About this Issue

Last month, a Massachusetts ballot initiative that would have legalized physician-assisted suicide in that state narrowly failed. It was only the latest in a decades-long set of legal and electoral battles over what we might call the last choice: when and how we may end our own lives, and with what forms of assistance.

Powerful ethical and legal questions surround this choice. While a libertarian might be tempted to affirm that physician-assisted suicide is an exercise in personal autonomy, the matter is by no means so simple. The legal and constitutional traditions of our country have only occasionally affirmed such a right, and the potential for abuse in various assisted-suicide regimes may be unacceptably high. Add to this the concerns raised by those who argue for the essential dignity, not of a painless death, but of a natural one, and we confront a vast terrain of ethical issues.

Our lead essay this month is by Howard Ball, a Professor Emeritus of political science at the University of Vermont and author of At Liberty to Die: The Battle for Death with Dignity in America . Joining him will be Patrick Lee, the John N. and Jamie D. McAleer Chair in Bioethics at Franciscan University of Steubenville; and Philip Nitschke, the Founder and Director of Exit International, a leading group advocating for end-of-life rights.


Lead Essay

Physician Assisted Death in America: Ethics, Law, and Policy Conflicts

I. What is Physician-Assisted Death?

“When I can’t tie my bow-tie, tell a funny story, walk my dog, kiss someone special,” said a man dying of amyotrophic lateral sclerosis (ALS), “I’ll know that life is over. It’s time to be gone.” For this terminally ill person, physician assisted death is how he will go.

Physician assisted death (PAD) is a relatively new phrase in the American lexicon. It is the law in two states, Oregon, 1994, and Washington State, 2008. A terminally ill patient residing in these states—competent and not clinically depressed—can ask for and receive from his doctor a prescription for medicine that, if ingested, ends life. PAD differs from euthanasia because in euthanasia the medical practitioner dispenses the lethal amount into the client.

Ironically, it was the actions of two radical euthanasia zealots—Dr. Jack Kevorkian, a pathologist, and Derek Humphry, the founder of the Hemlock Society—that led to the onset of the bitter debates in America regarding PAD. These clashes began in 1990 and continue to this day. They involve ethics, constitutional arguments, and ruthless policy battles waged in two dozen states.

From 1990 through 1997, Kevorkian drove to his clients in a battered Volkswagen bus. They had responded to ads placed in Michigan newspapers by Kevorkian hawking the “Thanatron,” his death device. It ended the lives of 130 ill persons—many not terminal, some clinically depressed. Tried four times in Michigan courts for assisting in suicide, he avoided conviction the first three times. However, he was convicted in 1997 for euthanizing a client whose illness (ALS) prevented him from taking his life. He not only took the client’s life; he videotaped the event and it was telecast on a 60 Minutes segment. It was used to convict him in the Michigan court.

Derek Humphry’s wife died of cancer, in great, unmitigated pain at the end. He believed that such agony was cruel and unnecessary and advocated euthanasia to end the lives of dying patients. Toward that end, he founded the Hemlock Society, which provided persons with information to take a “final exit” from the pain of chronic illnesses such as cancer or ALS.

Why did these uncompromising men appear in the public eye at this time in history? Because American society was experiencing the “medicalization of death,” a multifaceted event that began in the early decades of the 20th century. Death was given a medical character, as seen in enormous advances in medical technology, new inventions, and drugs. Hospitals were no longer places where poor people went to die; they had become places where sick people were treated and health restored. Doctors used these innovations to treat and cure their patients, even though extending their life led to unforeseen problems.

Medical science—with its new techniques and special departments (CPR, public health agencies, emergency departments, intensive care units, medical specialists) and its innovative life-saving medicines and procedures (penicillin, organ and bone marrow transplants, artificial hearts and hips, defibrillators)—led to a near doubling of life expectancy. In 1900, the average life expectancy of an American was 47 years; in 2000, it was nearly 80 years.

In 1900, infectious diseases like tuberculosis and pneumonia were the primary causes of death. By 2000, degenerative diseases like cancer and heart disease were the major causes of death. Americans are living longer and dying more slowly of chronic diseases that rob them of a vibrant life and leave many of them in great pain, immobile, experiencing urinary and bowel incontinence, a loss of dignity, and totally dependent on others. This new medical reality has led to the PAD controversies.

II. The Choices a Terminally Ill Patient Confronts

Today a person facing a degenerative death has a limited number of choices available to address that grim reality. He can have life-saving medical treatment withdrawn or withheld from his body. Under common and constitutional law, a competent person is an autonomous individual with the right to self-determination. He can make such a choice even though it will lead to his death.

A second path—taken by growing numbers of terminally ill patients—is to treat the pain aggressively, even though it will hasten the patient’s death. In 1974, there was a single hospice. By 2010, more than 40% of terminally ill people (a little more than one million persons) were aggressively treated for pain and suffering in hospice through palliative care.

These choices pose no legal or ethical problems. As long as the dying patient is competent, society’s values allow such choices. Suicide is another path. It is no longer a criminal act in America, but many dying who contemplate this choice are put off because of the gross violence of a gunshot or a jump off a bridge. By 1990, there were groups of people—dying patients, death with dignity organizations, medical professionals—who called for a dignified way to die.

PAD is the final choice. It is today a criminal act in 48 states. If a doctor assists a dying patient by deliberately providing the knowledge, the means, or both, which the patient then uses to end his life, the physician is a criminal, subject to prosecution, loss of license, and imprisonment.

For some dying persons, the specter of a slow, painful, and humiliating period before biological death is too much. Their illness prevents them from leading the life they had before they contracted cancer or Parkinson’s disease or ALS. They experienced social death and did not want to spend many months, in some cases years, awaiting biological death. They believe they have the constitutional liberty to take their life. Furthermore, they maintain that their doctor can assist them by providing information and prescribing the medications used to end their life.

III. Ethics

For PAD advocates, including this author, two principles are paramount in its defense: 1) patient liberty/autonomy, and 2) the doctor’s duty to relieve suffering. The right to self-determination is guaranteed by the “liberty” provision in the U.S. Constitution’s Due Process clauses. A terminally ill patient has the liberty to choose death by receiving a fatal prescription from her doctor. It is an absolute right possessed by an individual; the government cannot abrogate it.

The second tenet is the compassionate medical practitioner who provides his dying, suffering, patient with a prescription that, if filled, will enable the patient to die with dignity. This medical procedure, PAD, is right; it is caring; it is moral.

Opposed to these arguments are conservative philosophers, scientists, clergy (especially the Roman Catholic hierarchy), doctors, nurses, politicians, lobbyists, and pressure groups. For all of them, there are limits to individual autonomy. And PAD is not a fundamental right. They believe that a more fundamental societal right—the sanctity of human life—trumps individual autonomy.

They categorically reject the second principle. The Hippocratic Oath’s essential message, that doctors must “do no harm,” is the primary guideline for doctors. Compassion is not a substitute for appropriate medical treatment of the dying patient—until a patient refuses the treatment.

IV. Law and Policy

The issue of PAD entered the courtrooms and legislative assemblies in 1990. In the courts, especially the U.S. Supreme Court, the essential question revolved around the scope of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.

In 1990 every state had laws making assisting suicide a felony. PAD advocates in New York and Washington State went into federal courts to challenge them. Representing a small number of terminally ill patients (all dead by 1997), the lawyers presented two arguments in the trial and appellate courts. First, “liberty” in the Due Process clause is a fundamental right. Its scope extended to a terminally ill patient’s liberty to die with dignity with the passive assistance of a medical practitioner.

Second, the state laws violated the “Equal Protection” Clause of the 14th Amendment because they allowed the withdrawal of life support from a dying patient while denying another dying patient receiving a physician’s assistance in dying. For the supporters of PAD, the two actions are not different: in both, death occurs.

Surprisingly, majorities in both appeals courts, the Second Circuit (New York) and the Ninth Circuit (Washington), accepted the arguments and invalidated the laws.

In Washington v Glucksberg, 1997, the Supreme Court overturned the decision of the Ninth Circuit. Chief Justice Rehnquist wrote the opinion for the Court, focusing on the broad interpretation to “liberty.”

The due process clause, he wrote, prevents substantial government interference with fundamental rights and liberties. Is PAD such a fundamental liberty? Was PAD “a deeply rooted” value in the nation’s “history, legal traditions and practices.” For Rehnquist, PAD was not such a value. Affirming the lower courts, he concluded, “would reverse centuries of legal doctrine and practice and strike down the considered policy choice of almost every state.”

The Court also overturned the Second Circuit. In Vacco v Quill, Rehnquist concluded that New York’s prohibition of PAD did not violate the 14th Amendment. PAD was not the equivalent of withdrawal from medical life-saving procedures. In the former, taking the fatal dose of medication was the proximate cause of death. Refusing or withdrawing life-support procedures led to death; the underlying illness was the proximate cause of death. They are not the same, therefore equal protection is not germane.

While the decisions were unanimous, 9-0, there were concurring opinions because of the technical issue the litigation raised. In both cases, all the patient-petitioners died. Consequently, the PAD lawyers had to present a “facial challenge” to the laws. This is a very tough standard to meet. The lawyers must show that that there was no set of circumstances existing under which the law would be valid. If the patient-petitioners were alive in 1997, the lawyers would have presented an “as applied” challenge. In this scenario, they had to show that the law was invalid as applied to these patients. Concurring opinions strongly suggested the probability of validating the lower courts had the petitions been filed as “as applied” challenges.

These two cases are precedent in American jurisprudence. There has been no new challenge to other state laws prohibiting physician-assistance in dying. However, the battleground moved from the courtroom to legislative chambers and voting booths. Rehnquist’s final message to the parties in both cases was prescient: “Our holding permits this debate to continue, as it should in a democracy.” The debate did continue, in more than two dozen states.

In these legislative battles—and every one has been a bitter ideological fight—the pro-PAD advocates have fared poorly. Except for Oregon and Washington, every proposed PAD bill was defeated. The major “anti” organizations remain the Roman Catholic church, which has spent many millions of dollars to defeat the bills; professional organizations, especially the American Medical Association and nursing groups; organizations representing the physically disabled, such as the group Not Dead Yet; Right to Life political pressure groups, who view PAD battles as surrogate for the Roe v Wade abortion clashes; and many Republican politicians—from state legislators to President George W. Bush.

V. PAD’s Future

From the 1990 defeat of California’s PAD/euthanasia proposal to the November 2012 defeat of the Massachusetts PAD bill, the “antis” have succeeded in blunting most efforts to pass PAD legislation. Only the voters in two northwestern states and, in 2009, the Montana Supreme Court, and some federal judges have accepted the rightness of PAD.

Yet things are happening that suggest significant changes in the society’s attitudes about death and dying. We are finally confronting the reality of how we die. There was only one functioning hospice in 1974; there are now thousands of facilities in every state and territory. Palliative care was not part of medical school curricula; today it is an important specialization. As the baby boomers have to confront the tragedy of degenerative diseases that rob them of dignity, more of them have come to believe that PAD is the “least worst death.”

Our society’s history clearly shows how values evolve, how they become more inclusive. Times change, and the meaning of the Constitution’s words has kept pace—slowly but surely—with these changes since 1789. For the past seventy years, there have been significant expansions of individual liberties. The privacy value has been expanded to protect marital, sexual, and abortion rights. I am sure that physician assistance in dying will eventually be seen as a constitutionally protected right that terminally ill patients can choose without hesitation. Compassion has been a major factor in the growth of individual rights in America. It is the major trigger in the PAD issue; it will ultimately generate acceptance of PAD as “the least worst death” for some human beings.

Response Essays

The Decriminalization, and Medicalization, of Suicide

I have lived my 65 years at the vanguard of a generation that writes its own rules. From birth to marriage to death, we baby boomers have a reputation for doing it our own way. At the height of our reproductive careers we reached eagerly for such medical breakthroughs as the contraceptive pill while bearing witness to landmark court decisions like Roe v Wade. Both the invention and the decision changed the landscape of our lives and loves. Today our daughters and sons continue to enjoy the legacy of feminism’s hard-won battles.

Not long after came the advent of no-fault divorce. As the lead beneficiaries, we struggle to imagine a time when we could not move from one relationship to another. Of course, stress and heartache are part and parcel of love gone wrong. The point was that the law was on our side in a way in which it never was for our parents. Society’s moral panic around the family unit subsided as we realized the end was not nigh when two people decided that a long marriage was not necessarily a happy one.

And now, in our retirement years and beyond—having witnessed the older members of our families pass on in ways that are neither dignified nor becoming—we are writing a new chapter on how we might go, when our time comes. Increasingly we know what we don’t want. Working out what we do want on a subject as taboo as death and dying is the challenge that lies ahead.

Professor Ball argues that physician assisted dying and its advocates were products of the medicalization of death. By being brought into the profession of medicine, the dying process became subject to an industry involving specialized fields of medicine (palliative care), specialized places to die (hospices), specialized duties of medical professionals (compassion and assistance) and specialized laws that sanctioned assistance to a very select, small group of patients (the terminally ill).

Ball is right to insist that whereas a century ago we were likely to die quick deaths as a result of acute illnesses or accidents at a much earlier age, in the 21st century an expanded old age means prolonged periods of ill health and a lingering on as medicine practices its heroics in extending our appointed hours. But is this what we want? And what does it mean to suggest that physician assisted dying is our “final choice”? There are two main factors which intimate the road ahead.

The first of these concerns the decriminalization of suicide. In most of the western world, the 1960s saw the erasing of suicide from the statute books. No longer was it a crime to take one’s own life. While the stigma continues today—she must have been depressed or desperate or both—the legal censure has vanished. No longer is the failed suicidee punished by the state. No longer are their possessions or estate confiscated or their family penalized. Kill yourself if you like, and the state has little interest. While suicide continues to be largely perceived in a negative light, the emergence of a discourse in which suicide in the context of old age and/or illness is a rational, understandable action of an independent-minded person is as confronting as it is paradigm-shifting.

The second factor that has informed my own work in this area as an activist, scientist, and physician has been the glacial pace of legal reform in the area of physician assisted dying. In 1996 in Australia I became the first physician to administer a lawful, voluntary lethal injection to four of my dying patients. While Australia’s Rights of the Terminally Ill Act only lasted nine months before being overturned, the life of the legislation gave glimpses into a future that could be both positive and negative.

The pros of course were that terminally ill people could get medical assistance to die. This gave peace of mind to an entire nation even though—as is the case is Oregon and Washington—extremely few would ever use such a law. The elderly and the seriously ill were comforted in simply knowing that the choice was there should they ever need it.

On the downside were the tight qualification procedures that had to be met. Such safeguards surround and regulate any law in this area. Their varying degrees of stringency are the product of delicate negotiations in the final moments before enshrinement into law. Generally speaking, where end of life choice laws are concerned, a person must be terminally ill (with a prognosis of death no more than six months out), of sound mind (certified by a psychiatrist), and be aware of their palliative care options (understanding their choices in regard to modern medicine’s current palliation practices). Furthermore, the patient’s request for assistance must be repeated. A mandated cooling off period is common, just in case they change their mind. For a seriously ill person, fulfilling the above can amount to the equivalent of climbing Mount Everest.

While some might accept the qualification processes and mandates as their lot—especially if they are worn out from a long battle against their disease—others find it nothing but an affront; indeed, they may ask whose life and death this is. It is this latter group—folk of independent mind and will—with whom I now mostly work. These vanguard baby-boomers ask, what is the purpose of involving the law if suicide is legal? Concomitantly they ask, why involve a doctor if information about how they might die peacefully and reliably is known to them? If the science is accessible and the means to make it real are at their disposal, then whose business is this? I’m not committing a crime. And I’ve no need of cure, so why the white-coated med school graduate? I have to agree: why indeed. Is this not the culmination of one’s constitutional right to liberty?

Continuing to look to the physician as the arbiter, not only of who qualifies for PAD legislation, but as the provider of expertise concerning which drugs to take and in what quantities, reinforces the medicalization of death and dying. The science of a good death is not medical. The experience of dying is as much a social and cultural one as it physiological and lived on and in one’s body. To retain medicine as authority in dying is a phony ‘final choice.’ The delegation of decisionmaking to an authority figure might have suited previous generations for whom social revolt was anathema. But this has never been the baby boomers’ style. So why would we start now?

As long as the science of ‘self-deliverance’ is tested and trustworthy, and as long as suicide remains a lawful choice, concerns when new laws might be passed and to what extent the medical profession should be contracted are misplaced. It is my life, it is my death, and it is my business.

Say No to Physician Assisted Suicide

Howard Ball’s lead essay on this issue is clear and helpful. Yet I think the term “Physician Assisted Death” is evasive and euphemistic. Physicians have for centuries helped patients to die—that is, to endure the process that ends in their death. The question is whether physicians should help them kill themselves—and whether the law should allow physicians to do so. Thus I will use the term Physician Assisted Suicide (PAS). This raises a moral question (Is PAS morally right?), and a legal question (Should PAS be against the law?).

First the moral issue. Morality centrally concerns how our choices bear on the intrinsic goods of human persons—such goods as life and health, knowledge, friendship, and others. We ought to care for every person, and that means helping them to attain or preserve these intrinsic goods. Since these goods are the aspects of persons, to act directly against any of them is to act against the person herself. Human life is not something we have; rather, one’s life is identical with one’s concrete reality, that is, identical with oneself. So, a choice to kill a human being, even for a good end, such as to prevent suffering, is contrary to the love and appreciation for the person herself. This is true both of killing others and of killing oneself. Suicide and assisting suicide are objectively morally wrong because they are choices contrary to the intrinsic good of an innocent human person. (I say objectively morally wrong, to distinguish that from moral guilt: someone who makes a choice that is objectively wrong is not at fault for a morally bad choice if she thought what she was doing was right and was not at fault for this mistaken judgment—often referred to as an inculpably erroneous conscience.)

This does not mean, however, that we must always take all measures possible to preserve someone’s life, our own included. It can be morally right to forgo some means of preserving life, even foreseeing that this will result in dying more quickly than one otherwise would. Such a choice is quite distinct from intentional killing—say, choosing to kill oneself by swallowing lethal pills. A choice to forgo excessively burdensome treatment does not involve a failure of respect for the intrinsic good of life. Rather, it is a choice not to use certain means of prolonging life in order to avoid the burdens of that treatment.

This distinction between intentional killing and accepting death as a side effect is important because by our choices we not only select which external behavior will be performed, but we direct our will (the capacity for choosing and intending) toward or against human persons. If I choose to kill someone, then I direct my will against the life—the concrete reality—of a human person.

Some hold that human life is only an instrumental good—not good in itself but only a condition for realizing what is intrinsically valuable. And so they claim that near the end of life our “mere biological life” may be all that is left, and our personal life—our selves—is gone. But that is a mistake: we do not just have or inhabit bodies; rather, we are bodily beings. As I type this sentence I am directly aware that it is the same agent that moves his fingers (a bodily being) and that thinks what to say (a conscious being): it is one and the same being that is both conscious and bodily. And so one cannot justify euthanasia or PAS on the grounds that they destroy a “mere biological life.” To choose to kill the biological life of grandfather is a choice to destroy the one being that grandfather is. (This remains true even though grandfather’s soul—which is only a part of him—survives).

But, it is often objected, why should we not be able to relieve someone’s misery by helping her to die? Isn’t it the compassionate thing to do—as Howard Ball claims—to assist them to kill themselves? We should distinguish between the person who is suffering, and the suffering. When someone we love is suffering grievously we have a strong emotional response. However, what we are reacting to with emotional repugnance is, precisely, the suffering itself of someone who is dying, in severe pain, and gradually losing their vigor and faculties. But it is a different thing altogether to assert that, given that emotion, the best way to act—the best way of helping someone who is suffering a great deal—is to help her kill herself. We rightly abhor the pain and suffering, but not the person herself in that condition. It is right to try to remove the pain and suffering; it is not right intentionally to destroy the person, as a means of removing that pain and suffering.

The moral issue does not by itself settle the legal issue, to which I now turn. Proponents of PAS argue that people’s autonomy should be respected and so the law should allow PAS. It is true that a large degree of autonomy, that is, the absence of restraint on one’s choices and actions, is important as a means to leading a responsible life. But both law and medical practice recognize rightful limits to autonomy. The law requires drivers to wear seatbelts and motorcyclists to wear helmets. There are laws against prostitution, dueling, and the use of certain addictive drugs. All laws limit liberty or autonomy to some extent; the question is whether there is a sufficient public good at stake to limit the liberty at issue.

The protection of life has always been recognized as an essential component of the public good. Especially important is how the culture as a whole—which is profoundly influenced by the law—regards human life. If a culture regards human life as inviolable, that fact protects all of us; if not, then the most vulnerable among us—especially the elderly and the disabled—are in danger. A culture that condones PAS views life as merely conditionally valuable and so views the lives of many of the most vulnerable among us as mere burdens. The elderly, the dying, and the disabled in that type of culture will receive treatment far inferior to what they would receive in a culture that recognized their equal and inherent dignity.

Consider the laws that prohibit physicians from amputating healthy limbs or performing female genital mutilation. If laws prohibiting those procedures were rescinded and those acts became widespread, the message would be sent that these practices are not inherently harmful. Such laws are in place because physicians should perform surgery only to provide a real medical (or cosmetic) benefit to the patient—or at least not significantly harm the patient. In the same way, if the law against PAS were rescinded and PAS were widely practiced, that would send the message that in many cases a person’s life is simply not worth living. The message sent to the elderly and the disabled would be that they may very well lack inherent value. That itself would be a pressure—and not a very subtle one—on the elderly, and on many disabled, to opt for death rather than life. A person’s sense of self-worth is profoundly affected by the views of others in her life and so the sense of self-worth among the elderly, dying, and disabled would be profoundly harmed by the practice of PAS, leading many to despair and to request suicide out of undue deference to others.

Moreover, the logic of decriminalizing PAS for the terminally ill who are suffering grievously would lead inexorably to allowing (and encouraging) other types of killing. If the rationale for PAS is to respect autonomy, then why limit it to those are terminally ill? Why privilege the autonomy of those who are suffering and terminally ill above those who are suffering chronically? If the rationale for PAS is that a person is in misery or has allegedly lost her dignity—if, for such people, death is a benefit—then it will be impossible to deny this alleged benefit to those who lack decisionmaking capacity, those who are unconscious, or demented, or too young to have such capacity (as has occurred in the Netherlands with the open euthanasia of infants).

Thus, out of respect for life, and out of compassion and care for the elderly, dying, and disabled, PAS should remain illegal.

The Conversation

Responses to Nitschke and Lee

Philip Nitschke and Patrick Lee offer very interesting responses to my essay. Philip Nitschke believes that the medicalization of suicide by means of a Death with Dignity statute is an “affront” to a person contemplating such a decision. Because suicide has been decriminalized throughout America, there is absolutely no need for PAD laws to regulate the action or for medical practitioners to involve themselves in a person’s planning to end his life. It is my life, my choice, my business. Neither the state nor the doctor has any role to play when a person decides to commit suicide.

My defense of PAD rejects Nitschke’s free-spirited anarchy. One practical reason for PAD is the inability of most persons contemplating suicide to legally acquire the drugs necessary to end life. As I noted in my essay, many potential suicides do not want to die by a bullet or a noose or some other macabre action if there are pills available—even if it means medical intervention in accordance with a PAD statute.

Another reason to support PAD statutes is because one clear goal of the law is to ensure that a person contemplating a “least worst death” is terminally ill, is competent, and is not clinically depressed. The Oregon and Washington state laws respect the integrity of the dying patient by ensuring that only psychologically healthy individuals can acquire the prescription for the lethal dosage they may wish to take to end their lives. There are serious checks and balances in the laws; they are barriers that prevent the onset of the slippery slope toward euthanasia.

Nitschke maintains that he works with and for “folk of independent mind and will.” A review of the characteristics of those in Oregon and Washington state who have availed themselves of the benefits of PAD are precisely such persons: independent adventurers, college-educated, who have lost their “meaningful prior life” because of the terminal illness. That reason, not unremitting pain and agony, is the one given by more than 95% of the patients in Oregon and Washington who sought PAD. Most dying patients want to live through pain and loss of facilities; in 2011 nearly 3 million persons died in America but only about 11,000 took their own life. Only an infinitesimally small number of these persons were terminally ill residents of Oregon or Washington who used the Death with Dignity statute.

Professor Patrick Lee categorically rejects my position and, I’m sure, Nitschke’s as well. The sanctity of life is at the heart of his argument, and I am sure he rejects my view that PAD laws do reflect a belief in the sanctity of life. For Lee, PAD is morally wrong and legally unlawful. It is morally wrong because the choice does not help the person attain or preserve an intrinsic good all humans possess—life itself. PAD, Lee argues, is contrary to the love and appreciation a person has for herself: one’s life is identical to oneself. It is morally wrong because it is a choice contrary to one’s intrinsic good. But, for me, a competent individual who is terminally ill can morally make a decision that life itself is no longer invaluable. Because of the tragic prognosis and significant changes in his life, it is no longer appreciated. For me, a person facing such a reality has the inalienable liberty to decide for herself that the time has come for the “least worst death.”

Contrary to Lee’s argument, I believe that Death with Dignity laws reflect a commitment to the sanctity of life by making it very difficult for a terminally ill patient to receive the lethal prescription and making it impossible for non–terminally ill elderly, or poor, or disabled, or chronically ill persons to end their lives with the passive assistance (by writing a prescription) of a medical practitioner. Unlike the Netherlands, supporters of PAD legislation are keenly aware of the specter of euthanasia and have structured the process to avoid the slippery slope. After more than a decade of PAD in Oregon, the data clearly indicates that only those who meet the burdensome criteria—which Nitschke disdains—have received lethal prescriptions. And some have died without filling the prescription.

Interestingly, Lee is critical of PAD laws because they differentiate between terminally ill, competent persons and all the other classes of persons. But such a careful delineation in these laws underscores the belief that life is precious and that, while suicide is no longer a crime, only in clearly circumscribed instances can a prescription be given to assist the dying person.

Lee also argues that individual autonomy and liberty is a limited legal right. It is appropriate to limit a person’s actions because of the general public’s need to protect life. And so seatbelt laws, the wearing of helmets by motorcyclists, and laws banning dueling are legal limits on one’s liberty (assuming there is effective enforcement). If the protection of life is not inviolate in society, then Lee believes that the most vulnerable citizens—the elderly, the disabled, the chronically ill—are in danger because they will receive greatly inferior care.

But this argument ignores some essential realities. 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. Court decisions over the past sixty years have validated these statutes and regulations.

Furthermore, since the middle of the last century, U.S. Supreme Court majorities have expanded individual rights and liberties for a large number of groups: the young, the old, married couples, minorities, single persons and school children. Individual liberties have inexorably expanded during these decades and this has not endangered the society.

Reply on the Moral Issue

Thanks to Howard Ball and Philip Nitschke for this discussion. The central moral question about PAS is whether it is ever morally right to intend the death of an innocent human being. I argued that it is not, on the ground that to do so is to act contrary to the care and respect we should have for each and every person and the intrinsic aspects of their flourishing—the fundamental goods of human persons. A person’s life is not a possession but the person herself; to choose to destroy that person (even oneself), even for the purpose of alleviating that person’s suffering, is immoral. In his reply Howard Ball counters that, “a competent individual who is terminally ill can morally make a decision that life itself is no longer invaluable.” I don’t think Ball gives any support for that statement, but it deserves a reply.

Ball seems to say that while life is sometimes good in itself there are times where a rational individual can rightly conclude (though he uses the word “decide”) that her life has ceased to be in itself valuable. The idea seems to be that one’s life is valuable only if the quality of the total set of future conscious experiences does not fall below a certain threshold. If it does, then one’s life is no longer worthwhile. But I think this reduces back to the position that one’s life is not intrinsically valuable, but is good only as a condition for realizing what is intrinsically valuable, namely, conscious experience. I argued against this in my earlier essay: An individual’s life is the person herself and the person herself cannot be a mere instrumental good.

But perhaps what Ball means is that one’s life is valuable only if one values it—and so if one decides that one’s life is not worthwhile then it isn’t worthwhile. But this, I think, cannot be true. We apprehend that certain conditions are worth pursuing or preserving; we do not decide which are those fundamental, worthwhile goods. One can make a mistake about what is ultimately worthwhile, but that could not be so if it were a matter of decision rather than apprehension. A teenager jilted by his girlfriend may believe his life is not worthwhile, but we see that he is mistaken. In the same way, if an elderly patient demanded that he be killed so that his organs could be used to save others—an attempt to waive his right to life—we would rightly refuse to do so. His life remains inviolable, deserving of respect and care for his own sake, even if he decides it no longer is. Thus, when we see that our life is valuable, it actually is valuable and then we apprehend that it is so; one can’t decide that one’s life is no longer valuable.

Of course, someone might argue that it is okay to intend to destroy that which is intrinsically valuable—an innocent human life for example—in order to avoid bad consequences—in other words, a consequentialist or utilitarian position. The soundness of that ethical theory is a large topic but allow me to address it briefly. Suppose we have a homeless man as a patient in a hospital, that he has no family or friends, and that we could kill him and then by transplanting his organs save six people. Would this be morally justified? Almost everyone agrees this would not be morally right. But it is hard to see why not, if consequentialism were true. Contrary to consequentialism, it seems that some choices, such as intentionally killing a homeless person for the use of his organs, cannot be morally justified by a good end, such as saving six people. In other words, there are some goods one ought not to destroy as a means of realizing other goods or avoiding other evils. The end does not justify the means. Innocent human life is one such good, and this includes one’s own life as well as others’. In my next post I will discuss again the legal issue.

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.

The Moral and Legal Issues

The Moral Issue

My bottom line is very different from Patrick Lee’s. If a terminally ill patient, one for whom death from the illness is generally six months away, and who is competent, wishes to end his life with the assistance of a doctor, he has the liberty to do so.

I am not willing to instate communitarian values about the intrinsic value of life and block him from choosing to end his life. If, in his terminal days, he decides that his life is no longer valuable, then he can act. Who am I to tell him that his life is no longer valuable? Based on the accumulation of his life experiences, the dying person can make such a decision. Lee’s hypotheticals—a jilted teenager, or an elderly patient who wants to die so he can give organ transplants to six people, or killing a homeless person for her organs—are simply inapposite.

We are talking about a person who is dying and who refuses to live a life less than that he has experienced up until the final diagnosis. It is arrogant for Lee to tell such a person that his life remains inviolable and to stick it out to the bitter end. It is pure chutzpah to write off an individual’s choice/decision that his remaining life is not what it was and the remaining months he has to live will be increasingly painful experiences. If the dying person, possibly in great pain, and certainly not enjoying life, believes that life is no longer meaningful, then who is Lee to argue for intercession because the dying person does not agree with him?

The Legal Issue

Again and again Lee condemns the Oregon and Washington Death with Dignity Acts by either (1) saying that they will lead to involuntary euthanasia or (2) by quoting experts who tie PAD and euthanasia together in one proposed act. He says, again and again, that the vulnerable elderly and the disabled will be snared by the state and euthanized against their will. But this is the old bogeyman, the ever-dangerous “slippery slope.” No advocate for Death with Dignity supports voluntary euthanasia.

Every human endeavor, if we are not vigilant, can lead to distorted consequences. Such zealous euthanasia proponents as Derek Humphry and Dr. Jack Kevorkian were and are anathema for PAD advocates. The laws passed absolutely prohibit such action. We can prevent the slippery slope by incorporating into the law stiff barriers and by ensuring that the implementing bureaucracy does not slide down. Implementing PAD in Oregon and Washington has not led to euthanasia—voluntary or involuntary—nor will it do so if the public, the health community, and the bureaucrats administering the law act in accordance with the law’s parameters.

In another place, Lee worries that the equal protection clause will be interpreted by judges to allow non-voluntary euthanasia if PAD is decriminalized. However, Lee ignores the unanimous opinion of the U.S. Supreme Court in the 1997 New York case Vacco v Quill. In that case, lawyers for PAD advocates argued that there was no difference between PAD and a competent patient who refuses further medical treatment and dies. The Equal Protection argument was used by them to urge the justices to invalidate New York’s prohibition against PAD. The Court rejected the argument, clearly arguing that there is a fundamental difference between PAD and refusal to continue treatment. That is the law of the land and I doubt whether the decriminalization of PAD will lead to an overturn of Vacco.

Finally, I take offense at Lee’s return to his moralism in his legal arguments. He writes that PAD “does not involve the realization of a basic human good.” If I am dying and there is no meaning to my life, then PAD is my way of respecting my life and, for me, is good.

The Dangerous Alleged Benefit of Dying

I want to thank Howard Ball for his reply to my earlier posts on the moral and legal issues at hand. I believe someone reading these posts can see where the essential points of disagreement lie. Although his last post is helpful in some ways, still, in my view, it makes several fallacious moves that can distract from the real issues.

At key points in the discussion, Ball skews the moral question by conflating it with the legal question. Thus he writes, “I am not willing to instate communitarian values about the intrinsic value of life and block [a dying person] from choosing to end his life.” Likewise, in the last sentence of his post on the moral issue, Ball writes: “If the dying person, possibly in great pain, and certainly not enjoying life, believes that life is no longer meaningful, then who is Lee to argue for intercession because the dying person does not agree with him?” But the moral question is whether the choice to commit suicide or the choice to assist someone to commit suicide—especially for physicians—is ever morally right. That has nothing to do directly with a question of blocking anyone from doing anything. I advanced an argument for the position that one’s life always remains inherently valuable and should be respected. Ball misstates my conclusion—and instead attributes to me a position on an issue not discussed. (In this part Ball also confuses which legal issue was under discussion: the legal question was not whether suicide itself should be a crime. I am inclined to think that not all solitary suicide should be a crime, since the law should be concerned only with other-regarding acts. By contrast, assisting suicide does seriously impact other people, as I argued in my previous posts.)

Second, Ball lumps together the various analogies I used in the course of making distinct points and attributes to me a reductionistic argument I do not make. He says: “Lee’s hypotheticals—a jilted teenager, or an elderly patient who wants her organs—are simply inapposite.” But my argument was not that those who are dying and suffering are analogous to the jilted teenager or an elderly patient whose organs might be useful to others. Rather, the point of the jilted teenager example was to help show that there is a truth to the issue of whether a person’s life is inherently valuable. We apprehend, rather than decide, what is inherently worthwhile. Similarly, the point of discussing the elderly patient whose organs could be useful was not to make a vague argument by analogy, but to indicate that we often acknowledge that one ought not to choose to destroy what is inherently valuable even for the sake of a good end.

Those two points together (that one’s life always remains inherently worthwhile, and that one ought not to choose to destroy what is inherently worthwhile) lead to the conclusion that it is morally wrong to choose to kill oneself, or to assist someone else to kill herself. Choosing to destroy a good is incompatible with love and respect for that good. Ball has not replied to that argument. He merely repeats his counter-position, that whether one’s life is worthwhile is a matter of decision. For it is not a serious reply simply to label an argument as “pure chutzpah” or “arrogant,” as he has done. (As an aside, if it really is a matter of decision, then why does Ball insist, in the legal context, that only those who are dying should have access to physician assisted death, i.e., assistance for their suicides?)

Ball’s framing of the issue is misleading in another way. He says: “We are talking about a person who is dying and who refuses to live a life less than that he has experienced up until the final diagnosis. It is arrogant for Lee to tell such a person that his life remains inviolable and to stick it out to the bitter end.” Ball writes as if the response to the dying by those who oppose PAS will only be, first, to use coercion to prevent them from dying, and, second, to tell them simply to stick it out. But opponents of PAS argue that one’s approach to those who are dying and suffering should be quite different from what is logically implied by the practice of PAS. Instead of coming to the dying and saying, in effect, “Here, we have something that will end your life quickly because we agree that your life (probably) is no longer valuable,” we should instead say: “You are worthwhile, and we will help relieve your pain”—something that the experts in palliative care testify is always possible.

And so when Ball asks, “If the dying person, possibly in great pain, and certainly not enjoying life, believes that life is no longer meaningful, then who is Lee to argue for intercession because the dying person does not agree with him?” he misconstrues entirely the point of asking the moral question. He writes as if the central question were whether we should use force or not on the dying. Rather, the moral issue is first of all for those persons who are faced with the real question of whether one should kill oneself or not. Since all of us will die, I ask that question for myself: would it be morally right for me to do that? Second, other people may ask for my advice, perhaps my mother or father, or persons that I am called to help in concrete ways. They might ask, “Should I commit suicide? What is the right thing for me to do?” When people ask these questions they are presuming that there might be true answers to them, and they want help to discover what the truth of the matter is. And I wish to find out what the truth of the matter is, both for my sake and for the sake of others, especially those who are close to me. Ball has ignored the real moral situation and instead assumed that the person contemplating suicide has only a decision to make, about which there is no truth or falsity.

On the legal issue, Ball blithely assures us that “We can prevent the slippery slope by incorporating into the law stiff barriers and by ensuring that the implementing bureaucracy does not slide down.” But this ignores the point that there will be pressure to change the laws (some of the reasons for which I indicated in earlier posts), that there will be pressure in personal contexts to evade the law, and that the law—and the attitude toward the dying embodied in the law—would lead to abuses, such as assisting the suicides of persons with undiagnosed depression. None of these points is addressed by Ball.

Ball thinks that the Supreme Court holding in Vacco v. Quill somehow implies that legalizing PAS will not lead to non-voluntary euthanasia. However, what Vacco held is that refusing treatment is crucially different from PAS: the latter but not the former entails the intention to kill and the judgment that a person’s life is not worth living—both of which the Court rightly held to be things it is properly in the state’s interest to discourage. This does nothing to imply that the dying who have decisionmaking capacity are differently situated from the dying who lack decisionmaking capacity—and it would have to, to preclude non-voluntary euthanasia. In fact previous cases—such as Cruzan v. Missouri Dept. of Health—indicate just the opposite: in Cruzan the Court held that those who lack decisionmaking capacity and those who have it are similarly situated with respect to refusing medical treatment. There is every reason to believe that the same pattern would recur regarding their relation to death, if death (like refusing treatment) were held to be a benefit. Those with decisionmaking capacity and those without it would be seen as similarly situated.

And so if access to a “dignified death” were judged to be a benefit, and a benefit the state allowed to the dying who have decisionmaking capacity, the state could not at the same time withhold that alleged benefit from the dying who lack decisionmaking capacity, not without violating the requirement of equal protection of the law. In short, a culture that adopts the position that death can sometimes itself be a benefit, that some persons have lives not worth living, will indeed produce grave injustices.

Apprehending One’s Situation

I appreciate Patrick Lee’s participation in this conversation about life and death.

We are, however, unalterably at odds on the morality of death with dignity. I appreciate Lee’s ethical foundation. One’s life, he maintains, is always inherently valuable and worthwhile and should be respected. Therefore, one ought not to choose to destroy what is inherently valuable. One should not commit suicide, certainly not with the assistance of a doctor. Because life is worthwhile, medical science will do all it can to relieve your pain–even if this means indirectly causing your death (the “double effect”).

My moral bottom line is rooted in individual autonomy, the liberty of a competent adult to carefully apprehend his existence and to choose an action that he believes is in his best interest. I end with some lines from my first essay and a question:

“When I can’t tie my bow-tie, tell a funny story, walk my dog, kiss someone special,” said a man dying of ALS, “I’ll know that life is over. It’s time to be gone.” For this terminally ill person, PAD is how he will go.

Evidently, this dying person chose to die because, for him, his life was no longer inherently valuable. He has examined his existence and has concluded that very soon the life he has known will be “over” before ALS kills him.

Is it morally wrong for that dying ALS patient, with the assistance of a doctor, to end his life before the illness takes it away? I do not believe that it is morally wrong. If a terminally ill patient, after apprehending his situation, believes he longer has a valuable, worthwhile life, he can choose the “least worst” death.