Should Physician-Assisted Suicide be Legal?
Throughout the twentieth century, major scientific and medical
advances have greatly enhanced the life expectancy of the average person.
However, there are many instances where doctors can preserve life
artificially. In these cases where the patient suffers from a terminal
disease or remains in a "persistent vegetative state" or PVS from which
they cannot voice their wishes for continuation or termination of life, the
question becomes whether or not the patient has the freedom to choose
whether or not to prolong their life even though it may consist of pain and
suffering. In answer to this question, proponents of physician-assisted
suicide, most notably, Dr. Jack Kevorkian, are of the opinion that not only
should patients be able to abstain from treatment, but if they have a
terminal and/or extremely painful condition, they should be able to seek
out the assistance of a doctor in order to expedite their death with as
little pain as possible. Contained herein are the arguments for and against
the le galization of doctor-assisted suicide, as well as where the state
courts stand in respect to this most delicate of issues. In the hopes of
clarification, we must first distinguish between active and passive
euthanasia. Passive euthanasia involves the patient's refusal of medical
assistance. It involves the right to die which is protected by the United
States Constitution clauses of due process liberty and the right to privacy
(Fourteenth Amendment). The right to doctor-assisted suicide, or active
euthanasia, consists of, "...a patient's right to authorize a physician to
perform an act that intentionally results in the patient's death, without
the physician's being held civilly or criminally liable for having caused
the death" . The "passive" form of euthanasia was first deemed legal by the
New Jersey State Supreme Court in 1976 In re Quinlan . In the Quinlan case,
the court allowed a competent patient to terminate the use of life-
sustaining medical machines to prolong life. Since New Jersey's decision,
all fifty states have enacted similar statutes which contain living will
provisions. However, although the United States Supreme Court upheld the
Quinlan decision in re Cruzan , it changed the parameters of passive
euthanasia . With the Cruzan decision, the Supreme Court held that passive
euthanasia was legal but only for competent adults or those who are
incompetent but have previously procured a living will. However, if the
patient is without a living will and incompetent, it becomes the burden of
the family to prove that there is "clear and convincing evidence" to the
affect that the patient does not want to continue living in a vegetative
state. As to active euthanasia, there has been no Supreme Court ruling
determining whether the right to die, as understood in passive euthanasia
cases, can be bound over to active euthanasia. The decision is thus left to
the individual states. Currently, thirty-one states have criminalized
explicitly the a ct of assisted suicide . Physician-assisted suicide is
generally recognized as illegal under the parameters of homicide, however
it is very difficult to meet all of the elements of the crime and
conviction subsequently becomes nearly impossible. The fact that the U.S.
Supreme Court has not reviewed a physician-assisted suicide case, which
would create precedent, constitutes a dilemma for the state courts in that
there is no uniform test or ruling by which to decide. Most states have
developed their own laws to, more often than not, make doctor-assisted
suicide illegal. However, when a case comes to trial it is usually
dismissed either by the judge in a pretrial motion or by the jury. For
example, in at least three of the assisted suicides which Dr. Kevorkian was
involved in, all criminal charges were dismissed. So, the laws have been
created, but when it comes to convicting a doctor and sending him to prison,
in lieu of the circumstances, the law often breaks down and the charges are
dismissed or the doctor is acquitted. In the case of the nineteen states
which have not delineated the criminality of doctor-assisted suicide, the
issue becomes less clear. Many of these states have a hard time grouping
physician-assisted suicide with homicide. The case which Michigan judges
cite in refusing this linkage of criminality is the People of the State of
Michigan v. Campbell . In the Campbell case, the "court found that 'the
term suicide excludes by definition a homicide'" . Since, suicide is not
a homicide, then an assisted suicide cannot be deemed a homicide. At the
time of the appellate courts hearing of the Campbell appeal, there was no
other codified law expressing what crime an assisted suicide would fall
under and the homicide charges were dismissed. Anti-active euthanasia
proponents feel that it is the duty of physicians to help and heal patients
as opposed to hastening their exit from this world. They also fear that
the legalization of doctor-assisted suicide may be abused by doctors who
do not feel that there is any hope for the patient and counsel them to
terminate their life. The state also has an interest in the life of the
individual. The individual state was originally set up to protect the
rights of individuals and to see that "the value of an individual's
life...and the value of life to society as a whole" is protected. The
value of an individual's life includes their personal well-being and
safety from harm, even if it is self- inflicted. So, it has now become
the duty of the individual states to balance the interests of the state
against the interests of the individual patient in order to come up with
a law which is accommodating to both. Persons who are for active
euthanasia believe that legislation against it is "violative of the
fundamental concepts of liberty, freedom of choice, and self-determination"
They base these beliefs on the text of the fourteenth amendment to the
United States Constitution. The voluntary choice between life and death
is, to them, a basic human right which the government has no right to
legislate. They often compare this choice of euthanasia to the right to
abortion. Judge Lynn Compton embodies these views in her opinion in the
case of Bouvia v. Superior Court , "If there is a time when we ought to
be able to get the government 'off our backs', it is when we face death-
either by choice or otherwise" . The trend in the law seems rather
obviously to be against the legalization of physician-assisted suicide.
This is clear due to the thirty-one states which have already incorporated
the act into their penal codes as being illegal. As to the other states,
there is much controversy as to it's legalization. Although in popular
polls, the general public seems to be in favor of active euthanasia's
legalization, the courts in all of the states find that the possibility
for infraction of the statute supersedes the wishes of the patient. The
courts aim to protect doctors from civil suits, patients from doctor's
advisory abuse, and the country's general policy of the sanctity of life.
In the courts view, passive and active euthanasia are two
entirely different things. One involves the withholding or cessation of
care which may or may not end up in death and the other involves a doctor's
administration of a lethal substance with the specific intent of impending
death. In other words, one entails allowing death to occur without doctor
intervention and the other is killing, albeit "mercy" killing. Based on my
research, it seems clear that the effort to legalize active euthanasia is
one that is not going to go away in the near future. This is especially due
to the spread of the AIDS virus and other incurable diseases. However,
although I feel that it should be legalized with certain provisions, I
cannot foresee it's uniform, federal regulation in the near future,
especially with a conservative Supreme Court as is sitting today. Presently,
there are twenty-one states which allow citizen legislation through the use
of the general election ballot. In these states, special interest grou ps
which support active euthanasia have placed initiatives on the ballot. An
example of one of these groups is the California based Americans for Death
with Dignity or ADD . The DDA designed a statute, proposition 161, that
would legalize doctor-assisted suicide. The statute was also created "with
extraordinary care to provide all reasonable precaution to protect against
the risks" of legalizing the practice of active euthanasia. One of the
clauses of the statute which aims at the prevention of abuse is that the
statute would only allow licensed physicians to partake in helping someone
end their life. Although proposition 161 was not passed, it is a reflection
of the general population's sentiment that active euthanasia should not be
illegal. At the time of the publication of this article, California,
Washington, Oregon, and Michigan were preparing or has already proposed
general election initiatives which would permit aid-in-dying by physicians.
The act of taking a life is a serious one. The American people are
notoriously weary of it's implementation, as can be seen in the case of
capital punishment. Although, active euthanasia is consensual, the paradox
which lingers in the term "physician-assisted suicide" is difficult for
lawmakers and citizens alike to consent to.
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