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THE LAW ON ASSISTED SUICIDE

On July 26, 1997, the U.S. Supreme Court unanimously upheld decisions in New York and Washington state that criminalized assisted suicide. These decisions overturned rulings in the 2nd and 9th Circuit Courts of Appeal which struck down state statutes banning physician-assisted suicide. Those courts had found that the statutes, which prohibited doctors from prescribing lethal medication to competent, terminally ill adults, violated the 14th Amendment. In striking the appellate decisions, the U.S. Supreme Court found that there was no constitutional "right to die," but left it to individual states to enact legislation permitting or prohibiting physician-assisted suicide. (The full text of these decisions, plus reports and commentary, can be found at the Washinton Post web site.) As of April 1999, physician-assisted suicide is illegal in all but a handful of states. Over thirty states have enacted statutes prohibiting assisted suicide, and of those that do not have statutes, a number of them arguably prohibit it through common law. In Michigan, Jack Kevorkian was initially charged with violating the state statute, in addition to first-degree murder and delivering a controlled substance without a license. The assisted suicide charge was dropped, however, and he was eventually convicted of second degree murder and delivering a controlled substance without a license. Only one state, Oregon, has legalized assisted suicide. The Oregon statute, which went into effect in October 1997, provides that a doctor may prescribe, but not administer, a lethal dose of medication to a patient who has less than six months to live. Two doctors must agree that the patient is mentally competent and that the decision was voluntary. As of April 1999, 23 patients were given drugs under the statute, and 15 of them used the drugs to commit suicide. A report released by the Oregon state Health Division reviewing the first year of the law's implementation found that the law was working well and had not been subject to abuse. At the federal level, the only legislation addressing this issue (as of April 1999), is the Assisted Suicide Funding Restriction Act. This law prohibits federal money from being used in support of physician assisted suicide. However, in 1998, House Judiciary Chairman Henry Hyde and Senator Don Nickles introduced bills in the House and Senate which would revoke the licence to prescribe federally controlled drugs from any doctor who participated in an assisted suicide. If such legislation passed, doctors in Oregon, or any other state that legalized assisted suicide, would be subject to the federal sanction even though their actions were permitted under state law. The bills were not enacted into law before the end of the congressional session, but may be revived in 1999.
Unanimous Decision Points to Tradition of Valuing Life
|Right to Die |
|1976 |
|The New Jersey Supreme Court sides with |
|Karen Ann Quinlan's parents, who wanted |
|their comatose daughter cut off from |
|life-supporting devices. The state |
|Supreme Court ruled that the state has no|
|right to order her respirator continued. |
|The U.S. Supreme Court refuses to |
|intervene, setting no legal precedent. |
|1990 |
|U.S. Supreme Court rules in a case |
|involving Nancy Beth Cruzan that a person|
|has a "right to die" grounded in the |
|Fourteenth Amendment's guarantee of |
|personal liberty. But the court also |
|called attention to living wills by |
|holding that states can require clear and|
|convincing evidence of a patient's |
|previously expressed wish to die. |
|1990-present |
|Michigan pathologist Jack Kevorkian, |
|known as "Dr. Death," has admitted to |
|assisting in 45 suicides. He has been |
|charged with murder and other crimes but |
|has never been convicted. |
|1997 |
|Supreme Court upholds New York and |
|Washington state laws that criminalize |
|doctor-assisted suicide. |

By Joan Biskupic
Washington Post Staff Writer
Friday, June 27, 1997;
Page A01
A unanimous Supreme Court ruled yesterday that the Constitution does not guarantee Americans a right to commit suicide with the help of a physician, leaving the issue to state legislatures to decide.
The court invoked moral and legal arguments in its ruling, acknowledging that the terminally ill can endure great agony but putting more emphasis on the American tradition of condemning suicide and valuing human life.
The ruling upholds laws in New York and Washington states that make it a crime for doctors to give lethal drugs to dying patients who want to more quickly end their lives.
The decision overturns a pair of lower court decisions that had found a constitutional right to die with the aid of a doctor.
Yet while yesterday's ruling makes clear that states have a right to ban assisted suicide, it also left them with the power to legalize the practice. Oregon already has done so, though that law is currently being challenged in court.
Ruling in the two separate cases, the justices stressed that states have an interest in protecting against potential abuses of society's most vulnerable. They also warned that assisted suicide could undermine the trust of the doctor-patient relationship by blurring the line between healing and harming.
"The state's assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy," Chief Justice William H. Rehnquist wrote as the court took up the question of assisted suicide for the first time.
But in an important concurring opinion, Justice Sandra Day O'Connor left open the possibility that the Supreme Court could someday find that certain individuals who are particularly suffering could have an individual right to assisted suicide.
"Every one of us at some point may be affected by our own or a family member's terminal illness," O'Connor wrote. "There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the state's interest in protecting those who might seek to end life mistakenly or under pressure."
Yesterday's paired rulings were arguably the most-awaited in a term full of unusually emotional disputes. The subject of assisted suicide has captured the nation's attention – and ambivalences – as advancing medicine has prolonged life but not necessarily made its last days less painful. The issue has divided the medical community, legal scholars and those who have the most at stake – the terminally ill. And it was personified through the exploits of retired Michigan pathologist Jack Kevorkian, who claims he has helped more than 45 people kill themselves.
Advocates on both sides of the issue predicted a path ahead laden with more controversy and debate.
"The clarity of these decisions should serve as a benchmark for other courts," said Mark Chopko, general counsel for the U.S. Catholic Conference, one of the organizations that has led the fight against assisted suicide. But he added, "the debate over the legalization of assisted suicide will continue in the political process."
Faye Girsh, executive director of the national Hemlock Society, said that the 25,000-member organization would continue its decade-old efforts to persuade state legislators to pass "responsible, safeguarded" legislation allowing doctors to help terminally ill patients die.
The Supreme Court first addressed the question of a right to die in 1990, when it ruled that a person has a constitutionally protected right to refuse unwanted medical treatment. But that ruling involved the rather passive withdrawal of artificial life supports.
Yesterday's cases posed the more difficult dilemma of whether a physician could actually take an active role in bringing about a patient's death through lethal injection or other means.
In its decisions, the court rejected an expansion of that right, either through the Constitution's equal protection clause or its liberty guarantee.
In the New York dispute, the high court overturned a 2nd U.S. Circuit Court of Appeals ruling that found New York violated the 14th Amendment's equal protection guarantee because it treated groups of people differently: It allowed patients who wanted to disconnect artificial life supports to do so, but barred anyone who wanted to take lethal drugs from similarly hastening death.
Yesterday, the high court rejected that line of reasoning, noting, in Vacco v. Quill that the two practices are significantly different.
"[W]hen a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology," Rehnquist said, "but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication." Rehnquist added that a physician who withdraws life supports may not want the patient to die, rather only want to respect his wishes to avoid futile treatment. A doctor who assists a suicide, by contrast, wants the patient dead.
In the Washington state case, the 9th U.S. Circuit Court of Appeals found a privacy right to assisted suicide in the Constitution's guarantee of due process, likening it to protection for abortion rights and the "right to die" through the refusal of unwanted medical treatment. Yesterday, the justices unanimously rejected the notion of a fundamental "generalized" right to assisted suicide, such as the one the high court established with the right to die granted in the 1990 case of Cruzan v. Missouri Department of Health. Fundamental rights, like the right to marry and have children, are those that are deeply rooted in the nation's history and tradition.
To find an assisted-suicide right, Rehnquist wrote in Washington v. Glucksberg, would mean a reversal of centuries of legal doctrine and practice, as well as the invalidation of most states' laws against it. He said the Anglo-American common law has punished or otherwise disapproved of assisting suicide for more than 700 years.
But five other justices wrote separately on whether an individual might ever have a right to assisted suicide in particular circumstances. O'Connor, who was the fifth and critical vote on Rehnquist's opinion for the court, said it was still open whether "a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death."
Justices Ruth Bader Ginsburg and Stephen G. Breyer, neither of whom signed Rehnquist's opinion but agreed with his ultimate judgment upholding the state bans, joined O'Connor's opinion. Separately, Justices John Paul Stevens and David H. Souter said it was too early to say whether there never could be a right to assisted suicide, given a particular individual's needs and a state's interest. All the justices emphasized the need for legislatures to delve into the issue.
Harvard law professor Laurence H. Tribe, who represented physicians and dying patients in New York challenging its ban, said he was encouraged that five justices did not foreclose the possibility of an individual right to assisted suicide in some extreme cases.
"In all 50 states, people are free to seek fuller protection for a right to die with dignity," Tribe said.
New York Attorney General Dennis C. Vacco focused yesterday on the court's unanimous endorsement of the state's ban. "This ruling will protect Americans from a regime that says it's cheaper to kill patients than to treat them."
In his argument before the court in January, Vacco referred to studies conducted in the Netherlands, the only Western nation allowing limited assisted suicide, pointing up conclusions that some patients are killed without their consent. Physicians in the Netherlands may assist suicides but euthanasia remains illegal. On another foreign front, Australian lawmakers earlier this year struck down the only law in the world more broadly allowing doctor-assisted suicide for the terminally ill.
The result of yesterday's paired decisions was to leave it to the states to work out their own legislation, and as such the court resisted the path it took in its landmark abortion ruling in 1973. As states were developing regulations on abortion in the 1970s, the court usurped their actions by finding a fundamental constitutional right to end a pregnancy. In yesterday's cases, the justices stressed their deference to the democratic process on assisted suicide.
'The State Has an Interest in Preventing Suicide . . . and Treating Its Causes'
Friday, June 27, 1997; Page A18

Following are excerpts from the Supreme Court decision in Washington v. Glucksberg allowing states to ban doctor-assisted suicides. The decision was written by Chief Justice Willam H. Rehnquist:
The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not.
It has always been a crime to assist a suicide in the State of Washington. . . . [Petitioners are] doctors [who] occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted suicide ban.
The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide. . . . "
In almost every State – indeed, in almost every western democracy – it is a crime to assist a suicide. The States' assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. . . .
More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. . . .
For the most part, the early American colonies adopted the common law approach. . . . Over time, however, the American colonies abolished . . . harsh common law penalties . . . [which] did not represent an acceptance of suicide. . . . [C]ourts continued to condemn it as a grave public wrong. . . .
That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. . . . And the prohibitions against assisting suicide never contained exceptions for those who were near death. . . .
Though deeply rooted, the States' assisted suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology Americans today are . . . sharply focused on how best to protect dignity and independence at the end of life. . . . Many States, for example, now permit "living wills," surrogate health care decisionmaking, and the withdrawal or refusal of life sustaining medical treatment. At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide. . . .
In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physician assisted suicide. Washington then added a provision to the Natural Death Act expressly excluding physician assisted suicide. . . .
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. . . . The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. . . .
We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open ended. . . . "
Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition. . . . " Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest. . . .
Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," or, in other words, "[i]s there a right to die?" Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," and describe the asserted liberty as "the right to choose a humane, dignified death," and "the liberty to shape death. . . . "
The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so. . . .
[A]s discussed above, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. . . .
Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive due process line of cases, if not with this Nation's history and practice. . . . [R]espondents read our jurisprudence in this area as reflecting a general tradition of "self sovereignty," and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy." According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end of life decisions free of undue government interference." The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. . . .
The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.
The Constitution also requires, however, that Washington's assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here. . . . First, Washington has an "unqualified interest in the preservation of human life. . . . "
The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. . . . Research indicates, however, that many people who request physician assisted suicide withdraw that request if their depression and pain are treated. . . .
Next, the State has an interest in protecting vulnerable groups – including the poor, the elderly, and disabled persons – from abuse, neglect, and mistakes. . . . If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs. . . .
The State's assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. . . .
Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. . . .
In another case, Vacco v. Quill, upholding New York's ban on physician assisted suicide, Rehnquist wrote yesterday for the majority:
By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.
New York's reasons for recognizing and acting on this distinction – including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia – are . . . valid and important public interests. [They] easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.
Following are excerpts from a concurring opinion by Supreme Court Justice Sandra Day O'Connor in both decisions:
Iagree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. . . . The parties . . . agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. . . .
[T]he State's interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide. . . . There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. . . .
'Death With Dignity' Measure May Make Oregon National Battleground
By William Claiborne
Washington Post Staff Writer
Friday, June 27, 1997; Page A19

With the U.S. Supreme Court ruling that physician-assisted suicide is not a constitutional right but should be decided by the states, Oregon is bracing itself to become a national battleground for the highly emotional issue, with a voter referendum set for November.
It is a battle that, in the words of a leader in the fight against allowing doctors to help terminally ill patients kill themselves, "touches the soul of the nation."
The campaign over another "Death With Dignity" referendum here involves such powerful forces as the Roman Catholic Church, the American Medical Association and the national antiabortion movement in a state with traditionally liberal leanings and the second-lowest church enrollment in the country.
Advocates and opponents of the measure say it could be the most expensive referendum in the state's history, far surpassing the $2 million that the opposing sides spent on the previous assisted-suicide referendum, which was approved in 1994, and possibly reaching $10 million.
In a sense, the November vote will be about not only the right to die on one's own terms, but also about the right to vote for any of the escalating number of initiatives appearing on the Oregon ballot with the expectation that the will of the majority will be carried out if they pass. Some legislators say the ballot initiative process should be amended to make it more difficult to qualify measures for a vote and, thereby, reduce the number of referenda.
With the 1994 referendum, Oregon became the only state in the nation to make it legal for doctors to help terminally ill patients die by prescribing self-administered lethal overdoses of medication such as barbiturates. The initiative was passed by 51 percent of the voters at least partly because it explicitly precludes a physician or any other person from ending a patient's life by lethal injection, thereby removing the taint of mercy killing or euthanasia that helped defeat broader initiatives in Washington state in 1991 and California in 1992.
Shortly after its adoption, a federal judge in Eugene barred the Oregon law, called Measure 16, from taking effect. But in February of this year the U.S. Court of Appeals in San Francisco reversed that injunction, ruling that the law's opponents were in no personal danger of injury and therefore lacked standing to file a lawsuit. The plaintiffs appealed to the U.S. Supreme Court, which has not yet announced whether it will hear the case.
Meanwhile, the Republican-controlled state legislature, citing what it said was newly discovered scientific data on the unreliability of lethal overdoses of drugs, earlier this month voted to put Measure 16 back on the ballot in November to remedy what it called "defective" provisions. It was the first time in more than 90 years that the legislature sent an approved referendum back to the people, and the move was widely viewed by right-to-die advocates as a thinly veiled attempt by conservative legislators to get the measure repealed.
Apart from reviving the debate over physician-assisted suicides, the legislators' action appears to have fueled deep voter resentment, which supporters of the practice say they will exploit to win an even larger majority for the measure this time. A recent poll showed that 81 percent of those questioned felt the legislature was wrong to make Oregonians vote on the same ballot measure a second time.
"Death with dignity may not be the central issue this time," said Barbara Combs Lee, a nurse and lawyer who heads the advocacy group Compassion in Dying. "The voters have already expressed their will on that. The issue may be how vulnerable citizens' initiatives are to a legislature that thinks it has a special moral authority."
However, Robert J. Castagna, executive director of the Oregon Catholic Conference, said that although the issue of "constitutionally suspect" ballot initiatives and the proliferation of hastily drafted measures is important, the real issue in Measure 16 is more fundamental.
"The killing of one person by another person, purportedly for humane reasons, does touch the very essence of why we have a government," he said. "It is fundamental in our law and social relationships."
He said the legislature voted to send the right-to-die question back to the voters only after the Oregonian newspaper published an interview with a physician in the Netherlands who concluded from a study that 25 percent of lethal overdoses of medications administered to patients there failed to cause death and frequently left the patient in a vegetative state.
"So we have a situation where an essentially flawed ballot initiative was adopted by the people without them having the benefit of this information. The conclusion we reached is that pills don't work," Castagna said. He said a necessary component of doctor-assisted suicides utilizing self-administered lethal overdoses of sleeping pills is the use of a plastic bag over the patient's head to cause asphyxiation, which he said could require the participation by a person other than the patient.
But Elven O. Sinnard, the chief petitioner for Measure 16, described in an interview how he helped his terminally ill wife, then 68, commit suicide eight years ago without him actively participating in the final stages of her death.
Sinnard, 80, a retired greeting card franchise owner, said his wife, Sara, had suffered from a debilitating heart condition when she decided to end her life by taking an overdose of tranquilizers and sleeping pills she had hoarded from prescriptions. "She said, `I'm alive but I'm not living,' " Sinnard recalled.
After obtaining instructions from the Hemlock Society, a suicide advocacy group, Sinnard said he put the contents of sleeping capsules in a glass of water, gave it to his wife and then left the house "when she told me to go to the office while she put the bag over her head." Sinnard said that when he returned, "she was peaceful."
Sinnard said police detectives who questioned him told him that if they could prove he played an active part in putting the plastic bag over his wife's head, they would arrest him on a homicide charge.
"That's when it struck me that the law was wrong," he said. "What I did was an act of love, not a criminal act. I made up my mind to do something about that."
Eli Stutsman, a lawyer who has led the legal battle for the measure, said that hoarding sleeping pills or painkilling drugs, sometimes with the tacit knowledge of physicians, is far more common than opponents of physician-assisted suicide will admit. "So we drafted Measure 16 around that," he said.
The measure allows doctors to prescribe lethal doses of medications such as barbiturates for mentally competent patients diagnosed as having six months or less to live and whose terminal condition has been confirmed by a consulting physician. The patient must initiate the request, have no documented evidence of depression and agree to a two-week wait between his or her verbal request and the signing of a lengthy consent form that allows for changes of mind and for doctors who object to the process to opt out.
William Toffler, who heads the advocacy group Physicians for Compassionate Care, said it was a myth that it is already common for terminally ill patients to commit suicide with hoarded or over-prescribed medicines. "In 20 years as a physician, I can't recall a single case like that, unless it was a depressed patient who committed suicide," he said.
"Killing one another is not compassionate, it's abandonment. Why are we judging these lives as worthless when in fact their lives aren't worthless? They have the right to live."

Court's Decision on Help With Suicide Leaves Doctors in a Gray Zone
By Amy Goldstein
Washington Post Staff Writer
Friday, June 27, 1997; Page A18

The Supreme Court's decision upholding laws against assisted suicide leaves doctors in a murky zone. They may not legally help people end their lives, but they must continue to make delicate personal choices when terminally ill patients tell them they want to die.
How doctors respond – and how much help they are willing to give – has been dictated until now by a blend of law, professional norms and their own consciences. The court's ruling, while reinforcing the right of lawmakers to ban assisted suicides, will do little to unify the decisions that doctors make in the privacy of their offices, according to physicians and activists in Washington and elsewhere.
"We know doctors have helped people die, probably since the beginning of the doctor-patient relationship. And that is going to continue unregulated, unmonitored," said Faye Girsh, executive director of Hemlock Society U.S.A., the nation's largest group that advocates patients' right to die.
What the high court's ruling may do, people on both sides of the debate predict, is intensify the spotlight that already has begun to focus on the quality of death. "The interest in assisted suicide has been a wake-up call to physicians," said Thomas Reardon, chairman of the board of trustees of the American Medical Association, which opposes assisted suicide. "If we meet our patients' needs, we don't think the interest in assisted suicide will be there."
But other physicians predict that, as the U.S. population ages, more patients will want doctors' help in ending their lives, yesterday's ruling notwithstanding. A century ago, the average American died at age 46, typically following an accident or a brief, intense illness. Now the average life span is 77, and most people die of chronic ailments developed months or years before their deaths.
The lengthening of life and the changing nature of death have created new ethical and medical quandaries. Physicians who treat terminally ill patients are left largely to draw their own distinctions – to heed the law or not, to deter patients from suicide or not, to urge patients to prolong treatment or encourage them to decide when enough is enough.
In that climate of ambiguity, many doctors heed the distinction, reinforced by the court yesterday, between passively withdrawing treatment vs. actively producing death. "Everyone has the right to say, `Keep your hands off me,' " said geriatrician Thomas Finucane, chairman of the ethics committee at Johns Hopkins Bayview Medical Center in Baltimore. Patients also have a right to pain medication, even if it accelerates their death, Finucane said.
But sometimes the boundaries between passive and active help are blurry.
Peter Hawley, medical director of the Whitman Walker Clinic, the Washington area's largest provider of AIDS services, said even though he would never help a patient commit suicide, he has prescribed pain medication to patients who have told him they want to end their lives. "Ultimately, you can try to never prescribe enough at any one time to cause them to overdose," Hawley said. "But you don't know what someone else is prescribing them, and people can get [pills] from friends."
Reuben Copperman, a retired internist who answers the hot line for the local Hemlock Society, said he will instruct callers on what kind of drugs are toxic. "I give advice, but I don't feed them the overdose," he said.
Other doctors go further. One Washington physician with a large AIDS practice said he has helped four terminally ill patients die by administering Valium on top of a morphine drip. "I don't care what the court says," said the physician, who requested anonymity. "If that is what my patient wants and what the family wants and what I want, we are going to do it."
Joanne Lynn, director of George Washington University's Center to Improve Care of the Dying, said the nation's health care system would have been ill-prepared if the court had legalized assisted suicide. Physicians have not reached a consensus, for example, on the definitions of when patients are terminally ill and when they are mentally competent to choose their own deaths.
But Michael W. Shilby of Washington feels thwarted by the court. At 41, Shilby has AIDS and has told his doctor he wants to commit suicide when the quality of his life becomes unbearable. The court's ruling, he said, "is another hurdle to jump over in pursuit of what I want – to be eased off the planet with the least pain possible."
Country's Doctors Remain Divided Over Physician-Assisted Suicide
By Susan Okie
Washington Post Staff Writer
Wednesday, January 8, 1997; Page A15

America's doctors remain deeply divided on the issue of whether it should become legal for a physician to help a terminally ill patient commit suicide by prescribing lethal drugs.
Some, like Timothy Quill, a doctor who is one of the plaintiffs in an assisted suicide case being argued today before the Supreme Court, believe that providing a means of suicide can sometimes be part of providing good medical care. Others contend that helping patients to kill themselves fundamentally conflicts with a doctor's duty to do no harm.
"I think there's very diverse opinion within the profession, just like there is within the society at large," said Quill, a professor of medicine and psychiatry at the University of Rochester Medical School. "I do think most physicians are welcoming the conversation about these issues, because at least those who work with seriously ill patients are facing them on a regular basis."
At the heart of the debate over physician-assisted suicide, according to many experts, is the failure of the medical system, and of society at large, to meet a larger and more complex challenge: caring for the physical and emotional needs of dying patients.
"Most of the people who favor an option of legalized assisted suicide are fearful of ending up in the hospital with no choices, and suffering," said Christine K. Cassel of Mt. Sinai School of Medicine, who is president of the American College of Physicians. "To my mind, that we absolutely have to fix."
The Supreme Court will hear oral arguments today on two cases, from New York and Washington, in which federal appeals courts ruled that state laws banning physician-assisted suicide were unconstitutional. At issue is whether Americans have a constitutional right to have a doctor help them die.
Some recent surveys have suggested that as many as 60 percent of American doctors now support legalization of physician-assisted suicide. But many physicians are "astounded" that the Supreme Court may soon conclude that it is a patient's constitutional right, said William A. Knaus, chairman of the department of health evaluation sciences at the University of Virginia School of Medicine.
"That the Supreme Court is even considering it is breathtaking to many of us," Knaus said. If the court upholds the lower courts' decisions, he added, "the next day, every person in this country could walk into a doctor's office or health care facility and demand suicide. What would we do?"
If the Supreme Court lets the lower court decisions stand, doctors would be legally allowed to prescribe lethal drugs to a terminally ill, mentally competent patient who requested them. Euthanasia – the administration of a lethal drug by a doctor – would still be illegal. No doctor would be required to assist a patient to commit suicide. Only one state, Oregon, has approved a law legalizing physician-assisted suicide, and court decisions have so far prevented it from taking effect.
The American Medical Association and some 45 other medical organizations have filed briefs in the Supreme Court cases opposing legalization of the practice.
But some medical groups support the practice, including the country's largest organization for medical students, the 30,000-member American Medical Student Association, which filed a brief in favor of legalization. "Students are simply being more progressive, I think, in reflecting the general societal understanding that there needs to be better training for physicians and more rights for patients," said AMSA President Andrew Nowalk.
Cassel said that among individual doctors, there has been a significant shift of opinion toward the view that assisting a dying patient with suicide may, in some cases, be ethical. A recent survey of practicing doctors in the state of Washington found that, during one year, 16 percent received a request from a patient for assisted suicide and about 4 percent complied.
"People understand that these things do happen," Cassel said. "Physicians do, very rarely I suspect . . . help their patients die. And that's an individual decision made by an individual doctor and patient."
Proponents of legalizing assisted suicide argue that making it legal would bring the practice out into the open so that it could be regulated to prevent abuses.
Those opposed to legalizing assisted suicide cite concerns that, in the current era of managed care and limited medical resources, suicide or euthanasia may be forced on poor, elderly or disabled patients. They also argue that the debate is diverting attention from the urgent need to improve the way the American medical system cares for terminally ill patients.
"We are talking about suicide as a society mainly because we have done so little to serve the dying – and thus, when we face death, we see so few supportive options," said Joanne Lynn, director of George Washington University's Center to Improve Care of the Dying.
At a news conference yesterday sponsored by the American Geriatrics Society, Lynn and other speakers called on health care organizations to develop criteria for assessing the care of dying patients, including such areas as pain control and treatment of depression, and to make hospitals accountable for their performance by considering such criteria when making decisions about accreditation and payment by federal insurance programs such as Medicare.
"What we are doing is to substitute a constitutional right to patient-assisted suicide for good care of the dying," said Kathleen M. Foley, co-chief of Pain and Palliative Care Services at New York's Memorial Sloan-Kettering Cancer Center.
Quill, however, contended that the two subjects are inseparable. "This question [of physician-assisted suicide] only makes sense in the context of good care for the dying," he said. "When a person starts talking about wanting to die, the challenge is trying to figure out why that's coming up right now and is there anything that we can help with."
He said very few terminally ill patients want physician-assisted suicide, but that most want to know it's available if they ever feel they need it. "I think a considerable number of people . . . would seek some reassurance from their doctor that, `Gee, if things get really horrible, will you be there for me,' " he said. "That's the fundamental commitment that I believe we should be making."
Justices Skeptical of Assisted Suicide
By Joan Biskupic
Washington Post Staff Writer
Thursday, January 9, 1997; Page A01

Taking on one of the most important constitutional questions of the decade, the Supreme Court yesterday expressed grave concerns over the implications of declaring that dying patients have a right to a doctor's help in committing suicide.
During the solemn two-hour hearing, the justices pursued not just legal questions, but evolving societal attitudes, the role of modern medicine, their own personal experiences and moral considerations that thread through the emotional issue. In the end, it appeared a majority would not vote to establish a right to physician-assisted suicide.
As hundreds of demonstrators gathered on the white marble plaza outside the courthouse, many of them in wheelchairs and carrying signs that read "Not Dead Yet," the justices took up a pair of cases that could ultimately alter the way the legal system recognizes the right to die in America.
Although the issue had been simmering for some time, it burst onto the national agenda when two appeals courts, one from each coast, upheld a right to doctor-assisted suicide. Officials from the two states involved in those rulings, New York and Washington, have brought the twin cases to the Supreme Court, hoping for a ruling that would overturn the lower courts and uphold a state's right to ban assisted suicide.
In a time of advancing medicine and an aging population, the issue has captured the public's attention in a way that few legal questions do, dividing the medical community, legal scholars and the terminally ill, who appear to have the most at stake. Scores of people, some of whom had camped out in frigid temperatures in hopes of claiming one of the 50 seats available to the public, were turned away before the arguments began.
"Most of us have parents or other loved ones, and we've lived through a dying experience that forces us to think about these things," Justice Ruth Bader Ginsburg said at one point.
The Supreme Court first addressed the question of a right to die in 1990, when in the case of a Missouri woman thrust into a vegetative state by a car accident, the court ruled that a person has a constitutionally protected right to refuse unwanted medical treatment. But that ruling involved the rather passive withdrawal of artificial life supports in a case brought by the parents, who wanted to disconnect their daughter's feeding tube.
Yesterday's question poses a more difficult dilemma and puts the physician in the active role of bringing on death by providing the lethal injection or other means of ending a patient's life. If the Supreme Court were to uphold lower court rulings finding a constitutional right to physician-assisted suicide, states would be able to regulate the practice but not ban it, as a majority now do.
A decision in the paired cases will be handed down before the court recesses this summer.
This is not an issue of simply "choosing to die," Chief Justice William H. Rehnquist noted. "It's that they want assistance from a physician to do it, that's what we're arguing about."
Justice David H. Souter, one of the justices more inclined to protect issues of personal privacy, suggested that it might be too soon for the high court to assess the risks of making assisted suicide legal or to weigh patients' interests in being free of pain and suffering. "It may be impossible for a court to assess that sensibly for a long time until there is more experience out in the world," he said.
The state of Oregon has approved a law legalizing physician-assisted suicide, but that law is tied up in the courts.
Those who advocate a right to physician-assisted suicide, including some doctors, say that cancer patients, AIDS patients and others who are terminally ill should not have to suffer through a painful death. An individual's right to privacy, they say, should guarantee the choice to speed death with drugs or other methods prescribed by a doctor. In other words, people should have a choice in their own death.
Those who oppose this view, including the Clinton administration and the Washington and New York state officials arguing the case, voice an overriding interest in protecting life and say assisted suicide would be abused by unscrupulous doctors and greedy relatives. They say it could force depressed or misguided patients into an irreversible choice.
The arguments yesterday had nothing to do with retired Michigan pathologist Jack Kevorkian, who has assisted in about 50 reported suicides. But the specter of his dubious work has added to concerns of abuse.
Virtually all of the justices expressed some skepticism over the idea of establishing a right to physician-assisted suicide, and their doubts covered all variety of issues. Some asserted a legal argument that the high court's prior rulings did not lead logically to a right to assisted suicide. Some asked the advocates of this practice why only the terminally ill should have such a right. And, they asked, how would legislatures and lower courts work out the breadth of that right and under what circumstances it would be permitted? Rehnquist said the court could be headed toward legal and legislative turmoil not unlike that surrounding abortion.
"So you're going to have those factions fighting it out in every session of the legislature," he said. Justice Sandra Day O'Connor added, with concern, that "It would result in a flow of cases through the court system for heaven knows how long."
Last year, lower appeals courts struck down state laws in Washington and New York that banned assisted suicide, though they reached their decisions by drawing on different legal arguments. The 2nd U.S. Court of Appeals ruled that because New York allows people to sign waivers refusing artificial life support, it violates the 14th Amendment's equal protection guarantee to people who want to speed death through a prescription for fatal drugs. In the Washington case, the 9th U.S. Circuit Court of Appeals found a right to assisted suicide in the liberty protection of the 14th Amendment, similar to the privacy right the high court found for abortion.
Appealing that ruling, William L. Williams, senior assistant attorney general of Washington, opened the arguments by asserting that the wishes of Washington voters who put a ban on assisted suicide in place should not be usurped by the courts.
He justified the ban by saying it would protect life and prevent abuse by doctors or family members who might exert undue influence over dying people.
"Precisely because physicians have the capacity to injure or perhaps cause the death of their patients," Williams said, "the state has an important interest in maintaining a clear line between physicians as healers and curers, and physicians as instruments of death of their patients."
Kathryn L. Tucker, representing those challenging the Washington state ban, told the court that for some patients the only option for a "humane death" is with a doctor's help.
She argued that the right to die arises from a constitutional protection of "bodily integrity," personal autonomy and a right to be free of unwanted pain and suffering.
"This . . . has to do with one's own body, one's own medical care, and suffering in the face of death. And that brings it within [a realm] . . . this court has indicated the government may not enter," she said referring to past privacy-related decisions.
But Ginsburg, for one, was skeptical that the 1990 ruling could be extended to forbid bans on assisted suicide. Ginsburg also questioned why, if such a right to assisted suicide exists, it should cover only the terminally ill, a "narrow class."
Tucker said the constitutional right "only ripens or matures" when a patient is near death. She also rejected the suggestion that the right should cover someone who is terminally ill but who cannot administer her own death-inducing drugs.
Justice Antonin Scalia, the justice who has most vocally expressed his distaste for the idea of assisted suicide, scoffed at the notion that it could be left to the government to decide what illnesses are worse than others or to weigh the relative severity of terminal and emotional pain.
"Why can't a society simply determine as a matter of public morality that it is wrong to kill yourself just as it is wrong to kill someone else?" he asked. "What in the Constitution prevents that moral judgment from being made in this society's laws?"
Representing New York, Attorney General Dennis C. Vacco said the lower court improperly failed to differentiate between patients who withdraw from life support systems and terminally ill people seeking physician-assisted suicide. The latter group, he said, is claiming "some right to have a third party, in this instance physicians, help kill themselves."
Laurence H. Tribe, who represented the challengers to the New York law, countered that when it comes to the rights of the terminally ill states must not distinguish between unplugging a respirator or giving lethal medication.
He said individuals have a personal liberty interest "when facing imminent and inevitable death, not to be forced by the government to endure a degree of pain and suffering that one can relieve only by being completely unconscious."
Perhaps reflecting the difficulty of his argument and the intensity of the day, Harvard law professor Tribe, a longtime observer of the court and its law, mixed up the two female justices, mistakenly referring to Ginsburg as O'Connor. He quickly apologized.
Justice Stephen G. Breyer said he was worried that reports say "that only between 1 percent or 2 percent of possibly all people need die in pain. But 25 percent or more do die in pain. . . ."
Solicitor General Walter E. Dellinger, who represented the Clinton administration in support of the states, responded, "The fact that 25 percent unnecessarily die in pain shows the task awaiting the medical profession, but it's not a task that calls for the cheap and easy expedient of lethal medication."
DEATH AND DYING ISSUES by Bishop James McHugh
The Second Vatican Council emphasized that the dignity of the human person and the sanctity of human life are fundamental principles in dealing with many contemporary moral problems. "The Pastoral Constitution on the Church in the Modern World," in its second chapter, "The Dignity of the Human Person," provides something of a backdrop for some of the issues I will discuss. Allow me a short quotation:
THE MYSTERY OF DEATH
"It is in the face of death that the riddle of human existence becomes most acute. Not only is man tormented by pain and by the advancing deterioration of his body, but even more so by a dread of perpetual extinction. He rightly follows the intuition of his heart when he abhors and repudiates the absolute ruin and total disappearance of his own person.
Man rebels against death because he bears in himself an eternal seed which cannot be reduced to sheer matter. All the endeavors of technology, though useful in the extreme, cannot calm his anxiety. For a prolongation of biological life is unable to satisfy that desire for a higher life which is inescapably lodged in his breast.
Although the mystery of death utterly beggars the imagination, the Church has been taught by divine revelation, and herself firmly teaches, that man has been created by God for a blissful purpose beyond the reach of earthly misery. In addition, that bodily death from which man would have been immune had he not sinned will be vanquished, according to the Christian faith, when man who was ruined by his own doing is restored to wholeness by an almighty and merciful Savior.
For God has called man and still calls him so that with his entire being he might be joined to Him in an endless sharing of a divine life beyond all corruption. Christ won this victory when He rose to life, since by His death He freed man from death. Hence to every thoughtful man a solidly established faith provides the answer to his anxiety about what the future holds for him. At the same time faith gives him the power to be united in Christ with his loved ones who have already been snatched away by death. Faith arouses the hope that they have found true life with God."
The final paragraph of this same chapter is especially poignant:
"Such is the mystery of man, and it is a great one, as seen by believers in the light of Christian revelation. Through Christ and in Christ, the riddles of sorrow and death grow meaningful. Apart from His gospel, they overwhelm us. Christ has risen, destroying death by His death. He has lavished life upon us so that, as sons in the Son, we can cry out in the Spirit: Abba, Father!"
The topic before us is death and dying, a topic with many dimensions and one that receives increasing attention in our society. Among the reasons for this increased attention are the following: 1. Scientific progress that has led or promises to lead to the cure of diseases that formerly resulted in death, and expectation that such progress will continue; 2. The ability of medicine to develop new technologies to supplement or supplant bodily systems that are necessary to sustain life (heart by-pass, dialysis, transplantation). 3. New technologies that provide ready access, worldwide, to the latest scientific data regarding specific diseases. 4. At least in the developed world, better nutrition, preventive health care and knowledge regarding good health habits that have increased longevity and decreased mortality rates.
At the same time, paradoxically, many people die prematurely or seemingly inexplicably because of:
--personal life style or behavior that cancels out the ability to control or overcome disease; e.g., tobacco, drugs, alcohol;
--persistence of as yet unsolved genetic mysteries that give some people a relatively short life span;
--emergence of new deadly diseases that quickly reach epidemic proportions;
--the absence for too many people in our society of access to basic health care;
--some diseases or pathological states on which at present we do not have sufficient research to diagnose or treat.
In the light of these factors, there have been efforts in the legislatures that attempt to deal with the unresolved issues--often referred to as death-with-dignity laws--and in the courts to resolve the rights and duties issues. The legal and judicial debates receive considerable media attention, thereby heightening public awareness but not necessarily understanding.
In any case, physicians, ethicians and many other concerned persons have concentrated their attention on: 1. 1) the precise definition of death; 2. 2) the criteria for determining when efforts to prolong life may legitimately be withheld or withdrawn; 3. 3) the rights of patients and the corresponding rights and duties of those in the health care professions.
The physician's interest springs from his concern for the patient and the patient's family. Family and friends are concerned with keeping their trusts of love, companionship or friendship with the patient. The moralist and the private citizen are concerned about the bases on which decisions are made, who takes responsibility for them, and how, in a comfort-oriented society, people will be able to understand the meaning of death and the final events in a dying person's life.
In some cases, attempts to achieve a contemporary understanding of death and dying are but a subterfuge for efforts to permit legal euthanasia or mercy killing. Behind much of the public discussion is the promotion of the "quality of life" ethic, according to which the lives of certain persons are considered of inferior quality because of some defect or disadvantage, because of the burden that such persons place on others, or because it is deemed too costly for society to provide care and sustenance to keep them alive.
For the purposes of our discussion, I will limit myself to the following issues: 1. 1. The emergence of new and determined efforts to shape a public morality that approves active euthanasia. 2. 2. The specific issue of withholding or withdrawing artificially provided nutrition and hydration from non-dying patients. 3. 3. The role of law and its inherent limits.
In approaching these issues, I work from a set of moral principles shaped by the teaching of the Catholic Church. I also recognize that on many issues there is disagreement and debate among Catholics. I propose, however, that these principles would be affirmed by all, but perhaps applied differently to specific cases. It is the responsibility of all of us to continue the discussion in candor and charity, always pursuing a struggle toward consensus, a strain toward consistency with our heritage and with respect for the unique teaching role and responsibility of the pope and bishops in the Roman Catholic community.
First then, I propose the following principles: 1. 1. Human life is a precious gift from God, a basic good and the foundation of other goods. 2. 2. The human person enjoys a specific relationship with God who has created and redeemed each of us and calls us to eternal union with Him. 3. 3 . We have stewardship over our lives, not absolute dominion, and are thus subject to God's laws regarding human life. 4. 4. Euthanasia and suicide constitute an unjustifiable destruction of human life and are not morally permissible. Therefore we may not intend to terminate an innocent person's life by deliberate act or omission, even if he or she is incapacitated. 5. 5. The quality of a person' s life is not the decisive factor in determining the use or non-use of medical or technological means to sustain life. 6. 6. In deciding on the use of various means of sustaining life, we have customarily referred to a principle enunciated by Pius XII, that is, we are held to use ordinary means to sustain life, but we are not held to use extraordinary means in every case. More recently, the Holy See's "Declaration on Euthanasia" has refined the principle somewhat, concluding that medical therapy or technology need not be used if it is excessively burdensome or provides no benefit to the patient. 7. 7. Society has a responsibility to protect innocent human life from conception to natural death by its laws and social policies.
I now move to the specific issues enumerated above.
1. The emergence of new and determined efforts to shape a public morality that approves active euthanasia.
By active euthanasia I mean direct and deliberate attempts to terminate a person's life, including assisting the patient to take his or her own life. The "Declaration on Euthanasia" of the Sacred Congregation for the Doctrine of the Faith (1980) defines euthanasia as
"an action or omission which of itself or by intention causes death, in order that all suffering in this way may be eliminated. Euthanasia 's terms of reference, therefore, are to be found in the intention of the will and in the methods used."
In 1970, scientist Dael Wolfle posed the following questions in an article in "Science" Magazine:
"Is society ready to analyze death and the prolongation of life in terms of cost-benefit analysis, or to consider shifting the use of expensive facilities from the hopelessly ill to those whose future holds more promise? What about the customary reluctance to administer powerful but addictive drugs until "near end"? What do we think of the "senseless prolongation" of life? Birth is no longer blindly accepted, but increasingly is planned and timed. Does this development and the growing acceptance of abortion indicate a readiness to consider euthanasia? The taboo against the discussion of such questions will have to relax, and seems already to be doing so. A society increasingly concerned about the quality of life cannot omit the final chapter from its concern" ["Science," June 19, 1970].
In the short span of 20 years we have gone from stating the questions to advocacy for and attempts to socially justify, approve and perhaps mandate euthanasia. I cite three incidents within the last two years that show the quickening of the euthanasia march.
a) "lt's Over, Debbie." This was an unsigned opinion piece that appeared in the "Journal of the American Medical Association" on January 8, 1988. Supposedly written by a physician, it describes his call to a patient who was dying of ovarian cancer. He judged her suffering to be too intense and he decided to inject a lethal dose of morphine. Within ten minutes the patient died. The article sparked sharp debate in the health care community and beyond. Clearly, the emphasis on compassion and the seemingly uselessness of treatment or continued care as described in the article led many people to sympathize with, if not approve, the action of the doctor.
b) "Dr. Kevorkian's suicide machine." Dr. Kevorkian, a Michigan physician and longtime advocate of euthanasia, used a machine he invented on a 54-year-old woman from Oregon who was a victim of Alzheimer's disease. Though her memory was slipping, at the time she knew what she was doing and could carry on a conversation. Dr. Kevorkian served as doctor, judge and executioner. "My ultimate aim is to make euthanasia a positive experience," explained the doctor. "I'm trying to knock the medical profession into accepting its responsibilities, and those responsibilities include assisting their patients with death. " The doctor's action has certainly provoked a discussion about suicide, euthanasia and the ethics of medicine. The law enforcement authorities in Michigan have prohibited any further use of the machine. Nonetheless, though many doctors opposed his actions, others have come out in favor of his intent.
The Hemlock Society, which promotes euthanasia, makes no secret of its support for the Michigan doctor's approach. Yet we find new evidence that the issues are far from clear. For instance, doctors say that Alzheimer's disease is difficult to diagnose, has various paths of progression, and generally does not involve a great suffering to the patient until perhaps the final stage. If the suicide machine is appropriate for people who may have Alzheimer' s, what about people with cancer, heart disease, high blood pressure and proneness to strokes? Should they be counseled and enabled to end their lives?
c) "New York doctor assists patient in suicide." In the "New England Journal of Medicine" (February 28, 1991), Dr. Timothy Quill described how he agonized over the treatment of a patient who was suffering from cancer but had a one in four chance of survival. Ultimately, after much treatment and counseling, which included a discussion of suicide, Dr. Quill acceded to the patient's request for barbiturates. Knowing that the use of barbiturates is "an essential ingredient in a Hemlock Society suicide," Dr. Quill made sure his patient knew how much was necessary for sleep and how much for suicide. The patient successfully took the suicide dosage and died. Dr. Quill justifies his action in the "New England Journal of Medicine" article. It will no doubt prompt considerable response.
I believe these three cases indicate that we have already begun the downhill run toward legally approved assisted suicide and active euthanasia.
2. THE WITHHOLDING OR WITHDRAWING OF ARTIFICIALLY ASSISTED NUTRITION AND HYDRATION FROM NON-DYING PATIENTS.
In recent years there has been a series of these cases (e.g., Brophy, Jobes), many of which have gone to the courts and one-- Nancy Cruzan--to the U.S. Supreme Court. A new case is now under consideration in Missouri in which the father of a similar young woman, though apparently not as disabled as Nancy Cruzan, seeks to move his daughter to Minnesota, where he believes it will be easier to remove her feeding apparatus and bring about her death.
In terms of the moral issue there are various approaches. I offer my own approach and the reasons for it.
First of all, patients in a permanent coma or persistent vegetative state are not "brain dead," nor are they in the dying process. PVS is a description of the patient's condition. Such patients have suffered some type of accident to the brain and have become comatose. A portion of their brain does not function, and thus they are unable to speak, to move about, to give evidence of awareness of their surroundings. Scientists believe they are not suffering because they cannot feel pain. They breathe on their own and experience periods of sleep and wakefulness. They are unable to take food and water in a normal fashion, so they are given nourishment and fluids by some type of feeding process, usually a tube inserted directly into the stomach. Diagnosis establishing that the patient is in PVS can take from three months to a year. The patient is not deteriorating day-by-day, but needs daily nursing care. At the present time there is no known therapy t~ restore brain function. There have been cases of patients judged to be permanently comatose or in PVS who have awakened and begun to speak and function. On the other hand, as more is learned about coma and brain function or its absence, and new tools of diagnosis are invented, it may become clear why some patients will never regain consciousness.
The problem is that at the present time we know that a PVS patient is living, is brain-damaged and disabled, but given nourishment and liquids and nursing care, such a patient may live for many years. If the nourishment is taken away, the patient will die in about a week' s time. In effect, death will come from starvation.
This is considerably different from the patient who is unconscious but actually dying of cancer, heart failure, AIDS complications, multiple injuries or some other fatal disease. Artificially provided nutrition and hydration in these cases may be useless to sustain life or too burdensome to provide. This distinction, between patients who are actually dying and those in PVS, is not generally recognized in the news reports. The decision of the U.S. Supreme Court seems to resolve the legal question for people who have clearly stated their will beforehand, but the moral question is far from resolved.
Among Catholics, the issue seems to come down to two different approaches, and two different conclusions. The first approach sees the PVS patient as incapable of thought or ability to respond to his or her environment and considers this absence of cognition and affection as an inability to exercise one's spiritual faculties and possibly a danger to one' s overall spiritual good, that is, union with God. Furthermore, since the brain damage seems to prevent normal swallowing, this approach holds that the person is in fact already dying from the inability to swallow. A number of Catholics who hold this position agreed with withdrawing nutrition and hydration from Nancy Cruzan and other similar patients.
I find this first approach unsatisfactory because it places too much emphasis on the patient' s inability to think or respond. There does not seem to be conclusive scientific evidence that the patient cannot think or know what goes on about him or her. In fact, diagnosis of the precise damage to the brain is difficult to achieve. Scientists strongly emphasize the absence of research in regard to brain disease or malfunction. Much of what the doctors conclude is inferential, and in most cases, the only way to arrive at certainty is by autopsy. Furthermore, almost daily there are new scientific discoveries regarding the function of the brain that call for extreme caution in making absolute judgments about PVS patients. Finally, by justifying withdrawal of nutrition and hydration, and thereby justifying ending a patient's life, we tend to overemphasize the presence or absence of brain activity as the principal measure of humanness or personhood. Our ability to measure brain activity is still rudimentary (it requires technology and great skill) and tenuous (note the apparent wake-ups from prolonged coma). In any case, absence of reasoning does not make one a non-person, a shell, a vegetable or a machine--all words that have been used in regard to PVS patients--nor does it justify deliberately causing death.
A second reason for my rejecting this approach is that the scientific evidence does not fully support the argument regarding inability to swallow. At least in some cases swallowing could be induced as a reflex mechanism, though it would hardly be a proper or humane way to care for the patient. The point is, since we have relatively simple and effective ways to provide nutrition and hydration to patients in need, inability to swallow cannot be the decisive factor to prove that the patient is dying. Furthermore, some patients may need assisted feeding for a long period of time, but otherwise function normally. Does their inability to swallow justify withholding food and fluids?
Finally, during the past few years there have been a number of prominent cases involving children. Even sophisticated diagnostic tools do not adequately measure brain damage in children, and children seem to have powers of recuperation not found in adults. In a number of such cases, the child regained some mobility after earlier brain tests gave no reason for hope of recovery and the medical teams had virtually given up all hope.
The second approach sees the PVS patient as living but as seriously disabled. Food and water does not cure the PVS patient; it maintains life. It does not cause suffering for the patient nor is it considered exceptional or experimental medical technology. If the nutrition is discontinued then the patient will die because a new cause of death has been introduced, that is, from a deliberately intended deprivation of nourishment, or in common language, from starvation.
My personal commitment is to the second approach. First of all, there is a special linkage between food and life. Respect for life impels us to feed those who need feeding--the starving in Africa, infants, the homeless and disabled in our own local area. Furthermore, human solidarity and compassion as well as Christian charity should deter us from allowing certain types of people--the disabled or the unconscious--to be placed beyond our willingness to sustain their lives and care for them, even at some sacrifice or social cost. (Much has been made of the cost of care of Nancy Cruzan to the state of Missouri.)
In the course of developing this position, I have consulted many specialists in neurology, neuropathology and other fields of medicine. I have attended symposia, read an enormous amount of literature and kept up the debate with other Catholic ethicists who have different approaches. Let me give a brief summary of all this and then move to what I consider a cautious conclusion. 1. 1) Scientists and medical specialists tell us that there is not a great deal known about the intricacies of PVS, and that there is a serious absence of research material and data on patients. 2. 2) New scientific data is coming forward on the development and function of the human brain, at times pointing to different conclusions or assumptions than those presently accepted. 3. 3) There are different causes of prolonged coma or PVS, and these influence possible outcomes. Often, the cause is unknown to the medical team. 4. 4) We are developing ethical criteria based on unsettled medical knowledge. For instance, there is a medical debate about whether PVS patients can experience pain and also about whether they are able or unable to swallow. 5. 5) Good diagnostic work usually only occurs in major medical centers that have both the technology and the skilled medical personnel. 6. 6) Increasingly, physicians are influenced by the will of the patient, often communicated by a third party, rather than their own medical judgment in the difficult cases. The courts follow the same path, but absent from the analysis are objective norms or principles, and the right and responsibility of the state to protect human rights and maintain societal respect for human life, and to insure competence in medical treatment, seem to be issues that have been set aside. 7. 7) Within Roman Catholic ethics, we have traditionally relied on Pius XII's principle regarding the use of ordinary or extraordinary means to prolong life. More recently we have moved to the proportionate weighing of the burdens and benefits of a specific treatment or care technique. There is considerable need for a reexamination of Pius XII ' s writings to see if and how they might be applied to some of the new cases.
In the light of the above analysis and commentary, the principles cited earlier should be applied to specific cases in the following manner: 1. 1. Unconscious, iminently dying patient. In the unconscious, imminently dying patient (i.e., progressive and rapid deterioration), the dying process has begun and cannot be reversed. Nutrition and hydration are now useless and, all things considered, no longer a reasonable burden. 2. 2. Conscious, imminently dying patient. In the conscious, imminently dying patient, nutrition and hydration are useless, possibly burdensome, and need not be artificially provided but may be if desired by the patient. 3. 3. Conscious, irreversibly ill not imminently dying patient. In the conscious, irreversibly ill, not imminently dying patient, the person is conscious, beyond cure or reversal of the disease, but able to function to some degree. Nutrition and hydration sustain life, so they are not useless; and usually they are not unreasonably burdensome. Nutrition and hydration should be provided unless or until there is clear evidence that provision of nutrition and hydration constitutes an unreasonable burden for the patient. 4. 4. Unconscious, non-dying patient. In the unconscious, non-dying patient, nutrition and hydration should be supplied. Feeding is not useless because it sustains a human life. There is no indication that the person is suffering, nor is there any clear evidence that the provision of nutrition and hydration is an unreasonable danger or burden. In such a case, the withdrawal of nutrition/hydration brings about death by starvation/dehydration. Absent any other indication of a definite burden for the patient, withdrawal of nutrition/hydration is not morally justifiable.
Briefly I conclude that in the case of PVS patients, respecting our lack of knowledge in many areas and our responsibility to protect the lives of all persons, especially the infirm and disabled, we should take the safest course, that is, nutrition and hydration should be provided as part of a patient' s normal care, even if provision of such care requires medical technology, unless or until the benefits of nutrition and hydration are clearly outweighed by a definite danger or burden, or they are clearly useless in sustaining life.
3. THE ROLE OF LAW AND ITS LIMITS.
In recent years the state legislatures have taken up different types of legislation dealing with death and dying.
a) Declaration of death. Since the early 1970' s this type of legislation has been debated and refined. The Uniform Determination of Death Act states that:
An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.
This model statute has formed the basis for many state laws, and some refinements or protections have been explicitly introduced at the state level. The legislative debates have been helpful.
b) Living wills, advance directives, medical power of attorney laws. These laws are more difficult to deal with because often they are part of a larger package of laws and are intended as a first step toward euthanasia-type legislation. Such laws usually contain the following elements:
A provision that there is no need to use extraordinary means to sustain life when death is imminent and health cannot likely be restored.
A provision that there is no need to sustain life processes when health or functioning cannot be restored.
A provision that gives a patient the prerogative to sign a document (usually called a Living Will or Advance Directive) giving legal permission to discontinue extraordinary means.
A provision that allows for proxy consent by the family or a committee of doctors.
A federal law was recently adopted requiring all hospitals that received Medicare or Medicaid funds to inform patients of their rights to refuse life-prolonging care. This will no doubt promote the use of living wills or advance directives. Many states already have such laws, and many have included safeguards to pregnant women and/or exclusion of withdrawing artificially provided nutrition and hydration. Though many deny it, part of the motivation for these laws is that they hold down expenditures for health care, especially for the elderly, the incurable or chronically ill.
CONCLUSION
Human life is our most precious gift, and in many ways our most fragile possession. The beginning of each human life is a continuing reminder of God's creative love and the basis of the value and dignity of the human person. Even for those who do not believe in God, the miracle of life awakens a sense of the sacred, that is, of the beauty and uniqueness of each human person.
But the life of any human being cannot be isolated or sealed off; no one lives alone. Society expresses its value for human life by protecting the life of each and every member of the human family by its laws and social institutions. No life is of inferior value, beyond protection or sustenance. The law must be the guardian of each person's life and rights, and it must apply equally to all.
The sanctity of human life and the dignity of the human person, then, are fundamental principles in dealing with contemporary moral problems. These principles have a history in the scriptures and in the life experience of the early Christian church, but they are especially important today when the "justifications" for certain violations of human life and human dignity are based on the greatest good for the greatest number or the assumption that in certain difficult situations, a specific evil becomes permissible. These principles are especially important in building a societal respect for human life at every stage of its existence from conception onwards.
Most Reverend James T. McHugh
Bishop of Camden
March 11, 1991

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