Debate on Physician Assisted Suicide

Here's a debate on Physician Assisted Suicide at higher than the normal level of discourse. Enjoy!

New Mexico Judge Finds State Constitutional Right to Aid-in-Dying

A judge in the New Mexico Second Judicial District Court (County of Bernalillo) has found that "the liberty, safety and happiness interest of a competent, terminally ill patient to choose aid in dying is a fundamental right under [the Due Process clause of the] New Mexico Constitution." District Judge Nan G. Nash therefore found that the state's criminal law against assisting in suicide is unconstitutional insofar as it is applied to aid-in-dying for competent, terminally-ill patients. The court's order enjoins prosecution of physicians for aiding competent terminally-ill patients in dying. From the opinion:

This Court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying. If decisions made in the shadow of one’s imminent death regarding how they and their loved ones will face that death are not fundamental and at the core of these constitutional guarantees, than what decisions are? As recognized by the United States Supreme Court in Cruzan “[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality.” Cruzan, 497 U.S. at 281.

The opinion in Morris v. New Mexico only affects prosecutions within Bernalillo County; it will not apply to the whole state unless it is affirmed on appeal by the state's Supreme Court.

The court explicitly declined to distinguish aid-in-dying from suicide: "Through the practice of aid in dying a physician deliberately aids the terminally ill patient in taking of his own life, bringing the practice of aid in dying within the definition of assisting suicide contained in [the criminal law]." But the court went on to find a constitutionally-protected right to suicide for competent, terminally-ill patients, and therefore invalidated the criminal law against assisted suicide insofar as it is applied to doctors assisting in the suicides of such patients.

The case was brought by the ACLU of New Mexico and Compassion & Choices on behalf of two physicians and a terminal cancer patient.

Vermont Legislature Passes Physician-Assisted Suicide Law

The Vermont legislature has passed a new physician-assisted suicide law and is sending it to Governor Shumlin, who supports it and is expected to sign. The Oregon-style legislation will be the third such state law in the country and the first adopted by a legislature, as opposed to via popular referendum. The strange feature of this law, though, is that while it begins by mandating (in section 5283) a number of Oregon-like anti-abuse measures to make sure that the program doesn't help the wrong people to die by mistake (two different oral requests, 15 days apart; a written request for self-administered lethal medication signed by two disinterested witnesses; findings of terminality and capacity entered into the chart; and so on), most of these requirements sunset in 2016 in favor of the much shorter section 5289, which says only:

"A physician with a bona fide physician–patient relationship with a patient with a terminal condition shall not be considered to have engaged in unprofessional conduct under 26 V.S.A. § 1354 if:
(1) the physician determines that the patient is capable and does not have impaired judgment;
(2) the physician informs the patient of all feasible end-of-life services, including palliative care, comfort care, hospice care, and pain control;
(3) the physician prescribes a dose of medication that may be lethal to the patient;
(4) the physician advises the patient of all foreseeable risks related to the prescription; and
(5) the patient makes an independent decision to self-administer a lethal dose of the medication."

A subsequent section immunizes any physician from civil or criminal liability for any actions performed in good faith compliance with the law.

The legislators's assumption, according to press coverage, is that physicians will have developed adequate professional standards for physician-assisted suicide by 2016. I wonder whether the law's repeal of safeguards will really last, or whether the Vermont legislature will re-think the matter in the next year....

And I know, I'm supposed to say aid-in-dying, not physician-assisted suicide. But I'm an academic, not an advocate, and even though the term "suicide" scares some folks, and others argue that it's not really suicide if you're dying of a disease you didn't choose, my own view is that if you give a terminally ill person some pills with which she can kill herself faster than her underlying disease would have, you're assisting in her suicide. (Wow! On that one verbal point, I actually agree with Wesley Smith! Though, unlike him, I approve of physician-assisted suicide with appropriate safeguards, and think that the Oregon safeguards are appropriate. And I'm not a fan of slippery-slope arguments.)

Massachusetts and Physician-Assisted Suicide

Having recently emerged from a multi-month blogging hiatus, I feel guilty for not having addressed the pending Massachusetts physician-assisted suicide initiative.

This November, Massachusetts citizens will vote on an initiative to establish an Oregon-like regime of physician assisted suicide. The full text of the initiative is here; the Oregon Death With Dignity Act, on which the Massachusetts initiative is very closely modeled, is here. The proposed law would permit competent, terminally ill patients to receive from their physicians a prescribed lethal dose of medicine with which to end their own lives.

I was against physician-assisted suicide (PAS) before I was for it. I feared that PAS would be offered to poor people, poorly-educated people, and minorities, in lieu of more difficult- and expensive-to-provide high-quality end-of-life care. Others (not I) worried about a slippery slope from assisted suicide (where the patient kills herself) to euthanasia (where the doctor gives, for example, an injection to a patient who wants it), and thence to involuntary euthanasia (where a doctor gives an injection to a patient who doesn't want it, or whose desire to die is not well-documented). Others worried that the availability of PAS would undermine incentives to improve end-of-life care and palliative medicine. And still others (again not I) worried about an assisted-suicide regime giving rise to a "duty to die;" that is, a sense among elders that they really ought to commit suicide rather than inconvenience their children, or cost them too much money.

What I feared would happen has not happened. If you look at Oregon's annual reports about who uses their assisted suicide program, what you find is that most are white, well-educated urban dwellers, already in home hospice care. Minorities are barely involved with the program, let alone being disproportionately its "victims." As I say to my students, it appears that assisted suicide is for control-freaks. No case of euthanasia, voluntary or involuntary, has been established in either Oregon or Washington, so that slope seems not to be so slippery. And Oregonian hospice care and palliative care has not suffered after the introduction of PAS; indeed, it has prospered. It remains a vexed question, though, whether end-of-life care in Oregon is good because of pressure exerted by the existence of the assisted suicide option, or whether, alternatively, assisted suicide performs well in Oregon because its end-of-life care is so unusually good; or, indeed, or whether both things are true.

Have we slipped down the slope toward a duty to die? I see no evidence.

My own position on physician-assisted suicide is completely open to revision in light of empirical data. Can someone show that people who don't want to die are being pushed into assisted suicide? I'll count that as important evidence against PAS. Can someone show that PAS programs enhance the quality of end-of-life care? That'll count in its favor. Can someone show that medicine is completely able--not just in ideal circumstances, but on the ground in real clinical settings--to control the suffering of patients at the end of life? Then I'd drop my support for physician-assisted suicide altogether.

One thing I won't do, though, is stop calling Physician Assisted Suicide by that name. Many who lobby in favor of PAS want to jettison the negative associations of the word "suicide," and point out that we are, at least for the moment, talking about people who are dying anyway, and who would, in many cases, prefer not to. The word "suicide," they argue, doesn't fit the cases they're talking about. But to my perhaps-overly-legal mind, the word "suicide" simply applies to people who are killing themselves, even if they're killing themselves because they're dying. Other phrases (Aid in Dying, for example) are inexact, in that they cover not only PAS but also voluntary active euthanasia. Words mean what they mean, usually; the battle, in my view, should not be about claiming that the terminally ill aren't really committing suicide, but rather about the deeper point that some suicides are morally, even religiously, permissible. Think about the harm of death: the suffering attending the dying process, the loss of integrity and control, the loss of a future you'd like to live to experience. The person who rationally elects PAS avoids the suffering, maintains and even establishes integrity and control, and has no desirable future to lose.

If I were a Massachusetts resident, I'd vote in favor of the initiative.