International Task Force
on Euthanasia and Assisted Suicide
Assisted Suicide: The Continuing Debate
by Rita L. Marker
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Voter Initiatives Legislative Proposals Court Cases Principle of Double Effect The Oregon Experience Federal Law and Oregon's Assisted Suicide Practice On November 7, 2000, Maine citizens were asked to approve the "Maine Death with Dignity Act." The ballot question was, "Should a terminally ill adult who is of sound mind be allowed to ask for and receive a doctor’s help to die?" Voters who took the time to wade through the measure’s small print found that what was called "a doctor’s help to die" was not a commitment to providing care, concern, and pain control as long as the patient lived, but a prescription for a fatal drug overdose. The measure failed. After the vote, most opponents of assisted suicide breathed a sigh of relief and then promptly turned to other matters, but the reaction among those who favor assisted suicide was far different. They didn’t fold up their tents. They didn’t see the situation in Maine as a done deal. They looked at what had happened, saw it as a temporary setback, regrouped, and kept on working. This pattern has been repeated over and over again in the battles that have taken place in recent years. "Out of sight, out of mind" seems to be the operative phrase among those who oppose euthanasia and assisted suicide. "If at first you don’t succeed, try, try again" depicts the response of proponents. Those who seek to legalize euthanasia and assisted suicide(1) pursue their agenda with great dedication and zeal, coupled with savvy public relations instincts and a strategy that launches multi-directional attacks on state laws banning both practices. Washington and California Oregon The measure’s supporters portrayed opponents as religious zealots who were trying to impose their views on everyone and depicted themselves as kind, compassionate individuals who wanted nothing but the right to end intolerable pain by gentle, legal means. The campaign’s centerpiece was a 60-second television commercial that featured Patty A. Rosen, a former nurse who told a story of helping her daughter die. "So I broke the law and got her the pills necessary. And she slipped peacefully away,"(4) Rosen said, as she pleaded with viewers to make such actions legal by approving Measure 16. The ad was powerful, compelling. Over and over, in interviews about the Oregon proposal, Rosen repeated the story of how she gave Jody the pills and "she slipped peacefully away."(5) There was only one problem. The story wasn’t true. Two years earlier, during the California campaign to legalize both euthanasia and assisted suicide, Rosen told an audience she had given her daughter pills but they hadn’t worked. Explaining that it had been necessary to give her daughter a lethal injection, Rosen said, "So she went to sleep. I didn’t know about plastic bags. I wish I had. [I]t seemed to be backfiring. And I was fortunate enough at the very last to be able to hit a vein right and say, ‘Bye, Jody. See you later.’"(6) Discrepancies between the pills-only and the lethal injection versions of Rosen’s story went unchallenged until three days before the vote when an article in an inside section of the Oregonian carried Rosen’s admission that the commercial was inaccurate.(7) Based largely on the "peaceful pill" fabrication, Measure 16 passed, making Oregon the only state where, by law, a doctor can prescribe an intentional lethal dose of drugs. Soon the Oregon Medicaid program announced that it would pay for assisted suicide for poor residents as a means of "comfort care."(8) Michigan There were other problems as well for its supporters. A broad based coalition against the measure prevented assisted-suicide activists from using the religion bashing that had been so effective in Oregon. Large minority populations in Detroit were very much opposed to assisted suicide. And the cost of gathering signatures to place the measure on the ballot had left little funding to wage an effective media campaign. Although early public opinion polls had indicated that the majority of Michigan voters favored assisted suicide, the proposal was resoundingly defeated on November 3, 1998 by a vote of 71 to 29 percent.(10) However, as with the losses prior to their Oregon success, those who seek to make assisted suicide just another medical option used the abysmal failure in Michigan as a learning experience – and looked ahead, this time to Maine with a ballot initiative for 2000. Maine The underlying theme used by the measure’s sponsor, Mainers for Death with Dignity (later called "Yes on 1"), was that Maine should follow Oregon’s lead. During the course of the campaign, assisted-suicide supporters from Oregon pitched in to help. Dr. Katrina Hedberg (Oregon’s chief epidemiologist who co-authors Oregon’s official assisted suicide reports), Ann Jackson (executive director of the Oregon Hospice Association), Barbara Coombs Lee (a chief author of the Oregon law and executive director of the assisted suicide advocacy group Compassion in Dying), and former Oregon governor Barbara Roberts all traveled to Maine to assure voters that Oregon’s law was working well and was problem free. However, the "No on 1" campaign, made up of an impressive, broad-based coalition to oppose the measure, used effective research and carefully designed material to counter erroneous claims of a problem-free Oregon law. One television ad featured Oregon physician Thomas Reardon, immediate past president of the American Medical Association. In it, Reardon described Oregon’s problems and complications with assisted suicide. He related the story of a 911 call made by a panic-stricken family member when the lethal prescription caused complications. The ad concluded with Reardon saying, "And I don’t want Maine to make the same mistake we did." (11) The "No on 1" ads were so effective that the Yes on 1 camp tried to have them taken off the air. When they were unsuccessful, Yes on 1 enlisted the aid of Oregon’s current governor, John Kitzhaber, to appear in an ad to "set the record straight" about the Oregon law. "Here’s the truth," Kitzhaber said. "It’s working well." (12) He insisted that no assisted suicide under the Oregon law had ever resulted in complications warranting a 911 call. But the No on 1 campaign was able to produce documentation that the case had been the subject of a 2-part article in the Oregonian. (13) Support for Question 1, which had been at 71% in August, fell as Mainers learned more about the proposal, and it ultimately failed to pass by a vote of 51-49 percent. But, true to pattern, assisted suicide advocates have not given up. The Yes on 1 committee has reorganized as the "Maine Death with Dignity Center (MDDC)," a 501 (c)(3) corporation. Funded by the Hemlock Society, the MDDC staff and board – all activists from the Question 1 campaign – is "committed to continuing the movement" to legalize assisted suicide in Maine. (14) It is unlikely that another initiative will be proposed in Maine at any time in the near future, however the legislative route is another avenue being taken to promote assisted suicide. "In what states should proposals to legalize assisted suicide be expected?" is a fairly common question. The answer is simple. "Every state is likely to be faced with such a measure, sooner rather than later." Since passage of the Oregon’s assisted-suicide law in November 1994, at least 54 assisted suicide and/or euthanasia measures have been introduced in 21 states. (15) Not one has passed. On the other hand, between 1995 and 1999, seven states passed laws prohibiting assisted suicide. (16)However, passage is not always the goal of proposing a law to permit assisted suicide. Those who favor the practice acknowledge that the mere introduction of a legislative proposal is beneficial since, when a "death with dignity" bill is introduced, media coverage follows. This presents an opportunity to feature an emotional appeal from a patient who pleads for the "right" to assisted suicide. Then, after the initial flurry of stories, most bills linger in committee until their demise at the end of a legislative session and coverage fades. But, the envelope has been moved. A step has been taken to build public support by creating the illusion that legalization of assisted suicide is a compassionate solution to a heart-wrenching situation. Nonetheless, the constant barrage of proposals along with their accompanying attention-grabbing stories creates the illusion that assisted suicide is inevitable, that it’s not going to go away, and that the rest of the country will eventually follow Oregon’s lead. It is true that attempts to legalize assisted suicide will continue. But it is not true that the rest of the country will inevitably fold under the pressure. Other states will not repeat Oregon’s tragic mistake if those who seek to protect society from the dangers of assisted suicide develop coalitions to oppose such measures. A 1999 California bill that seemed destined for passage provides an example of the strategies used to promote such a bill and the effectiveness of broad-based opposition. Strong Grassroots Opposition Defeats California Bill The proposal was virtually identical to the Oregon law. In fact, Aroner pointed to this as a benefit saying, "AB 1592 is based on the same law that was passed by voters in the state of Oregon a couple of years ago. The good news is that we’re luckier than Oregon because we have their experience to consider." (17) However, when the bill was introduced, opponents immediately began the task of contacting community leaders about its implications. Much to the surprise of assisted-suicide proponents, the points raised in opposition were not based on right-to-life or religious arguments. It didn’t take long before Aroner and her bill encountered stormy waters in the form of strong grassroots opposition. By the time hearings and committee votes on AB 1592 took place, people from across the state – those who were poor, individuals from diverse ethnic groups, disabled persons and the elderly – were present to stage protests outside the capitol and in front of Aroner’s Berkeley office. Petitions opposing the measure, circulated within the African-American community, were signed by thousands of people. (18) The League of United Latin American Citizens (LULAC), which is the oldest and largest Latino civil rights organization in the United States, adopted a resolution condemning the legalization of doctor-assisted suicide. LULAC’s resolution stated that "many Latinos do not have health care" and "the poor have a right to live and to receive proper medical care." (19) It concluded, "We urge a ‘NO’ vote on AB 1592 because we believe it is unconscionable to talk about legalizing physician-assisted suicide when low-income people do not have access to comprehensive medical care including pain management and hospice care." (20) Aroner had failed to consider the day-to-day obstacles faced by minorities and the poor when they need health care. As disability rights leader Diane Coleman has observed, assisted suicide is primarily promoted by those who are white, well-off, worried and well. For many people,
inequity in health care is a harsh
reality, as illustrated by documented disparities in treatment and pain control:
Even activists in Aroner’s Berkeley and Oakland district actively opposed the bill. The Berkeley City Council, Californians for Disability Rights, and the Oakland-based Committee for the Black Panther Party were firmly against it, pointing out that, at least in the current health system, no assisted suicide bill could be written that would safeguard its use against the poor and people with disabilities. (27) Opposition from those on whom Aroner had relied for support brought her to tears at one point in the debate over the measure. (28) But it did nothing to lessen her advocacy of her bill. She made it abundantly clear that she was committed to seeing assisted suicide legalized, no matter what the consequences. "It's a very personal issue," she told reporters. "It’s not a question of what is good politics or good policy."(29) Although some last minute maneuvering and committee membership changes permitted its passage at the committee level, (30) it soon became clear that AB 1592 would not pass the full Assembly before the session ended. The bill was changed into what is known as a "two year bill," permitting it to be considered again in January 2000 and Aroner stepped up attempts to garner support for it by downplaying public fears.
In saying this, Aroner was either uninformed about the content of her bill, or she was being deliberately deceptive. AB 1592 did not allow anyone to "coerce" or use "undue influence" to obtain a request for assisted suicide. (32) However, there was absolutely nothing in the measure that would have prevented HMOs, managed care companies, doctors or anyone else from suggesting, encouraging, offering, or bringing up assisted suicide with a patient who had not asked about it. Yet, relying on Aroner’s assertions, rather than on the bill’s content, newspapers repeated the false assurances. The San Francisco Bay Guardian reported, "The bill would make it a felony for anyone – HMOs, family members, doctors – to encourage a patient to take the medication." (33) Similarly, an editorial in the Sacramento Bee stated, "In an effort to ensure that the action would be completely voluntary on the part of the patient, AB 1592 would make it a felony for any doctor or HMO or insurance company to suggest the idea. The request would have to be initiated by the patient."(34) As late as December 1999, during a presentation at Berkeley’s Alta Bates Medical Center, Aroner was still claiming, "It is a felony if anyone else [but the patient] brings it up."(35) A fact sheet about AB 1592, prepared by Americans for Death with Dignity and distributed by Aroner’s office at her Alta Bates presentation stated, "The patient must initiate the request for medication." (36) Aroner persisted in misstating the content of her bill. However, her claims did not go unanswered. At each and every presentation, individuals who had carefully studied the proposal refuted her claims and stressed her bill’s danger to the community. The strong grassroots opposition had an impact. AB 1592 died from lack of support. It was not brought to the floor of the Assembly by the deadline of January 31, 2000. And, although Aroner later said she intended to introduce another assisted-suicide bill after the November 2000 election, she has not done so yet. Although the political attempts to legalize assisted suicide will continue, right-to-die proponents have not confined their efforts to initiative campaigns and legislative proposals. They have long realized that victory in the courts could achieve their agenda and could eliminate the need to move incrementally toward what would essentially be assisted suicide on demand. The court route goes beyond attempting to have assisted suicide legalized. Instead, it seeks to have hastened death constitutionalized. This presents a significant difference since it would be difficult to even attempt to place restrictions on a constitutionally protected right. (37)Since 1994, the Hemlock Society and its spin-off, Compassion in Dying, have been in the forefront of court challenges to the constitutionality of state laws prohibiting assisted suicide in Washington, New York, Florida and Alaska.(38) The Hemlock Society, which was co-founded in 1980 in California by Derek Humphry (author of the 1991 suicide manual, Final Exit) and Ann Wickett Humphry, was deeply involved in drafting, promoting and funding the Washington, California, Oregon, Michigan and Maine ballot initiatives.(39) Compassion in Dying (CID) began after the 1991 defeat of the Washington State initiative to legalize euthanasia and assisted suicide. Unitarian minister Ralph Mero, the group’s first executive director, described CID as "an outgrowth of the Washington State Hemlock Society chapter."(40) (Mero directed the Hemlock chapter until taking over the helm of CID.) According to Mero, "The Washington Hemlock chapter strongly wanted to expand its mission" to offer suicide assistance in "deserving cases" so it created a separate organization for that purpose.(41) CID was officially organized in Seattle in April 1993 as a 501 (c) (3) organization(42) and before long, the small band of activists, led by Mero, were making news across the country(43) as the "most controversial right-to-die venture" since Jack Kevorkian began plying his trade.(44) As the first U.S. group to publicly admit offering assistance in committing suicide, CID acknowledged involvement in twenty-four deaths during its first thirteen months of operation. It subsequently refused to divulge additional participation.(45) Mero and his Compassion in Dying activities even became the cover story in The New York Times Magazine.(46) Coverage of CID’s activities caught the attention of Kathryn Tucker, an attorney with Perkins Coie,(47) the Pacific Northwest’s largest law firm. Tucker, who had served as principal outside counsel to sponsors of the failed Washington "Death with Dignity Act,"(48) contacted Mero and suggested that, rather than exposing itself to possible prosecution, it may be better for CID to challenge the constitutionality of Washington State’s law prohibiting assisted suicide.(49) That call launched two cases which would reach the U.S. Supreme Court and led to a major ongoing role for Tucker with CID. Washington State From the outset, many expected the case to be a landmark for the right-to-die movement. "It would be the equivalent of Roe v. Wade for the right to die," said Kathryn Tucker. "If the Supreme Court rules on it, all state statutes which affect that conduct will be either upheld or struck down."(51) Five months later, Federal District Court Judge Barbara Rothstein ruled that the Washington statute prohibiting assisted suicide was unconstitutional. Rothstein based her decision heavily on the U.S. Supreme Court’s decision in Planned Parenthood v. Casey,(52) writing that "the suffering of a terminally ill person cannot be deemed any less intimate or personal, or less deserving of protection from unwarranted governmental interference, than that of a pregnant woman. Thus, consonant, with the reasoning in Casey, such an intimate personal decision falls within the realm of the liberties constitutionally protected under the Fourteenth Amendment."(53) The following year Rothstein’s ruling was reversed by a three-judge panel of the United States Circuit Court of Appeals for the Ninth Circuit.(54) But CID petitioned for a hearing before a larger panel and, on March 6, 1996, an en banc panel of the Court of Appeals, in an 8 to 3 decision, reinstated Rothstein’s finding that Washington’s law violated the Due Process Clause of the Fourteenth Amendment.(55) In a letter to CID supporters, Ralph Mero wrote, "With your support, we have just won the greatest civil rights victory for terminally ill patients in American history." He noted that a decision in CID’s "companion case" (see New York, below) would be made shortly and he told readers that "Compassion in Dying is the only organization sponsoring this effort to change the law to permit death with dignity through the courts."(56) Within months of CID’s success in the Ninth Circuit, Barbara Coombs Lee replaced Ralph Mero as CID’s executive director and president. Coombs Lee, who had helped draft Oregon’s assisted suicide law and had been chief petitioner and a major spokesperson for the "Death with Dignity Act," left her position as vice president of a large Oregon managed care company to take over the helm of CID.(57) Under Coombs Lee’s leadership, the organization has grown into a well-funded national organization,(58) that has pressed forward with court challenges, and has "guided" approximately two-thirds(59) of patients whose assisted suicide deaths have been reported since the Oregon law went into effect. New York Tucker, with the assistance of the Manhattan law firm, Hughes Hubbard and Reed, where her father serves as chairman,(62) filed suit on July 20, 1994 in U.S. District Court in Manhattan. The suit used virtually the same argumentation and wording employed in the Washington State suit. It alleged that the anti-assisted suicide statute violated both the liberty guarantees and the equal protection provisions of the Fourteenth Amendment. Five months later, New York District Court Judge Thomas P. Griesa rejected Tucker’s claims, ruling unequivocally that there is no fundamental right to assisted suicide under the U.S. Constitution.(63) However, on April 2, 1996 (just a month after Tucker’s Ninth Circuit victory), a three-judge panel of the U.S. Court of Appeals for the Second Circuit overturned Griesa’s decision when it ruled unanimously that New York’s statutes criminalizing assisted suicide violated the Equal Protection Clause.(64) Within the span of four weeks, the cases originally brought by Tucker on behalf of CID in 1994 had effectively overturned laws banning assisted suicide in Washington and New York. The rulings, however, affected other states as well in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Oregon) and the Second Circuit (Connecticut and Vermont). Although both rulings had found that state laws against assisted suicide violated the Fourteenth Amendment, they did so for different reasons. The Ninth Circuit had based its decision on a perceived violation of the Due Process Clause, while the Second Circuit had rejected the Due Process basis and found, instead, that anti-assisted suicide laws violated the Equal Protection Clause. Both cases were appealed to the U.S. Supreme Court. U.S. Supreme Court Given their victories in lower courts and the passage of Oregon’s "Death with Dignity Act," assisted suicide supporters were confident they would prevail – until oral arguments began on the morning of January 8, 1997. As hundreds of members of the disability rights organization Not Dead Yet demonstrated outside, Tucker (arguing the Washington State case) and Laurence Tribe (arguing the New York case) met a chilly reception inside the court. Questions and comments from the justices made it clear that they were more than skeptical that assisted suicide is a constitutionally guaranteed right. And, although conventional wisdom has always held that oral arguments cannot predict the direction the Court will take, virtually everyone present to hear these was convinced that the Court would overturn the Second and Ninth Circuits’ decisions.(65) In CID’s newsletter, Coombs Lee acknowledged that "the standard wisdom coming from Court watchers is that the Court will not rule in our favor."(66) Emory University Law School Professor David J. Garrow, an assisted suicide advocate, noted that the justices seemed "downright annoyed at having to rule on the pair of controversial landmark cases Tucker had brought before them."(67) On June 26, 1997, the Supreme Court unanimously upheld the right of states to prohibit assisted suicide. The decisions in Washington v. Glucksberg(68) and Vacco v. Quill(69) dealt a crushing 9 to 0 blow to proponents of assisted suicide. But, having seen the handwriting on the wall, right-to-die spokespersons had had months to prepare their "spin." Even in the face total defeat, they claimed victory. Post-decision talking points declared the decision a win for those seeking to legalize assisted suicide. Coombs Lee claimed that one of the chief goals of the cases had been to increase public awareness and discussion of options at the end of life and said, "We have succeeded in lifting the veils of secrecy around the ways that death is commonly and legally hastened."(70) Tribe called the court’s decision "far more encouraging than anyone expected."(71) And Quill saw the decision as permitting the "underground practice" of assisted suicide to continue since, "the court didn’t suggest that the laws [against assisted suicide] should be more vigorously enforced."(72) By far, at the top of the list of talking points was the claim that a new opportunity had been created by the Court, giving assisted suicide advocates the go ahead to do battle on the state level. Tucker said, "All of the justices are hoping this issue can be resolved legislatively, and the states have a green light."(73) Coombs Lee also used the green light imagery. "It gives us a green light," she said. "We’re really thrilled."(74) This disingenuous claim ignored the fact that states had always had the "green light" to pursue such a course of action. But assisted-suicide advocates did not let the truth get in the way of a means to appear victorious. In keeping with the assertion that a new path had opened, Coombs Lee announced the formation of CID’s legal arm to be headed by Kathryn Tucker. Thus, with the door closed on federal constitutional claims, the search was on to find the state jurisdiction which might prove open to a claim that assisted suicide is a right under the state constitution. (State supreme courts must examine claims that are based on state constitutions solely on state grounds without regard to the interpretation of a counterpart provision in the Federal Constitution.) In fact, such a case was already pending in Florida. This one spearheaded by the Hemlock Society. Florida In the wake of the CID’s 1994 federal court filing in Washington, the Florida chapter of Hemlock began efforts to "explore Florida’s constitutional privacy provision" as a means to overturn that state’s anti-assisted suicide law. Hemlock, along with the Florida ACLU, worked on "constructing a legal process patterned after the Washington State case" and actively recruited potential plaintiffs.(75) According to Florida Hemlock’s Mary Bennett Hudson, lawsuit organizers traveled statewide, auditioning about 50 patients and more than 12 physicians in hopes of finding the ideal plaintiffs for the case. "We needed people who were articulate, who would make good witnesses," Hudson said. It took two years and several false starts before the right test case plaintiffs, AIDS patient Charles Hall and Dr. Charles McIver, were identified. Hall and McIver had never met before their match up for the court case.(76) On January 31, 1997, Florida Circuit Judge S. Joseph Davis ruled that, under the Privacy Amendment of the Florida Constitution, Hall had the right to end his life with McIver’s help.(77) The case was immediately appealed to the Fourth District Court of Appeals which refused to review Davis’ ruling and, instead, forwarded the case directly to the Florida Supreme Court. Exactly three weeks after the U.S. Supreme Court ruled that there is no right to assisted suicide guaranteed in the U.S. Constitution, the Florida State Supreme Court ruled 5 to 1 to uphold the constitutionality of Florida’s law prohibiting assisted suicide.(78) Chief Justice Gerald Kogan, who was the only dissenter, still holds out hope that there will eventually be another case challenging the Florida law and that, using his dissent, new justices will see fit to find a right to assisted suicide in the Florida Constitution. Speaking at the World Federation of Right to Die Societies Conference in September 2000, Kogan who is now retired said, "As a matter of fact, the Court in a few years time may be of such a mind and nature that, when they read my dissenting opinion, they will say that the decision was wrong and, as a result, they would set it [Krischer v. McIver] aside and uphold the trial judge’s ruling in that particular case."(79) However, activists were not waiting for a possible replay of the Florida case. They directed their attention to the north. Alaska
Plaintiffs in the case were 43-year-old Kevin Sampson, who was diagnosed with AIDs in l992, and "Jane Doe," a woman physician in her sixties who has breast cancer. Sampson committed suicide before arguments in the case were heard. When Alaska Superior Court Judge Eric Sanders ruled that the state’s law banning assisted suicide does not violate the liberty, equal protection, or right to privacy clauses contained in Alaska’s Constitution,(81) CID’s Tucker and her co-counsel, Anchorage attorney Bob Wagstaff, took the rejection in stride, calling it a "temporary setback."(82) They appealed the ruling to the Alaska Supreme Court. While the case was still pending, Tucker said the ruling would determine whether CID will take another bite of the state court apple:
Furthermore, the Court pointed out that permitting assisted suicide would present a grave danger to vulnerable Alaskans who could be subject to deadly coercion. In so doing, the Court cited the perils that a New York task force had predicted would occur in an environment where assisted suicide is legal:
Following the decision, CID issued a statement expressing disappointment and vowing that it would continue to offer information, consultation and emotional support to those "who wish to add hastened death to their end-of-life options."(86) Whether its crushing defeat in Alaska will really curtail CID’s court challenges to other state laws remains to be seen. However, regardless of where future assisted suicide efforts are directed, two predominant themes are certain to be a large part of the continuing debate over assisted suicide. The first is an assertion that what is called "terminal sedation" is a commonly practiced, ethically acceptable form of intentionally hastening death. The second is the claim that Oregon’s experience with assisted suicide proves the safety and benign nature of legally permitted assisted suicide. Because both themes will undoubtedly be in the forefront of efforts to push the assisted suicide agenda in the future, they bear close examination. "Terminal sedation" is a phrase that is relatively new. It did not even appear in medical literature until the 1990s. Even today, there is not a clear definition of the term.(87) It has long been recognized that, in the very rare case when symptoms cannot be relieved in any other way, sedation can be administered even if it renders a patient unconscious. The use of such sedation is not limited to dying patients, but is sometimes used temporarily in trauma or burn cases. And it has been traditionally understood that, even if such an intervention carries the risk of death, it is appropriate and ethical under the principle of double effect. (It should be noted that, contrary to widespread belief, medication – morphine, for example – gradually increased to even extremely high doses to control pain, does not hasten death.(88) And sedation to the point of unconsciousness may even slightly prolong the life of a dying patient.)(89) Medical professionals have found the principle of double effect immensely useful as a guide for ethical decision-making. The principle of double effect is based in Catholic tradition, (90) but it has long figured prominently as a guide to ethical decision-making in secular settings.(91) According to the principle of double effect, it is morally permissible to perform an act that has both a good effect and a bad effect if all of the following conditions are met:
It is the third requirement – the intent aspect – that assisted suicide proponents have seized on as the Achilles heel in the principle, claiming that a physician who intended to kill a patient could escape scrutiny by claming the death was unintended. Distorting the Principle of Double Effect Dr. Thomas Preston agreed with the Court’s statements,(96) but his stance was not surprising. Two years earlier, while the case was wending its way to the Ninth Circuit, Preston had written an opinion piece for the New York Times that became the first widely circulated attack on double effect as it pertains to palliative care. In it, he referred to use of double effect as "medical jargon" and said "the morphine drip is undeniably euthanasia, hidden by the cosmetics of professional tradition and language."(97) Preston called on society to come to grips with the fact that euthanasia is widespread now and, therefore, efforts should turn to establishing appropriate guidelines for its practice. However, Preston who is a Seattle cardiologist and professor of medicine at the University of Washington was not an objective commentator on the state of medical ethics. He was, in fact, one of four physician-plaintiffs in the Washington case seeking to overturn assisted-suicide laws, as well as a board member and a medical advisor for CID. He was involved in assisted suicides being facilitated by CID.(98) The claims made in Preston’s article made their way into the U.S. Supreme Court briefs and arguments. Terminal sedation was said to be the same as assisted suicide, only a more "gruesome"(99) method of doing so than a quick lethal dose of drugs. Tribe called sedation a means to "chemically kill someone."(100) However the Court rejected attempts to equate an intended death with the risk of an unintended death that may accompany sedation.(101) Nonetheless, assisted suicide leaders continue to blur the lines between killing patients and killing pain. They persist in declaring that sedation is "slow euthanasia."(102) By distorting both the practice of sedating patients and the principle of double effect, assisted suicide advocates are attempting to persuade the public that it is unreasonable to continue to prohibit such deaths. As Dion Aroner said in a public presentation to gather support for her "Death with Dignity" bill, "I don’t see the difference between terminal sedation and physician assisted dying except that the patient has control of one and not the other."(103) It is likely that assisted suicide proponents will use this obfuscation as they continue in their attempts to gain public support. Appealing to the Public At an international right-to-die conference held in Boston last year, health-care professionals issued the following declaration:
Within the span of a few years, a rarely used treatment to alleviate uncontrollable pain has come to be depicted as an optional method of intentionally causing death. If such erroneous impressions are not refuted effectively, the confusion that will exist in the mind of legislators, judges and the general public could be devastating. Along with their representation of terminal sedation as "slow euthanasia," right-to-die leaders are depending on what they call the "Oregon experience" to further their cause. Oregon’s experience with assisted suicide is, by far, the foundation on which activists hope to build support for their agenda. It has already figured prominently in initiative campaigns and in cases before the courts. Speaking to international right-to-die conference attendees, Tucker called official Oregon data "enormously useful." She said, "[W]hat that data shows quite convincingly is that speculative fears that the state has conjured in these cases have not come to pass." (106)As discussed earlier, supporters of Maine’s Death with Dignity Act were unsuccessful, in large part, because their claims about Oregon’s assisted suicide law were countered with accurate, documented information about what is happening in Oregon. But that did not deter Tucker from using official Oregon statistics to bolster her arguments before the Alaskan Supreme Court. Tucker assured the Court that official statistics prove that permitting assisted suicide in Alaska would not result in abuses, but would, instead, present an opportunity for people to make careful, reasoned choices about how their lives will end.(107) With the failure to advance their agenda in Alaska, assisted suicide activists will focus on Oregon. They will use Oregon as the "poster state" to make claims that assisted suicide is a personal choice that, when legal, is make infrequently and under carefully controlled guidelines. Therefore, it is extremely important to examine the Oregon law itself and the official reports about its implementation. Oregon’s Law
Like the law itself, the official reports deserve attention. The Oregon Assisted-Suicide Reports If assessment of Oregon’s experience with assisted suicide depended solely on official reports, those concerns have, indeed, been found to be without merit. However, reliance on those official reports for an accurate portrayal of assisted suicide in Oregon is imprudent. Physician Noncompliance The OHD has the mandate of requiring health care providers to file a copy of dispensing records.(125) However, the law contains no penalties for health care providers who fail to report prescribing lethal doses for the purpose of suicide. Moreover, according to Dr. Katrina Hedberg, co-author of Oregon’s three official reports, the OHD has no regulatory authority or resources to ensure compliance with reporting requirements.(126) Questionable Data This situation did not change for subsequent reports. The second official report noted, "Underreporting cannot be assessed, and noncompliance is difficult to assess because of the possible repercussions for non-compliant physicians reporting data to the division."(130) The OHD has even admitted that reporting physicians may have fabricated their versions of the circumstances surrounding the prescriptions written for patients: "For that matter, the entire account could have been a cock-and-bull story. We assume, however that physicians were their usual careful and accurate selves."(131) Over the course of the first three years of legal physician-assisted suicide in Oregon, 70 deaths were reported.(132) But there is no way to know how many such deaths actually took place. Nor is it possible to determine the circumstances surrounding those deaths. Questions and More Questions Official reports from Oregon also indicate that at least 59% of patients did not receive their lethal drug prescriptions from the first physician they asked.(135) Since the refusing physicians were never interviewed by the OHD for the official reports, there is no way to know why these doctors refused to prescribe or why they determined that the patient was not qualified for an assisted suicide death under the Oregon law. Was it because the patient was not terminally ill? Was it because the physician was personally opposed to assisted suicide? Or was it because the doctor knew the patient was subtly being pressured or encouraged by others to opt for an early death? The answers to these questions will never be known. The OHD’s figures also indicate that some patients knew their doctors for only two weeks before the lethal dose was prescribed.(136) Since at least two weeks must elapse between the first and last requests for the lethal dose, it appears that, in these cases, the physician-patient relationship was established for the specific purpose of obtaining the drugs for assisted suicide. There are other omissions in the reports that raise even more questions. For example, the reporting doctors stated that none of the patients expressed financial concerns as a reason for wanting to die from assisted suicide. Yet 14.3% of those who died were on Medicaid,(137) Oregon’s health program for the poor. In this population, financial difficulties are a fact of life. Is it possible that physicians did not probe these patients’ reasons for choosing assisted suicide since the difficulties associated with poverty seemed insurmountable? Among others whose deaths were reported, there remains a question about financial concerns that may not have been discussed with the prescribing physician (or may have been discussed, but not reported). The Oregon law requires the doctor to inform the patient of the "feasible alternatives, including, but not limited to, comfort care, hospice care and pain control."(138) Since these would likely not be "feasible alternatives" for patients who do not have the financial resources to obtain such care, there is even some question as to whether the physician would have to inform a patient about such services. In fact, in the absence of the ability to afford such services, being "informed" about them is useless, if not cruel. Even among Oregonians who are covered by private medical insurance, coverage for hospice services is often woefully inadequate. For example, QualMed Oregon Health Plan (created out of a merger of two HMOs) covers assisted suicide "as a prescription" while the plan’s "value option" has a $1000 limit on hospice care for terminally ill patients.(139) Complications not Reported Barbiturates are the most common substances used for assisted suicide in Oregon and in the Netherlands. Overdoses of barbiturates are known to cause distress. Extreme gasping and muscle spasms can occur. While losing consciousness, a person can vomit and then inhale the vomit. Panic, feelings of terror and assaultive behavior can take place from drug-induced confusion. Other problems can include difficulty in taking the drugs, failure of the drugs to induce unconsciousness and a number of days elapsing before death occurs.(142) Yet OHD’s first two annual reports contained no instances of problems or complications associated with the assisted-suicide deaths. The third year’s report cited only one case where the patient regurgitated a small amount of the drugs but died anyway. According to the OHD, "No other complications were reported."(143) Hedberg has explicitly downplayed any complications. "Those things have not materialized," she stated.(144) However, she has acknowledged that OHD must rely on the word of the doctors who prescribed the drugs and that, since those doctors don’t need to be present when patients take the lethal drugs, they may not even know if there were problems.(145) And, following release of the third report, she admitted to a reporter, "Dying is not pretty, and it takes a lot of preparation." "We have not seen a botched suicide," she said, "but we certainly have seen a wide spectrum, some of which you’d put in the category of not going as smoothly as might be hoped for."(146) Problem Cases in the News After Patrick Matheny received his lethal dose of drugs from Oregon Health Sciences University via Federal Express, he delayed taking them for four months. On the day of his death, he experienced difficulty. His brother-in-law, Joe Hayes, said he had to "help" Matheny die. According to Hayes, "It doesn’t go smoothly for everyone. For Pat, it was a huge problem. It would not have worked without help."(147) Another assisted suicide that went awry was inadvertently disclosed by Oregon attorney Cynthia Barrett during a "Physician-Assisted Suicide: Counseling Patients/Clients" presentation at Portland Community College in December 1999. According to Barrett, "The man was at home. There was no doctor there," she said. "After he took it [the drug overdose], he began to have some physical symptoms. The symptoms were hard for his wife to handle. Well, she [the wife] called 911. The guy ended up being taken by 911 to a local Portland hospital. Revived. In the middle of it. And taken to a local nursing facility. I don’t know if he went back home. He died shortly – some period of time after that time."(148) George Eighmey who directs the Oregon chapter of CID was also present at the workshop. He told participants that the man "wasn’t one of our patients."(149) Barrett’s remarks may have stayed within the confines of that room had it not been for Catherine Hamilton, a nurse who opposes assisted suicide. According to Hamilton, Eighmey approached her in the hallway following the workshop and cautioned her that the information was confidential and that no one should discuss it with the media. Since Barrett hadn’t given any identifying information, there was only one reason to keep the story "confidential," and it wasn’t to protect the man or his family. It was to keep any news of a "botched suicide" away from the public. A short time later Hamilton’s account of the event appeared in Brainstorm, an Internet magazine.(150) Following the Internet article, during an interview on Portland’s KXL radio, Eighmey was asked if he was familiar with the case that Hamilton had described in her article. He accused Hamilton of "irresponsible, unsubstantiated reporting" and said that neither he nor two other workshop participants had heard Barrett say anything about such a case. "So whether Mrs. Hamilton is hearing things or not we don’t know," he said.(151) His suggestion that Hamilton had been imagining things might have prevailed but for the fact that — apparently unnoticed by Eighmey — the workshop had been recorded and the talk show host was aware of this. He told Eighmey that not only were Barrett’s remarks on tape but that Eighmey’s statement that the patient wasn’t Compassion in Dying’s had also been recorded. Eighmey chose to end the interview early.(152) The Matheny death and the case described by Cynthia Barrett may be the only times that complications have arisen in conjunction with the Oregon assisted suicide law. Or they may be just the tip of the iceberg. Dr. Sherwin Nuland of Yale University School of Medicine, who favors physician-assisted suicide, has questioned the absence of complications in the official Oregon reports. He noted that, in the Netherlands where there have been years to learn ways to overcome complications, Dutch reports show significant problems, yet Oregon’s reports portray the practice as problem-free. He wrote, "The Dutch findings seem more credible."(153) Disturbing New Findings Most revealing is the fact that only five patients (19 percent) in 2000 were referred for psychological evaluation.(155) But even then, the evaluations may have been slipshod and impersonal as the case of Joan Lucas indicates. One of the assisted suicide deaths tallied in the third annual Oregon report was that of 65-year-old Joan Lucas who had ALS. Lucas had tried to overdose on sleeping pills in January 2000, but the suicide attempt failed. After several doctors refused to assist her death, Lucas’ son called CID and finally found a willing doctor. The doctor requested that Lucas get a psychological evaluation because, he said, "I wanted to cover my ass."(156) A cooperative psychologist was located, but, because Lucas was not able to travel to his office, he didn’t see her in person. Instead, he sent her the Minnesota Multiphasic Personality Inventory test to take. Lucas children took turns reading the "hundreds" of questions to her and writing the answers. Based on those responses, the psychologist determined that any depression Lucas experienced was related to her illness and was a completely normal response. Therefore, she was eligible for assisted suicide. Although Lucas’ death was in the talley, none of the details surrounding her prior suicide attempt or her "psychological evaluation" were included in the third year report. Clearly, the picture of the Oregon experience differs greatly from the calm portrait painted by those who would make it a model for medical practice throughout the country. Federal Law and Oregon’s Assisted Suicide Practice On November 6, 2001, Attorney General John Ashcroft issued a memorandum to Asa Hutchinson, Administrator of the Drug Enforcement Administration (DEA). The memorandum, titled "Dispensing of Controlled Substances to Assist Suicide," directly affects the practice of assisted suicide in Oregon.To hear most assisted suicide activists, one would think that Ashcroft had obliterated rights for Oregonians. In fact, he was merely affirming the fact that Oregon is one of the fifty states and, as such, federal laws apply there in the same way they apply elsewhere. When Oregon voters passed the "Death with Dignity Act," they gave doctors the right to prescribe drugs for the specific purpose of causing the death of a patient. Barbiturates and most other drugs that are used for assisted suicide are federally controlled substances. Before the Oregon law went into effect in 1997, Senator Orrin Hatch and Representative Henry Hyde wrote to the DEA, seeking clarification about the apparent conflict between the state law and the federal drug regulations found in the Controlled Substances Act (CSA). (157)Constantine’s letter made it clear that narcotics and other dangerous drugs controlled by federal law could not be dispensed to assist suicide anywhere in the United States. Thus, since federal law gives the attorney general the authority to revoke a doctor’s registration to prescribe controlled substances, physicians who prescribed them for assisted suicide would be at risk of losing their federally issued prescribing licenses. On June 5, 1998, Attorney General Janet Reno overruled Constantine’s interpretation, saying that passage of Oregon’s law had made the use of controlled substances for assisted suicide a "legitimate medical purpose" in that state. In effect, Reno said each state holds the trump card when it comes to interpreting and applying federal laws regulating controlled substances. This rationale would permit voters to bestow legitimacy on virtually any use of controlled substances as long as it was couched in terms of having a medical purpose. Thus, just as voters in Oregon deemed barbiturates for assisted suicide acceptable, another state could legitimize marijuana by passing an initiative permitting its use for medical purposes. But, contrary to Reno’s opinion, that’s not the way it works. The U.S. Supreme Court made this abundantly clear in United States v. Oakland Cannabis Buyers’ Coop., (158) a case focusing on medical marijuana. States Cannot Nullify Federal Law However, the federal government contended that, while activities of the buyers clubs did not violate state law, they violated the federal Controlled Substances Act. On May 14, 2001, the U.S. Supreme Court agreed. In a unanimous decision, the Court reaffirmed that federal law regulating controlled substances applies to all the states, and cannot be erased by state action. Attorney General John Ashcroft cited this decision in his letter of November 6 in which he overturned Reno’s ruling and reinstated Constantine’s determination:
Under Ashcroft’s ruling, physicians who prescribed controlled substances for assisted suicide were engaging in conduct that may render their federal registrations inconsistent with the public interest, therefore causing revocation of the registrations. He made it clear, however, that revocation proceedings would be initiated only against physicians who violated the CSA after the issuance of his determination. No action would be taken against doctors who had participated in assisted suicide prior to his ruling. Impact of Ruling Here are the facts about the Ashcroft ruling:
On the same day that he issued his determination, Ashcroft wrote to Hugh C. Stelson, President of the Oregon Medical Association, reassuring Oregon physicians about pain control:
Nonetheless, assisted suicide activists immediately went to court to block Ashcroft’s decision.
Courts to Decide In addition, Oregon’s Governor John Kitzhaber (who is a physician) also railed against Ashcroft’s ruling, using the theme that it presented heavy-handed federal interference in states’ rights. "Oregonians are satisfied that we can responsibly implement physician aid in dying and this is an unprecedented federal intrusion on Oregon’s ability to regulate the practice of medicine." (162) Gregory Katsas, representing the U.S. Department of Justice, argued that Ashcroft’s ruling was well within his powers and that the case was not about regulating medicine in general but about what is meant by legitimate medical practice as it pertains to federal law. "We say that federal law controls the determination of what is legitimate within the meaning of federal regulations, they say state law trumps federal law," (163) Katsas said. Jones has extended the restraining order for five months. In effect, his ruling results in leap-frogging over the preliminary injunction hearing process. The case will now move directly to a trial based on the merits. But this is only the beginning. Court watchers expect that, whatever the outcome of the trial, there will be appeals. And the controversy over assisted suicide in Oregon will continue for years as it wends it way through the courts. The debate over assisted suicide will continue to be waged at the ballot box, in legislatures, in courts of law and in the court of public opinion. Its importance merits not only meticulous examination, but also the commitment and dedication of those who seek to protect individuals, families and society. Like moving one part of a Rubik’s Cube, removing current protections against assisted suicide would cause problems that could be difficult, if not impossible, to remedy. ………….. Rita L. Marker is an attorney and executive director of the International Task Force on Euthanasia and Assisted Suicide. ………….. (4) Full text of ad from "Analyzing the Ads," Oregonian, October 14, 1994. In both the 1994 campaign ad and the 1992 Hemlock presentation, Ms. Rosen claimed that her daughter’s pain was uncontrollable. However, according to the death certificate for 26-year-old Jody Grape (Patty Rosen’s daughter), Ms. Grape’s attending physician for the five months prior to her death was Dr. William Swartz, an obstetrician-gynecologist. Jody Grape had thyroid cancer that had metastasized. Swartz (who also signed her death certificate) would have been poorly equipped to provide adequate palliative care for her condition. Death certificate on file with author. (11) Transcript of No on 1 Ad, "Same Mistake," on file with author. (12) "Election politics: Kitzhaber joins Maine debate," Register-Guard, October 28, 2000. (13) See "Oregon Experience" below. (18) Text of the petition is available at http://www.iaetf.org/cabb.htm (19) LULAC resolution, on file with author. (21) "Ethnicity and Analgesic Practice," 35 Annals of Emergency Medicine (January 2000) pp. 11-16. |