Death before the judges: financial aid suicide, doctors and the law
Leon R. Kass and Nelson Lund.
Published in Commentary 1996 (Dec.): 17-29.
Translation: Antonio Pardo.
Leon R. Kass, an experienced physician and biochemist, is the Chair Addie Clark Harding Professor at the University of Chicago. His contributions to Commentary include "Death with Dignity and Sanctity of Life" (March 1990) and "Suicide is Easy" (December 1991). Nelson Lund is a political philosopher and professor of law at George Mason University School of Law. A somewhat different version of this article has been published in Duquesne Law Review35 (1): 395-425.
We are sure that we will die. But we are not sure how or when. Because we want to live and not die, we turn to medicine to delay the inevitable. However, medicine's growing success in prolonging life has come at a very high price, paid in the currency of how we die: often in conditions of unrelieved suffering and pain, complete incapacity, and loss of control over ourselves. While most people still await further triumphs of medicine in its war against mortality, many Americans increasingly desire greater mastery over the end of their lives. Some even prefer to choose death to avoid prolonged discomfort. Ironically, to achieve this they also seek financial aid from the art of medicine, originally the enemy of death. People no longer speak only of refusing medical treatment. Current petitions call for assisted suicide and euthanasia.
Almost everyone recognises that such practices raise profound moral and social issues: human dignity, the sanctity of life, the morality of suicide, the ethics of medicine, the protection of the vulnerable, the duty of care, and the obligation of government to control the use of lethal force and to protect the life of the innocent. But, because of the nature of our political system, in the United States the big moral questions are often reframed in terms of individual rights. Predictably, the complicated and sensitive issues surrounding the end of life are now discussed in the context of a "right to die" petition. To assert that right against government interference, the protagonists have turned to the courts. And so the contested issues of death and dying have now become subject for a constitutional trial.
The US Supreme Court will soon decide whether to enact a new constitutional doctrine that effectively ends the ability of state governments to interfere with medically assisted suicides. If the Court takes this step, the justices will henceforth be responsible for resolving some of the most sensitive aspects of the relationship between physicians and their patients. There is good reason to fear that result would be a disaster.
The legal background
Like most states, New York and Washington have statutes that make it a crime for any person to assist another to commit suicide. These statutes have been declared unconstitutional by conference room Second and conference room Ninth US Courts of Appeals, and their decisions are now before the Supreme Court. There are several different legal approaches that the highest Court can take.
I might conclude that the Constitution simply does not create any right to commit or attempt suicide and, therefore, does not create any right to assist or obtain financial aid to commit suicide. Three facts strongly support this conclusion. First, the Constitution is silent on the issue of suicide. Second, laws against financial aid suicide were common when the Constitution and its subsequent Amendments were ratified. And finally, there is no Supreme Court precedent recognising such a right. This precedent has already prompted Justice Antonin Scalia to announce that "the federal courts have no say in the matter.
If a majority of the justices join Scalia in reaching this conclusion, the issues discussed in this essay will not directly bear on the Court's analysis. However, it is not certain, or even likely, that they would endorse Scalia's position. As the decisions of the Second and Ninth Chambers suggest, there are a number of constitutional doctrines that can be extended so as to invalidate statutes such as those in New York and Washington.
The Supreme Court may find, for example, that statutes prohibiting financial aid suicide violate the Fourteenth Amendment, since the Fourteenth Amendment prohibits state governments from denying any person the right to the "equal protection of the laws". This was the approach adopted by the conference room Second, which held that New York's financial aid suicide statute unreasonably discriminates between terminally ill patients on life support systems (who can end their lives by ordering the withdrawal of such treatment) and terminally ill patients who do not have this option because they are not connected to life support systems.
The Second conference room recognised, however, that it could override the distinction created by statutes only if there was no test reasonable connection to any legitimate state interest. In applying this test of rational instructions existence, the Supreme Court ordinarily considers with great deference the views of state legislatures, and there are plenty of legitimate reasons to justify statutes that proscribe financial aid suicide. Perhaps the most obvious is the state's interest, which we will discuss in detail below, in preserving the valuable commonsense distinction that physicians have always drawn between letting nature take its course with a seriously ill patient and taking the necessary steps to kill that patient.
A different argument, developed by the conference room Ninth when it invalidated the Washington statute, would start, not from the equal protection clause of the Fourteenth Amendment, but from the due process clause. This clause prohibits state governments from depriving any person of life, liberty, or property without due process of law. In Roe v. Wade (1973) and subsequent cases, the Supreme Court interpreted this to mean that governments are greatly curtailed in their ability to interfere with women's freedom to have an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court's most recent abortion decision, the Constitutional Law in question was described at one point as "the right to define one's own concept staff of existence, of its meaning, of the universe, and of the mystery of human life".
One may conclude from this passage that a decision to commit suicide, like a decision to have an abortion, is protected by a judicially recognised right to make private decisions about the mystery of human life. If the Supreme Court is inclined to uphold this conclusion, then legal restrictions on suicide, and at least on access to some forms of medical financial aid suicide, may also be overturned.
While it is conceivable that the Court could take this step, it would be a tremendous and unnecessary leap. The "mystery of human life" passage in Casey lacks force as precedent because it was not part of the reasoning that led to the judgment. The Casey Court, moreover, emphasised that its position was largely compelled by the precedent of Roe v. Wade. When the Casey arguments are read in their entirety, it is clear that they do not involve any extension of the due process doctrine beyond the abortion context.
A much stronger source to guide us on the issue of financial aid to suicide can be found in the Supreme Court's "right to die" argument in Cruzan v. Director, Missouri Department of Health (1990). In this case, the Court rejected the relevance of the right to privacy invoked in abortion decisions. Instead, the Cruzan decision held that, although the due process clause protects the "liberty interest" of an individual who refuses unwanted medical treatment, state governments are still free to insist that comatose patients continue to receive life-sustaining treatment unless there is clear and convincing evidence that the patient would have wanted such treatment withdrawn. Although the Court did not hold that there is a Constitutional Law to refuse unwanted medical treatment, neither did it show any sign of particular abhorrence in failing to reach that conclusion in a case where the issue could properly be presented to it. One member of the majority of the five-judge court, moreover, appeared to conclude that the Constitution protects the "freedom (of the patient) to determine the course of his own treatment".
As follows logically, a right to control medical treatment staff does not imply a right to commit suicide. Intuitively, however, it is a relatively short step from recognising a right to refuse the drugs necessary to stay alive to recognising a right to ingest the drugs that will end one's life. If the justification for asking the government for a good reason to invade your body is that it is your body, then it would seem to follow that the government would have to be required to offer a good reason before it would prohibit you from invading your own body. Thus, it seems quite likely, and even entirely inevitable, that the Supreme Court would decide that the Constitution obliges the government to give a good reason for interfering with the decision of a person who wants to commit suicide, at least when that decision is supported by reasons such as the desire to avoid torturous pain.
Assuming the Court were to conclude that some subject right to suicide is protected by the Constitution, we nonetheless pretend that the Court should uphold statutes prohibiting financial aid to suicide. Or, in other words, that the governmental interest in maintaining a clear rules and regulations against financial aid to suicide is sufficient to outweigh any "liberty interest" through due process that an individual might have in obtaining such a financial aid. In the text that follows, we do not attempt to catalogue all the reasons that a state may put forward in defence of a statute against financial aid to suicide, but rather to focus on a particular group of interests that tend to be neglected or undervalued in legal discussions. This withdrawal is a serious issue because the law usually fixes on individual rights, which are abstractions, and makes it easy to misunderstand how decisions such as the one we now discuss will affect the very men and institutions whose rights the courts seek to clarify.
The financial aid medical suicide and medical ethics
Although the New York and Washington statutes prohibit financial aid suicide in general, the practical result of the Court's decision will be almost entirely limited to the medical profession. It is conceivable, of course, that someone might want to induce another to shoot him or herself in the back of the head, but such a subject request will be extremely rare. It is more realistic that family members are sometimes asked to seek out (and perhaps even administer) poisons. But this phenomenon is limited both by the relative distaste for poisons available to the general public and by the natural aversion of most family members to being directly involved in the death of their relatives.
What is really at issue here is the medical financial aid to suicide. Doctors - and those, such as nurses and pharmacists, who generally work under their supervision - hold the legal monopoly on the most desirable lethal drugs, and control the situations in which people can be killed (or helped to be killed) with minimal complications and disruption for all concerned. Moreover, physicians are psychologically well trained to play this role because they are usually invested with the comforting aura created by their usual therapeutic role, while maintaining sufficient distance from the patient to avoid the special traumas that can arise when relatives are involved in helping a sick person to die. The involvement of the physician can make the whole affair more hygienic and even consecrating.
For all these reasons, the Court must pay particular attention to the effects its decision will have on the medical profession.
Authorising the medical financial aid to commit suicide would require the Court to subvert a centuries-old taboo against medical murder, a taboo that many understand to be one of the cornerstones of medical ethics. This taboo is at least as old as the Hippocratic Oath, where it is found formulated in its best known form, where, as the first negative pledge of professional self-restraint, it is stated: "To no one shall I give a deadly drug, even if he asks me, nor make any suggestion to that effect..... I will guard my life and my art in purity and sanctity". This is clearly a guarantee against internship euthanasia, even on request, and against financial aid or even the suggestion of suicide to a patient who wishes it.
This self-imposed professional prohibition, which was not required by Greek law or the customs of the time, is rooted in deep insights into the nature of medicine. First, it recognises the dangerous moral neutrality of medical technique: medicines can both cure and kill. Only if the means employed serve a professionally appropriate end will the medical internship be ethical. Consequently, the Oath forbids aiding suicide because the end that medical technique properly serves - the integrity and proper functioning of the living human body - would be negated if the physician were engaged in providing advice or drugs that result in death.
And, second, and most important of all, the taboo against euthanasia and financial aid suicide - as well as the taboos against violation of patient confidentiality and against sexual misconduct, enunciated later in the Oath - is aimed at avoiding an obvious 'professional risk' to which the practising physician is especially prone: the temptation to take advantage of the vulnerability and defencelessness that the internship of medicine requires of patients. As patients necessarily communicate private and intimate details of their lives to the physician staff, and necessarily expose their naked bodies to the physician's objective gaze and investigative hands, they necessarily expose and entrust the care of their very lives to the physician's skill , technique, judgement, and skills. Conscious of the significance of such exhibition and vulnerability, and conscious also of their own inclination as human beings to error and mistake, Hippocratic physicians voluntarily set fixed limits on their own conduct, attempting not to take advantage of, or violate, the patient's privacy, their naked sexuality, or their very lives.
The refusal of ancient Hippocratic physicians to assist suicide was not part of an aggressive, what might be called "vitalistic" approach with regard to the death of their patients or a refusal to accept mortality. On the contrary, understanding well the limits of the medical art, they refused to intervene aggressively when they judged the patient to be incurable, and considered it improper to prolong the natural process of dying when death was inevitable. By insisting on the moral importance of distinguishing between letting die (often not only permissible but praiseworthy) and actively causing death (impermissible), they protected themselves and their patients from their possible weaknesses and errors, thus preserving the moral integrity ("the purity and sanctity") of their art and profession.
That the Oath and its ethical view of medicine are a product of classical Greek antiquity reminds us that the financial aid medical ban on suicide was not and is not solely the result of religious impulses. The Oath is fundamentally pagan and medical, and has no connection with biblical religion or with Judeo-Christian doctrines of the sanctity of human life. Nor is the Oath a merely local product of ancient Greek culture. Nevertheless, the fact that it begins by invoking Apollo and other deities that no one worships today reflects and articulates a coherent, rational, and truly wise view of the art of medicine. For this reason it has been widely accepted in the West as a document valid for all times and places.
The Hippocratic Oath also proscribes physician involvement in the internship of abortions. Prior to Roe v. Wade, this taboo governed the American medical internship , but it has since been abandoned. For this reason, some commentators reject the Hippocratic Oath as outdated, and consider its prohibition against aiding suicide irrelevant to our more morally pluralistic age. The conference room Ninth, for example, asserted that after Roe, "physicians began routinely performing abortions and the ethical integrity of the medical profession was not undermined". But the court cited no evidence to support this flippant conclusion, and there are, in fact, grounds to the contrary. Today, a massive issue of abortions are being performed, far more than originally expected, and for reasons that were not initially considered appropriate. Moreover, the acceptance of abortion by physicians would be in part manager of the recent weakening of the profession's aversion to causing death, given that physicians who today wish to practice euthanasia entered the profession for the most part after Roe. Indeed, one of the arguments offered 25 years ago against allowing doctors to perform abortions was that this would inevitably lead doctors to perform euthanasia. Being more than halfway down this slippery slope, one should at least consider an open question whether the ethical integrity of the medical profession "has not been undermined".
Regardless of this issue, the taboo against medical murder is not only linked to the venerable but now partially compromised Hippocratic Oath. This prohibition has been reaffirmed in numerous professional codes and statements of principles. The Code of Medical Ethics of the association American Medical Association, for example, very explicitly prohibits medical financial aid suicide, on the grounds that it is "fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious social risks". AMA statements have repeatedly reiterated this position, most recently in a response last June to the decisions of the Second and Ninth Chambers.
Some now claim that these teachings are merely a residue of tradition, and argue that times have changed. They claim that the received wisdom of the medical profession, whatever Hippocrates says, is not wisdom for today. Today, patients die differently, mostly in institutions, and most deaths are in connection with decisions about withholding or withdrawing technological interventions. Our population is now old and increasingly suffering from dementia and chronic and degenerative diseases. The cost of medical care is extremely high, especially employee in the last year of life. Many fear a hyper-medicalised death and a lengthened dying process, made possible by new technological advances such as respirators, defibrillators, dialysers, and artificial feeding systems.
Suicide has long been decriminalised, and we have recognised the importance of patient autonomy in the medical decision-making process, especially at the end of life. We have established clear legal rights to refuse and stop medical interventions, even if death is likely result . Living wills and advance treatment orders that protect our wishes if we become incapacitated have legal force in almost every state. But while the hospice movement and advances in pain control already make a physically comfortable death possible for most people, some still want the right to obtain medical financial aid to commit suicide and also to have doctors kill them directly. Public opinion polls, although they should be taken with caution, seem to indicate a claim for such a right. Moreover, many doctors apparently wish not only to accede to requests for lethal drugs, but also to administer them to patients unable to take them themselves. Some doctors, they say, are already doing so in secret.
To make a long story short, if the argument is valid, the old taboo against medical financial aid suicide and euthanasia is now an obstacle to a humane death. What would we lose if taboos fall into disuse?
The answer is that great advantages would be lost. A simple reflection, supported by empirical evidence, makes evident some obvious, probable, and serious consequences for the well-being of patients and for internship itself.
Once it becomes possible to think of death as a "therapeutic option" in the physician's arsenal, we will almost certainly see a large increase in suicides and physician-assisted deaths, far beyond the few and limited types of cases now invoked to justify a change in the law. The rationale will be altered, not only for patients, given their new freedom to choose death, but also for physicians, families, hospitals, health services, and insurance companies.
It is especially important to look at these new motives, which operate almost invisibly and are therefore easy to forget, especially when we are concerned with extreme cases - the ones that are always invoked to gain sympathy for removing the ban against financial aid to suicide. But these few patients trapped in genuinely distressing medical situations will become difficult to separate, both logically and practically, from countless potential 'candidates' for financial aid to death, whose treatment will certainly be affected by changing motivations. There is perhaps no jurisprudential area in which it is more ominously true that distressing cases make bad law.
Many families and physicians will see the option of death on demand as an opportunity to relieve themselves of the emotional burdens of caring for difficult or incurable patients. Others will be able to avoid large financial costs or achieve financial gains if death occurs earlier, especially when an inheritance will be seriously jeopardised by the expense of care in a long-term illness. Even when relatives and doctors are not fully aware that they succumb to such temptations, they will be subtly but surely pushed in that direction.
Because arranging suicide is easy and cheap, it will in many cases replace the employment of hospice and other humanely committed forms of palliative care, as there will be far less economic incentive to continue to develop and fund social or institutional systems to provide humane care for the dying. Lack of health insurance already prevents many people from enjoying adequate end-of-life care. Indeed, the cost-cutting pressures already exerted on physicians by insurers and hospitals now produce suboptimal care even for many insured persons. In our new medico-economic climate, with for-profit health services and hospitals, removing the financial aid ban on medical suicide becomes even more dangerous: a quick death will often be the most cost-effective "therapeutic option" and will therefore be used more and more frequently, especially if our society moves, as seems likely, towards some form of explicit rationing of end-of-life care.
Proponents of financial aid to suicide will counter these concerns by reminding us that it is only the patient who will be legally entitled to make the request for lethal medication. They will point out that concern for the financial well-being of heirs is not a negligible reason for choosing an early death, and that it is not unreasonable to try to save money for a grandchild's Education rather than squander it on six more months of miserable life. But such arguments, while sound in theory, naively idealise the usual status of seriously ill patients.
The ideal of rational autonomy, so dear to legal theorists, rarely exists in the real internship of medicine. Illness almost invariably means dependency, and dependency means relying on the committee of doctor and family. This is especially true with the seriously or terminally ill, who also often suffer from depression or diminished mental capacity that clouds one's judgement or weakens personal resolve. With such limited patients - helpless in their capacity to act and not knowing what to think about their life - someone who will benefit from their death need not proceed by overt coercion. Rather, financial aid requests for suicide can and will be forged in a more subtle way. To alter and influence choices, physicians and families need not be driven entirely by base motives or even be consciously manipulative. Discrete suggestions of clear meaning, or even unconscious changes of expression, gestures, and tone of voice, can move a dependent and suggestible patient to choose death. By simply making financial aid suicide an option available for seriously ill people, as Yale Kamisar wrote long ago, we do not, in the process, eliminate those who are not truly tired of life, but think others are tired of them; some who do not really want to die, but who realise they should not live, why should they continue to live if to do so when the legal alternative of euthanasia exists is a selfish or cowardly act?
Anyone who knows anything about the real life of the elderly and incurable knows that many of them will experience - and will be helped to experience - their right to choose physician-assisted death as a duty.
In most medical situations, the ideal assumption of physician-patient equality and patient autonomy is in fact false. This is true even assuming that the patient is in relatively good health and that there is a long-term, intimate doctor-patient relationship. But with the seriously ill, the hospitalised and, moreover, with most patients being treated by physicians who know little or nothing about them, many choices for death made by presumably autonomous patients will be neither truly free nor fully informed.
Doctors have a monopoly on the necessary information: prognosis, treatment alternatives, and their costs and inconvenience. Like many technical experts, they are great at devising options that guarantee a particular result . They do this already when they present therapeutic options to the "autonomous patient" to make his or her decision, and there is no reason to think that this will change when one of the options is "aid in dying". When the doctor is presented with a depressed or frightened patient with a horrible prognosis and includes among the options the offer of a "nice and quick rest", what is the patient likely to choose, especially if he or she is faced with an exponentially growing hospital bill or has children at position? The legalisation of the medical financial aid to suicide, ostensibly a measure intended to increase the freedom of dying patients, will thus in many cases become a deadly licence for doctors to recommend and prescribe death, free from any outside scrutiny and immune from any possible prosecution.
Partly for this reason, the internship of the medical financial aid to suicide is likely to soon corrode the trust that patients place in their doctors. True, some may be relieved to know that their old family doctor will now be able to provide financial aid for suicide when asked. But many - especially those who are not socially strong or who lack a close relationship with a doctor staff whom they trust - will rightly feel insecure. For how can you trust an unknown doctor to devote himself entirely to serving your best interests once he has a licence to kill? Imagine the scene: you are old, poor, in poor health, and alone in the world; you are taken to the city hospital after a fall, with broken ribs and pneumonia. The nurse or intern comes in late at night with a syringe full of a yellow liquid which she adds to his intravenous drip. Never mind that, for now, death can only be legally prescribed on request. How would you sleep?
Trust will also suffer profoundly in more subtle ways. If financial aid becomes a legal option, it will inevitably enter - sometimes explicitly, sometimes tacitly - into many doctor-patient relationships. Although there may be attempts to prevent doctors from talking about the issue, once the option exists as a legal right, there will be increasing pressures to ensure that patients know they have it1 . Inevitably, patients will now be forced to ask their doctor about the issue, regardless of how they feel about it: did he introduce the issue because he secretly or unconsciously wants to abandon me, or, worse, because he wants me to be dead? Does he avoid the issue for the same reason, fearing that I suspect the truth, or conversely, because he wants me to suffer?
Few will openly express such fears and doubts. Because patients must rely on their doctor, they do not want to risk alienating him or her by appearing to distrust his or her motives and goodwill. Anyone who understands, even a little, the subtle psychodynamics of the doctor-patient relationship can immediately see the corrosive effects that doubt and suspicion can cause by explicitly talking (or avoiding talking) about physician-assisted dying.
However, trust is not just a moral delicacy, humanly desirable but medically dispensable. On the contrary, the patient's trust in the physician is a necessary ingredient in the therapeutic relationship and, at least indirectly, in the healing process itself. Mistrust produces anxiety, hostility, and resistance to treatment. In the progressively impersonal world of modern medicine, patients must, without direct evidence, assume that their caregivers are trustworthy even before they have demonstrated that they deserve it. Especially in these circumstances, the trust given to individual physicians stems largely from the trustworthiness of the profession as a whole. Once the taboo against medical financial aid suicide is broken, legitimate fears of deadly abuse of the new licence will bind even the most honourable physicians, whose skill to heal and comfort will be compromised for this reason.
But trust between doctor and patient is only one of the assets that will be damaged. Once the medical financial aid to suicide becomes acceptable, the internship will almost certainly extend beyond the narrow field to which it now extends. Doctors will inevitably come to "help" the non-terminally ill and partially incapacitated, and will practice active euthanasia, both voluntary and involuntary. None of the boundaries between these closely related practices is clearly definable or defensible at internship against expansion and erosion.
Terminal illness is notoriously difficult to define with precision, almost as difficult as forecasting with certainty. For example, the frequently used expression that estimates "less than six months to live" leaves unanswered whether it means six months with or six months without specific forms of treatment. Furthermore, the newly discovered Constitutional Law to determine the time and manner of one's own death, if limited to the terminally ill, would seem to make unfair differences with those destined to suffer from their disease for longer periods of time. Patients with early Alzheimer's disease or Lou Gehrig's disease (amyotrophic lateral sclerosis) are not considered terminally ill, although they are frequently mentioned as prime candidates for financial aid to die. Few Jack Kevorkian "patients" have been terminally ill, by any definition.
Autonomy, choice staff, and the "interests of freedom" are not respectful of arbitrary limitations on their exercise. If suicide and its financial aid is legally justified by the principle of autonomy and free choice, then the whole matter is too staff, intimate, and subjective to be governed by any goal or demonstrable criteria, any more than a verifiable terminal illness or truly intractable pain. Who is to say what makes suffering or life "unbearable" or death "preferable" for another person? The autonomy argument, favoured by so many legal theorists, will sooner or later undermine all proposed criteria for evaluating patients' choices. Moreover, if courts refuse to see a meaningful distinction between stopping or withdrawing treatment and giving lethal drugs, it will be legally impossible to deny non-terminal patients the right to the latter when they already have a clearly established right to the former.
For similar reasons it will be impossible to confine the new right to those who are capable of self-administering the lethal drug the doctor has prescribed. What if the patient's illness prevents him from putting the pills in his mouth or swallowing them? What if he vomits them up or if, for some other reason, the usually lethal dose does not cause death in that case? The doctor will not stop at that; concerned about his patient's death, he will surely lend a hand. And if he is not inclined to do so, the courts, citing equal protection of the law arguments such as those made by conference room Second, will force him to do so: why should someone be denied equal access to financial aid to suicide just because he is a quadriplegic and cannot administer the chosen drug himself? By this obvious route, medical financial aid to suicide will quickly and inevitably lead to voluntary euthanasia executed by doctors.
Courts are also naïve if they believe that one can draw and maintain a line between, on the one hand, medical financial aid to suicide or active voluntary euthanasia (practised by doctors on willing patients) and, on the other hand, involuntary euthanasia (where doctors execute compassionate death without the patient's request). Legal theories that rely on the supremacy of the autonomous option offer purely theoretical certainty, not grounded in what happens on the internship. Almost no physician will accede to a request for lethal medication unless he or she believes there are good reasons to justify the patient's choice for death (too much pain, loss of dignity, lack of self-control, poor quality of life); otherwise, he or she will try to persuade the patient to accept some other subject treatment or palliative care, including psychotherapy for suicidal wishes. At internship, the medical financial aid to suicide will be executed not for reasons of simple deference to the patient's choice but for reasons of compassion: this is a "useless" or "degrading" or "inhuman" life that is asking to be actively and compassionately ended, and therefore deserves my medical financial aid .
But once suicide and financial aid suicide are considered right for reasons of "compassion", then the liberation of the dehumanised person will also be right, whether chosen or not. Once legalised, medical financial aid to suicide will not be confined to those who freely and consciously choose it - not even the most energetic supporters of euthanasia (including some members of the medical profession) truly wish to see it restricted in this way. They see the slippery slope and eagerly accept the principle that will justify the full fall. Why? Because the vast majority of candidates who "deserve" an early death cannot ask for it themselves. People in a persistent vegetative state; those suffering from severe depression, senility, mental illness, or Alzheimer's disease; children with malformations; and subnormal or dying children - all are incapable of asking for death, but equally deserving of the new humanitarian "financial aid to die".
Lawyers and doctors, subtly encouraged by economists striving to contain costs, will soon rectify this inequality. Invoking the rhetoric of equal protection, they will ask why the comatose or the insane should be denied a right just because they cannot demand it themselves. Through court-determined proxies, we will quickly blur the distinction between the right to choose one's own death and the right to demand someone else's - as we have already done in treatment withdrawal cases.
Doctors and relatives need not even wait for such changes to be in force by law. Who will be supervising and accounting for when the old, the poor, the crippled, the weak, the invalid, the depressed, the helpless, the uneducated, the insane, or the unwary are mercifully spared from their lives if their doctors, nurses, and relatives judge that they are no longer worth living?
This spectre of unauthorised euthanasia is not just the talk of doomsayers and is confirmed by reports from the Netherlands. Although financial aid suicide and voluntary euthanasia performed by doctors is technically illegal there, it has been tolerated internship, or even encouraged, for almost twenty years, through guidelines established by the medical profession. And although the guidelines insist that the choice of death must be informed and voluntary, a 1989 study of 300 physicians found that more than 40 percent had performed involuntary euthanasia and more than 10 percent had performed it five or more times. Another study, ordered by the Dutch government, provides an equally or more alarming data : in 1990, in addition to 2,300 cases of voluntary euthanasia and 400 cases of medical aids to suicide per year, there were more than 1,000 cases of active involuntary euthanasia performed without knowledge or patient consent, including approximately 140 cases (14 percent) in which patients were fully capable in their mental Schools . (Comparable figures for involuntary euthanasia in the United States would amount to approximately 20,000 cases per year). ) In addition, there were 8,100 cases of morphine overdoses with the intent to end life, of which 68 percent (5,508 cases) were administered without knowledge or patient consent.
And why do Dutch doctors perform involuntary euthanasia? "leave quality of life", "inability of relatives to cope with status", and "no prospect of improvement" were the reasons given by doctors for killing patients without their request; pain or suffering were mentioned in only 30 percent of cases. Is there any reason to believe that Dutch doctors are less concerned than their American colleagues about the equal dignity of every life left in their care?
Even proponents of the financial aid medical approach to suicide concede that there is a danger of abuse. But they believe, as did the Second and Ninth Chambers, that physicians and state governments can establish guidelines and regulations that will prevent such abuses and curtail the undesirable extensions of this internship. This reliance on regulation, however, is no more than a pious hope, which fades in the face of both the evidence and common sense.
The guidelines that have been proposed are, in fact, flawed and ineffective, and evidence from the Netherlands already shows that they are not being followed. There, the existing detailed regulations, which include the requirements of voluntariness, reflexive consideration and repeated requests, unacceptable suffering, enquiry to a second doctor, and report detailed cause of death, are systematically overlooked. There are far too many known cases of involuntary euthanasia, and many more that go unreported. In most such cases, Dutch doctors illegally certify that the death was due to natural causes. Furthermore, Dutch courts have been inclined to set aside criteria and regulations established in the name of compassion and the doctor's alleged duty to alleviate suffering, which they claim predominates over the duty not to kill.
The problem is not specific to the Dutch regulations or to the social prejudices and legal status of the Dutch. As Daniel Callahan and Margot White have convincingly shown in detail, any guidelines and regulations that have been proposed or could be proposed are likely to be just as flawed and ineffective. Indeed, the internship of the financial aid to suicide, as it will take place in the intimacy of the doctor-patient relationship, is on principle irregular. In the words of Callahan and White, "maintaining the privacy of the doctor-patient relationship and the confidentiality of these deliberations is radically incompatible with meaningful oversight and adherence to any statutory regulation". The legalisation of medical financial aid suicide will thus lead, not to the regulation of internship, but to the decontrol of doctors, who will now have more power than ever over the life and death of their patients.
The citizens of Oregon, by a narrow margin, have recently expressed a desire to experiment with financial aid to suicide, using what they believe - in our view foolishly - to be safe safeguards. Many other states have recently rejected proposals for similar experiments. If the citizens of Oregon come to realise that they are making a mistake, they can reverse the course of events. But if the Supreme Court makes a similar mistake, correcting it will almost certainly be a slow, uncertain, and incomplete process. This is another reason to be very cautious about setting up a Constitutional Law to a dangerous internship based on the illogical confidence that adequate safeguards can reduce the dangers, especially when there are powerful reasons to believe that such safeguards will be difficult, if not impossible, to provide.
Professional ethics and the law
Let us now turn to another, possibly even more sensitive issue. employment Precisely because of the ineffectiveness and impossibility of imposing any guidelines regulating medical financial aid suicide, the prevention of the unauthorised misuse, abuse, and extension of this internship will rest almost entirely on the precarious virtue of the medical profession and the individual practitioner. However, legalisation will certainly undermine the very ethical integrity of the medical profession, on which the proper internship of the financial aid to die supposedly depends. What is considered too little in almost all of these discussions is the fragility of medical professionalism, and thus the need for legal support for professional standards.
Medicine is a profession, not just a business. This means that its internship is an ethical and highly demanding activity. Physicians are ethically obliged to always put the patient's interests before their own. They are ethically obliged to ensure that their enormous powers over life and death, powers linked to an increasingly esoteric knowledge and ever more powerful technologies, are not subject to corruption or abuse. They are ethically obliged to recognise the limits of their skill, given that all their patients will necessarily get worse and die sooner or later, whether they are treated or not. They are ethically obliged to always care for their patients, never to abandon them, and this is equally true when cure is impossible, and even - indeed especially - when death is near.
The moral disposition to fulfil these obligations cannot be the result of market laws or the usual legal prohibitions against violence and fraud alone. Rather, a physician's moral training is the fruit of a set of attitudes, feelings, dispositions, principles, and beliefs, partly explicit and partly tacit, discovered over centuries and tested by experience, and inculcated both formally and informally during the long process of introducing a new physician to the profession.
Among its primary goals, medical ethics seeks to protect physicians against both their strength and their weakness. To guard against the danger of professional arrogance, physicians are taught the need for humility about the limits of their own specialised abilities and about their skill ability to provide accurate prognoses or effect permanent cures. They are cautioned against prideful confidence and the belief that they always know best what is in the patient's best interests. They are taught to seek the committee of colleagues, to be modest in predictions and promises, to secure informed consent for all actions they initiate, and to respect patients' prerogatives to refuse treatment or hospitalisation. Gradually, and no doubt imperfectly, they learn how limited their ability to protect health, prolong life, and prevent death is.
Perhaps even more important are those aspects of medical ethics that protect physicians from their ordinary human weaknesses: his tendency to allow his personal interests (concerns of time, money, or success) to undermine his dedication to the patient's needs; his own dislikes, aversions, and frustrations with difficult or incurable patients, which may lead him to curtail his care, to become indifferent to their needs and complaints, or even to neglect and abandon them altogether; his own fear of death, which may prevent him from letting his patients die without undue indignities. All these lessons are very difficult to learn and to practice faithfully, for caring for the sick and, above all, the dying, places him before extraordinary and constant demands which require enormous patience staff, equanimity, and solidity of virtue.
Despite the medical ideal and despite all exhortations to the contrary, physicians do in fact tire of treating patients who are difficult to cure, who resist their best efforts, who are getting progressively worse - especially when they have not had a close relationship with them for many years. Heaviness', 'disaster', and 'vegetable' are just some of the unloving names such patients receive from interns and residents. Once the venerable taboo against financial aid suicide and medical death disappears, many physicians will be much less able to care unconditionally for these patients.
As death becomes a legitimate "therapeutic option", the exhausted resident physician will be tempted to find out whether it is the best treatment for that old woman "dumped" back into the emergency department by the next-door elderly residency program . Should he administer the necessary penicillin and put her on the ventilator one more time, or, perhaps, this time just an excessive dose of morphine? Even if morphine is not administered, the thought of doing so, and the likely impossibility of being caught and prosecuted, will greatly alter the physician's attitude towards his patients. Today, hospital patients whose history contains "do not resuscitate" orders are very often treated differently from other patients. This happens, not because of an official policy, but in spite of it. The subtle message circulates silently that such patients are less worthy of life. If lethal drugs become a legal option, these psychological changes in doctors will be even harder to resist. And the consequences will often be deadly.
Even the most humane and conscientious physician needs psychological protection against himself and his weakness if he is to care fully for those who trust him. A doctor who has worked for many years in a hospice caring for dying patients makes this point most convincingly: "It was only because I knew that I could not and would not kill my patients that I was able to devote myself fully and deeply to caring for them as they die.
The taboo against medical financial aid suicide is perhaps even more crucial as a protection against the arrogance of doctors - their facility to judge, based on their own private prejudices and attitudes, whether this or that life is unworthy of continued existence. This important point is often overlooked in discussions of financial aid suicide because too much attention is devoted to the patient's voluntary request for death. But in granting such a request, the physician must, whether he or she wishes to or not, play the role of judge, and his or her judgements will be clearly non-medical and non-professional, based on his or her own personal ideas. One will choose to assist in dying to avoid moderate or near senescence, another to avoid paraplegia, a third to eliminate severe pain or blindness or prolonged depression. Only demands that fit the physician's personal criteria of "intolerable" or "unworthy" life will be accepted.
The problem is not primarily that doctors believe that some lives are more worthy or better to live than others; almost everyone holds similar views and makes similar judgements. The danger comes when they act on these judgements, and especially when they do so under the guise of professional prestige and compassion. Medical ethics, mindful that medicine wields formidable powers over life and death, has for centuries prevented physicians from acting professionally on the basis of such personal judgements. Medical students, interns, and residents are trained to have - and acquire - a profound repugnance to physician-performed death as the best defence against the possibility of committing, or even considering, the worst action to which their arrogance and/or weakness can lead them.
At the same time, it is true, they are also taught not to always oppose death. Because they are on the side of life, physicians should not hate death as much as they abhor killing. They are taught - and it is a lesson not easily learned - when to stop intervening, and to cease interfering with the dying process, to provide only care, comfort, and companionship to the dying patient. But, in order to preserve this balance, physicians have insisted on the absolute distinction between letting die and deliberate killing. Ordinary non-medical citizens (including lawyers and judges) seem unimpressed with this distinction, but for the practising physician it is morally crucial.
Moreover, death does not necessarily follow the cessation of treatment. Karen Ann Quinlan lived for more than ten years after the courts allowed the removal of the ventilator that "kept her alive"; it was not her doctor but her underlying illness that was the real cause of her death. The Quinlan case result sample that the right to end treatment cannot be part of some greater right, in the words of conference room Ninth, to "determine the time and manner of one's own death". Indeed, it is both naïve and foolish to believe that we can exercise this "right" to kill ourselves or to agree to be killed at a particular time. The whole notion of the so-called right to die sample the shallowness of our exaggerated belief in the dominion of nature and natural destiny, a belief that informs the opinion of the conference room Ninth and also our entire technological approach of death.
What is morally more important is that the physician who stops treatment does not intend to kill the patient. Even if death follows as a consequence of his action or omission, his intention is to avoid useless and degrading medical additions to the already sad end of a life. By contrast, in financial aid suicide and in all other forms of direct killing, the physician must necessarily and forcibly intend first and foremost that the patient die. And he must knowingly and necessarily cast himself in the role of the agent of death. This remains true even if he is merely assisting suicide. Morally, a physician who provides the pills or who lets the patient inject the contents of the syringe after he has left the room offers no difference from one who does it himself. As the Hippocratic Oath puts it, "I will give no one a deadly drug, even if he asks me, nor make any suggestion to that effect".
The same physician-enforced prohibition of death continues to operate in other areas of palliative care where some have attempted to deny its importance. For example, physicians often and quite properly prescribe high doses of narcotics to patients with disseminated cancer in an effort to relieve severe pain, even though such medication produces an increased risk of death. But it is incorrect to assert that such use of intravenous morphine in patients with advanced cancer already constitutes a physician-executed internship of death. The physician here intends only to relieve suffering, which presupposes that the patient will continue to live in order to be relieved. Death, if it must occur, is not intended and is regretted.
The sound rule of medical ethics that governs this internship is known as the principle of double effect, a principle not understood by conference room Ninth. It is morally lawful to undertake a course of action that is intended and serves a worthy goal purpose (such as alleviating suffering) by employing means that may have, as an unintended effect and unintended consequence, some harm or evil for the patient. Such cases are distinguished from morally wrongful efforts, such as those of Jack Kevorkian, who "relieves suffering" indirectly, by deliberately administering a lethal dose of a drug and thus eliminating the sufferer.
Certainly, it is not always easy to distinguish the two cases from the outside. When death occurs from respiratory depression following the administration of morphine, the result - a dead patient - is the same, and the proximate cause - the morphine - would also be the same. Physical evidence alone, obtained after the fact, will often not be enough to tell us whether the physician acted in an attempt to relieve pain or in an attempt to kill. But this is precisely why the principle of double effect is so important. Only an ethic that opposes intent to kill, which is supported by existing laws, protects the physician from such deliberate deadly acts.
Whether considered a matter of law or a matter of medical ethics, the right to refuse an unwanted medical intervention is properly regarded not as part of a right to be killed but (like the rest of the doctrine of informed consent) as part of a right that protects our decisions about how to live, even as we are dying. What is considered unwanted treatment is at first what is so judged by prudential judgement, which weighs the benefits and drawbacks and, in case of doubt, usually errs towards the side of life and trusts in recovery. But if after a properly conducted attempt, recovery seems beyond all reasonable possibility, and the patient's condition deteriorates, one is medically and morally free to abandon therapeutic efforts, even if the result is death. However, this interruption - whether by a physical act of omission or commission - is not intended to cause the patient to die2.
It is therefore false to say (as conference room Second does) that doctors who turn off a ventilator are already practising financial aid to suicide, or (as conference room Ninth says) that doctors who today put their patients at increased risk of death in order to provide adequate pain medication are knowingly and intentionally killing them. To be sure, some physicians, already far down the slippery slope to involuntary euthanasia, abuse the principle of double effect, but such abuse in no way justifies blurring the only clear line that can be drawn on this difficult area.
The law cannot substitute for medical ethics. It cannot teach or inculcate the correct attitudes and standards that professionals require if they are to preserve the fragile moral integrity on which the proper internship of medicine depends. But the law can support ethics by enacting and maintaining a clear rules and regulations that coincides with the necessary prohibition against physicians being agents of death. Especially when there are serious doubts that adequate substitutes can be found for such a rules and regulations, or that there can be enforceable guidelines at internship and safeguards for medical internship in their absence, the state has a strong reason to prevent the healing profession from also being the profession of executioner of death.
That many physicians are currently tempted to assist suicide, and to perform euthanasia, is not a reason to change the traditional rule . On the contrary, it may well be a warning of how weak the fragile medical ethic has become, and how important it is to help it to stand up. Where our state governments have decided to uphold this ethical ban on financial aid suicide, and where authoritative voices in the medical profession urge that they continue to do so, the federal courts should not embark on undermining their efforts.
Conclusion
It may seem paradoxical that we have been defending a law on the grounds that it financial aid restricts the people whose behaviour it restricts from practising self-regulation. But this is exactly where the law is often most important and useful. Under the growing pressures of subject economic, legal, and technological pressures that cloud modern American medicine, it is increasingly difficult for the medical profession to maintain its own ethical standards and for individual physicians to maintain their moral balance. subject Nowhere is it more important to maintain professional ethics than in the delicate and dangerous area of care of the dying. By far the greatest danger to patients, physicians, and the whole web of their relationships lies there.
State governments, recognising the importance of the moral standards of medicine in general and of the ancient taboo against physician-imposed death in particular, have reasonably and correctly chosen to support the profession with laws prohibiting any medical financial aid suicide. Far from being paradoxical, this is the wisest behaviour.
However, the issue is not ultimately a matter for the courts. It is an issue for our entire society. Even if the Supreme Court decides, as I think it should, to uphold the New York and Washington laws, the battle over financial aid suicide and euthanasia will continue. The battlefield will then return to the states, with "right-to-die" groups and their allies attempting to change existing state laws to legalise financial aid suicide and euthanasia on demand. There are serious doubts as to whether our society will be able to keep them at bay.
Much will depend on whether the medical profession can allay people's fears by demonstrating, after decades of inadequate care, that it is now willing and able to provide adequate comfort and care for the dying. Much will depend on whether we, as a society, are able to muster the will and resources to provide dignified palliative treatment for those who need it. Much will depend on whether we can look beyond our preoccupation with asserting new individual rights to realise the profound danger to the social order if medical murder is permitted. But, in the end, all may depend on whether the American people can learn to accept the limits of medical power and acquire an appropriate attitude towards mortality.
Because we have adopted a primarily technical approach for medicine, and have so medicalised the end of life, we are now confined to contemplating only a final technical solution to the fact of human finitude and to the degradations that are unintended consequences of our technical success. This is dangerous idiocy. Friends of autonomy and human dignity should rather try to fight against the dehumanisation of the last phases of life, instead of giving dehumanisation the final triumph by accepting the desperate goodbye-all contained in a final plea for poison.
The present crisis leading to the call for a "right to die" is thus an opportunity to regain appreciation for living with and against mortality, and to affirm the residual humanity that can be found and cared for even in incurable and terminal illness. If we abandon, if we choose to become technical dispensers of death, we will not only abandon our loved ones and our duty to care for them; we will also exacerbate the worst tendencies of modern life, tying ourselves to technification and dehumanisation precisely when humanity and human stimulation are so necessary and so sorely lacking.
Only by stubbornly resisting, by rejecting "the ethics of free choice" and its deadly options, by learning that finitude is no disgrace and that our humanity can be nursed to the end, may we still be able to prevent the rising tide that threatens to permanently submerge our best hopes for human dignity.
Notes
(1) Similar pressures are now at work at subject abortion. Even gynaecologists who oppose abortion are often forced to discuss it, if only to avoid lawsuits later if the child is born with deformities.
(2) This distinction fits perfectly well with the much-maligned case of artificial feeding tubes, often cited by some to blur the distinction. They argue, wrongly, that the removal of these tubes constitutes an act of financial aid suicide or euthanasia because it implies death by starvation. But, firstly, the decision to insert a feeding tube is often not mandatory, and subsequent decisions about whether to remove it are similarly subject of both medical and moral judgement. It is reasonable to insert a feeding tube when there is some hope that the patient will improve. But if improvement does not occur after a well-conducted attempt, artificial feeding may become not only a futile activity but also a burdensome and unwelcome interference in the dying process. Removing the tube at this point does not imply a decision to "fast the patient to death". Only those who mistakenly assume that the goal of medicine is the indefinite prolongation of life can fail to see that there always comes a time when the right course of action is to avoid causing further discomfort or indignity. Surrendering to the inevitable is not the same as supporting or choosing it.