The Politics of Physician Assisted Suicide

Nina Clark

• Publisher: Routledge
• Year: 2014
• Print ISBN:
  9780815326458
• eBook ISBN:
  9781317777076
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First published in 1997. Nina Clark offers a pithy and valuable record of the political battles so far over voluntary, medically-hastened death. The purpose of the study is to examine the different ways in which the American political system has responded to the issue of patient autonomy; to explore its viability as an object of direct democracy; and to study the political activity and attitudes of individuals in relation to physician assisted suicide, particularly the elderly.

I

Introduction

The way a society collectively interprets death and dying is critical for it is in this way that other important decisions, (e.g., health care and patient autonomy) are addressed. Since we all commence with the knowledge that death is certain, it is essential some consensus be reached with respect to how this important phase of life is to be addressed. Some scholars suggest that we are a society so obsessed with death that we continue to deny that it is ever going to occur (Hoefler & Kamoie, 1994). The irony is that the process of “beginning,” or being born, has been appropriately studied and perfected whereas the manner in which individuals make their grand “finale” has been largely avoided. As such, patient self-determination and the question of whether individuals have the fundamental right to hasten their own death continue to be unresolved and greatly debated issues.

As the quest for longevity continues, the assumption is that many wish to live beyond the natural life span of seventy to eighty years. Modern medical technology (e.g., respirators, cardiac resuscitation, artificial feeding and hydration, and drug treatment) makes it technically possible to keep a person “alive” and delay dying. Unfortunately, what technology has been unable to assure is quality of life. No longer capable of caring for one's basic needs, patients are often forced to forfeit their dignity by having to rely on either an artificial mechanism or another person. Consequently, living life becomes burdensome and humiliating since inherent in the notion of living is the guarantee that certain personal freedoms will be protected. Severe illness, however, categorically precludes individuals from making even the smallest decisions (such as when to eat dinner) and from carrying out the most mundane of activities (such as using the restroom). In part, it is the freedom to make these decisions and to engage in such activities which gives each person autonomy. When this is no longer possible, a “quick” exit becomes a viable option, if not a welcome relief. Respected by some and condemned by others, these individuals who eventually make the decision to seek aid-in-dying are compelled to do so in a furtive manner since to date assisted suicide is not legal in any state.¹

The 1990s, however, have witnessed some efforts (including advance directives, the durable power of attorney, the do-not-resuscitate order, and the Patient Self-Determination Act) aimed at the expansion of individual liberty and patient autonomy. Advance directives² do not, however, allow individuals the latitude of avoiding the final stages of terminal illness by requesting aid-in-dying. While advance directives serve the function of allowing an individual to prepare for a “worst case” scenario, they do not offer a practical way to ameliorate end-of-life suffering or a painful, humiliating death. In November, 1992, Califbrnians had a chance to express their views, as they cast their votes on Proposition 161, The California Death With Dignity Act. Co-authored by attorneys Robert Risely and Michael White, the measure was a refined version of Washington state's Proposition 119, which sought to do what had not yet been done: legalize assisted death and affirm that it is a fundamental right.

The underlying premise appeared to be simple enough at first glance: in the event that mental and physical suffering should progress to such a degree as to limit the quality of life, there should be some manner of hastening one's own death. After all, proponents argued, this would not only be for the benefit of the ailing patient, but also for those having to watch the continual deterioration of their loved one. In addition, it would serve the nation's universal objective of trying to contain health costs, since keeping a person alive by mechanical means or keeping them comfortable while he/she is dying is typically quite expensive.

The opponents, however, could not and did not see any form of “suicide”³ as a simple matter and much of their efforts focused on how the medical profession and particularly the elderly population would be adversely affected if Proposition 161 had passed. When Oregon voters passed Measure 16, which championed the right of terminally ill patients to request physician aid-in-dying, in November, 1994,⁴ the opposition was heard loud and clear. Opponents asserted that suicide is an abhorrent act and to suggest that a physician take part in such activity is in direct conflict with the traditional role of a physician, which is to heal and to cure. In addition, the primary objective of the medical profession is to give rather than take life. The argument that allowing someone to choose to die would be more “economical” was dismissed as generally inconsequential since so many other facets of the issue (for example, the value of human life) were much more compelling than the fiscal aspect.

PURPOSE OF STUDY

Several lines of inquiry will be addressed:

1. examine the different ways in which the American political system has responded to the issue of patient autonomy;

2. explore its viability as an object of direct democracy;

3. study the political activity and attitudes of individuals in relation to physician assisted suicide, particularly the elderly, since they are “disproportionately affected” by end of life issues (Glick, 1991; p. 304); and

4. determine what role, if any, aging interest groups played in the “Yes” and “No” on Proposition 161 campaigns and assess future prospects and possible strategies.⁵

At the outset, I acknowledge a sympathy in favor of physician assisted death, citing the right of privacy as the primary constitutional vehicle to justify for its legalization. This work includes a case study of the path physician assisted suicide has taken with particular attention to Proposition 161, exploring activity in the courts, legislatures and past direct democracy efforts, with the issue history and analysis providing a framework. I argue that since the courts have been hesitant in affirming active voluntary euthanasia, the people have taken it upon themselves to create a proposed law and have used the initiative process to expedite its passage. It is purely by default that physician assisted suicide has ended up as an object of direct democracy. At no point in time was it determined that the initiative process would yield better, only quicker results (as Chapter Four will discuss), since the traditional policy-making institutions seemed to be at an impasse. Thus, it follows that if the American political system or legislatures had been successful in expanding patient autonomy in this manner, direct democracy efforts would have been unnecessary.

The conceptual framework for this study centers around what I have chosen to call the Default Model. This Model operates on three assumptions:

1. The formal political institutions, such as the courts and legislatures, have “failed” to promulgate some type of coherent policy regarding physician assisted suicide.

2. A certain segment of the public is “restless” for action on a particular issue (here physician assisted suicide).

3. Assisted suicide has become a ballot issue for the same reason that the courts and legislatures have been unable to affirm its constitutionality: the difficulty of resolving the inherent moral and ethical dimension of the subject.

Issues such as physician assisted suicide end up being matters of “personal choice” and are thus private. The arguments on both sides of the debate are so strong that to take a stand one way or the other often creates an intense controversy. In support of this point, Glick and Hays (1991) suggest that the right-to-die issue is similar to abortion since both concern the preservation of life, albeit at opposite ends of the life cycle. Consequently, institutions, interest groups and individuals as well sometimes refrain from being decisive in support of, or in opposition to, physician assisted suicide in an effort to avoid offending anyone and to avoid heated controversy and/or debate.

One of the arguments to be developed in this study is that the right to seek aid-in-dying is indeed protected by the constitutional rights of privacy and self-determination. Although the right of privacy is not absolute, landmark cases such as Griswold v. Connecticut (1965) and .Roe v. Wade (1973) offer precedents which established that individuals do possess the prerogative of personal autonomy, which falls within the realm of the right of privacy. Recognizing the conflict of privacy and public (state) concerns, physician assisted suicide is a concept that decidedly favors the terminally ill individual, since it is the patient and not the “state” who would have to endure the suffering precipitated by a terminal illness.

THE PRIMARY ISSUE

The right-to-die movement in the United States began with the founding of the Euthanasia Society of America in 1938 and has grown rapidly since that time, primarily due to the life-prolonging power of medical technology. Glick (1992) traces the movement's 50-year history from the early 1940s to the present, covering major national and state-level legislative and judicial events, as well as the often acrimonious conflict between various interest groups. In 1976, the same year that In re Quinlan case was decided, California enacted the first Natural Death Act. Since that time 48 states have passed legislation or developed judicial policy on withdrawal or withholding of treatment in hopeless cases, but with little uniformity (Glick, 1992). This diversity is partly due to the wide array of definitions used: euthanasia (voluntary active, passive, involuntary active); assisted suicide, aid-in-dying, physician-assisted death/suicide; end-of-life decision making; do not resuscitate codes; patient self-determination; and right-to-die (Carpenter, 1993).

Acts of euthanasia are classified as active or passive and voluntary or involuntary.⁶ Passive euthanasia, withholding treatment and allowing the patient to die, is regarded as permissible (Rachels, 1989), but direct action intended to kill the patient (active euthanasia), such as lethal injection, is not.⁷ This view is firmly supported by the American Medical Association, which speaks approvingly of ceasing to use extraordinary means in certain cases (e.g., medicines, treatments and operations which offer a reasonable hope of recovery) (Sullivan, 1989: 57). Voluntary acts require the consent by either the patient or the patient's family (Pletcher, 1992).

Still, the distinction necessitates further clarification. The label active euthanasia is applied if the action is aimed at producing death, if termination of life is sought, chosen or planned (by the patient), and if the intention is deadly (Sullivan, 1989: 57). In contrast, the underlying intent present in a voluntary passive euthanasia case is to avoid prolonged suffering by the patient. On December 4, 1973, the House Delegates of the American Medical Association adopted the following statement:

The intentional termination of the life of one human being by another–mercy killing–is contrary to that for which the medical profession stands and is contrary to the policy of the American Medical Association.

The cessation of the employment of extraordinary means to prolong the life of the body when there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family. The advice and judgment of the physician should be freely available to the patient and/or his immediate family (Rachels, 1989: 45).

Later, in 1982, the AMA went one step further, announcing for the first time that it was ethical for physicians to withdraw or withhold life supports from hopelessly ill patients (Glick, 1990: 78). By 1984, a small group of physicians proposed a bill of rights for the dying, advocating that emergency resuscitation and intensive care should be in line with the wishes of the patient and family (Logue, 1993). In many ways, these actions sanctioned passive euthanasia which continues to be widely accepted by the medical profession. Additionally, there are published accounts which suggest that active euthanasia does take place. “It's Over, Debbie,” anonymously submitted to and printed by the Journal of the American Medical Association in 1988, described how a gynecology resident relieved a twenty-year-old dying cancer patient by injecting her with twenty milligrams of morphine. This story garnered much criticism because it was viewed as an abuse of professional power. If it is the physician's responsibility to see to it that the patient is as comfortable as possible, even though the drugs already being administered appeared to be ineffective, perhaps the most “humane” action was in fact to expedite “Debbie's” death.⁸

Upon learning about this story, some members of the medical profession were appalled, asserting that such activity “violates one of the first and most hallowed canons of the medical ethic: doctors must not kill” (Gaylin, et al., 1989: 26). But even the most ardently opposed physician will attest to the fact that there have been times when “the best thing to do” in the case of a terminally ill patient has been difficult to determine. What is professionally considered the right course of action, however, is not necessarily the most humane, although presumably as members of the medical profession, physicians always strive to operate in the most humanitarian fashion. In this case, the question is whether or not it was the doctor's intention to act in a humane manner. Rather, this was taken for granted and speculation largely focused upon what the most humane maneuver would have been (e.g., administering stronger doses of medication to Debbie in an effort to effectively control her pain). Would it have been more humane simply to allow Debbie to die a natural death? This lack of consensus as to what constitutes humane behavior on the part of medical professionals has intensified the controversy surrounding end-of-life treatment.

Realizing that the opportunity for cure is passed, a physician has two options: first, that of maintaining the life of a “dying” patient ...

Table of contents

• Cover
• Series Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Figures and Tables
• Foreword
• Acknowledgments
• Chapter I: Introduction
• Chapter II: Early Policy Developments
• Chapter III: Court Responses
• Chapter IV: Policy-making By Default: The Initiative
• Chapter V: Individual vs. Interest Group Behavior
• Chapter IV: Prospects For Self-Deliverance
• References
• Index