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Reflections on Life, Death, and the Constitution$

George Anastaplo

Print publication date: 2009

Print ISBN-13: 9780813125336

Published to Kentucky Scholarship Online: September 2011

DOI: 10.5810/kentucky/9780813125336.001.0001

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. Washington v. Glucksberg (1997) and Assisted Suicide

. Washington v. Glucksberg (1997) and Assisted Suicide

Chapter:
(p.165) 9. Washington v. Glucksberg (1997) and Assisted Suicide
Source:
Reflections on Life, Death, and the Constitution
Author(s):

George Anastaplo

Publisher:
University Press of Kentucky
DOI:10.5810/kentucky/9780813125336.003.0022

Abstract and Keywords

This chapter discusses the ethical and legal issues on the development of unprecedented means for ministering to the bodies of severely afflicted patients. It examines the Glucksberg case which deals on whether the United States Constitution keeps a State from forbidding a doctor (or anyone else) from assisting in the suicide of a desperately ill patient. It notes that it seems to be generally agreed among medical doctors, that the deliberate withholding or withdrawing of life-sustaining treatments from a terminally ill patient may be neither euthanasia nor assisted suicide. It provides that State laws regulating medical practice generally distinguish between “killing” (which is forbidden) and “letting go” (which is permitted). Furthermore, it provides that the American Medical Association guidelines with respect to these matters also seem to permit the use by doctors of “terminal sedation,” the administration of an amount of sedation for intense pain which is likely to shorten the patient's life.

Keywords:   ethical issues, legal issues, Glucksberg case, United States Constitution, terminally ill patient, euthanasia, assisted suicide, killing, letting go, terminal sedation

I

It seems to be generally agreed among medical doctors, at least in this Country, that the deliberate withholding or withdrawing of life-sustaining treatments from a terminally ill patient may be neither euthanasia nor assisted suicide. Our State laws regulating medical practice among us generally distinguish between “killing” (which is forbidden) and “letting go” (which is permitted). Furthermore, the American Medical Association guidelines with respect to these matters also seem to permit the use by doctors of “terminal sedation,” the administration of an amount of sedation for intense pain which is likely (but which is not said to be primarily intended) to shorten the patient’s life.

It is recognized that ethical and legal issues here have been complicated by the development of unprecedented means for ministering to the bodies of severely afflicted patients. This could be seen, for example, in the facts provided by the Cruzan Case (1990), which dealt (we recall) with a comatose “person” who had been in a “persistent vegetative state” for almost a decade. Particularly troubling for some was the prospect of allowing this “person” to starve to death once life-support systems were disconnected.

Whether the patient in such circumstances is likely to “feel pain” can be debated, but not whether observers do so. Hastening death can be argued for by some not only here but also when a dying patient is conscious of great and unrelenting pain. What may or should a doctor do then, aside from having recourse to the somewhat limited relief and perhaps a hastened death that may be provided by terminal sedation?

(p.166) II

The Washington State doctors who brought the suit dealt with in the Glucksberg Case sought to be authorized to help terminally ill patients who wanted to kill themselves. State law prohibited them (as it did all other persons) from providing such assistance. These were doctors obviously deeply troubled by the pain that their dying patients “had” to endure.

Whatever the distress of these particular doctors, most of their medical colleagues still seem to be opposed to having doctors provide obvious assistance in any suicide attempt. Even more doctors, it seems, are opposed to euthanasia (or mercy killings), something that was not directly an issue in the Glucksberg Case. The question, answered in the negative in this case, was as to whether the United States Constitution keeps a State from forbidding a doctor (or anyone else) from assisting in the suicide of a desperately ill patient.

There were in this case, as in the Cruzan Case, many amicus briefs filed, which means that the controversy dealt with here is apt to continue to divide citizens for years to come. To some terminally ill patients and to some of their champions, so much unrelenting pain can appear to be like torture, especially when it is obvious that someone could do something to stop that pain. Indeed, some attending physicians may sometimes feel like torturers when they could readily stop the pain if only they would intervene.

III

The resistance faced by the Glucksberg doctors testifies to the settled opinion against suicide in the Western World. The longstanding abhorrence of suicide among us is in marked contrast to what has been thought and done elsewhere. In Japan, for example (as we have seen, in an affair of honor), it can sometimes seem that suicide is called for as the only proper course of action.

Even in the West the repudiation of all suicides was questioned, both in word and in deed, by the Ancient Romans. The examples of Brutus, Cassius, Cato, and Marc Antony come to mind, as does that of Lucretia. But, however much Lucretia could be extolled by the ancients for her heroic self-sacrifice, which is said to have contributed to the overthrow of the Roman Kings and thus to the establishment of the Roman Republic, her (p.167) conduct could, much later, be condemned by Saint Augustine as woefully misconceived.

Suicide, in the English-speaking tradition, could even come to be condemned as “self-murder” (not simply, as the term itself suggests, “self-killing”). That tradition could (as we have also seen) even lead Blackstone to condemn “the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure.” It is likely that such condemnations of suicide in Christendom depended, at least in part, on a lively expectation of an unending life to come after death, for which all that we endure now is but a temporary trial.

IV

One is obliged to wonder about the case now made for assisted suicide and for euthanasia when one encounters the deeply felt reservations of some learned scholars. Thus, it can be pointed out by such observers that the suicidally inclined are often depressed people who may not really understand either their prospects or what they ask for. Besides, it is argued, it has always been understood that doctors simply should neither kill nor help others kill human beings.

For doctors to proceed otherwise, it is argued, would weaken the faith that people need to have in their doctors. Physician-assisted suicide, it is argued in the Opinion of the Court in Glucksberg, could undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming. The Court then seems to endorse a thoughtful scholar’s observation, “The patient’s trust in the doctor’s wholehearted devotion to his best interest will be hard to sustain.”

But, it might further be wondered, what happens to a patient’s trust, and (sometimes even more important) the trust of his family, if the attending physician will not help to stop excruciating (and permanent) pain in what seems to be the only available way? Even so, the serious reservations—indeed deep repugnance—by decent, well-informed observers at the prospect of physician-assisted suicide has to be taken seriously, especially when that repugnance is backed up by centuries of authority and is reinforced by plausible arguments about the risks and abuses to be expected whenever physician-assisted suicides are permitted. Among the risks to (p.168) be expected, it is argued by the tradition-minded doctor, is that the most vulnerable (but yet not terminally ill) may be manipulated by selfish relatives or others into agreeing to be killed.

V

It is significant that there were no Dissenting Opinions filed by Supreme Court Justices in the Glucksberg Case. That the lower court opinion in this and a companion case from New York (Vacco v. Quill [1997]) were more receptive to the challenges against prohibitions of physician-assisted suicides may reflect a kind of experimentation by “inferior Courts” (who may be somewhat closer to a developing public opinion)—by the judges who count upon the Supreme Court to set matters straight, if need be. The prevailing public opinion of our day still seems to be reflected, however, in the Federal Assisted Suicide Funding Restriction Act of 1997.

Furthermore, it seems to be believed by many observers that physician-assisted suicide would eventually become, if it would not be so from the outset, mercy killing by doctors. And such “mercy killing” still tends to be associated, at least in the Western World, with Nazi Germany (an insane regime recalled in Appendix I of this volume). Thus, the memory of the notorious Dr. Mengele is readily conjured up, however merciless he himself was.

All this is not to deny (we gave noticed) that doctors have “always”—here and there, but most discreetly—done what they could to speed the departure of intensely suffering patients. The use of discretion here (which can mean that it is “cleaner” for the doctor to kill directly than to assist in a suicide) pays deference to the sensibilities and limitations of the community. It may also help restrain those who might not be as prudent as they should be in exercising the great powers with which the medical profession has to be entrusted.

VI

The ambivalence of the public with respect to euthanasia is reflected in a story first published by a London tabloid, in September 2005, about the agony of an unnamed New Orleans doctor who was said to have given fatal injections to her incapacitated terminally ill patients who “had” to be left behind when the city was evacuated because of Hurricane Katrina. (p.169) The details needed to corroborate such a story were not provided at that time. Although this episode probably did not happen as originally reported, it does dramatize the dilemmas that conscientious doctors have always faced in extreme situations.

Guidance in these matters is usually provided by the culture (including the religion) of a people and by the laws that result. Is there also, it can be wondered, a basis in nature for dealing with such matters? Should even the received religion of a people be subjected to the tests that nature suggests?

What do the teachings of natural right/natural law say about these and like matters? This bears on the intended meaning of the Privilege and/ or Immunity Clauses of the Constitution and of the Fourteenth Amendment. It also bears on the intended meaning of the Ninth Amendment to the Constitution, a matter to which we shall return.

VII

Is there, in short, a Constitutional issue properly raised when any State or the United States forbids assistance to anyone contemplating suicide, no matter how permanently desperate that patient’s circumstances may seem to be? Is one’s liberty to manage sensibly one’s affairs thereby unreasonably interfered with by those in authority? What, if anything, does the community gain by such a restriction which compensates for the unrelenting torment that dying patients and their families are forced to endure?

It may not be prudent to try to develop and apply general rules in such matters, especially since chance can very much affect the circumstances of patients, their families, and their doctors. The issues here can become difficult to deal with sensibly when either ignorance or demagoguery is permitted to dominate public discourse about such matters. Doctors may have to be depended upon, therefore, to do “the right thing” with a minimum of publicity.

But this dependence presupposes that doctors are properly educated, which means that they can safely be entrusted with powers that can never be fully supervised by the community at large. The same may be said about the lawyers involved in these controversies. Here, as elsewhere, our dependence upon self-governing and reliable professions should be evident.

(p.170) VIII

It remains to be seen how the 1997 Oregon assisted suicide law will be assessed not only in the courts but also in the Country at large (including in Congress). Concerns about possible abuses helped shape various features of the Oregon law, which has survived (in Gonzales v. Oregon [2006]) its preliminary (but far from final) assessment by the United States Supreme Court. Thus, the patient who may legally be helped to kill himself in Oregon not only must be a resident in that State but also must be someone who is not expected to live more than six months.

Even more significant is the Oregon provision that the suicide must be by medication provided by the doctor to the patient, who will then have to take it on his own. Concerns have been expressed on behalf of those patients who, though aware of their circumstances, are so far gone that they cannot do anything on their own. It seems evident, however, that Oregonians do not yet want doctors (or anyone else?) to do anything that could be seen as directly killing their patients.

A quite different approach may be seen in the Netherlands, where doctors are authorized to kill patients in carefully delineated circumstances. The Dutch experiment remains to be reliably assessed elsewhere. It is an experiment which has aroused considerable concern among European medical people for what it permits doctors to do and which has been repeatedly charged with abuses in its implementation.

IX

The Dutch experiment is not likely to be resorted to in this Country anytime soon, whatever doctors here have “always” quietly done in extraordinary circumstances. Nor is even assisted suicide, as distinguished from euthanasia (or mercy killing), likely to be generally authorized among us. The community at large remains profoundly suspicious, if not even resentful, of anyone who makes use of suicide—and that is not likely to change soon.

Still, the desperation generated by the avoidable “torture” of terminally ill patients must be reckoned with. Desperate patients do sometimes resort to crude forms of suicide, demoralizing everyone around them, if they are not helped to die, and to die soon, “with dignity.” Thus, the choice may sometimes be not between “suicide” and “no suicide,” but (p.171) rather between less and more troubling forms of this awesome action, matters touched upon in a New York Times Magazine article (of December 2, 2007) reporting on efforts to extend the Oregon practice to Washington State.

The Opinion of the United States Supreme Court in Vacco v. Quill, argues, “By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York Law follows a longstanding rational distinction.” It is then said by the Court that New York’s reasons for recognizing and acting on this distinction are discussed in greater detail in the Court’s Opinion in Glucksberg. These reasons, which it is probably prudent for legislatures and their constituents (rather than courts and their litigants) to reconsider and revise as circumstances (including public opinion) change, are said to include those of “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia.”