 |
|
Home
| Back
| About |
Locations |
Resources |
Site Map |
Contact |
Compassion in Dying v. State of WashingtonCompassion in Dying v. State of Washington Argument IAETF's amicus curiae brief in Compassion in Dying v. State of Washington
II. Experience confirms that physician-induced death
cannot be confined to an arbitrarily selected group
of individuals
A. The Dutch practice of physician-induced death
illustrates that regulatory guidelines are not
protective
B. As guidelines are ignored, they become the
cornerstone for subsequent expansion of the
practice of physician-induced death
C. Data confirms common practice of physician-
induced death, including incidence of involuntary
Euthanasia
D. Dutch guidelines now include children and
others who have not made a request for
physician-induced death
E. Psychiatric indications alone are now
sufficient as a basis for receiving physician-induced
death
III. The district court erred in presuming that the
practice of physician-induced death could be limited
to a prescription of medication to be self-
administered
IV. If the clear distinction between life-sustaining
treatment and physician-induced death is removed from
the law in the United States, barriers to involuntary
Euthanasia will crumble
A. The clear distinction between refusal or
withdrawl of medical treatment and physician-assisted
death is firmly grounded in law and practice
B. Guidelines for the practice of Dutch Style
Euthanasia have been formulated in the United States
C. A "Right" to Assisted Suicide would necessarily
expand beyond the terminally ill
D. A "Right" to Assisted Suicide would
necessarily extend to the practice of involuntary
Euthanasia
V. Statures prohibiting physician-induced death
conform with contemporary laws and the values of
Western Culture
VI. Conclusion
Statement of related cases The District Court rightly noted the State’s concern that allowing physician-assisted suicide "will encourage the gradual development of a more permissive attitude" and "will result in more suicides by those temporarily depressed, distraught or mentally disturbed."(1) This gradual escalation of abuse, commonly known as the "slippery slope," while acknowledged as a potential danger by the Court, was nonetheless discounted by the Court’s ruling that "despite the general validity of the State’s concern, the slippery slope argument cannot prevail in this instance."(2) Yet, the slippery slope argument must be carefully examined. To summarily discount it by suggesting that "the legislature can devise regulations which will define the appropriate boundaries of physician assisted suicide...."(3) ignores the perils which increasingly concern many medical ethicists. For example, the recently released report, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context, issued after lengthy deliberations by the New York State Task Force on Life and the Law, (4)stated: The criteria and safeguards that have been proposed for assisted suicide and euthanasia would prove elastic in clinical practice and in law. Policies limiting suicide to the terminally ill, for example, would be inconsistent with the notion that suicide is a compassionate choice for patients who are in pain and suffering. As long as the policies hinge on notions of pain of suffering, they are uncontainable; neither pain nor suffering can be gauged objectively nor are they subject to the kind of judgments needed to fashion coherent public policy. Euthanasia to cover those who are incapable of consenting would also be likely, if not inevitable, extension of any policy permitting the practice for those who can consent.(5) (Emphasis added.)
Nowhere is this more evident than in the Netherlands.
II. EXPERIENCE CONFIRMS THAT PHYSICIAN-INDUCED DEATH CANNOT BE
CONFINED TO AN ARBITRARILY SELECTED GROUP OF INDIVIDUALS.
It is commonly believed that physician-induced death is legal in the Netherlands. This is not true. Dutch law, like that in the United States, prohibits euthanasia and assisted suicide.(6) However, euthanasia is commonly practiced in the Netherlands under conditions developed in a manner strikingly similar to those proposed by the District Court when it suggested that regulations be devised to "define the appropriate boundaries" by which physician-assisted death could be carried out.(7) The current Dutch situation is an outgrowth of a series of court decisions beginning with a 1973 District Court case (Leeuwarden) in which Geetruida Postma, a Dutch physician, was convicted of the crime of euthanasia after she ended the life of her seriously ill mother by lethal injection.(8) The conditions under which the elderly woman died might have never come to the attention of authorities had it not been for Dr. Postma’s insistence that her actions be made known.(9) Dr Postma’s admission that she had provided her mother with physician-induced death seemed calculated to force Dutch public and legal reconsideration of the laws against assisted suicide and euthanasia. The highly visible case became a rallying point for those seeking change in the law. It served as the catalyst for the establishment of Holland’s first voluntary euthanasia organization and generated such support that doctors in the province signed an open letter to the Netherlands Minister of Justice stating that euthanasia was commonly practiced.(10) According to Dr. Postma, her mother (who was partly paralyzed, could hardly speak, had pneumonia and was deaf) had repeatedly said she wanted to die. At her trial, Dr. Postma referred to her mother as a human wreck and said she had acted out of compassion, only wishing she had ended her mother’s life earlier.(11) While finding the doctor guilty of the crime of mercy killing which was punishable by imprisonment for a maximum of 15 years, the Court refused to impose any meaningful punishment. Instead, Dr. Postma received a one-week suspended sentence and a week’s probation.(12) To justify its action, the Dutch court relied heavily on expert testimony by the District’s medical inspector who set forth certain conditions under which the average physician thought euthanasia should be considered acceptable. These conditions established the first "boundaries" for euthanasia practice in the Netherlands. Among the boundaries set forth were the requirements that the patient must be considered incurable (thereby implying that the patient must suffer from a physical illness); that the patient’s suffering must be subjectively unbearable; that the request for termination of life should be in writing; and, that there should be adequate consultation with other physicians before euthanasia was carried out.(13)
Inclusion of these conditions in the court’s decision became the basis for subsequent acceptance of euthanasia in the Netherlands. Other cases followed, each widening the boundaries and further liberalizing the conditions under which the practice of euthanasia, albeit illegal, would not be punished. Among the most telling expansions of the boundaries of "acceptable" physician-assisted death in the Netherlands was that which resulted from the Alkmaar case(14) in which a frail 95-year old woman in deteriorating health was euthanized by lethal injection. The woman had requested death because her physical condition caused her to be dependent on others, a situation which she considered intolerable.(15) The case raised questions of the type of suffering that was to be present in order to justify euthanasia. According to the court, the woman’s physical condition gave rise to psychological suffering which was considered to be a reasonable response to "her miserable physical condition."(16) In its 1986 decision the Hague Court of Appeals recognized the "psychic suffering" and "potential disfigurement of personality," which the woman had experienced, as acceptable grounds for her euthanasia death.(17) The Court also gave increased recognition to the defense of force majeure or "situation of necessity" which could be invoked by physicians claiming that, acting under either a "psychological compulsion" or an "emergency," the law was broken in order to promote a higher good.(18) Based in large part on opinions of the Royal Dutch Society for the Promotion of Medicine (KNMG), which claimed that physicians have a positive duty to "find the answer" to euthanasia requests from patients, the court dismissed charges against the physician, ruling that many Dutch physicians "consider active life termination as medically-ethically possible."(19) As a result of this 1986 decision, the boundaries which were to contain the practice of euthanasia expanded once again, leading to further public and professional desensitization. It has even been reported that euthanasia has become so ingrained in Dutch medicine that a physician was reprimanded by the Dutch Medical Disciplinary Board for not providing euthanasia to a patient.(20) Categories of eligibility for physician-induced death now encompassed situations which would have been unimaginable only a few years earlier.
By 1987, the Royal Netherlands Organization for the Promotion of Pharmacy (KNMP), had issued a "Technical Report Regarding Euthanasia" in which it described "criteria for an ideal euthanasia"(21) and specific guidelines for effectively carrying out physician-induced death.(22) This report was put into booklet form and supplied to every physician in the country by
KNMP.(23) Official confirmation of the actual incidence of euthanasia and assisted suicide in the Netherlands became available on September 10, 1991, when the Dutch government released results of the first official government study on the practice of Dutch euthanasia (commonly known as the Remmelink Report).(24) The 294 page report was the work of the Committee to Investigate the Medical Practice Concerning Euthanasia, appointed on January 17, 1990, by the Minister of Justice and the State Secretary for Welfare, Public Health, and Culture. The six-member committee was chaired by Professor J. Remmelink, M.J., the Attorney General of the High Council of the Netherlands and professor emeritus of criminal law at the Free University. To assure accurate and complete information, physicians who provided data were granted total anonymity and immunity by the Dutch government. The report documented the prevalence of involuntary euthanasia in the Netherlands, as well as the fact that, to a large degree, doctors have taken over the decision making about euthanasia. The data demonstrates that the specific court-approved euthanasia guidelines, developed to protect patient autonomy, are routinely ignored by Dutch doctors without consequence. According to the Remmelink Report, physician-induced death accounts for more than 9.1 percent of the 130,000 annual deaths in the Netherlands. In 1990:
The above statistics indicate that Dutch physicians deliberately and intentionally ended the lives of 11,840 people by lethal overdoses or injections - a figure that accounts for 9.1% of the annual death rate of 130,000 Dutch people per year. The figures also indicate that the majority of all euthanasia deaths in the Netherlands are involuntary. It is important to note that the statistics published in the Remmelink Report do not include cases in which life-sustaining treatment was withdrawn without the patient’s consent and with the intention of causing the patient’s death. Nor do the figures include the cases of involuntary euthanasia performed on disabled newborns, children with life-threatening conditions or psychiatric patients.(34) Terminal condition is not the most common reason cited by doctors for euthanizing patients without consent. Rather, the most frequently cited reasons given for involuntary euthanasia were, "low quality of life," "no prospect for improvement," and "the family couldn’t take it anymore."(35)
These statistics are most likely conservative. Dutch euthanasia guidelines require doctors to report all euthanasia and assisted-suicide deaths to local prosecutors. But in the overwhelming number of Dutch euthanasia cases, in order to avoid duplicate paper work and the scrutiny of authorities, doctors deliberately falsify patients’ death certificates, stating that the deaths are from natural causes.(36) As a result, one government health inspector was reported to have stated, "In the end, the (euthanasia) system depends on the integrity of the physician, on what and how much he reports. If the family doctor does not report a case of voluntary euthanasia or an assisted-suicide, there is nothing to control."(37) It is Noteworthy that the Remmelink Report did not include figures on the incidence of pediatric euthanasia, a practice which has been openly acknowledged by Dutch physicians. A 1990 report of the KNMG (Royal Dutch Medical Association), Life-Terminating Actions with Incompetent Patients, set forth "requirements for careful medical practice" when ending the lives of handicapped newborns for whom the prognosis of an "unlivable life" has been rendered.(38) In 1992, the Dutch Pediatric Association began drafting guidelines for the practice of physician-induced death for infants. The proposal recommended that the attending physician decide whether to end the child’s life.(39) By 1993, three out of eight neonatal intensive care units in the Netherlands had specific policies, endorsed by the Dutch Pediatric Society, which permitted infant euthanasia by fatal injection.(40) In an interview, Dr. Heleen Depuis, an ethicist and member of the Royal Dutch Medical Society (and former president of the Dutch Society for Voluntary Euthanasia), who assisted in formulating the guidelines for pediatric euthanasia, described the subjective criteria and varied situations under which newborns may have their lives terminated in her country. For example, a child who may be "blind, deaf and severely mentally retarded," would be evaluated to determine "the meaningfulness of the infant’s continued existence."(41) Infants are not the only children who are eligible for euthanasia. Pediatric oncologists have provided a hulp bij zefoding (self-help for ending life) "program" for adolescents since the 1980s, in which poisonous doses are prescribed for minors with terminal illness.(42) Moreover, children who want physician-assisted death may be able to receive it without consent of their parents. A 1986 report issued by the Central Committee of the Royal Dutch Medical Association explained its position related to euthanasia of older minors: The central committee is not in favour of including an exact limit in the law with respect to the "rights" of parents in the case of a minor making a request for euthanasia. Nor is the Central committee in favour of giving a right of veto to one or both parents in such cases. The Central Committee does hold the view, however, that the physician should always consult the parents about their child’s request for euthanasia. But with a view to the child’s own good, this does not imply that parents have the power of decision. It goes without saying that where a young child is concerned, the state of affairs will be different from those where an older child is concerned, the state of affairs will be different from those where an older child is concerned. We would like to advocate not to include a separate age limit in the law, as it may be impossible as well as unjust in our opinion to lay down an exact age limit in this matter. Sometimes, a 15-year-old child can have a mature judgment. At all times, it will be a matter of acting carefully in medical respect. (43) (Emphasis added.) So-called protective guidelines, whether court ordered or legislatively enacted, expand over time. For example, two years after the Remmelink Report was issued, the Dutch Parliament adopted a proposal that stopped short of legalizing or decriminalizing physician-induced death, but nevertheless expanded the "guidelines" to officially approve administration of euthanasia in cases where there had been no specific request for death.(44) To facilitate this expanded medical privilege and the expanding eligibility for euthanasia, new official forms for reporting euthanasia deaths were approved by the Dutch government in December 1993. The standard questionnaire was amended to include a section related to "Active Termination of Life Without Express Request," as well as questions to be answered "if the patient suffered from a psychiatric disorder."(45)
Particularly at risk of receiving unrequested euthanasia are disabled persons. For example, at an international conference, Euthanasia and the Future of Medicine, Dutch physician Jan van der Sluis explained that Dutch citizens are now questioning whether persons with mental disabilities have a right to live.(46) Many disabled people view the ongoing Dutch expansion of euthanasia as a potential threat to their lives. The Dutch Patients’ Association, a disability rights group, has, since at least 1990, been distributing a wallet-card to protect members from being involuntarily
euthanized. The card specifically states that it is "intended to prevent involuntary euthanasia in case of admission of the signer to the hospital" and that "no treatment be administered with the intention to terminate life."(47) The card is now seen by many disabled people as a necessity, considering the current Dutch climate favoring the ending of lives considered to be of low "quality." Throughout the evolution of Dutch euthanasia practice, there had been an implication that termination of life would only be undertaken in cases which had at least some physical component. However, by 1993, this facade was finally discarded when the Leeuwarden Court of Appeals affirmed a lower court decision that psychiatrist Boudewijn Chabot should not face criminal sanction for providing an intentional overdose to a woman, knowing she would use the drugs to commit suicide because she was depressed over the death of her two children and the failure of her marriage.(48) The Dutch Supreme Court has recently upheld the opinion.(49) The ruling has been praised by euthanasia advocates who have opined that it will establish the principle that mercy killings are permissible in cases of mental suffering.(50)
As the Dutch legal and social experiences clearly demonstrate, the practice of permitting physicians to induce the death of patients under protective guidelines heads down a path that leads inexorably toward ending the lives of those who are weak, vulnerable, depressed and, in the eyes of some, disposable. It is indeed appalling but true: Within a mere twenty years from the first court decision establishing guidelines for allowing euthanasia to go unpunished, Dutch society has devolved from one which absolutely prohibited euthanasia and assisted suicide to one that officially tolerates or condones, infanticide, involuntary euthanasia and physician-induced death for those suffering from mental illness or depression. All of this, after Dutch courts began to rule, as the District Court below did in the case at bench, that "knowing and voluntary choices" to receive assistance in dying fell "outside the realm of the State’s concern."(51)
III. THE DISTRICT COURT ERRED IN PRESUMING THAT THE PRACTICE OF
PHYSICIAN-INDUCED DEATH COULD BE LIMITED TO A PRESCRIPTION
OF MEDICATION TO BE SELF-ADMINISTERED.
In obliterating the distinction between refusing life-sustaining medical treatment and physician-assisted suicide, the District Court has shifted the traditional focus from the long established right to be free of unwanted medical interventions, to an "option of hastening death." This step down the slippery slope could not be so limited. In the entirety of medical practice, there is no other intervention, treatment, or prescription that must be self administered. A medical practitioner who can legally prescribe or order medication or a treatment, can also administer it. Thus, such a guideline would introduce an anomaly into the practice of medicine, soon falling of its own weight, leading to the legalization of physician-administered mercy killing. There is an additional flaw in the District Court’s reasoning that assisted suicide could be limited to self-administration. If the Constitution requires that lethal medication be made available to all mentally competent, terminally ill adults who choose to hasten their own deaths, such a right cannot logically be limited to those with the capacity to self-administer. Any denial of the same right to "similarly situated groups of mentally competent, terminally ill adults"(54) who also happen to be physically incapable of self-administration, would clearly be a denial of equal protection of the law. Thus, it is eminently foreseeable that the self-administration standard would quickly crumble, leading to doctor-administered euthanasia for the physically disabled.
Allowing doctors to administer death to the physically disabled would, in turn, lead others to seek the same right in a variety of circumstances. For example, a physically able, mentally competent, terminally ill patient with a psychological aversion to swallowing pills, could demand the right to have a doctor administer the means of death on the basis that a psychological impediment to self-administration is no different in quality or function than a physical impediment. It can thus be seen that cracking the dike against mercy killing by allowing self-administered, physician-assisted suicide, would soon case the entire dike to collapse, unleashing a flood of ever-expanding circumstances under which afflicted people would perish.
IV. IF THE CLEAR DISTINCTION BETWEEN LIFE-SUSTAINING TREATMENT
AND PHYSICIAN-INDUCED DEATH IS REMOVED FROM THE LAW IN THE
UNITED STATES, BARRIERS TO INVOLUNTARY EUTHANASIA WILL
CRUMBLE.
By holding that it "does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide", (55) the District Court chose to disregard long established law and important issues of public policy. The 1976 Quinlan decision,(56) is commonly perceived as the first "right to die" case. But Quinlan was not litigated over the right to die. Rather, the case hinged on a controversy about the right to refuse and be free from unwanted life-sustaining medical treatment. Indeed, the New Jersey Supreme Court in Quinlan specifically differentiated between allowing a patient to die from natural causes and directly making a patient die by assisted suicide or euthanasia.(57) Similarly, in the Cruzan case,(58) the United States Supreme Court was explicit in affirming that a state has an undeniable interest "in protection and preservation of human life."(59) Further, the Court seemed to endorse the constitutionality of statues, such as Washington’s, which prohibit assisted suicide, by noting that "the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide."(60) In recent years, every state has permitted competent adults to state in advance whether they desire life-sustaining medical treatment should they suffer a terminal illness or become mentally incapacitated. This is accomplished by means of documents known generically as "advance directives" (Living Will, Durable Power of Attorney for Health Care, etc.). State statutes which establish the right to refuse life-sustaining medical treatment based on the proper execution of an advance directive, have all recognized the distinction between refusing treatment and having a doctor induce death. The statutes specifically state that advance directives are not to be construed as permitting assisted suicide or euthanasia.(61) The American Medical Association (AMA) also emphasizes the ethical difference between a doctor’s agreeing to withhold or withdraw life-sustaining medical treatment and taking affirmative action to induce a patient to die through assisted suicide or euthanasia. AMA policy clearly approves the former(62) while emphatically rejecting the latter.(63) The official position of the AMA rejects assisted suicide and euthanasia, even under guidelines, on the basis that the practice 'would be difficult to control (the slippery slope), and would pose serious societal risks."(64) Further, Lonnie R.Bristow, M.D., the current President of the American Medical Association, has observed: Considering that euthanasia has been openly discussed for years in Holland and has the support of its people and of at least a portion of organized medicine in that relatively small and homogeneous country, the United States and its physicians have a forewarning that meaningful control by a society of such practices is illusionary once the patient-physician relationship has been so changed that death becomes an acceptable prescription for pain and suffering.(65) The District Court found analogous a patient’s right to refuse life-sustaining treatment which "results in death,"(66) with a patient’s desire to commit physician-assisted suicide to "hasten death.'(67) This is a false connection. It is freedom from treatment, not freedom from life that has consistently served as the legal and ethical underpinning for the right to refuse medical treatment. This distinction is as rational as it is vital. In circumstances where withholding medical treatment does, in fact, lead to death, the patient’s demise is caused by natural processes, while in the case of assisted suicide, the demise is intentionally induced by a death-causing agent. Moreover, when life-sustaining medical intervention is withheld or withdrawn from a patient, the result is uncertain. Death may or may not come. [It is not uncommon for those who have life-sustaining medical intervention terminated, to remain alive, perhaps for years.(68)] However, in an assisted suicide, the patient’s death is inevitable. It will occur immediately following the injection or ingestion of the poisonous agent. Moreover, the Court is incorrect when it asserts that a person diagnosed with a terminal illness faces an "inevitable death."(69) In fact, many persons so diagnosed live many years and may not die of the diagnosed condition at all.(70) Indeed, the California Supreme Court, in a case involving a physician’s duty under the doctrine of informed consent to disclose to a grievously ill patient information about the likelihood of survival, has stated that, 'statistical life expectancy data have little predictive value when applied to a particular patient with individualized symptoms, medical history, character traits and other variables."(71) Only by discounting these obvious and important distinctions between natural death on the one hand and induced death on the other, and by making mistaken general assumptions about the inevitable outcome of terminal illness, could the Court have ruled that "a competent terminally ill adult has a constitutionally guaranteed right under the Fourteenth Amendment to commit physician-assisted suicide."(72) B. Guidelines for the Practice of Dutch Style Euthanasia Have Been Formulated in the United States. Dr. Timothy Quill, a New York physician who acknowledged that he knowingly provided a prescription to be used in the suicide of a terminally ill patient and subsequently falsified the patient’s death certificate,(73) has proposed guidelines he calls "clinical criteria," for the practice of assisted suicide. Tellingly, these proposed criteria are virtually identical to the Dutch guidelines that have unleashed the promiscuous practice of euthanasia in the Netherlands. Under Dr. Quill’s proposal, the patient must have an incurable condition (described as including "progressive illnesses," such as the non-terminal illness, multiple sclerosis), the suffering must be unrelenting, a second opinion should be obtained, and the patient must make clear and unmistakable requests for death.(74) Even Dr. Quill recognizes that his proposal carries with it a potential for coercion or even abuse of patients. He has admitted that, even with the most conservatively written policy, "There is no way to guarantee that this cannot occur"."(75) Indeed, any protection afforded to the potential victims of physician-induced death is dependent not on arbitrarily formulated guidelines but on the euthanasia practitioners themselves. This truth was acknowledged by Dr. Herbert Cohen (a Dutch physician who regularly administers euthanasia to his patients), when he appeared before the Michigan Commission on Death and Dying, and testified, "You have to rely on the integrity and courage of doctors, the chivalry of the doctors to come forward, because you cannot detect euthanasia."(76) Plaintiff, Compassion in Dying, is an organization dedicated to assisting the terminally ill commit suicide. It too has published guidelines which clearly demonstrate the elasticity of the so-called protection that would be afforded by legalization and regulation of the practice of assisted suicide. For example, to determine eligibility for assisted suicide, Compassion in Dying’s Guidelines state, "The patient’s condition must be considered terminal in the judgment of the patient’s primary-care physician; i.e., the patient suffers from an incurable condition which, according to reasonable medical judgment, will result in death within a reasonable period of time, regardless of continued treatment."(77) (Emphasis added.) The Court called such guidelines 'strict."(78) Yet, "reasonable medical judgment" and "reasonable period of time," just to name two examples, are about as loose as loose can be, being totally subjective concepts that can differ depending on the beholder. This should not be surprising considering Compassion in Dying’s genesis in the Hemlock Society, one of the nation’s most active pro-euthanasia advocacy groups. (Indeed, Ralph Mero, Director of Compassion in Dying, was the founder and president of the Washington State chapter of the Hemlock Society, serving in that post from 1988-1993.)(79) C. A "Right" to Assisted Suicide Would Necessarily Expand Beyond the Terminally Ill. According to the District Court, "There is no more profoundly personal decision, nor one which is loser to the heart of personal liberty, than the choice which a terminally ill person makes to end his or her suffering and hasten an inevitable death."(80) Yet, the Court failed to provide any rationale to limit this "profoundly personal decision" to those who are classified by "reasonable medical judgment" as terminally ill. Given the fact that the District Court unreservedly declares that there is no difference between the withholding and withdrawal of life-sustaining treatment and the providing of assisted suicide, it is illuminating to note that a non-terminally ill competent person can refuse such treatment. Indeed, even minors have been accorded the right in some cases to forego life-sustaining treatment.(81) If that is so, how then, can the "treatment" of assisted suicide by a physician be limited to those who are reasonably judged to be terminally ill? Similarly, how can such "treatment" be restricted to those who are adults? [Indeed, the District Court specifically cites Bellotti v. Baird(82) which held that the state may not "impose undo burdens upon a minor capable of giving an informed consent."(83) ] While giving lip service to the State’s "strong, legitimate interest in deterring suicide by young people and others with a significant natural life open ahead of them,"(84) the District Court implies that the State should be less concerned with assisted suicide of the old and others whose natural life span may be considered insignificant. This position, which essentially devalues the importance of the lives of those who are old or ill, is similar to that expressed by many euthanasia proponents. For example, during the campaign for the proposed Death With Dignity Act,(85) an Initiative which appeared on the November 1991, Washington State ballot, which would have legalized assisted suicide and euthanasia, Derek Humphry, the co-founder and then head of the National Hemlock Society, wrote, "'when it (The Death With Dignity Act) becomes legal everywhere, there would be a way of handling the dilemma of those with degenerative diseases, or what I call ‘terminal old age’'."(86) Indeed, Mr. Humphry and other advocates look to the Dutch experience as the model for euthanasia in the United States, a practice specifically not limited to the terminally ill or even the physically ill.(87) D. A "Right" to Assisted Suicide Would Necessarily Extend to the Practice of Involuntary Euthanasia. Just as the comparison of assisted suicide to foregoing medical treatment will ultimately lead to death on demand for non-terminally ill individuals, it will also lead to physician-induced death of those who cannot request it. Case law regarding the withholding or withdrawal of medical treatment originally addressed the right of competent adults to refuse medical interventions. Once secured, the right to withdraw medical treatment was extended to the incompetent who had never expressed a desire to have treatment withdrawn or withheld. Decisions to end life-sustaining medical interventions in such cases are made by a third party based on a finding of "best interest" of the patient or a "substituted judgment" standard.(88) The AMA has recently expanded its previously stated support for third parties making such decisions for incompetent patients. A newly revised opinion of the AMA Council on Ethical and Judicial Affairs states: If the patient receiving life-sustaining medical treatment is incompetent, a surrogate decision maker should be identified". In the case when there is no person closely associated with the patient, but there are persons who care about the patient and have sufficient relevant knowledge of the patient, such persons may be appropriate surrogates. Even if the patient is not terminally ill or permanently unconscious, it is not unethical to discontinue all means of life-sustaining medical treatment in accordance with a proper substituted judgment or best interests analysis.(89)
If assisted suicide becomes just another "medical treatment" option, no different under the law than withdrawing life-sustaining medical treatment, then there is no logical manner, in light of the substituted judgment cases, that assisted suicide, or more likely, euthanasia, can ever be kept from being inflicted on incompetent persons who cannot specifically request it. Moreover, it would also be discriminatory to deny hastened death to "end suffering" of a minor,(90) since there can be no qualitative difference between the suffering of a child and an adult. Not coincidentally, a procedure for incorporating surrogate requests for physician-induced death has been proposed as part of a "Model Aid-In-Dying Act."(91) Thus, can be seen the future, should the District Court’s reasoning prevail.
V. STATUTES PROHIBITING PHYSICIAN-INDUCED DEATH CONFORM
WITH CONTEMPORARY LAWS AND THE VALUES OF WESTERN
CULTURE.
Laws and policies in other Western democracies (with the one exception of the Netherlands) demonstrate the universal recognition of the dangers of permitting physician-induced death.
Canada, this country’s closest neighbor when considering its history, cultural and legal traditions, location and language, bans assisted suicide. Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is no reflective of fundamental values at play in our society.(93) (Emphasis added.) The World Medical Association, with physician members from forty-one countries, has also adopted a position opposing physician-induced death which states: Physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession. Where the assistance of the physician is intentionally and deliberately directed at enabling an individual to end his her own life, the physician acts unethically. However, the right to decline medical treatment is a basic right of the patient and the physician does not act unethically even if respecting such a wish results in the death of the patient.(94) (Emphasis added.) The British Medical Association (BMA) has consistently maintained firm opposition to assisted suicide and euthanasia. In the early 1980s, however, the BMA responded to calls for a policy change by undertaking a study of Dutch euthanasia. The study resulted in a 1988 report which concluded that: The law should not be changed and the deliberate taking of a human life should remain a crime. This rejection of a change in the law to permit doctors to intervene to end a person’s life is not just a subordination of individual well-being to social policy. It is, instead, an affirmation of the supreme value of the individual, no matter how worthless and hopeless that individual may feel.(95) (Emphasis added.) [At its 1993 meeting, the BMA once again rejected attempts to change its euthanasia policy.(96)] An extensive study, commissioned by the House of Lords and released in early 1994, also upheld the traditional prohibition on physician-induced death and distinguished it from refusal of medical treatment: The right to refuse medical treatment is far removed from the right to receive assistance in dying..... We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions". We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia..... We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death.(97) As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstance in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.(98) (Emphasis added.)
Australia, as well, prohibits assisted suicide and euthanasia.(99) The Australian Medical Association, like its counterparts in the United States, Canada, Great Britain and other nations, opposes physician-induced death while recognizing and distinguishing euthanasia and assisted suicide from refusing life-sustaining medical treatment.(100)
VI. CONCLUSION.
This brief has amply and empirically demonstrated, that the slippery slope, so easily dismissed by the District Court, is very real. It is ongoing and pervasive in the Netherlands, a nation that now winks at physician-administered infanticide, physician-assisted suicide for the depressed, and physician-administered involuntary euthanasia. It should also be kept firmly in mind that all of this horror found its genesis in a single judge’s opinion, a judge expressing similar sentiments to that expressed by the District Court. Nor is there any reason to believe that the same ever-expanding application of doctor induced-death would not occur here.
This brief has also amply demonstrated that there is a significant and rational distinction between a patient refusing life-supporting medical treatment, which may or may not lead to death, and a physician actively assisting in ending a patient’s life through the injection or ingestion of poison, which can only end in death. It has also shown that for Equal Protection purposes, terminally ill patients are not similarly situated to those whose life depends on life supporting medical intervention.
Finally, what is truly remarkable in this matter is that the District Court saw fit to radically extend the breadth and reach of the Equal Protection Clause based on a record that is most notable for its paucity of content. Surely, respect for law and sound jurisprudence requires more. The District Court’s judgment should be reversed.
|
| Copyright © 1996 - 2009, International Task Force. All Rights Reserved. |