[6.7.] The Right to Privacy: The Right to Die.

 

 

[6.7.1.] Factual Background.

 

The term “euthanasia” refers to the practice of allowing someone to die, or helping to bring about their death, in order to end their suffering.

 

The word comes from the Greek “eu” (meaning “good”) and “thanos” (meaning “death”).

 

You should keep the following concepts distinct:

 

·         passive euthanasia occurs when someone is allowed to die “naturally” by the removal of life-support (e.g., the removal of a respirator, or of a feeding-tube) [This is how Terri Schiavo died.]

·         active euthanasia occurs when someone intervenes in order to cause the death of the patient (e.g., a doctor injects the patient with drugs that bring about his or her death).

·         physician-assisted dying occurs when the patient himself or herself has been diagnosed with a fatal disease and is already dying and brings about his or her own death with the help of a physician (e.g., the physician prescribes a lethal dose of drugs, which the patient then takes).

·         physician-assisted suicide is the same as physician-assisted dying, except that the patient is not terminally ill (although he or she may have some devastating disease, e.g., Alzheimer’s disease, or Amyotrophic Lateral Sclerosis (ALS)).

 

Currently, physician-assisted dying is legal in only one state: 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. This is what makes it suicide rather than euthanasia in the strict sense of that term.

·         Since the Act was passed, dozens of people (mostly cancer patients) have requested and received the assistance of a physician in bringing about their deaths. In 2005, 38 people received a doctor’s help in ending their lives. Since 1998, a total of 246 people have received such help.[1]

 

Gonzalez v. Oregon (2006)

·         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 suicide 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. The 6-3 majority ruled in favor of the state of Oregon, finding that the federal government does not have the right to decide whether a given use of a drug is a “legitimate medical use.”[2]

 

 

[6.7.2.] Should Active Euthanasia Be Legalized?

 

Reading 6-15 (pp.340-43): Cheryl Smith (Legal Services Director, Oregon Rehabilitation Association) argues in favor of legalizing active euthanasia, while Yale Kamisar (Professor of Law, University of  San Diego)[3] argues the opposite position.

 

 

[6.7.2.1.] Pro: Smith.

 

Smith makes the following points in her argument that active euthanasia should be legal:

 

·         US citizens already have common-law and Constitutional rights to refuse medical treatment, even life-sustaining treatment. This right should be extended to cover aid-in-dying..

·         Autonomy should be respected, and thus each person’s own unique value judgments must be respected.

·         The Hippocratic Oath[4] contains an internal inconsistency: it requires that a physician relieve suffering, but also requires that she not give deadly medicine. In some cases of terminal illness, it is not possible to fulfill both requirements.

·         Active euthanasia happens now, even though it is illegal. Legalizing it will “enable authorities to regulate the practice and guard against abuses, while punishing the real offenders.” (341)

·         Legalizing active euthanasia may increase patients’ trust of their physicians by allowing them to discuss something as sensitive as physician-assisted dying. By enabling this sort of dialogue, legal active euthanasia will increase the likelihood that doctors will detect treatable depression and thus reduce emotional suicides.

 

 

[6.7.2.2.] Con: Kamisar.

 

Yale Kamisar makes the following points in his argument against active euthanasia.

 

·         The rule against active euthanasia is not an isolated principle that can be changed without affecting any other moral principles. Various rules against killing form a web or a fabric, and the more such rules we remove, the weaker that web or fabric becomes. (Here Kasimar is using a metaphor from bioethicist Thomas Beauchamp.)

·         Legalizing active euthanasia would make this form of killing not just thinkable, but speakable. Physicians, relatives and friends could talk about and suggest it as an option for a dying patient.

·         Patients may feel obligated or pressured to use active euthanasia in order to relieve financial or emotional pressures on those they love.

·         Given the example of others using active euthanasia, patients might feel cowardly if they don’t opt for it.

·         Legalizing active euthanasia might transform living into something for which people need an excuse or justification. For the first time, the elderly will be faced with the challenge: what excuse do you have for continuing to live?

·         If it is legalized, it will inevitably be extended beyond the terminally ill and competent.

 

 

[6.7.3.] The Philosophers’ Brief.

 

Reading 6-17 is an amicus curiae (a “friend-of-the-court” brief, one which is filed by someone who is not a party to the case at hand) filed in the case of Washington v. Glucksberg by a group of philosophers, some of whom we studied earlier this semester:

·         Ronald Dworkin (b.1931), professor of philosophy and law, NYU

·         Thomas Nagel (b.1937), professor of philosophy and law, NYU

·         Robert Nozick (1938-2002)

·         John Rawls (1921-2002)

·         Thomas Scanlon (b.1940), professor of philosophy, Harvard

·         Judith Jarvis Thomson (b.1929), professor of philosophy, MIT

 

 

Washington v. Glucksberg (1997)

·         Dr. Harold Glucksberg and a group of other doctors and patients challenged the state of Washington’s “Natural Death Act of 1979,” which outlawed physician assisted suicide (including physician assisted dying). Glucksberg et al. claimed that the right to choose death over life was constitutionally protected. The Supreme Court ruled that state laws prohibiting physician-assisted suicide and dying are constitutional and in particular that they do not violate the due process clause of the 14^th amendment. [see reading 6-16, pp.343-44]

 

The brief addresses an argument made by Supreme Court justices during oral argument. It was a slippery slope argument:

 

slippery slope arguments

There are two sorts of slippery slope argument:

A)    conceptual/theoretical: there is no general principle on which we can allow x without also allowing y; i.e., there is no way to justify x without also justifying y; so if we permit x, there will be no good reason not to permit y

B)     empirical/practical: if we allow x, then as a matter of actual fact, y will happen as well.

 

The so-called “slippery slope fallacy” is committed when a person uses a slippery slope argument in the absence of a good reason for thinking that permitting x would eventually result in y.

 

The brief addresses both a theoretical and a practical argument made by the Court in this case.

 

 

[6.7.3.1] The First Strategy: the Theoretical Slippery Slope.

 

The theoretical version of the slippery slope argument is as follows:

 

1.       Assume that patients who are competent, already dying, in great physical pain, and who can administer the lethal drug themselves do in fact have a constitutional right to physician-assisted suicide (PAS).

2.       There is no general principle by which this right can be extended to that group of patients without also being extended to other groups. For example:

·         “dying patients who are so feeble or paralyzed that they cannot take pills themselves and who beg a doctor to inject a lethal drug into them” (active euthanasia)

·         “patients who are not dying but face years of intolerable physical or emotional pain, or crippling paralysis or dependence”

3.       And once the right is extended that far, there will be no general principle on which it could be withheld from still others. For example:

·         “a sixteen-year-old suffering from a severe case of unrequited love”

4.       Therefore, even patients described in premise 1 do not have a Constitutional right to PAS.

 

 

The Brief’s first response consists of two steps:

 

A.     It articulates the following general principle: “Every competent person has the right to make momentous personal decisions which invoke fundamental religious or philosophical convictions about life’s value for himself.”

B.     It “recognizes that people may make such momentous decisions impulsively or out of emotional depression, when their act does not reflect their enduring convictions; and it therefore allows that in some circumstances a state has the constitutional power to override that right in order to protect citizens from mistaken but irrevocable acts of self-destruction. States may be allowed to prevent PAS by people who—it is plausible to think—would later be grateful if they were prevented from dying.” (345, emphases added)

 

According to the authors of the Brief, this response provides the general principles by which a state could prevent a love-sick 16-year-old from killing himself.

 

 

The Brief’s second response is as follows:

 

The Brief indicates that during oral arguments, several justices suggested that the “common-sense” distinction between acts and omissions would justify a constitutional distinction between active euthanasia (e.g. providing a lethal dose of medicine) and passive euthanasia (e.g. withholding food, water, or other conditions necessary for life).

 

The Brief then argues that the “common-sense” distinction relevant to this issue is not that between acts and omissions, as the Court assumed. Rather, the relevant common-sense distinction is that between acts or omissions designed to cause death and acts or omissions not designed to cause death:

 

One justice suggested that a patient who insists that life support be disconnected is not committing suicide. That is wrong: he is committing suicide if he aims at death, as most such patients do, just as someone whose wrist is cut in an accident is committing suicide if he refuses to try to stop the bleeding. (348)

 

 

[6.7.3.2] The Second Strategy: the Practical Slippery Slope.

 

The practical version of the slippery slope argument is as follows:

 

1.       Assume that some patients do have a general constitutional right to PAS.

2.       “If assisted suicide were permitted in principle, every state would presumably adopt regulations to insure that a patient’s decision for suicide is informed, competent and free.”

3.       Nevertheless, “such regulations could not be adequately enforced, and ... particularly vulnerable patients—poor patients dying in overcrowded hospitals that [have] scarce resources, for example—might be pressured or hustled into a decision for death they would not otherwise make.”

4.       So, the risks of allowing the general right to PAS are simply too great.

5.       So, even if there is a general right to PAS, no one should be allowed to exercise that right.

 

 

The Brief’s responses:

 

A.     The evidence suggests that if legal safeguards are framed appropriately, vulnerable patients would be better protected in a system in which PAS is legal than in one in which it is illegal.

 

i)        We currently have a two-tier system, in which relatively well-off people establish relationships with their doctors resulting in their confidence that those doctors will engage in PAS (and even AE) outside the law if they are asked to, and in which relatively poor people are unable to form such relationships and are thus denied the option of (illegal) PAS. [They cite statistics to back up this claim; see p.346]

ii)       Were PAS legalized, vulnerable patients would experience better care while they are still alive. Currently, there is widespread failure to make adequate pain management available to dying patients; around 25% of terminally ill patients die in pain. There are measures which could be taken to improve this situation, “but it seems perverse to argue that the patients who would be helped were better pain management available must die horribly because it is not” (346).

iii)     Were PAS legalized, patients would be more likely to receive the best possible palliative care (treatment intended to ease one’s symptoms rather than to cure one’s condition). This is because legislation governing PAS would require that the best possible palliative care be given to a patient before her request for PAS be accepted.

 

B.     It would set a dangerous precedent for the Court to acknowledge that there is a constitutional right but then completely to disallow the exercise of that right:

 

It is obviously dangerous for the Court to allow a state to deny a constitutional right on the ground that the state lacks the will or resource to enforce safeguards if it is exercised, particulary when the case for the practical version of the “slippery slope” objection seems so weak and has been little examined. As Justice Rehnquist, who perhaps favors the first strategy, observed in the oral argument, “[I]f we assume a liberty interest but nevertheless say that, even assuming a liberty interest, a state can prohibit it entirely, that would be rather a conundrum.” (348)

 

 

 

Stopping point for Friday April 20. Next time is a review session. Your final (comprehensive) exam is Wednesday May 2 (2-4pm).