In 1991, in Cruzan v. Director, Missouri Department of Health (497 U.S. 261), the U.S. Supreme Court ruled that the right to die was a constitutionally protected liberty interest under the Fourteenth Amendment. The case held that terminally ill patients had a right to voluntarily cease treatment; moreover, under proper safeguards, surrogates could make the decision to terminate treatment or turn off life-support equipment for patients in a permanent vegetative state.
The decision confirmed practices and procedures already adopted in most states, but it also triggered a debate over what many libertarians saw as the next phase—namely, whether patients who were not terminally ill had a right to commit suicide and to do so with the assistance of a doctor. They argued that if people suffered greatly from a physical ailment and wanted to end that suffering, they should be allowed to do so. Since many such people were physically or mentally unable to take their own lives, they should be entitled to the help of those who could most effectively and painlessly end their suffering. There should be no difference between a person who, because his or her illness had advanced to terminal stage could turn off life support or cease treatment and die, and a person who had an illness that was not immediately life threatening, but nonetheless suffered greatly from disease.
The debate was not new; historically, doctors had always practiced euthanasia, helping their patients end their lives when physical distress grew too great. But in the years after World War II the discovery of new wonder drugs as well as the development of radical new means of treating disease through surgery, radiation, and other methods meant that hitherto deadly or debilitating conditions could be remedied, giving patients hope not only of living, but also of living usefully and free of pain. The emphasis in medical schools changed, and emphasis on curing disease and saving life eclipsed the older notion of euthanasia.
But as life grew longer it did not necessarily grow better. Illnesses that would earlier have claimed lives could now be treated, but people who survived did not necessarily live well. The argument that quality of life mattered more than the simple matter of living began to pick up momentum, and advocacy groups like the Hemlock Society began lobbying for more permissive laws regarding ending of life. Although all states repealed their laws criminalizing suicide, nearly all kept statutes on the book that made assisting suicide a crime. The American Medical Association formally disapproved of physician-assisted suicide; in practice, many doctors continue to help sick and suffering patients end their lives, usually through the prescription of drugs that, if taken in sufficient quantity, would prove lethal.
Advocates of physician-assisted suicide based their arguments around the notion of autonomy—that each person should have maximum control over his or her life. If, because of physical debilitation resulting from disease or advanced age, a person no longer found life worth living or was suffering great pain, then he or she should have the right to end that life and a right to assistance in doing so. They did not make a similar claim for people suffering from mental distress, but argued that a competent person, acting without duress, enjoyed full discretion over whether he or she wished to live or not.
Opponents of physician-assisted suicide responded primarily with moral arguments. Suicide, they claimed, was condemned by God and disfavored by all Western religions. There would be pressure from family to have the elderly and infirm end their lives so as to prevent further drain on scarce resources or depletion of an inheritance. Opponents of abortion saw the general right to die as well as the more specific idea of assisted suicide as two sides of the same coin— killing the unwanted unborn and killing the unwanted elderly or sick. Advocates for disability groups argued that assisted suicide was the opening wedge in a campaign similar to that of Nazi Germany, in which the weak, helpless, disabled, and different would be killed.
During the 1990s, two developments focused the public’s attention on physician-assisted suicide. One was the widely publicized example of medical practice in The Netherlands, in which doctors actively helped patients to die. The practice had long been widespread, although technically not legal. The police, however, did not enforce the law and the Dutch public widely supported the practice. Eventually, the Dutch legislature amended the law to make physicianassisted suicide legal. American media gave extensive coverage to stories about the Dutch experience.
Second, Dr. Jack Kevorkian (b. 1928) launched a one-man crusade to make assisted suicide legal and easily attainable. Between 1990 and 1998, Kevorkian helped more than one hundred people commit suicide, initially using a device he called a ‘‘Thanatron,’’ by which patients pressed buttons that allowed lethal doses of barbiturates to enter their bodies through an intravenous hook-up. When Michigan officials managed to block his access to those drugs, he switched to a ‘‘Mercitron,’’ which released carbon monoxide into a closed space.
Kevorkian’s career as ‘‘Dr. Death’’ came to an end when he allowed a video tape of him administering a lethal injection to a willing patient to be shown on national television. Under state law, this constituted murder, and Michigan authorities finally managed to put Kevorkian away in prison. Nonetheless, his activities, as well as the Dutch experience, contributed to the growing national debate on physician-assisted suicide.
Advocacy groups began going to court in the mid-1990s to challenge state laws against assisting suicide. A Seattle-based group called Compassion in Dying, which counseled patients wanting to end their lives, filed suit against a Washington State law prohibiting suicide assistance; after protracted litigation, it got the Court of Appeals for the Ninth Circuit to agree that a person had a liberty interest under the due process clause of the Fourteenth Amendment to end his or her life, and if necessary to secure and have help in doing so (Compassion in Dying v. Washington, 79 F.3d 790, 9th Cir. 1996).
On the East Coast, Dr. Timothy Quill, who had gained national renown as an advocate for physicianassisted suicide, challenged a New York State law under the equal protection clause of the Fourteenth Amendment. Quill argued, and the Court of Appeals for the Second Circuit agreed, that a person who was suffering from illness but not terminally ill had as equal a right to die as did a person in the final stages of an illness or on life support, who could terminate treatment (Quill v. Vacco, 97 F.3d 708, 2nd Cir. 1996).
The Supreme Court took both cases on appeal and, in Washington v. Glucksberg, 521 U.S. 702 (1997), and Vacco v. Quill, 521 U.S. 793 (1997), unanimously ruled that under neither the equal protection clause nor the due process clause did a constitutional right to assisted suicide exist. The opinions by Chief Justice William Rehnquist relied primarily on history— namely, that such a right had not been recognized at the time the Fourteenth Amendment had been adopted and could not be read into the document now; that the existence of a right to die recognized in Cruzan did not lead to such a right; and that states had the authority under their police power to forbid and criminalize the assistance of suicide.
But the unanimity in result is deceptive. Five justices wrote concurring opinions that in effect were dissents. They argued that while a right to physician- assisted suicide did not yet exist and the states had the power to ban such activity, if states tightened up end-of-life choices for the ill, then they would be willing to reopen the matter. Justice David Souter in his opinion explained how new rights could be developed under the Fourteenth Amendment and laid out the criteria for doing so. Those criteria, he believed, had not at the moment been met.
Also, the justices made it quite clear that this was an issue for the states and that if a state wanted to permit physician-assisted suicide, then it could so. Rehnquist pointed to the fact that Oregon had only recently adopted such a law and that it was within its authority to do so. In effect, the Court was trying to avoid the mistake it had made with abortion, deciding a question on broad constitutional grounds before the states had a chance to work out reforms at the local level.
Oregon had passed its law in 1997 as a result of two separate referendums. The law allowed physicians to prescribe lethal doses of barbiturates to patients who met very clearly delineated criteria. They had to be terminally ill, defined as being within six months of death by the best estimate of the attending physician; they had to be mentally capable; they had to make the request twice, and it had to be approved by two doctors; and so forth. The resulting deaths would not be considered suicide for insurance purposes, and neither the prescribing physician nor the pharmacist filling the prescription could be held criminally or civilly liable. Doctors could prescribe the medication, but could not administer the lethal doses.
Despite cries that Oregon would become the death capital of the world, in the first seven years that the law was in operation, only 208 persons (an average of about 30 persons a year) actually ingested their medication. The median age of those doing so was seventy. A larger number received prescriptions, but died before using them or chose not to take them. All in all, the careful conditions laid down by the law appear to have prevented abuse, and polls show that many people are happy that the law exists, even if they do not know whether they would use it. It provides a security blanket if they become terminally ill and risk losing quality of life. Moral critics decry the act as murder, while libertarians argue it should be extended to all sick and suffering persons, not just to the terminally ill.
Reflecting his moral views, John Ashcroft, attorney general in the first term of President George W. Bush, tried to negate the Oregon law by claiming that he had authority to punish doctors who prescribed the medication under federal law. A federal district court as well as the Court of Appeals for the Ninth Circuit rejected his claim, and in essence declared that he was an intermeddling busybody without any power over the states in this area. The Supreme Court took the case on appeal.
MELVIN I. UROFSKY
References and Further Reading