By the end of June, and perhaps as early as next Monday, the US Supreme Court is expected to issue its opinion on New York and Washington state laws that ban assisted suicide. While not as sweeping in its importance as Roe v. Wade in 1973, the imminent ruling could affect American culture profoundly.
Meanwhile, the subject of assisted suicide is under increased, often critical, scrutiny. The Clinton Administration has sided with the defense of state laws against assisted suicide. Jack Kevorkian–“Dr. Death” to his detractors, an angel of mercy to his fans–is back in court in Michigan. Unlike three earlier trials in which he was acquitted, however, Kevorkian now faces charges of practicing medicine without a license as well as defying a state law against assisted suicide.
In Oregon, the one state in which, by initiative, assisted suicide was made legal, the law is not being implemented. The Ninth Circuit Court of Appeals has turned back a legal challenge to the law, temporarily, but the state legislature has decided to re-submit the matter to a popular vote next fall.
Legislators in Oregon reasoned that the earlier vote, in 1994, was conducted without public knowledge of the measure’s true implications. For example, to get public approval, the “safeguards” on assisted suicide in the initiative included a prohibition against euthanasia (putting the patient to death rather than merely assisting in a suicide). But Derek Humphry, the founder of the Hemlock Society and a leading advocate of both euthanasia and assisted suicide, noted after the Oregon election that the euthanasia prohibition would make the Oregon law unworkable. In fact, if the law was followed, the results “could be disastrous,” he wrote The New York Times, because Dutch experience shows that assisted suicides by oral drug ingestion fail as much as 25% of the time. Thus, a doctor is needed to stand by with an injection needle and “administer the coup de grace if necessary,” he stated. A patient who did not receive such active measures could wind up in more pain, not less.
Dutch experience is receiving other attention recently. Critics of assisted suicide say that a 1995 study authorized by the Dutch government reveals unwittingly that there really is a danger of a “slippery slope” from passive help for the dying to active killing, and that legal authorities will not prevent such slippage.
Writing in the June issue of the Journal of the American Medical Association (JAMA), Herbert Hendin, MD, Chris Rutenfrans, PhD, and Zbigniew Zylicz, MD, describe how the practice of active euthanasia under the Netherlands’ tolerance policy has increased from 1.7% of patient deaths to 2.4% in 1995. (With assisted suicides included, the numbers rise to 4.7%.) Over two decades the Dutch “moved from considering assisted suicide (preferred over euthanasia) to giving legal sanction to both physician-assisted suicide and euthanasia, from euthanasia for terminally ill patients to euthanasia for those who are chronically ill, from euthanasia for physical illness to euthanasia for psychological distress, and from voluntary euthanasia to nonvoluntary and involuntary euthanasia.”
There is, as well, a growing failure to respect supposed “safeguard” criteria, such as “a voluntary, well-considered, persistent request; intolerable suffering that cannot be relieved; consultation; and reporting of cases.”
Indeed, there is substantial unreporting of euthanasia cases by physicians (59% in the study), and many of those “involved ending the life of a patient without the patient’s consent,” even when the patient was able to make a competent choice.
Half of all Dutch physicians think it proper to recommend euthanasia to patients, which critics say is coercive in practice. And sometimes the coercion is more direct. Citing further studies, the JAMA writers note the case of “A wife who no longer wished to care for her sick husband (and) gave him a choice between euthanasia and admission to a home for the chronically ill. The man, afraid of being left to the mercy of strangers in an unfamiliar place, chose to be killed; the doctor, although aware of the coercion, ended the man’s life.”
In another example, a woman with cancer who did not want euthanasia, had her life ended, nonetheless, because the doctor declared that she was going to die anyway. “It could have taken another week..,” he said. “I just needed this bed.”
The Dutch authorities downplay these incidents. They also pay little heed to the charge that with euthanasia so readily available in the Netherlands, palliative care–to ease the pain and suffering of the dying–is falling behind that in other nations.
Pain, indeed, is a focus of the two US cases now before the Supreme Court. But so, too, is the desire somehow to cheat death by controlling the hour of its arrival.
In Washington state the main constitutional issue is whether there is a “liberty” right to assisted suicide. In the New York case plaintiffs contend that state law abridges constitutional guarantees of “equal protection” to would-be suicides, since patients who can die simply by asking that heroic measures (such as a respirator) be discontinued already are protected.
The Court’s opinion on these arguments is close to publication. It is worth reflecting, meantime, that the issue already has had one collateral effect, and it is one that people on both sides can applaud. In the past decade a new consensus has grown up on the need for medical schools to improve instruction in pain management and care of the dying. There is wider support now for development of the hospice movement. And there is a reviving realization within the medical profession, and without, that we should approach the dying stage of life with greater reverence, consideration and respect.