Two of the most controversial political issues in the U.S. today are abortion and physician-assisted suicide for terminally ill patients. What values do the people on opposite sides of each of these issues share in common with one another?”
So reads the final question on the midterm exam I gave my Ethics 101 students at the Community College of Vermont last week. The question combines several threads of classroom discussion: perceptions of the ‘enemy’; the relationship between religion and moral values; the application of moral reasoning to assess supportable facts on both sides of any ethical decision; and the neo-Druidic proverb, “From the point of greatest instability arises one’s greatest strength.”
My students will get full credit for responding that all persons on both sides of the abortion and physician-assisted suicide issues value life. The more astute students might add that they value people’s quality of life, or the sacredness of life. But the question was not fair: neither life nor death can be reduced to a short-answer test question, any more than it can be reduced to a sound bite for a political campaign flyer. The value placed on life as an abstract concept is only the tip of a very cold and very deep iceberg.
Beneath the surface of the icy waters of the physician-assisted suicide debate – referred to by advocates as the Death with Dignity movement – lies a crystalline web of inter-related issues, for which our diverse, secular culture provides no clear philosophical framework for guidance. Applying different schools of moral philosophy yields different answers. Cultural absolutists and divine command theorists would say killing is always wrong; Bentham utilitarianists would point out that there’s no point in remaining alive when you don’t want to; Kantians would note that one should never use a person as a means to an end, so making them stay alive when they don’t want to in order to satisfy your theory about whether they should die or not is unfair. Strong-willed Lockians will note that the government is there to respond to the people, and the people have a right to direct their own fate on such an intimate and personal issue as death. Disability advocates and cultural historians would note the slippery slope dangers of licensing someone to, if not quite kill, then to decide who gets to live or die, because such powers have not worked out terribly well in the past.
And Cynics like myself might well point out that in light of our current health care finance woes, the volume of media references noting that physician-assisted suicide is cheaper than palliative and hospice care is cause, in itself, for caution.
“A wise man meditates on the end of his life.”
– Columbanus
Suicide means taking one’s own life. The practice violates the tenets of most major religions (although some religious leaders are ardent Death with Dignity advocates; John Shelby Spong, the Eighth Bishop of The Diocese of Newark of the Episcopal church, is an extremely well-spoken example). It is also a crime. The reason it’s a crime is so that the formal institutions of society can intervene to prevent it, such as taking a teenager who attempts suicide into protective custody in order to compel them into counseling services or substance abuse rehab. It would be rare to be charged, tried, and jailed for the crime of suicide. However, assisting someone else to commit suicide is also a crime, and for that, people do get arrested and charged from time to time.
Today’s political debate over physician-assisted suicide centers solely on whether or not to allow doctors to help terminally ill people end their lives. Advocates for physician-assisted suicide often view the gentle hastening of death through medical means for persons who are incurably, terminally ill, to be something other than ‘suicide,’ a word with strong negative connotations in our society.
The present political debate does not include consideration of euthanasia. Euthanasia involves the active killing of another person, as in, for example, a physician administering a lethal injection. Physician-assisted suicide means that the doctor will provide the means by which a person might end his or her own life, but the patient must administer the lethal dose themselves.
There are many means by which this might be done. Dr. Jack Kevorkian, who is now serving time in jail while facing his own rapidly failing health, assisted terminally ill patients by setting up intravenous drip tubes connected to a series of liquid drugs, allowing the patient to flip the switches and send the lethal liquid into his or her own veins when ready to do so.
The Death with Dignity statute proposed in Vermont, however, allows only for physicians to write a prescription for a lethal dose of pills, which must then be swallowed by the patient, without the assistance of anyone else. (One has to wonder, irreverently, whether or not this would include help getting the danged cap off the pill bottle. But, as the leading opposition coalition Not Dead Yet points out by their Monty-Python inspired name, it’s important to maintain one’s sense of humor.)
“I love my life, but not too well.”
- Harriet Monroe
Death with Dignity Vermont asserts that terminally ill, mentally competent people have ‘a right to choose the time and manner of their death.’ That ‘right,’ however, is not acknowledged anywhere within Vermont’s legal system. Which doesn’t mean it’s incorrect – the notion of what constitutes our ‘rights,’ and the meaning of right and wrong itself, changes over time, which is a good thing, or we’d still have slavery and segregation, and women could not own property or vote. The proposed statute would not legally acknowledge this asserted right; rather, it exempts state-licensed physicians from criminal or civil liability for prescribing lethal doses of medication to a terminally ill, mentally competent patient at the patient’s request.
Terminally ill, mentally competent people – as well as others who are not terminally ill, but in unbearable pain, or who are suffering from grief or despair, or who are clinically depressed or suffering from other mental illness or disability – in fact often do choose the time and manner of their death. Suicide is a widespread phenomenon, especially among the elderly who are ill.
According to the National Center for Injury Prevention and Control (NCIPC), nearly 31,000 people committed suicide in the United States in 2001, the most recent year for which they have published data. According to NCIPC, “Suicide rates increase with age and are quite high among persons, particularly men, age 65 and older. ... Older adults who are suicidal are also more likely to be suffering from physical illnesses and be divorced or widowed. In 2001, 5,393 Americans over age 65 committed suicide. Firearms were used in 73 percent.”
The statistics seem compatible with those graphically illustrated by Time’s famous “One Week of Gun Deaths,” presented in July 1989. Of 464 deaths by firearm in the U.S. that week, 216 were suicides. Of these, at least 40 were positively identified as being persons who were terminally ill. Many others were also elderly, despondent, or recently widowed, but their actual health condition was not identified. Other methods of suicide among the terminally ill include asphyxiation by automobile and overdosing on drugs not explicitly intended to be used for lethal purposes.
Avoiding resort to such apparently violent or undignified methods is one of the reasons that many people, especially those who have witnessed a friend or loved one end their life in this manner, advocate access to physician-prescribed lethal medication. Physician-assisted suicide also has the comfort of certainty – about five times as many people receive medical attention each year for unsuccessful suicide attempts as manage to commit suicide.
However, these statistics regarding more dramatic, publicly reported suicides of terminally ill persons does not reflect the gentler, more common ways in which people have chosen the time and manner of their deaths for countless millennia. According to the July 2003 edition of The New England Journal of Medicine (NEJM) more than twice as many hospice workers had cared for patients who hastened their own deaths by voluntarily refusing food and water, as had workers who had cared for a patient who opted for physician-assisted suicide. These deaths are listed as death by natural causes, and so do not figure into the suicide statistics.
The doctor who had gathered the data announced that she was “stunned” by the information. Another physician quoted in the article noted that the fact these deaths are so common and so placid was “surprising and shocking.” Their response raises the uncomfortable notion that medical doctors are not actually in tune with what is going on with their patients end-of-life care, and perhaps aren’t even familiar with issues surrounding dying. Terminally ill patients are actually choosing the time and manner of their own deaths with great regularity; they simply are doing so without physician intervention.
Instead, it is hospice care workers, nurses, and family members who are keeping the dying company and providing support for their decision. NEJM further reported that death by voluntary dehydration is “a surprisingly peaceful way to die.” The time periods reported for death in this manner run from several days to two weeks – still shorter than the 15-day waiting period to receive one’s lethal prescription from the doctor under the proposed Vermont legislation.
Death with Dignity Vermont’s Web site also notes that Death with Dignity legislation would “avoid the pain of unwanted tubes and machines that merely prolong the dying process.” But this option is already available to all patients. Medical patients have a right to refuse any and all medical treatment at any time. Advanced Health Care directives and appointing a Durable Health Care Power of Attorney ensure that even if you are unable to speak for yourself, your intention to not be connected to life-continuing machinery will be respected. And while a common perception is that physician-assisted suicide will alleviate the suffering of those who are in ongoing pain, the option would not be available to many of these patients unless they could be certified to be within six months of the end of their life due to terminal disease.
Others choose to wait until the time which Fate or God has allotted to them. The question of whether that option, that may or may not involve pain or an extended period of slow withdrawal from life functions, comprises dignity, or whether dignity is to be found in medical industry intervention, is one that subtly underlies the philosophical core of the debate.
“O Death, Where is thy sting?”
1 Corinthians 15:55
Oregon passed its groundbreaking Death with Dignity legislation by ballot measure in 1994, and it went into effect in 1997. The Oregon statute, which is serving as a model for proposed Vermont legislation, allows physician-assisted suicide under carefully regulated restrictions. The patient must be certified by two physicians to be terminally ill, with a predicted life expectancy of six months or less. The patient must also be mentally competent; if either physician requests, a mental competency evaluation must be performed. There is then a 15-day waiting period before the lethal prescription may be filled. Finally, the patient must ingest the pills himself or herself – anyone assisting in the process may still be subject to criminal liability. The doctors must maintain records of their findings of terminal condition and competency as well as to whom the prescriptions have been written, and make regular reports to the Oregon legislature.
A Journal of American Medical Association article from May 2001 assessing how the statute is working notes that of nearly 4,000 eligible physicians, only 73 were willing to write the lethal prescriptions (although nearly a third of these doubted their ability to accurately assess when someone was within six months of the end of life). However, three-fourths of the doctors reported having increased their knowledge and training regarding end-of-life care and pain medications since the statute was enacted, and over a third reported increasing their referrals to hospice care.
While the numbers of people who are utilizing physician-assisted suicide in Oregon are growing each year, a recent report released by Patricia Moran, an associate professor and expert in end-of-life issues at the Oregon State University, indicates that still only about 30 people per year are utilizing the option. Of the lethal prescriptions that are issued, at least one-third are not used by the patient. Many commentators note that terminally ill patients who are bedridden, who do not have family support to drive them to the two doctors for evaluation, or who are depressed or despondent over their circumstances, cannot access or qualify for the option.
The legal history of Oregon’s Death with Dignity Act is torturous. There was a three-year delay between passage and implementation due to an ultimately unsuccessful constitutional challenge in the federal courts. Shortly before the federal litigation ended, Oregon’s citizens again voted to keep the Death with Dignity Act, turning down a referendum to appeal it. Opposition to the law, both by a diverse collection of citizens groups as well as by factions of the federal government, has been relentless and unceasing.
Shortly after the law was passed, at the request of Congressional leaders, the head of the federal Drug Enforcement Administration (DEA) ruled that physician-assisted suicide was not a “legitimate medical purpose” for using pharmaceuticals under the Controlled Substance Act, meaning that Oregon doctors and pharmacists risked loss of their licenses and possible federal criminal prosecution. Under the Clinton Administration, Attorney General Janet Reno reversed the DEA director’s ruling.
Congress tried twice to overturn Oregon’s statute with federal legislation, but despite the support of the president and attorney general, the bills failed. But within months of President Bush taking office, Attorney General John Ashcroft issued a new interpretive rule again stating that physician-assisted suicide is not a “legitimate medical purpose” under the Controlled Substances Act. The Oregon Attorney General sued, and the court permitted a physician, a pharmacist, and several terminally ill patients to intervene. The U.S. District Court (2002) and the Ninth Circuit Court of Appeals (2004) ruled against the Ashcroft interpretation.
In January 2006, the U.S. Supreme Court ruled in favor of the two lower courts, holding that the Attorney General cannot unilaterally decide whether something is or is not a legitimate medical purpose or lawful physician’s practice. That decision is left to the states through their legislation and licensing regulations. While the decision was heralded by Death with Dignity advocates around the country, it has also had other strange repercussions.
For example, the Washington Post reported just after the decision that doctors and medical insurance defense attorneys were also celebrating the decision, because there are dozens of doctors and pharmacists across the country presently jailed for drug trafficking for writing prescriptions for narcotics and barbituates. This Supreme Court ruling presents them with a strong new defense asserting that the federal government can’t tell doctors what prescriptions comprise appropriate medical treatment. In other words, the decision is being touted by the medical, pharmaceutical, and health insurance industry as providing broad new protections and powers to doctors. It has yet to be determined whether this expansive view will hold up in court when the jailed doctors attempt to assert the argument.
“Many that live deserve death. Some that die deserve life . . . Even the very wise cannot see all ends.”
– Gandalf the Wise,
The Lord of the Rings by J.R.R. Tolkien
In the twelve years since Oregon passed its Death with Dignity statute, voters in California and Hawaii have rejected similar efforts. Physician-assisted suicide bills have been presented to the Vermont legislature several times, and have failed to make it out of committee on each occasion. This year, however, Death with Dignity advocates appear to be gearing up for a well-organized push for the legislation. An advertising campaign of political diverse and well-respected Vermont notables (see accompanying article) indicates that physician-assisted suicide is likely to be a priority issue in the Vermont legislature in 2007.
In addition to the Right-to-Life related citizen groups and religious entities who oppose physician assisted suicide primarily on religious grounds, the Vermont Center for Independent Living (VCIL), like nearly all major disability advocates organizations in Vermont and across the nation, strongly opposes the measure for a broad spectrum of subtle and compassionate reasons.
“Assisted suicide legislation is the wrong solution to end of life pain and represents a particular threat to the legal rights and social status of persons with disabilities and to other vulnerable groups,” said Deborah Lisi-Baker, executive director of VCIL. “We strongly support better education and use of existing patient rights and protections for determining end of life care and the use of best practices in palliative care and hospice that are already available.”
Lisi-Baker and other disability advocates contend that physician-assisted suicide legislation is the result of less-than-best-practices being used in end-of-life care, combined with our societal fear of death, disability, and dependence.
“We believe the fear that leads people to endorse physician-assisted suicide would be better used to create public policies and information and support services that would make the natural experience of disability at the end of life less fearful and overwhelming for individuals and families,” she said. “The appropriate role of the legislature, physicians and health care services is to build Vermont’s capacity to provide respectful, caring, and effective services for individuals and their families and their informal caregivers. The goal should be to support terminally ill individuals to experience life with dignity until death naturally occurs.”
Concern about the direction of our current health care system also plays a prominent role in disability advocates’ objections to physician-assisted suicide. “What does it say about this society that we are proposing physician-assisted suicide as a compassionate solution when services like prescription drugs, personal care and respite, homemaker, and hospice are being reduced or under-funded?” Lisi-Baker asked. “What does it say about public policy and social values when Oregon chose to reduce access to adequate and effective palliative care medications and other helpful services at the same time their Medicaid program chose to cover the less expensive physician-assisted suicide medication?”
Persons with disabilities are already extremely vulnerable to the tides and winds of government and the medical industry upon which they may be dependent at higher or more frequent levels than persons without disabilities. Legally empowering physicians to participate in the causation of death raises questions particularly for a group of people who already feel they are receiving a message loud and clear that their lives are less valued than others.
As Lisi-Baker puts it, “Dignity and compassion cannot be legislated and dignity does not come out of a bottle, though pain relief can. Finding ways to bring dignity and compassion to how we care for one another and treat people facing pain, disability and death requires more personal and social conversations and action.”
If the debate over physician-assisted suicide in the upcoming legislature leads to serious discussion of better, more accessible health care and civil rights protections for all – those are values that all of us can clearly share. And from this point of instability, might come great strengths indeed.
Cindy Ellen Hill is the author of Creative Lawyering: A Handbook for Practice in the Twenty First Century (www.XLibris.com/creativelawyering).
