Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-14T23:17:04.328Z Has data issue: false hasContentIssue false

Guidelines for Physician-Assisted Suicide: Can the Challenge Be Met?

Published online by Cambridge University Press:  01 January 2021

Extract

The question of legalizing physician-assisted suicide (PAS) has become a serious public debate. Growing interest in assisted suicide reflects a public increasingly fearful of the process of dying, particularly the prospect of dying a painful, protracted, or undignified death. PAS has been proposed as a compassionate response to unrelievable suffering, designed to give terminally or incurably ill individuals direct control over the timing, manner, and circumstances of their death. Although the American Medical Association remains firmly opposed to legalizing PAS, many physicians have begun to express support for the practice, and some have acknowledged that they have helped patients commit suicide despite the existing legal ban.

As support for PAS grows, it becomes increasingly likely that the practice will be legalized in at least some states in the not-too-distant future. In 1994, Oregon voters approved a referendum legalizing PAS for competent, terminally ill patients; a federal court injunction preventing the referendum from going into effect is currently on appeal, and it is widely expected that the injunction will be lifted.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

“A.M.A. Keeps Its Policy Against Aiding Suicide,” New York Times, June 26, 1996, at C9.Google Scholar
Back, A.L.et al., “Physician-Assisted Suicide and Euthanasia in Washington State: Patient Requests and Physician Responses,” JAMA, 275 (1996): 919–25; Bachman, J.G.et al., “Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia,” N. Engl. J. Med, 334 (1996): 303–09; and Lee, M.A.et al., “Legalizing Assisted Suicide—Views of Physicians in Oregon,” N. Engl. J. Med., 334 (1996): 310–15.CrossRefGoogle Scholar
Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.000 et seq. (1995).Google Scholar
Even opponents of legalizing PAS have questioned the legal basis for the injunction. For example, Capron, A.M., “Constitutionalizing Death,” Hastings Center Report, 25, no. 6 (1995): 2324; and Coleman, C.H. Miller, T.E., “Stemming the Tide: Assisted Suicide and the Constitution,” Journal of Law, Medicine & Ethics, 23 (1995): 389–97.CrossRefGoogle Scholar
Callahan, D. White, M., “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village,” University of Richmond Law Review, 30 (1996): 183.Google Scholar
Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) (en banc); and Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996).Google Scholar
For example, Miller, F.G.et al., “Regulating Physician-Assisted Death,” N. Engl. J. Med., 331 (1994): At 119 (PAS should be treated as a “nonstandard medical practice reserved for extraordinary circumstances”); Quill, T.E. Cassel, C.K. Meier, D.E., “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): At 1381 (assisted suicide should be used “only after all other alternatives have been exhausted and failed”); and Brody, H., “Assisted Death—A Compassionate Response to a Medical Failure,” N. Engl. J. Med., 327 (1992): At 1385 (assisted suicide should only be performed for those “few patients” who “will face a bad death despite all medical efforts”).CrossRefGoogle Scholar
79 F.3d at 820.Google Scholar
Quill et al., supra note 7.Google Scholar
Miller, et al., supra note 7.Google Scholar
For example, Watts, D.T. Howell, T., “Assisted Suicide Is Not Euthanasia,” Journal of the American Geriatrics Society, 40 (1992): 1043.CrossRefGoogle Scholar
Miller, et al., supra note 7, at 120.Google Scholar
Or. Rev. Stat. §§ 127.00 et seq. (1995).Google Scholar
Baron, C.H.et al., “A Model Statute to Authorize and Regulate Physician-Assisted Suicide,” Harvard Journal on Legislation, 33 (1996): 134.Google Scholar
Dr.Kevorkian, Jack, for example, has proclaimed that his current activities are simply “the first concrete step in a long-range plan” to “develop a rational policy of planned death for the entire civilized world.” Betzold, M., “Kevorkian Asks Supreme Court to Affirm Right to Aid in Dying,” Dallas Morning News, Mar. 12, 1995, at 4A.Google Scholar
Emanuel, E.J. Daniels, E., “Oregon's Physician-Assisted Suicide Law,” Archives of Internal Medicine, 156 (1996): 825–29.Google Scholar
The New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994).Google Scholar
Id. at xv.Google Scholar
Id. at xiii.Google Scholar
Callahan, White, , supra note 5, at 2–3.Google Scholar
Id. (quoting Miller et al., supra note 7).Google Scholar
Annas, G.J., “The Promised End: Constitutional Aspects of Physician-Prescribed Suicide,” N. Engl. J. Med., 335 (1996): At 684 (“[T]he ability to objectively distinguish between good and bad suicides is critical.”).CrossRefGoogle Scholar
Id.; Coleman, Miller, , supra note 4; see also Law, S.A., “Physician-Assisted Death: An Essay on Constitutional Rights and Remedies,” Maryland Law Review, 55 (1996): 292342 (arguing that the practice can be limited, but acknowledging that, “[i]f there were no other, more precisely tailored, means of avoiding abuse,” the argument for an absolute prohibition “would have force”).Google Scholar
Bok, S., “The Leading Edge of the Wedge,” Hastings Center Report, 1, no. 3 (1971): 911.Google Scholar
Kamisar, Y., “Against Assisted Suicide—Even a Very Limited Form,” University of Detroit Mercy Law Review, 72 (1995): 735–69 (suggesting that “liberal” supporters of PAS “defended the Nazis' right to march to Skokie largely because they feared that denying them First Amendment protection might start us down a slippery slope”).Google Scholar
Sedler, R.A., “Are Absolute Bans on Assisted Suicide Constitutional? I Say No,” University of Detroit Mercy Law Review, 72 (1995): 725–33.Google Scholar
Sedler, R.A., “The Constitution and Hastening Inevitable Death,” Hastings Center Report, 23, no. 5 (1993): 2025 (“In no meaningful sense of the term can a choice to hasten one's own inevitable death by the use of physician-prescribed medications be labeled a ‘suicide.”’); see also Compassion in Dying, 79 F.3d at 824 (“[W]e are doubtful that deaths resulting from terminally ill patients taking medication prescribed by their doctors should be classified as ‘suicide.”’).CrossRefGoogle Scholar
Even if it does, it is worth noting that terminal illness is a far less objective concept than it initially appears. Callahan, White, , supra note 5, at 45 (“One searches the literature in vain for consistency regarding the meaning of terminal condition or terminal disease.”).Google Scholar
Baron, et al., supra note 14.Google Scholar
Smith, W.J., “Depressed? Don't Go See Dr. Kevorkian,” New York Times, Sept. 16, 1995, at 19 (noting that at least half of the individuals whom Dr. Kevorkian helped to die were not terminally ill).Google Scholar
Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).Google Scholar
Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990).Google Scholar
Annas, , supra note 22, at 686 (Cruzan stands for the proposition “that an adult need not be terminally ill to refuse treatment”).Google Scholar
Quill, 80 F.3d at 729; Kamisar, Y., “The Reasons So Many People Support Physician-Assisted Suicide—And Why These Reasons Are Not Convincing,” Issues in Law & Medicine, 12 (1996): At 130 (“If the Second Circuit's equal protection analysis is sound, how can we prevent persons suffering serious but not terminal illnesses from enlisting the aid of another to die by suicide when patients with the same non-terminal illnesses who are on life support systems may hasten their deaths by directing the removal of such systems?”) (emphasis in original).Google Scholar
Quill, et al., supra note 7, at 1381.Google Scholar
Miller, et al., supra note 7, at 120.Google Scholar
New York State Task Force on Life and the Law, supra note 17, at 132.Google Scholar
Baron, et al., supra note 14, at 11.Google Scholar
Id. at 10.Google Scholar
As Erich Lowey has argued, “Killing others who are terminally ill at their own request when they are incapacitated and unable to implement their own wishes is a form of assisted suicide in circumstances where nonassisted suicide is no longer possible.” Lowey, E.H., “Healing and Killing, Harming and Not Harming: Physician Participation in Euthanasia and Capital Punishment,” Journal of Clinical Ethics, 3 (1992): 2934.Google Scholar
Shavelson, L., A Chosen Death: The Dying Confront Assisted Suicide (New York: Simon & Schuster, 1995).Google Scholar
In re Quinlan, 70 N.J. 10 (1976).Google Scholar
Most laws authorizing surrogate decision making for incapacitated patients limit the scope of the decision maker's authority, some quite extensively. See generally, Choice in Dying, , Right-to-Die Law Digest, Dec. (1995): Passim.Google Scholar
Compassion in Dying, 79 F.3d at 832 n.120.Google Scholar
Eisenberg, L., “Treating Depression and Anxiety in Primary Care: Closing the Gap Between Knowledge and Practice,” N. Engl. J. Med., 326 (1992): 1080-84 (“The evidence is clear that the diagnostic skills of many generalists are inadequate to the task.”).CrossRefGoogle Scholar
Massie, M.J. Holland, J.C., “The Cancer Patient with Pain: Psychiatric Complications and Their Management,” Journal of Pain and Symptom Management, 7 (1992): 99109.CrossRefGoogle Scholar
Baron, et al., supra note 14, at 18.Google Scholar
Emanuel, Daniels, , supra note 16, at 828.Google Scholar
In a recent survey of Oregon physicians, one-third stated that they were “not confident they could recognize depression in a patient asking for a lethal dose of medication.” Lee, et al., supra note 2, at 313.Google Scholar
Callahan, White, , supra note 5, at 37.Google Scholar
Rhymes, J., “Hospice Care in America,” JAMA, 264 (1990): 369–72.CrossRefGoogle Scholar
Annas, G.J., “The ‘Right to Die’ in America: Sloganeering from Quinlan and Cruzan to Quill and Kevorkian,” Duquesne Law Review, 34 (1996): At 877.Google Scholar
Christakis, N.A. Escarce, J.J., “Survival of Medicare Patients After Enrollment in Hospice Programs,” N. Engl. J. Med., 335 (1996): 172–78 (concluding that most Medicare patients who enter hospice do so late in the course of their illnesses, even though they are eligible for admission much earlier).CrossRefGoogle Scholar
New York State Task Force on Life and the Law, supra note 17, at xi.Google Scholar
Annas, , supra note 52, at 877.Google Scholar
Tribe, L.H., American Constitutional Law (New York: Foundation Press, 2nd ed., 1988): § 11–5, at 781 (“Independently unconstitutional conditions—those that make enjoyment of a benefit contingent on sacrifice of an independent constitutional right—are invalid.”).Google Scholar
Compassion in Dying, 79 F.3d at 825–26.Google Scholar
Callahan, White, , supra note 5, at 7 (“While strong-willed sick and suffering people may be able to resist patent and gross coercion, they may have far more difficulty contending with well-meaning manipulation and gentle, discreet suggestion.”).Google Scholar
Wolf, S.M., “Gender, Feminism, and Death: Physician-Assisted Suicide and Euthanasia,” in Wolf, S.M., ed., Feminism and Bioethics: Beyond Reproduction (New York: Oxford University Press, 1996): At 291 (“The history and persistence of family patterns in this country in which women are expected to adopt self-sacrificing behavior for the sake of the family may pave the way too for the patient's request for death.”); and Gutmann, S., “Death and the Maiden,” New Republic, June 24, 1996, 2023 (asking whether “a certain type of woman—depressive, self-effacing, near the end of a life largely spent serving others—is particularly vulnerable to the ‘rational,’ ‘heroic’ solution” of assisted suicide).Google Scholar
Miller, P.S., “The Impact of Assisted Suicide on Persons with Disabilities—Is It a Right Without Freedom?,” Issues in Law & Medicine, 9 (1993): At 61 (“Because persons with disabilities are subject to prejudice that devalues their very right to exist, their decisions to commit suicide are not necessarily informed or voluntary.”)Google Scholar
Velleman, J.D., “Against the Right to Die,” Journal of Medicine & Philosophy, 17 (1992): 665–81 (“The most important way in which the option of euthanasia may harm patients, I think, is that it will deny them the possibility of staying alive by default.”).CrossRefGoogle Scholar
New York State Task Force on Life and the Law, supra note 17, at 122 (“[P]atients generally do what their doctors recommend.”).Google Scholar
Farber, N.J.et al., “Cardiopulmonary Resuscitation (CPR): Patient Factors and Decision Making,” Archives of Internal Medicine, 144 (1984): 2229-32; Wachter, R. M.et al.,“Decisions About Resuscitation: Inequities Among Patients with Different Diseases but Similar Prognoses,” Annals of Internal Medicine, 111 (1989): 525–32; and American Medical Association, Council on Ethical and Judicial Affairs, “Black-White Disparities in Health Care,” JAMA, 263 (1990): 2344–46.CrossRefGoogle Scholar
Gag rules have frequently been criticized in other contexts as inconsistent with the physician's obligation to be complete and truthful. For example, Annas, G.J., “Restricting Doctor-Patient Conversations in Federally Funded Clinics,” N. Engl. J. Med., 325 (1991): 362–64 (“In the doctor-patient context, a half-truth is the same as a lie, and it violates both medical ethics and the doctrine of informed consent.”).CrossRefGoogle Scholar
Quill, et al., supra note 7, at 1382.Google Scholar
Emanuel, Daniels, , supra note 16, at 827 (“[A]s written, the Act could permit Jack Kevorkian or the Hemlock Society to establish physician-assisted suicide ‘mills’ with just two physicians serving terminally ill patients from all over the United States.”).Google Scholar
Gianelli, D.M., “Study: Patients in Pain Don't Want Assisted Suicide,” American Medical News, July 29, 1996, at 6–7 (noting that Humphry, Derek, author of the suicide manual Final Exit, “had doubts about whether a mental health [consultation] requirement could pass constitutional muster”).Google Scholar