Reply on the Legal Issue

Howard Ball contends that someone who has decided that her life is no longer worth living “has the inalienable liberty to decide for herself that the time has come for ‘the least worst death.’” But that is precisely what we are debating. Merely asserting that a person has such a right is no argument. Philip Niscthke’s move is the same: his assertion that “it’s my life,” in context, is just another way of saying that it would not be right for the state to prevent him from contracting with another for assistance in killing himself—but that is precisely the question being debated.

I argued in my first essay that legalizing PAS would lead to a changed attitude to, and inferior care for, the elderly and the disabled in our society. Howard Ball has replied that: (1) “There are very effective pressure groups representing the interests of these allegedly vulnerable cohorts as well as national and state laws that protect these persons”; and (2), “Court decisions over the past sixty years have validated these statutes and regulations.” But the pressure groups he refers to—both for the elderly and for the disabled—have all voiced their opposition to PAS precisely because of the dangers I referred to. The same is true of most of the court decisions and legislators’ commissions that have explored this issue. For example, the 1994 New York State Task Force, reporting on When Death Is Sought, was composed of members of varying opinions on the ethics of suicide and, initially, on the advisability of decriminalizing PAS. Yet it unanimously concluded that

Despite these differences about the underlying ethical questions, the Task Force members unanimously recommend to permit assisted suicide or euthanasia. Legalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. The Task Force members concluded that the potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved.

They further concluded that, “The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group.” (Ibid.) British commissions, also having many members initially favoring decriminalization, have reached the same conclusion.

Decriminalizing PAS would create (or help to create) a cultural environment unappreciative of the interests of the elderly and the disabled. Hardly anyone wants to say that consent or autonomy just by itself should legally justify killing. Does anyone seriously argue that the law should allow a financially strapped head of a family to sell to another the right to kill him for amusement? Or the law to allow dueling, or Russian roulette—played perhaps before television cameras for the latest Reality TV show? The point is: no one actually thinks that autonomy by itself justifies contractual killing.

And so the legalization of PAS will mean that the physicians who assist the killing, as well as society in general would be making the judgment that death for these people is a benefit, that is, that certain people are better off dead. But such a cultural attitude creates pressure on the very old or disabled not to burden their families or society. And it would lead to self-doubting and loss of self-esteem on the part of the elderly and the disabled, since the views of others, and of the culture in general, profoundly influences one’s sense of self-worth. In other words, in many ways, some subtle and others not so subtle, the elderly and dependent would be pressured to end their lives in order to cease being burdens to others.

Moreover, if the extremely dependent and debilitated are better off dead, then why invest so much in palliative and other types of care for them? A general diminishing of respect and care would result.

In addition, the logic itself of decriminalizing PAS would inevitably lead to non-voluntary euthanasia and to euthanizing others who are not terminally ill or grievously suffering. If our society concludes that in some cases death is actually a benefit, then by the principle of equal protection of the law, we will be forced to allow this alleged benefit for those who lack decisionmaking capacity. And if the justification is that PAS is required by respect for autonomy, there will be no principled way to confine legal killing to those who are terminally ill or even suffering at all.

Howard Ball claims that the laws in Oregon and Washington ensure “that only psychologically healthy individuals can acquire the prescription for the lethal dosage they may wish to take to end their lives,” and that these states have checks and balances that will stop any slippery slope toward euthanasia.

But I think these points are simply not true. The Oregon Death with Dignity Act has even fewer safeguards than the comparable law in the Netherlands, where the slope has proven to be slippery indeed. It requires that the person be examined by two physicians and be referred to counseling if either physician suspects a psychological disorder. But neither of the two examining physicians need have any expertise in psychiatry or palliative care, the physicians need not be independent of each other, and neither is required to consult the patient’s regular physician. Moreover, the official acknowledgement of what is occurring in Oregon is completely reliant on self-reporting by the physicians involved in the practice itself. Daniel Callahan says of the regulations in Oregon that they constitute mere “obfuscation,” and that they “look good, sound good, feel good, but have nothing behind them.” (“Organized Obfuscation: Advocacy for Physician-Assisted Suicide,” Hastings Center Report 30, p. 32).

In sum, the liberty for PAS does not involve the realization of a basic human good, and laws against PAS do promote an important and legitimate public good, namely, the protection of life, especially the lives of the elderly and the disabled. By contrast, decriminalizing PAS would lead to non-voluntary euthanasia, euthanasia on people who are not terminally ill, a general diminishing of respect for life, and inferior respect and care for the elderly and the disabled.

Also from This Issue

Lead Essay

  • Physician Assisted Death in America: Ethics, Law, and Policy Conflicts by Howard Ball

    Howard Ball reviews the recent history of physician-assisted death (PAD) in America. He argues that it is a fairly direct outgrowth of other trends in our society, including the medicalization of death, the movement toward palliative end-of-life care, and the longstanding concern for individual autonomy that has characterized American legal and political thinking. Social values evolve, and he argues that allowing physicians to assist patients in dying will eventually come to be an accepted value as well, as a matter of compassion for those who are suffering.

Response Essays

  • The Decriminalization, and Medicalization, of Suicide by Philip Nitschke

    Philip Nitschke looks back at the Baby Boom generation. All through their lives, they have broken the mold, in women’s rights, contraception, divorce, and many other areas. Now, as they approach retirement and the end of life, they are again breaking the mold. Death isn’t what it used to be, and a long, drawn-out, medicalized death may not be to everyone’s liking. Yet the law has often lagged behind, and one might even question, with Nitschke: Why do we need law, or physicians, in deliberately ending our own lives?

  • Say No to Physician Assisted Suicide by Patrick Lee

    Patrick Lee urges us to observe the difference between committing suicide and foregoing burdensome treatment. Committing or assisting a suicide both disrespect the intrinsic good of human life and are objectively morally wrong. We rightly abhor pain and suffering, but this sentiment should not lead us to attack the person who is experiencing the pain and suffering. If we do, the lives of the elderly and disabled throughout our society will be devalued, with grave consequences for all.

The Conversation