Assisted Suicide

During summer 1997, the US Supreme Court will decide whether to permit doctors to help their patients kill themselves by providing the information and/or means. While most news reports imply the cases deal with voluntary decisions by competent adults, the High Court is reviewing decisions that are far more sweeping, including non-voluntary euthanasia for those who are not terminally ill.¹

Background

Few people are unaware of Jack Kevorkian, a Michigan pathologist who has been actively involved in the deaths of more than 44 people, most of whom were ill or disabled, but not dying.² Kevorkian must not be dismissed simply as a "maverick doctor" - he has molded opinions significantly in society, medicine and law. Moreover, he serves to make the established pro-euthanasia movement appear "moderate."

For the most part, the general public remains ambivalent about Dr. Kevorkian. While people may reject his brazen demeanor, Kevorkian appears to address their fears of pain, suffering, dependency and abandonment. America's response to these issues will have profound social, legal, medical and moral consequences. This paper will explore why and how the cause for imposed death is being promoted and determine what must be done to meet the needs of those who seek deliberate, premature death.

Definitions

Euthanasia is an action or an inaction which, of itself or by intention, causes the death of someone who is medically vulnerable.³ Euthanasia differs from other killings in that the agent of death assumes that death will be "good" for the person who dies or for the survivors. As such, "mercy killing" is often used as a synonym.

• Euthanasia can be voluntary (the person gives informed consent, as in assisted suicide); non-voluntary (the person who is killed is incapable of giving consent); involuntary (the person refuses consent); or compulsory (mandated death).
  
  
• In assisted suicide, someone provides an individual with the information, guidance and/or means to take his or her own life.
  
  
• "Aid-in-Dying," a legislative term, is defined as "swiftly, painlessly and humanely terminating the life of a qualified patient."⁴ Under such proposals, doctors (or others) would be permitted to take actions to kill patients or assist suicide by providing information and lethal prescriptions.

Current legislative status

Except for Oregon, where a 1994 law would permit physicians to assist patients to die,⁵ no state explicitly permits assisted suicide. (Oregon's "Measure 16," officially called the "Death with Dignity Act," is currently being challenged in court.) Meanwhile, legitimate questions are being asked: Will the law's "safeguards" prove meaningless, as they have in Holland where euthanasia is widely practiced in a quasi-legal arrangement?⁶ Will Medicare or Medicaid be forced to pay for suicide assistance in the name of "comfort care?" Will "suicide clinics" be established? Will those who are vulnerable because of physical or emotional impairments be manipulated into "choosing" death? Since the Oregon vote, at least 14 other states have considered measures to legalize assisted suicide and/or euthanasia, none of which have passed.⁷ Conversely, three state legislatures enacted or clarified laws banning assisted suicide,⁸ making a total of 44 states which do so. In Minnesota, assisted suicide and attempted assisted suicide are criminal acts.⁹ Yet Minnesota is not immune from attempts to introduce the practice of euthanasia. In 1996, the State Senate considered an amendment to a bill which would have permitted Minnesota pharmacists to fill prescriptions written in other states for the purpose of suicide. The measure was rejected, 36-25.¹⁰

Minnesota's Adult Health Care Decisions ("living will") law permits causing death by withholding or withdrawing nutrition and hydration (food and water).¹¹ It considers food and water to be medical treatment, rather than normal care. The law states that "Nothing in this chapter may be construed to condone, authorize, or approve mercy killing, euthanasia, suicide, or assisted suicide."¹² Similar terminology in Washington state's living will law was manipulated so Measure 16 transformed assisted suicide and euthanasia into "aid in dying," becoming legal, "medical treatment."

Factors influencing attitudes about euthanasia and assisted suicide

• Changing demographics. The US already has more older Americans than ever; 40 million "baby boomers" are now entering their 50s and soon will come retirees. With an aging population comes problems of health, health care, economic imbalance and other problems. At the same time, the birth rate has declined. The ability of a younger generation to support its elders is increasingly more tenuous.¹³
  
  
• The cost of medical care is growing beyond the rate of inflation. Financial pressures will exacerbate calls for health care rationing and euthanasia.¹⁴
  
  
• There has been a shift away from families and communities as the center for caring. In turn, the individual has, to a great extent, become the primary unit in society. The notion of autonomy has expanded, as has dependence on the legal system to settle personal conflicts.
  
  
• Traditional religious values have been eroded. A "quality of life" ethic is replacing the "sanctity of life" ethic.
  
  
• Suicide¹⁵ is increasing among Americans in general.¹⁶
  
  
• Modern medical technology has focused on cure, which has improved life for many. Meanwhile, in many ways, medicine's function of caring for those who cannot be cured has been de-emphasized.
  
  
• The needs of many sick, disabled, terminally ill or otherwise medically vulnerable persons have not been adequately addressed.

These and other factors have helped set the stage for the so-called "right to die."

Proponents of Euthanasia

Euthanasia advocates manipulate the pressures and fears of those who are suffering, depressed, socially isolated, abandoned, or financially pressured.

Jack Kevorkian has focused a spotlight on the practice of euthanasia, however promotion of euthanasia in the US is not new. As early as 1906, Iowa introduced "providing for the removal by the chloroform route...of certain individuals who are...found to be permanently and fatally diseased; and also...of certain ones that are permanently incapacitated owing to mental weakness."¹⁷

Today's predominant euthanasia organization, Choice in Dying, was organized in 1938 as the Euthanasia Society of America to legalize active euthanasia, including "the putting to death of non-volunteers beyond the hope of medical science." The proposal was "limited purposefully to voluntary euthanasia because public opinion is not yet ready to accept the broader principle."¹⁸ In 1941, the Society's president proposed a euthanasia program for mentally retarded children who were "utterly unfit."¹⁹ Recognizing that the public was not yet ready to accept euthanasia, the group changed its name in 1974 to Society for the Right to Die and shifted its focus to promote "living wills" and legislation.²⁰

In 1990, it again changed its name and merged with its educational sister, Concern for Dying, becoming the National Council on Death and Dying.²¹ The name Choice in Dying was used after 1991. The smaller, more militant Hemlock Society, which has chapters in several states, including Minnesota, is working to gain social and legal acceptance of "aid-in-dying." Other euthanasia advocates include the American Civil Liberties Union, and the American Humanist Association.²² Advocates of euthanasia have one primary goal: to achieve social and legal acceptance of "total self-determination in dying." The legal mechanics of "substituted judgment" (sometimes called "proxy decision making") for those who are unable to participate in their own medical treatment decisions are already in place.

Pending US Supreme Court Decision

The U.S. Supreme Court is considering two US Circuit Courts rulings:

• Compassion in Dying v. Washington.²³ In March 1996, the Ninth Circuit Court of Appeals voted 8-3 to invalidate Washington state's law against assisted suicide. The court claimed the due-process clause of the 14th Amendment to the US Constitution guarantees terminally ill, competent adults a "liberty interest" in doctor-assisted death. The decision is specifically not limited to mentally competent, terminally ill adults and makes it clear that a decision of a duly appointed surrogate decision maker is for all legal purposes identical to a decision by a patient himself. Chief author Judge Stephen Reinhardt based his decision on Planned Parenthood v. Casey, the US Supreme Court decision which afforded "constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." In Casey, the Court held: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."²⁴
  
  
• Quill v. Vacco.²⁵ In April, 1996, the Second Circuit Court of Appeals threw out New York's long-standing ban against assisted suicide. In a unanimous decision, the three-judge panel ruled that the 14th Amendment's equal-protection (non-discrimination) clause contains the same guarantee as the due process clause. It compared the "right" to hasten death by requesting lethal drugs to the right to refuse life-sustaining food and fluids, thereby causing death by starvation and dehydration.²⁶

If the High Court had refused to hear the cases, legalized assisted suicide would have been imposed on the 12 states of the Ninth and Second Circuits.

Opposition to euthanasia is growing

Today, formal opposition to the legalization of assisted suicide is growing. Thirty-nine organizations and coalitions have filed amicus briefs urging the US Supreme Court to reverse the two lower court rulings. Among them are:

• Forty-six medical groups, including the American Medical Association, Society of Critical Care Medicine, American Psychiatric Association, American Nurses Association, Catholic Medical Association, American Osteopathic Association, joined forces in an amicus ("friend of the court") brief. Their brief argues that it would be "particularly ironic" if the "first treatment" to which patients have a constitutional right was physician assisted suicide. "Patients come to physicians and nurses at times of greatest need and vulnerability, depending upon these professionals to respond to their needs capably and faithfully.... Many patients may understandably wonder, finding themselves badly injured and in care of a physician they do not know but who is licensed in taking the lives of patients, whether that physician will truly act only to preserve their lives."
  
  
• The American Geriatrics Society's brief argues elderly and frail persons will be at risk of legalized assisted suicide.
  
  
• Twenty state attorney generals entered a brief opposing assisted suicide, as did the chairmen of the Congressional House and Senate Judiciary Committees.²⁷
  
  
• A broad spectrum of religious groups, including Lutheran, Catholic, Southern Baptist, Christian evangelical, Jewish and Muslim, entered briefs urging the High Court to reject assisted suicide.
  
  
• The International Anti-Euthanasia Task Force's brief warned that assisted suicide will be especially pertinent in a health care system dominated by managed care.

Congressional Action

Before it adjourned in September, 1996, the 104th Congress introduced the "Assisted Suicide Funding Restriction Act" to prevent federal funding for services "to cause, or assist in causing, the suicide, euthanasia, or mercy killing of any individual" in Medicaid, Medicare or other health or disability programs.²⁸

What can we do to combat euthanasia and, specifically, assisted suicide?

One positive outcome of discussions about euthanasia has been the recognition that more can be done to meet the needs of the chronically ill, disabled and dying.

• Pain can erode a patient's willingness to continue treatment, even to live. If a person's pain is not being managed, he must seek a doctor more aggressive in easing pain, rather than one who will recommend death.²⁹

  There have been many advances in pain management in recent years, including new drugs, self-administered morphine pumps, biofeedback, adaptive devices, and epidural catheters. Clinics are being established specifically to treat pain. In 1993, as part of a national effort to educate professionals and the public about the availability of pain control, the US Department of Health and Human Services issued a series of pamphlets.³⁰ The World Health Organization insists that 95% of all cancer pain can be managed and the remaining pain reduced to a tolerable level.³¹

• Like pain, depression is often undiagnosed and untreated.³² A depressed person may not think logically or rationally about suicide. Concerned Americans ought to be familiar with the availability of suicide prevention agencies.³³
  
  
• Those who are dying need not die alone or in pain. Palliative care is intended to affirm life and regard dying as a normal process, neither hastening nor postponing death.³⁴ Pain, anxiety and other symptoms are managed so each patient may live life to the fullest extent possible until the moment of natural death. The hospice concept (which practices palliative care) recognizes that humans are comprised of body, mind and soul and addresses the physical, emotional and spiritual needs of dying patients. Hospice care is often less expensive than hospital care.³⁵

Other recommendations

• Support respite care and other programs that provide vital services and offer opportunities for socialization.
  
  
• Select a pro-life doctor.
  
  
• Realize that opposition to the death ethic is neither a "liberal" nor "conservative" cause - it is a matter of human rights. Oppose any legislative or public policy efforts which undermine protections for the rights and lives of those who are medically vulnerable.

Recommended for further reading

Cameron, Nigel M. de S., The New Medicine: Life and Death After Hippocrates, (Wheaton, IL: Crossway Books, 1991).

Gomez, Carlos F., Regulating Death (NY: The Free Press, 1991). On euthanasia in the Netherlands.

Human Life Alliance of MN, "Euthanasia, An Advertising Supplement," (St. Paul, MN, 1997). [Scheduled for release mid-1997]

Marker, Rita, Deadly Compassion: The Death of Ann Humphrey and the Truth About Euthanasia, (NY: William Morrow and Co., Inc., 1993).

Web Links

International Anti-Euthanasia Task Force http://www.iaetf.org. (Links to Pain Control and Disability Rights)

LifeWeb (Canada) http://www.awinc.com:80/partners/bc/commpass/lifenet/euthan1.htm.

National Right to Life Committee http://www.nrlc.org/euthanasia/index.html

¹Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996) and Compassion in Dying v. Washington, 79 F. 3d 790 (9th Cir. 1996).

² "The Real Jack Kevorkian," International Anti-Euthanasia Task Force; PO. Box 760; Steubenville, OH 45932.

³ An action (commission) may be administering a lethal agent, smothering, shooting, etc. This is sometimes referred to as direct or positive euthanasia. Death may also be caused by intentionally withholding (omitting) necessary, ordinary (usual and customary) care or food and water. Death will be attributable to a new cause (i.e. dehydration) - not the underlying pathology (such as brain damage or heart disease). This is sometimes referred to as indirect or passive euthanasia.

⁴ The 1988 ballot initiative petition in California was the first time the concept of physician aid-in-dying - active euthanasia - was pursued in the U.S. It's primary sponsor was Americans Against Human Suffering, the political arm of the Hemlock Society. The measure was defeated.

⁵ Measure 16, "Death with Dignity Act," was approved by voters by a narrow 51%-49% margin.

⁶ Hendin, Herbert, MD, Seduced by Death: Doctors, Patients and the Dutch Cure, W. W. Norton and Co., 1996.

⁷ Alaska, Arkansas, California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, Oregon, Washington, Wisconsin. Iowa, Hawaii, Montana and Texas previously considered measures which would permit euthanasia or assisted suicide.

⁸ Georgia, Iowa and Rhode Island.

⁹ Criminal Code 609.215. "Whoever intentionally advises, encourages, or assists another in taking the other's own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000 or both."

¹⁰ Amendment to S.F. 2643, March 11, 1996, by Sen. Alan Spear.

¹¹ Minnesota Law, Chapter 145B, Adult Health Care Decisions.

¹² Ibid., at 145B.14.

¹³ It is projected that by 2030, there will be 55% fewer people in the average care giving range (ages 50-64) to care for those aged 85 and older than there are today. Childs, Nathan D., "Chronic Disease Could Trip Up Health System," Family Practice News, January 1, 1997, page 8.

¹⁴ A panelist at the 1997 annual conference of the American Economic Association recommended changing the laws against assisted suicide so "the incurably sick could get a chance for a last act of altruism on behalf of their relatives and a medical system strained by the cost of keeping alive patients without hope of recovery." Meyers, Mike, "The Methuselah dilemma: Can America afford grandma and grandpa?" "Business," Star Tribune, January 12, 1997, D1, 4.

¹⁵ Suicide has been decriminalized in every state.

¹⁶ Youngsters in the U.S. are twice as likely to commit suicide than children elsewhere in the industrialized world. In 1950, the youth suicide rate was 0.2 per 100,000; in 1993, it was 0.9 per 100,000 children. Associated Press, February 7, 1997.

¹⁷ Hollander, Russell, "Euthanasia and Mental Retardation: Suggesting the Unthinkable," Mental Retardation, April 1989, pp. 53-61.

¹⁸ "'Mercy' Death Law Ready for Albany," New York Times, February 14, 1939, p. 2.

¹⁹ "'Mercy' Death Law Proposed in State," New York Times, January 27, 1939, p. 21.

²⁰ That year, Dr. Joseph Fletcher, known as "Father of Situation Ethics," was installed as president of Society for the Right to Die. Society for the Right to Die: The First Fifty Years, 1938-1988, organization's anniversary booklet.

²¹ Malcolm, Andrew H, "2 Right-to-Die Groups Merging for Unified Voice," New York Times, April 12, 1990, p. A12. Concern for Dying was known until 1978 as the Euthanasia Educational Council.

²² Such advocacy is easily demonstrated by their supportive roles in various court and legislative matters and through organizational literature.

²³ Compassion in Dying v. Washington, 79 F. 3d 790 (9th Cir. 1996).

²⁴ Planned Parenthood v. Casey, 505 U.S. 833, 60 LW 4795 (US SupCt, 1992).

²⁵ Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996).

²⁶ The analogy is correct - either is an active choice to cause death. Nevertheless, most discussions regarding withholding food and water from non-consenting handicapped persons (a widespread practice) deny or ignore this logic.

²⁷ Minnesota Attorney General Humphrey did not join in this brief even though assisted suicide is banned in the state.

²⁸ S. 2108 (Dorgan, B. (D-ND) and Ashcroft, J (R-MO) /H.R. 4149 (Hall, R. (D-TX), Coburn, T (R-OK) and Weldon, D (R-FL). There were 15 other Senator and 116 House sponsors. Congressional Record, September 24, 1996, S11175. A spokesperson for the Hemlock Society said her group opposes the bill because assisted suicide "should be like any other medical procedure." Associated Press, September 28, 1996.

²⁹ Foley, Kathleen M., MD, "Competent Care for the Dying Instead of Physician-Assisted Death" New England Journal of Medicine, Vol. 336, No. 1, January 2, 1997.

³⁰ For more information or for copies of guideline documents, write Center for Research Dissemination and Liaison; AHCPR Publications Clearinghouse; P.O. Box 8547; Silver Spring, MD 20907.

³¹ World Health Organization, Cancer Pain Relief, 1986.

³² While effective therapies for depression have been available for more than 35 years, only one in ten patients receive adequate therapy. Modica, Peter, "MDs often fail to diagnose, treat depression," Medical Tribune, February 20, 1997, pages 1, 6.

³³ Crisis intervention/Suicide prevention numbers are listed in every phone book and on the Internet.

³⁴ WHO Expert Committee, "Cancer relief and palliative care." Technical Series Report 804, World Health Organization, Geneva, 1990.

³⁵ National Hospice Organization, 1901 N. Moore St, Suite 901, Arlington, VA 22209.

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