The Way of Death in the Netherlands, Oregon, and, Perhaps, California

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Posted in: Health Law

Four states now approve of doctor-assisted suicide. A bill recently introduced in the California Senate SB 128, the so-called “The End of Life Option Act,” would make California the fifth state. As medical science has progressed, we can extend life. Some people think that, at some point, the doctors are not prolonging life but only prolonging death. Hence, groups like the Hemlock Society say that they seek a “right to die” or “death with compassion.”

In 1997, the U.S. Supreme Court held, in Washington v. Glucksberg and in Vacco v. Quill, that there is no constitutional right to suicide. However, both decisions repeatedly reaffirmed that under the law in every state, we already have a right to painkillers, even though the painkillers may in some cases also have an effect of hastening death. Similarly, under existing law, people have the right to refuse treatment that they regard as excessive or overly burdensome. In Cruzan v. Director, Missouri Department of Health, Chief Justice Rehnquist said that it “cannot be disputed that the Due Process Clause protects the interest in life as well as an interest in refusing life-sustaining medical treatment.” That, by the way, is also the position of religious groups like the Catholic Church. What we already have a right to do—refuse treatment, accept painkillers, write living wills, enter hospice—all that is quite different from what the proposed California bill would authorize.

We have learned a lot about doctor-assisted suicide over the years. How it begins and what it becomes. For example, in the spring of 2001, the Netherlands had completely decriminalized euthanasia and doctor-assisted suicide. However, even before that, medical practice accepted euthanasia and Dutch prosecutors found it almost impossible to win cases because of a series of court rulings. When the prosecutors did win, courts suspended the sentences of the doctors. Public opinion polls showed that 80 percent of Dutch citizens favored “voluntary euthanasia.”

Dutch governmental reports show that in 1990, of the 130,000 Dutch who died, about 11,800 died because they were “killed or helped to die by their doctors.” In slightly over half of these cases, the doctors did not have their patients’ consent. Another Dutch survey is particularly interesting. In a survey of the elderly that did not mention euthanasia (no leading questions here), more than 10 percent volunteered that they feared being put to sleep by their doctors if they went to a Dutch hospital. When Dutch doctors consider assisting suicide, the guidelines tell them to look at the “loneliness,” “financial resources,” and a “loss of social skills” of their patients.

In the Netherlands, euthanasia extends to terminally ill children, disabled infants, and mental patients. In 1997, The Lancet, a British medical journal, reported that eight percent of infants who die in the Netherlands were “put to sleep” by their doctors. In 1993, the Dutch Pediatric Society issued guidelines for killing infants. The Royal Dutch Society for Pharmacology helpfully sends a book to all new doctors with formulas for poisons to induce euthanasia.

It was not always so. Hitler issued his first direct order for euthanasia on October 1, 1939 (backdated to September 1). Those orders spread to all the Nazi-occupied countries. Ten years later, in 1949, a New England Journal of Medicine article reported that during World War II, Dutch doctors—unlike the doctors of every other Nazi-occupied country—did not participate in even one act of euthanasia. Nuremburg condemned euthanasia as a war crime. The view of Dutch doctors changed. As Malcolm Muggeridge, the British journalist, observed, “it took no more than three decades to transfer a war crime into an act of compassion.”

Belgium officially approved doctor-assisted suicide in 2002. Last year, it removed all age restrictions on euthanasia. From 2002 to 2014, the number of euthanasia cases increased nearly 6,000 percent. Last year, over 1,400 people were euthanatized. Some doctors talk of assisted suicide together with organ transplants. The first reported case of organ harvesting of an assisted suicide patient in Belglum was in 2008. Since then, Belgium has harvested organs from euthanized patients who are mentally ill. The number of assisted suicides that doctors and nurses report do not reflect the actual number of assisted suicides. The British Medical Journal reported in 2010 that in Flanders alone, the actual reported assisted suicides are only about 50 percent of the actual number of assisted suicides.

The Canadian Medical Association studied assisted suicides in Belgium and found that about half of the euthanasia deaths were not voluntary. In some cases, nurses, not doctors, made the final decision. Belgium law does not approve of “non-voluntary assisted suicide” (an oxymoron) but the government rarely enforces that law. Like other European countries, it has socialized medicine, and assisted suicide helps reduce costs.

The Swiss Federal Supreme Court declared, in 2006, that the mentally ill have a “right” to assisted suicide. One American commentator rejoiced with the argument of the court that “we are entering an era during which psychiatric patients do not need to be protected, but empowered.” If you think that psychiatric patients do not need protection, then assisted suicide is the way to go. One should not conclude that Switzerland is heartless just because its courts conclude that it does not need to protect its mentally ill citizens. Switzerland, a very civilized country, makes it illegal to catch and release fish because that is inhumane. The Swiss also ban using live bait for fishing because that is also inhumane.

The Netherlands, Belgium, Switzerland—these countries find that assisted suicide is a slippery slope. It won’t happen here, you say. Well, Oregon legalized assisted suicide in 1994. In 2008, it sponsored a health plan that denied recommended cancer treatments that were costly; instead, it offered to pay for less-expensive suicide drugs. Oregon told patient Barbara Wagner that it would not pay for the new chemotherapy drug Tarceva, which her doctor recommended could add years to her life. The Oregon state official “admitted they must consider the state’s limited dollars when dealing with a case such as Wagner’s.” ABC News reported that a 1998 study of the Georgetown University Center for Clinical Bioethics “found a strong link between cost-cutting pressures on physicians and their willingness to prescribe lethal drugs to patients—were it legal to do so.”

A 1998 article in the New England Journal of Medicine estimated that “legalizing physician-assisted suicide and euthanasia would save Medicare approximately $627 million in 1995 dollars.” As Dr. Paul McHugh, the former psychiatrist in chief at Johns Hopkins Hospital, concluded after studying our experiences with assisted suicide, “When a ‘right to die’ becomes settled law, soon the right translates into a duty.”

Proponents of the proposed California law say it can’t happen here. California is not Oregon. On the other hand, listen to what Justice John Paul Stevens said in his dissent in Cruzan. The Court refused to interfere with Missouri law regarding living wills. Stevens complained that “it is an effort to define life rather than protect it, that is the heart of Missouri’s policy.” What is wrong is that “Missouri insists” on “equating [Nancy Cruzan’s] life with the biological persistence of her bodily functions.”

That solves the problem nicely, doesn’t it? We simply redefine “life” to mean something more than just “life.” It must be a full, worthwhile life. We can adopt the Dutch guidelines, and look at the “loneliness,” “financial resources,” and a “loss of social skills” of patients. If they fail the test, they are not really alive, although they continue to burden society by not dying.

Marilyn Golden, of the Disability Rights Education and Defense Fund, rejects that line of reasoning and opposes assisted suicide. Speaking on behalf of the disabled, she warns:

This fear of disability typically underlies assisted suicide. Said one assisted suicide advocate, “Pain is not the main reason we want to die. It’s the indignity. It’s the inability to get out of bed or get onto the toilet . . . [People] . . . say, ‘I can’t stand my mother—my husband—wiping my behind.’ It’s about dignity.” But as many thousands of people with disabilities who rely on personal assistance have learned, needing help is not undignified, and death is not better than reliance on assistance. Have we gotten to the point that we will abet suicides because people need help using the toilet?

  • Joe Paulson

    Cruzan wasn’t “disabled” and reading a good book about her by the lawyer in that case, comparing the two came out as something her dad really was angry about. She was basically brain dead even if her simple life signs continued. The parents did all their could for some time before deciding it was time to let her die with dignity. And, such a waiting period etc. is a valid requirement.

    And, in the past, she — like some have in more clearly defined ways in living wills — said she didn’t want to be forced to have medical treatment in that case. It is something scary out of a sci fi novel if we ignore such wishes “for their own good.” This includes disabled people who choose a certain treatment. Protecting them by taking their rights away is a tad bit Orwellian.

    The rules here along the margins will be difficult, but we already allow euthanasia in various ways. Are we going to force people against their will to have treatment? Will brain death (a means of defining “life”) not be allowed if some artificial means can just keep a person alive indefinitely because the heart continues to beat? Refuse drugs since “double effect” might lead to death instead of merely pain reduction? (already done sometimes) Force people to choose what they will anyway on the sly or have Jack Kevorkian types do it?

  • HaroldAMaio

    —-the— mentally ill have a “right” to assisted suicide
    I am not sure what you mean by “the” mentally ill. You see us as generic?

  • GP

    The concluding observation from Ms. Golden highlights a critical issue. While we respect her opinion, we don’t want her opinion imposed on us. Carefully drafted laws will minimize the risk a choice isn’t truly voluntary. True, even the most carefully written laws will be misapplied. But the same principle of human fallibility applies to all endeavors, including medical procedures undertaken by physicians (who are not without a subliminal profit motive) that cause needless and protracted suffering. Bottom line: the “least imperfect” solution is to allow individuals to decide for themselves.