Guidelines for Physician-Assisted Suicide: Can the Challenge Be Met?

“A.M.A. Keeps Its Policy Against Aiding Suicide,” New York Times, June 26, 1996, at C9.

Back A.L. , “Physician-Assisted Suicide and Euthanasia in Washington State: Patient Requests and Physician Responses,” JAMA, 275 (1996): 919–25; Bachman J.G. , “Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia,” N. Engl. J. Med., 334 (1996): 303–09; and Lee M.A. , “Legalizing Assisted Suicide—Views of Physicians in Oregon,” N. Engl. J. Med., 334 (1996): 310–15.

Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.000 et seq. (1995).

Even opponents of legalizing PAS have questioned the legal basis for the injunction. For example, Capron A.M. , “Constitutionalizing Death,” Hastings Center Report, 25, no. 6 (1995): 23–24; and Coleman C.H. Miller T.E. , “Stemming the Tide: Assisted Suicide and the Constitution,” Journal of Law, Medicine & Ethics, 23 (1995): 389–97.

Callahan D. White M. , “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village,” University of Richmond Law Review, 30 (1996): 1–83.

Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) (en banc); and Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996).

For example, Miller F.G. , “Regulating Physician-Assisted Death,” N. Engl. J. Med., 331 (1994): At 119 (PAS should be treated as a “nonstandard medical practice reserved for extraordinary circumstances”); Quill T.E. Cassel C.K. Meier D.E. , “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): At 1381 (assisted suicide should be used “only after all other alternatives have been exhausted and failed”); and Brody H. , “Assisted Death—A Compassionate Response to a Medical Failure,” N. Engl. J. Med., 327 (1992): At 1385 (assisted suicide should only be performed for those “few patients” who “will face a bad death despite all medical efforts”).

79 F.3d at 820.

Quill et al., supra note 7.

Miller , supra note 7.

For example, Watts D.T. Howell T. , “Assisted Suicide Is Not Euthanasia,” Journal of the American Geriatrics Society, 40 (1992): 1043.

Miller , supra note 7, at 120.

Or. Rev. Stat. §§ 127.00 et seq. (1995).

Baron C.H. , “A Model Statute to Authorize and Regulate Physician-Assisted Suicide,” Harvard Journal on Legislation, 33 (1996): 1–34.

Kevorkian Jack Dr. , for example, has proclaimed that his current activities are simply “the first concrete step in a long-range plan” to “develop a rational policy of planned death for the entire civilized world.” Betzold M. , “Kevorkian Asks Supreme Court to Affirm Right to Aid in Dying,” Dallas Morning News, Mar. 12, 1995, at 4A.

Emanuel E.J. Daniels E. , “Oregon's Physician-Assisted Suicide Law,” Archives of Internal Medicine, 156 (1996): 825–29.

The New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994).

Id. at xv.

Id. at xiii.

Callahan White , supra note 5, at 2–3.

Id. (quoting Miller et al., supra note 7).

Annas G.J. , “The Promised End: Constitutional Aspects of Physician-Prescribed Suicide,” N. Engl. J. Med., 335 (1996): At 684 (“[T]he ability to objectively distinguish between good and bad suicides is critical.”).

Id.; Coleman Miller , supra note 4; see also Law S.A. , “Physician-Assisted Death: An Essay on Constitutional Rights and Remedies,” Maryland Law Review, 55 (1996): 292–342 (arguing that the practice can be limited, but acknowledging that, “[i]f there were no other, more precisely tailored, means of avoiding abuse,” the argument for an absolute prohibition “would have force”).

Bok S. , “The Leading Edge of the Wedge,” Hastings Center Report, 1, no. 3 (1971): 9–11.

Kamisar Y. , “Against Assisted Suicide—Even a Very Limited Form,” University of Detroit Mercy Law Review, 72 (1995): 735–69 (suggesting that “liberal” supporters of PAS “defended the Nazis' right to march to Skokie largely because they feared that denying them First Amendment protection might start us down a slippery slope”).

Sedler R.A. , “Are Absolute Bans on Assisted Suicide Constitutional? I Say No,” University of Detroit Mercy Law Review, 72 (1995): 725–33.

Sedler R.A. , “The Constitution and Hastening Inevitable Death,” Hastings Center Report, 23, no. 5 (1993): 20–25 (“In no meaningful sense of the term can a choice to hasten one's own inevitable death by the use of physician-prescribed medications be labeled a ‘suicide.”’); see also Compassion in Dying, 79 F.3d at 824 (“[W]e are doubtful that deaths resulting from terminally ill patients taking medication prescribed by their doctors should be classified as ‘suicide.”’).

Even if it does, it is worth noting that terminal illness is a far less objective concept than it initially appears. Callahan White , supra note 5, at 45 (“One searches the literature in vain for consistency regarding the meaning of terminal condition or terminal disease.”).

Baron , supra note 14.

Smith W.J. , “Depressed? Don't Go See Dr. Kevorkian,” New York Times, Sept. 16, 1995, at 19 (noting that at least half of the individuals whom Dr. Kevorkian helped to die were not terminally ill).

Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).

Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990).

Annas , supra note 22, at 686 (Cruzan stands for the proposition “that an adult need not be terminally ill to refuse treatment”).

Quill, 80 F.3d at 729; Kamisar Y. , “The Reasons So Many People Support Physician-Assisted Suicide—And Why These Reasons Are Not Convincing,” Issues in Law & Medicine, 12 (1996): At 130 (“If the Second Circuit's equal protection analysis is sound, how can we prevent persons suffering serious but not terminal illnesses from enlisting the aid of another to die by suicide when patients with the same non-terminal illnesses who are on life support systems may hasten their deaths by directing the removal of such systems?”) (emphasis in original).

Quill , supra note 7, at 1381.

Miller , supra note 7, at 120.

New York State Task Force on Life and the Law, supra note 17, at 132.

Baron , supra note 14, at 11.

Id. at 10.

As Erich Lowey has argued, “Killing others who are terminally ill at their own request when they are incapacitated and unable to implement their own wishes is a form of assisted suicide in circumstances where nonassisted suicide is no longer possible.” Lowey E.H. , “Healing and Killing, Harming and Not Harming: Physician Participation in Euthanasia and Capital Punishment,” Journal of Clinical Ethics, 3 (1992): 29–34.

Shavelson L. , A Chosen Death: The Dying Confront Assisted Suicide (New York: Simon & Schuster, 1995).

In re Quinlan, 70 N.J. 10 (1976).

Most laws authorizing surrogate decision making for incapacitated patients limit the scope of the decision maker's authority, some quite extensively. See generally, Choice in Dying , Right-to-Die Law Digest, Dec. (1995): Passim.

Compassion in Dying, 79 F.3d at 832 n.120.

Eisenberg L. , “Treating Depression and Anxiety in Primary Care: Closing the Gap Between Knowledge and Practice,” N. Engl. J. Med., 326 (1992): 1080–84 (“The evidence is clear that the diagnostic skills of many generalists are inadequate to the task.”).

Massie M.J. Holland J.C. , “The Cancer Patient with Pain: Psychiatric Complications and Their Management,” Journal of Pain and Symptom Management, 7 (1992): 99–109.

Baron , supra note 14, at 18.

Emanuel Daniels , supra note 16, at 828.

In a recent survey of Oregon physicians, one-third stated that they were “not confident they could recognize depression in a patient asking for a lethal dose of medication.” Lee , supra note 2, at 313.

Callahan White , supra note 5, at 37.

Rhymes J. , “Hospice Care in America,” JAMA, 264 (1990): 369–72.

Annas G.J. , “The ‘Right to Die’ in America: Sloganeering from Quinlan and Cruzan to Quill and Kevorkian,” Duquesne Law Review, 34 (1996): At 877.

Christakis N.A. Escarce J.J. , “Survival of Medicare Patients After Enrollment in Hospice Programs,” N. Engl. J. Med., 335 (1996): 172–78 (concluding that most Medicare patients who enter hospice do so late in the course of their illnesses, even though they are eligible for admission much earlier).

New York State Task Force on Life and the Law, supra note 17, at xi.

Annas , supra note 52, at 877.

Tribe L.H. , American Constitutional Law (New York: Foundation Press, 2nd ed., 1988): § 11–5, at 781 (“Independently unconstitutional conditions—those that make enjoyment of a benefit contingent on sacrifice of an independent constitutional right—are invalid.”).

Compassion in Dying, 79 F.3d at 825–26.

Callahan White , supra note 5, at 7 (“While strong-willed sick and suffering people may be able to resist patent and gross coercion, they may have far more difficulty contending with well-meaning manipulation and gentle, discreet suggestion.”).

Wolf S.M. , “Gender, Feminism, and Death: Physician-Assisted Suicide and Euthanasia,” in Wolf S.M. , ed., Feminism and Bioethics: Beyond Reproduction (New York: Oxford University Press, 1996): At 291 (“The history and persistence of family patterns in this country in which women are expected to adopt self-sacrificing behavior for the sake of the family may pave the way too for the patient's request for death.”); and Gutmann S. , “Death and the Maiden,” New Republic, June 24, 1996, 20–23 (asking whether “a certain type of woman—depressive, self-effacing, near the end of a life largely spent serving others—is particularly vulnerable to the ‘rational,’ ‘heroic’ solution” of assisted suicide).

Miller P.S. , “The Impact of Assisted Suicide on Persons with Disabilities—Is It a Right Without Freedom?,” Issues in Law & Medicine, 9 (1993): At 61 (“Because persons with disabilities are subject to prejudice that devalues their very right to exist, their decisions to commit suicide are not necessarily informed or voluntary.”)

Velleman J.D. , “Against the Right to Die,” Journal of Medicine & Philosophy, 17 (1992): 665–81 (“The most important way in which the option of euthanasia may harm patients, I think, is that it will deny them the possibility of staying alive by default.”).

New York State Task Force on Life and the Law, supra note 17, at 122 (“[P]atients generally do what their doctors recommend.”).

Farber N.J. , “Cardiopulmonary Resuscitation (CPR): Patient Factors and Decision Making,” Archives of Internal Medicine, 144 (1984): 2229–32; Wachter R. M. , “Decisions About Resuscitation: Inequities Among Patients with Different Diseases but Similar Prognoses,” Annals of Internal Medicine, 111 (1989): 525–32; and American Medical Association, Council on Ethical and Judicial Affairs, “Black-White Disparities in Health Care,” JAMA, 263 (1990): 2344–46.

Gag rules have frequently been criticized in other contexts as inconsistent with the physician's obligation to be complete and truthful. For example, Annas G.J. , “Restricting Doctor-Patient Conversations in Federally Funded Clinics,” N. Engl. J. Med., 325 (1991): 362–64 (“In the doctor-patient context, a half-truth is the same as a lie, and it violates both medical ethics and the doctrine of informed consent.”).

Quill , supra note 7, at 1382.

Emanuel Daniels , supra note 16, at 827 (“[A]s written, the Act could permit Jack Kevorkian or the Hemlock Society to establish physician-assisted suicide ‘mills’ with just two physicians serving terminally ill patients from all over the United States.”).

Gianelli D.M. , “Study: Patients in Pain Don't Want Assisted Suicide,” American Medical News, July 29, 1996, at 6–7 (noting that Humphry Derek , author of the suicide manual Final Exit, “had doubts about whether a mental health [consultation] requirement could pass constitutional muster”).