6. EUTHANASIA

 

From Applied Ethics: A Sourcebook

 

James Fieser

 

10/3/2010

 

Contents

1. Classic Philosophers on the Right to Die — Augustine, Aquinas, More, Hume, Kant

2. Supreme Court on the Right to DieCruzan v. Director Missouri Health; Vacco v. Quill; Washington v. Glucksberg

3. The Determination of DeathThe President’s Council on Bioethics

4. Hospice and the Crises at the End of Life Ira R. Byock

5. Physician Assisted Death in Oregon: A Success Kathryn Tucker

6. Decriminalizing Euthanasia in the Netherlands: A Failure Wesley Smith

 

 

#1

CLASSIC PHILOSOPHERS ON SUICIDE

Augustine, Aquinas, More, Hume, Kant

 

Many classic philosophers examined the morality of suicide in a range of situations including prolonged illness, decrepitude through old age, the prospect of torture, and the desire to hasten entry into the afterlife. The views of five great philosophers are included here. In The City of God, Augustine (354-430) opposes suicide on the grounds that it violates the commandment “thou shalt not kill.” It is not justified because of personal suffering, fear of possible punishment, or even on more lofty grounds such as high-mindedness. For Augustine, the more high-minded person is the one who faces life's ills, rather than escapes them. In Summa Theologica, Thomas Aquinas (1225-1274) gives three arguments against the permissibility of suicide. First, suicide is wrong since it is contrary to the natural life asserting purpose of humans; second, it is not justified because of the greater social harm that is done; and, third, it is wrong since it is like stealing from God since our lives are God’s property and we are merely the trustees of that property. English statesman Thomas More (1478–1535) describes in his book Utopia (1516) an imaginary country which has unusual and sometimes radical social practices. One of these is policy of recommending suicide to people suffering from incurable diseases.

            Scottish philosopher David Hume (1711-1776) offers a defense of suicide which proved so controversial that he withheld publication of it during his life. Hume approaches the issue from the standpoint of a traditional three-part division of duties: if suicide is immoral, then it must violate some duty to God, or to oneself, or to others. He goes through each of the three possibilities and concludes that we have no such duty. Concerning whether suicide violates one’s duty to God, Hume argues that God established his providence (or divine rule) of the world through two laws: the law of matter and motion regulates physical stuff, and the law of animal mind which regulates the purposeful action of the animal world. Our normal human activity involves imposing our own mental purposes on the physical world, such as when we decide to alter the flow of a river for irrigation. And this is perfectly in accord with God’s providence. Suicide, according to Hume, is just another instance of altering the physical world (our bodies, specifically) for our own purpose. He writes, “It would be no crime in me to divert the Nile or Danube from its course, were I able to effect such purposes. Where then is the crime of turning a few ounces of blood from their natural channel?” If determining the time of death is entirely up to God, then it would also be wrong to lengthen our lives, such as through medicine. Concerning whether suicide violates our duty to others, Hume argues that I am not obliged to do a small good for society at the expense of a great harm to myself. Further, if my continued existence is a burden on society, then suicide is not only permissible, but commendable. Finally, concerning whether suicide violates a duty to oneself, Hume argues that many suicides have been done for good personal reasons since it requires such a strong motivation to overcome our natural fear of death.

            German philosopher Immanuel Kant (1724-1824) considers two common justifications of suicide, and rejects them both. First, some may argue that suicide is permissible as a matter of freedom, so long as it does not violate the rights of others. In response Kant says self-preservation is our highest duty to ourselves and we may treat our body as we please, so long as our actions arise from motives of self-preservation. Second, some have argued that suicide is sometimes virtuous. For example, in Roman history, Cato was a symbol of resistance against Caesar, found he could no longer resist Caesar; to continue living a compromised life would disillusion advocates of freedom. However, Kant argues, this is the only example of this sort and thus cannot be used as a general rule in defense of suicide. Kant's principal argument against suicide is that people are entrusted with their lives, which have a uniquely inherent value. By killing oneself, a person dispenses with his humanity and makes himself into a thing to be treated like a beast.

 

AUGUSTINE: AGAINST SUICIDE

 

Suicide contrary to the command “Thou Shalt not Kill”

It is significant that in no passage of the holy canonical books there can be found either divine precept or permission to take away our own life, whether for the sake of entering on the enjoyment of immortality, or of shunning, or ridding ourselves of anything whatever. No, the law, rightly interpreted, even prohibits suicide, where it says, “Thou shalt not kill.” This is proved especially by the omission of the words “thy neighbor,” which are inserted when false witness is forbidden: “Thou shalt not bear false witness against thy neighbor.” Nor yet should anyone on this account suppose he has not broken this commandment if he has borne false witness only against himself. For the love of our neighbor is regulated by the love of ourselves, as it is written, “Thou shalt love thy neighbor as thyself.” If, then, he who makes false statements about himself is not less guilty of bearing false witness than if he had made them to the injury of his neighbor; although in the commandment prohibiting false witness only his neighbor is mentioned, and persons taking no pains to understand it might suppose that a man was allowed to be a false witness to his own hurt; how much greater reason have we to understand that a man may not kill himself, since in the commandment, “Thou shalt not kill,” there is no limitation added nor any exception made in favor of anyone, and least of all in favor of him on whom the command is laid! . . .

 

Suicide not Justified by High-Mindedness

But they who have laid violent hands on themselves are perhaps to be admired for their greatness of mind, though they cannot be applauded for the soundness of their judgment. However, if you look at the matter more closely, you will scarcely call it greatness of mind, which prompts a man to kill himself rather than bear up against some hardships of fortune, or sins in which he is not implicated. Is it not rather proof of a feeble mind, to be unable to bear either the pains of bodily servitude or the foolish opinion of the vulgar? And is not that to be pronounced the greater mind, which rather faces than flees the ills of life, and which, in comparison of the light and purity of conscience, holds in small esteem the judgment of men, and specially of the vulgar, which is frequently involved in a mist of error? And, therefore, if suicide is to be esteemed a high-minded act, none can take higher rank for high-mindedness than that Cleombrotus, who (as the story goes), when he had read Plato’s book in which he treats of the immortality of the soul, threw himself from a wall, and so passed from this life to that which he believed to be better. For he was not hard pressed by calamity, nor by any accusation, false or true, which he could not very well have lived down, There was, in short, no motive but only high-mindedness urging him to seek death, and break away from the sweet detention of this life. And yet that this was a high-minded rather than a justifiable action, Plato himself, whom he had read, would have told him; for he would certainly have been forward to commit, or at least to recommend suicide, had not the same bright intellect which saw that the soul was immortal, judged also that to seek immortality by suicide was to be prohibited rather than encouraged.

            Again, it is said many have killed themselves to prevent an enemy doing so. But we are not inquiring whether it has been done, but whether it ought to have been done. Sound judgment is to be preferred even to examples, and indeed examples harmonize with the voice of reason; but not all examples, but those only which are distinguished by their piety, and are proportionately worthy of imitation. For suicide we cannot cite the example of patriarchs, prophets, or apostles; though our Lord Jesus Christ, when He admonished them to flee from city to city if they were persecuted, might very well have taken that occasion to advise them to lay violent hands on themselves, and so escape their persecutors. But He did not do this. Nor proposed this mode of departing this life, though He were addressing His own friends for whom He had promised to prepare everlasting mansions. It is obvious that such examples as are produced from the “nations that forget God,” give no warrant of imitation to the worshippers of the one true God.

 

AQUINAS: AGAINST SUICIDE

 

Three Arguments against Suicide

It is altogether unlawful to kill oneself, for three reasons. First, because everything naturally loves itself, the result being that everything naturally keeps itself in being, and resists corruptions so far as it can. For this reason, suicide is contrary to the inclination of nature, and to charity whereby every man should love himself. Hence suicide is always a mortal sin, as being contrary to the natural law and to charity. Secondly, because every part, as such, belongs to the whole. Now every man is part of the community, and so, as such, he belongs to the community. Hence by killing himself he injures the community, as the Philosopher [Aristotle] declares (Ethic. v, 11). Thirdly, because life is God’s gift to man, and is subject to His power, Who kills and makes to live. Hence whoever takes his own life, sins against God, even as he who kills another’s slave, sins against that slave’s master, and as he who usurps to himself judgment of a matter not entrusted to him. For it belongs to God alone to pronounce sentence of death and life, according to Dt. 32:39, “I will kill and I will make to live.” . . .

 

Against Common Reasons for Suicide

Man is made master of himself through his free-will. For this reason he can lawfully dispose of himself as to those matters which pertain to this life which is ruled by man’s free-will. But the passage from this life to another and happier one is subject not to man’s free-will but to the power of God. Hence it is not lawful for man to take his own life that he may pass to a happier life, nor that he may escape any unhappiness whatsoever of the present life, because the ultimate and most fearsome evil of this life is death, as the Philosopher [Aristotle] states (Ethic. iii, 6). Therefore to bring death upon oneself in order to escape the other afflictions of this life, is to adopt a greater evil in order to avoid a lesser.

            In like manner it is unlawful to take one’s own life on account of one’s having committed a sin, both because by so doing one does oneself a very great injury, by depriving oneself of the time needful for repentance, and because it is not lawful to slay an evildoer except by the sentence of the public authority. Again it is unlawful for a woman to kill herself to avoid being violated, because she ought not to commit on herself the very great sin of suicide, to avoid the lesser sin of another. For she commits no sin in being violated by force, provided she does not consent, since “without consent of the mind there is no stain on the body,” as the Blessed Lucy declared. Now it is evident that fornication and adultery are less grievous sins than taking a man’s, especially one’s own, life: since the latter is most grievous, because one injures oneself, to whom one owes the greatest love. Moreover it is most dangerous since no time is left wherein to expiate it by repentance. Again it is not lawful for anyone to take his own life for fear he should consent to sin, because “evil must not be done that good may come” (Rm. 3:8) or that evil may be avoided especially if the evil be of small account and an uncertain event, for it is uncertain whether one will at some future time consent to a sin, since God is able to deliver man from sin under any temptation whatever.

 

MORE: SUICIDE AND INCURABLE DISEASES

I have already related to you with what care they look after their sick, so that nothing is left undone which may contribute either to their health or ease. As for those who are afflicted with incurable disorders, they use all possible means of cherishing them, and making their lives as comfortable as possible. They visit them often, and take great pains to make their time pass easily. But if any have torturing, lingering pain, without hope of recovery or ease, the priests and magistrates visit and encourage them [to voluntarily end their lives]. They are unable to proceed with the business of life, have become a burden to themselves and all around them, and have in reality outlived themselves. Thus, they should no longer cling to a deep-rooted disease, but choose instead to die since they would only live in great misery. Being persuaded, if they thus relieve themselves from torture, or allow others to do it, they shall be happy after death. Since they forfeit none of the pleasures, but only the troubles of life by this, they think they not only act reasonably, but consistently with religion. For they follow the advice of their priests, the expounders of God’s will.

            Those who are influenced by these reasons either starve themselves or take laudanum. But no one is compelled to end his life in this way, and if they cannot be persuaded to it, the former care and attendance on them is continued. Though they respect a voluntary death when chosen on such authority to be very honorable, on the contrary, if anyone commits suicide without the concurrence of the priests and senate, they do not honor the body with a decent funeral, but throw it into a ditch.

 

HUME: IN DEFENSE OF SUICIDE

 

Suicide and Duties to God

One considerable advantage that arises from Philosophy, consists in the sovereign antidote which it affords to superstition and false religion. All other remedies against that pestilent distemper are vain, or at least uncertain. . . . Let us here endeavor to restore men to their native liberty by examining all the common arguments against Suicide, and showing that that action may be free from every imputation of guilt or blame, according to the sentiments of all the ancient philosophers.

            If Suicide be criminal, it must be a transgression of our duty either to God, our neighbor, or ourselves.—To prove that suicide is no transgression of our duty to God, the following considerations may perhaps suffice.

            In order to govern the material world, the almighty Creator has established general and immutable laws by which all bodies, from the greatest planet to the smallest particle of matter, are maintained in their proper sphere and function. To govern the animal world, he has endowed all living creatures with bodily and mental powers; with senses, passions, appetites, memory and judgment, by which they are impelled or regulated in that course of life to which they are destined. These two distinct principles of the material and animal world, continually encroach upon each other, and mutually retard or forward each others operations. . . .

            The providence of the Deity appears not immediately in any operation, but governs everything by those general and immutable laws, which have been established from the beginning of time. All events, in one sense, may be pronounced the action of the Almighty; they all proceed from those powers with which he has endowed his creatures. A house which falls by its own weight is not brought to ruin by his providence more than one destroyed by the hands of men; nor are the human faculties less his workmanship, than the laws of motion and gravitation. When the passions play, when the judgment dictates, when the limbs obey; this is all the operation of God, and upon these animate principles, as well as upon the inanimate, has he established the government of the universe. Every event is alike important in the eyes of that infinite being, who takes in at one glance the most distant regions of space and remotest periods of time.

            There is no event, however important to us, which he has exempted from the general laws that govern the universe, or which he has peculiarly reserved for his own immediate action and operation. The revolution of states and empires depends upon the smallest caprice or passion of single men; and the lives of men are shortened or extended by the smallest accident of air or diet, sunshine or tempest. Nature still continues her progress and operation; and if general laws be ever broke by particular volitions of the Deity, it is after a manner which entirely escapes human observation. As, on the one hand, the elements and other inanimate parts of the creation carry on their action without regard to the particular interest and situation of men; so men are entrusted to their own judgment and discretion, in the various shocks of matter, and may employ every faculty with which they are endowed, in order to provide for their ease, happiness, or preservation.

            What is the meaning then of that principle, that a man who, tired of life, and hunted by pain and misery, bravely overcomes all the natural terrors of death and makes his escape from this cruel scene; that such a man, I say, has incurred the indignation of his Creator by encroaching on the office of divine providence, and disturbing the order of the universe? shall we assert that the Almighty has reserved to himself in any peculiar manner the disposal of the lives of men, and has not submitted that event, in common with others, to the general laws by which the universe is governed? This is plainly false; the lives of men depend upon the same laws as the lives of all other animals; and these are subjected to the general laws of matter and motion. The fall of a tower, or the infusion of a poison, will destroy a man equally with the meanest creature; an inundation sweeps away everything without distinction that comes within the reach of its fury. Since therefore the lives of men are forever dependant on the general laws of matter and motion, is a man's disposing of his life criminal, because in every case it is criminal to encroach upon these laws, or disturb their operation? But this seems absurd; all animals are entrusted to their own prudence and skill for their conduct in the world, and have full authority, as far as their power extends, to alter all the operations of nature. Without the exercise of this authority they could not subsist a moment; every action, every motion of a man, innovates on the order of some parts of matter, and diverts from their ordinary course the general laws of motion.

            Putting together, therefore, these conclusions, we find that human life depends upon the general laws of matter and motion, and that it is no encroachment on the office of providence to disturb or alter these general laws: Has not everyone, of consequence, the free disposal - of his own life? And may he not lawfully employ that power with which nature has endowed him? In order to destroy the evidence of this conclusion, we must show a reason, why this particular case is excepted; is it because human life is of so great importance, that it is a presumption for human prudence to dispose of it? But the life of a man is of no greater importance to the universe than that of an oyster. And were it of ever so great importance, the order of nature has actually submitted it to human prudence, and reduced us to a necessity in every incident of determining concerning it. Were the disposal of human life so much reserved as the peculiar province of the Almighty that it were an encroachment on his right, for men to dispose of their own lives; it would be equally criminal to act for the preservation of life as for its destruction. If I turn aside a stone which is falling upon my head, I disturb the course of nature, and I invade the peculiar province of the Almighty by lengthening out my life beyond the period which by the general laws of matter and motion he had assigned it.

            A hair, a fly, an insect is able to destroy this mighty being whose life is of such importance. Is it an absurdity to suppose that human prudence may lawfully dispose of what depends on such insignificant causes? It would be no crime in me to divert the Nile or Danube from its course, were I able to effect such purposes. Where then is the crime of turning a few ounces of blood from their natural channel? . . . When I fall upon my own sword, therefore, I receive my death equally from the hands of the Deity as if it had proceeded from a lion, a precipice, or a fever. The submission which you require to providence, in every calamity that befalls me, excludes not human skill and industry, if possibly by their means I can avoid or escape the calamity: And why may I not employ one remedy as well as another? . . . It is impious, says the old Roman superstition, to divert rivers from their course, or invade the prerogatives of nature. It is impious, says the French superstition, to inoculate for the small-pox, or usurp the business of providence, by voluntarily producing distempers and maladies. It is impious, says the modern European superstition, to put a period to our own life, and thereby rebel against our creator; and why not impious, say I, to build houses, cultivate the ground, or sail upon the ocean? In all these actions we employ our powers of mind and body, to produce some innovation in the course of nature; and in none of them do we any more. They are all of them therefore equally innocent, or equally criminal. . . .

            It is a kind of blasphemy to imagine that any created being can disturb the order of the world or invade the business of providence! It supposes, that that Being possesses powers and faculties, which it received not from its creator, and which are not subordinate to his government and authority. A man may disturb society no doubt, and thereby incur the displeasure of the Almighty: But the government of the world is placed far beyond his reach and violence. And how does it appear that the Almighty is displeased with those actions that disturb society? By the principles which he has implanted in human nature, and which inspire us with a sentiment of remorse if we ourselves have been guilty of such actions, and with that of blame and disapprobation, if we ever observe them in others.—Let us now examine, according to the method proposed, whether Suicide be of this kind of actions, and be a breach of our duty to our neighbor and to society.

 

Suicide and Duties to Others

A man, who retires from life, does no harm to society: He only ceases to do good; which, if it is an injury, is of the lowest kind.—All our obligations to do good to society seem to imply something reciprocal. I receive the benefits of society and therefore ought to promote its interests, but when I withdraw myself altogether from society, can I be bound any longer? But, allowing that our obligations to do good were perpetual, they have certainly some bounds; I am not obliged to do a small good to society at the expense of a great harm to myself; why then should I prolong a miserable existence, because of some frivolous advantage which the public may perhaps receive from me? If upon account of age and infirmities I may lawfully resign any office, and employ my time altogether in fencing against these calamities, and alleviating as much as possible the miseries of my future life: Why may I not cut short these miseries at once by an action which is no more prejudicial to society?—But suppose that it is no longer in my power to promote the interest of society; suppose that I am a burthen to it; suppose that my life hinders some person from being much more useful to society. In such cases my resignation of life must not only be innocent but laudable. And most people who lie under any temptation to abandon existence, are in some such situation; those, who have health, or power, or authority, have commonly better reason to be in humor with the world.

            A man is engaged in a conspiracy for the public interest; is seized upon suspicion; is threatened with the rack; and knows from his own weakness that the secret will be extorted from him: Could such a one consult the public interest better than by putting a quick period to a miserable life? This was the case of the famous and brave Strozi of Florence. —Again, suppose a malefactor is justly condemned to a shameful death; can any reason be imagined, why he may not anticipate his punishment, and save himself all the anguish of thinking on its dreadful approaches? He invades the business of providence no more than the magistrate did, who ordered his execution; and his voluntary death is equally advantageous to society by ridding it of a pernicious member.

 

Suicide and Duties to Oneself

That suicide may often be consistent with interest and with our duty to ourselves, no one can question, who allows that age, sickness, or misfortune may render life a burden, and make it worse even than annihilation. I believe that no man ever threw away life, while it was worth keeping. For such is our natural horror of death, that small motives will never be able to reconcile us to it; and though perhaps the situation of a man's health or fortune did not seem to require this remedy, we may at least be assured, that anyone who, without apparent reason, has had recourse to it, was cursed with such an incurable depravity or gloominess of temper as must poison all enjoyment, and render him equally miserable as if he had been loaded with the most grievous misfortunes. — If suicide be supposed a crime, it is only cowardice can impel us to it. If it be no crime, both prudence and courage should engage us to rid ourselves at once of existence, when it becomes a burden. It is the only way that we can then be useful to society, by setting an example, which, if imitated, would preserve to everyone his chance for happiness in life and would effectually free him from all danger or misery.

 

KANT: AGAINST SUICIDE

 

Against Common Arguments for Suicide

Suicide can be regarded in various lights; it might be held to be reprehensible, or permissible, or even heroic. In the first place we have the specious view that suicide can be allowed and tolerated. Its advocates argue thus. So long as he does not violate the proprietary rights of others, man is a free agent. With regard to his body there are various things he can properly do; he can have a boil lanced or a limb amputated, and disregard a scar; he is, in fact, free to do whatever he may consider useful and advisable. If then he comes to the conclusion that the most useful and advisable thing that he can do is to put an end to his life, why should he not be entitled to do so? Why not, if he sees that he can no longer go on living and that he will be ridding himself of misfortune, torment and disgrace? To be sure he robs himself of a full life, but he escapes once and for all from calamity and misfortune. The argument sounds most plausible. But let us, leaving aside religious considerations, examine the act itself. We may treat our body as we please, provided our motives are those of self-preservation. If, for instance, his foot is a hindrance to life, a man might have it amputated. To preserve his person he has the right of disposal over his body. But in taking his life he does not preserve his person; he disposes of his person and not of its attendant circumstances; he robs himself of his person. This is contrary to the highest duty we have towards ourselves, for it annuls the condition of all other duties; it goes beyond the limits of the use of free will, for this use is possible only through the existence of the Subject.

            There is another set of considerations that make suicide seem plausible. A man might find himself so placed that he can continue living only under circumstances which deprive life of all value; in which he can no longer live conformably to virtue and prudence, so that he must from noble motives put an end to his life. The advocates of this view quote in support of it the example of Cato. Cato knew that the entire Roman nation relied upon him in their resistance to Caesar, but he found that he could not prevent himself from falling into Caesar’s hands. What was he to do? If he, the champion of freedom, submitted, everyone would say, “If Cato himself submits, what else can we do?” If, on the other hand, he killed himself, his death might spur on the Romans to fight to the bitter end in defense of their freedom. So he killed himself. He thought that it was necessary for him to die. He thought that if he could not go on living as Cato, he could not go on living at all. It must certainly be admitted that in a case such as this, where suicide is a virtue, appearances are in its favor. But this is the only example that has given the world the opportunity of defending suicide. It is the only example of its kind and there has been no similar case since. Lucretia also killed herself, but on grounds of modesty and in a fury of vengeance. It is obviously our duty to preserve our honor, particularly in relation to the opposite sex, for whom it is a merit; but we must endeavor to save our honor only to this extent, that we ought not to surrender it for selfish and lustful purposes. To do what Lucretia did is to adopt a remedy which is not at our disposal; it would have been better had she defended her honor unto death; that would not have been suicide and would have been right; for it is no suicide to risk one’s life against one’s enemies, and even to sacrifice it, in order to observe one’s duties towards oneself.

 

Suicide Compared to Death through War and Intemperance

No one under the sun can bind me to commit suicide; no sovereign can do so. The sovereign can call upon his subjects to fight to the death for their country, and those who fall on the field of battle are not suicides, but the victims of fate. Not only is this not suicide; but the opposite, a faint heart and fear of the death which threatens by the necessity of fate, is no true self-preservation; for he who runs away to save his own life, and leaves his comrades in the lurch, is a coward; but he who defends himself and his fellows even unto death is no suicide, but noble and high-minded; for life is not to be highly regarded for its own sake. I should endeavor to preserve my own life only so far as I am worthy to live. We must draw a distinction between the suicide and the victim of fate. A man who shortens his life by intemperance is guilty of imprudence and indirectly of his own death; but his guilt is not direct; he did not intend to kill himself; his death was not premeditated. For all our offences are either culpa or dolus. There is certainly no dolus here, but there is culpa; and we can say of such a man that he was guilty of his own death, but we cannot say of him that he is a suicide. What constitutes suicide is the intention to destroy oneself. Intemperance and excess, which shorten life, ought not, therefore, to be called suicide; for if we raise intemperance to the level of suicide, we lower suicide to the level of intemperance. Imprudence, which does not imply a desire to cease to live, must, therefore, be distinguished from the intention to murder oneself. Serious violations of our duty towards ourselves produce an aversion accompanied either by horror or by disgust; suicide is of the horrible kind, crimina carnis of the disgusting. We shrink in horror from suicide because all nature seeks its own preservation; an injured tree, a living body, an animal does so; how then could man make of his freedom, which is the acme of life and constitutes its worth, a principle for his own destruction? Nothing more terrible can be imagined; for if man were on every occasion master of his own life, he would be master of the lives of others; and being ready to sacrifice his life at any and every time rather than be captured, he could perpetrate every conceivable crime and vice. We are, therefore, horrified at the very thought of suicide; by it man sinks lower than the beasts; we look upon a suicide as carrion, whilst our sympathy goes forth to the victim of fate.

 

Suicide Against the Inherent value of Humanity

Those who advocate suicide seek to give the widest interpretation to freedom. There is something flattering in the thought that we can take our own life if we are so minded; and so we find even right-thinking persons defending suicide in this respect. There are many circumstances under which life ought to be sacrificed. If I cannot preserve my life except by violating my duties towards myself, I am bound to sacrifice my life rather than violate these duties. But suicide is in no circumstances permissible. Humanity in one’s own person is something inviolable; it is a holy trust; man is master of all else, but he must not lay hands upon himself. A being who existed of his own necessity could not possibly destroy himself; a being whose existence is not necessary must regard life as the condition of everything else, and in the consciousness that life is a trust reposed in him, such a being recoils at the thought of committing a breach of his holy trust by turning his life against himself. Man can only dispose over things; beasts are things in this sense; but man is not a thing, not a beast. If he disposes over himself he treats his value as that of a beast. He who so behaves, who has no respect for human nature and makes a thing of himself, becomes for everyone an Object of freewill. We are free to treat him as a beast, as a thing, and to use him for our sport as we do a horse or a dog, for he is no longer a human being; he has made a thing of himself, and, having himself discarded his humanity, he cannot expect that others should respect humanity in him. Yet humanity is worthy of esteem. Even when a man is a bad man, humanity in his person is worthy of esteem. Suicide is not abominable and inadmissible because life should be highly prized; were it so, we could each have our own opinion of how highly we should prize it, and the rule of prudence would often indicate suicide as the best means. But the rule of morality does not admit of it under any condition because it degrades human nature below the level of animal nature and so destroys it. Yet there is much in the world far more important than life. To observe morality is far more important. It is better to sacrifice one’s life than one’s morality. To live is not a necessity; but to live honorably while life lasts is a necessity. We can at all times go on living and doing our duty towards ourselves without having to do violence to ourselves. But he who is prepared to take his own life is no longer worthy to live at all. The pragmatic ground of impulse to live is happiness. Can I then take my own life because I cannot live happily? No! It is not necessary that whilst I live I should live happily; but it is necessary that so long as I live I should live honorably. Misery gives no right to any man to take his own life, for then we should all be entitled to take our lives for lack of pleasure. All our duties towards ourselves would then be directed towards pleasure; but the fulfillment of those duties may demand that we should even sacrifice our life.

 

Suicide not Heroic

Is suicide heroic or cowardly? Sophistication, even though well meant, is not a good thing. It is not good to defend either virtue or vice by splitting hairs. Even right-thinking people declaim against suicide on wrong lines. They say that it is arrant cowardice. But instances of suicide of great heroism exist. We cannot, for example, regard the suicides of Cato and of Atticus as cowardly. Rage, passion and insanity are the most frequent causes of suicide, and that is why persons who attempt suicide and are saved from it are so terrified at their own act that they do not dare to repeat the attempt. There was a time in Roman and in Greek history when suicide was regarded as honorable, so much so that the Romans forbade their slaves to commit suicide because they did not belong to themselves but to their masters and so were regarded as things, like all other animals. The Stoics said that suicide is the sage’s peaceful death; he leaves the world as he might leave a smoky room for another, because it no longer pleases him; he leaves the world, not because he is no longer happy in it, but because he disdains it. It has already been mentioned that man is greatly flattered by the idea that he is free to remove himself from this world, if he so wishes. He may not make use of this freedom, but the thought of possessing it pleases him. It seems even to have a moral aspect, for if man is capable of removing himself from the world at his own will, he need not submit to anyone; he can retain his independence and tell the rudest truths to the cruelest of tyrants. Torture cannot bring him to heel, because he can leave the world at a moment’s notice as a free man can leave the country, if and when he wills it.

            But this semblance of morality vanishes as soon as we see that man’s freedom cannot subsist except on a condition that is immutable. This condition is that man may not use his freedom against himself to his own destruction, but that, on the contrary, he should allow nothing external to limit it. Freedom thus conditioned is noble. No chance or misfortune ought to make us afraid to live; we ought to go on living as long as we can do so as human beings and honorably. To bewail one’s fate and misfortune is in itself dishonorable. Had Cato faced any torments which Caesar might have inflicted upon him with a resolute mind and remained steadfast, it would have been noble of him; to violate himself was not so. Those who advocate suicide and teach that there is authority for it necessarily do much harm in a republic of free men. Let us imagine a state in which men held as a general opinion that they were entitled to commit suicide, and that there was even merit and honor in so doing. How dreadful everyone would find them. For he who does not respect his life even in principle cannot be restrained from the most dreadful vices; he regards neither king nor torments.

 

Suicide against Religion

But as soon as we examine suicide from the standpoint of religion we immediately see it in its true light. We have been placed in this world under certain conditions and for specific purposes. But a suicide opposes the purpose of his Creator; he arrives in the other world as one who has deserted his post; he must be looked upon as a rebel against God. So long as we remember the truth that it is God’s intention to preserve life, we are bound to regulate our activities in conformity with it. We have no right to offer violence to our nature’s powers of self-preservation and to upset the wisdom of her arrangements. This duty is upon us until the time comes when God expressly commands us to leave this life. Human beings are sentinels on earth and may not leave their posts until relieved by another beneficent hand. God is our owner; we are His property; His providence works for our good. A bondman in the care of a beneficent master deserves punishment if he opposes his master’s wishes.

            But suicide is not inadmissible and abominable because God has forbidden it; God has forbidden it because it is abominable in that it degrades man’s inner worth below that of the animal creation. Moral philosophers must, therefore, first and foremost show that suicide is abominable. We find, as a rule, that those who labor for their happiness are more liable to suicide; having tasted the refinements of pleasure, and being deprived of them, they give way to grief, sorrow, and melancholy.

 

Source: Augustine, The City of God, tr. Marcus Dods, Book 1, ch. 20, 22. Thomas Aquinas, Summa Theologica, tr. Laurence Shapcote, 2a-2ae, Q. 65, Article 5. Thomas More, Utopia (1518), tr. Arthur Cayley. David Hume, “Of Suicide,” Essays on Suicide, and the Immortality of the Soul (1783). Immanuel Kant, Lectures on Ethics, tr. Louis Infield.

 

Questions for Review

1. Augustine contrasts the wording of the commandment “Thou shalt not kill” with the commandment “Thou shalt not bear false witness against thy neighbor.” What is his point?

2. Describe the story of Cleombrotus and say how Augustine responds to this.

3. How does Aquinas reply to argument that suicide is justified when it is a means to overcoming a greater evil, such as unhappiness?

4. According to Aquinas, how does suicide show a lack of fortitude?

5. According to More, how do the Utopians deal with terminally ill people?

6. According to Hume, since the beginning of time, how has the deity governed everything, and what bearing does this have on whether suicide violates God’s providence?

7. Hume writes that “It would be no crime in me to divert the Nile or Danube from its course, were I able to effect such purposes.” How does this reasoning apply to the issue of whether suicide violates God’s plan?

8. What does Hume say about a captured conspirator who kills himself to avoid torture, and also a convicted criminal who kills himself just before he is to be executed?

9. Concerning duties to ourselves, what are some of the good personal reasons that Hume mentions for committing suicide?

10. Some have argued that it was permissible for Lucretia to kill herself to preserve her chastity. What is Kant’s response to this?

11. Kant argues that human freedom does not entitle us to kill ourselves. On Kant’s understanding, what does proper freedom involve?

12. Kant closes with some religious arguments against suicide. What are they?

 

Questions for Analysis

1. Augustine and Hume both consider situations in which a person kills himself as a way to avoid torture or execution. Discuss their respective positions and explain which of these views you agree with.

2. Augustine, Aquinas and Hume all consider religious arguments regarding the morality of suicide. From Hume’s perspective, the issue rests on one’s conception of divine providence. How do these three philosophers differ regarding divine providence and suicide, and which view do you favor?

3. Aquinas and Hume differ over the social harm that results from suicide. Discuss their positions and explain which of these you agree with.

4. One of the more famous passages from Hume’s discussion of miracles is this: “It would be no crime in me to divert the Nile or Danube from its course, were I able to effect such purposes. Where then is the crime of turning a few ounces of blood from their natural channel?” Discuss whether this comparison is a legitimate one within the context of Hume’s view of divine providence.

5. Hume argues that If my continued existence is a burden on society, then suicide is not only permissible, but commendable. But, according to one Hume critic, Hume’s reasoning when pushed to its logical conclusion would require social indigents to kill themselves. And this is clearly wrong since it would violate that person’s autonomy. How might Hume respond to this attack?

6. One version of Kant’s categorical imperative is this: “So act as to treat humanity, whether in your own person or in that of any other, in every case as an end and never as merely a means.” Explain how his criticism of suicide relates to this version of the categorical imperative, and whether his assessment of the suicide situation is correct.

7. Hume says that God doesn’t care whether we kill ourselves, but Kant says that God does. Explain their respective rationales and say which of the two you agree with.

 

 

#2

 

SUPREME COURT CASES ON THE RIGHT TO DIE

 

Cruzan v. Director Missouri Health; Vacco v. Quill; Washington v. Glucksberg

 

Debates about the right to die generally involve three practices. The first is the withholding of life sustaining treatment, which is sometimes called passive euthanasia. In this situation, a patient or his/her surrogate, requests that a hospital forgo or discontinue a procedure, such as receiving nutrition through a food tube, thereby allowing the patient to die. This is the least morally problematic of the three practices and in the United States is a common and legal course of action. Second is assisted suicide, where a physician or some other third party provides a patient with a death causing agent, such as a lethal dose of pills, and the patient takes those pills him/herself, resulting in death. This is legal in only a few States. Third is active euthanasia, whereby a physician or third party directly administers a death causing agent to a patient, such as by giving an injection of a lethal drug which results in the patient’s death. This is the most morally controversial of the three practices and is not legal in the United States. Three U.S. Supreme Court rulings address the right to die issue head on, and in all three cases the issue involved a contest between the rights of the patient to choose when to die, and the rights of individual States to regulate and restrict right-to-die procedures. In each case the Supreme Court sided with the rights of States.

            In Cruzan v. Director, Missouri Department of Health (1990), the Court ruled that the State of Missouri was within its rights to require that patients have a clearly articulated statement of intent—that is, a living will—before life-sustaining treatment can be withheld. Missouri had a special interest in protecting and preserving human life and preventing abuses with the removal of life-sustaining treatment. To that end, according to the Court, a high standard of evidence was justified to determine the patient’s intent. In Vacco v. Quill (1997), the Court considered the following defense of assisted suicide: It is legally permissible to withhold life-saving treatment in all States, yet assisted suicide, which is essentially the same thing, is illegal in most States. Thus, laws against assisted suicide arbitrarily discriminate against some patients, and thus violate the equal protection clause of the Constitution. The Court rejected this argument and held that the distinction between withholding life-sustaining medical treatment and assisted suicide is justified. First, the two are causally distinct since by refusing treatment one dies of a fatal disease, whereas with assisted suicide the person is killed. Second, the two involve different intentions: when withholding life sustaining treatment, the intention is to cease futile treatment, but with assisted suicide, the intention is to end the patient’s life. In a related case the same year, Washington v. Glucksberg (1997), the Court considered whether prohibitions against assisted suicide infringe on a patient’s Constitutionally protected liberty. The Court argued that there is no such protected liberty, and there is in fact a long legal history against assisted suicide. Further, States might have interests which outweigh a patient’s desires for assisted suicide. For example, States have general interests in preserving human life and in protecting the integrity of the medical profession, and assisted suicide undermines these. The effect of both of these cases is that individual States are within their rights to ban assisted suicide, although they are also within their rights to legalize it if they so choose.

 

LIVING WILLS AND DISCONTINUING NUTRITION: CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990)

 

Background

Petitioner Nancy Cruzan is incompetent, having sustained severe injuries in an automobile accident, and now lies in a Missouri state hospital in what is referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The State is bearing the cost of her care. Hospital employees refused, without court approval, to honor the request of Cruzan's parents, co-petitioners here, to terminate her artificial nutrition and hydration, since that would result in death. A state trial court authorized the termination, finding that a person in Cruzan's condition has a fundamental right under the State and Federal Constitutions to direct or refuse the withdrawal of death-prolonging procedures, and that Cruzan's expression to a former housemate that she would not wish to continue her life if sick or injured unless she could live at least halfway normally suggested that she would not wish to continue on with her nutrition and hydration. The State Supreme Court reversed. While recognizing a right to refuse treatment embodied in the common-law doctrine of informed consent, the court questioned its applicability in this case. It also declined to read into the State Constitution a broad right to privacy that would support an unrestricted right to refuse treatment and expressed doubt that the Federal Constitution embodied such a right. The court then decided that the State Living Will statute embodied a state policy strongly favoring the preservation of life, and that Cruzan's statements to her housemate were unreliable for the purpose of determining her intent.

 

Majority Opinion: Informed Consent and Right to Refuse Treatment (Justice Rehnquist)

Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.” The informed consent doctrine has become firmly entrenched in American tort law.

            The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment. Until about 15 years ago and the seminal decision in In re Quinlan, the number of right-to-refuse-treatment decisions were relatively few. Most of the earlier cases involved patients who refused medical treatment forbidden by their religious beliefs, thus implicating First Amendment rights as well as common law rights of self-determination. More recently, however, with the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times, cases involving the right to refuse life-sustaining treatment have burgeoned.

            In the Quinlan case, young Karen Quinlan suffered severe brain damage as the result of anoxia, and entered a persistent vegetative state. Karen's father sought judicial approval to disconnect his daughter's respirator. The New Jersey Supreme Court granted the relief, holding that Karen had a right of privacy grounded in the Federal Constitution to terminate treatment. Recognizing that this right was not absolute, however, the court balanced it against asserted state interests. Noting that the State's interest “weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims,” the court concluded that the state interests had to give way in that case. The court also concluded that the “only practical way” to prevent the loss of Karen's privacy right due to her incompetence was to allow her guardian and family to decide “whether she would exercise it in these circumstances.”

            After Quinlan, however, most courts have based a right to refuse treatment either solely on the common law right to informed consent or on both the common law right and a constitutional privacy right. . . . As these cases demonstrate, the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Beyond that, these decisions demonstrate both similarity and diversity in their approach to decision of what all agree is a perplexing question with unusually strong moral and ethical overtones.

 

Convincing Evidence Requirement

The difficulty with petitioners' claim is that in a sense it begs the question: an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a “right” must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent's wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.

            Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to starve to death.

            But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decision-makers. And even where family members are present, “[t]here will, of course, be some unfortunate situations in which family members will not act to protect a patient.” A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate fact-finding that the adversary process brings with it. Finally, we think a State may properly decline to make judgments about the “quality” of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.

            In our view, Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings. . . .

            It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parole evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. . . .

            In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence.

 

Dissenting Opinion: Primacy of Individual’s Interest (Justice Brennan)

Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require “clear and convincing” evidence of Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity. . . .

            The right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one's own values and to make a personal decision whether to subject oneself to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically alive. Neither artificial nutrition nor any other form of medical treatment available today can cure or in any way ameliorate her condition. Irreversibly vegetative patients are devoid of thought, emotion and sensation; they are permanently and completely unconscious. As the President's Commission concluded in approving the withdrawal of life support equipment from irreversibly vegetative patients:

 

“[T]reatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible.”

 

There are also affirmative reasons why someone like Nancy might choose to forgo artificial nutrition and hydration under these circumstances. Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a matter of extreme consequence. . . . Such conditions are, for many, humiliating to contemplate, as is visiting a prolonged and anguished vigil on one's parents, spouse, and children. A long, drawn-out death can have a debilitating effect on family members. . . .

            Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute, no State interest could outweigh the rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support systems if it is indeed her wish not to do so. Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy's receiving medical treatment. No third party's situation will be improved and no harm to others will be averted.

            The only state interest asserted here is a general interest in the preservation of life. But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. . . . Thus, the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment. There is simply nothing legitimately within the State's purview to be gained by superseding her decision. . . .

            Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan's wishes or are at least consistent with an accurate determination. The Missouri “safeguard” that the Court upholds today does not meet that standard. The determination needed in this context is whether the incompetent person would choose to live in a persistent vegetative state on life-support or to avoid this medical treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. . . .

            The Missouri court's disdain for Nancy's statements in serious conversations not long before her accident, for the opinions of Nancy's family and friends as to her values, beliefs and certain choice, and even for the opinion of an outside objective fact-finder appointed by the State evinces a disdain for Nancy Cruzan's own right to choose. The rules by which an incompetent person's wishes are determined must represent every effort to determine those wishes. The rule that the Missouri court adopted and that this Court upholds, however, skews the result away from a determination that as accurately as possible reflects the individual's own preferences and beliefs. It is a rule that transforms human beings into passive subjects of medical technology.

 

ASSISTED SUICIDE AND WITHHOLDING TREATMENT: VACCO V. QUILL (1997)

 

Background

In New York, as in most States, it is a crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical treatment. Respondent New York physicians assert that, although it would be consistent with the standards of their medical practices to prescribe lethal medication for mentally competent, terminally ill patients who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so by New York's assisted suicide ban. They, and three gravely ill patients who have since died, sued the State's Attorney General, claiming that the ban violates the Fourteenth Amendment's Equal Protection Clause.

 

Majority Opinion: Assisted Suicide Distinct from Withholding Treatment (Justice Rehnquist)

In New York, as in most States, it is a crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical treatment. The question presented by this case is whether New York's prohibition on assisting suicide therefore violates the Equal Protection Clause of the Fourteenth Amendment. We hold that it does not. . . .

            On their faces, neither New York's ban on assisting suicide nor its statutes permitting patients to refuse medical treatment treat anyone differently than anyone else or draw any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause. (“[M]any [laws] affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law”).

            The Court of Appeals, however, concluded that some terminally ill people--those who are on life support systems--are treated differently than those who are not, in that the former may “hasten death” by ending treatment, but the latter may not “hasten death” through physician assisted suicide. This conclusion depends on the submission that ending or refusing lifesaving medical treatment “is nothing more nor less than assisted suicide.” Unlike the Court of Appeals, we think the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational. (“When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern”).

            The distinction comports with fundamental legal principles of causation and intent. First, when a patient refuses life sustaining medical treatment, 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.

            Furthermore, a physician who withdraws, or honors a patient's refusal to begin, 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 maybe, 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, while a patient who refuses or discontinues treatment might not. See, e.g., Matter of Conroy (patients who refuse life sustaining treatment “may not harbor a specific intent to die” and may instead “fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs”); Superintendent of Belchertown State School v. Saikewicz (“[I]n refusing treatment the patient may not have the specific intent to die”).

            The law has long used actors' intent or purpose to distinguish between two acts that may have the same result. See, e.g., United States v. Bailey, (“[T]he . . . common law of homicide often distinguishes . . . between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life”); Morissette v. United States, (distinctions based on intent are “universal and persistent in mature systems of law”); M. Hale (“If A., with an intent to prevent gangrene beginning in his hand doth without any advice cut off his hand, by which he dies, he is not thereby felo de se for tho it was a voluntary act, yet it was not with an intent to kill himself”). Put differently, the law distinguishes actions taken “because of” a given end from actions taken “in spite of” their unintended but foreseen consequences. Compassion in Dying v. Washington (“When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death . . . . His purpose, though, was to . . . liberate Europe from the Nazis”).

            Given these general principles, it is not surprising that many courts, including New York courts, have carefully distinguished refusing life sustaining treatment from suicide. (“[M]erely declining medical . . . care is not considered a suicidal act”). In fact, the first state court decision explicitly to authorize withdrawing lifesaving treatment noted the “real distinction between the self infliction of deadly harm and a self determination against artificial life support.” And recently, the Michigan Supreme Court also rejected the argument that the distinction “between acts that artificially sustain life and acts that artificially curtail life” is merely a “distinction without constitutional significance--a meaningless exercise in semantic gymnastics,” insisting that “the Cruzan majority disagreed and so do we.”

            Similarly, the overwhelming majority of state legislatures have drawn a clear line between assisting suicide and withdrawing or permitting the refusal of unwanted lifesaving medical treatment by prohibiting the former and permitting the latter. . . .

            For all these reasons, we disagree with respondents' claim that the distinction between refusing lifesaving medical treatment and assisted suicide is “arbitrary” and “irrational.” Granted, in some cases, the line between the two may not be clear, but certainty is not required, even were it possible. Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.

            New York's reasons for recognizing and acting on this distinction--including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia--are discussed in greater detail in our opinion in Glucksberg, ante. These valid and important public interests easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.

 

ASSISTED SUICIDE, LIBERTY AND STATE INTERESTS: WASHINGTON V. GLUCKSBERG (1997)

 

Background

It has always been a crime to assist a suicide in the State of Washington. The State's present law makes “[p]romoting a suicide attempt” a felony, and provides: “A person is guilty of [that crime] when he knowingly causes or aids another person to attempt suicide.” Respondents, four Washington physicians who occasionally treat terminally ill, suffering patients, declare that they would assist these patients in ending their lives if not for the State's assisted suicide ban. They, along with three gravely ill plaintiffs who have since died and a nonprofit organization that counsels people considering physician assisted suicide, filed this suit against petitioners, the State and its Attorney General, seeking a declaration that the ban is, on its face, unconstitutional. They assert a liberty interest protected by the Fourteenth Amendment's Due Process Clause which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey, and Cruzan v. Director, Mo. Dept. of Health, 4the Federal District Court agreed, concluding that Washington's assisted suicide ban is unconstitutional because it places an undue burden on the exercise of that constitutionally protected liberty interest.

 

Majority Opinion: Primacy of State Interests (Justice Rehnquist)

The question presented in this case is whether Washington's prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. . . .

            We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide. The States' assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. Cruzan, (“[T]he States--indeed, all civilized nations--demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide”); see Stanford v. Kentucky, (“[T]he primary and most reliable indication of [a national] consensus is . . . the pattern of enacted laws”). Indeed, opposition to and condemnation of suicide--and, therefore, of assisting suicide--are consistent and enduring themes of our philosophical, legal, and cultural heritages.

            More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. . . . The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, and many of the new States and Territories followed New York's example. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited “aiding” a suicide and, specifically, “furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. . . . Though deeply rooted, the States' assisted suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. . . .

            The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here. As the court below recognized, Washington's assisted suicide ban implicates a number of state interests.

            First, Washington has an “unqualified interest in the preservation of human life.” The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. Model Penal Code (“[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another”). This interest is symbolic and aspirational as well as practical:

 

“While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these decisions.” New York Task Force 131-132. . . .

 

The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that “the integrity of the medical profession would [not] be threatened in any way by [physician assisted suicide],” the American Medical Association, like many other medical and physicians' groups, has concluded that “[p]hysician assisted suicide is fundamentally incompatible with the physician's role as healer.” And physician assisted suicide could, it is argued, undermine the trust that is essential to the doctor patient relationship by blurring the time honored line between healing and harming.

            Next, the State has an interest in protecting vulnerable groups--including the poor, the elderly, and disabled persons--from abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician assisted suicide as “ludicrous on its face.” We have recognized, however, the real risk of subtle coercion and undue influence in end of life situations. Similarly, the New York Task Force warned that “[l]egalizing physician assisted suicide would pose profound risks to many individuals who are ill and vulnerable. . . . The risk of harm is greatest for the many individuals in our society whose autonomy and well being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group.” See Compassion in Dying, (“[A]n insidious bias against the handicapped--again coupled with a cost saving mentality--makes them especially in need of Washington's statutory protection”). If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs.

            The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.” The State's assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's.

            Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down Washington's assisted suicide ban only “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” Washington insists, however, that the impact of the court's decision will not and cannot be so limited. If suicide is protected as a matter of constitutional right, it is argued, “every man and woman in the United States must enjoy it.” The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the “decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself,”; that “in some instances, the patient may be unable to self administer the drugs and . . . administration by the physician . . . may be the only way the patient may be able to receive them,” and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide. Thus, it turns out that what is couched as a limited right to “physician assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. Washington's ban on assisting suicide prevents such erosion. . . .

            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.

 

Source: Justices William Rehnquist and William Brennan, Cruzan v. Director, Missouri Department of Health (1990); Justice William Rehnquist, Vacco v. Quill (1997); Justice William Rehnquist, Washington v. Glucksberg (1997).

 

Questions for Review

1. In Cruzan v. Director, Missouri Department of Health, describe the notions of informed consent and the right to refuse medical treatment.

2. In Cruzan v. Director, Missouri Department of Health, why were Missouri’s heightened evidentiary requirements requiring living wills justified?

3. In Cruzan v. Director, Missouri Department of Health, according to Brennan’s dissenting opinion, what are some “affirmative reasons” for discontinuing life-sustaining treatment?

4. In Vacco v. Quill, the Court argued that the distinction between withholding life sustaining treatment and assist suicide is widely accepted. In what ways, according to the Court, are the two distinct?

5. In Washington v. Glucksberg, the Court lists four State interests in which might justify a ban on assisted suicide. What are those four interests?

 

Questions for Analysis

1. In Cruzan V. Director, Missouri Department of Health, the issue involved whether Missouri could justly require that a patient have a clearly written living will before life-sustaining treatment could be withheld, thereby rejecting a patient’s mere verbal statement. The Court argued that it is common in law to require explicit written statements of intent over mere verbal statements. Might the situation with terminally ill patients differ enough, though, to justify accepting verbal statements? Explain.

2. In Cruzan V. Director, Missouri Department of Health, Justice Brennan argued in his dissenting opinion that Missouri’s State interest does not outweigh Cruzan’s. For, by keeping her alive, no third party's situation would be improved and no harm to others would be averted. Is Brennan correct? Explain.

3. In Vacco v. Quill, the Court argued that the causes of death are different for withholding life-sustaining treatment than they are for assisted suicide. Discuss whether that difference is sufficient to allow the former to be legal, but not the latter.

4. In Vacco v. Quill, the Court argued that the intentions are dramatically different for withholding life-sustaining treatment than they are for assisted suicide. Discuss whether that difference is sufficient to allow the former to be legal, but not the latter.

5. In Washington v. Glucksberg, the Court lists four State interests that outweigh a patient’s interest in assisted suicide. Is the court correct in the weight that it gives to these four State interests? Explain.

 

 

#3.

 

THE DETERMINATION OF DEATH

 

The President’s Council on Bioethics

 

Often when questions of euthanasia arise, the patient is conscious and fully capable of expressing his or her wishes. Other times, though, the patient is comatose, connected to life support and perhaps may be dead already. When a patient is in a persistently vegetative state, what specific criterion of death should we follow when determining whether to withhold life-sustaining treatment? The selection below on this topic was written by The President’s Council on Bioethics, a team of scholars under the direction of physician Edmund D. Pellegrino which advised the President’s administration on ethical controversies relating to biology and medicine. At issue is the validity of the current neurological standard of death, namely, that brain death constitutes the real death of the body. The authors conclude that it is indeed ethically valid. One rival view that they reject is the “two deaths theory”, which holds that the death of a person’s conscious processes is distinct from the death of the person’s body. The key flaw of this view is that it parts company with the core meaning that death has had throughout human history: we don’t think about people as going through two deaths. The authors next examine another rival to the current neurological standard of death, that of somatic integration as defended by Hans Jonas and Alan Shewmon. On this view, it is the overall integrity of the body rather than the condition of the brain that determines whether the person is dead. Many biological mechanisms in brain dead patients are directed toward the sustained functioning of the body as a whole. The authors reject this view, though, since ongoing biological activity in various cells or tissues is not in itself sufficient to mark the presence of a living organism. In defense of the current neurological standard of death, the authors maintain that death occurs in an organism as a whole when it fails to engage in the surrounding world, and brain death is a sign that this has occurred.

 

INTRODUCTION

 

Two Positions regarding Death

Why do we describe the central question of this inquiry as a philosophical question? We do so, in part, because this question cannot be settled by appealing exclusively to clinical or pathophysiological facts. Those facts were our focus in the previous chapters in which we sought to clarify important features of “total brain failure,” a condition diagnosed in a well-defined subset of comatose, ventilator-dependent patients. As a condition, it is the terminus of a course of pathophysiological events, the effects of which account for certain clinically observable signs (all manifestations of an incapacitated brainstem) and for confirmatory results obtained through selected imaging tests. A patient diagnosed with this condition will never recover brain-dependent functions, including the capacity to breathe and the capacity to exhibit even minimal signs of conscious life. If the patient is sustained with life-supporting technologies, this condition need not lead immediately to somatic disintegration or failure of other organ systems. These facts are all crucial to answering the question, Is a human being with total brain failure dead? But determining the significance of these facts presents challenges for philosophical analysis and interpretation.

            In this chapter, we set forth and explore two positions on this philosophical question. One position rejects the widely accepted consensus that the current neurological standard is an ethically valid one for determining death. The other position defends the consensus, taking the challenges posed in recent years as opportunities to strengthen the philosophical rationale for the neurological standard.

            At the outset, it is important to note what is common to these two opposing positions. First, both reject the idea that death should be treated merely as a legal construct or as a matter of social agreement. Instead, both embrace the idea that a standard for determining death must be defensible on biological as well as philosophical grounds. That is to say, both positions respect the biological reality of death. At some point, after all, certainty that a body is no longer a living whole is attainable. The impressive technological advances of the last several decades have done nothing to alter the reality of death, even if they have complicated the task of judging whether and when death has occurred in particular circumstances. In light of such complications, however, both positions share the conclusion that a human being who is not known to be dead should be considered alive.

 

Against the “Two Deaths” Theory

Second, neither position advocates loosening the standards for determining death on the basis of currently known clinical and pathophysiological facts. There is a well-developed third philosophical position that is often considered alongside the two that are the main focus of this chapter. This third position maintains that there can be two deaths—the death of the person, a being distinguished by the capacities for thought, reason, and feeling, and the death of the body or the organism. From the perspective of this third philosophical position, an individual who suffers a brain injury that leaves him incapacitated with regard to certain specifically human powers is rightly regarded as “dead as a person.” The still living body that remains after this death is not a human being in the full sense. Philosopher John Lizza discusses the living organism left behind after the “person” has died in the following way:

 

Advocates of a consciousness-related formulation of death do not consider such a being to be a living person. In their view, a person cannot persist through the loss of all brain function or even the loss of just those brain functions required for consciousness and other mental functions. . . [W]hat remains alive must be a different sort of being. . .a form of life created by medical technology. . . Whereas a person is normally transformed into a corpse at his or her death, technology has intervened in this natural process and has made it possible. . .for a person’s remains to take the form of an artificially sustained, living organism devoid of the capacity for consciousness and any other mental function.

 

Thus, advocates of this third position effectively maintain that in certain cases there can be two deaths rather than one. In such cases, they argue, a body that has ceased to be a person (having “died” the first death) can be treated as deceased—at least in certain ways. For example, according to some advocates of this position, it would be permissible to remove the organs of such individuals while their hearts continue to beat. The patients most often cited as potential heart-beating organ donors, based on this concept of death, are PVS patients and anencephalic newborns (babies born with very little, if any, brain matter other than the brainstem). Organ retrieval in such cases might entail the administration of sedatives to the allegedly “person-less” patient because some signs of continued “biological life” (such as the open eyes and spontaneous breathing of the PVS patient) would be distracting and disturbing to the surgeons who procure the patient’s organs.

            Serious difficulties afflict the claim that something that can be called “death” has occurred even as the body remains alive. One such difficulty is that there is no way to know that the “specifically human powers” are irreversibly gone from a body that has suffered any injury shy of total brain failure. In Chapter Three, we cited neurologist Steven Laureys’s observation that it is impossible to ascertain scientifically the inward state of an individual—and features of this inward state (e.g., thinking and feeling) are always cited as marks of a distinctively human or personal life. It is very important here to recall the marked differences in appearance between the individual with total brain failure and the individual with another “consciousness-compromising” condition. The latter displays several ambiguous signs—moving, waking up, and groaning, among others—while the former remains still and closed off from the world in clinically ascertainable ways.

            A related problem with this “two deaths” position is that it expands the concept of death beyond the core meaning it has had throughout human history. Human beings are members of the larger family of living beings, and it is a fundamental truth about living beings that every individual—be it plant or animal—eventually dies. Recent advances in technology offer no warrant for jettisoning the age-old idea that it is not as persons that we die, but rather as members of the family of living beings and as animals in particular. The terminus of the transformation that occurs when a human being is deprived by injury of certain mental capacities, heartbreaking as it is, is not death. We should note, again, that some technological interventions administered to the living might be deemed futile —that is, ineffective at reversing or ameliorating the course of disease or injury—and that an ethically valid decision might be made to withdraw or withhold such interventions. There is no need, however, to call an individual already dead in order to justify refraining from such futile interventions.

            In summary, the two positions that we present in this chapter share the conviction that death is a single phenomenon marking the end of the life of a biological organism. Death is the definitive end of life and is something more complete and final than the mere loss of “personhood.”

 

POSITION ONE: THERE IS NO SOUND BIOLOGICAL JUSTIFICATION FOR TODAY’S NEUROLOGICAL STANDARD

 

The neurological standard for death based on total brain failure relies fundamentally on the idea that the phenomenon of death can be hidden. The metaphor employed by the President’s Commission and cited in Chapter One expresses this idea: When a ventilator supports the body’s vital functions, this technological intervention obscures our view of the phenomenon. What seem to be signs of continued life in an injured body are, in fact, misleading artifacts of the technological intervention and obstacles to ascertaining the truth. To consult brain-based functions, then, is to look through a “second window” in order to see the actual condition of the body.

            The critical thrust of Position One can be summarized in this way: There is no reliable “second window” on the phenomenon of death. If its presence is not made known by the signs that have always accompanied it—by breathing lungs and a beating heart—then there is no way to state with confidence that death has occurred. Only when all would agree that the body is ready for burial can that body, with confidence, be described as dead. If blood is still circulating and nutrients and oxygen are still serving to power the work of diverse cells, tissues, and organ systems, then the body in which these processes are ongoing cannot be deemed a corpse.

            Soon after the Harvard committee argued that patients who meet the criteria for “irreversible coma” are already dead, some philosophers and other observers of the committee’s work advanced an opposing view. The counterarguments presented then by one such philosopher, Hans Jonas, are still useful in framing the objections raised today against the neurological standard. In his 1974 essay, “Against the Stream,” Jonas dissented from the Harvard committee’s equation of “irreversible coma” and death and counseled, instead, a conservative course of action:

 

We do not know with certainty the borderline between life and death, and a definition cannot substitute for knowledge. Moreover, we have sufficient grounds for suspecting that the artificially supported condition of the comatose patient may still be one of life, however reduced—i.e., for doubting that, even with the brain function gone, he is completely dead. In this state of marginal ignorance and doubt the only course to take is to lean over backward toward the side of possible life.

 

With these words, Jonas underscored a point that is pivotal to Position One: There can be uncertainty as to where the line between life and death falls even if we are certain that death is a biologically real event. In patients with total brain failure, the transition from living body to corpse is in some measure a mystery, one that may be beyond the powers of science and medicine to penetrate and determine with the finality that is possible when most human beings die.

            Have advances in the scientific and clinical understanding of the spectrum of neurological injury shown that Jonas’s stance of principled (and therefore cautious) uncertainty was incorrect? Today we have a more fine-grained set of categories of, as he put it, “artificially supported. . .comatose patients”—some of whom meet the criteria for total brain failure and others who have hope of recovering limited or full mental function. Only the first group is considered to be dead by today’s “brain death” defenders. Even with respect to this group, however, there is still reason to wonder if our knowledge of their condition is adequate for labeling them as dead. If there are “sufficient grounds,” as Jonas put it, for suspecting that their condition may still be one of life, then a stance of principled and hence cautious uncertainty is still the morally right one to take.

            This line of inquiry brings us to Shewmon’s criticisms, summarized earlier in Chapter Three, of the accepted pathophysiological and clinical picture of patients with “brain death” (total brain failure). Do Shewmon’s criticisms constitute the “sufficient grounds” to which Jonas appeals? To answer this question, these criticisms and the evidence supporting them must first be considered in greater depth.

            In 1998, the journal Neurology published an article by Shewmon entitled, “Chronic ‘Brain Death’: Meta-Analysis and Conceptual Consequences.” In that article, Shewmon cites evidence for the claim that neither bodily disintegration nor cessation of heartbeat necessarily and imminently ensues after brain death. Shewmon’s evidence is drawn from more than one hundred documented cases that demonstrate survival past one week’s time, with one case of survival for more than fourteen years. Furthermore, he demonstrates that such factors as age, etiology, and underlying somatic integrity variably affect the survival probability of “brain dead” patients. Observing that asystole (the absence of cardiac contractions colloquially known as “flatline”) does not necessarily follow from “brain death,” Shewmon concludes that it is the overall integrity of the body (the “underlying somatic plasticity”) rather than the condition of the brain that exerts the strongest influence on survival. These facts seem to contradict the dominant view that the loss of brain function, in and of itself, leads the body to “fall apart” and eventually to cease circulating blood.

            Critics of this meta-analysis have challenged the data on which Shewmon based his conclusions, claiming that many of the patients in the cases that he compiles might not have been properly diagnosed with whole brain death (in our usage, total brain failure). They also point out the rarity with which such cases are encountered, compared with the frequency of rapid descent to asystole for patients accurately diagnosed. To point out the rarity of prolonged survival, however, is to admit that the phenomenon does, in some cases, occur. Whether it might occur more often is difficult to judge because patients with total brain failure are rarely treated with aggressive, life-sustaining interventions for an extended time.

            If it is possible—albeit rare—for a body without a functioning brain to “hold itself together” for an indefinite period of time, then how can the condition of total brain failure be equated with biological death? Or, to put the question in Jonas’s terms, does this fact not give “sufficient grounds” for suspecting that such patients might still be alive, although severely injured? The case for uncertainty about the line between life and death is further strengthened by considering the somatic processes that clearly continue in the body of a patient with total brain failure.

            In a paper published in the Journal of Medicine and Philosophy in 2001, Shewmon details the integrated functions that continue in a body in the condition of “brain death.” Table 2 reproduces a list of somatically integrative functions that are, in Shewmon’s words, “not mediated by the brain and possessed by at least some [brain dead] bodies.”

 

 

Table 2: Physiological Evidence of “Somatic Integration”

 

·       Homeostasis of a countless variety of mutually interacting chemicals, macromolecules and physiological parameters, through the functions especially of liver, kidneys, cardiovascular and endocrine systems, but also of other organs and tissues (e.g., intestines, bone and skin in calcium metabolism; cardiac atrial natriuretic factor affecting the renal secretion of entil, which regulates blood pressure by acting on vascular smooth muscle; etc.);

·       Elimination, detoxification and recycling of cellular wastes throughout the body;

·       Energy balance, involving interactions among liver, endocrine systems, muscle and fat;

·       Maintenance of body temperature (albeit at a lower than normal level and with the help of blankets);

·       Wound healing, capacity for which is diffuse throughout the body and which involves organism-level, teleological interaction among blood cells, capillary endothelium, soft tissues, bone marrow, vasoactive peptides, clotting and clot lysing factors (maintained by the liver, vascular endothelium and circulating leucocytes in a delicate balance of synthesis and degradation), etc.;

·       Fighting of infections and foreign bodies through interactions among the immune system, lymphatics, bone marrow, and microvasculature;

·       Development of a febrile response to infection;

·       Cardiovascular and hormonal stress responses to unanesthetized incision for organ retrieval;

·       Successful gestation of a fetus in a [brain dead] pregnant woman;

·       Sexual maturation of a [brain dead] child;

·       Proportional growth of a [brain dead] child.

 

Readers not well-versed in human physiology might find this list hard to follow. Its significance, however, can be simply stated: It enumerates many clearly identifiable and observable physiological mechanisms. These mechanisms account for the continued health of vital organs in the bodies of patients diagnosed with total brain failure and go a long way toward explaining the lengthy survival of such patients in rare cases. In such cases, globally coordinated work continues to be performed by multiple systems, all directed toward the sustained functioning of the body as a whole. If being alive as a biological organism requires being a whole that is more than the mere sum of its parts, then it would be difficult to deny that the body of a patient with total brain failure can still be alive, at least in some cases.

            None of this contradicts the claim that total brain failure is a unique and profound kind of incapacitation —and one that may very well warrant or even morally require the withdrawal of life-sustaining interventions. According to some defenders of the concept of medical futility, there is no obligation to begin or to continue treatment when that treatment cannot achieve any good or when it inflicts disproportionate burdens on the patient who receives it or on his or her family. Writing many years before the somatic state and the prognostic possibilities of total brain failure were well-characterized, Jonas emphasized the need to accept that sustaining life and prolonging dying is not always in the patient’s interest:

 

The question [of interventions to sustain the patient] cannot be answered by decreeing that death has already occurred and the body is therefore in the domain of things; rather it is by holding, e.g., that it is humanly not justified—let alone demanded—to artificially prolong the life of a brainless body. . .the physician can, indeed should, turn off the respirator and let the “definition of death” take care of itself by what then inevitably happens.

 

            To summarize, Position One does not insist that medicine or science can know that all or even some patients with total brain failure are still living. Rather, Position One makes two assertions in light of what we now know about the clinical presentation and the pathophysiology of total brain failure. The first is that there are “sufficient grounds” for doubt as to whether the patient with this condition has died. The second is that in the face of such persistent uncertainty, the only ethically valid course is to consider and treat such a patient as a still living human being. Finally, such respectful consideration and treatment does not preclude the ethical withdrawal or withholding of life-sustaining interventions, based on the judgment that such interventions are futile.

 

POSITION TWO: THERE IS A SOUND BIOLOGICAL JUSTIFICATION FOR TODAY’S NEUROLOGICAL STANDARD

 

Position One is the voice of “principled and hence cautious uncertainty.” We should not claim to know facts about life and death that are beyond the limits of our powers to discern, especially when the consequence might be to place a human being beyond the essential and obligatory protections afforded to the living. The recent critical appraisals of total brain failure (“whole brain death”) offered by Shewmon and others only underscore the limits to our ability to discern the line between life and death.

            Position Two is also motivated by strong moral convictions about what is at stake in the debate: The bodies of deceased patients should not be ventilated and maintained as if they were still living human beings. The respect owed to the newly dead demands that such interventions be withdrawn. Their families should be spared unnecessary anguish over purported “options” for treatment. Maintaining the body for a short time to facilitate organ transplantation is a reasonable act of deference to the need for organs and to the opportunity for generosity on the part of the donor as well as the family. Notwithstanding this need and opportunity, the true moral challenge that faces us is to decide in each case whether the patient is living or has died. To help us meet that challenge, the clinical and pathophysiological facts that call the neurological standard into question should be re-examined and re-evaluated. On the basis of such a re-examination and re-evaluation, Position Two seeks to develop a better rationale for continuing to use the neurological standard to determine whether a human being has died.  

 

The Work of the Organism as a Whole

Early defenders of the neurological standard of “whole brain death” relied on the plausible intuition that in order to be a living organism any animal, whether human or non-human, must be a whole. Ongoing biological activity in various cells or tissues is not in itself sufficient to mark the presence of a living organism. After all, some biological activity in cells and tissues remains for a time even in a body that all would agree is a corpse. Such activity signifies that disparate parts of the once-living organism remain, but not the organism as a whole. Therefore, if we try to specify the moment at which the “wholeness” of the body is lost, that moment must come before biological activity in all of its different cells or tissues has ceased. As Alexander Capron, former executive director of the President’s Commission, has repeatedly emphasized, the fact that this moment is chosen does not mean that it is arbitrary; the choice is not arbitrary if it is made in accordance with the most reasonable interpretation of the biological facts that could be provided.

            The neurological standard’s early defenders were not wrong to seek such a principle of wholeness. They may have been mistaken, however, in focusing on the loss of somatic integration as the critical sign that the organism is no longer a whole. They interpreted—plausibly but perhaps incorrectly— “an organism as a whole” to mean “an organism whose parts are working together in an integrated way.” But, as we have seen, even in a patient with total brain failure, some of the body’s parts continue to work together in an integrated way for some time—for example, to fight infection, heal wounds, and maintain temperature. If these kinds of integration were sufficient to identify the presence of a living “organism as a whole,” total brain failure could not serve as a criterion for organismic death, and the neurological standard enshrined in law would not be philosophically well-grounded.

            There may be, however, a more compelling account of wholeness that would support the intuition that after total brain failure the body is no longer an organismic whole and hence no longer alive. That account, which we develop here with Position Two, offers a superior defense of “total brain failure” as the standard for declaring death. With that account, death remains a condition of the organism as a whole and does not, therefore, merely signal the irreversible loss of so-called higher mental functions. But reliance on the concept of “integration” is abandoned and with it the false assumption that the brain is the “integrator” of vital functions. Determining whether an organism remains a whole depends on recognizing the persistence or cessation of the fundamental vital work of a living organism—the work of self-preservation, achieved through the organism’s need-driven commerce with the surrounding world. When there is good reason to believe that an injury has irreversibly destroyed an organism’s ability to perform its fundamental vital work, then the conclusion that the organism as a whole has died is warranted. Advocates of Position Two argue that this is the case for patients with total brain failure. To understand this argument, we must explore at some length this idea of an organism’s “fundamental work.”

            All organisms have a needy mode of being. Unlike inanimate objects, which continue to exist through inertia and without effort, every organism persists only thanks to its own exertions. To preserve themselves, organisms must —and can and do —engage in commerce with the surrounding world. Their constant need for oxygenated air and nutrients is matched by their ability to satisfy that need, by engaging in certain activities, reaching out into the surrounding environment to secure the required sustenance. This is the definitive work of the organism as an organism. It is what an organism “does” and what distinguishes every organism from non-living things. And it is what distinguishes a living organism from the dead body that it becomes when it dies.

            The work of the organism, expressed in its commerce with the surrounding world, depends on three fundamental capacities:

 

1. Openness to the world, that is, receptivity to stimuli and signals from the surrounding environment.

2. The ability to act upon the world to obtain selectively what it needs.

3. The basic felt need that drives the organism to act as it must, to obtain what it needs and what its openness reveals to be available.

 

Appreciating these capacities as mutually supporting aspects of the organism’s vital work will help us understand why an individual with total brain failure should be declared dead, even when ventilator-supported “breathing” masks the presence of death.

            To preserve itself, an organism must be open to the world. Such openness is manifested in different ways and at many levels. In higher animals, including man, it is evident most obviously in consciousness or felt awareness, even in its very rudimentary forms. When a PVS patient tracks light with his or her eyes, recoils in response to pain, swallows liquid placed in the mouth, or goes to sleep and wakes up, such behaviors—although they may not indicate self –consciousness—testify to the organism’s essential, vital openness to its surrounding world. An organism that behaves in such a way cannot be dead.

            Self-preserving commerce with the world, however, involves more than just openness or receptivity. It also requires the ability to act on one’s own behalf—to take in food and water and, even more basically, to breathe. Spontaneous breathing is an indispensable action of the higher animals that makes metabolism—and all other vital activity—possible. Experiencing a felt inner need to acquire oxygen (and to expel carbon dioxide) and perceiving the presence of oxygen in its environment, a living body is moved to act on the world (by contracting its diaphragm so that air will move into its lungs). An organism that breathes spontaneously cannot be dead.

            Just as spontaneous breathing in itself reveals an organism’s openness to and ability to act upon the world, it also reveals a third capacity critical to the organism’s fundamental, self-preserving work: What animates the motor act of spontaneous breathing, in open commerce with the surrounding air, is the inner experience of need, manifesting itself as the drive to breathe. This need does not have to be consciously felt in order to be efficacious in driving respiration. It is clearly not consciously felt in a comatose patient who might be tested for a remaining rudimentary drive (e.g., with the “apnea” test). But even when the drive to breathe occurs in the absence of any self-awareness, its presence gives evidence of the organism’s continued impulse to live. This drive is the organism’s own impulse, exercised on its own behalf, and indispensable to its continued existence.

            As a vital sign, the spontaneous action of breathing can and must be distinguished from the technologically supported, passive condition of being ventilated (i.e., of having one’s “breathing” replaced by a mechanical ventilator). The natural work of breathing, even apart from consciousness or self-awareness, is itself a sure sign that the organism as a whole is doing the work that constitutes—and preserves—it as a whole. In contrast, artificial, non-spontaneous breathing produced by a machine is not such a sign. It does not signify an activity of the organism as a whole. It is not driven by felt need, and the exchange of gases that it effects is neither an achievement of the organism nor a sign of its genuine vitality. For this reason, it makes sense to say that the operation of the ventilator can obscure our view of the arrival of human death—that is, the death of the human organism as a working whole. A ventilator causes the patient’s chest to heave and the lungs to fill and thereby mimics the authentic work of the organism. In fact, it mimics the work so well that it enables some systems of the body to keep functioning—but it does no more than that. The simulated “breathing” that the ventilator makes possible is not, therefore, a vital sign: It is not a sign that the organism is accomplishing its vital work and thus remains a living whole.

            We have examined the phenomenon of breathing in order to understand and explain a living organism’s “needful openness” to the world—a needful openness lacking in patients with total brain failure. Having done this, however, we must also emphasize that an animal cannot be considered dead simply because it has lost the ability to breathe spontaneously. Even if the animal has lost that capacity, other vital capacities might still be present. For example, patients with spinal cord injuries may be permanently apneic or unable to breathe without entilator support and yet retain full or partial possession of their conscious faculties. Just as much as striving to breathe, signs of consciousness are incontrovertible evidence that a living organism, a patient, is alive.

            If there are no signs of consciousness and if spontaneous breathing is absent and if the best clinical judgment is that these neurophysiological facts cannot be reversed, Position Two would lead us to conclude that a once-living patient has now died. Thus, on this account, total brain failure can continue to serve as a criterion for declaring death—not because it necessarily indicates complete loss of integrated somatic functioning, but because it is a sign that this organism can no longer engage in the essential work that defines living things.

 

Comparison with the UK Standard

Although the terms may be different, the concepts presented here to defend the use of total brain failure as a reasonable standard for death are not wholly new. A similar approach to judging the vital status of a patient diagnosed as “brain dead,” emphasizing the crucial importance of both spontaneous breathing and the capacity for consciousness, was advocated by the late British neurologist Christopher Pallis. His conceptual justification for this argument was influential in gaining acceptance for a neurological standard in the United Kingdom.

            Like this report’s Position Two, Pallis attempted to strike a balance between the need to be “functionalist” and the need to remain rooted in the biological facts of total brain failure. He stated in very direct terms that the relevant functions that were irreversibly absent from the patient with a destroyed brainstem were the ability to breathe and the capacity for consciousness. When challenged as to why these two functions should be singled out, Pallis pointed to what he called “the sociological context” for basic concepts of life and death. In the West, he maintained, this context is the Judeo-Christian tradition in which “breath” and “consciousness” are two definitive features of the human soul:

 

The single matrix in which my definition is embedded is a sociological one, namely Judeo-Christian culture. . . The “loss of the capacity for consciousness” is much the same as the “departure of the conscious soul from the body,” just as “the loss of the capacity to breathe” is much the same as the “loss of the breath of life.”

 

Pallis also pointed to “the widespread identity, in various languages, of terms denoting soul and breath.” A challenge to this approach can be framed with two questions: First, are consciousness and breathing the only or the most important culturally significant features of the soul? And second, does this argument about traditional beliefs, bound to a particular culture, provide a sufficient rationale for a standard applicable to the transcultural, universal phenomenon of human death?

            Position Two agrees with Pallis’s emphasis on certain functions in preference to others, but it avoids the limitations of his approach, that is, its dependence on a particular culture. Position Two does this by taking the loss of the impulse to breathe and the total loss of engagement with the world as the cessation of the most essential functions of the organism as a whole. In this way, it builds upon an insight into biological reality, an insight latent in culture-bound notions of “breath of life” and “departure of the conscious soul from the body.” It does so by articulating a philosophical conception of the biological realities of organismic life. To repeat, an organism is the unique sort of being that it is because it can and must constantly act upon and be open to its environment. From this philosophical-biological perspective, it becomes clear that a human being with a destroyed brainstem has lost the functional capacities that define organismic life.

            On at least one important point, however, our Position Two and the UK neurological standard part company. The UK standard follows Pallis in accepting “death of the brainstem,” rather than total brain failure, as a sufficient criterion for declaring a patient dead. Such a reduction, in addition to being conceptually suspect, is clinically dangerous because it suggests that the confirmatory tests that go beyond the bedside checks for apnea and brainstem reflexes are simply superfluous. As noted in Chapter Three, it is important to seek clarity on where a patient is on the path to the endpoint of total brain infarction. Only if the destructive cycle of infarction and swelling has reached this endpoint can the irreversibility of the patient’s condition be known with confidence. Ultimately, the decision to perform these confirmatory tests (beyond those targeted at brainstem functions, for example, angiography or EEG) belongs to the attending clinician. The counsel offered here is one of caution in reaching a diagnosis with such important consequences. Only in the presence of a certain diagnosis of total brain failure do the arguments that seek to interpret this clinical finding hold weight.

 

Source: Edmund D. Pellegrino and the President’s Council on Bioethics, Controversies in the Determination of Death (2008), Ch. 4.

 

Questions for Review

1. In the section “Two Positions regarding Death,” What are the points of commonality between positions 1 and 2?

2. What is wrong with the “two deaths” theory?

3. What are the three summary points of position 1?

4. According to position 2, what are the three capacities of an organism’s work?

5. How does position 2 compare with Pallis’s UK Standard?

 

Questions for Analysis

1. The authors present three theories about when death occurs: the “two deaths” theory, the somatic integration theory (position 1), and the current neurological standard (position 2). Do these three theories necessitate different decisions about when life support should be withdrawn? Explain.

2. The authors reject the “two deaths” theory. Defend that theory against their criticisms.

3. Table two lists several biological mechanisms in brain dead patients that, according to the somatic integration theory (i.e., position 1), sustained functioning of the body as a whole. Do these biological mechanisms really mean that the person is still alive in a meaningful way?

4. What is the main difference between “somatic integration” (position 1) and “the work of an organism as a whole” (position 2), and which seems to be a better account of determining when a person is alive or dead?

5. Explain how Pallis’s UK standard are connected with the Judeo-Christian conception of life, and discuss whether this brings anything important into the discussion.

 

________________

 

#4

HOSPICE AND THE CRISES AT THE END OF LIFE

Ira R. Byock

 

Hospice programs are the least morally problematic way of dealing with terminal illness and end of life situations, certainly more so than physician assisted suicide and euthanasia. The aim of hospice programs is to provide a caring environment that meets the physical and emotional needs of terminally ill people as they live out their final days. Hospice programs are associated with a type of medical treatment known as palliative care, which seeks to reducing the severity of a disease’s symptoms, rather than curing the disease itself. The essay below is by Ira R. Byock, a physician and Director of Palliative Medicine at Dartmouth Hitchcock Medical Center. He has authored the book Dying Well (1997) and is a leading spokesperson on hospice facilities. Byock argues here that health care facilities today are not equipped to compassionately deal an ever-growing number of terminally ill people. Pain medication is inadequate, patients’ preferences are not honored, and families often lose life savings to cover medical costs. Hospice programs, he argues, are an important answer to the problem, but they are plagued by intrusive government oversight have the effect of discouraging people from using them. He concludes that this problem needs to be fixed before society should recognize the ‘right’ to preemptive death such as through assisted suicide.

 

. . .

HOW PEOPLE DIE IN AMERICA

There is no greater urgency facing American society than relieving the crisis that surrounds dying and care for the dying in our country. The Institute of Medicine’s report, Approaching Death, details the severity and pervasive nature of this crisis and concludes that there are serious deficiencies in medical education, health systems financing, attitudes and culture, and extensive errors of omission and commission in clinical practice.

            Dying patients and their families have known this for a long time. Even within otherwise excellent medical institutions, pain and physical suffering among dying Americans remains inadequately treated - or even recognized. Up to 40% of dying patients receive grossly inadequate analgesia. Being of minority ethnicity, older than 80 or having dementia seriously Increase the risk of having one’s pain untreated. In addition, most Americans still die in institutions, approximately 60% in hospitals and 20% to 25% in nursing homes.

            Patient’s preferences for care often are not honored, even when those choices are clearly conveyed. As if that is not bad enough, our health care system routinely pauperizes people and their families for being chronically ill and not dying quickly enough. In the large SUPPORT study, one third of families of dying patients reported losing most or all of the family’s major source of income; a third reported losing the family’s life savings; and 20% said that a family member had to either move or delay their own medical care, education, or career to meet the basic needs of their dying loved ones.

            Cultural denial marks the confused and conflicted way our society approaches life’s end. Research and public opinion surveys demonstrate that it’s not death so much as dying that we fear. We are terrified of becoming ill; being physically dependent and in pain, and we worry most about becoming a burden to others. However, although we all say we want control over the way we live and the way our lives end, only a small percentage of us fill out a living will or durable power of attorney for health care. Many people with far advanced illness refuse to talk about cardiopulmonary resuscitation or mechanical ventilation with their doctors. Most people say they would prefer that their families make decisions for them if they become unable to speak for themselves, but only a few of these people tell their families what kind of care they would want.

            The resulting fear, deep frustration and anger fuel the assisted suicide movement. Unable to face the stark reality of this end-of-life crisis, many people have embraced legalizing physician-assisted suicide as a “quick fix” that would allow us to avoid the dark and twisted roots of the crisis.

 

CARE FOR THE AGED

In the late 1940’s our nation awakened to a silent epidemic of pediatric failure to thrive. Rene Spitz and his colleagues studied foundling homes in which orphans were cared for and found the mortality was alarmingly high. Spitz determined that the key deficiency in the foundling homes was lack of human interaction. Babies would be fed, cleansed, swaddled and then lay untouched until it was the next time to be fed or have their diapers changed. He described the blank, listless stares of the infants.

            The expressionless faces of too many elderly residents in America’s long term care facilities call these studies to mind. They, too, are often untouched unless they are wet or it is time to be fed. We have an epidemic of geriatric failure to thrive in America today. The public is only now beginning to grasp the nature of the problem and has yet to grasp it’s breadth. Nevertheless, the problem grows.

            Today, aides in America’s home health and long term care industries are over worked and woefully underpaid. These remain entry level jobs, often at minimum wage and without health benefits. It is no wonder that the annualized turnover rate among these people is over 100%. This level of churning in the workforce inhibits meaningful training. And staffing is so short that aides rarely have time to spend simply listening to and visiting with elderly or ill residents.

            The graying of America will accelerate dramatically between 2010 and 2030, as the baby boomers turn 65 years old. By the year 2030, 75 million Americans will be over 65, more than 20% of the population. In addition, there are 40 million Americans living now with chronic illness. Some estimates have that figure tripling by the middle of the 21st century.

            While the graying of America accelerates, private care-giving resources within our individual networks of relatives and close friends are rapidly falling. Social trends, including geographic mobility, smaller families and families in which both adults are working have all contributed to this decline. Specifically, in 1970 there were 21 healthy adults representing potential caregivers for every person 85 years or older. In 2030 there will be just six such potential caregivers for the aged and just four by the middle of the next century.

            Already families struggle to provide the sort of day to day, hour to hour, minute to minute care that we all want to give to our loved ones. I shudder to think of how hard it will be when it’s my generation’s turn to be cared for and our children’s turn to provide care.

 

THE BURDEN OF FAMILY CAREGIVING

Informal caregiving provided by relatives and close friends represents the unrecognized backbone of care in America. It is an enormous resource that can be supported and expanded as we grapple with the crisis of how badly Americans now die. A survey conducted in 1996 by the National Alliance for Caregiving and AARP found that nearly one quarter of households contained at least one caregiver. It is estimated that 25.8 million Americans spend an average of 18 hours per week caring for frail relatives. The economic impact of such care is extraordinary. It amounts to 196 billion dollars per year, more than formal home health care ($32 billion) and nursing home care ($83 billion) combined.

            Among the most poignant characteristics of the caregivers revealed by the NAC/AARP study, are the fact that 73% of caregivers are women. These women devote an average of 4.5 years to caregiving, but often as many as ten or more. And 15% of all caregivers and 31 % of those providing the highest levels of care report significant physical and emotional stress.

            Among the difficulties faced by caregivers are the profound needs of those for whom they care. Recently, researchers at the National Institutes of Health published an important study in the New England Journal of Medicine of caregiving needs among nearly 1,000 terminally ill patients living at home. Eighty-seven percent of the people needed help with things like transportation (62%), homemaking services (55%), nursing care (29%) and personal care (26%).

            These well documented facts must force American health policy makers and planners to expand the focus beyond the patient who is ill, including relatives and close friends who comprise a person’s “family” in our planning. These facts also compel us to look beyond the medical care to the care given by family and to the support provided by the persons community.

            In summary, the existing data have cast a light on a very disturbing picture of end-of-life care in America. But the same light also illuminates potential avenues for constructive change.

 

HOSPICE COULD BE ONE ANSWER

Hospice is a bright spot in this otherwise gloomy landscape, a hopeful beacon that exemplifies what we can achieve. Excellent hospice programs have provided us with a best practice standard, a benchmark against which to gauge the outcomes of our clinical and policy efforts.

            But hospice is wrestling with problems as well. Hospices now care for barely 20% of dying Americans and do so for rapidly diminishing periods of time. Numbers of admissions to hospice have actually increased to a current high of approximately 540,000 a year, but lengths of stay have plummeted to an all time low. In most programs, many patients receive care for barely two weeks. Intended to provide end of life care, hospices are now scrambling to provide brink of death care.

            The Medicare eligibility criteria of a six-month life expectancy has strongly and adversely influenced the delivery of hospice tare in America, severely limiting access to persons whose diseases, such as congestive heart failure, emphysema or senile dementias, are characterized by a prolonged or stuttering disease trajectory. Implementation by Medicare fiscal intermediaries of strict prognostic guidelines and rigid eligibility criteria for hospice admission threaten to further limit access to palliative care by patients with non-cancer diagnoses. In addition, these trends toward later referrals and shorter and shorter lengths of hospice care have substantially worsened under the influence of the Office of the Inspector General’s Operation Restore Trust [i.e., a federal program aimed at combating health care fraud, waste and abuse].

            Operation Restore Trust has sent a chill through American hospice programs. Hospice administrators and medical directors are worried -- with good reason -­- that if they admit patients with slowly progressive, but ultimately terminal, illnesses who live beyond a few months, the program will be investigated for fraud for having admitted the patient. Death typically occurs suddenly and somewhat unpredictably for patients dying of chronic heart, lung or neurologic diseases, in the midst of slow, up and down decline. Thus, there is reluctance to admit them until they are obviously dying -- too late for them to realize most of the benefits of hospice care. Also, many hospice programs feel compelled to discharge patients who have become relatively stable with the comprehensive care hospice provides. Away from hospice care, these patients, decline more rapidly and die shortly thereafter. This is ethically and socially troubling. And unnecessary.

            In addition to preventing patients from receiving good hospice care, the Medicare intermediaries’ Focal Medical Review procedures and Operation Restore Trust investigations entail huge administrative costs for hospice programs, often Involve frozen payments and carry the risk of large recoupment. These events can threaten the very survival of a small or moderate sized community hospice program.

            With this level of intense scrutiny one would expect that the problem being addressed in this tiny sector of our nation’s health care industry would be proportionately large. Yet, the Office of Inspector General’s own report concludes that instances of abuse In Medicare’s two billion dollar hospice program are uncommon.

            Is it necessary to be focusing such intense scrutiny on hospice programs? It is worth recalling that in the 1989 OBRA legislation, Congress added the unlimited fourth benefit period to the Medicare Hospice Benefit and the 6 month prognosis criteria was softened with statutory language adding, “if the disease runs it’s normal course.” Both actions were taken in recognition of the medical uncertainty regarding prognostication and in an attempt to address the reluctance of physicians to refer to hospice, or the tendency to refer too late.

            Instances of fraud and abuse should be vigorously pursued and prosecuted. But oversight programs must be conducted with an awareness of the social context and potential unintended consequences of the actions. Government programs to uncover abuse and responsibly administer public funds must also preserve fair and equitable access to critically needed services by suffering people.

 

IT DOESN’T HAVE TO BE THIS WAY

The most maddening aspect of the crisis in end-of-life care is that it need not exist. Dying is inherently hard, but it need not be horrible. We possess the medical expertise and more than enough resources to ensure that no one will die in physical agony. Pain and other distressing symptoms among dying persons can always be alleviated. Doctors and nurses may not be able to eliminate a person’s pain, but we ‘are always are able to make it a little less severe, a bit more tolerable.

            What we currently lack is a firm commitment on the part of the health care system to bring the power of medicine to bear in service of comfort and quality of life. Palliative care [i.e., symptom reduction] can be provided earlier In the course of a person’s illness. By managing symptoms, helping people address the difficult, but normal, psychosocial and spiritual concerns they may have and assisting with coordination of medical care and support services, including transportation and housekeeping, palliative care can dramatically improve the quality of life for the patient and his or her family.

            Beyond assurance of relative comfort, people need not die alone. Many times the caring presence of another person can soothe a dying person’s anxiety and distress. But comfort and companionship are not all there is.

            Over the years, patients and their families have taught me a surprising truth; this stage of life holds remarkable possibilities. When people are relatively comfortable, know that they will not be abandoned or allowed to become too heavy a burden on their families, they frequently use the time to strengthen bonds and complete relationships with people they love and create moments of profound meaning.

            People who are dying of a progressive illness have a chance to consider the question of what would be left undone if they died suddenly. In contrast to a sudden death, they can ask themselves what matters most and say and do many of the things that come in answer to those questions.

 

COMPLEMENTARY THERAPIES

When basic good care is provided, the complementary therapies have a wonderful contribution to make to people’s comfort and quality of life. The “complementary therapy” that I most commonly employ is the simple practice of eliciting and .listening to people’s stories. In the process of life-review, people often achieve a better sense of the meaning of their own life; their struggles and regrets as well as their triumphs and joys. They also may attain a deeper sense of the meaning of life in general.

            Obviously for many people approaching death, the spiritual aspects of life come to the fore. Spirituality and religion are not synonymous. Although many people cherish a felt connection to God, spirituality also exists in a felt connection to one’s family that will live on for generations to come. And spiritual bonds can extend beyond family. Fatally injured soldiers may express a connection to their country which will survive partly through their sacrifice. In Montana, people I care for commonly express a sense of connection to the wilderness, the rivers and the mountains into which their body or ashes will go.

            A number of alternative or complementary therapies represent resources for inner growth. Massage therapies can provide moments of peace and generate positive physical memories to balance the pain of illness. Therapeutic touch, an increasingly accepted nursing technique, can alleviate patients’ pain and anxiety. Relaxation training and meditation can help a person center swirling thoughts and calm emotions. Meditation and contemplative prayer can provide a place of safety and distance, not from, but within, the experience. This ability to remain centered and “well within oneself” In the middle of distraction, doubt, anxiety and bodily discomfort is recognized by many cultures and religious traditions as being critical preparation for the transition from life.

            The techniques of dream work and guided imagery, skillfully practiced, can help people explore inner realms and uncover rich insights from their unconscious. Breath work can allow access to otherwise hidden domains of personal and transcendent experience.

            A person’s culture, values, beliefs and temperament will all influence which, if any, of these practices will be helpful. But a common element among these techniques and therapies is that they foster a sense of inner confidence and openness. By relaxing body and mind a person can become more open to and less fearful of the mystery that awaits.

 

COSTS OF BETTER CARE

This is one national crisis whose solution need not cost more money. When the basics of good medical and supportive care are provided, families are able to care for their loved ones at home. It’s what patients and families want to do.

            Because dying people are, by definition, the sickest patients in the health care system, their care will never be inexpensive. However, home-based care of people with advanced illness, although not cheap, is much less costly than the Institution-based, medically focused care dying people currently receive. Indeed, as comprehensive as it is, even full hospice care is significantly less expensive than the care that is provided in its absence.

            Although hospice is less expensive than our “high-tech” curative care, statutory requirements that a person give up life-prolonging care as a requirement for hospice under Medicare erect a significant barrier to utilizing hospice. This requirement imposes a “terrible choice” on seriously ill patients and their families. They must acknowledge that the patient is officially “dying,” an emotionally devastating milestone that no one wants to cross. They also may need to relinquish their relationship with their oncologist, cardiologist, neurologist or pulmonologist and give up access to the hospital or another round of chemotherapy. Expensive medications to build up blood counts or treat resistant cases of nausea and vomiting may not be available under hospice care. Is it any wonder that some people refuse to make that choice?

            But, in fact, once admitted to hospice programs, the vast majority of patients and families are delighted with the care they receive. They become confident of being cared for, even in emergencies and as confidence builds. They tend to focus more on quality than absolute quantity of life. By providing a skilled and reliable home-based alterative to ambulance transports, emergency rooms, MRI’s and ICU’s, hospice experience shows that high levels of hands on care can be provided while remaining cost effective.

            This either-or approach to Medicare reimbursement for hospice care is built on the untested assumption that providing life-prolonging and palliative care together would be too costly. The experience in Canada and Britain would strongly challenge this assumption. In both countries, care for patients with chronic, progressive illness is of higher quality and significantly less cost. Although both health care systems have their problems, hospice is widely available, and few people worry about leaving their family financially devastated as they die.

            An important new model of affordable, enlightened long term care is provided by the Eden Alternative. Initially developed by Dr. William Thomas. the Eden Alternative has become a virtual movement within progressive segments of long term care, especially dementia care. In Eden nursing homes, there is strong emphasis on .greening” the environment with plants and pets. Intergenerational activities between seniors and young children and pleasurable human interaction are also fostered. The impact of “edenizing” nursing homes on patients with dementia can be profound. People who have been withdrawn often brighten when Interacting with a colorful bird, affectionate dog or cooing baby. Even having responsibility for a plant has been shown to have notable impact on a person’s health.

 

GOVERNMENT’S ROLE

The field of palliative care has advanced dramatically. Reimbursement structures and government policies have not kept pace. Unless bold and creative new solutions are helped to flourish, Americans won’t achieve the goals they say they want; to live out their lives in comfort and at home.

            Where do we start? First, a formal audit of the effects of prevailing statutory limitations and regulatory policies on access to needed services and quality of care for people who are dying is urgently needed.

            Second, creative models for delivering care have been developed and are ready for further testing. . . .

            Third, government can help by ensuring that medical education includes sufficient content in symptom management and the core skills of communication and ethical decision making.

            Fourth, compensation of aides in the nation’s home health and long term care programs must provide them with a living wage and their own health benefits. Requirements for training and certification of aide level personnel must be raised. So, too, staffing levels must be raised, enabling aides in nursing homes the time to give adequate care to the residents. The costs of these “high touch” improvements would be modest and more than likely would be offset by a corresponding reduction in futile “high tech” care and emergency admissions to hospitals and intensive care units.

            Fifth, America’s families are already giving their fair share in caring for their loved ones -- in fact many are doing so at the cost of injury to their own health. They deserve support. Government can provide tax breaks for caregivers and, as one of the nation’s major employers, can model flexible workplace and health benefit policies, setting an example for industry to follow.

            As someone who has actively opposed the legalization of physician-assisted suicide, I can tell you that opposition to physician-assisted suicide is shallow and insincere unless it is wedded to a constructive program of caring that Includes Increasing the number of health care professionals who are able to offer skilled care.

 

OTHER PLAYERS

Government can ensure equitable access to critically needed services such as hospice and home care. But ultimately, this national crisis is not one that can be fixed by government alone.

            The communities of our nation’s neighborhoods, workplaces, schools and the faith communities of our congregations also have critical roles to play. Each of us as friends, co-workers and neighbors can reach out to those we know as they are dying and to the families we know are struggling to provide care. We can even reach out to strangers in need. Compassion In Action’s Twilight Brigade of volunteers is an excellent example of what can be achieved. The critical service they provide is to show up. In so doing they give tangible evidence that they care and that the person who is dying still matters to them.

            Other programs around the country also provide us with valuable models of volunteer training and community-based support. The Stephen’s Ministry programs, Parish nursing programs, Care Team Network programs in Texas and Alabama, among others, often American faith communities, workplace communities and neighborhoods examples of strategies that work. We can and must build on these important examples.

 

CONCLUSION

In the midst of this crisis in end-of-life care, we have an opportunity to transform the way American society approaches the inevitable end of life. The root problems that comprise this crisis are many and deep, but every one can be addressed. We can build a future in which no one has to die alone or with their pain untreated. Congress can provide critical leadership in approaching this national crisis. Ultimately, the real solution to this national crisis lies in strengthening communities in which people share a sense of common life and look after one another, because to ignore each other’s needs would seem as unnatural as it is.

            Before we allow our society to recognize a so-called “right” to preemptive death, we must honor a basic human right to die in relative comfort, in the presence of caring people and in a clean, dry bed.

            Each of us can play an important role in realizing this goal, as legislators, as clinical professionals, but also as family members, friends and neighbors. We can see to it that people are cared for in a way that ensures relative comfort, prevents a sense of isolation but that also and honors people in their passing.

            The real solution to the crisis of care for the dying ultimately will emerge one person at a time by treating people in a medically competent, genuinely caring and even loving manner, allowing them to feel wanted, worthy and dignified even in their terminal frailty and physical dependence. . . .

 

Source: Adapted from U.S. House of Representatives, Committee on Government Reform hearing on Improving Care at the End of Life with Complementary Medicine (1999). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).

 

Questions for Review

1. According to Byock, what is the similarity between the orphanage crisis in late 1940s and care for the aged today?

2. What are some of the problems faced by family care giving today?

3. How does governmental oversight and efforts at fraud detection negatively impact hospice programs?

4. What are some of the complementary therapies that would enhance care for the aged and terminally ill?

5. How might volunteer groups help the situation?

 

Questions for Analysis

1. Byock argues that “Before we allow our society to recognize a so-called ‘right’ to preemptive death, we must honor a basic human right to die in relative comfort, in the presence of caring people and in a clean, dry bed.” Explain his rationale and whether you agree.

2. Examine some of the complimentary therapies mentioned by Byock and indicate which of any might be especially useful in enhancing a caring environment for the aged and dying.

3. Byock argues that listening to people’s stories gives them a better sense of life’s meaning. Explain why this might be the case.

4. Byock argues that government fraud detection efforts should be relaxed with hospice programs since it has the unintended consequence of discouraging people from participating. Do you agree that governmental oversight should be relaxed for the reasons Byock gives? Explain.

 

 

___________________

 

#5

PHYSICIAN ASSISTED DEATH IN OREGON: A SUCCESS

Kathryn Tucker

 

In 1994, voters in Oregon passed a ballot measure legalizing physician assisted dying. Known as the “Death with Dignity Act,” the measure allows for terminally ill patients to acquire through their physician a prescription for a lethal dose of medication, which the patient, and not the physician, would administer him or herself. The text of the Death with Dignity act is detailed, but the essential elements of it are these:

 

·       “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. . . .”

·       “‘Terminal disease’ means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”

·       “A valid request . . . [must be] signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.”

·       “To ensure that the patient is making an informed decision, [the attending physician shall] inform the patient of: (a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.”

·       “In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.”

 

The measure was controversial and in many ways stands as a test case as to whether a legalized policy of physician assisted dying might be abused. The article below is by attorney Kathryn Tucker, who defended Oregon’s Death with Dignity Act in a landmark Supreme Court case on the issue. She argues here that, since the Death with Dignity Act became law, there has been no evidence of abuse, coercion or misuse of the policy of physician assisted dying. It was carefully crafted to avoid such problems, and those who use the Dignity Act are well educated, insured, and have good pain management, but “find that the cumulative burden of their terminal illness is intolerable.” There is nationwide support for assisted dying, she argues, and there should be a nationwide law permitting it.

 

I. INTRODUCTION

. . . More than eight years of experience in the state of Oregon has demonstrated that risks to patients are not realized when a carefully drafted law is in place. In light of the Oregon experience, even previously staunch opponents have recognized that continued opposition to such a law can only be based on personal moral or religious grounds. The State of Vermont recently concluded, after thorough review of the Oregon experience, that: “it is [quite] 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.”

            Arthur Caplan, Director of the Center for Bioethics at the University of Pennsylvania School of Medicine, after reviewing the Oregon data stated: “I was worried about people being pressured to do this. But this data confirms, for the seventh year, that the policy in Oregon is working. There is no evidence of abuse or coercion or misuse of the policy.”

            The American Public Health Association, in an amicus brief filed in the Supreme Court of the United States recently, advised the Court:

 

Researchers have consistently found that experience in Oregon does not bear out concerns that physician-assistance 'would be disproportionately chosen by or forced on terminally ill patients who were poor, uneducated, uninsured, or fearful of the financial consequences of their illness.’

 

II. OVERVIEW OF OREGON LAW AND EXPERIENCE WITH IMPLEMENTATION:

A. Passage and Challenges

The Oregon Death with Dignity Act (“Dignity Act”) was passed in 1994 through the initiative process. Opponents of the Dignity Act have worked since then to overturn this law. First they sought relief from the Federal Government, urging the Drug Enforcement Administration (“DEA”) to take action against Oregon physicians who acted in compliance with the law on the basis that such activity violates the Controlled Substances Act (“CSA”).

            The DEA initially opined that its agents could revoke the registrations of physicians who assisted in hastening deaths under the Dignity Act. U.S. Attorney General Janet Reno, however, overruled this position, concluding that the CSA did not reach such conduct. Opponents then sought, in two successive sessions of Congress, to amend the CSA to expand its scope to reach the Dignity Act. 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.

            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 on November 6, 2001 (the “Ashcroft Directive”), advising that the Department of Justice had concluded that prescribing controlled substances under the Dignity Act violated the CSA” .

            The Ashcroft Directive was challenged in federal court by the state of Oregon, an Oregon physician and pharmacist, and a group of terminally ill Oregonians, who asserted that it violated the CSA, the Administrative Procedure Act and the U.S. Constitution. The federal district court, the Ninth Circuit Court of Appeals, and the United States Supreme Court all concluded that the Directive exceeded the authority granted under the CSA, and a permanent injunction was entered. The Supreme Court held that the Attorney General did not have the authority to effect a “radical shift” in the balance of state-federal power as it pertains to the regulation of the practice of medicine. The Court reaffirmed the traditional state-federal balance of power in regulating the practice of medicine, specifically upholding Oregon’s physician-assisted dying law as a legitimate regulation of medicine. By noting that General Ashcroft’s view of physician-assisted dying was but “one reasonable understanding of medical practice,” the Court made clear that Oregon’s view also is reasonable.

 

B. Implementation of the Oregon Law

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. The attending physician must determine, among other things, that the patient is mentally competent, an Oregon resident, and confirm their diagnosis and prognosis. To qualify as “terminally ill” a person must have “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”

            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, but not limited to, hospice care and pain relief. A consulting physician must confirm the attending physician’s medical opinion.

            Once a request from a qualifying patient has been properly documented and witnessed, and all waiting periods have expired, 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 immunizes 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.

            The Dignity Act also requires healthcare providers to file reports with the State documenting their actions; thus, Oregon’s experience with legal physician-assisted dying has been extensively documented and studied. To date, the Oregon Health Division and/or the Oregon Department of Human Service Office of Disease Prevention and Epidemiology have issued eight annual reports that present and evaluate the state’s experience with the Dignity Act. Related reports and articles have also been published in leading medical journals. These reports constitute the only actual source of reliable data regarding the experience of legal, regulated physician-assisted dying in America.

            These reports have shown the dire predictions of those initially opposed to the Dignity Act to be baseless. The data clearly demonstrate that the option of physician-assisted dying has not been unwillingly forced upon those who are poor, uneducated, uninsured or otherwise disadvantaged. The Reports show the following:

 

• use of physician-assisted dying is strongly associated with a higher level of education; those with a baccalaureate degree or higher were 7.6 times more likely than those without a high school diploma to choose physician-assisted dying.

• ninety-nine percent of patients opting for physician-assisted dying during the Dignity Act’s first six years had some form of health insurance and eighty-six percent were enrolled in hospice care.

• use of physician-assisted dying is limited. During the first six years in which physician-assisted dying was a legal option, a total of only 171 Oregonians chose it. The number of terminally ill adults choosing this option in 2003 represented only one-seventh of one percent—i.e., 0.0014 percent—of Oregonians who died that year.

 

            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. These include:

 

• greatly increased enrollment by Oregon physicians in Continuing Education courses to improve 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.

 

            In sum, the available data demonstrate that making the option of assisted dying available, far from posing any hazard to patients or the practice of medicine, has galvanized improvements in end of life care, benefiting all terminally ill Oregonians.

            The experience in Oregon reveals much about why dying patients choose to hasten impending death. In nearly all cases, multiple concerns contributed to the request. The patient’s most frequently cited concerns include a decreasing ability to participate in activities that made life enjoyable, the loss of autonomy, and the loss of dignity.

            A core argument made in opposition to legalizing the option of assisted dying contends that what terminally ill patients really need is good pain management and palliative care, not hastened death. These opponents contend that motivation to improve pain management will be undermined if assisted dying is an available option. Yet, as noted above, the Oregon experience has shown that legalization of assisted dying has galvanized efforts to improve pain management, and hospice enrollment in Oregon is stunningly high among patients who choose to make use of the Dignity Act. Terminally ill Oregonians do not choose assisted dying because they have untreated pain, quite the contrary; Oregonians have access to good pain and symptom management. Only the relatively few patients who find that the cumulative burden of their terminal illness is intolerable, and who persist in a desire to hasten impending death, go on to utilize the Dignity Act.

 

III. OVERVIEW OF SUPPORT FOR THE OPTION OF PHYSICIAN AID IN DYING

Though Oregon is the only state to have yet legalized the option of physician aid in dying, support for the option is widespread nationwide.

 

• Harris poll, January 2002, found that sixty-five percent of respondents support legalization of the right to physician-assisted dying and sixty-one percent favored implementation of a version of the Dignity Act in their own state.

• Another group of studies found that between sixty-three and ninety percent of people with a terminal illness support a right to physician-assisted dying and would like to have the option available to them.

• In California, surveys in March 2006 and March 2005 found that 70% of California residents support the idea that “incurably ill patients have the right to ask for and get life-ending medication.” An assisted dying measure introduced in the California State Legislature in 2005 has garnered strong support.

• Support is found among persons of diverse religious faiths.

 

Support is also strong among physicians:

 

• A national survey conducted in March 2005 found that 57% of physicians believe it is ethical for a physician to assist a competent, dying patient hasten death.

• A 2001 survey published by the Journal of the American Medical Association found that fifty-one percent of responding physicians in Oregon supported the Dignity Act and legalization of physician-assisted dying.

• A nationwide survey published in 2001 in the Journal of General Internal Medicine found that forty-five percent of responding physicians believed that physician-assisted suicide should be legal, whereas only thirty-four percent expressed views to the contrary.

• Mental health professionals recognize that dying patients can choose aid in dying and be fully mentally competent.

• A significant number of medical associations have decided to embrace a position of “studied neutrality” on the question of legalizing physician-assisted dying, recognizing the division within the medical community on the question.

 

IV. THE BACK ALLEY, COVERT PRACTICE

Although legal only in Oregon, physicians throughout the country regularly receive requests for assistance in dying. Nearly thirty-percent of physicians responding to a 1998 New England Journal of Medicine survey stated that, since entering practice, they had received a request from patients to hasten death. Of those physicians who had received such a request, twenty percent had complied.

            A survey of physicians in Washington revealed that twelve percent of had received a request to hasten death during the previous year, and twenty-four percent of the patients who requested medications to hasten death received them, notwithstanding the fact that Washington does not have a law in place like the Dignity Act.

            Patients who cannot find a physician willing to assist under existing law often act alone or with assistance from family members. Many people shared such stories in amicus briefs submitted to the Supreme Court in the Glucksberg, Quill and OR v. Gonzales cases. These stories detailed the suffering of loved ones who did not have access or authority to end their own lives. One woman told the story of her husband who had terminal cancer of the spine, lungs, and lymphatic system. Unwilling to await death in a drugged state, her husband kissed his wife good-bye and shot himself in the front yard. “I wish I could have been with him at the end, but he said ‘no, it will be messy.’”

            Another woman detailed the death of her daughter who was dying of bone cancer. Despite the excruciating pain, her daughter feared for her mother’s participation in ending her life. “I should be able to talk with my doctor and plan this, not ask my mom. Mom, what if you go to prison? What will happen to you?” Nonetheless, the woman assisted her daughter by giving her medication. “It was the ultimate act of love a mother could do for her suffering, dying child.” When her daughter died, the woman was finally able to hug her daughter without hurting her. Many other such stories have been told: from loved-ones who helped patients die, to others who helplessly watched patients die and the resulting effects on the surviving family members.

            Thus, the question is not whether assisted dying will occur, but rather whether it will occur in a regulated and controlled fashion with safeguards and scrutiny, or whether it will occur covertly, in a random, dangerous and unregulated manner.

 

V. CONCLUSION

In Glucksberg and Quill the Supreme Court recognized that Justice Brandeis’s concept of the states as laboratories was particularly applicable to physician assisted dying. The Court’s conclusion in those cases that the federal constitution does not bar states from prohibiting physician assisted suicide rested in large part on a reluctance to reach a premature constitutional judgment that would cut off the process of democratic decision making in the states.

            It is timely, prudent and humane for 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. Passage of such laws would harm no one, and would benefit both the relatively few patients in extremis who would make use of them, and a great many more who would draw comfort from knowing this option is available should their dying process become intolerable to them.

 

Source: Senate Committee on Judiciary subcommittee hearing, The Consequences of Legalized Assisted Suicide and Euthanasia (2006)

 

 

Questions for Review

1. What kind of legal challenges have been made to the Dignity Act?

2. What is the profile of the typical person who availed his/herself of the Dignity Act?

3. What are the typical reasons that patients have given for using the Dignity Act?

4. Critics of the dignity act argue that patients really need is good pain management and palliative care, not hastened death. How does Tucker respond?

5. Describe some of the “back alley” and covert suicide practices that terminally ill people have resorted to.

 

Questions for Analysis

1. Based on the quotations from the Death with Dignity Act in the editor’s introduction to this essay, which parts of it are most important for preventing abuse, and why?

2. Tucker argues that “even previously staunch opponents [to the Dignity Act] have recognized that continued opposition to such a law can only be based on personal moral or religious grounds. Her implication is that such a basis for opposition is insufficient to guide public opinion on this issue. Do you agree, and why?

3. Review the statistics that Tucker presents regarding support for assisted dying among U.S. citizens and physicians. Is such support strong enough to justify a law allowing it?

4. Tucker argues that in the absence of laws permitting assisted dying, people will end their lives anyway. Is this a sufficient reason for legalizing assisted dying?

 

 

 

___________________

 

#6

DECRIMINALIZING EUTHANASIA IN THE NETHERLANDS: A FAILURE

Wesley Smith

 

The Netherlands has a long history of liberal social policies, which in recent times has included euthanasia. Technically, laws against it are still on the books, but at the same time the law permits a defense from doctors who follow official euthanasia guidelines. Thus, for all practical purposes, it is legal, and is the only place in the world where it is openly practiced. What is key to the guidelines is that patients may voluntarily request euthanasia from their doctors if they are experiencing unbearable suffering with a lasting longing for death. Countries around the world scrutinize the Dutch experience with euthanasia as a test case for potential problems and what the effects of legalized euthanasia might be if permitted elsewhere. The essay below is written by Wesley Smith, an attorney, member of the conservative think tank the Discovery Institute, and author of the book Forced Exit: Euthanasia, Assisted Suicide, and the New Duty to Die (2006). Smith argues here that over the past 30 years the Dutch practice of euthanasia has gone down a slippery slope of abuses, which should serve as a serious warning to U.S. policy makers. While euthanasia in the Netherlands was originally presented as being for rare occurrences, it soon became frequent and applied to “categories of people whose assisted deaths would have once provoked outrage.” Smith notes how euthanasia practices have expanded to include patients who experience emotional suffering, yet have no physical suffering. A growing number of infants and children are also being euthanized. He argues that the guidelines themselves are routinely discarded since the Dutch government fails to prosecute physicians who violate them.

 

… There are two deep ideological beliefs asserted by advocates for legalizing assisted suicide. The first is radical individualism that perceives the right of personal autonomy as being virtually absolute. Accordingly, promoters of assisted suicide generally believe that “the individual’s right to self-determination—to control the time, place, and manner of death” is a paramount liberty interest. The second ideological principle underlying assisted suicide advocacy is that killing (ending life) is an acceptable answer to the problem of human suffering.

            Assisted suicide is usually couched in terms that would limit assisted suicide to those who are terminally ill. But given the philosophical/ideological principles that underlie the euthanasia movement—that autonomy is paramount and killing is a valid answer to human suffering—restricting assisted suicide to the dying becomes utterly illogical. After all, many people experience far greater suffering and for a far longer period than people who are terminally ill. Thus, once the premises of assisted suicide advocacy become accepted by a broad swath of the medical professions and the public, there is little chance eligibility for “permitted” suicide will remain limited to the terminally ill.

            We need only look to the experience of the Netherlands to see the destructive force that the implacable logic of euthanasia ideology unleashes. The Dutch have permitted euthanasia and assisted suicide since 1973. Euthanasia became an integral part of Dutch medicine after a court ruling that refused to meaningfully punish a physician, Geetruida Postma, who had euthanized her mother. The court accepted the premise—supported by both the prosecution and the defense—that most Dutch doctors favored euthanasia in some cases. Accordingly, even though convicted of murder, Dr. Postma received only a one-week suspended sentence and a year’s probation.

            To justify its action, the Court established the first “boundaries” for euthanasia practice in the Netherlands. Among these were the requirements that the patient be considered incurable, implying that the patient must suffer from a severe physical illness; that the patient’s suffering be subjectively unbearable; that the request for termination of life be in writing; and that there should be adequate consultation with other physicians before euthanasia could be carried out. Inclusion of these conditions in the court’s decision became the basis for subsequent public and government acceptance of euthanasia in the Netherlands.

            With the Postma decision, the Dutch stepped boldly onto a steep slippery slope. Other court decisions soon followed, with each widening and further liberalizing the conditions under which euthanasia would not be punished. Thus, even though euthanasia remained technically illegal until 2002, it soon became entrenched in Dutch medical practice.

            In 1993, the Dutch Parliament formalized the permissive “decriminalized” system of euthanasia permissiveness that had been first crafted by the courts. Under this approach, so long as doctors followed the guidelines when euthanizing patients, they would not be prosecuted. These guidelines included:

• The request must be made entirely of the patient’s own free will and not under pressure from others.

• The patient must have a lasting longing for death.

• The request must be made repeatedly over a period of time.

• The patient must be experiencing unbearable suffering.

• There must be no reasonable alternatives to relieve suffering than euthanasia.

• Doctors must consult with at least one colleague who has faced the question of euthanasia before.

• Only a doctor can euthanize a patient.

• The euthanasia must be reported to the coroner, with a case history and a statement that the guidelines have been followed.

 

            In actual practice these guidelines were porous and provided scant protection for the weak, vulnerable, and despairing, nor, as we shall see, have they inhibited doctors from euthanizing patients who fell outside the guidelines’ parameters.

            At this point it is important to recall that when euthanasia was first accepted in the Netherlands, it was supposed to be a rare event, to be resorted to only in the most unusual cases of “intolerable suffering.” The guidelines were designed specifically to keep euthanasia occurrences few and far between by establishing demanding conditions that had to be met, at the risk of criminal prosecution. Over time, however, doctors began to interpret the conditions loosely and even ignore them altogether. In the few circumstances where the law took notice, the courts accommodated expanded euthanasia through continual loosening of the meaning of the guidelines.

            This is the typical pattern of the assisted suicide movement. Life-ending actions by doctors are always presented to the public as being advocated as a “rare’ occurrence, to be applied only when nothing else can be done to alleviate suffering. Proponents soothingly assure a doubtful public, as the New York euthanasia advocate Dr. Timothy Quill once put it, that assisted suicide will be restricted to “the patient of last resort, [to be] taken only when hospice care stops providing comfort and dignity,” when “all alternatives have been exhausted.” But once accepted widely and put into actual practice—as the Dutch experience clearly demonstrates—it quickly ceases to be rare, nor is killing resorted to only when all else fails. Instead, in the words of the physician, Dr. K. F. Gunning, perhaps the most notable Dutch opponent of euthanasia, “Once you accept killing as a solution for a single problem, you will find tomorrow hundreds of problems for which killing can be seen as a solution.”

            Euthanasia was finally formally legalized in the Netherlands in 2001, effective 2002. In the thirty-plus years since euthanasia was redefined in the Netherlands as a legitimate tool of medical practice instead of a serious crime, cultural biases have changed. No longer constrained by conscience or culture, thanks to a redefinition of euthanasia as medical treatment instead of killing, Dutch doctors now terminate categories of people whose assisted deaths would have once provoked outrage, and do so in numbers that were not anticipated when the practice was first promoted in 1973. Rather than being rare, statistics show that euthanasia is now almost a matter of medical routine.

 

THE REMMELINK REPORT

In 1990, responding to the ongoing heated debate about Dutch euthanasia and the many anecdotes being told internationally about the involuntary killing of patients by doctors, the Dutch government decided to determine how euthanasia was actually being carried out and appointed an investigative committee for that purpose. Called the Committee to Investigate the Medical Practice Concerning Euthanasia, it was commonly known as the Remmelink Commission, after the committee’s chairman, Professor J. Remmelink, then the attorney general of the Dutch Supreme Court.

            The commission’s two-volume report, known as the Remmelink Report, was issued in 1991. The Remmelink Report included complete statistical data upon which it based its conclusions. Independent analysis of this rich source of information had a profoundly negative impact on the world’s view of Dutch euthanasia. According to the Remmelink Report, about 130,000 people die each year in the Netherlands. Of these, approximately 43,300, or about one third, die suddenly—from catastrophic heart attacks, stroke, accidents, etc.—thus precluding medical decision making about end-of-life care. That leaves approximately 90,000 people whose deaths involve end-of-life medical decision making each year.

            With that in mind, here are the figures about euthanasia-related deaths in 1990, derived from the Remmelink Report’s published statistical data:

 

• 2,300 patients were euthanized (killed) by their doctors upon request, and 400 people died through physician-assisted suicide, for a total of 2,700 doctor-induced deaths. That is approximately 3 percent of all deaths involving end-of-life medical care. The equivalent percentage in the United States would be approximately 41,500 deaths.

• 1,040 died from involuntary euthanasia, lethal injections given without request or consent—three deaths every single day. These deaths constitute slightly more than 1 percent of all cases involving end-of-life medical care. (The same percentage in the United States would be approximately 16,000 involuntary killings per year.) Of these involuntary euthanasia cases, 14 percent, or 145, were fully competent to make their own medical decisions but were killed without their request or consent anyway. (The same percentage in the United States would be more than 2,000 who would be killed.) Moreover, 72 percent of the people killed without their consent had never given any indication they would want their lives terminated.

• 8,100 patients died from an intentional overdose of morphine or other pain-control medications, designed primarily to terminate life. In other words, death was not a side effect of treatment to relieve pain, which can sometimes occur, but was the intended result of the overdose. Of these, 61 percent (4,941 patients) were intentionally overdosed without request or consent. The equivalent percentage in the United States would be approximately 78,000.

 

            These figures are startling. Of the approximately 90,000 Dutch people whose deaths involved end-of-life medical decision-making in 1990, 11,140 were intentionally killed (euthanized) or assisted in suicide—or 11.1 percent of all Dutch deaths involving medical decision-making! This is approximately 8.5 percent of Dutch deaths from all causes. Of these killings, more than half were involuntary (1,040 involuntary lethal injections and 4,941 involuntary intentional overdoses). Applying those percentages to the U.S. death rate would mean more than 170,000 deaths each year caused by euthanasia or assisted suicide, and about 85,000 of these involuntary, more than the current number of U.S. suicides and homicides combined.

            It should also be kept in mind that the Remmelink statistics probably underestimate the actual number of deaths caused by euthanasia and assisted suicide. A study conducted by the Free University at Amsterdam revealed that two thirds of Dutch general practitioners have certified a patient’s death as resulting from natural causes when in fact it was euthanasia or assisted suicide. Another Dutch study arrived at a similar conclusion, finding that only 28 percent of doctors were honest about their euthanasia killings when filling out death certificates. A more recent Dutch study, written up in the New England Journal of Medicine in November 1996, found that only 41 percent of all euthanasia deaths were reported to the authorities. This same study revealed that 23 percent of physicians interviewed had killed patients without having received an explicit request. Along a similar vein, a 2003 study published in The Lancet found that “the rate of euthanasia had significantly increased” between 1995 and 2001 [sic — the study actually states between 1990 and 1995— Ed.], while “the rate of ending life without a patient’s explicit request remained virtually unchanged.”

 

A PRACTICE BEYOND EFFECTIVE CONTROL

In 1999, a statistical analysis of Dutch euthanasia practices published in Journal of Medical Ethics concluded that the Dutch promise of “effective regulation ring hollow” and that killing by doctors in the Netherlands “remains beyond effective control.” And for good reason: As University of Haifa’s Raphael Cohen-Almagoran a self-described ideological believer in euthanasia admitted in his 2004 book, Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing, Dutch euthanasia policy:

 

…does not work because all of the guidelines, without exception, are broken time and time again. It is not always the patient who makes the request for euthanasia or physician-assisted suicide. Often the doctor proposes euthanasia to the patient. Sometimes, the family initiates a request. The requirement that the request be voluntary is thus compromised. On occasion, the patient’s request is not well considered…[T]here have been cases in which no request was made and patients were put to death. Furthermore, the patient’s request is not always durable and persistent as required.

 

            Beginning with the Remmelink Report and continuing thereafter with virtually every other study of Dutch euthanasia practices—whether by proponents or opponents of medicalized killing—report after report has demonstrated clearly that guidelines do not protect and do not restrict. And why should they? The Dutch government has clearly indicated it has no interest in forcing doctors to toe the line by its infrequent prosecution of doctors who violate euthanasia regulations, and in the rare case of a conviction, never imposing meaningful punishment. For example, the British Medical Journal reported on a general practitioner who killed his elderly comatose patient with a lethal injection, was convicted of murder but received a one week suspended sentence, hardly a meaningful penalty despite having violated virtually every protective guideline.

            But the issue goes much deeper than law enforcement authorities refusing to enforce the rules. What euthanasia really did to the Dutch was to profoundly alter the nation’s conception of right and wrong. With the widespread acceptance of a euthanasia consciousness in the Netherlands, the guideline limitations became mere window dressing that made little actual difference at the bedside to doctors or, indeed, to much of the general public. Finding the proverbial exception to the rule became a standard practice, which in turn, soon changed the exception into the rule. The official guidelines then expanded to meet the actual practice.

            The psychiatrist Dr. Herbert Hendin, medical director of the American Foundation for Suicide Prevention, is one of the world’s foremost experts on Dutch euthanasia. Over the last several years, Hendin has held extensive discussions with Dutch doctors who euthanize patients and has reviewed the records of actual cases. Dr. Hendin believes that many doctors in the Netherlands feel justified in performing involuntary euthanasia, because a system that accepts killing as a legitimate medical practice “encourages some to feel entitled to make [euthanasia] decisions without consulting the patient.” As an example, Hendin recounts his interview with a pro-euthanasia doctor who justified killing a nun who had requested not to be killed on the basis of religious belief, because he felt she was in too much pain.

            To prove the existence of cases that violate the official guidelines, it is not necessary to rely on anecdotal evidence. Such cases have even been documented in euthanasia-friendly documentaries originally produced in the Netherlands and later shown in the United States. One such documentary, broadcast over public television on the program The Health Quarterly in 1993, revealed how broadly the Dutch guidelines are interpreted.

            One case documented in the film concerns a man named Henk Dykema, who at the time of filming was asymptomatic HIV-positive. Dykema feared the afflictions that he expected to befall him and had been asking his doctor to kill him for more than a year. The film shows the doctor telling Dykema that he might live for years at his current stage of infection, but the patient wants none of it. The doctor, a general practitioner, then discussed Dykema’s case with a colleague, also a general practitioner. Significantly, no psychiatrist was consulted or involved. Finally, the doctor agreed to provide a poisonous drug cocktail to Dykema, even though he was not suffering any significant physical symptoms.

            Dykema’s assisted suicide was clearly not a last resort, as required by the Dutch guidelines. He and his doctor did not explore all other possible options, such as psychiatric treatment, which could well have alleviated his anxiety and depression. Nor was he told of the actions the doctor could have taken to relieve his suffering when he did become ill. The doctor didn’t even wait until his patient had actual symptoms of AIDS.

            Dr. Hendin, analyzing Dykema’s case from a psychiatrist’s perspective, commented, “The patient was clearly depressed. The doctor kept establishing that the man was persistent in his request, but did not address the terror that underlay it.” Now consider this: had the doctor called in suicide prevention experts to help Dykema instead of assisting his suicide, Dykema might well have survived long enough to benefit from the drugs that now extend the lives of HIV patients for many years.

            The documentary also shows Maria, a twenty-five-year-old woman with anorexia nervosa, asking for euthanasia. She is in remission but fears a recurrence of her malady, stating: “I’ve thought about dying day and night, and I know that if relief does not come, I will return to the old pattern, the pattern of self-punishment, hurting myself I know it. I feel it, and therefore I hope the release will come soon and I die.” Maria’s doctor agrees to assist her suicide, justifying his abandoning his patient to her worst fears, “It is not possible to have a good quality of life for her.” This case was even too much for the authorities, who brought charges against the doctor. However, the euthanasia consciousness had so permeated the justice system that a judge ruled that Maria’s assisted suicide was justified because her suffering had made her life unbearable.

            Similar tragedies can be found in many published investigations of Dutch euthanasia. For example, The Oregonian reported on a woman with skin cancer who was euthanized. She was not in pain, nor was she in a terminal stage of her illness. Rather, she was upset by the scars on her face and demanded euthanasia from her doctor, or else—the threat being that she would “jump from the balcony.” Her doctor, to his later expressed regret, accommodated her wish to die.

            Studies indicate that families, rather than patients, sometimes decide when the time has come for euthanasia. According to Dr. Hendin, doctors called in such cases “usually advocate euthanasia,” because they “support the relatives’ desire to be free from the burden of caring for the patient.” One such case occurred when a wife told her husband to choose euthanasia or a nursing home. Not wanting to be cared for by strangers, he chose death. The doctor killed him, despite knowing of the coercion.

            Dancing With Mr. D, a revealing book written a few years ago by a Dutch doctor, Bert Keizer, demonstrated how farcical the protective guidelines have become in the Netherlands. Keizer works in a nursing home, where he cares for—and sometimes kills—disabled, elderly, and dying people. He looks upon euthanasia as a necessary and proper, albeit distasteful, part of his job. As depicted in the book, so do his colleagues, patients, and their families.

            Keizer is brutally honest in revealing his own attitudes about his patients. He depicts the lives of frail and dying people as pointless, useless, ugly, grotesque. Those with whom Keizer interacts all seem to share these views, including his colleagues, family members of patients, and the patients themselves. This allows Keizer to kill patients without consequence other than having a few bad dreams.

            And kill his patients Keizer does, again and again. One man he euthanizes probably has lung cancer but the diagnosis is never certain. A relative tells Keizer that the man wants to be given a lethal injection, a request later confirmed by the patient. Keizer quickly agrees to kill the man. Demonstrating the utter uselessness of “protective guidelines,” Keizer never tells his patient about treatment options or how the pain and other symptoms of cancer can be palliated effectively. He never checks to see if the man has been pressured into wanting a hastened death or is depressed. Keizer doesn’t even bother to confirm the diagnosis with certainty. When a colleague asks why rush, and points out that the man isn’t suffering terribly, Keizer’s radical view of autonomy and his acceptance of killing as an answer to serious human illness, leads him to snap irritably:

 

Is it for us to answer this question? All I know is that he wants to die more or less upright and that he doesn’t want to crawl to his grave the way a dog crawls howling to the side walk after he’s been hit by a car.

 

            Another of Keizer’s patients is disabled by Parkinson’s disease. The patient requests to be killed, but before the euthanasia can be carried out, he receives a letter from his brother, who uses a religious argument to urge him to change his mind. The letter causes the man to hesitate, upsetting Keizer, who writes:

 

I don’t know what to do with such a wavering death wish. It’s getting on my nerves. Does he want to die or doesn’t he? I do hope we won’t have to go over the whole business again, right from the very start.

 

            Keizer involves the nursing home chaplain to assure the man that euthanasia will not upset God. The man again thinks he wants to die. Keizer is quick with the lethal injection, happy the man has “good veins,” and the man expires before his uncertainty can disturb his doctor’s mood again.

            Dutch doctors now also assist the suicides of depressed people who are not physically ill—and the practice was approved explicitly by the Dutch Supreme Court in the death of Hilly Bosscher. Bosscher wanted to kill herself because she had lost her two sons—one to suicide in 1986 and the other to brain cancer in 1991. Bosscher had briefly received psychiatric treatment years earlier for the depression and suicidal thoughts she experienced after her son’s suicide. On the day her second son died, she failed in an attempt to kill herself. She still wanted to die but hesitated at unassisted self-destruction for fear that she would be hospitalized if she tried and failed again. However, she moved the graves of her two sons to the same cemetery and purchased a burial plot for herself so that she could be buried between them.

            Bosscher began to attend meetings of the Dutch Euthanasia Society, where she met Dr. Boudewijn Chabot. She told Chabot that she didn’t want therapy, “because it would loosen the bonds with her deceased sons.” Chabot took her as a patient anyway and met with her on four occasions between August 2 and September 7, 1991. Chabot did not attempt to treat her. Rather, he interviewed her to determine her prognosis. After these interviews and his consultations, believing her to be suffering from “incurable grief”—and despite the complete absence of any physical illness—he helped Bosscher kill herself on September 28, 1991.

            Chabot was prosecuted, although it was never contemplated that he would be jailed or otherwise meaningfully punished. Indeed, the government’s own witness supported the assisted suicide. The Dutch Supreme Court, with the minor caveat that Chabot erred by not having a colleague independently examine the patient, validated Chabot’s actions. The basis of the ruling was that the law cannot distinguish between suffering caused by physical illness and suffering caused by mental anguish—which, of course, is where euthanasia leads with the sheer force of logic.

 

DUTCH EUTHANASIA LEADS TO PERMITTED INFANTICIDE

In the Netherlands, infants are killed because they have birth defects, and doctors justify the practice. A 1997 study published in the British Medical Journal, The Lancet, revealed how deeply pediatric euthanasia had metastasized into Dutch neonatal medical practice. According to the report, doctors killed approximately 8 percent of all infants who died in the Netherlands in 1995. Assuming this to be typical, this amounts to approximately 80-90 infanticides per year. Of these, one-third would have lived more than a month. At least 10-15 of these killings involve infants who did not depend on life-sustaining treatment to stay alive. The study found that 45 percent of neonatologists and 31 percent of pediatricians, who responded to study’s questionnaires, had killed infants. A follow up study of end-of-life decisions made for infants published in the April 9, 2005, found that nothing had changed. In 2001, “in 8%” of cases, drugs were administered to infants “with the explicit intention to hasten death.”

            In 2004, Groningen University Medical Center made international headlines when it admitted to permitting pediatric euthanasia and published the “Groningen Protocol,” infanticide guidelines the hospital utilized when killing 15-20 disabled newborns each year.” The Protocol creates three categories of killable infants: infants “with no chance of survival,” infants with a “poor prognosis and are dependent on intensive care,” and “infants with a hopeless prognosis,” including those “not depending on intensive medical treatment but for whom a very poor quality of life…is predicted.” Par for the course, authorities refused to prosecute even though pediatric infanticide is clearly murder under Dutch law.

            Apologists for the infanticide applauded Dutch doctors for going public with the Protocol. “As things are,” Eduard Verhagan, head of Groningen’s children’s clinic told the Associated Press, “people are doing this secretly and that is wrong. In the Netherlands we want to expose everything to let everything be subject to vetting.”

            Contrary to Dr. Verhagan’s assertion, it has long been known Dutch doctors kill disabled and dying babies—as The Lancet study of 1995 infanticides (published in 1997) cited above demonstrates. Indeed, a 1990 report of the Royal Dutch Medical Association (KNMG), Life-Terminating Actions with Incompetent Patients, set forth “requirements for careful medical practice” when ending the lives of handicapped newborns. The standard for permitting pediatric euthanasia was based on what Dutch doctors call an “unlivable life.” Rita Marker discussed Dutch infanticide in her seminal expose` of the international euthanasia movement, Deadly Compassion. I also wrote about Dutch infanticide practices in my 1997 edition of Forced Exit.

            Infants are not the only children who are eligible for euthanasia. Pediatric oncologists have provided a hulp bij zelfoding (self-help for ending life) program for adolescents since the 1980s, in which poisonous doses are prescribed for minors with terminal illness. Moreover, children who want physician-assisted death may be able to receive it without consent of their parents. Dutch euthanasia advocates have also agitated to reduce the age of consent to euthanasia to 12-year-olds.

 

DRAWING CONCLUSIONS

Unlike the Dutch, Americans do not come to the decision whether to accept legalized assisted suicide blindly. We have the Dutch experience to guide us. On the basis of their experience with euthanasia, what can we learn? First, the slippery slope is very real. As Dr. Gunning put it, the Dutch have proved that once killing is accepted as a solution for one problem, tomorrow it will be seen as the solution for hundreds of problems. Once we accept the killing of terminally ill patients, as did the Dutch, we will invariably, over time, accept the killing of chronically ill patients, depressed patients, and ultimately perhaps, even children.

            Second, adopting killing as an acceptable answer to human suffering eventually changes popular outlooks. The law not only reflects our values, but in our diverse age, it tells us right from wrong. Accordingly, once killing is redefined as medical treatment, it becomes transformed from “bad” into “good.” Thus, the guidelines intended to “protect against abuse” eventually are viewed not as protections but instead as hurtles separating sick and dying patients from the beneficence of death. In such an intellectual and cultural milieu, it becomes easy to justify ignoring or violating “guidelines.”

            Third, the Netherlands is a much more tolerant society than we are, generally more accepting of differences among people, such as those of race, gender, and sexual orientation. An editorial in the New England Journal of Medicine cited a plethora of studies that uncovered significant race-based inequality in the delivery of health care in the United States, and opined that the disparities in the delivery of health care apparently caused by racism need to be focused upon with the “rigor and attention given to other health concerns of similar magnitude.” These and other factors make it likely that legalizing and especially “routinizing” euthanasia in the United States would be especially dangerous for marginalized populations.

            Finally, the euthanasia virus is catching. A 2000 report found that 10 percent of Belgian deaths appear to result from euthanasia. With Belgian doctors clearly eager to follow the lead of their Dutch neighbor, Belgium formally legalized euthanasia in 2002. Notably, the first Belgian case, the killing of a man with multiple sclerosis, violated the guidelines; and just as occurs routinely in the Netherlands, the doctor involved faced no consequences. Now Belgium is set to legalize euthanasia for children. Indeed, Belgian doctors in Flanders have been found to commit infanticide in about the same numbers as their Dutch counterparts. Moreover, according to a study published in The Lancet, nearly 70% “of the physicians questioned…had either used lethal drugs for this purpose [to end infants’ lives] or could conceive of situations in which they would use them.”

            Given the profound import of the debate over assisted suicide, the federal government has a crucial role to play. By pursuing its own national public policy that unequivocally opposes transforming suicide and euthanasia, it can influence the national debate without infringing on important principles of federalism. Such policies could include enacting a statute declaring suicide not to be a legitimate medical use of federally controlled substances. It can broaden the prohibition of using federal funds for use in assisted suicide, under Medicaid, Medicare, in Veterans hospitals, and the like. Engaging the issue at the federal level would be consistent with the government’s obligation to promote the general welfare . . . .

 

Source: U.S. Senate Judiciary subcommittee hearing, The Consequences of Legalized Assisted Suicide and Euthanasia (2006)

 

Questions for Review

1. What are the two beliefs held by advocates of assisted suicide and euthanasia?

2. In what ways is the voluntary nature of the euthanasia request compromised in the Netherlands?

3. What is the Dutch Supreme Court’s view on euthanizing patients who experience only mental suffering, but no physical suffering?

4. How has euthanasia expanded to infanticide in the Netherlands?

5. In his conclusion, what is the “slippery slope” of euthanasia abuse that Smith believes is very real?

 

Questions for Analysis

1. Based on the information that Smith provides, is the pattern of euthanasia abuse really as serious as Smith maintains? Explain.

2. Assume that euthanasia abuses in the Netherlands are as bad as Smith maintains. In view of differences between Dutch and US culture, does this necessarily mean that such abuses would emerge in the US? Explain.

3. Smith notes the Dutch Supreme Court’s position that the law cannot distinguish between suffering caused by physical illness and suffering caused by mental anguish. Is there a reasonable distinction between physical pain and mental pain that might allow euthanasia in the former case but not in the latter?

4. The Dutch guidelines for euthanasia do not include a requirement that the patient must be terminally ill; such a stipulation is included in the Oregon Death with Dignity Act. Is this a serious omission in the Dutch policy that might account for most of the abuse that Smith mentions?