Vol. 14 No. 1 (January 2004)
PHYSICIAN-ASSISTED SUICIDE: THE ANATOMY OF A CONSTITUTIONAL LAW ISSUE, by Susan M. Behuniak & Arthur G. Svenson. Maryland: Rowman & Littlefield Publishers, Inc., 2003. 221 pp. $69.00. Hardcover. ISBN: 0-7425-1725-X.
Reviewed by Michele Goodwin, College of Law, DePaul University. Email: email@example.com
The "right to die" and similar terminology became fixed within the legal lexicon twenty-years ago. Its emergence was twofold, representing at once a movement highlighted by contentious and sometimes conflicting moral, psychological and legal issues, and, at the same time, a newer legal framework steeped in constitutional law. While seemingly "new" it is in fact an aged idea-a right to die-(dignity in death) that predates modernity. Justice Cardozo, for example, spoke forcefully to this after the turn of the twentieth century, when in SCHLOENDORFF v. NEW YORK HOSPITAL (1914), he opined that "every human being of adult years and sound mind has a right to determine what shall be done with his own body." However, to what extent and whether lawyers and physicians have a role in facilitating death became a question debated in the latter half of the twentieth century. This question was complicated by other factors; does it matter whether patients are competent? How does one interpret the wishes of the dying without clear evidence of a preference or consent?
Last year assisted suicide captured national attention, ostensibly brought into sharp focus with Florida's governor, Jeb Bush, intervening to stop Michael Schiavo from withdrawing life support, specifically a feeding tube, from his comatose wife, Terri. The case reverberated throughout the United States and became a highly political issue as the Florida state legislature took an unusual step by directly involving itself in the case, promulgating Terri's Law, which inevitably led to the reinstallation of Mrs. Schiavo's feeding tube, providing hydration and nutrition. It became clear that end of life decision-making, while seemingly clearly settled law, may still be ambiguous or at least politically contentious in the twenty-first century.
In CRUZAN (1990), the Court opined that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. But does that apply to one who is incompetent? Considering the CRUZAN opinion and the Patient Self-Determination Act of 1990, the issue of whether a competent or incompetent person may refuse life-saving treatment seems to have been well resolved-that authority is granted to patients (see, e.g., Paris and O'Connell 1990). But, Mrs. Schiavo's case is rife with political, legal, and moral implications. The constitutional issues involving incompetent patients have been heavily litigated in the states-e.g, BROPHY (1986), JOBES (1986), CONROY (1985), DINNERSTEIN (1978), Barber (1983), and Karen Ann Quinlan's saga, and their progeny-nonetheless, considerable debate continues about such questions as withdrawing hydration and nutrition, informed consent, privacy, verifying final wishes, and autonomy.
In their new book, PHYSICIAN-ASSISTED SUICIDE: THE ANATOMY OF A CONSTITUTIONAL LAW ISSUE, Susan M. Behuniak and Arthur G. Svenson broaden the "end of life" questions to include physician assistance. They document the struggle over physician assisted suicide (PAS), raising issues about the moral capacity of physicians, fiduciary responsibility, and the notions of "rights" associated with the style, timing, and method of dying. Although the readability of their well-documented manuscript is partially diminished by the book's organizational structure, the fairly comprehensive presentation of cases governing this discourse makes it a valuable resource. The authors focus primarily on end of life issues for competent, terminally-ill adults. By doing so, they eliminate the more controversial and contentious issues, which may involve children, the incompetent, and those who are not terminally ill, but wish for a painless death.
By contrast to the "beginning of life issues" that dominated public policy health issues and bioethics discourse over the past thirty years, the "end-of-life" issues, according to the authors, currently capture the attention of politicians, lawyers and judges today. The aging baby-boom generation-a "cohort that once challenged reproductive law and medical practice"-now confronts end-of-life conundrums and face decisions for themselves and their aging parents at a time when technology can both assist with maintenance of life and also facilitate death. While this point may be slightly overstated by the authors, it nevertheless underscores how demographic shifts in the United States are changing the discourse associated with rights and privacy to include issues involving the elderly and those with severely compromised health. But is this anything new? Euthanasia is a well-studied practice.
Robert Veatch, in his seminal work (which continues to demand attention), DEATH, DYING AND THE BIOLOGICAL REVOLUTION (1989), deals extensively with both the theoretical and more pragmatic issues (although more emphasis on the former) associated with dying. Indeed, over the past twenty years, a number of scholars, such as John J. Paris, Frank Reardon, Arthur Caplan and Francis Moore, have helped to define and explain the law's role in medical futility, including issues of privacy and autonomy. What Behuniak and Svenson offer readers, however, is a unique process-oriented understanding of how courts navigate a nuanced death and dying issue-that of PAS (other scholars refer to it as Physician Aid in Dying). Their book is offered as a case study of physician assisted suicide, drawing more upon abbreviated synopses or deeply edited cases, rather than a consistent narrative.
Behuniak and Svenson borrow directly from Alan Westin's, THE ANATOMY OF A CONSTITUTIONAL LAW CASE (1952) to structure their book. Such an approach was applauded nearly fifty years ago when Westin gained attention for his book, and indeed it has become a classic. Such an approach today has its undoubted strengths, presenting a balanced approach and being useful as a reference resource, but it also possesses weaknesses, which may detract from the authors' mission by perhaps appearing more as a reference guide than a theoretical work. Their book is not intended as an analytical approach to the topic, which might disappoint law professors interested in a robust discussion of the philosophical and constitutional arguments associated with physician assisted suicide. For example, the authors do not attempt to complicate the text with weighty discussions about human dignity, autonomy, privacy, informed consent and fiduciary responsibility. Rather, they begin with excerpts from articles, which differently frame physician assisted suicide.
PHYSICIAN-ASSISTED SUICIDE's strength may lie, however, in its usefulness as a supplementary tool rather than a primary source. To enhance and update Westin's model, the authors provide an introduction to each chapter, which helps to frame the documents presented later. Such documents range from article excerpts in Chapter One, to acts, codes, constitutional amendments and actual cases in succeeding chapters, and each chapter contains a section of questions for further consideration at the end. The book earns a place in bioethics libraries, because it presents legal and political processes in a manner often overlooked in works that exclusively address substantive law, while ignoring the evolution of a case.
Chapter One opens with an insightful overture, highlighting the competing legal and moral issues in the physician assisted suicide debate. It is a particularly strong chapter, as it provides a thorough introduction to the topic, explaining core concepts and ideas. The authors illuminate the two most critical issues considered by judges and jurors - consent and causation. They highlight the distinctions between active and passive participation in a patient's death, which ultimately centers on capacity or intent. To explicate, they suggest that withholding treatment is "passive" assistance to suicide; whereas "active" involves directly administering an injection. How a jury may differently interpret the two actions could best be captured by the legacy and saga of Jack Kevorkian, a pathologist, who acquired the moniker "Doctor Death."
Kevorkian is perhaps best known for his acts of civil disobedience by openly assisting patients' efforts to end their lives. That Americans were sympathetic to the pain and suffering of his "patients" was clear. Although charged three times in Michigan for his role in the deaths of patients, jurors refused to convict him. In those instances, Kevorkian's role was regarded as passive. That tide turned later when he was convicted of second-degree murder for active involvement in a patient's death who received a lethal injection directly from the doctor. Where is the line? What influenced jurors' decision-making? How has American opinion on euthanasia or physician assisted suicide changed over the past fifty years and why? Behuniak and Svenson raise the issues, and leave readers to find the answers in the language of cases.
A second strength of their case analysis is found in the early chapters, placing in context definitions that might elude the average reader, as the death and dying terminology is sometimes conflated. For example, how does the law distinguish terminal sedation, an arguably legally protected practice from voluntary active euthanasia? Although the authors do not provide an in-depth philosophical discussion of such questions, the problems are nonetheless raised.
To ground their consideration of case law, Svenson and Behuniak chart the unsuccessful efforts of PAS proponents to pass and implement death with dignity provisions in Oregon, Washington, California and New York. The authors note "litigants representing three different interests [in Washington] joined to challenge the constitutionality of that state's prohibition against PAS" (p.36). The litigants included a nonprofit corporation, Compassion in Dying, three terminally ill adult patients, and four physicians. The authors highlight the text of Oregon's Death with Dignity Act of 1994, the only successful provision of its kind to pass a referendum vote. PAS proponents in Washington who were defeated at the polls took their concerns to the judicial branch, as others did in New York at approximately the same time. However, opponents also sought the courts. In Oregon a group of litigants challenged the new legislation on grounds that it violated the constitution. The authors follow these stories through appeals, the U.S. Supreme Court, and post-judicial actions.
Because the book's focus does not become apparent until Chapter Two, readers may find this slightly distracting. For example, it is not explained within the first few pages that the book will follow three states along their journeys to address patient autonomy and physician-assisted suicide by studying referenda, statutes, cases, and judicial decisions.
The authors conclude with executive, legislative and judicial responses to physician assisted suicide. Each of the three cases, from Oregon, New York, and Washington, are ultimately addressed by the United States Supreme Court, and in each case, in 1997, the Court upholds state action, leaving the issue of physician assisted suicide to voters and legislators. In this way, the law is ever evolving and represents the collective consciousness of a community.
Behuniak and Svenson have collected a strong set of materials to enhance any discussion of physician-assisted suicide. Their book belongs among the top few of critical guides to legislative and judicial rule-making in the PAS area.
Paris, John J., and Kevin O'Connell. 1990. "The Patient Self -Determination Act of 1990." 5 CLINICAL ETHICS REPORTER 1.
Veatch, Robert M. 1989. DEATH, DYING, AND THE BIOLOGICAL REVOLUTION: OUR LAST QUEST FOR RESPONSIBILITY. New Haven: Yale University Press.
Westin, Alan F. 1952. THE ANATOMY OF A CONSTITUTIONAL LAW CASE: YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, THE STEEL SEIZURE DECISION. New York: Columbia University Press.
BARBER v. SUPERIOR COURT, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (Ct. App. 1983).
BROPHY v. NEW ENGLAND SINAI HOSPITAL, INC., 398 Mass. 417, 497 N.E. 2d. 626 (1986).
IN RE CONROY, 98 N.J. 321, 486 A.2d 1209 (1985).
CRUZAN v. MISSOURI DEPARTMENT OF HEALTH, 110 S. Ct. 2841 (1990).
IN RE DINERSTEIN, 6 Mass. App. Ct. 466, 380 N.E. 2d 134 (App. Ct. 1978).
IN RE JOBES, 210 N.J. Super. 543, 510 A.2d 133 (Super Ct. Ch. Div. April 23, 1986), review denied (N.J. March 10, 1986), cert. granted (N.J. Sept. 10, 1986), No. A-108/109, slip. Op. (N.J. June 24, 1987).
IN RE QUINLAN, 70 N.J. 10 (1976).
SCHLOENDORFF v. NEW YORK HOSPITAL, 211 NY 125 (1914).
Copyright 2004 by the author, Michele Goodwin.