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The Case for Euthanasia: Should Physician-Assisted Suicide be Legalized?
Throughout the twentieth century, major scientific and medical
advances have greatly enhanced the life expectancy of the average person.
However, there are many instances where doctors can preserve life
artificially. In these cases where the patient suffers from a terminal
disease or remains in a "persistent vegetative state" or PVS from which
they cannot voice their wishes for continuation or termination of life, the
question becomes whether or not the patient has the freedom to choose
whether or not to prolong their life even though it may consist of pain and
suffering. In answer to this question, proponents of physician-assisted
suicide, most notably, Dr. Jack Kevorkian, are of the opinion that not only
should patients be able to abstain from treatment, but if they have a
terminal and/or extremely painful condition, they should be able to seek
out the assistance of a doctor in order to expedite their death with as
little pain as possible.
Contained herein are the arguments for and against the legalization of
doctor-assisted suicide, as well as where the state courts stand in respect
to this most delicate of issues.
In the hopes of clarification, we must first distinguish between
active and passive euthanasia. Passive euthanasia involves the patient's
refusal of medical assistance. It involves the right to die which is
protected by the United States Constitution clauses of due process liberty
and the right to privacy (Fourteenth Amendment). The right to doctor-
assisted suicide, or active euthanasia, consists of, "...a patient's right
to authorize a physician to perform an act that intentionally results in
the patient's death, without the physician's being held civilly or
criminally liable for having caused the death" .
The "passive" form of euthanasia was first deemed legal by the New
Jersey State Supreme Court in 1976 In re Quinlan . In the Quinlan case,
the court allowed a competent patient to terminate the use of life-
sustaining medical machines to prolong life. Since New Jersey's decision,
all fifty states have enacted similar statutes which contain living will
provisions. However, although the United States Supreme Court upheld the
Quinlan decision in re Cruzan , it changed the parameters of passive
euthanasia . With the Cruzan decision, the Supreme Court held that passive
euthanasia was legal but only for competent adults or those who are
incompetent but have previously procured a living will. However, if the
patient is without a living will and incompetent, it becomes the burden of
the family to prove that there is "clear and convincing evidence" to the
affect that the patient does not want to continue living in a vegetative
state.
As to active euthanasia, there has been no Supreme Court ruling
determining whether the right to die, as understood in passive euthanasia
cases, can be bound over to active euthanasia. The decision is thus left to
the individual states. Currently, thirty-one states have criminalized
explicitly the act of assisted suicide . Physician-assisted suicide is
generally recognized as illegal under the parameters of homicide, however
it is very difficult to meet all of the elements of the crime and
conviction subsequently becomes nearly impossible. The fact that the U.S.
Supreme Court has not reviewed a physician-assisted suicide case, which
would create precedent, constitutes a dilemma for the state courts in that
there is no uniform test or ruling by which to decide.
Most states have developed their own laws to, more often than not,
make doctor-assisted suicide illegal. However, when a case comes to trial
it is usually dismissed either by the judge in a pretrial motion or by the
jury. For example, in at least three of the assisted suicides which Dr.
Kevorkian was involved in, all criminal charges were dismissed. So, the
laws have been created, but when it comes to convicting a doctor and
sending him to prison, in lieu of the circumstances, the law often breaks
down and the charges are dismissed or the doctor is acquitted.
In the case of the nineteen states which have not delineated the
criminality of doctor-assisted suicide, the issue becomes less clear. Many
of these states have a hard time grouping physician-assisted suicide with
homicide. The case which Michigan judges cite in refusing this linkage of
criminality is the People of the State of Michigan v. Campbell . In the
Campbell case, the "court found that 'the term suicide excludes by
definition a homicide'" . Since, suicide is not a homicide, then an
assisted suicide cannot be deemed a homicide. At the time of the appellate
courts hearing of the Campbell appeal, there was no other codified law
expressing what crime an assisted suicide would fall under and the homicide
charges were dismissed.
Anti-active euthanasia proponents feel that it is the duty of
physicians to help and heal patients as opposed to hastening their exit
from this world. They also fear that the legalization of doctor-assisted
suicide may be abused by doctors who do not feel that there is any hope for
the patient and counsel them to terminate their life. The state also has
an interest in the life of the individual. The individual state was
originally set up to protect the rights of individuals and to see that "the
value of an individual's life...and the value of life to society as a
whole" is protected. The value of an individual's life includes their
personal well-being and safety from harm, even if it is self- inflicted.
So, it has now become the duty of the individual states to balance the
interests of the state against the interests of the individual patient in
order to come up with a law which is accommodating to both.
Persons who are for active euthanasia believe that legislation against
it is "violative of the fundamental concepts of liberty, freedom of choice,
and self-determination" They base these beliefs on the text of the
fourteenth amendment to the United States Constitution. The voluntary
choice between life and death is, to them, a basic human right which the
government has no right to legislate. They often compare this choice of
euthanasia to the right to abortion. Judge Lynn Compton embodies these
views in her opinion in the case of Bouvia v. Superior Court , "If there is
a time when we ought to be able to get the government 'off our backs', it
is when we face death-either by choice or otherwise" .
The trend in the law seems rather obviously to be against the
legalization of physician-assisted suicide. This is clear due to the
thirty-one states which have already incorporated the act into their penal
codes as being illegal. As to the other states, there is much controversy
as to it's legalization. Although in popular polls, the general public
seems to be in favor of active euthanasia's legalization, the courts in all
of the states find that the possibility for infraction of the statute
supersedes the wishes of the patient. The courts aim to protect doctors
from civil suits, patients from doctor's advisory abuse, and the country's
general policy of the sanctity of life. In the courts view, passive and
active euthanasia are two entirely different things. One involves the
withholding or cessation of care which may or may not end up in death and
the other involves a doctor's administration of a lethal substance with the
specific intent of impending death. In other words, one entails allowing
death to occur without doctor intervention and the other is killing, albeit
"mercy" killing.
Based on my research, it seems clear that the effort to legalize
active euthanasia is one that is not going to go away in the near future.
This is especially due to the spread of the AIDS virus and other incurable
diseases. However, although I feel that it should be legalized with
certain provisions, I cannot foresee it's uniform, federal regulation in
the near future, especially with a conservative Supreme Court as is sitting
today.
Presently, there are twenty-one states which allow citizen legislation
through the use of the general election ballot. In these states, special
interest groups which support active euthanasia have placed initiatives on
the ballot. An example of one of these groups is the California based
Americans for Death with Dignity or ADD . The DDA designed a statute,
proposition 161, that would legalize doctor-assisted suicide. The statute
was also created "with extraordinary care to provide all reasonable
precaution to protect against the risks" of legalizing the practice of
active euthanasia. One of the clauses of the statute which aims at the
prevention of abuse is that the statute would only allow licensed
physicians to partake in helping someone end their life. Although
proposition 161 was not passed, it is a reflection of the general
population's sentiment that active euthanasia should not be illegal. At
the time of the publication of this article, California, Washington, Oregon,
and Michigan were preparing or has already proposed general election
initiatives which would permit aid-in-dying by physicians.
The act of taking a life is a serious one. The American people are
notoriously weary of it's implementation, as can be seen in the case of
capital punishment. Although, active euthanasia is consensual, the paradox
which lingers in the term "physician-assisted suicide" is difficult for
lawmakers and citizens alike to consent to.
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