A Myth Is as Good as a Mile

Why the assisted-suicide movement is winning Original Article

The assisted-suicide movement has come a long way in just a couple of decades. Consider, for example, this recent item from the San Francisco Chronicle: “Charlotte Shultz [the wife of former secretary of state George Shultz] accepted the invitation to be honorary co- chair (with Dianne Feinstein) at a Nov. 5 luncheon and program for Compassion & Choices of Northern California, saying, ‘I’m glad to support the cause, but I’m in no hurry to use the services.’”

Compassion & Choices used to be called the Hemlock Society. It is the nation’s premier assisted-suicide advocacy group.

When members of the social and political elite — people like Senator Feinstein and Mrs. Shultz — associate themselves with assisted-suicide groups as openly as they would with charities like the United Way, we have reached a new cultural moment. Assisted-suicide advocates once mostly inhabited the kook fringe. Groups like the old Hemlock Society published how-to-commit-suicide newsletters and promoted wacko suicide paraphernalia like the “Exit Bag” (which had Velcro straps sewn in to ensure “a comfortable fit”). The movement’s public face was the ghoulish Jack Kevorkian. Promoters of assisted suicide were both short on cash and lacking in respectability.

Not that the old guard has entirely disappeared. Derek Humphry, Hemlock’s founder, runs an entity called NuTech that researches and promotes various methods of suicide. He’s also on the advisory board of the Final Exit Network, which counsels “hopelessly ill” people on ending their lives with helium and plastic bags. (Several FEN members were recently arrested for this activity.) Kevorkian is out of prison and on the lecture circuit, making as much as $50,000 per speech.

But he is no longer the face of assisted suicide. Today, the most important assisted-suicide advocates tend to be affluent and well-tailored liberal women who travel the country pitching “aid in dying” to elite society and the mainstream media. They and their groups are well funded, by organizations such as the leftist Tides Foundation. (Compassion & Choices operates with a seven-figure annual budget.)

Changing the movement’s image has made a difference in its results.

Three states have legalized assisted suicide — Oregon and Washington by voter referendum, and Montana by a court ruling. States from Hawaii to Vermont have experienced protracted legislative battles over the issue, the tide in favor of assisted suicide rising incrementally with each failed attempt.

These advances would not have happened but for a powerful myth promoted by assisted-suicide advocates and helped along by a compliant media: the notion that Oregon’s experiment with legalized assisted suicide has been a success, in which problems and abuses are rare or nonexistent. It is true that the annual statistical reports published by the Public Health Division (henceforth OPHD) of Oregon’s Department of Human Services have revealed very few problems. But there’s a reason for that: The reporting system was designed by the authors of the assisted-suicide legislation to be incapable of vigorous policing and in-depth data gathering.

As a result, nobody knows precisely what is going on in Oregon. The data in the state-published reports are based overwhelmingly on self-reporting by death-prescribing doctors — who are as likely to admit violating the law on this matter as they are to tell the IRS that they have cheated on their taxes. Indeed, as the bureaucrats charged with publishing the annual report admitted to an investigative committee from the British House of Lords, the OPHD engages in only very limited and random checking of the information it receives. Moreover, the department has no budget or authority to investigate apparent violations of the law, and all documentation relied upon in writing the annual report is destroyed once the report has been published. Dr. Kathleen Foley, perhaps the nation’s premier palliative-care doctor, and suicide-prevention expert Dr. Herbert Hendin wrote in the Michigan Law Review last year that the OPHD “does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector of the welfare of terminally ill patients.”

These official data, therefore, are not very helpful to anyone looking for the truth. But other studies have indicated serious abuses. One, published in the Journal of Internal Medicine in 2008, found that doctors in Oregon routinely write lethal prescriptions for patients who are not experiencing significant symptoms. Further, people who request lethal prescriptions rarely do so because of pain, but rather as a result of existential fears, such as worries about being burdens or losing their dignity. In other words, the actual practice of hastening death has very little to do with any inability of doctors to alleviate pain.

Depression is, of course, a frequent end-of-life issue. In Oregon, doctors are not prevented from assisting the suicides of people who are depressed unless the condition has caused “impaired judgment.”

That’s often hard to determine without an in-depth mental-health examination. Yet Oregon physicians who assist suicides rarely refer their suicidal patients for mental-health consultations: They referred none in 2007 and only two last year. And even those who are referred may receive only a cursory review. Foley and Hendin detailed one such consultation for a patient named Joan, who had Lou Gehrig’s disease:

The doctor and the family found a cooperative psychologist who asked Joan to take the Minnesota Multiphasic Inventory, a standard psychological test. Because it was difficult for Joan to travel to the psychologist’s office, her children read the true-false questions to her at home. The family found the questions funny, and Joan’s daughter described the family as “cracking up” over them. Based on these test results, the psychologist concluded that whatever depression Joan had was directly related to her terminal illness, which he considered a completely normal response. … The psychologist’s report in Joan’s case is particularly disturbing because without taking the trouble to see her, and on the basis of a single questionnaire administered by her family, he was willing to give an opinion that would facilitate ending Joan’s life.

How many other such cases are there? No one knows, and there is no evidence that bureaucrats at the OPHD very much care.

Then there are the well-documented cases of Barbara Wagner and Randy Stroup. Both had recurrent cancer while on Oregon’s Medicaid, a program in which there is explicit rationing. Their doctors prescribed chemotherapy to extend their lives. But — in a decision relevant to our current health-care-reform debate — state bureaucrats refused to cover their treatments because the medical literature indicated that neither could be expected to survive for five years with the prescribed drugs. Instead, they offered Wagner and Stroup funding for their assisted suicides.

The abuse had to rise to this extremely high level of official callousness for the media to start paying any attention. The lack of meaningful state oversight is generally unknown to the public. As a result, the Oregon Myth has become assisted-suicide advocates’ most potent argument in spreading “death with dignity” laws throughout the nation.

Despite the myth’s widespread currency, from 1997 until 2008 assisted-suicide advocates made no legal headway in the rest of the country.

Frustrated advocates adopted a strategy they called “Oregon plus one,” believing that if just one more state legalized assisted suicide the agenda would sweep the nation. Last year, that one state fell into their laps — owing primarily to former Washington governor Booth Gardner, a popular and wealthy ex-politician with Parkinson’s disease who decided to make assisted-suicide legalization his “last campaign.”

When he thundered, “My life! My death! My control!” and put hundreds of thousands of his own dollars into the campaign, the media swooned.

It didn’t take long for virtually every major Washington State newspaper — citing Oregon’s example as justification — to support the assisted-suicide measure known as I-1000.

The campaign over I-1000 was never much of a fight. Understanding the importance of Washington to their cause worldwide — the euthanasia movement is international in scope — assisted-suicide advocates across the country poured money into the yes campaign. The opposition withered financially. In the end, it was a rout, $4 million to $1 million. I-1000 passed by 58 percent to 42 percent, and the assisted- suicide movement again had the wind in its sails.

Shortly after Washington’s vote, Montana gave the movement another boost. On Dec. 5, 2008, district judge Dorothy McCarter ruled in Baxter v. Montana that the state law banning assisted suicide violates the right to privacy guaranteed in the Montana constitution, as well as that document’s declaration that “the dignity of the human being is inviolable.” McCarter found therein a “fundamental right” for the terminally ill to “die with dignity”: perhaps the first time an advocacy slogan became the basis for a constitutional right. McCarter also ruled that doctors have a concomitant right to be free from “liability under the State’s homicide statutes” if they assist a patient’s suicide.

That case is currently on appeal in the Montana supreme court, but because McCarter refused a requested stay of her ruling pending appeal, assisted suicide is currently a constitutional right in the state of Montana. And given the very broad language of the decision, there seems little doubt that its reasoning could open the door to assisted suicide to people who are not terminally ill. (As of this writing, and to the publicly expressed consternation of assisted-suicide advocates, no Montanan is known to have exercised his or her right to die, because doctors there have been unwilling to commit “death with dignity.” Doctors in Washington have been similarly reluctant.)

Even as they were pushing explicit assisted-suicide legalization in Washington and Montana, advocates opened a second front in their quest to legalize death-hastening acts by doctors. Two members of the California assembly with close ties to Compassion & Choices had twice unsuccessfully attempted to legalize assisted suicide in the Golden State. Thwarted in that effort, they introduced Assembly Bill 2747, a bill they said required doctors only to inform their terminally ill patients about their end-of-life options. In actuality, as first proposed, the legislation would have permitted euthanasia by the back door.

Here’s how: The bill would have transformed a legitimate but rarely required pain-control technique known as “palliative sedation” from its legitimate use — putting a patient who is near death, and whose suffering cannot otherwise be controlled, into an induced coma — into a method of intentionally causing death, by, in the words of the bill, “making the patient unaware and unconscious, while artificial food and hydration are withheld, during the progression of the disease leading to the death of the patient.” It would have allowed a dying patient with months left to demand that his doctor sedate and dehydrate him to death — regardless of whether sedation was actually needed to control pain and suffering. And, again quoting the bill, if a doctor didn’t “wish to comply with his or her patient’s choice of end-of-life options,” the doctor would be required to “refer or transfer [the] patient to an alternative health care provider” who would do the deed.

These provisions were ultimately gutted from AB 2747. But it is worth noting that the law requires physicians to provide information about all options — ranging from hospice to palliative sedation (properly defined) — to terminally ill patients, or to refer them to expert organizations — such as Compassion & Choices — capable of counseling them on these options. This may seem innocuous. It isn’t: The walkback of AB 2747 marked the beginning of an attempt by Compassion & Choices to change its public image from that of a zealous assisted-suicide advocacy organization to that of a supposedly dispassionate patient- education group.

It’s no coincidence that a similar provision popped up in the notorious Section 1233 of H.R. 3200, the House version of Obamacare.

As part of their compensated end-of-life counseling for Medicare recipients, physicians and nurses could refer patients to expert outside groups. And guess which organization claims credit for playing a prominent part in creating Section 1233? From the Compassion & Choices website, on July 27, 2009: “Compassion & Choices and its supporters have worked tirelessly with supportive members of congress [sic] to include in proposed reform legislation a provision requiring Medicare to cover patient consultation with their doctors about end-of- life choice (section 1233 of House Bill 3200).”

Given its involvement in AB 2747 and Section 1233, Compassion & Choices clearly wants to become the Planned Parenthood of assisted suicide, no doubt hoping one day to receive public funds and medical referrals for end-of-life counseling, and, where legal, to facilitate assisted suicide. (It has already done the latter in Oregon.)

Two thousand and eight was a banner year for the assisted-suicide/euthanasia movement. It’s likely that no new states will legalize assisted suicide this year. But if the last 20 years prove anything, it is that euthanasia advocates are passionately committed, work hard, and feel that time is on their side. Are their opponents equally committed?

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.