[6.3.3.] Legalized Physician-Assisted Dying.

 

Currently, physician-assisted dying is legal in three states: Oregon, Washington and Montana.

 

Oregon

·         The Death with Dignity Act was passed in Oregon in 1994. Because of court challenges, it was not implemented until 1997.

·         The law requires that two physicians diagnose a patient as terminally ill and judge that the patient is of sound mind. Since the patient must be terminally ill to be eligible for this, it is only physician-assisted dying (and not physician-assisted suicide) that is legal in Oregon.

·         The patient must wait 15 days after requesting the drugs before receiving them.

·         The patient must administer the drugs himself or herself.

·         Since the Act was passed, many people, most if them cancer patients, have requested and received the assistance of a physician in bringing about their deaths. Since 1998, a total of 401 people have received such help.[1]

·         The U. S. Dept. of Justice sued the state of Oregon, claiming that Oregon’s law violates federal laws governing the use of controlled substances. In particular, the federal government claimed that the practice of physician-assisted dying violates federal drug control laws, because giving narcotics to terminally ill patients with the intention that they will use the drugs to kill themselves is not a legitimate medical use of those drugs.

·         The Supreme Court heard arguments in this case in 2005 and issued a ruling on January 17, 2006. They ruled in favor of the state of Oregon, finding that the federal government did not have the right to decide whether a physician prescribing a fatal dose of narcotics to a terminally ill patient constituted a legitimate medical use of those drugs. The court ruled 6-3 against the Justice Department, with Scalia, Thomas and Roberts dissenting.[2]

 

Washington

In November 2008, voters in Washington approved a ballot measure similar to the one passed in Oregon a decade earlier. It will permit PAS for patients who are terminally-ill, having six months or less to live, and are of sound mind. Washington’s own “Death with Dignity Act” went into effect on March 5.[3] As of September 24, 19 people have killed themselves with the drugs they have received through this program. [4]

 

Montana

In December 2008, a judge in Montana ruled that it violates the state’s constitution to prohibit citizens from receiving assistance from physicians in ending their own lives. So, as of now, PAS is legal in Montana.

·         The only law governing the practice in this state is this single court ruling, so Montana currently lacks the guidelines that exist in Oregon and Washington). “The ruling specified only three requirements: The patient receiving the treatment must be mentally competent; the patient must be terminally ill; and the physician’s involvement in the treatment must be limited to prescribing medication that brings about death.”[5] So, unlike in Oregon, there is no mandatory waiting period between requesting and receiving the drugs, and one need not be judged as having no more than six months to live to be eligible.

·         However, some patients seeking PAS in Montana have complained that they have been unable to find doctors willing to prescribe lethal drugs. [6]

·         The state of Montana has appealed the ruling to the Montana Supreme Court. It is possible that the Court will overturn this ruling, thus making PAS illegal in Montana.[7]

 

 

[6.3.4.] In Support of Euthanasia: James Rachels.

 

Rachels says that the strongest pro-euthanasia argument is the Argument from Mercy. He considers two versions of this argument:

1. the Utilitarian version
2. the Utility & Rights version

 

 

[6.3.4.1.] The Utilitarian Version.

 

1.      Any action or social policy is morally right if it serves to increase the amount of happiness in the world or to decrease the amount of misery. Conversely, an action or social policy is morally wrong if it serves to decrease happiness or to increase misery. [This is a simple statement of classical utilitarianism.]

2.      The policy of killing, at their own request, hopelessly ill patients who are suffering pain would decrease the amount of misery in the world.

3.      Therefore, such a policy would be morally right. (RTD 308)

As Rachels points out, many contemporary philosophers think that there is a problem with classical utilitarianism: it implies that happiness and the avoidance of misery are the only, or at least the most important, moral values. But there are other things that are also morally important:

·         freedom;

·         justice; and

·         respect for individual rights.

 

To illustrate this point, Rachels focuses on freedom of religion:

 

… people might be happier if there were no freedom of religion, for if everyone adhered to the same religious belief, there would be greater harmony among people. There would be no unhappiness caused within families by Jewish girls marrying Catholic boys, and so forth. Moreover, if people were brainwashed well enough, no one would mind not having freedom of choice. Thus happiness would be increased. But, the argument continues, even if happiness could be increased this way, it would not be right to deny people freedom of religion, because people have a right to make their own choices. Therefore, the first premise of the utilitarian argument is unacceptable. (RTD 309)

 

He then considers an even more extreme example, one that is more relevant to euthanasia: the right to life:

 

Suppose a person is leading a miserable life—full of more unhappiness than happiness—but does not want to die. This person thinks that a miserable life is better than none at all. Now I assume that we would all agree that the person should not be killed; that would be plain, unjustifiable murder. Yet it would decrease the amount of misery in the world if we killed this person—it would lead to an increase in the balance of happiness over unhappiness—and so it is hard to see how, on strictly utilitarian grounds, it could be wrong. (RTD 309)

 

So, we value things other than happiness, including personal freedom and autonomy:

 

autonomy (df.): a person’s capacity to make decisions for himself; the ability to guide one’s own life. [from Greek auto, self, and nomos, law]

 

So happiness, it seems, cannot be the only standard of morality.

 

 

[6.3.4.2.] The Utility & Rights Version.

 

But obviously, happiness is morally important. We don’t have to abandon utilitarianism entirely. As Rachels says, “when an action or a social policy would decrease misery, that is a very strong reason in its favor.” (RTD 309)

 

With this in mind, Rachels proposes a second, stronger version of the Argument from Mercy.

 

1.      If an action promotes the best interests of everyone concerned and violates no one’s rights, then that action is morally acceptable.

2.      In at least some cases, active euthanasia promotes the best interests of everyone concerned and violates no one’s rights.

3.      Therefore, in at least some cases, active euthanasia is morally acceptable. (RTD 310)

 

This version differs in two important ways from the first version:

·         it refers, not just to happiness and misery, but to peoples’ best interests [in essence, he is shifting from classical to modern utilitarianism]

·         it incorporates a concern for individual rights

 

Discussion: is this argument valid? [yes] Is it sound?

 

Rachels’ defense of active euthanasia does not end here. He goes on to argue that passive and active euthanasia are morally equivalent. We will consider that argument next time…

 

 

Stopping point for Friday October 2. For next time, begin reading the article by Richard Doerflinger (RTD ch.35 pp.311-15); study today’s notes; be prepared for a pop quiz on both.