Published online by Cambridge University Press: 13 January 2009
Western ethics and law have been slow to come to conclusions about the right to choose the time and manner of one's death. However, policies, practices, and legal precedents have evolved quickly in the last quarter of the twentieth century, from the forgoing of respirators to the use of Do Not Resuscitate (DNR) orders, to the forgoing of all medical technologies (including hydration and nutrition), and now, in one U.S. state, to legalized physician-assisted suicide. The sweep of history—from the Quinlan case in New Jersey to legislation in Oregon that allows physician-assisted suicide—has been as rapid as it has been revolutionary.
1 In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976)Google Scholar. This case involved a brain-damaged patient in a coma. In the face of active opposition from the hospital, the physicians, state and local authorities, and a lower-court guardian ad litem, the New Jersey Supreme Court held that it is permissible for a person's guardian to direct a physician and hospital to discontinue all extraordinary measures in order to allow a person to die. After a lengthy legal battle, the parents of Karen Ann Quinlan obtained a court order allowing them to remove the respirator that was keeping their daughter alive. The court ruled that the Quinlans could disconnect the mechanical ventilator so that the patient could “die with dignity.” Unable to communicate with anyone, she lay comatose in a fetal position for ten years, with increasing respiratory problems and bedsores; her weight dropped from 115 to 70 pounds. Several Catholic moral theologians advised the parents that they were not morally required to continue the medical nutrition and hydration used to keep their daughter alive or the antibiotics used to fight her infections. However, the Quinlans believed that the feeding tube did not cause pain and that the respirator did.
2 Oregon, , The Oregon Death with Dignity Act, Or. Rev. Stat. secs. 127.800–897 (1994)Google Scholar. Measure 16 was first approved by Oregon voters in a November 8, 1994 referendum. Under its provisions, a terminally ill patient who wants to utilize physician-assisted suicide must wish to escape unbearable suffering and must request a physician's prescription for lethal drugs three times. The doctor then must wait fifteen days after the first request before writing a prescription for the requested lethal drugs. In late December 1994, a federal judge in Eugene, Oregon, issued a preliminary injunction that prevented the implementation of the new law indefinitely. Three years later, on November 4, 1997, voters rejected Measure 51, which would have repealed Measure 16, by a 60–40 margin. This reaffirmed the voters' previous support for legally allowing physicians to provide lethal medication. The 9th U.S. Circuit Court of Appeals had, one week previously, lifted an injunction that had kept Measure 16 from going into effect. A few weeks after its decisions in Vacco v. Quill, 117 S.Ct. 2293 (1997)Google Scholar, and Washington v. Glucksberg, 117 S.Ct. 2258 (1977)Google Scholar (see below), the U.S. Supreme Court refused to hear an appeal involving the injunction in Quinlan, and Measure 16 was shortly thereafter reaffirmed by the voters of Oregon and became the law of their state. (Note: The 9th Circuit case mentioned above was from the state of Washington, not Oregon.)
3 In Griswold v. Connecticut, 381 U.S. 479,486 (1965)Google Scholar, and various subsequent U.S. Supreme Court decisions, the right of privacy is held to arise from the “penumbra” of several amendments to the U.S. Constitution. The thesis is that a personal right to privacy exists because these amendments imply it.
5 In re Quinlan.
11 Ibid. Twenty-five-year-old Nancy Cruzan had been in a persistent vegetative state for over three years. Her parents petitioned for permission to remove her feeding tube, knowing that if this were done, their daughter would die. The Missouri Supreme Court ruled that no one may order an end to life-sustaining treatment for an incompetent person in the absence of clear and convincing evidence of the patient's wishes, and the U.S. Supreme Court upheld this decision. The Supreme Court decision was followed by a hearing before a county probate judge at which three friends of Nancy Cruzan provided sufficient additional evidence that she had expressed a clear and convincing preference not to live “like a vegetable” connected to machines. This new evidence led the judge to accept the parents' request to remove the feeding tube, and thirteen days after it was removed, Nancy Cruzan died. Yet, the U.S. Supreme Court had not granted the Cruzan family precisely the relief that it had sought; the Court had declined to find a constitutional right to die, only a right of competent persons to decline life-sustaining treatments. The Court also held that it is constitutionally permissible for states to impose procedural precautions when third parties make decisions for incompetent patients. See Cruzan, 110 S.Ct., esp. at 2852.
12 Cruzan, 110 S.Ct. at 2851. The Court noted that a constitutionally protected liberty interest in such matters could be inferred from its previous decisions that reached back as far as 1905. “Freedom,” “liberty,” and “self-determination” are the terms used to ground the argument in Cruzan. The Court also noted that the Supreme Court of Missouri had recognized a right to refuse treatment that was embodied in the common law doctrine of informed consent, but had declined to read a right of privacy into the state constitution and had expressed doubt as to whether such a right existed under the U.S. Constitution. Cruzan v. Harmon, 760 S.W.2d 408, 416–18 (Mo. 1988) (en banc)Google Scholar, cert. granted, 109 S.Ct. 3240 (1989).
13 See the Court's own explicit statement on the limits of privacy claims in the subsequent case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).Google Scholar
15 Informed consent is not an ancient concept with a rich medical tradition. The term “informed consent” first appeared in a public case in Salgo v. Leland Stanford, Jr., University Board of Trustees, 317 P.2d 170 (1957)Google Scholar. The Salgo court suggested that there is a duty to disclose the risks and alternatives of a proposed treatment, which is a logical extension of the well-established duty to disclose the treatment's nature and consequences. Serious discussion of the doctrine of informed consent began only around 1972 in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)Google Scholar, and Cobbs v. Grant, 104 Cal. Rptr. 505, 502 P.2d 1 (1972)Google Scholar. These courts moved in the direction of a more patient-oriented standard of disclosure in which the patient's right of self-decision requires that the patient be given sufficient information to make an intelligent choice. As the idea of informed consent evolved, discussion of appropriate guidelines moved increasingly from a narrow focus on the physician's or researcher's obligation to disclose information, to the quality of a patient's or subject's understanding of information and right to authorize or refuse a biomedical intervention.
17 Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996)Google Scholar; Vacco v. Quill, 80 F.3d 716 (2d Cir. 1996)Google Scholar. In the latter, at 723–24, see the court's conclusion that a right to physician-assisted suicide could not be included within the scope of the right of privacy.
18 Vacco, 117 S.Ct. at 2300–2301; Glucksberg, 117 S.Ct. at 2269–70.
19 Many believe that Dr. Jack Kevorkian has been the most significant figure in bringing these issues to public attention, though his influence is highly controversial. His acts of assisted suicide eventuated in several court decisions as well. In the same month as the Glucksberg ruling, a court in Michigan acquitted Kevorkian of charges that he violated the state's newly enacted law on physician-assisted suicide by administering carbon monoxide to a patient. A jury decision in this case found that Kevorkian did not have the relevant intention to be in violation of the Michigan law, which exempted physicians whose intent is to relieve pain or discomfort rather than to cause death. The jury found that Kevorkian had only intended to relieve the suffering of his patients. Only after he performed a direct mercy killing was Kevorkian found guilty of a crime (second-degree murder).
20 See Steinbeck, Bonnie and Norcross, Alastair, eds., Killing and Letting Die, 2d ed. (New York: Fordham University Press, 1994)Google Scholar; Beauchamp, Tom L., ed., Intending Death (Upper Saddle River, NJ: Prentice Hall, 1996)Google Scholar; Malm, H. M., “Killing, Letting Die, and Simple Conflicts,” Philosophy and Public Affairs 18, no. 3 (Summer 1989): 238–58Google ScholarPubMed; McMahan, Jeff, “Killing, Letting Die, and Withdrawing Aid,” Ethics 103, no. 2 (01 1993): 250–79CrossRefGoogle ScholarPubMed; and Gostin, Lawrence O., “Drawing a Line Between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying,” Journal of Law, Medicine, and Ethics 21, no. 1 (Spring 1993): 94–101.CrossRefGoogle ScholarPubMed
21 Cf. Rachels, James, “Active and Passive Euthanasia,” New England Journal of Medicine 292, no. 2 (01 9, 1975): 78–80CrossRefGoogle ScholarPubMed. See also his The End of Life: Euthanasia and Morality (Oxford: Oxford University Press, 1986)Google Scholar; and Brock, Dan W., “Voluntary Active Euthanasia,” Hastings Center Report 22, no. 2 (03/04 1992): 10–22.CrossRefGoogle ScholarPubMed
22 See Callahan, Daniel, “Vital Distinctions, Mortal Questions: Debating Euthanasia and Health Care Costs,” Commonweal 115, no. 13 (07 15, 1988): 397–404Google ScholarPubMed; Callahan, Daniel, The Troubled Dream of Life (New York: Simon and Schuster, 1993), chap. 2Google Scholar; and several articles in Lynn, Joanne, ed., By No Extraordinary Means (Bloomington, IN: Indiana University Press, 1986), 227–66.Google Scholar
23 It is not absurd to say that a physician's actions physically cause death even when he or she forbears from treatment as a result of a patient's refusal. The actions of physicians are commonly necessary parts of sufficient conditions of a death as it occurs. For example, to withhold nutrition and hydration so that a patient dies of malnutrition is a necessary part of a sufficient condition of death at the time and in the way the death occurs. The doctor is not a sufficient cause of death but is a necessary part of a sufficient set of conditions of death. If the patient is suffering from conditions such as severe brain damage or cancer, these conditions are neither necessary nor sufficient conditions of death in the way it comes about. In many cases, both a physician's intervention and a disease, system failure, or injury are joint causal conditions of death. In a few more uncommon cases, multiple causal conditions may be relevant, each forming an independent causal sequence that is sufficient to cause death. That is, any one of several distinct sequences of causally linked events may be sufficient to cause death.
24 On the importance of the refusal/request distinction, see Bernat, James L., Gert, Bernard, and Mogielnicki, R. Peter, “Patient Refusal of Hydration and Nutrition,” Archives of Internal Medicine 153, no. 24 (12 27, 1993): 2723–28CrossRefGoogle ScholarPubMed; Gert, , Bernat, , and Mogielnicki, , “Distinguishing between Patients' Refusals and Requests,” Hastings Center Report 24, no. 4 (07/08 1994): 13–15CrossRefGoogle ScholarPubMed; and Gert, et al. , “The Distinction between Active and Passive Euthanasia,” Archives of Internal Medicine 155, no. 12 (06 26, 1995): 1329.CrossRefGoogle ScholarPubMed
25 A physician who in principle accepts the permissibility of active aid-in-dying may legitimately refuse to honor any particular request for aid-in-dying for various reasons. For example, a sympathetic physician willing to assist a patient at a crisis point may refuse a patient's request for lethal medication if that request is premature.
26 Cf. Buchanan, Allen, “Intending Death: The Structure of the Problem and Proposed Solutions,”Google Scholar in Beauchamp, , ed., Intending Death, 34–38Google Scholar; Nagel, Thomas, “Death,” in Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979)Google Scholar; and Kamm, F. M., Morality, Mortality, vol. 1 (New York: Oxford University Press, 1993), chap. 1.Google Scholar
27 Several years after Nancy Cruzan died, Joseph Cruzan killed himself. He had suffered a long period of depression.
28 Some definitions of privacy center on a narrow range of conditions under which intrusions constitute losses of privacy, whereas other definitions center on a broader range of conditions. Some definitions view privacy as a condition of the person, others as a condition of control by the person over access to information, Some definitions place a value on privacy, others do not. See Powers, Madison's survey of several definitions of privacy in “A Cognitive Access Definition of Privacy,” Law and Philosophy 15, no. 4 (11 1996): 369–86CrossRefGoogle Scholar; and Allen, Anita L.'s examination of restricted-access definitions in Uneasy Access: Privacy for Women in a Free Society (Totowa, NJ: Rowman and Littlefield, 1988)Google Scholar. See also Westin, Alan F., Privacy and Freedom (New York: Athenaeum, 1967)Google Scholar; and the critique by Schoeman, Ferdinand David, “Privacy: Philosophical Dimensions of the Literature,” in Schoeman, , ed., Philosophical Dimensions of Privacy: An Anthology (New York: Cambridge University Press, 1984), 3–4.CrossRefGoogle Scholar
30 Suffice it to say, here, that personal autonomy carries over the ideas of a region of sovereignty for the self and a right to protect it by restricting access, ideas that are closely linked to the concepts of privacy and the right to privacy. Cf. Feinberg, Joel, Harm to Self, vol. 3 of The Moral Limits of the Criminal Law (New York: Oxford University Press, 1986), chap. 19Google Scholar. The idea that certain forms of self-determination are immune from social control has made the legal right of privacy controversial throughout its history. The U.S. Supreme Court has sometimes hinted that the right to privacy is primarily a right of self-determination in decision-making, a right on which clear boundaries must be placed. See Whalen v. Roe, 429 U.S. 589, 599–600 (1977).Google Scholar
32 Cf. Rachels, James, The End of Life, chap. 10Google Scholar; Arras, John, “The Right to Die on the Slippery Slope,” Social Theory and Practice 8, no. 3 (Fall 1982): 285–328CrossRefGoogle ScholarPubMed; van der Burg, Wibren, “The Slippery Slope Argument,” Ethics 102, no. 1 (10 1991): 42–65CrossRefGoogle Scholar; Macklin, Ruth, “Which Way Down the Slippery Slope? Nazi Medical Killing and Euthanasia Today,” in Caplan, Arthur L., ed., When Medicine Went Mad: Bioethics and the Holocaust (Totowa, NJ: Humana Press, 1992), 173–200CrossRefGoogle Scholar; Burgess, J. A., “The Great Slippery-Slope Argument,” Journal of Medical Ethics 19, no. 3 (09 1993): 169–74CrossRefGoogle ScholarPubMed; and Walton, Douglas, Slippery Slope Arguments (Oxford: Clarendon Press, 1992).Google Scholar
33 See Singer, Peter A. and Siegler, Mark, “Euthanasia—A Critique,” New England Journal of Medicine 322 (06 28, 1990): 1881–83CrossRefGoogle Scholar; Lynn, Joanne, “The Health Care Professional's Role When Active Euthanasia Is Sought,” Journal of Palliative Care 4, nos. 1 and 2 (05 1988): 100–102Google ScholarPubMed; Wolf, Susan, “Holding the Line on Euthanasia,” Hastings Center Report 19, no. 1 (01/02 1989): S13–S15CrossRefGoogle ScholarPubMed; Kass, Leon R., “Neither for Love Nor Money: Why Doctors Must Not Kill,” Public Interest 94 (1989): 25–46Google Scholar; Hendin, H. and Klerman, Gerald, “Physician-Assisted Suicide: The Dangers of Legalization,” American Journal of Psychiatry 150, no. 1 (01 1993): 143–45Google ScholarPubMed; Ogilvie, Alan D. and Potts, S. G., “Assisted Suicide for Depression: The Slippery Slope in Action?: Learning from the Dutch Experience,” British Medical Journal 309, no. 6953 (08 20–21, 1994): 492–93CrossRefGoogle Scholar; Devettere, Raymond J., “Slippery Slopes and Moral Reasoning,” Journal of Clinical Ethics 3, no. 4 (Winter 1992): 298Google ScholarPubMed; Orentlicher, David, “Physician Participation in Assisted Suicide,” Journal of the American Medical Association 262, no. 13 (10 6, 1989): 1844–45CrossRefGoogle ScholarPubMed; and Koop, C. Everett and Grant, Edward R., “The ‘Small Beginnings’ of Euthanasia: Examining the Erosion in Legal Prohibitions against Mercy-Killing,” Notre Dame Journal of Law, Ethics, and Public Policy 2, no. 3 (Spring 1986): 585–634.Google Scholar
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