrecht 35 (Neth.), translated in GRIFFITHS ET. AL., supra note 35, at
     341-51.
312                        PHYSICIAN ASSISTED EUTHANASIA




67    Id. at 342.
68    A.C. Duarte et. al., Patau Syndrome with a Long Survival. A Case Report, 3
      GENETICS & MOLECLULAR RES. 288, 291 (2004), available at http://www.funpecrp.
      com.br/gmr/year2004/vol2-3/pdf/gmr0072.pdf. Over 80% of infants with Trisomy
      13 die within a month. Id. at 289.
69    GRIFFITHS ET. AL., supra note 35, at 342.
70    Id. at 342-43.
71    Id. at 343.
72    Id.
73    Id. at 343,348.
74    Id. at 343.
75    Id.
76    Id. at 343-44.
77    Id. at 344-45.
78    Id. at 346.
79    Id. at 348.
80    Id.
81    Under Article 289, “a person who intentionally and with premeditation takes the life
      of another person is guilty of murder and liable to life imprisonment or a term of
      imprisonment of not more than twelve years or a fine of the fifth category.” Id.
      at 308.
82    Id. at 350-51.
83    Id.
84    Michael Bohlander, Murder: Euthanasia, 69 J. GRIM. L. 401, 401-03 (2005); Tony
      Sheldon, Dutch GP Found Guilty of Murder Faces No Penalty, 322 BRIT. MED. J. 509,
      509 (2001).
85    Bohlander, supra note 84, at 401.
86    Id. at 401-02.
87    Id. at 402.
88    Id.
89    Id. Alcuronium, which the doctor used, is a neuromuscular blocking drug. M. Rose &
      M. Fisher, Rocuronium: High Risk for Anaphylaxis?, 86 BRIT. J. ANAESTHESIA 678, 680
      (2001).
90    Bohlander, supra note 84, at 402-03.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      313
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

91   Sheldon, supra note 84, at 509.
92   Bohlander, supra note 84, at 402.
93   GRIFFITHS ET. AL., supra note 35, at 95.
94   Judith A. C. Rietjens et. al., Terminal Sedation and Euthanasia: A Comparison of
     Clinical Practices, 166 ARCHIVES INTERNAL MED. 749, 752 (2006).
95   GARIFFITHS ET. AL., supra note 35, at 95-97.
96   Id. at 236.
97   Id. at 205.
98   Jonathan T. Smies, The Legalization of Euthanasia in the Netherlands, 7 GONZ. J.
     INT’L L. 4, 38 (2003).
99   Id.
100 Id. at 39.
101 Id. at 38-41.
102 Id. at 41-42.
103 Id. at 42-44.
104 Id. at 44.
105 Van der Heide et. al., supra note 17, at 1957-58.
106 GRIFFITHS ET. AL., supra note 35, at 89.
107 Raphael Cohen-Almagor & Monica G. Hartman, The Oregon Death with Dignity Act:
     Review and Proposals for Improvement, 27 J. LEGIS. 269, 270, 272 (2001).
108 Id. at 273.
109 869 F. Supp. 1491, 1503 (D. Or. 1994).
110 Lee v. Oregon, 107 F.3d 1382, 1383 (9th Cir. 1997).
111 Washington v. Glucksberg, 521 US 702, 702 (1997); Vacco v. Quill, 521 US 793,
    793 (1996).
112 21 C.F.R. § 1306.04 (2005).
113 Gonzales v. Oregon, 546 US 243, 243 (2006).
114 Id. at 244.
115 Cohen-Almagor & Hartman, supra note 107, at 274.
116 OR. REV. STAT. § 127.800(1) (2007) (giving definition of adult).
117 § 127.800(3) (defining capable); § 127.840 (requiring one written and two verbal
    requests).
118 § 127.850 (defining waiting periods of fifteen and two days).
314                      PHYSICIAN ASSISTED EUTHANASIA




119 § 127.800(12) (giving definition of terminal disease).

120 §127.850.

121 § 127.820 (requiring written confirmation of terminal illness, as well as voluntary
    and capable consent).

122 § 127.825 (requiring consultation with psychiatric or psychological evaluation if
    needed).

123 § 163.125 (1) (b).

124 § 127.885. Noncompliance with the Act can create criminal liability. § 127.890.

125 §127.865.

126 Van der Heide et. al., supra note 17, at 1962.

127 Bregje D. Onwuteaka-Philipsen et. al., Euthanasia and Other End-of-Life Decisions in
    the Netherlands, 1990, 1995, and 2001, 362 LANCET 395, 395 (2003); Van der
    Heide et. al., supra note 17, at 1957.

128 Van der Heide et. al., supra note 17, at 1961.

129 Onwuteaka-Philipsen et. al., supra note 127, at 395-96; Van der Heide et. al., supra
    note 17, at 1961. The confidence interval was calculated to include 95% of the
    expected percentages. Onwuteaka-Philipsen et al., supra note 127, at 395-96.

130 Terminal sedation treats the patient’s symptoms using a sedative drug. Quill et. al.,
    supra note 12, at 1769; Rietjens et. al., supra note 94, at 752.

131 The lack of overlap of the 95% confidence intervals between two groups
    shows that the chance of this difference is less than 5%, a level of difference typically
    labeled as statistically significant. See JERROLD H. ZAR, BLOSTATISTICAL ANALYSIS 103-04
    (2d ed. 1984).

132 Aging of the Dutch population only explained 0.1% of the decline. Van der Heide et
    al., supra note 17, at 1962. The decrease in the euthanasia rate was not associated
    with an increase in the proportion of terminal cancer patients or a change in the mix
    of physicians who practiced euthanasia. Id. at 1962. Terminal sedation explains
    some of the decline. Id. at 1962-63.
133 See supra Part II. A.2.
134 See supra Part II. A.3.
135 See supra Part II. A.4.
136 Van der Heide et. al., supra note 17, at 1961.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      315
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

137 GRIFFITHS ET AL., supra note 35, at 66-67. Similar elements can be found in the
    Versluis case in 1969 and the Postma case in 1973. Id. at 47-48, 51-54, 60, 114-
    18.
138 See supra Part II.A.1.
139 GRIFFITHS ET. AL., supra note 35, at 114-18. A written report must be sub
    mitted to the coroner explaining the medical reasons for euthanasia or physician-
    assisted suicide, the patient’s request, discussions with family members, explanations
    for why euthanasia was performed without an explicit request, the results of
    consultations, and the details of the life-ending treatment. Id. at 308-13. Between
    1990 and 2005, the reporting rate for euthanasia and physician-assisted suicide
    rose from 18.0% to 80.2%. Van der Heide et. al., supra note 17, at 1958; Gerrit van
    der Wai et. al., Evaluation of the Notification Procedure for Physician-Assisted Death
    in the Netherlands, 335 NEW ENG. J. MED. 1706,1707 (1996).
140 GRIFFITHS ET. AL., supra note 35, at 205.
141 See supra Parts II. A.5, IV.A.
142 See supra Part II. A.5.
143 GRIFFITHS ET. AL., supra note 35, at 115.
144 Van der Heide et al., supra note 17, at 1963. The ratio is fifteen if the “no consent”
    group is included with euthanasia and assisted suicide and nineteen if the “no
    consent” group is included with treatment of symptoms, terminal sedation, and
    ending of treatment. Terminal sedation data is only available for 2005. Id. at 1961.
145 Smies, supra note 98, at 40, 62; supra text accompanying notes 49-52 (describing
    the Admiraal case).
146 Both the numerator – treatment of symptoms, terminal sedation, and ending of
    treatment – and denominator – euthanasia and assisted suicide – would be legal.
    Smies, supra note 98, at 40, 62-63.
147 Van der Heide et. al., supra note 17, at 1964.
148 Bergje D. Onwuteaka-Philipsen et al., Dutch Experience Monitoring Euthanasia, 331
    BRIT. MED. J. 691, 692 (2005); Van der Heide et. al., supra note 17, at 1964.
149 ZAR, supra note 133, at 308, 570. The correlation drops to 0.88 if terminal sedation
    is excluded.
150 GRIFFITHS ET. AL., supra note 35, at 226-28.
151 The calculation involved taking the total number of Dutch deaths in 1995,
    or 135,675, multiplying by the percentage of physician associated deaths, 0.7% for
    the “no consent” group, then multiplying by the percentage of patients not giving
    explicit consent, 100% for the “no consent” group, to give 135,675 * 0.007 * 1.0, or
    950. See Onwuteaka-Philipsen et al., supra note 127, at 396; Paul J. van der Maas
316                       PHYSICIAN ASSISTED EUTHANASIA




      et. al., Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving
      the End of Life in the Netherlands, 1990-1995,335 NEW ENG. J. MED. 1699,1704
      (1996).
152 Id. at 103-04.
153 Van der Maas et. al., supra note 154, at 1704.
154 Id.
155 Id.
156 Id.
157 See Van der Heide et. al., supra note 17, at 1960.
158 Id. at 1963 (citing a 2001 study in which physicians discussed the procedure with a
    relative in 100% of cases); Van der Maas et al., supra note 154, at 1704 (citing a
    1995 study in which physicians discussed the procedure with a relative in 70% of
    cases).
159 See Van der Maas et. al., supra note 154, at 1704 (including other drugs, but
    excluding neuromuscular relaxants, with morphine).
160 See id.
161 Michaela Bercovitch & Abraham Adunsky, Patterns of High-Dose Morphine Use in a
    Home-Care Hospice Service: Should We Be Afraid of It?, 101 CANCER 1473,
    1476 (2004) (showing some patients can tolerate more than 600 milligrams of
    morphine a day); Michaela Bercovitch et al., High Dose Morphine Use in the Hospice
    Setting: A Database Survey of Patient Characteristics and Effect on Life Expectancy,
    86 CANCER 871, 875-76 (1999).
162 Van der Heide et. al., supra note 17, at 1960; Van der Maas et. al., supra note 154,
    at 1704.
163 Van der Heide et. al., supra note 17, at 1963; Van der Maas et. al., supra note 154,
    at 1704.
164 Onwuteaka-Philipsen et. al., supra note 127, at 397; Van der Heide et. al., supra
    note 17, at 1962.
165 Id.
166 Id.
167 F. Janssen & A.E. Kunst, Cohort Patterns in Mortality Trends Among the Elderly in
    Seven European Countries, 1950-99, 34 INT’L J. EPIDEMIOLOGY 1149, 1151 (2005);
    Onwuteaka-Philipsen et. al., supra note 127, at 397; Van der Heide et. al., supra
    note 17, at 1962.
168 Onwuteaka-Philipsen et. al., supra note 127, at 397; Van der Heide et. al., supra
    note 17, at 1962.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      317
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

169 GRIFFITHS ET. AL., supra note 35, at 31; Alain C. Enthoven & Wynard P.M.M. van de
    Ven, Going Dutch – Managed-Competition Health Insurance in the Netherlands, 357
    NEW ENG. J. MED. 2421, 2421 (2007).
170 GRIFFITHS ET. AL., supra note 35, at 31; Onwuteaka-Philipsen et. al., supra note 127,
    at 397; Van der Heide et. al., supra note 17, at 1962.
171 GRIFFITHS ET. AL., supra note 35, at 212.
172 Onwuteaka-Philipsen et. al., supra note 127, at 396.
173 Jansen-van der Weide et. al., supra note 26, at 1702.
174 “Pointless suffering” is one of the requirements of the 2002 act legalizing
    euthanasia. Smies, supra note 98, at 39.
175 Jansen-van der Weide et. al., supra note 26, at 1700-01.
176 GRIFFITHS ET. AL., supra note 35, at 222.
177 Jansen-van der Weide et. al., supra note 26, at 1702-03.
178 Id. at 1703.
179 Smies, supra note 98, at 39.
180 Onwuteaka-Philipsen et. al., supra note 127, at 396-97; G.J.M.W. van Thiel
    et al., Retrospective Study of Doctors’ “End-of-Life Decisions” in Caring for Mentally
    Handicapped People in Institutions in the Netherlands, 315 BRIT. MED. J. 88, 89
    (1997). Confidence intervals were calculated for MHP patients. ZAR, supra note 133,
    at 103-04.
181 ZAR, supra note 133, at 103-04.
182 Van Thiel et. al., supra note 184, at 89-90 & tbls.2 & 3.
183 Id. at 89-90 & tbl.3.
184 Id. at 90 & tbl.4.
185 Id. at 89-90 & tbl.l.
186 Johanna H. Groenewoud et al., Physician-Assisted Death in Psychiatric Prac
    tice in the Netherlands, 336 NEW ENG. J. MED. 1795, 1795-96 (1997). About
    400,000 Dutch patients receive mental health care, so less than 0.1% make requests
    for physician-assisted death. Id. at 1800.
187 Id. at 1796-97.
188 Id. at 1796-97 tbl.3.
189 Id. at 1797.
190 Id.
191 Id. at 1798, 1800.
318                      PHYSICIAN ASSISTED EUTHANASIA




192 Id. at 1797.
193 Infra text accompanying note 228.
194 Astrid M. Vrakking et. al., Medical End-of-Life Decisions for Children in the
    Netherlands, 159 ARCHIVES PEDIATRICS ADOLESCENT MED. 802, 804, 808 (2005).
195 Onwuteaka-Philipsen et. al., supra note 127, at 396; Vrakking et. al., supra note
    198, at 804.
196 Onwuteaka-Philipsen et. al., supra note 127, at 396.
197 Vrakking et. al., supra note 198, at 804.
198 Id. at 805.
199 Id. at 805-06.
200 Onwuteaka-Philipsen et. al., supra note 127, at 397 tbl.3; Vrakking et. al., supra
    note 198, at 805-06.
201 Van der Mass et. al., supra note 154, at 1704; Vrakking et. al., supra note 198, at
    806.
202 Vrakking et. al., supra note 198, at 806 tbl.3.
203 Johanna H. Groenewoud et. al., Clinical Problems with the Performance of
    Euthanasia and Physician-Assisted Suicide in the Netherlands, 342 NEW ENG. J. MED.
    551, 555 (2000).
204 Id.
205 Id.
206 Id. at 555 tbl. 5. Reported numbers are medians. Id.
207 See OR. DEP’T OF HUMAN SERVS., DEATH WITH DIGNITY ANNUAL REPORTS 1-2 (2007),
    http://www.oregon.gov/DHS/ph/pas/docs/year10.pdf.
208 See OR. DEP’T OF HUMAN SERVS., DEATH WITH DIGNITY ANNUAL REPORTS (2007),
    http://www.oregon.gov/DHS/ph/pas/docs/yr10-tbl-1.pdf hereinafter ANNUAL REPORT,
    Table 1].
209 Sullivan et. al., supra note 29, at 600 (stating that college-educated individuals are
    more likely to select assisted suicide). Summary data from the 2007 annual report
    are shown in parenthesis. ANNUAL REPORT, Table 1, supra note 212.
210 ANNUAL REPORT, Table 1, supra note 212.
211 Arthur E. Chin et. al., Legalized Physician-Assisted Suicide in Oregon—The First
    Year’s Experience, 340 NEW ENG. J. MED. 577, 580 (1999).
212 Sullivan et. al., supra note 29, at 603.
213 See, e.g., OR. DEP’T HUMAN SERVS., EIGHTH ANNUAL REPORT ON OREGON’S DEATH WITH
    DIGNITY ACT 12-13 (2006), available at http://www.oregon.gov/DHS/ph/pas/docs/
    year8.pdf (other reports are similar).
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      319
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

214 Id. at 24.
215 Id. at 13-14; ANNUAL REPORT, Table 1, supra note 212.
216 Van der Wail et. al., supra note 141, at 1706.
217 Id.
218 Id.
219 Id. at 1709.
220 Van der Heide et. al., supra note 17, at 1964 (reporting rate was 80.2% in
    2005).
221 Van der Wai et. al., supra note 141, at 1708.
222 Id.
223 Id.
224 Id.
225 Chin et. al., supra note 215, at 583; Cohen-Almagor & Hartman, supra note 107,
    at 290; Sullivan et al., supra note 29, at 603.
226 See supra Part IV.E, V.B.
227 See supra text accompanying note 169; ANNUAL REPORT, Table 1, supra note 212.
228 See supra text accompanying note 213.
229 See supra note 170 and accompanying text; ANNUAL REPORT, Table 1, supra note
    212.
230 Enthoven & Van de Ven, supra note 173; ANNUAL REPORT, Table 1, supra note 212.
231 See ANNUAL REPORT, Table 1, supra note 212; supra text accompanying note 171.
232 ANNUAL REPORT, Table 1, supra note 212.
233 Sullivan et. al., supra note 29, at 600.
234 Chin et. al., supra note 215, at 580.
235 Jansen-van der Weide et. al., supra note 26, at 1700 tbl. 1.
236 See supra notes 214-16 and associated text.
237 Supra Part IV.E.l.
238 Supra Part IV.E.2.
239 Supra Part IV.E.3.
240 Supra Part IV.E.l.
241 Supra text accompanying note 185.
242 Groenewoud et. al., supra note 190, at 1797.
320                      PHYSICIAN ASSISTED EUTHANASIA




243 Supra text accompanying note 177.
244 Supra note 200 and accompanying table.
245 Id.
246 ZAR, supra note 133, at 103-04.
247 Supra Part IV.E.l. The mentally handicapped also were unable to communicate their
    request. Id.
248 Supra text accompanying note 203.
249 Supra note 193 and accompanying text.
250 Data are limited to the Netherlands. Supra note 154 and accompanying table.
251 Supra notes 128-29 and accompanying text and table.
252 Supra Part IV.D.2.
253 Supra text accompanying notes 158-59.
254 Supra notes 160-61 and accompanying text.
255 Supra text accompanying note 163.
256 Supra text accompanying note 165.
257 Id.
258 Supra text accompanying note 98.
259 Supra text accompanying note 147.
260 Supra note 146 and accompanying table.
261 Supra note 150 and accompanying figure.
262 Supra text accompanying note 142.
263 See supra text accompanying note 98.
264 Agnes van der Heide et. al., End-of-Life Decision-Making in Six European Countries:
    Descriptive Study, 361 LANCET 345, 347 (2003).
265 Id.
266 Id. at 346. According to Smies, euthanasia was effectively legalized    before this
    study. Supra text accompanying note 147.
267 Quill, supra note 34, at 1912.
268 Supra text accompanying note 180 (Netherlands); supra text accompanying note
    212 (Oregon).
269 SUPPORT Principal Investigators, supra note 10, at 1594.
        Can Legalization Improve End-of-Life Care? An Empirical Analysis      321
      of the Results of the Legalization of Euthanasia and Physician-Assisted
                      Suicide in the Netherlands and Oregon

270 Susan W. Tolle, Care of the Dying: Clinical and Financial Lessons from the
    Oregon Experience, 128 ANNALS INTERNAL MED. 567, 568 (1998). Legalization
    occurred in 1994. Supra note 107 and accompanying text.
271 ANNUAL REPORT, Table 1, supra note 212.
272 Tolle, supra note 274, at 567.
273 Id.
274 Onwuteaka-Philipsen et. al., supra note 127, at 395-96; Van der Heide et. al., supra
    ote 17, at 1958-59.
275 ANNUAL REPORT, Table 1, supra note 212.
276 Supra text accompanying notes 226-29.
277 SHARI SEIDMAN DIAMOND, REFERENCE GUIDE ON SURVEY RESEARCH 245- 46 (2006).
278 Groenewoud et. al., supra note 190, at 1795-96 (psychiatric physician reporting
    rate is 83%); Van Thiel et. al., supra note 184, at 89-90 (handicapped physician
    reporting rate is 88%); Vrakking et. al., supra note 198, at 803 (pediatric reporting
    rate of 91%).
279 See Van der Heide et. al., supra note 17, at 1958-60; Van der Wai et al., supra
    note 141, at 1707.
280 See Van der Heide et. al., supra note 17, at 1958-60.
281 Id.
282 Penney Lewis, The Empirical Slippery Slope from Voluntary to Non-Voluntary
    Euthanasia, 35 J.L. MED. & ETHICS 197,199 (2007).
283 See supra text accompanying notes 141 & 148.
284 Id.
285 See supra text and figure accompanying notes 150-52.
286 Id.
287 ZAR, supra note 133, at 278.
288 The 95% confidence interval is wider with small numbers. Id. at 311.
289 Thomas Preston et al., The Role of Autonomy in Choosing Physician-Aid-in-Dying, in
    PHYSICIAN-ASSISTED DYING: THE CASE FOR PALLIATIVE CARE AND PATIENT CHOICE 39,
    39-54 (Timothy E. Quill & Margaret P. Battin eds., 2004).
290 Supra text accompanying notes 128 & 214.
291 Supra note 267 and accompanying table.
292 Id.
293 See supra notes 11-14 and accompanying text.
322                       PHYSICIAN ASSISTED EUTHANASIA




294 The Dutch call this “constructability.” GRIFFITHS ET AL., supra note 35, at 255,278.
295 Supra notes 268-69 and accompanying table.
296 Supra table accompanying note 129.
297 See supra table accompanying note 155.
298 Id.
299 Supra note 130 and accompanying figure.
300 Supra notes 129-32 and accompanying table and figure legends.
301 Supra text accompanying notes 221-23.
302 Id.
303 Battin & Quill, supra note 3, at 8.
304 Supra Part V.B.
305 Supra Part V.B.
306 Supra table accompanying note 155.
307 ANNUAL REPORT, Table 1, supra note 212.
308 Sullivan et. al., supra note 29, at 603.
309 See supra Part V.B.
310 See supra text accompanying notes 226-28.
311 Van der Maas et. al., supra note 154, at 1704.
312 Supra Part VI.C.1.
313 Supra table accompanying note 155.
314 Supra table accompanying note 155.
315 Van der Heide et. al., supra note 17, at 1961,1964.
316 Supra table accompanying note 146.
317 Supra text accompanying notes 268-70.
318 Van der Heide et. al., supra note 268, at 346. According to Smies, euthanasia was
    effectively legalized before this Article. Supra text accompanying note 147.
319 Supra figure 3 accompanying note 150.
320 Supra text Part VI.C.2.
321 See supra table accompanying note 155.
322 See supra Part VI.C.2.
323 Supra table associated with note 130.
                                                                               Index

A                                              Do Not Resuscitate (DNR), 138

A Terminal Disease, 71                         Doctrine of Double Effect, 135, 159

Active Euthanasia, 48, 116                     Doctrine of Double Effect, 235, 236, 250
                                               Double Effect Principle, 171
Aid-in-dying Law, 257, 259, 261, 263,
  264, 266, 268, 276, 277                      Drug    Enforcement         Administration
                                                 (D.E.A.), 98
ALS (Lou Gehrig’s Disease), 217
Assisted Suicide, 1, 31, 48, 51, 65, 66, 68,   E
   213, 286, 287, 291, 298, 302                End-of-life Care, 259, 263, 264, 265,
B                                                268, 272, 274, 275, 276
                                               End-of-life Services, 218
Barbiturates, 171, 172, 185, 187
                                               Epicurean Theme, 29
C
                                               Epicureanism, 8, 23
California Compassionate Choices Act,
                                               Ethically Futile, 142
  267
                                               F
Cardiopulmonary Resuscitation (CPR),
  139                                          Fatal Injection, 91
Chemotherapy, 109                              Federal Judiciary, 105
Clinical Depression, 89                        Feeding Tubes, 234

Constitute Suicide, 257, 269                   G
                                               General Practitioners (GPs), 221
Controlled Substances Act (CCCA), 260
                                               Genocide, 67
CPR (Cardio-Pulmonary Resuscitation),
  48                                           H
D                                              Hippocratic Oath, 67, 70, 214
                                               Homicide, 97
Death with Dignity, 61, 66, 71, 73, 80,
  81, 124, 126, 129, 202, 211, 255,            Hydration Tubes, 232, 233
  259, 261, 263, 267, 287, 288, 298            L
Destination Resort, 89                         Legal Moralism, 231
326                        PHYSICIAN ASSISTED EUTHANASIA



Legitimate Medical Purpose, 287, 288         R
Lethal drug, 232, 233, 237                   Right to Die, 47, 53, 63, 106, 126, 213,
Lethal Medication, 117, 125                     214, 218, 228
Letting Die, 232                             S
M                                            Sceptical Epistemology, 19
Medical Disciplinary Tribunal, 284           Somatic Illness, 51
Medical Futility, 134, 135, 137, 139         Substantive Due Process, 230, 231, 236,
Medicine –Autonomy, 67, 68, 71, 72, 73,        247, 248, 249, 251
  79                                         Support and Consultation of Euthanasia
Mental Retardation, 109                        in the Netherlands (SCEN), 224

Mercy Killing, 152                           T
Metaphysics, 10, 27, 41                      Teleological Theory, 20
N                                            Terminal Sedation, 289, 291

Nicomachean Ethics, 5                        Treatment of Symptoms, 289, 291, 293,
                                               295, 296, 302
Nonsense on Stilts, 23
                                             U
P
                                             Utilitarianism, 156
Palliative Care, 83,160,208, 308
                                             V
Palliative Measures, 192
Palliative Medication, 222                   Voluntary Euthanasia, 1

Passive Euthanasia, 48                       Voluntary Martyrdom, 9

Persistent Vegetative State (PVS), 138       Voluntary Passive Euthanasia (VPE), 48

Persuasive Authority, 107
Physician-Assisted Suicide, 169, 170, 280,
  289
Psychological Disorder, 196
                                                        List of Cases

Bowers v. Hardwick 478 US 186 (1986).

Brophy v. New England Sinai Hospital 497 N.E.2d 626 (Mass. 1986).

Commissioner of Correction v. Myers 399 N.E.2d 452 (Mass. 1979).

Cruzan et ux. v. Dir. Missouri Dept. of Health 497 US 261 at 288, 289 (1990).

Cruzan v. Director, Missouri Department of Public Health, 497 US 261 (1990).

In re Conroy 486 A.2d 1209 (N.J. 1985).

In re Farrell 529 A.2d 404 (N.J. 1987).

In Re Hughes529 A.2d 404 (N.J. 1987).

In re Peter 529 A.2d 419 (N.J. 1987).

In re Quinlan, 355 A.2d 647 (N.J. 1976).

In re Spring 405 N.E.2d 115 (Mass. 1980).

Krischer v McIver697 So.2d 97 (Fla. 1997).

Lane v. Candura376 N.E.2d 1232 (Mass. App. Ct. 1978).

Lawrence v. Texas 539 US 558 (2003).

Lee v. Oregon 869 F. Supp. 1491, 1503 (D. Or. 1994).

McConnell v. Beverly Enterprises 553 A.2d 596 (Conn. 1989).

People v. Kevorkian639 N.W.2d 291 (Mich. App. 2001).

Roe v. Wade. 410 US 113 (1973).
324                   PHYSICIAN ASSISTED EUTHANASIA



Saikewicz v. Superintendent of Belchertown State Hospital. 370 N.E.2d 417
(Mass. 1977).

Sampson v. State, 31 P.3d 88 (Alaska 2001).

Vacco v. Quill 521 US 793 (1997).

Washington v. Glucksberg 521 US 702 (1997).

Washington v. Glucksberg 521 US 702, 735 (1997).

Washington v. Glucksberg, 521 US 702 (1997)
                         Physician Assisted Euthanasia

                                SNAPSHOT

Euthanasia also commonly known as “easy death” is an intentional
termination of life of terminally ill patients by physician assisted procedures
that have legal sanction. An intense debate is going on to evolve an ideal
legal coverage for such mercy killings or suicides in several countries. Death
with dignity law passes by Oregon which became effective in 1997 to
address these concerns has become a model law for other States. However
only a few states could attempt to make such laws in view of serious
apprehensions over its likely abuse by the kith and kin of the terminally ill
patients and potential liability claims against physicians who assist the
patients or the care taken in intentional termination of life.

The population of chronically ill and elderly people is growing all over the
world and the care that is offered by the dependents, society and state is
highly inadequate. It is in this context that many elders who have no control
over their life prefer to have a choice of death. Similarly terminally ill
patients irrespective of age with no hopes of saving life are recommended
for physician assisted mercy killing by dependents and caretakers of
patients. Policy makers will have to balance these interests with concern
over abuse of any legislation in this direction.

In the above back drop this book attempts to present some research insights
over the topic. It is hoped that this book will be found useful by civil
activists, medical practitioners and legal research scholars.

				
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