The Right to Die and Assisted Suicide
THE RIGHT TO DIE AND ASSISTED SUICIDE
Death is the end of life and the process of dying involves choices and actions. By the end of the twentieth century not only has life become more complicated, but so has the process of dying. No longer do many Americans die early from infectious diseases (strep throat, pneumonia, etc.), but life expectancies run well into the seventies with heart disease and cancer being primary killers. Medical technology can keep terminally ill (dying) patients alive much longer than ever before. Patients who previously would have died quickly from an inability to eat and drink or other complications now can be sustained for days, weeks, even years. Intravenous (IV) feeding and hydration (watering), artificial blood circulating and respiratory systems, antibiotics, and chemotherapy (treatment for cancer) enable life to be prolonged.
Die Nobly and at the Right Time
The Roman's philosophy about dying was, "To live nobly also means to die nobly and at the right time." Figuring out what is the "right time" is the key problem, especially toward the end of the twentieth century. In the 1990s the courts wrestled with ethical (moral codes) and legal controversies. When should an artificial respirator or feeding tube be removed from a person in a coma? When should chemotherapy be discontinued for a cancer patient? Not only when, but who has the right to make the call? Patient's rights groups and physician's organizations as well as religious groups battle for control over decisions about how and when an individual dies. Laws and court decisions began to establish rules and standards to apply to the dying. For example, the right of an individual to refuse medical procedures—sometimes referred to as the right to die—has been affirmed. Before considering court decisions, the difference between right to die and assisted suicide must be clear.
The Right to Die
The right to die generally refers to allowing a patient to die by natural causes when life-sustaining treatment is taken away. The cause of death is considered, therefore, the illness. A competent person may refuse medical treatment. A competent patient is considered by the courts one who can give consent (agree) to be treated or not be treat. The ability to accept or refuse medical treatment is often referred to as bodily self-determination or patient autonomy (self-reliance). On the other hand, an incompetent patient does not have the ability to make such decisions.
A competent person, realizing that he may become incompetent as time passes, may leave instructions to others about desired medical decisions. These directions are called an advance directive or living will. Another option is for the person to appoint a trusted individual to make decisions when he becomes unable to do so. This individual would be called a proxy directive or durable power of attorney. In the 1990s most states had living will laws and all fifty had durable power-of-attorney laws. More people chose to use proxy directives or power-of-attorney than living wills.
Assisted suicide, generally referred to as physical-assisted suicide, is when a doctor helps individuals take their own lives. Generally, the physician helps a patient to take his own life by prescribing a drug that the doctor knows will be used by the patient to commit suicide. The patient dies not by natural causes, but by human action. Assisted suicide is a felony offense in most states. Only in Oregon has physician-assisted suicide been legalized. Oregon voters approved the Oregon Death with Dignity Act in November of 1994 and, in a repeat voter referendum in 1997, refused to repeal (cancel) the act. The Oregon law is crafted with many requirements and restrictions.
The most famous individual associated with physician-assisted suicide through the 1990s was Dr. Jack Kervorkian, also known as the "suicide doctor." With questionable screening procedures, the retired pathologist assisted in numerous suicides using a machine that allows the patient to decide when to deliver a lethal (killing) poison. Charged numerous times with murder, Kervorkian was found guilty in 1997 of second degree murder in a Michigan trial.
By the 1990s the difference in the meaning of the two terms, right to die and assisted suicide, became clouded in the general public's mind. This is because organizations promoting assisted-suicide legislation began to refer to their effort as the right-to-die movement.
The Controversy Over Assisted Suicide
Supporters of assisted suicide say it is not really different from withholding life supporting medical care and that it is a merciful and dignified option for individuals whose quality of life has become intolerable due to illness. It is a more visible and more easily regulated decision.
On the other side is the American Medical Association whose Code of Medical Ethics considers assisted suicide very different from removal of life sustaining medical care. Although accepting that removal of life support is sometimes necessary to honor a patient's wishes, it holds that assisted suicide is against professional ethics. Others in opposition see a "slippery slope" where legalizing assisted suicide could lead to abuses of the chronically ill, handicapped, and elderly. The Catholic Church, arguing that human life should not be destroyed for any reason, is one of many religious organizations opposed to assisted suicide.
Approximately fifteen years before most cases considering life-and-death medical decisions began working their way through the legal system, the 1975 case of Karen Ann Quinlan was decided in the New Jersey Supreme Court. For the first time Americans focused on the right to die. Quinlan, a twenty-one year old woman in a coma from apparent ingestion of tranquilizers and alcohol. She was on life support and her condition was considered hopeless. Her parents asked that life-sustaining medical care be stopped. In a unanimous decision, the New Jersey Supreme Court ruled that Quinlan had a constitutional right to privacy to refuse medical treatment. Under the circumstances, her father's decision to end care should be honored. The Quinlan decision established the first legal guidelines for withholding life supporting medical treatment.
In 1990 the U.S. Supreme Court jumped into the right to die argument with a decision in Cruzan v. Director, Missouri Department of Health. Nancy Cruzan, permanently unconscious from brain injuries sustained in an automobile accident, had previously made informal statements to her roommate about never wanting to be kept in a "vegetative" state. Her parents contended that these statements were enough to indicate her wishes and the life preserving medical treatment should stop. The Court ruled that when a competent person issues "clear and convincing" instructions as to medical care including food and water, it is their constitutional right to have those directions followed. The right has been rooted in common law for centuries. However, the Court decided Cruzan's statements to her roommate were not clear and convincing instructions. In the absence of "clear and convincing" instructions from what became an incompetent person, the Court recognized the state of Missouri's interest in protecting life and safeguarding against potential abuses. The Court refused to require Missouri to honor the "substituted judgement" of Cruzan's family as had been honored in the Quinlan case. The Court left it up to states to adopt "clear and convincing" evidence standards. A key result of the ruling was that it encouraged people to leave advance instructions since the courts will honor them. This ruling was an affirmation of an individual's control of their right to die. The Court, reflecting general public opinion, was comfortable in allowing a competent person to refuse treatment, even if it meant their death. However, that same level of comfort for many people and the courts has not been reached for assisted suicide.
Is Assisted Suicide a Right?
Justice Sandra Day O'Connor had commented in Cruzan that the country was only beginning to address questions of medical ethics and that the crafting of procedures should be left to the states. In Washington v. Glucksberg (1997) the Supreme Court was asked to review the constitutionality of a Washington state statute prohibiting physician-assisted suicide. The law made it a crime to assist, aid or cause the suicide of another person. Many other states have similar laws. Four physicians, three seriously ill patients, and a non-profit counseling organization asked that the law be negated claiming assisted suicide was a constitutional right. The Court in examining U.S. history, tradition, and legal practice and finding no support for assisted suicide as a fundamental right, upheld the Washington law. The Court commented that the state of Washington had a real interest in preserving life, preventing suicide, and safeguarding the poor, sick, and elderly from relatives that might encourage assisted suicide.
On the same day in 1997, the Court also released its decision in a similar case, Vacco v. Quill. A New York law prohibits helping another person commit suicide while allowing competent adult patients to terminate (stop) life sustaining measures. Three doctors and three terminally ill patients claimed this was inconsistent and in violation of "equal protection of the laws" guaranteed in the Fourteenth Amendment. The Court concluded that physician-assisted suicide is very different from refusing medical treatment. States may treat each practice differently without being in conflict with equal protection.
A Matter of States
Through Washington v. Glucksberg and Vacco v. Quill the Court rejected the idea that assisted suicide was a constitutional right and confirmed that states could draft laws banning assisted suicide.
Through 1999 no cases involving the Oregon Death With Dignity Act had reached the Supreme Court. However, the U.S. Senate was considering passage of the Pain Relief Promotion Act. This bill would prevent use of federally controlled medications in assisting suicide and, if passed, would in effect outlaw the procedures of the Oregon law.
Suggestions for further reading
Bender, David L., and Bruno Leone, eds. Euthanasia: Opposing Viewpoints. San Diego: Greenhaven Press, Inc., 1989.
Cox, Donald W. Hemlock's Cup: The Struggle for Death with Dignity. Buffalo, NY: Prometheus Books, 1993.
Delury, George E. But What If She Wants to Die? A Husband's Diary. New York: Carol Publishing Group, 1997.