That we die is certain. When and how we die is not. Because we want to live and not to die, we resort to medicine to delay the inevitable. Yet medicine’s increasing success in prolonging life has been purchased at a heavy price, paid in the coin of how we die: often in conditions of unrelievable pain and suffering, irreversible incompetence, and terminal loss of control. While most people still look forward to further triumphs in medicine’s war against mortality, many Americans increasingly want also to exercise greater command over the end of life. Some even wish to elect death to avoid the burdens of lingering on. Ironically, they also seek assistance in doing so from the death-defying art of medicine. People no longer talk only about refusing medical treatment. The demands of the day are for assisted suicide and euthanasia.
Nearly everyone recognizes that such practices raise profound moral and social issues: human dignity, the sanctity of life, the morality of suicide, the ethic of medicine, protection of the vulnerable, duties of care, and the government’s obligation to control the use of lethal force and to protect innocent life. But because of the nature of our political system, large moral questions in America are often recast in terms of individual rights. Predictably, the complicated and delicate issues surrounding the end of life are now being addressed in the context of a demand for a “right to die.” To secure such a right against existing governmental interference, protagonists have sued in the courts. And so, vexed questions of death and dying have now become a matter for constitutional adjudication.
The United States Supreme Court will soon decide whether to promulgate a new constitutional doctrine effectively ending the ability of state governments to interfere with physician-assisted suicides. If the Court takes this step, judges will henceforth become responsible for resolving some of the most delicate aspects of the relationship between physicians and their patients. There are good reasons to fear that the result would be a disaster.
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The Legal Framework
Like Most other states, New York and Washington have statutes making it a crime for any person to assist another to commit suicide. These statutes have been declared unconstitutional by the United States Courts of Appeals for the Second Circuit and the Ninth Circuit respectively, and those are the decisions now before the Supreme Court. There are several different legal approaches that the high Court might adopt.
It could conclude that the Constitution simply does not create any right to commit or attempt suicide, and therefore does not create any right to assist or to obtain assistance in committing suicide. Three facts powerfully support this conclusion. First, the Constitution is silent on the subject of suicide. Second, laws against assisting in a suicide were commonplace when the Constitution and its subsequent amendments were ratified. And third, there is no Supreme Court precedent recognizing such a right. These facts, indeed, have already induced Justice Antonin Scalia to announce that “the federal courts have no business in this field.”
If a majority of the Justices join Scalia in reaching this conclusion, the issues discussed in this essay will not bear directly on the Court’s analysis. Support for Scalia’s position, however, is not certain and may not even be likely. As the Second and Ninth Circuit decisions suggest, there are several existing constitutional doctrines that might be extended so as to invalidate statutes like those in New York and Washington.
The Supreme Court might find, for example, that the statutes banning assisted suicide violate the Fourteenth Amendment provision that forbids state governments to deny any person the “equal protection of the laws.” This was the approach taken by the Second Circuit, which held that New York’s assisted-suicide statute discriminates irrationally between terminally ill patients on life-support systems (who can end their lives by ordering the cessation of such treatments) and terminally ill patients who do not have this option because they are not on life-support systems.
The Second Circuit acknowledged, however, that it could invalidate the classifications created by the statute only if they have no rational relationship to any legitimate state interest. When applying this rational-basis test, the Supreme Court ordinarily gives great deference to the judgment of state legislatures, and there is an abundance of legitimate reasons to justify statutes that proscribe assisted suicide. Perhaps the most obvious is the state’s interest, which we will discuss in detail below, in preserving the valuable commonsense distinction that physicians make all the time between allowing nature to take its course with a gravely ill patient and stepping in to kill that patient.
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A different line of argument, which was developed by the Ninth Circuit when it invalidated the Washington statute, would start not from the equal-protection clause of the Fourteenth Amendment but from its due-process clause. This provision forbids state governments to deprive any person of life, liberty, or property without due process of law. In Roe v. Wade (1973) and subsequent cases, the Supreme Court interpreted this to mean that governments are sharply constrained in their ability to interfere with women’s liberty to obtain abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court’s most recent abortion decision, the constitutional right at stake was described at one point as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
One might conclude from this passage that a decision to commit suicide, like a decision to have an abortion, is encompassed by a judicially recognized right to make private decisions about the mystery of human life. If the Supreme Court were to draw this conclusion, then legal restrictions on suicide, and on access to at least some forms of physician assistance in committing suicide, might well be invalidated.
Although it is conceivable that the Court might take this step, it would be a tremendous and unnecessary leap. The “mystery of human life” passage in Casey lacks force as precedent, because it was not part of the reasoning entailed in the decision. The Casey Court, moreover, emphasized that its holding was itself dictated largely by the precedential force of Roe v. Wade. When the Casey opinions are read in their entirety, it is clear that no extension of the due-process doctrine beyond the abortion context is implied.
A much more plausible source of guidance on the assisted-suicide issue can be found in the Supreme Court’s “right to die” opinion in Cruzan v. Director, Missouri Department of Health (1990). In that case, the Court rejected the relevance of the right to privacy invoked in the abortion decisions. Instead, Cruzan held that if the due-process clause protects an individual’s “liberty interest” in refusing unwanted medical treatment, state governments are still free to insist that comatose patients continue to receive life-sustaining treatments unless there is clear and convincing evidence that the patient would have wished to have the treatments withdrawn. Although the Court did not hold that there is a constitutional right to refuse unwanted medical treatment, neither did it signal any strong reluctance to reach that conclusion in a case where the issue might be properly presented. One member of the five-Justice majority, moreover, seemed to conclude that the Constitution protects the “freedom to determine the course of [the patient’s] own treatment.”
As a logical matter, a right to control one’s own medical treatment does not imply a right to commit suicide. Intuitively, however, it is a relatively short step from recognizing a right to refuse the drugs necessary for the maintenance of life to accepting a right to ingest the drugs that will end one’s life. If the justification for requiring the government to have a good reason before it invades your body is that it is your body, then it seems to follow that the government should be required to offer a good reason before it forbids you to invade your own body. It thus seems fairly likely, though by no means inevitable, that the Supreme Court would find that the Constitution obliges the government to produce a good reason for interfering with a person’s decision to commit suicide, at least when that decision is supported by reasons like the desire to avoid excruciating pain.
Assuming that the Court would conclude that some sort of right to suicide is protected by the Constitution, we nevertheless contend that the Court should uphold statutes prohibiting assisted suicide. Or, in other words, that the governmental interest in maintaining a bright-line rule against assisting with suicides is sufficient to outweigh whatever due-process “liberty interest” an individual may have in obtaining such assistance. In what follows, we do not propose to catalogue all the reasons a state might advance in defense of a statute against assisted suicide, but rather to focus on a particular set of interests that tend to be neglected or underemphasized in legal discussions. This neglect is a serious matter because the law’s usual focus on individual rights, which are abstractions, makes it easy to misapprehend how decisions like the one at issue here will affect the very human individuals and institutions whose rights the courts must allocate.
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Physician-Assisted Suicide and the Medical Ethic
Although the New York and Washington statutes prohibit assisted suicide generally, the practical effect of the Court’s decision will be almost entirely limited to the medical profession. It is conceivable, of course, that someone might want to induce another to shoot him in the back of the head, but this sort of request must be extraordinarily rare. More realistically, family members are sometimes enlisted to procure (and perhaps even administer) poisons. But this phenomenon is limited both by the relative crudity of the poisons available to the general public and by the natural reluctance of most family members to get involved directly in killing their relatives.
What is really at stake here is physician-assisted suicide. Doctors—and those, like nurses and pharmacists, who generally operate under their supervision—pretty much have a legal monopoly on the most desirable deadly drugs, and they control the settings in which people can be killed (or helped to kill themselves) with the least mess and disruption for everyone concerned. Furthermore, physicians are psychologically well-placed for the role because they are commonly invested with the comforting aura created by their usual therapeutic function, while they retain enough distance from the patient to avoid the special traumas that must arise when relatives are involved in helping to bring about a sick person’s death. Physician participation can sanitize and even sanctify the deed.
For all these reasons, the Court should give special attention to the effects its decision will have on the medical profession.
Authorizing physician-assisted suicide would require the Court to overturn a centuries-old taboo against medical killing, a taboo understood by many to be one of the cornerstones of the medical ethic. This taboo is at least as old as, and is most famously formulated in, the Hippocratic Oath, where it stands as the first negative promise of professional self-restraint: “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. . . . In purity and holiness I will guard my life and my art.” This clearly is a pledge to refrain from practicing euthanasia, even on request, and from assisting or even encouraging a willing patient in suicide.
This self-imposed professional forbearance, which was not required by the Greek laws or customs of the time, is rooted in deep insights into the nature of medicine. First, it recognizes the dangerous moral neutrality of medical technique: drugs can both cure and kill. Only if the means used serve a professionally appropriate end will medical practice be ethical. Accordingly, the Oath rules out assisting in suicide because the end that medical technique properly serves—the wholeness and well-working of the living human body—would be contradicted should the physician engage in delivering death-dealing drugs or advice.
Second, and most important, the taboo against euthanasia and assisted suicide—like the taboos against violating patient confidentiality and against sexual misconduct, enunciated later in the Oath—addresses a prominent “occupational hazard” to which the medical professional is especially prone: a temptation to take advantage of the vulnerability and exposure that the practice of medicine requires of patients. Just as patients necessarily divulge to the physician private and intimate details of their personal lives, and necessarily expose their naked bodies to the physician’s objectifying gaze and investigating hands, so they necessarily expose and entrust the care of their very lives to the physician’s skill, technique, judgment, and character. Mindful of the meaning of such exposure and vulnerability, and mindful too of their own human penchant for error and mischief, Hippocratic physicians voluntarily set limits on their own conduct, pledging not to take advantage of or to violate the patient’s intimacies, naked sexuality, or life itself.
The ancient Hippocratic physicians’ refusal to assist in suicide was not part of an aggressive, so-called “vitalist” approach to dying patients or an unwillingness to accept mortality. On the contrary, understanding well the limits of the medical art, they refused to intervene aggressively when the patient was deemed incurable, and they regarded it as inappropriate to prolong the natural process of dying when death was unavoidable. Insisting on the moral importance of distinguishing between letting die (often not only permissible but laudatory) and actively causing death (impermissible), they protected themselves and their patients from their own possible weaknesses and folly, thereby preserving the moral integrity (“the purity and holiness”) of their art and profession.
That the Oath and its ethical vision of medicine is the product of classical Greek antiquity reminds us that the ban on physician-assisted suicide was not and is not the result of religious impulses alone. The Oath is fundamentally pagan and medical, and it has no connection with biblical religion or the Judeo-Christian doctrines of the sanctity of human life. Nor is the Oath merely a parochial product of ancient Greek culture. Notwithstanding the fact that it begins by invoking Apollo and other deities no longer worshiped, it reflects and articulates a coherent, rational, and indeed wise, vision of the art of medicine. That is why it has been widely accepted in the West as a document for all times and places.
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The Hippocratic Oath also proscribes physician participation in abortions. Before Roe v. Wade, this taboo governed American medical practice, but it has since fallen away. For this reason, some commentators dismiss the Hippocratic Oath as passé, and regard its proscription of assisting suicide as irrelevant to our morally more pluralistic times. The Ninth Circuit, for example, asserted that after Roe, “doctors began performing abortions routinely and the ethical integrity of the medical profession remained undiminished.” But the court cited no evidence to support this cheery conclusion, and there are, in fact, grounds to argue the contrary. Massive numbers of abortions are now being performed, far beyond what was originally expected, and for reasons not originally regarded as appropriate. Moreover, physician acceptance of abortion may be partly responsible for recent weakenings in the profession’s aversion to causing death, seen in those physicians who are today willing to practice euthanasia, a majority of whom have entered the profession since Roe. Indeed, one of the arguments offered 25 years ago against allowing doctors to perform abortions was that it would inevitably lead to doctors performing euthanasia. More than halfway down that slippery slope, it should be considered an open question, to say the least, whether the ethical integrity of the medical profession has “remained undiminished.”
Be that as it may, the taboo against medical killing and death-dealing is not tied solely to the venerable but now partly compromised Hippocratic Oath. The proscription has been reaffirmed in numerous professional codes and statements of principle. The American Medical Association’s code of Medical Ethics, for example, very explicitly rules out physician-assisted suicide, on the grounds that it is “fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.” The AMA’s policy statements have repeatedly reiterated this position, most recently in a response this past June to the decisions of the Second and Ninth Circuits.
Some now choose to characterize these teachings as merely the residue of tradition, and to argue that times have changed. The received wisdom of the medical profession, never mind Hippocrates, is not wisdom for today, they contend. Today, patients die differently, the vast majority in institutions, and most deaths are connected with some decision about withholding or withdrawing technological intervention. Our population is now aged and suffers increasingly from chronic and degenerative diseases and dementias. The cost of medical care is extremely high, especially for persons in the last year of life. Many people fear an overmedicalized death and a protracted process of dying, made possible by new technological devices such as respirators, defibrillators, dialyzers, and devices for artificial feeding.
Suicide was decriminalized long ago, and we have recognized the importance of patient autonomy in medical decision-making, especially at the end of life. We have established clear legal rights to refuse and to discontinue medical intervention, even should death be a likely outcome. Living wills and advance directives to protect our wishes should we fall incompetent have legal force in nearly every state. But although the hospice movement and advances in pain control already make physically comfortable dying possible for most people, some still want the right to have medical assistance in committing suicide and also direct killing by physicians. Public-opinion polls, though they should be viewed with caution, appear to indicate support for such a right. Moreover, many doctors are apparently willing not only to accede to requests for deadly drugs, but also to administer them to patients unable to take them for themselves. Some physicians, it is alleged, are already doing so in secret.
In short, so the argument goes, the ancient taboo against physician-assisted suicide and euthanasia is now an obstacle to a humane death. What would be lost if the taboo fell?
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The Answer is that a great deal would be lost. Simple reflection, backed by empirical evidence, makes plain some obvious, probable, and serious consequences for the welfare of patients and for medical practice itself.
Once it becomes possible to think of death as a “therapeutic option” in the physician’s armamentarium, we shall almost certainly see a great increase in suicide and physician-assisted death, far beyond the few and limited kinds of cases now invoked to justify a change in the law. Incentives will be altered, not only for patients given a new freedom to elect death but also for physicians, families, hospitals, health-maintenance organizations (HMO’s), and insurers.
It is especially important to focus on these incentives, which operate almost invisibly and are therefore easy to forget, especially when we are preoccupied with the extreme cases—the ones always brought forth to gain sympathy for overturning the prohibition against assisted suicide. But these few patients caught up in genuinely heartrending medical situations will become hard to separate, both logically and practically, from countless other potential “candidates” for assisted death whose treatment will surely be affected by altered incentives. There may be no area of jurisprudence in which it is more ominously true that heartrending cases make bad law.
Many families and physicians will find in the option of electable death an opportunity to relieve themselves of the emotional burdens of caring for difficult or incurable patients. Others will be able to avoid huge economic costs or to achieve financial gain connected to an earlier demise, especially where an inheritance will be jeopardized by the expense of caring for long-lingering illness. Even when relatives and physicians are not consciously aware that they are succumbing to such temptations, they will subtly but surely be pulled in that direction.
Because the quick-fix of suicide is easy and cheap, it will in many cases replace the use of hospice and other humanly-engaged forms of palliative care, for there will be much less economic incentive to continue building and supporting social and institutional arrangements for giving humane care to the dying. Lack of medical insurance already keeps many people from adequate end-of-life care. Indeed, cost-cutting pressures already exerted on physicians by insurers and hospitals now produce sub-optimum care even for many who have coverage. In our new medico-economic climate, with for-profit hospital corporations and HMO’s, the removal of the ban against physician-assisted suicide becomes even more dangerous: a quick death will often be the most cost-effective “therapeutic option” and will, therefore, be ever more frequently employed, especially should our society move, as seems likely, toward some form of explicit rationing of medical care at the end of life.
Proponents of assisted suicide will counter these concerns by reminding us that it is the patient alone who will be legally entitled to initiate the request for lethal medication. They will point out that concern for the economic well-being of one’s heirs is not a contemptible incentive for electing an earlier death, and that it is not irrational to try to keep money saved for a grandchild’s education from being squandered on a miserable six months more of life. But such arguments, though well-taken in theory, naively idealize the usual situation of severely ill patients.
The ideal of rational autonomy, so beloved of legal theorists, rarely obtains in actual medical practice. Illness nearly invariably means dependence, and dependence means relying for advice on physician and family. This is especially true with the seriously or terminally ill, where there is frequently also depression or diminished mental capacity that clouds one’s judgment or weakens one’s resolve. With patients thus reduced—helpless in action and ambivalent about life—someone who will benefit from their death need not proceed by overt coercion. Rather, requests for assisted suicide can and will be subtly engineered.
To alter and influence choices, physicians and families need not be driven entirely by base motives or even be consciously manipulative. Well-meaning and discreet suggestions, or even unconscious changes in expression, gesture, and tone of voice, can move a dependent and suggestible patient toward a choice for death. Simply by making assisted suicide an option available to gravely ill persons, will we not, as Yale Kamisar wrote long ago,
sweep up, in the process, some who are not really tired of life, but think others are tired of them; some who do not really want to die, but who feel that they should not live on, because to do so when there looms the legal alternative of euthanasia is to do a selfish or cowardly act?
Anyone who knows anything at all about the real life of the elderly and the incurable knows that many of them will experience—and be helped to experience—their right to choose physician-assisted death as a duty to do so.
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In the vast majority of medical situations, the idealistic assumptions of doctor-patient equality and of patient autonomy are in fact false. This is so even when the patient is in relatively good health and where there is an intimate doctor-patient relationship of long standing. But with the seriously ill, the hospitalized, and, even more, with the vast majority of patients who are treated by physicians who know them little or not at all, many choices for death by the so-called autonomous patient will not be truly free and fully informed.
Physicians hold a monopoly on the necessary information: prognosis, alternative treatments, and their costs and burdens. Like many technical experts, they are masters at framing the options to guarantee a particular outcome. This they do already in presenting therapeutic options to the “autonomous patient” for his decision, and there is no reason to think that will change should one of those options now become “assistance for death.” When the physician presents a depressed or frightened patient with a horrible prognosis and includes among the options the offer of a “gentle quick release,” what will the patient likely choose, especially in the face of a spiraling hospital bill or edgy children? The legalization of physician-assisted suicide, ostensibly a measure enhancing the freedom of dying patients, will thus in many cases become a deadly license for physicians to recommend and prescribe death, free from outside scrutiny and immune from possible prosecution.
Partly for this reason, the practice of physician-assisted suicide is likely soon to erode the trust that patients give to physicians. True, some may be relieved to know that their old family doctor will now be able to provide suicide-assistance when asked. But many—especially those who are not socially strong or who lack a close relationship with a trusted personal doctor—will be rightly suspicious. For how can you trust a stranger-doctor to be wholeheartedly devoted to your best interests once he has a license to kill? Imagine the scene: you are old, poor, in failing health, and alone in the world; you are brought to the city hospital after a fall with fractured ribs and pneumonia. The nurse or intern enters late at night with a syringe full of yellow stuff for your intravenous drip. Never mind that, for now, death can be legally prescribed only on request. How soundly will you sleep?
Trust will suffer profoundly in more subtle ways as well. Should physician-assisted suicide become a legal option, it will enter unavoidably—sometimes explicitly, sometimes tacitly—into many a doctor-patient encounter. Though there may be attempts to prevent physicians from introducing the subject, once the option exists as a legal right there will be even stronger pressures to make sure that patients know they have it.1 Ineluctably, patients will now be forced to wonder about their doctor, regardless of how he handles the situation: did he introduce the subject because he secretly or unconsciously wishes to abandon me, or, worse, because he wishes I were dead? Does he avoid the subject for the same reason, fearing to let me suspect the truth, or conversely, is it because he wants me to suffer?
Few will openly express such fears and doubts. Because patients must rely on their doctor, they do not want to risk alienating him by seeming to distrust his motives and good will. Anyone who understands even a little of the subtle psychodynamics of the doctor-patient relationship can see immediately the corrosive effects of doubt and suspicion that will be caused by explicit (or avoided) speech about physician-assisted death.
Nor is trust just a moral nicety, humanly desirable but medically dispensable. On the contrary, a patient’s trust in the physician is a necessary ingredient in the therapeutic relationship and, at least indirectly, in the healing process itself. Mistrust produces stress, anger, and resistance to treatment. In the increasingly impersonal world of modern medicine, patients must, without any direct evidence, presume that their caregivers are trustworthy even before they have shown they deserve to be trusted. Especially under these conditions, the trust given to each physician stems largely from the trustworthiness attached to the profession as a whole. With the taboo against physician-assisted suicide broken, legitimate fears of deadly abuse of the new license will attach even to the most honorable physicians, whose ability to heal and comfort will therefore often be compromised.
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But trust between patient and doctor is hardly the only good that will be harmed. Once physician-assisted suicide becomes acceptable, the practice will almost certainly be expanded beyond the narrow range now envisioned. Physicians will inevitably come to “assist” the non-terminally ill and the less-than-fully competent, and to engage in active euthanasia, both voluntary and nonvoluntary. None of the boundaries among these closely related practices is clearly definable or practicably defensible against expansion and erosion.
Terminal illness is notoriously difficult to define precisely and almost as difficult to predict accurately. For example, the frequently used estimate of “less than six months to live” leaves unanswered whether it means six months with or six months without specific forms of treatment. Besides, a newly-discovered constitutional right to determine the time and manner of one’s death would, if limited to the terminally ill, seem to discriminate unfairly against those fated to suffer their illnesses for longer periods of time. Patients with early Alzheimer’s disease or so-called Lou Gehrig’s disease (amyotrophic lateral sclerosis) are not considered terminally ill, yet they are frequently mentioned as leading candidates for assistance in dying. Few of Jack Kevorkian’s “patients” have been, by anyone’s definition, terminally ill.
Autonomy, choice, and “liberty interests” are no respecters of arbitrary limitations on their exercise. If suicide and its assistance are legally justified by the principle of autonomy and choice, then the whole matter is too personal, intimate, and subjective to be governed by any objective or demonstrable criteria, such as certifiable terminal illness or truly intractable pain. For who is to say what makes suffering or life “unbearable” or death “electable” for another person? The autonomy argument favored by so many legal theorists sooner or later will undermine all criteria proposed for evaluating a patient’s choice. Further, if the courts refuse to see a meaningful distinction between withholding or withdrawing treatment and giving deadly drugs, it will be impossible legally to deny non-terminally-ill patients a right to the latter when they already clearly have a right to the former.
For similar reasons, it will be impossible to confine the new right to those who will themselves administer the deadly drug the doctor has prescribed. What if the patient’s infirmity prevents him from putting the pills into his mouth or from swallowing them? What if he vomits them up or if, for some other reason, the usually “lethal dose” does not produce death in his case? The physician will surely not stand idly by; now committed to the patient’s death, he will certainly lend a hand. And should he be disinclined to do so, courts, citing equal-protection arguments like those advanced by the Second Circuit, will compel him: why should someone be denied equal access to suicide assistance just because he is quadriplegic and cannot administer the chosen drug to himself? By this obvious route, physician-assisted suicide will lead quickly and inevitably to voluntary euthanasia performed by physicians.
The courts are also naive if they believe that one can draw and hold a line between, on the one hand, physician-assisted suicide or voluntary active euthanasia (practiced by doctors on willing patients) and, on the other hand, nonvoluntary euthanasia (where physicians perform mercy-killing without the patient’s request). Legal theories that rely on the supremacy of autonomous choice offer purely theoretical reassurance, unwarranted by what will happen in practice. Almost no physician will accede to a request for deadly drugs unless he believes there are good reasons to justify the patient’s choice for death (too much pain, loss of dignity, lack of self-command, poor quality of life); otherwise, he will try to persuade the patient to accept some other course of treatment or palliation, including psychotherapy for his suicidal wishes. Physician-assisted suicide in practice will be performed by physicians not out of simple deference to patient choice but for reasons of mercy: this is a “useless” or “degrading” or “dehumanized” life that pleads for active, merciful termination, and therefore deserves my medical assistance.
But once suicide and assisting suicide are deemed all right for reasons of “mercy,” then delivering the dehumanized will also be all right, whether such deliverance is chosen or not. Once legalized, physician-assisted suicide will not remain confined to those who freely and knowingly elect it—nor do the most energetic backers of euthanasia (including some members of the medical profession) really want it thus restricted. They see the slippery slope and eagerly embrace the principle that will justify the entire downward slide. Why? Because the vast majority of candidates who “merit” an earlier death cannot request it for themselves. Persons in a so-called persistent vegetative state; those suffering from severe depression, senility, mental illness, or Alzheimer’s disease; infants who are deformed; and retarded or dying children—all are incapable of requesting death, but are equally deserving of the new humane “aid-in-dying.”
Lawyers and doctors, subtly encouraged by cost-containers, will soon rectify this inequality. Invoking the rhetoric of equal protection, they will ask why the comatose or the demented should be denied a right just because they cannot claim it for themselves. With court-appointed proxy consenters, we will quickly erase the distinction between the right to choose one’s own death and the right to request someone else’s—as we have already done in termination-of-treatment cases.
Doctors and relatives will not even need to wait for such changes in the law. Who will be around to notice when the elderly, poor, crippled, weak, powerless, retarded, depressed, uneducated, demented, or gullible are mercifully released from the lives their doctors, nurses, and next of kin deem no longer worth living?
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That the specter of unauthorized euthanasia is no mere scare-mongering is confirmed by reports from Holland. Although assisted suicide and voluntary euthanasia by physicians are technically still against the law there, their practice has been tolerated, even encouraged, for nearly twenty years, under guidelines established by the medical profession. And although the guidelines insist that choosing death must be informed and voluntary, a 1989 survey of 300 physicians disclosed that over 40 percent had performed nonvoluntary euthanasia and over 10 percent had done so five times or more. Another survey, this one commissioned by the Dutch government, provides even more alarming data: in 1990, besides the 2,300 cases of voluntary euthanasia and 400 cases of physician-assisted suicide per year, there were over 1,000 cases of active nonvoluntary euthanasia performed without the patient’s knowledge or consent, including roughly 140 cases (14 percent) in which the patients were mentally totally competent. (Comparable rates of nonvoluntary euthanasia for the United States would be roughly 20,000 cases per year.) In addition, there were 8,100 cases of morphine overdose with the intent to terminate life, of which 68 percent (5,508 cases) took place without patient knowledge or consent.
And why are Dutch physicians performing nonvoluntary euthanasia? “Low quality of life,” “relatives’ inability to cope,” and “no prospect of improvement” were reasons physicians gave for killing patients without request; pain or suffering was mentioned by only 30 percent. Is there any reason to believe that Dutch physicians are less committed than their American counterparts to the equal dignity of every life under their care?
Even proponents of physician-assisted suicide concede that there are dangers of abuse. But they believe, as did both the Second and Ninth Circuits, that physicians and state governments can establish guidelines and regulations that will prevent such abuses and curtail undesirable extensions of the practice. This confidence in regulation, however, is no more than a pious hope, and one that flies in the face of both existing evidence and common sense.
The guidelines that have been proposed are, in fact, defective and ineffective, and the evidence from Holland already shows that they are not being followed. There, comprehensive regulations that include requirements of voluntariness, thoughtfully considered and persistent requests, unacceptable suffering, consultation with a second physician, and accurate reporting of the cause of death are all being neglected. There are many known cases of nonvoluntary euthanasia, and many more that go unreported. In the majority of such cases, Dutch physicians illegally certify that death was due to natural causes. Moreover, the Dutch courts have been willing to set aside the established criteria and regulations in the name of mercy and an alleged medical duty to relieve suffering that is said to outweigh the duty not to kill.
The problem is not peculiar to the Dutch regulations or to Dutch social prejudices and legal arrangements. As Daniel Callahan and Margot White have shown in compelling detail, any guidelines and regulations that have been or could be proposed are likely to be equally defective and ineffective. Indeed, the practice of assisted suicide, insofar as it will occur in the privacy of the doctor-patient relationship, is in principle unregulable. In the words of Callahan and White, “maintaining the privacy of the physician-patient relationship and the confidentiality of these deliberations is fundamentally incompatible with meaningful oversight and adherence to any statutory regulations.” Legalization of physician-assisted suicide will thus lead not to regulation of the practice, but to deregulation of the physicians, who will now have more power than ever over the life and death of their patients.
The citizens of Oregon, by a narrow margin, have recently expressed the wish to experiment with assisted suicide, using what they believe—foolishly, in our view—are adequate safeguards. Many other states have recently rejected proposals for such experiments. Should the people of Oregon come to believe that they made a mistake, they can reverse course. But if the Supreme Court makes a similar mistake, correcting it will be a slow, uncertain, and almost surely incomplete process. This is another reason to be very wary of establishing a constitutional right to a dangerous practice on the basis of an ill-considered confidence that proper safeguards can be found to reduce the dangers, especially when there are powerful reasons to believe that such safeguards will be difficult, if not impossible, to provide.
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Professional Ethics and the Law
We turn now to another and possibly even more delicate subject. Precisely because of the ineffectiveness and unenforceability of any guidelines regulating physician-assisted suicide, prevention of misuse, abuse, and unauthorized extension of the practice will rest almost entirely on die precarious virtue of the medical profession and its individual practitioners. Yet legalization will surely undermine the very ethical integrity of the medical profession on which any supposedly proper practice of helping-to-die depends. What is too little appreciated in almost all these discussions is the fragility of medical professionalism, and hence the need for legal reinforcement of the profession’s norms.
Medicine is a profession, not merely a trade. This means that its practice is an ethical activity, and an extremely demanding one. Physicians are ethically obliged always to put their patients’ interests ahead of their own. They are ethically obliged to ensure that their enormous powers over life and death, powers tied to increasingly esoteric knowledge and increasingly potent technologies, are not misused or abused. They are ethically obliged to recognize the limits of their craft, given that all their patients will necessarily decay and die sooner or later, medicine or no medicine. They are ethically obliged always to care for, never to abandon, their patients, and this remains true even when a cure is impossible, and even—indeed, especially—when death is near.
The moral disposition to fulfill these obligations cannot be produced by market forces alone or by the ordinary legal prohibitions against force and fraud. Rather, the formation of a moral physician is the work of a partly explicit and partly tacit set of attitudes, sentiments, dispositions, principles, and beliefs devised over centuries and tested by experience, and inculcated both formally and informally during the lengthy socialization of new physicians into die profession.
Among its major purposes, medical ethics seeks to protect physicians against both their strengths and their weaknesses. To protect against the danger of professional arrogance, physicians are taught about the need for humility concerning the limits of their own specialized competencies and their ability to offer precise prognoses or to effect permanent cures. They are warned against prideful overconfidence and the belief that they always know better what is in the patient’s best interest. They are taught to seek outside consultation, to be modest in their predictions and promises, to secure informed consent for all procedures, and to respect their patients’ prerogatives in refusing treatment or hospitalization. They gradually, and no doubt imperfectly, learn how limited is their ability to preserve health, prolong life, and forestall death.
Perhaps even more important are those aspects of medical ethics that protect the physician against his ordinary human weaknesses: his tendency to allow his own self-interest (regarding time, money, or competing concerns) to undermine his devotion to his patients’ needs; his own distastes, dislikes, and frustrations regarding difficult or incurable patients, any of which might lead him to shortchange their care, to become indifferent to their needs and complaints, or even to neglect and abandon them outright; his own fear of death, which might prevent him from allowing his patients to die without added indignities. All these lessons are very difficult to learn and faithfully practice, for taking care of the sick and, especially, the dying places extraordinary and unrelenting demands on one’s patience, equanimity, and strength of character.
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Despite the medical ideal, and despite all exhortations to the contrary, physicians do in fact get tired of treating patients who are hard to cure, who resist their best efforts, who are on their way down—especially when they have had no long-term relationship with them over many years. “Gorks,” “gomers,” and “vegetables” are only some of the less-than-affectionate names such patients receive from interns and residents. Once the venerable taboo against assisted suicide and medical killing is broken, many physicians will be much less able to care wholeheartedly for these patients.
With death now a legitimate “therapeutic option,” the exhausted medical resident will be tempted to find it the best treatment for the little old lady “dumped” again on the emergency room by the nearby nursing home. Should she get the necessary penicillin and respirator one more time, or, perhaps, this time just an overdose of morphine? Even if the morphine is not given, the thinkability of doing so, and the likely impossibility of discovery and prosecution, will greatly alter the physician’s attitude toward his patients. Today, hospital patients whose charts contain “Do Not Resuscitate” orders are very often treated differently from the rest. This happens not because of official policy, but despite it. A subtle message is silently conveyed that such patients are less worthy of continued life. Should lethal drugs become a legal option, such psychological changes in physicians will be even more difficult to resist. And the consequences will often be deadly.
Even the most humane and conscientious physician psychologically needs protection against himself and his weaknesses if he is to care fully for those who entrust themselves to him. One physician who has worked for many years in a hospice caring for dying patients put the matter most convincingly: “Only because I knew that I could not and would not kill my patients was I able to enter most fully and intimately into caring for them as they lay dying.”
The taboo against physician-assisted suicide is perhaps even more crucial as a protection against physicians’ arrogance—their willingness to judge, on the basis of their own private prejudices and attitudes, whether this or that life is unworthy of continued existence. This most important point is generally overlooked in discussions of assisted suicide because so much attention is focused on the patient’s voluntary request for death. But in order to comply with such a request, the physician must, willy-nilly, play the part of judge, and his judgments will be decidedly nonmedical and nonprofessional, based on his own personal standards. One will choose to assist death over against moderate or impending senility, another against paraplegia, a third against severe pain or blindness or prolonged depression. Only those requests resonating with the physician’s own criteria of “intolerable” or “unworthy” lives will be honored.
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The Problem is not primarily that physicians believe some lives more worthy or better lived than others; nearly all people hold such opinions and make such judgments. The danger comes when they act on these judgments, and especially when they do so under the cloak of professional prestige and compassion. Medical ethics, mindful that medicine wields formidable powers over life and death, has for centuries prevented physicians from acting professionally on die basis of any such personal judgment. Medical students, interns, and residents are taught—and acquire—a profound repugnance to medical killing, as a major defense against committing, or even contemplating, the worst action to which their arrogance and/or their weaknesses might lead them.
At the same time, it is true, they are also taught not always to oppose death. Because it is part of life, physicians must not hate death as they abhor killing. They are taught—and it is a lesson not easily learned—when they should abandon interventions, cease interfering with the dying process, and give only care, comfort, and company to the dying patient. But in order to be able to keep their balance, physicians have insisted on the absolute distinction between letting die and deliberate killing. Nonmedical laymen (including lawyers and judges) may not be impressed with this distinction, but for practicing physicians it is morally crucial.
For one thing, death does not necessarily follow the discontinuance of treatment. Karen Ann Quinlan lived more than ten years after the courts allowed the “life-sustaining” respirator to be removed; not her physician but her underlying fatal illness became the true cause of her death. The result in the Quinlan case shows that the right to discontinue treatment cannot be part of some larger right, in the words of the Ninth Circuit, to “determine the time and manner of one’s own death.” Indeed, it is both naive and thoughtless to believe that we can exercise such a “right” short of killing ourselves or arranging to be killed on schedule. The whole notion of the so-called right to die exposes the shallowness of our exaggerated belief in mastery over nature and fortune, a belief that informs the Ninth Circuit’s opinion and, indeed, our entire technological approach to death.
What is most important morally is that the physician who ceases treatment does not intend the death of the patient. Even if death follows as a result of his action or omission, his intention is to avoid useless and degrading medical additions to the already sad end of a life. By contrast, in assisted suicide and all other forms of direct killing, the physician must necessarily and indubitably intend primarily that the patient be made dead. And he must knowingly and indubitably cast himself in the role of the agent of death. This remains true even if he is merely an assistant in suicide. Morally, a physician who provides the pills or lets the patient plunge the syringe after he leaves the room is no different from one who does the deed himself. As the Hippocratic Oath puts it, “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.”
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The Same prohibition of physician killing continues to operate in other areas of palliative care where some have sought to deny its importance. For example, physicians often and quite properly prescribe high doses of narcotics to patients with widespread cancer in an effort to relieve severe pain, even though such medication carries an increased risk of death. But it is wrong to say that the current use of intravenous morphine in advanced cancer patients already constitutes a practice of medical killing. The physician here intends only the relief of suffering, which presupposes that the patient will continue to live in order to be relieved. Death, should it occur, is unintended and regretted.
The well-established rule of medical ethics that governs this practice is known as the principle of double effect, a principle misunderstood by the Ninth Circuit. It is morally licit to embrace a course of action that intends and serves a worthy goal (like relieving suffering), employing means that may have, as an unintended and undesired consequence, some harm or evil for the patient. Such cases are distinguished from the morally illicit efforts, like those of Jack Kevorkian, that indirectly “relieve suffering” by deliberately providing a lethal dose of a drug and thus eliminating the sufferer.
True, it may not always be easy to distinguish the two cases from the outside. When death occurs from respiratory depression following morphine administration, the outcome—a dead patient—is the same, and the proximate cause—morphine—may also be the same. Physical evidence alone, obtained after the fact, will often not be enough to tell us whether the physician acted with intent to ease pain or with intent to kill. But that is exactly why the principle of double effect is so important. Only an ethic opposing the intent to kill, which is reinforced by current laws, keeps the physician from such deliberate deadly acts.
Both as a matter of law and as a matter of medical ethics, the right to refuse unwanted medical intervention is properly seen not as part of a right to become dead but rather (like the rest of the doctrine of informed consent) as part of a right protecting how we choose to live, even while we are dying. What become unwanted treatments are first begun on the basis of a prudent judgment, weighing benefits and burdens and, in the event of doubt, usually erring on the side of life and hope for recovery. But after a proper trial, when recovery seems beyond reasonable possibility, and when the patient’s condition deteriorates, one is medically and morally free to abandon the therapeutic efforts, even if death results. Yet it is not the intent of this discontinuance—whether by a physical act of omission or commission—that the patient become dead.2
It is therefore false to say (as the Second Circuit does) that physicians who turn off a respirator are already practicing assisted suicide, or (as the Ninth Circuit says) that physicians who today run increased risks of their patients’ death in order to provide adequate pain medication are knowingly and intentionally killing them. No doubt, some physicians, already far down the slippery slope to involuntary euthanasia, may be abusing the principle of double effect, but such abuse in no way justifies blurring the only line that can be drawn clearly in this difficult area.
Law cannot substitute for medical ethics. It cannot teach or inculcate the right attitudes and standards that professionals need if they are to preserve the fragile moral integrity on which the proper practice of medicine depends. But the law can support that ethic by enacting and upholding a bright-line rule that coincides with the necessary prohibition against doctors becoming agents of death. Especially where there is grave doubt that adequate substitutes can be found for such a rule, or that there can be enforceable guidelines and safeguards for medical practice in its absence, the state has a powerful interest in preventing the healing profession from becoming also the death-dealing profession.
That many physicians are already tempted to assist in suicide, and to perform euthanasia, is not a reason for changing the traditional rule. On the contrary, it may very well be a warning of how weakened die fragile medical ethic has already become, and how important it is to help shore it up. Where our state governments have decided to uphold this ethic by proscribing assisted suicide, and where the authoritative voices of the medical profession urge them to continue to do so, federal courts should not be in the business of undermining their efforts.
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Conclusion
It may seem paradoxical that we have been defending a law on die ground that it helps the people whose conduct it restricts to practice self-regulation. But this is exactly where law is often most important and useful. Under the growing economic, legal, and technologically-driven pressures that trouble modern American medicine, it is increasingly difficult for the medical profession to uphold its own ethical standards and for individual physicians to keep their moral balance. Regarding no matter is it more important to maintain professional ethics than in the delicate and dangerous area of care for the dying. Regarding no matter is there greater danger to patients, physicians, and the whole fabric of their relationship.
State governments, recognizing the importance of medicine’s moral standards in general and of the ancient taboo against medical killing in particular, have reasonably and rightfully elected to support the profession with laws banning all physician-assisted suicide. Far from being paradoxical, that is the course of wisdom.
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Yet the question is not, finally, a question for the courts. It is a question for our entire society. Even if the Supreme Court decides, as we think it should, to uphold the laws of New York and Washington, the battle regarding assisted suicide and euthanasia will continue. The arena will then shift back to the states, with “right-to-die” groups and their allies seeking to change existing state law so as to legalize assisted suicide and euthanasia on request. Whether our society will be able to hold die line is greatly in doubt.
Much will depend on whether the medical profession can alleviate public fears by demonstrating, after decades of inadequate attention, that it is now both willing and able to provide adequate comfort and care for dying patients. Much will depend on whether we as a society are able to muster the will and the resources to provide dignified palliative treatment for those in need. Much will depend on whether we can see past our preoccupation with asserting new individual rights to grasp the profound danger to the social order of allowing medical killing. But, in the end, everything may depend on whether the American public can learn to accept the limits of medical power and acquire an appropriate attitude toward mortality.
Because we have adopted a largely technical approach to medicine, and have medicalized so much of the end of life, we are now confined to contemplating only a final technical solution for the fact of human finitude and for the degradations that are the unintended consequences of our technical success. This is dangerous folly. Friends of autonomy and human dignity should rather be trying to reverse the dehumanization of the last stages of life, instead of giving dehumanization its final triumph by welcoming the desperate good-bye-to-all-that contained in one final plea for poison.
The present crisis that leads to the demand for a “right to die” is thus an opportunity to recover an appreciation of living with and against mortality, and to affirm the residual humanity that can be appreciated and cared for even in the face of incurable and terminal illness. Should we cave in, should we choose to become technical dispensers of death, we will not only be abandoning our loved ones and our duty to care for them; we will also exacerbate the worst tendencies of modern life, embracing technicism and so-called humaneness where humanity and encouragement are both required and sorely lacking.
Only by holding fast, by declining “the ethics of choice” and its deadly options, by learning that finitude is no disgrace and that our humanity can be cared for to the very end, may we yet be able to stem the rising tide that threatens permanently to submerge our best hopes for human dignity.
1 Analogous pressures now operate in the matter of abortion. Even obstetricians opposed to abortion are often compelled to discuss it, if only to avoid later lawsuits should the child be born with abnormalities.
2 This distinction holds up perfectly well in the vexed case of artificial feeding tubes, often cited by some in order to blur it. They argue, mistakenly, that the removal of these tubes constitutes an act of assisted suicide or euthanasia because it amounts to killing by starvation. But the decision to insert a feeding tube in the first place is often not obligatory, and subsequent decisions about removing it are similarly a matter of both medical and moral judgment. It is reasonable to insert a feeding tube when there is some hope that the patient will improve. But if improvement does not occur after an appropriate trial, artificial feeding can become not only a useless exercise but even a burdensome and unwelcome interference in the process of dying. Removing the tube at that point does not entail a decision to “starve the patient to death.” Only those who mistakenly assume that medicine's goal is the indefinite prolongation of life can fail to see that there always comes a time when the right course of action is to avoid causing further harm and indignity. To yield before the inevitable is not the same as endorsing or choosing it.
