Suicide beLegalized?Throughout the twentieth century, major scientific andmedical advances have greatly enhanced the life expectancy of theaverage person. However, there are many instances where doctorscan preserve life artificially. In these cases where the patientsuffers from a terminal disease or remains in a “persistentvegetative state” or PVS from which they cannot voice theirwishes for continuation or termination of life, the questionbecomes whether or not the patient has the freedom to choosewhether or not to prolong their life even though it may consistof pain and suffering. In answer to this question, proponents ofphysician-assisted suicide, most notably, Dr. Jack Kevorkian, areof the opinion that not only should patients be able to abstainfrom treatment, but if they have a terminal and/or extremelypainful condition, they should be able to seek out the assistanceof a doctor in order to expedite their death with as little painas possible.
Contained herein are the arguments for and against thelegalization of doctor-assisted suicide, as well as where thestate courts stand in respect to this most delicate of issues.
In the hopes of clarification, we must first distinguishbetween active and passive euthanasia. Passive euthanasiainvolves the patient’s refusal of medical assistance. Itinvolves the right to die which is protected by the United StatesConstitution clauses of due process liberty and the right toprivacy (Fourteenth Amendment). The right to doctor-assistedsuicide, or active euthanasia, consists of, “…a patient’sright to authorize a physician to perform an act thatintentionally results in the patient’s death, without thephysician’s being held civilly or criminally liable for havingcaused the death” .
The “passive” form of euthanasia was first deemed legal bythe New Jersey State Supreme Court in 1976 In re Quinlan . Inthe Quinlan case, the court allowed a competent patient toterminate the use of life-sustaining medical machines to prolonglife. Since New Jersey’s decision, all fifty states have enactedsimilar statutes which contain living will provisions. However,although the United States Supreme Court upheld the Quinlandecision in re Cruzan , it changed the parameters of passiveeuthanasia . With the Cruzan decision, the Supreme Court heldthat passive euthanasia was legal but only for competent adultsor those who are incompetent but have previously procured aliving will. However, if the patient is without a living willand incompetent, it becomes the burden of the family to provethat there is “clear and convincing evidence” to the affect thatthe patient does not want to continue living in a vegetativestate.
As to active euthanasia, there has been no Supreme Courtruling determining whether the right to die, as understood inpassive 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 ofassisted suicide . Physician-assisted suicide is generallyrecognized as illegal under the parameters of homicide, howeverit is very difficult to meet all of the elements of the crime andconviction subsequently becomes nearly impossible. The fact thatthe U.S. Supreme Court has not reviewed a physician-assistedsuicide case, which would create precedent, constitutes a dilemmafor the state courts in that there is no uniform test or rulingby which to decide.
Most states have developed their own laws to, more oftenthan not, make doctor-assisted suicide illegal. However, when acase comes to trial it is usually dismissed either by the judgein a pretrial motion or by the jury. For example, in at leastthree of the assisted suicides which Dr. Kevorkian was involvedin, all criminal charges were dismissed. So, the laws have beencreated, but when it comes to convicting a doctor and sending himto prison, in lieu of the circumstances, the law often breaksdown and the charges are dismissed or the doctor is acquitted.
In the case of the nineteen states which have not delineatedthe criminality of doctor-assisted suicide, the issue becomesless clear. Many of these states have a hard time groupingphysician-assisted suicide with homicide. The case whichMichigan judges cite in refusing this linkage of criminality isthe People of the State of Michigan v. Campbell . In theCampbell case, the “court found that ‘the term suicide excludesby definition a homicide'” . Since, suicide is not a homicide,then an assisted suicide cannot be deemed a homicide. At thetime of the appellate courts hearing of the Campbell appeal,there was no other codified law expressing what crime an assistedsuicide would fall under and the homicide charges were dismissed.
Anti-active euthanasia proponents feel that it is the dutyof physicians to help and heal patients as opposed to hasteningtheir exit from this world. They also fear that the legalizationof doctor-assisted suicide may be abused by doctors who do notfeel that there is any hope for the patient and counsel them toterminate their life. The state also has an interest in the lifeof the individual. The individual state was originally set up toprotect the rights of individuals and to see that “the value ofan individual’s life…and the value of life to society as awhole” is protected. The value of an individual’s life includestheir personal well-being and safety from harm, even if it isself- inflicted. So, it has now become the duty of theindividual states to balance the interests of the state againstthe interests of the individual patient in order to come up witha law which is accommodating to both.
Persons who are for active euthanasia believe thatlegislation against it is “violative of the fundamental conceptsof liberty, freedom of choice, and self-determination” They basethese beliefs on the text of the fourteenth amendment to theUnited States Constitution. The voluntary choice between lifeand death is, to them, a basic human right which the governmenthas no right to legislate. They often compare this choice ofeuthanasia to the right to abortion.Judge Lynn Comptonembodies these views in her opinion in the case of Bouvia v.
Superior Court , “If there is a time when we ought to be able toget 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 againstthe legalization of physician-assisted suicide. This is cleardue to the thirty-one states which have already incorporated theact into their penal codes as being illegal. As to the otherstates, there is much controversy as to it’s legalization.
Although in popular polls, the general public seems to be infavor of active euthanasia’s legalization, the courts in all ofthe states find that the possibility for infraction of thestatute supersedes the wishes of the patient. The courts aim toprotect doctors from civil suits, patients from doctor’s advisoryabuse, and the country’s general policy of the sanctity of life.
In the courts view, passive and active euthanasia are twoentirely different things. One involves the withholding orcessation of care which may or may not end up in death and theother involves a doctor’s administration of a lethal substancewith the specific intent of impending death. In other words, oneentails allowing death to occur without doctor intervention andthe other is killing, albeit “mercy” killing.
Based on my research, it seems clear that the effort tolegalize active euthanasia is one that is not going to go away inthe near future. This is especially due to the spread of theAIDS virus and other incurable diseases. However, although Ifeel that it should be legalized with certain provisions, Icannot foresee it’s uniform, federal regulation in the nearfuture, especially with a conservative Supreme Court as issitting today.
Presently, there are twenty-one states which allow citizenlegislation through the use of the general election ballot. Inthese states, special interest groups which support activeeuthanasia have placed initiatives on the ballot. An example ofone of these groups is the California based Americans for Deathwith Dignity or ADD . The DDA designed a statute, proposition161, that would legalize doctor-assisted suicide. The statutewas also created “with extraordinary care to provide allreasonable precaution to protect against the risks” oflegalizing the practice of active euthanasia. One of the clausesof the statute which aims at the prevention of abuse is that thestatute would only allow licensed physicians to partake inhelping someone end their life. Although proposition 161 was notpassed, it is a reflection of the general population’s sentimentthat active euthanasia should not be illegal. At the time of thepublication of this article, California, Washington, Oregon, andMichigan were preparing or has already proposed general electioninitiatives which would permit aid-in-dying by physicians.
The act of taking a life is a serious one. The Americanpeople are notoriously weary of it’s implementation, as can beseen in the case of capital punishment. Although, activeeuthanasia is consensual, the paradox which lingers in the term”physician-assisted suicide” is difficult for lawmakers andcitizens alike to consent to.
