From The Law and Politics Book Review

Vol. 9 No. 1 (January 1999) pp. 30-33.

Last Rights: Assisted Suicide and Euthanasia Debated by Michael M. Uhlmann (editor). Published jointly by Washington: Ethics and Policy Center; Grand Rapids and William E. Eerdmans Publishing Company, 1998. 677 pages. Paper $35.00. ISBN 0-8028-4199-6.

Reviewed by Donald Downs, Professor of Political Science, Law, and Journalism, University of Wisconsin, Madison. Email: dadowns@facstaff.wisc.edu.

 

Last Rights is a powerful volume that should be read by anyone interested in the controversies of assisted suicide and euthanasia and in the ways in which public law controversies are influenced by the politics of cultural and philosophical dispute. The volume features major writers and activists from all sides of the controversy.

Though certain forms of suicide were tolerated in ancient times and early Christianity (the latter approved of martyrdom), Western culture has tabooed suicide, assisted suicide, and euthanasia since at least the time of St. Augustine (Michael Uhlmann, 11-44, A. Alvarez, 57-74). In addition, the Hippocratic oath and the American Medical Association prohibit physicians from assisting in the suicides of patients or directly administering death. The oath obliges doctors to heal, to place their patients’ interest above the interests of institutions and proxies, and to guard against the abuse of the power doctors naturally possess over their vulnerable wards. (AMA Statement on Physician-Assisted Suicide, 399-405).

However, as Michael Uhlmann writes, "The philosophical and moral assumptions of the Hippocratic tradition are today being challenged as never before." (251) Several historical factors have converged to bring this challenge to the fore: 1) the decriminalization of suicide; (Alvarez, 57-74); 2) the ascendancy of Enlightenment-based challenges to traditional religious and cultural assumptions concerning the sanctity of life, such as the rise of secularization, utilitarianism-consequentialism, and the emphasis on individualism and autonomy (see the essays by Margaret Pabst Battin, Michael Uhlmann, Ronald Dworkin, and Gilbert Meilaender); 3) the rise of what Battin calls "the new epidemiology: the new pattern of the way in which people die." (114) The triumph of modern medicine and technology means that more people die later in life from such painful or debilitating diseases as cancer and Alzheimer’s disease, leading to claims for assisted suicide or euthanasia in the name of compassion; 4) increases in the financial costs of dying.

Everything depends on where one draws the line along continuums riven with vital distinctions. The first crucial distinction is between active and passive euthanasia. (See, e.g., Byron L. Sherwin; Victor Rosenblum; Alan Meisel) In active euthanasia, a person (usually a doctor) commits a direct act to cause or hasten the death of the patient, whereas in passive euthanasia, physicians withhold or withdraw life support. Passive euthanasia is supported by the traditional legal and moral distinction between commission and omission. A second distinction is voluntary versus involuntary euthanasia; in voluntary euthanasia a mentally competent patient consents (directly or through proxies in the form of "advance directives") to death or its hastening, whereas no such consent is present in involuntary euthanasia. Involuntary euthanasia is the most dangerous practice for obvious reasons.

Two other distinctions are important to bear in mind. One concerns the degree or nature of patient infirmity. The classic and most persuasive case for voluntary assisted suicide or active euthanasia is depicted in "A Model State Act" (Charles H. Baron, et al., 551-576): "to provide relief from suffering for patients who are dying, or whose suffering is so severe that it is beyond their capacity to endure." (553) As we will see, some commentators would not limit assisted suicide or euthanasia to these circumstances.

 

The last distinction is between physician-assisted suicide (in which a physician provides the means of death without actually committing the final act of killing), and euthanasia, in which the doctor actually does the killing. Dr. Timothy E. Quill (an appellee in Vacco v. Quill, decided by the United States Supreme Court in 1997), and others draw an emphatic line between active euthanasia and assisted suicide. (319-342) Quill would allow assisted suicide only if several criteria are met (these criteria are standard among this school): the patient truly desires the result and is mentally competent; the patient’s condition is incurable and "associated with severe, unrelenting, intolerable suffering;" the suffering cannot be relieved by comfort care; the doctor-patient relationship is "meaningful;" consultation with another doctor takes place. (330-332) Quill claims modest legal support: "whereas active euthanasia is uniformly illegal in the United States, only thirty-six states have laws explicitly prohibiting assisted suicide." (328) Quill buttresses his case by pointing out that physicians "secretly" assist in suicide in countless cases every day. (See, for example, the confession of a secret assisted suicide by "Anonymous," 317-318.) ACLU lawyer Robert Sedler, draws a more cautious line. The constitution should protect competent terminal cancer patients’ "choice to hasten their inevitable death by taking a lethal dose of physician prescribed medications." (464)

Most right to die advocates in this volume present comparatively cautious cases for liberalization. Perhaps the most measured defense of a form of active euthanasia is presented by Byron L. Sherwin, who painstakingly derives a limited justification of euthanasia "within the framework of classical Jewish sources:" for terminally ill persons with no hope of recovery, with irreparable vital-organ damage, who have exhausted all other means of relief. (168-9)

Some other writers in this volume are self-styled radicals who throw caution to the wind. The redoubtable Dr. Jack Kevorkian (263-296) crashes through the assisted suicide/euthanasia barrier by presenting a case for licensing the profession of "obitiary," which would give qualified doctors a license to kill if a series of ostensibly strict criteria are met. But Kevorkian would allow euthanasia for many non-terminal (even reversible) illnesses, and his entire project portrays physicians as erstwhile Nietzschean supermen in liberal garb. Not to be outdone, the famous animal rights philosopher Peter Singer (171-198) issues a call for a set of "New Commandments" that would revolutionize ethics in the West. Accusing the West of moral hypocrisy, Singer is the only writer in this volume to unabashedly justify involuntary euthanasia of those whose minds are too undeveloped to be "persons" or to be conscious of pain. (H. Tristram Engelhardt, Jr. also discusses infanticide in the context of severely disabled babies, 387-398). Because non-human species possess more consciousness of pain than human infants, Singer endorses a sweeping policy of infanticide in the same breath with which he rails against the cruelty recreational fishing inflicts on fish. I kid you not.

Despite the merits of the more considered arguments for assisted suicide or active euthanasia, several writers raise serious doubts about the legitimacy of redrawing the line. Legalizing these practices would create a "Potemkin Village." (Daniel Callahan and Margot White, 577-598) The main concerns are the inevitability of a "slippery slope," the undermining of the trust between patients and doctors, and the unknowable Dostoyevskian consequences of openly permitting (as opposed to quietly tolerating) the direct killing of patients. D. Allan Shewmon (343-366) and Yale Kamisar (445-62) capture the concerns of several writers. Shewmon points out that there is an inevitable tendency for the "scope of indications" to expand from the terminally ill to euthanasia on demand; he alludes to the rise of involuntary euthanasia in the Netherlands (see also the article on the "Dutch Experience" by Herbert Hendin, 367-386) and the dramatic expansion of abortions after Roe v. Wade (1973) in the United States. Furthermore, the "voluntariness" of many decisions to die often lies in the eyes of the beholder. "In clinical settings, it is often difficult to determine the true wishes of supposedly competent patients. They sometimes say one thing but communicate the opposite non-verbally. Their desire to live or die may fluctuate." (354) There is also a tendency to place the interests of the proxy or institution over the needs of the patient, especially given concerns over medical costs. (355)

Several writers predict untoward effects on the medical profession. (Edmund D. Pellegrino, Leon D. Kass, D. Alan Shewmon, Victor G. Rosenblum, the AMA). Kass worries about the "god-like power" radical reform would bestow upon physicians who would face a brave new world of temptations. "Even the most humane and conscientious physician psychologically needs protection against himself and his weaknesses. Do we really want to find out what he is like, once the taboo is broken?" (300)

Interestingly, all writers in this volume support the patient’s right to refuse or withdraw life sustenance or support; even Pope John Paul II would allow the termination of aggressive medical treatment and heroic measures. (223-236) Over time this policy has achieved widespread consensus in case law, legislation, and medical practice and ethics. Alan Meisel’s important essay (417-443) presents the elements of this strong consensus: mentally competent patients have a common law and constitutional right to refuse medical treatment or life support (advance directives apply to incompetent patients). In ruling against the constitutional right to assisted suicide in two cases in 1997 (Washington v. Glucksburg, Vacco v. Quill, 599-633), the United States Supreme Court supported this consensus, though some justices left open the question of assisted suicide in extreme cases. (The volume also presents the lower court opinions of judges John Noonan, Stephen Reinhardt, John Minor, and Guido Calabresi, 475-531.)

Rosenblum observes that adherence to the consensus is the Archimedean point of trust that has made possible a judicious balancing of interests in this ethically diverse and contested domain. "A clear understanding that the law would not allow doctors to actively kill their patients made it possible to debate under what circumstances physicians could allow their patients to die. Introducing the concept of physician-assisted killing would upset the entire set of assumptions upon which the rules for allowing withdrawal of treatment are based." (545) Had the Supreme Court followed the advice of Ronald Dworkin and others (who desire a substantive due process right to die based on autonomy, 75-94), this balance would have been frayed.

Supporters of the consensus position stress the availability of several alternatives to assisted suicide or euthanasia, including more conscientious attention of medical practitioners to the treatment of pain (e.g., the use of medicine that could incidentally lead to death so long as the intent is to relieve pain: the "double effect") and the development of hospices to care for the dying. Leon Kass (199-222) and Gilbert Meilander (237-48) discuss another option: being more committed to the moral and spiritual care of the dying.

Regardless of where you stand, reading this volume of essays will sharpen and deepen your understanding.


Copyright 1995