Almost all of us want to continue living, and we will endure much suffering, if necessary, to stay alive. But some are confronted with circ umstances that they consider insufferable.
Each day, hundreds in the United States and other Western countries hasten their own deaths, accelerating the day they otherwise would have died due to disease or decline. Some do this without any legal impediment and scarcely any moral objection, except perhaps from small numbers of religious fundamentalists. Others hasten their deaths in ways legally prohibited—although their peers may be carrying out the same actions legally just a few miles away.
In this article, I will discuss various ways in which people are ending their lives, pointing out the methods that are generally legal—in particular, cessation of medical treatment. I will also address assisted dying and euthanasia, both of which remain illegal most everywhere, with a few exceptions (the states of Oregon and Washington both permit physician assistance in dying; Belgium and the Netherlands permit physicians to perform euthanasia). I will argue that physician-assisted death and euthanasia are morally permissible in certain circumstances, and I will also argue in favor of legalizing the former practice, again in certain circumstances. Due to space limitations, my focus will be on the United States, although I will make passing reference to the state of the law in a few other countries.
Ending Medical Treatment
In the United States and most Western countries, a competent person has an absolute right to insist that medical treatment be stopped or withheld, even if such treatment is considered essential to keep the person alive. Moreover, a competent person’s decision in this regard is almost always respected. This state of affairs represents a significant change in medical practice from the 1950s and 1960s, when the treating physician wielded significant authority in deciding when to stop medical treatment. Part of the explanation for the change, of course, is that improvements in medical care now allow people to be sustained in exceedingly poor physical condition for months, if not years. It’s one thing when a physician cajoles a patient to hang on for a few more days; it’s quite another when the patient is faced with seemingly interminable misery.
In any event, this right is now accepted, with great deference being given to patient’s wishes concerning the scope of treatment. The moral right to demand an end to treatment is grounded in a person’s right to autonomy (sometimes referred to as the right to privacy), which calls upon others to respect a person’s decisions about the course of her own life, provided others are not harmed by these decisions. Legally, at least in the Anglo-American world, the right has a basis in the common-law rule that individuals cannot be touched absent consent.
Of course, not every patient is conscious at the time a decision may have to be made to continue treatment. In that situation, physicians and hospitals will rely on evidence of the patient’s desires, which can be found in advance directives or other documents or in the recollections of relatives and close friends. When the patient has expressed no clear intent about life-sustaining treatment, whichever relative or surrogate is in charge of treatment decisions will make the call. Almost all litigated cases derive from this last category, that is, a situation in which the patient is unconscious and has not clearly expressed any wishes concerning life-sustaining treatment. Relatives and friends will differ over “what Uncle Frank would have wanted.” The Terri Schiavo case illustrates the problems that can result. Nonetheless, although such cases are emotionally wrenching for the participants and often attract media attention, they are actually quite infrequent and do not detract from the general principle that patients can refuse life-sustaining treatment and, in this way, hasten their deaths.
The disputes that can arise when an incapacitated patient’s intent is unclear emphasize the importance of making one’s wishes known in advance of a serious illness. If you don’t want to wind up as a ventilated corpse, it would be prudent to execute an advance directive.
Of course, cessation of medical treatment as a means of hastening death is an option only for those who are dependent on life-sustaining therapy. There are many other individuals who may be suffering but are not dependent on respirators, feeding tubes, and other such devices. Do these persons have a right to hasten their own deaths? More important, do they have a right to assistance in hastening their deaths?
The latter question is more important because in all fifty states, and in most Western countries, it is not illegal to end one’s own life. Opponents of legalizing assisted dying have often seized on this fact, arguing that if a person is really suffering that much, he or she can end his or her own life without involving others. Superficially, this argument has some merit. Respecting someone’s autonomy does not, by itself, imply that a person has a right to assistance in carrying out her actions. The right to marry does not imply that the state has an obligation to provide a dating service. Furthermore, offering assistance in dying to those truly capable of ending their own lives may improperly circumvent an important psychological barrier to hasty, ill-considered decisions.
However, this argument overlooks certain realities. Ending one’s life without assistance is an option only for those with access to the proper means and the ability to use them. One crucial fact acknowledged only infrequently by the opponents of assistance in dying is that the state and its licensed agents control access to medications that are efficient in bringing about a peaceful death. You can’t get secobarbital without a prescription. Because the state maintains control of the dispensation of barbiturates and similar medications, a person must have access to firearms, knives, or other such means of death and possess the ability to use these means effectively in order to kill oneself without assistance.
In the case of terminally ill patients (and hereafter, I will be focusing on the terminally ill unless stated otherwise), these conditions are likely to be absent. Many of the terminally ill are physically frail and have impaired mobility. One survey found that about 75 percent of those Oregonians who obtained legal assistance in dying were confined most of the time to a bed or chair. For someone in such a situation, being denied assistance effectively results in that person being kept alive against his or her will. The terminally ill have a much stronger liberty interest in assistance in dying because, unlike the physically healthy, they need assistance to die.
A person’s terminal illness also provides some assurance that his request for assistance in dying is not the product of some hasty, irrational decision. A person who is dying is beyond the hope of any cure and is in an objectively verifiable condition. (The exceptional case of a mistaken diagnosis does not mean that a diagnosis of terminal illness is not objectively grounded, no more than the rare mistake regarding the existence of a pregnancy implies that pregnancy is not objectively verifiable.) These patients are not volatile individuals reacting to serious but passing problems, such as rejection by a lover or taunting from schoolmates. Instead, they face an inevitable death. Simply put, for those requesting assistance in dying, their choice is between dying peacefully now and dying within a relatively short time after what they regard as pointless suffering.
Therefore, there is a strong argument in favor of the position that assistance in dying is morally permissible for the terminally ill, at least in some instances. But should it be legal? Not every action that is morally permissible is necessarily an action that should be legally permissible. However, I believe a compelling case can be made for legalizing physician-assisted dying (a.k.a. physician-assisted suicide).
Legal Physician-Assisted Dying for the Terminally Ill
First, let us consider the significance of the physician’s role and why it is important not just to allow assistance in dying but to authorize physician assistance in dying. The difference is not just the fact that the latter requires a physician to write a prescription. The role of a treating physician is crucial in the context of end-of-life care. Legalizing physician assistance in dying allows the terminally ill to discuss all aspects of their condition and treatment, including their anxieties and fears, with a knowledgeable and—one would hope—caring expert. Legalization encourages a frank exploration of options, permitting a patient to make an informed decision. Sensitive physicians will use the full extent of their training and experience in assessing the patient’s condition and prospects for effective alternatives to hastening death, such as palliative care. The physician’s expertise is important in evaluating, in consultation with the patient, which alternatives might be feasible. Similarly, the physician’s expertise is important for determining whether the patient is competent to make a decision concerning the course of treatment.
Moreover, assuming we want a regulatory scheme that encourages persons to live as long as they find their lives worthwhile, a policy of permitting physician assistance in dying for the terminally ill is much more likely to accomplish this objective than banning assistance in dying. A ban on physician assistance in dying pushes the terminally ill who are concerned about future suffering to end their lives while they still retain the capacity to do so on their own. Not only might some bring about their deaths while they still have months left to live, but others may hasten their deaths unnecessarily because had they been able to consult with a physician and obtain the assurance that they could receive assistance when needed, they would not have found their condition unbearable.
The evidence from Oregon, where physician assistance in dying has been legal since 1997, confirms that legalizing physician assistance in dying actually encourages many to live longer and some to forego hastening their death altogether. Although about 15 in 100 dying Oregonians seriously consider hastening their deaths, and although many of them discuss this option with their physicians, only about 1 in 100 decides to request assistance, and only about 1 in 600 actually receives a prescription for a lethal medication from his or her physician. Most strikingly, roughly one-third of those who receive a prescription for a lethal medication never use the prescribed medication to hasten death. The knowledge that escape from intolerable suffering is always available can diminish the felt need to hasten one’s death, and allowing physicians to discuss all options with their patients promotes a thorough consideration of these options, including alternatives to hastened death such as hospice care. Almost all of us want to live as long as we are able to squeeze something worthwhile out of our lives; we will not choose death unless we believe there is no alternative, and we will not choose death now unless we believe the option of a relatively peaceful death otherwise may be closed to us.
Arguments Against Legalization
The battle to legalize physician-assisted dying in Oregon lasted years; many arguments, both consequentialist and metaphysical, were advanced by opponents of legalization. One set of these arguments—predictions that patients would be pressured or coerced into asking to die—did have the salutary effect of shaping the final legislative language so that it contained formidable safeguards against abuse.
In Oregon, to be eligible for assistance, patients must have received a diagnosis from their attending physician that they have a terminal illness that will cause their death within six months, and they must be capable of making their own health-care decisions. A second physician must confirm both the diagnosis of a terminal illness and the patient’s competence. As a prerequisite to receiving assistance, patients must make a series of voluntary, verifiable requests that confirm that the desire for assistance is durable: the patient must make two oral requests for assistance, separated by at least fifteen days, and one written request that is signed in the presence of two witnesses. To help ensure that the patient’s decision is an informed one, treating physicians are required to inform the patient of alternatives to a hastened death, such as comfort care, hospice care, and enhanced pain control. Moreover, a patient must be referred to counseling if either the prescribing or the consulting physician believes he or she might be suffering from a psychological disorder that can cause impaired judgment. Finally, the patient must ingest the prescribed drug; the drug is not to be administered by a physician. (Similar safeguards are in place in the recently enacted Washington statute.)
Perhaps as a result of these safeguards, the evidence for abuse in Oregon is virtually nonexistent. There is no persuasive evidence that a single patient has been coerced or that a single patient was incompetent when requesting assistance.
Three other arguments against legalization also rested on predictions of dire consequences. Opponents argued that following legalization, the quality of palliative care would decline (why bother helping someone who will die soon anyway?); that the “vulnerable”—variously defined as women, racial and ethnic minorities, the disabled, the poor, or some combination of these groups—would be adversely affected in disproportionate numbers by legalization; and that after physician-assisted dying was legalized, inevitably we would begin our fall down the slippery slope to legalizing assisted suicide on demand or nonvoluntary euthanasia.
None of these predicted consequences has materialized. With respect to a disproportionate effect on the vulnerable, the overwhelming number of persons receiving assistance in Oregon are white, well-educated, and financially secure, and their gender distribution approximates that of the general population. With respect to palliative care, there is evidence that the quality of palliative care has actually improved in Oregon since legalization. With respect to the dreaded slippery slope, there has been scant effort to expand the classes of persons eligible for assistance in dying or to loosen the regulations physicians and patients must follow in order for legal assistance to be provided. The wording of Oregon’s law remains virtually unchanged.
Of course, there are many who oppose legalizing assisted dying not because of supposed harmful consequences but because it allegedly violates the “sanctity of life principle.” Space does not permit a full treatment of the sanctity of life argument here. Suffice it to say that secular justifications for prohibitions on killing seem inapplicable in the case of assisted dying. Killing is presumptively immoral because it constitutes a serious harm, in particular to those who want to live but are killed. But in assisted dying, the patient wants—indeed, yearns—to die. Furthermore, it is inconsistent to allow some patients to hasten their deaths through cessation of life-sustaining treatment while prohibiting others to hasten their deaths through the ingestion of a drug. Some have tried to defend this distinction by labeling cessation of treatment a “letting die” as opposed to a “killing,” characterizing the cessation of treatment as “passive.” But this is mere wordplay. Removing a respirator from a patient is about as “active” a form of behavior as one can imagine. Moreover, the intent in both situations is often the same: the patient desires to hasten death because he or she no longer finds his or her existence tolerable.
Legal physician-assisted dying allows patients to exercise a measure of control over their final days; to escape conditions they find repugnant, demeaning, or painful; and to die with dignity. One hopes other states will follow Oregon and Washington’s lead.
Should We Legalize Euthanasia?
Some believe the laws in Oregon and Washington do not go far enough. In particular, some might maintain that patients who may not be able to ingest the prescribed drug or who may not be sufficiently competent to carry out the act themselves should be able to have a physician administer a lethal injection. This method would be an act of euthanasia as that term is usually defined; that is, someone other than the patient takes the final steps to bring about the patient’s death. In both Belgium and the Netherlands, physicians are authorized to perform euthanasia if they determine that the patient’s suffering is unbearable and hopeless.
I agree that euthanasia may be morally permissible in cases in which the patient is competent, the patient’s desires are clear, and the patient is unable to bring about his or her own death, even with a prescribed drug. But, again, what is morally permissible is not coextensive with what should be legally permitted. The law is a blunt instrument that classifies permitted and prohibited acts by categories that may not capture the fine distinctions relevant to moral judgment. Authorizing euthanasia opens the door to abuse by physicians. Whether the patient still wants to end his or her life may not always be clear at the point when the physician must decide when to administer the injection. Dutch studies from the 1990s indicated that there were numerous instances of euthanasia “without explicit requests.” (The situation has improved since then, in part because of statutory reform.)
Reasonable persons may differ on this issue, but I believe that in matters of life and death, caution is appropriate. Yes, we have an obligation to respect a person’s autonomy, but we also have an obligation to act prudently in crafting laws that try to honor that obligation.
The past several decades have witnessed dramatic changes in the extent to which patients can determine the course of their medical treatment. Respect for patient autonomy should not end when a patient is confronted with a terminal illness. Patients should have their desires about end-of-life care respected, even when they request an end to life-sustaining treatment or ask for assistance in hastening their death. It is starkly inconsistent with our moral obligations toward others to force an individual to stay alive and suffer.