The Right to Physician-Assisted Suicide

“We are all going.” –William McKinley[1]

            President McKinley’s last words were and are true. Everyone dies. This truth may incite fear in some; some may feel joy, while others still may feel indifferent toward the notion of death. Yet no matter how people feel about death, they will all face it. In the time we are given we want to choose how to live our lives and, legally, the right to live the way we choose is assured. A modern day question, and the topic of this paper, is whether we ought to have the legal right to choose how we die as well.

This idea of halting medical assistance to allow a patient to die peacefully conforms to the mindset behind legislation in France which says that when medicine serves “no other purpose than the artificial support of life [it can be] suspended or not undertaken.” [2] Indeed, in other areas of the world, the right to physician-assisted suicide is not a debate. Luxemburg, The Netherlands, and Switzerland all offer avenues in which a terminally ill patient may seek out physician-assisted suicide.

            In July of 2011, 55% of respondents to a survey of American citizens said that they were in favor of physician-assisted suicide as an option for terminally ill patients. The survey asked over 6,000 respondents of various age groups and from locations all over the United States about their opinions. The survey polled citizens from ages 18 to late-80s. The survey was not confined to a specific socio-economic class or ethnic group. The result was very clear: a majority of Americans are not opposed to physician-assisted suicide.[3]

            This result is not abnormal in the modern world. Polls around the globe suggest that people are becoming increasingly supportive of the right to physician-assisted suicide, but their governments’ laws do not reflect this. In 2007 a British Social Attitudes report surveyed 3,000 citizens of the UK to find that 80% supported voluntary euthanasia. Since then, the UK has not adopted any new laws to allow physician-assisted suicide or take previous laws banning the practice off the books.[4] The situation is similar in Australia. In 2009 a Roy Morgan poll commissioned by the Voluntary Euthanasia Society of NSW (New South Wales) found that 85% of Australians supported voluntary euthanasia. Another poll published by News Limited in 2010 suggested that 78% of Australians wanted the laws banning euthanasia in Australia off the books.[5]

Despite this fact, only three U.S. states have adopted laws that allow terminally ill patients the option of physician-assisted suicide. In a country that prides itself on individual liberties, why are there laws in place in 47 states that prevent people from a medical option that can save them from pain and suffering toward the end of their life? The right to die is a fundamental one. Physician- assisted suicide ought to be a protected legal option available to all terminally ill patients in America.

            Those who oppose the right to physician-assisted suicide would argue that legal protection for the option is contrary to American tradition, and that there is no text in the Constitution that would support a federal government initiative to ensure the right. The only other argument that can be made is a moral one: the result of the law would be an undesirable one. However, the only people this would directly affect would be the people that desire that specific result.

            We can first refute the arguments that there is nothing in the Constitution that can support the right to physician-assisted suicide. The Ninth Amendment clearly states; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[6] In other words, just because a right is not specifically written down in the Constitution doesn’t mean it doesn’t exist. On the contrary, if there is a question of whether a right exists or not when it is not enumerated in the Constitution, it is to be assumed that the right does exist. In this case, the argument that physician-assisted suicide should not be a right because it isn’t in the Constitution fails due to the Ninth Amendment.

            The tradition argument can be countered in multiple ways, firstly, by referring to America’s pre-eminent document on what America stands for: The Declaration of Independence. If the Declaration of Independence is to be taken as a document detailing America’s most basic values then it should hold significant bearing on any tradition argument. The Declaration asserted that all men were created equal with certain “unalienable rights”[7] which included “life, liberty, and the pursuit of happiness”[8].

            This matters because in the case of terminally ill patients, sometimes liberty and the pursuit of happiness are best served by having the option to end one’s own life. One of America’s strongest and longest-standing traditions is the value of individual liberty and ability to make choices on how to run one’s own life. Allowing the option expands the liberty of the individual to choose how to run their life. Likewise, if terminally ill patients are facing immense suffering over the course of months before passing away, it makes sense that they could be happier if they have the choice to pass away without encountering the pain that comes with their fatal disease.

            There is not much in the way of precedent that relates directly to the right to physician-assisted suicide at this time. The strongest precedent in favor of the right to die comes from the Montana Supreme Court which ruled in Baxter v. Montana that physician-assisted suicide was not in conflict with any law they already had on the books.[9] The original lawsuit was brought by four physicians working in Montana and Robert Baxter, a 76 year old truck driver dying of leukemia. The Montana district court decided that there was a constitutional right to physician-assisted suicide, but this decision was appealed to the state supreme court. Robert Baxter died of complications from the leukemia before the state supreme court made its decision. In December of 2009, the Montana Supreme Court ruled in favor of physician-assisted suicide asserting that “nothing in Montana Supreme Court Precedent or Montana statutes indicated that physician aid in dying is against public policy.”[10]

In Gonzales v. Oregon, the Supreme Court of the United States ruled that the Federal Government could not regulate the option away from states that had already decided in favor of physician-assisted suicide.[11] Attorney General John Ashcroft argued that the federal Controlled Substance Act could stop states from allowing doctors to prescribe medicine that would be used for suicide. The majority opinion, as authored by Justice Kennedy, found that while the federal government did have power to enforce the Controlled Substances Act, it did not have the power to regulate how legal medicine is to be used within states.[12] This ruling significantly strengthens a state’s ability to choose to have physician-assisted suicide as an option within the state.

On top of that, Supreme Court cases regarding contraceptives and abortions, two topics that involve the right to privacy, can be used as precedent to support the right to physician-assisted suicide. Griswold v. Connecticut and Roe v. Wade are prime examples of how the Supreme Court has ruled in favor of individual liberties over moral objections. If stare decisis is followed by the members of the Supreme Court, then the right to physician-assisted suicide could logically follow the decisions made in these cases.

In 1965, the Supreme Court heard the case of Griswold v. Connecticut. The Griswold case is a question of the right to contraceptives.[13] In the early sixties, Connecticut had a law on the books that made it a crime to use contraceptives. By a vote of 7-2, the Supreme Court overturned the Connecticut law. Justice Douglas wrote in the majority opinion that, while there was nothing in the Bill of Rights that directly allocated the right to privacy to all American citizens, there was enough evidence to suggest that individual privacy was an implied goal within the Constitution. Concurring opinions written by Justice Goldberg and Harlan argued that the right to privacy could be found within the purpose of the Ninth and Fourteenth Amendments respectively.

Griswold is significant because it is the first Supreme Court decision where a majority agreed that there was a fundamental right to privacy. This right to privacy has had staying power within Supreme Court precedence ever since. When an earlier test case came before the Supreme Court for the same issue, it was handed down, but in his dissent, Justice Harlan asserted that “The full scope of liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.”[14] This argument is the same as the Constitutional argument for the right to physician-assisted suicide.

In 1973, the Supreme Court released its decision on Roe v. Wade, one of the most controversial Supreme Court decisions in history due to the impact of the decision on pre-natal life. Though the moral implications are still being questioned today, the court’s decision, a solid 7-2, found that a woman’s right to medical privacy pre-empted state interests in protecting pre-natal life.[15] This is significant because the right to privacy that was introduced in Griswold is expanded to cover privacy in the context of medical decisions. The right to physician-assisted suicide is a medical decision. Like with the use of contraceptives and abortions, physician-assisted suicide is viewed as immoral by some groups. However, in Supreme Court precedent, privacy, specifically medical privacy, has been accepted as more important than moral objections.

            In order to understand how important the link between the Roe v. Wade precedent, the Griswold v. Connecticut precedent, and the issue of physician-assisted suicide is, it is necessary to review the history of the right to privacy. The right to privacy was first introduced to America’s jurisprudence through the writings of Louis Brandeis and Samuel Warren.[16] The two wrote about the right to privacy in the context that, in the modern world, when considering technological advancements, it is necessary to accept that there are new fundamental rights that should be protected that never needed to be protected before. The arguments that were made in favor of the right to privacy were largely policy arguments that asserted that, without a fundamental right to privacy, the government and other people could get into people’s lives at will without restriction. In modern day, the right to privacy has been extended to medical privacy where individuals’ medical decisions belong to them alone and should not be made by the government. Roe v. Wade, and the subsequent Planned Parenthood v. Casey[17], established that medical privacy is a fundamental right to the degree that the government cannot dictate that a woman must carry a pregnancy to term.

            If the government cannot force a woman to carry a pregnancy to term, can the government force a terminally ill patient to suffer and die when there is a medical option to prevent the suffering? Past precedent on medical privacy seems to suggest that the government ought not to have this power. To the contrary; the precedent involving the right to privacy seems to suggest that patients should always have the final say on medical decisions that are made. If this interpretation of the precedent is to be accepted, then it will fit well with the public opinion on the issue of physician-assisted suicide. Some critics of the Supreme Court have argued that the court can rule against public opinion without having to answer to anyone. In this case, the Supreme Court does not risk such controversy.

            It ought to be addressed that there is Supreme Court precedent that does not conform to the argument that the right to physician-assisted suicide is a fundamental right. In 1997 the Supreme Court ruled unanimously that the ban on physician-assisted suicide in the state of Washington was constitutional. Washington v. Glucksburg resulted in a decision that is clearly contrary to the legal acceptance of the right to die[18].

            The original case came out of Washington in 1996. Dr. Harold Glucksburg, a number of physicians, and a handful of terminally ill patients challenged Washington’s state-wide ban on physician-assisted suicide. They argued that assisted suicide was a fundamental due process right that was protected under the Fourteenth Amendment. The District Court that heard the case originally ruled in favor of Glucksburg. When the case came before the Ninth Circuit Court of Appeals it was reversed, but after the court heard the case again en banc, the Ninth Circuit also ruled in favor of Glucksburg. When the Supreme Court heard the case, however, they ruled against Glucksburg, citing traditions arguments.[19]

The decision in Washington v. Glucksburg was come to through the influence of precedent and tradition arguments. The Supreme Court in Moore v. City of East Cleveland asserted that when determining substantive due process rights, there are limits that must be drawn from “respect for the teachings of history [and] solid recognition of the basic values that underlie our society.”[20] In Washington v. Glucksburg, the majority opinion cited the Moore case as its precedent reasoning behind its decision. This is important because we can see that the reasoning behind the Washington v. Glucksburg opinion hinges on the tradition argument primarily.

            As has been addressed, the tradition argument against physician-assisted suicide has some flaws. The argument fails to take into account competing traditions, evolving mindsets, or a clear infringement on medical privacy rights already recognized. In fact, in less than ten years after this case was heard in the Supreme Court, the state of Washington voted on and approved the Washington Death with Dignity Act, a state law allowing physician-assisted suicide.[21] Pursuant to these weaknesses within the tradition argument, the Washington v. Glucksburg argument is weak. This precedent ought to be overturned and replaced with precedent finding in favor of the right to physician-assisted suicide and the continuation of precedence on medical privacy rights.

            Precedent and a new evolving tradition are not the only things we should take into account. If we consider the policy implications on both sides it is very clear what decision is right for American citizens. If states can ban access to a medical procedure that is specifically designed to prevent people from suffering without directly affecting any other person, then what else can the government do in the realm of making medical decisions for patients? On the other hand, if we allow terminally ill patients to make the decision to end their lives before they suffer, then the result would be that terminally ill patients could prevent the suffering that they are facing. It is as simple as that. In evaluating whether these two results are acceptable, it is necessary to consider the positives and the negatives for both possibilities.

The result of a ban on physician-assisted suicide has the positive aspect of ensuring that no terminally ill patients have the risk of being euthanized against their will. Gerald Dworkin, an expert on ethics in medicine wrote, “The moment we begin to define who can and cannot die, we are ultimately leading ourselves to new questions of who should and should not die. This is the same reasoning behind the eugenics movement and argument that spawned such horrors as the Holocaust.”[22] Dworkin’s hyperbolic language is unfounded, as the evidence suggests: laws allowing physician-assisted suicide correlate with less unwilling euthanasia incidents.[23] The negative aspects include the fact that terminally ill patients have certain medical options that are not available to them; their right to medical privacy is infringed to the extent that the government requires them to either be treated for an incurable disease or waste away until they die when they could avoid undue suffering. Under the ban, terminally ill patients would not be given the dignity to choose to avoid immense suffering, nor would the full extent of liberty be available to them.

            If the right to physician-assisted suicide was assured, the negative aspects may include negative reactions from family-members of the terminally ill patients if they are not in favor of the policy. If the physician-assisted suicide laws reflect those that have been accepted in states like Washington and Oregon already, then the risk of terminally ill patients being euthanized against their will is eliminated. The positive aspects include the fact that the right to medical privacy would be protected. Terminally ill patients would have the right to choose whether to struggle and suffer or to end their lives before facing such pain. Terminally ill patients would be treated with dignity, without government involvement denying crucial medical options to them.

            Terry Pratchett, the author of the personal documentary “Choosing to Die,” compared the thought of dying to a metaphorical cliff, saying, “I live in hope that I can jump before I am pushed.”[24] Death is a natural part of life, as is suffering. For thousands of years people have had the means to end their own life in favor of suffering fatal diseases. Governments, being entirely human institutions, are distinctly unnatural in the course of an individual’s medical decision making. While we have evidence to suggest that a majority of Americans favor the right to physician-assisted suicide, this does not mean that every individual is planning on utilizing the right. Terry Pratchett’s documentary on physician-assisted suicide ends with him witnessing a man take a prescribed drink that puts him to sleep and then stops his heart.

The scene is a somber one. The man is surrounded by his loved ones and his wife is by his side. After being asked twice if he is sure he wants to go through with the action, and confirming, he takes the drink. The man indicates that the drink did not taste very good and takes a sip of water. His wife makes a comment about how, throughout their marriage, she would always rub his hand until he fell asleep at night. We see her rubbing his hand and staring into his eyes. After about a minute, the man closes his eyes and begins to snore. After another minute or two passes, his snoring quiets and eventually falls silent.[25]

After the scene, Terry looked visibly shaken. He made a comment about having seen “the bravest man” he had ever known. Toward the end Terry admits that he does not know if he has the courage to take that final leap. Despite this, he asserts that he firmly believes that an individual’s right to make that choice is fundamental. He ends his documentary by saying that he intends to spend his final years fighting for that right in his home country of England.[26]

            Requiring individuals to suffer through terminal illnesses, and denying them the right to physician-assisted suicide is contrary to America’s founding texts. A ban does not allow for the rights of “liberty” and “the pursuit of happiness.” On the contrary, it denies individuals these most fundamental rights. Denying the right of physician-assisted suicide is contrary to the holdings in Griswold v. Connecticut, Roe v. Wade and Planned Parenthood v. Casey– a Supreme Court case that largely upheld the decision in Roe v. Wade, thereby making the precedent even firmer.[27] All of these cases iterated the necessity of privacy and individual liberties. All of these cases are controversial to the degree that the decisions associated with them possibly affect the rights of more than just the individual who is making the medical decision; however, in the case of physician-assisted suicide, it is clear that there is only one life that hangs in the balance. There is only one person’s rights that need protections.

            A ban on physician-assisted suicide was never within the intent of the founders. Though many of the founding fathers were pious Christians who may have frowned on suicide, the clear motive behind their early works was ensuring individual liberty. The clear intention of the founders, both Federalists and Anti-Federalists, was to create a new nation where people were afforded the greatest amount of liberty possible. In our modern age, we should not reject a fundamental right that is a part of the liberty that the founders intended us to have. The founders were also invested in creating a democratic government that would create laws that reflect the needs and wants of the people. If the Truven polls are correct, then the government needs to do more to ensure that the right to physician-assisted suicide is guaranteed, because that is what Americans want. The policy to allow physician-assisted suicide is a good one. If allowed, the result would be the attribution of a fundamental right to choose one’s fate in the face of terminal illnesses. This would allow greater liberty and less of a government influence in an individual’s medical decision-making.

            The most cited argument against the proposal to allow physician-assisted suicide is that the right to die has never been traditionally considered as a fundamental right. The counter-argument is two-fold. To a certain degree there is a competing tradition that comes in the form of individual liberties. Liberty is chief among America’s most important values, and has been since the founding. In supporting individual liberties, but denying the right to physician-assisted suicide, American tradition is contradicting itself on the point. The second counter-argument is that there is a new emerging tradition. As the Truven Health Analytics survey shows, a majority of Americans now favor the right to physician-assisted suicide.[28] This matters because it reflects that Americans today favor the tradition of individual liberties as well as showing a new opinion about what those individual liberties include.

            The right to physician assisted suicide is a fundamental right. America’s culture is ever-evolving. If there are any founding values that America holds dear it is the value of individual choice, liberty, and pursuit of happiness. The text shows the intent of the founders, traditions are evolving, the precedent is set, and the common-sense policy is clear. When the precedent, text, public opinion, tradition, and policy are all on one side, the law ought to reflect it. Whether through the courts, or through the legislature, the United States should ensure that all terminally ill patients have the right to die with dignity.

 


[1] Scott Miller, The President and the Assassin. New York: Random House. (2011). p. 320 

[2] McDougall, Jennifer Fecio; Gorman, Martha (2008). Contemporary World Issues: Euthanasia. Santa Barbara, California: ABC-CLIO.

[3] Truven Health Analytics, Health Poll: Physician Assisted Suicide. (2012, December) retrieved 1/28/13 from http://healthcare.thomsonreuters.com/npr/assets/NPR_reports_PhysicianAssistedSuicide_1212.pdf

[4] Most Support Voluntary Euthanasia (2007, January 24). BBC News. Retrieved 4/2/13 from http://news.bbc.co.uk/2/hi/health/6293695.stm

[5] Euthanasia Billboard Approved (2010, October 4) The Sydney Morning Herald. Retrieved 4/2/13 from http://news.smh.com.au/breaking-news-national/euthanasia-billboard-approved-20101004-162×7.html

[6] U.S. Constitution, Bill of Rights, Amendment 9.

[7] Declaration of Independence

[8] id

[9] Baxter v. Montana (2009) Montana Supreme Court. MT DA 09-0051

[10] Id.

[11] Gonzales v. Oregon (2006). United States Supreme Court. 546 U.S. 243

[12] Id.

[13] Griswold v. Connecticut (1965) United States Supreme Court. 381 U.S. 479

[14] Poe v. Ullman, (1961) United States Supreme Court. 367 U.S. 497

[15] Roe v. Wade, (1973) United States Supreme Court. 410 U.S. 113

[16] Louis Brandeis & Samuel Warren, The Right to Privacy, Harvard Law Review vol. IV no. 5 (1890).

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) United States Supreme Court. 505 U.S. 833

[18] Washington v. Glucksburg (1997). United States Supreme Court. 531 U.S. 702

[19] Id.

[20] Moore v. City of East Cleveland (1977). United States Supreme Court. 431 U.S. 494

[21] The Washington Death with Dignity Act (2008) retrieved 4/1/13 from https://wei.sos.wa.gov/agency/osos/en/Documents/I1000-Text%20for%20web.pdf

[22] Dworkin, Gerald, et al. (2004) Euthanasia and Physician-Assisted Suicide: For and Against. Cambridge University Press. P. 177

[23] CJ Ryan, Pulling up the Runaway: The Effect of New Evidence on Euthanasia’s Slippery Slope. “Euthanasia in The Netherlands” Vol. 25 pp. 60

[24] Terry Pratchett, (2011) Terry Pratchett: Choosing to Die. Retrieved 3/5/13 from http://topdocumentaryfilms.com/terry-pratchett-choosing-to-die/

[25] Id.

[26] Id.

[27] Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) United States Supreme Court. 505 U.S. 833

 

[28] Truven Health Analytics, Health Poll: Physician Assisted Suicide. (2012, December) retrieved 1/28/13 from http://healthcare.thomsonreuters.com/npr/assets/NPR_reports_PhysicianAssistedSuicide_1212.pdf

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One response to “The Right to Physician-Assisted Suicide

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