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The Ongoing Debate Over Physician-Assisted Suicide

Physician-assisted suicide (“PAS”) has become an issue of increasing controversy in recent decades.  It is distinguished from euthanasia in that in PAS, the physician does not actually perform the life-ending act; she merely provides the means by which the patient may end his own life.

In the United States, only three states permit the practice: Washington, Oregon, and Montana.  In these states, a terminally ill patient may request and receive from his physician a prescription for medicine that, if taken, ends life.  Each state imposes a slightly different set of requirements before PAS is permissible, but all three require, among other things, that the patient be terminally ill, mentally competent, and have witnesses to the request (as defined in each state’s respective statute).

Various courts have heard challenges on both sides of the issue, but the general consensus among their decisions seems to be that state governments have the prerogative to decide whether to permit or forbid the practice of PAS.

In this column, I will briefly review the history of PAS and note the growing attention the practice is receiving.  I will then discuss several related practices—including the withdrawal of life-sustaining treatment, and the practice of continuous sedation—and analyze why our society distinguishes these practices from PAS, and whether we should make such distinctions.  Finally, I propose a framework for discussing the issue of PAS that focuses on the essential question whether PAS merits criminal liability for the physician in the 47 states that impose such liability.

A History of Physician-Assisted Suicide

In his lead essay for Cato Unbound (a discussion forum provided by the Cato Institute), Howard Ball ascribes the advent of controversy around PAS largely to the advances in medical science.  A century ago, Ball writes, “infectious diseases like tuberculosis and pneumonia were the primary causes of death.”  Now, however, we are living roughly 70 percent longer and dying, instead, of degenerative diseases like cancer and heart disease. In morbid terms, our deaths are taking roughly 70 percent longer than they did in 1900.

Perhaps the most well-known (and infamous) figure in the developing discussion around PAS was Dr. Jack Kevorkian.  Although he reportedly did not administer the life-ending medication to any of his patients, he did so in one instance for a patient whose illness (amyotrophic lateral sclerosis, or Lou Gehrig’s disease) prevented him from administering the medication himself.  It was this act of voluntary euthanasia that led to Kevorkian’s conviction and imprisonment.  Yet these consequences also brought the issue of PAS to the fore of legal and medical debates.

In 1990, every state had a law specifically prohibiting PAS.  In New York State and Washington State, supporters of PAS challenged those state’s laws on the grounds that the laws were unconstitutional.

In Washington, the challengers argued that the right of a patient to die with dignity and the passive assistance of a medical practitioner was a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.  The U.S. Court of Appeals for the Ninth Circuit accepted the challengers’ arguments and invalidated the laws.  However, the U.S. Supreme Court overturned the Ninth Circuit’s decision, finding that PAS was not a fundamental right under the Fourteenth Amendment, and for that reason, Washington State had the prerogative to decide its own state policy on the issue.

In New York, the challengers focused on the state’s distinction between withdrawal of life support (which was legal) and the physician’s affirmative assistance in dying (which was prohibited).  They argued that the law violated the Equal Protection Clause of the Fourteenth Amendment by making this distinction.  The U.S. Court of Appeals for the Second Circuit ruled in favor of the challengers and struck down the law.  However, the Supreme Court overruled the Second Circuit, finding that the proximate cause of death in the two situations was not the same, and thus that equal protection did not apply.

In Montana, a physician for a terminally ill patient brought a lawsuit challenging the application of the criminal homicide statute in a PAS situation.  State law permitted the withdrawal of life-sustaining treatment upon request by the competent patient, but it did not provide an exception to criminal liability for a physician who provides affirmative aid.  The state supreme court held that PAS is consistent with the state’s public policy toward end-of-life decisions; thus, by court decision, Montana became the third state in the United States to permit PAS.

Distinguishing Physician-Assisted Suicide From Other End-of-Life Decisions

Until the mid-Twentieth Century, suicide was a felony in most states.  Although suicide still carries a negative stigma, the government no longer punishes individuals who attempted to take their own lives (with criminal sanctions if they failed, or confiscation of property if they succeeded).

Arguably, one form of suicide is the choice to withdraw life-sustaining treatment.  A competent patient may make the voluntary decision, either contemporaneously or in advance, to stop treatment despite the knowledge that (and, indeed, with the intention that) doing so will lead to his death.  No state imposes criminal liability on a physician who abides by a patient’s valid request to withdraw life-sustaining treatment to end life.

Another option a terminally ill patient has is to request treatment only for the pain, rather than the source of the pain.  Known as palliative care, this option has become an increasingly popular end-of-life choice.  Relatedly, hospice care focuses on alleviating pain and suffering (medically, emotionally, and spiritually) near the end of life.  The first hospice in the United States was started in the 1970s, and now about 40 percent of terminally ill patients die in hospice care across the country.

As the Supreme Court articulated in its decision on the New York law, the difference between PAS and these other alternatives is the proximal cause of death.  In PAS, the medicine that is taken as a result of the physician’s affirmative action is the proximal cause of death.  In these other circumstances—even when the physician’s affirmative removal of life-sustaining treatment occurs—the underlying illness is the proximal cause of death.  Although I agree with the Supreme Court that this distinction precludes a successful equal protection challenge, I contend that the focus of the discussion should be on the liability, not the death.

Does Physician-Assisted Suicide Merit Criminal Liability?

Those advocating for the legalization of PAS often present arguments for patient autonomy and for the mitigation of pain and suffering.  I propose an additional point of discussion:  Does a physician who performs PAS in a state where it is not legal deserve criminal liability?

In many states prohibiting PAS, a physician who engages in the practice is subject to criminal homicide statutes.  These are the same general statutes that apply to someone who shoots, stabs, or otherwise assaults a person with the intent to kill.  Do we, as a society, really believe that a doctor who wants to relieve his patient’s suffering should be subjected to the same laws as a murderer who simply wants, for his own motives, to kill another person?

As the laws of Washington and Oregon demonstrate, laws permitting PAS are detailed and specific in order to prevent abuse of those laws.  And even if an individual circumvents these structural safeguards, the civil-law system (i.e., medical malpractice law) provides amply adequate remedies.  Although some fear that allowing physicians to assist with suicides will lead to an increase in the overall number of suicides, such fears have not been realized, in practice, in those states that allow PAS.

In sum, physician-assisted suicide is a very complex issue, full of profound ethical questions about life and autonomy, and not one that any voter should take lightly.  I will explore some of these ethical questions in the future, but they are beyond the scope of this column.

David S. KempDavid S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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