By Howard Ball
December 10, 2012
I. What Is Physician-Assisted Death?
“When I can’t tie my bow-tie, tell a funny story, walk my dog, kiss someone special,” said a man dying of amyotrophic lateral sclerosis (ALS), “I’ll know that life is over. It’s time to be gone.” For this terminally ill person, physician assisted death is how he will go.
Physician assisted death (PAD) is a relatively new phrase in the American lexicon. It is the law in two states, Oregon, 1994, and Washington State, 2008. A terminally ill patient residing in these states—competent and not clinically depressed—can ask for and receive from his doctor a prescription for medicine that, if ingested, ends life. PAD differs from euthanasia because in euthanasia the medical practitioner dispenses the lethal amount into the client.
Ironically, it was the actions of two radical euthanasia zealots—Dr. Jack Kevorkian, a pathologist, and Derek Humphry, the founder of the Hemlock Society—that led to the onset of the bitter debates in America regarding PAD. These clashes began in 1990 and continue to this day. They involve ethics, constitutional arguments, and ruthless policy battles waged in two dozen states.
From 1990 through 1997, Kevorkian drove to his clients in a battered Volkswagen bus. They had responded to ads placed in Michigan newspapers by Kevorkian hawking the “Thanatron,” his death device. It ended the lives of 130 ill persons—many not terminal, some clinically depressed. Tried four times in Michigan courts for assisting in suicide, he avoided conviction the first three times. However, he was convicted in 1997 for euthanizing a client whose illness (ALS) prevented him from taking his life. He not only took the client’s life; he videotaped the event and it was telecast on a 60 Minutes segment. It was used to convict him in the Michigan court.
Derek Humphry’s wife died of cancer, in great, unmitigated pain at the end. He believed that such agony was cruel and unnecessary and advocated euthanasia to end the lives of dying patients. Toward that end, he founded the Hemlock Society, which provided persons with information to take a “final exit” from the pain of chronic illnesses such as cancer or ALS.
Why did these uncompromising men appear in the public eye at this time in history? Because American society was experiencing the “medicalization of death,” a multifaceted event that began in the early decades of the 20th century. Death was given a medical character, as seen in enormous advances in medical technology, new inventions, and drugs. Hospitals were no longer places where poor people went to die; they had become places where sick people were treated and health restored. Doctors used these innovations to treat and cure their patients, even though extending their life led to unforeseen problems.
Medical science—with its new techniques and special departments (CPR, public health agencies, emergency departments, intensive care units, medical specialists) and its innovative life-saving medicines and procedures (penicillin, organ and bone marrow transplants, artificial hearts and hips, defibrillators)—led to a near doubling of life expectancy. In 1900, the average life expectancy of an American was 47 years; in 2000, it was nearly 80 years.
In 1900, infectious diseases like tuberculosis and pneumonia were the primary causes of death. By 2000, degenerative diseases like cancer and heart disease were the major causes of death. Americans are living longer and dying more slowly of chronic diseases that rob them of a vibrant life and leave many of them in great pain, immobile, experiencing urinary and bowel incontinence, a loss of dignity, and totally dependent on others. This new medical reality has led to the PAD controversies.
II. The Choices a Terminally Ill Patient Confronts
Today a person facing a degenerative death has a limited number of choices available to address that grim reality. He can have life-saving medical treatment withdrawn or withheld from his body. Under common and constitutional law, a competent person is an autonomous individual with the right to self-determination. He can make such a choice even though it will lead to his death.
A second path—taken by growing numbers of terminally ill patients—is to treat the pain aggressively, even though it will hasten the patient’s death. In 1974, there was a single hospice. By 2010, more than 40% of terminally ill people (a little more than one million persons) were aggressively treated for pain and suffering in hospice through palliative care.
These choices pose no legal or ethical problems. As long as the dying patient is competent, society’s values allow such choices. Suicide is another path. It is no longer a criminal act in America, but many dying who contemplate this choice are put off because of the gross violence of a gunshot or a jump off a bridge. By 1990, there were groups of people—dying patients, death with dignity organizations, medical professionals—who called for a dignified way to die.
PAD is the final choice. It is today a criminal act in 48 states. If a doctor assists a dying patient by deliberately providing the knowledge, the means, or both, which the patient then uses to end his life, the physician is a criminal, subject to prosecution, loss of license, and imprisonment.
For some dying persons, the specter of a slow, painful, and humiliating period before biological death is too much. Their illness prevents them from leading the life they had before they contracted cancer or Parkinson’s disease or ALS. They experienced social death and did not want to spend many months, in some cases years, awaiting biological death. They believe they have the constitutional liberty to take their life. Furthermore, they maintain that their doctor can assist them by providing information and prescribing the medications used to end their life.
For PAD advocates, including this author, two principles are paramount in its defense: 1) patient liberty/autonomy, and 2) the doctor’s duty to relieve suffering. The right to self-determination is guaranteed by the “liberty” provision in the U.S. Constitution’s Due Process clauses. A terminally ill patient has the liberty to choose death by receiving a fatal prescription from her doctor. It is an absolute right possessed by an individual; the government cannot abrogate it.
The second tenet is the compassionate medical practitioner who provides his dying, suffering, patient with a prescription that, if filled, will enable the patient to die with dignity. This medical procedure, PAD, is right; it is caring; it is moral.
Opposed to these arguments are conservative philosophers, scientists, clergy (especially the Roman Catholic hierarchy), doctors, nurses, politicians, lobbyists, and pressure groups. For all of them, there are limits to individual autonomy. And PAD is not a fundamental right. They believe that a more fundamental societal right—the sanctity of human life—trumps individual autonomy.
They categorically reject the second principle. The Hippocratic Oath’s essential message, that doctors must “do no harm,” is the primary guideline for doctors. Compassion is not a substitute for appropriate medical treatment of the dying patient—until a patient refuses the treatment.
IV. Law and Policy
The issue of PAD entered the courtrooms and legislative assemblies in 1990. In the courts, especially the U.S. Supreme Court, the essential question revolved around the scope of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
In 1990 every state had laws making assisting suicide a felony. PAD advocates in New York and Washington State went into federal courts to challenge them. Representing a small number of terminally ill patients (all dead by 1997), the lawyers presented two arguments in the trial and appellate courts. First, “liberty” in the Due Process clause is a fundamental right. Its scope extended to a terminally ill patient’s liberty to die with dignity with the passive assistance of a medical practitioner.
Second, the state laws violated the “Equal Protection” Clause of the 14th Amendment because they allowed the withdrawal of life support from a dying patient while denying another dying patient receiving a physician’s assistance in dying. For the supporters of PAD, the two actions are not different: in both, death occurs.
Surprisingly, majorities in both appeals courts, the Second Circuit (New York) and the Ninth Circuit (Washington), accepted the arguments and invalidated the laws.
In Washington v Glucksberg, 1997, the Supreme Court overturned the decision of the Ninth Circuit. Chief Justice Rehnquist wrote the opinion for the Court, focusing on the broad interpretation to “liberty.”
The due process clause, he wrote, prevents substantial government interference with fundamental rights and liberties. Is PAD such a fundamental liberty? Was PAD “a deeply rooted” value in the nation’s “history, legal traditions and practices.” For Rehnquist, PAD was not such a value. Affirming the lower courts, he concluded, “would reverse centuries of legal doctrine and practice and strike down the considered policy choice of almost every state.”
The Court also overturned the Second Circuit. In Vacco v Quill, Rehnquist concluded that New York’s prohibition of PAD did not violate the 14th Amendment. PAD was not the equivalent of withdrawal from medical life-saving procedures. In the former, taking the fatal dose of medication was the proximate cause of death. Refusing or withdrawing life-support procedures led to death; the underlying illness was the proximate cause of death. They are not the same, therefore equal protection is not germane.
While the decisions were unanimous, 9-0, there were concurring opinions because of the technical issue the litigation raised. In both cases, all the patient-petitioners died. Consequently, the PAD lawyers had to present a “facial challenge” to the laws. This is a very tough standard to meet. The lawyers must show that that there was no set of circumstances existing under which the law would be valid. If the patient-petitioners were alive in 1997, the lawyers would have presented an “as applied” challenge. In this scenario, they had to show that the law was invalid as applied to these patients. Concurring opinions strongly suggested the probability of validating the lower courts had the petitions been filed as “as applied” challenges.
These two cases are precedent in American jurisprudence. There has been no new challenge to other state laws prohibiting physician-assistance in dying. However, the battleground moved from the courtroom to legislative chambers and voting booths. Rehnquist’s final message to the parties in both cases was prescient: “Our holding permits this debate to continue, as it should in a democracy.” The debate did continue, in more than two dozen states.
In these legislative battles—and every one has been a bitter ideological fight—the pro-PAD advocates have fared poorly. Except for Oregon and Washington, every proposed PAD bill was defeated. The major “anti” organizations remain the Roman Catholic church, which has spent many millions of dollars to defeat the bills; professional organizations, especially the American Medical Association and nursing groups; organizations representing the physically disabled, such as the group Not Dead Yet; Right to Life political pressure groups, who view PAD battles as surrogate for the Roe v Wade abortion clashes; and many Republican politicians—from state legislators to President George W. Bush.
V. PAD’s Future
From the 1990 defeat of California’s PAD/euthanasia proposal to the November 2012 defeat of the Massachusetts PAD bill, the “antis” have succeeded in blunting most efforts to pass PAD legislation. Only the voters in two northwestern states and, in 2009, the Montana Supreme Court, and some federal judges have accepted the rightness of PAD.
Yet things are happening that suggest significant changes in the society’s attitudes about death and dying. We are finally confronting the reality of how we die. There was only one functioning hospice in 1974; there are now thousands of facilities in every state and territory. Palliative care was not part of medical school curricula; today it is an important specialization. As the baby boomers have to confront the tragedy of degenerative diseases that rob them of dignity, more of them have come to believe that PAD is the “least worst death.”
Our society’s history clearly shows how values evolve, how they become more inclusive. Times change, and the meaning of the Constitution’s words has kept pace—slowly but surely—with these changes since 1789. For the past seventy years, there have been significant expansions of individual liberties. The privacy value has been expanded to protect marital, sexual, and abortion rights. I am sure that physician assistance in dying will eventually be seen as a constitutionally protected right that terminally ill patients can choose without hesitation. Compassion has been a major factor in the growth of individual rights in America. It is the major trigger in the PAD issue; it will ultimately generate acceptance of PAD as “the least worst death” for some human beings.