Vol. 17 No. 1 (January, 2007) pp.5-10

 

THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA, by Neil M. Gorsuch. Princeton and Oxford: Princeton University Press, 2006.  320pp.  Cloth. $29.95 / £18.95. ISBN: 0691124582.

 

Reviewed by Stephen Arons, Department of Legal Studies, University of Massachusetts, Amherst. Email: arons [at] legal.umass.edu.

 

For more than twenty-five years a rough consensus has existed among physicians, biomedical ethicists and healthcare experts that competent patients have the right to refuse unwanted medical care, even life-sustaining care, and to secure their autonomy in these matters through advance directives that become effective upon the loss of legal competence. A considerable body of law has been built up based on this consensus, and some of the rights to control one’s medical treatment have taken on a constitutional coloration. Much of this consensus, and of the law in which it is now embedded, focuses on which kinds of physician assistance are appropriate in the provision of end-of-life care. One of the thorniest issues, but by no means most important, is physician-assisted suicide.

 

In an era in which the demographic bulge known as the Baby Boomer Generation makes mortality intrude on the consciousness of more and more of us, it should come as no surprise that end-of-life care issues have become increasingly important questions of law and public policy, as well as of medicine, healthcare and ethics. But the thoughtful, informed and humane consideration of these questions is hindered by a new battle in the apparently endless culture wars. End-of-life treatment and care are increasingly subjected to scrutiny by ideologues, protests by religious zealots, and legislative campaigns by interest groups whose agendas extend far beyond those concerns. Complex, idiosyncratic and usually painful personal decisions, heretofore made privately by patients, families and physicians, are becoming more public, more political and more removed from the real context of death and dying in America.

           

As a result of this burgeoning conflict, the medical, ethical and healthcare consensus that has supported the right to make decisions about one’s own medical care may now be threatened, and the quality of end-of-life care may be undermined across the board. A number of doctors and nurses have been subjected to criminal or civil accusations for providing palliative care or for following a patient’s expressed wishes to terminate unwanted life-sustaining or death-prolonging treatment. In a number of these situations, the accused have been fully exonerated, but not before their careers and personal lives were destroyed or seriously disrupted (Cohen, et al. 2006). In one case, a Kansas physician was convicted of first-degree murder and attempted murder and served six months in a maximum security prison before an appeals court not only reversed his conviction, but heeded the medical testimony that the jury had ignored and directed a verdict of acquittal on both counts (KANSAS v. NARAMORE 1998). [*6]

 

In the aftermath of the Terri Schiavo case, the U.S. Congress and many individual states began considering legislation that would have a chilling effect on palliative care medicine, crimping the use of advance directives and undermining the autonomy principle in medical care for millions of Americans (Lazzarini, et al. 2006). The Schiavo case was about the right to refuse treatment, although the political and media spectacle attached to the family’s tragedy often made it seem that the issue was euthanasia or homicide. The subsequent legislative campaigns attempt to create laws to prevent the withdrawal or refusal of some forms of life-sustaining medical treatment even when a patient has an advance directive clearly indicating her personal decision in the matter. The model bill adapted for introduction in over twenty states – the Starvation and Dehydration of Persons with Disabilities Prevention Act – was drafted by the National Right to Life Committee. In his veto message responding to a like-minded bill passed by the Wisconsin Legislature in 2005, Governor James Doyle, wrote, “This bill lets your doctor put his or her political beliefs ahead of your medical best interests.”

 

On the national level, the US Attorney General sought to up-end Oregon’s Death with Dignity Act by issuing an order in 2001 that would have exposed every physician in the nation to the chilling possibility of a DEA hearing about the physician’s intent in prescribing pain relief medications listed on Schedule II of the Controlled Substances Act. A number of amicus briefs filed by palliative care doctors, medical associations and biomedical ethicists pointed out to the courts that if the order were upheld, not only would Oregon’s law be nullified, the practice of palliative care medicine around the country would be undermined. In 2006, the US Supreme Court agreed with the lower federal courts that the Attorney General had exceeded his authority under the CSA (GONZALES 2006). But six months later legislation was introduced in Congress to give the attorney general the authority denied by the Court’s ruling.

 

Out of the glaring lights of political and legislative action in the culture war, the undermining of the generation-old consensus about patients’ rights in end-of-life medical treatment continues. Even the principle of individual autonomy itself – the liberty that lies at the heart of constitutional democracy in America – is being deconstructed in efforts to promote beneficent paternalism in medicine, to increase the control of the state over individual lives, and to advance particular concepts of the meaning of life (President Bush’s Council on Bioethics 2005).

 

THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA, written by Neil Gorsuch before he became a judge on the Tenth Circuit Court of Appeals in July, 2006, is a welcome antidote to the poisonous politics of one aspect of the end-of-life care debate. It is thoughtful and temperate in its philosophy, carefully reasoned in its doctrinal analysis, and mostly free of the polemics that often characterize the debate over PAS and the right to refuse unwanted medical treatment. Gorsuch [*7] sees the main contribution of the book as its articulation of an argument against PAS based on the principle that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong” (p.157).

 

In a world in which violence rages nearly everywhere and in which life seems to have become cheap even to those who claim to be protecting it, Gorsuch’s statement of the inherent value of life is welcome indeed. But perhaps the greatest strength of his book is that Gorsuch argues for the protection of many of the uses of the right to refuse life-saving medical treatment, even as he mounts a strong case against physician-assisted suicide:  “the inviolability-of-life view I espouse represents something of a mean between two extremes—between the extreme of those who would deny equal treatment to some person’s lives and effectively declare them less than fully human and the other extreme of those who would demand that the respirator never be pulled, or the feeding tube never withdrawn out of rigid adherence to a view that life must be categorically preferred to any other end or good” (p.164).

 

The argument against physician-assisted suicide in THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is carefully laid out. Gorsuch derives four key questions from his reading of the six opinions in the Supreme Court’s unanimous decisions in WASHINGTON v. GLUCKSBERG and VACCO v. QUILL, holding that state criminalization of physician-assisted suicide violates neither constitutional liberty rights nor the principle of equal protection. The four questions concern: 1) the historical precedent for legalization of PAS, 2) the equal protection problem of allowing terminally ill patients on life support to have the assistance of doctors in hastening and easing their deaths by removing life support and providing palliative care, while preventing terminally ill patients who are not on life support from having the assistance of their doctors in hastening and easing their deaths, 3) the role of the principles of personal autonomy and self-determination in considering the justifiability of physician-assisted suicide, and 4) the utilitarian calculus about whether legalizing PAS would provide the greatest good for the greatest number of persons.

 

After devoting a chapter to each of these issues, Gorsuch constructs, explains, and tests out his principle of the inviolability of human life as an argument against legalization of PAS. He also suggests questions about the constitutionality of Oregon’s Death with Dignity Act, and inserts an epilogue briefly exploring GONZALES v. OREGON, the problem of managing pain in the terminally ill, and developments in other countries. Gorsuch gives a nod to some of the arguments and perspectives that do not support his position, and he evaluates them without demagoguery. But he also discusses opposing ideas without crediting them with their full potential. It is the lawyer’s brief-writing tactic; not unfair but not really enlightening either. The writing itself is accessible to most people familiar with the rudiments of law and biomedical ethics, and the focus [*8] is narrow enough to allow the author to make some sharp-edged arguments and to score some doctrinal and philosophical points. The book is interesting, and it discusses a topic of importance not only to the study of law and society, but to each of us individually.

 

But the primary weakness of the book is that its approach, while not insensitive at all, is nonetheless too detached from the realities to which its ideas are meant to apply. THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is too abstracted from context. Despite its occasional references to particular cases and to the problems of a few categories of people with end-of-life care issues, Gorsuch’s book is more focused on solving an interesting doctrinal and philosophical problem than on solving the problem of dying people in need of physicians’ assistance. After all is said and done, we are given a significant and fundamentally conservative argument that may justify criminalizing PAS and prohibiting “suicidal” decisions to refuse life-sustaining treatment. But that policy leaves us with an unfortunately large group of people for whom there is no help – those who are terminally or grievously ill, suffering great anguish and pain not adequately managed by the healthcare system, and desirous, for whatever reason, of giving up the struggle against death.

 

Had Gorsuch spent time energetically focusing on a right to palliative care, something that Robert Burt (1997) found lurking between the lines of five of the six GLUCKSBERG opinions, the book might have connected better with the realities of dying in America, and the book’s argument might be less formalistic. It is not that the problems of these particular terminally ill or gravely ill people are easy to solve, or even that some policy permitting physician assistance is an appropriate answer to their problems. It is just that a book about public policies that affect dying in America ought to be anchored more in an effort to address the problems of people than of legal doctrine or philosophy. Gorsuch is not insensitive. But his book is too abstracted from the realities of the complex problems that his argument is meant to address. In CRUZAN v. MISSOURI, which Gorsuch discusses, Justice Brennan’s dissent found a similar problem with the majority opinion – the state’s interest in the preservation of life. Brennan wrote “[T]he State has no legitimate general interest in someone’s life, completely abstracted from the interest of the person living that life, that could outweigh the person’s choice to avoid medical treatment” (CRUZAN, Brennan, J., dissenting, at 313)

 

The price of being so doctrinally and philosophically sophisticated seems to be a detachment from the emotional and medical complexities of end-of-life care. A good corrective to this detachment, or companion to Gorsuch’s book, would be to read LIVING WITH DYING (Berzoff 2004). For those who find, as I do, that Gorsuch’s book is not grounded sufficiently in the dilemmas that it may affect, a more powerful and useful blending of law, biomedical ethics and the realities faced by end-of-life patients and their families is David Orentlicher’s discussion of refusing medical treatment [*9] and seeking assisted-suicide in MATTERS OF LIFE AND DEATH: MAKING MORAL THEORY WORK IN MEDICAL ETHICS AND THE LAW (Orentlicher 2001).

 

Finally, THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA is disappointing in another way. The political, religious and cultural struggles that have marked consideration of public policy on end-of-life care in the past decade or so cannot help but affect how Gorsuch’s argument is understood and used. Had this intensely religious and ideological reality, linked as it is to the struggle over reproductive rights, formed a bigger part of how the argument was fashioned, the book would have been more useful. Gorsuch does insist that the principle of the inherent value of human life would not be violated by honoring non-suicidal refusals of medical treatment. But otherwise, he merely mentions the cultural context of his work and tosses off some criticisms of extremists without evaluating in depth the likely operative meanings of his ideas, and without taking the cultural context sufficiently into account in fashioning those ideas.

 

This is perhaps a virtue as well as a flaw in a book that is so focused on legal doctrine and philosophy. But it can also be seen as a disregard for the collateral damage that might be done by proposing a policy or doctrine without examining fully enough the cultural context in which it might be used. Attorney General Ashcroft’s attempt to over-turn the Oregon Death with Dignity Law is a good example of this problem. Whether the effort to kill the Oregon law was justifiable or not – indeed, whether the Attorney General’s order was within his power under the CSA statute or not – the means chosen would have been a disaster for palliative care across the nation. Yet, so fixed on his goal was Ashcroft that he was either dismissive of or unwilling to examine the collateral consequences of his policy for the provision of good pain management across the country. THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA likewise does not examine carefully enough the broad consequences for end-of-life care that might arise from putting Gorsuch’s argument into the cultural crucible that threatens to melt down so many of our rights to control our own medical care.

 

REFERENCES:

Berzoff, Joan, and Phyllis R. Silverman (eds). 2004. LIVING WITH DYING: A HANDBOOK FOR END-OF-LIFE HEALTHCARE PRACTITIONERS. New York. Columbia University Press.

 

Burt, Robert A. 1997. “The Supreme Court Speaks: Not Assisted Suicide but a Constitutional Right to Palliative Care.” 337 NEW ENGLAND JOURNAL OF MEDICINE 1234-1236.

 

Cohen, Lewis, Linda Ganzini, Christine Mitchell, Stephen Arons, Elizabeth Goy, and James Cleary. 2006. “Accusations of Murder and Euthanasia in End-of-Life Care.” 18 JOURNAL OF PALLIATIVE MEDICINE 1096-1104. [*10]

 

Lazzarini, Zita, Stephen Arons, and Alice Wisniewski. 2006. “Legal and Policy Lessons from the Schiavo Case: Is Our Right to Choose the Medical Care We Want Seriously at Risk?” 14 PALLIATIVE AND SUPPORTIVE CARE 145-153.

 

Orentlicher, David. 2001. MATTERS OF LIFE AND DEATH: MAKING MORAL THEORY WORK IN MEDICAL ETHICS AND THE LAW.  Princeton, NJ: Princeton University Press.

 

President’s Council on Bioethics. 2005. Available online at http://www.bioethics.gov/reports/taking_care/chapter2.html .

 

 

CASE REFERENCES:

CRUZAN v. MISSOURI, 497 US 261 (1990).

 

GONZALES v. OREGON, 126 S. Ct. 904 (2006).

 

STATE OF KANSAS v. L. STAN NARAMORE, 965 P2d 211 (Court of Appeals of Kansas, 1998).

 

VACCO v. QUILL, 521 US 793 (1997).

 

WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).

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© Copyright 2007 by the author, Stephen Arons.