David Schulman: Physician Assisted Suicide in America

Human beings in America and Western Civilization believe they have an inalienable right to do what they want with their own lives, so long as it does not cause harm to others. Intrinsic to this belief is John Stuart Mill’s Harm Principle, which states, “people should be free to act however they wish unless their actions cause harm to somebody else” (“Ethics Explainer: The Harm Principle”). This is precisely why such ideas of freedom are tempered by laws that are meant to protect every citizens’ safety as well as to maintain what is best in terms of the nation’s interest. In the United States, this tug of war between free will and illegal actions is especially evident when looking at the topic of physician-assisted suicide, or “dying with dignity.” The law clearly forbids murder even when accidental (manslaughter), and there used to be laws in each state prohibiting suicide, as it was considered a felony (“Is Suicide Illegal? Suicide Laws By Country”). While there may not be legal statutes preventing someone from killing him or herself, there are laws stating that any person who assists another to commit suicide is committing a criminal act. For doctors who are simply trying to do what is best for their patients, this presents a real ethical and legal predicament. As per modern medical ethics ethos, they are supposed to respect their patient’s autonomy. However, they are also required by Hippocratic Oath to never harm and only attempt to heal. While medical professionals wrestle with this complex issue, some states have enacted laws which provide a government approved method and process for doctors to help patients in ending their lives. The general framework for such a process is being diagnosed with a terminal disease that will end one’s life within six months and then being deemed mentally competent enough to understand the ramifications of taking a lethal dose of medicine. Recently, new legislation has been proposed in Wisconsin and so this ethical conundrum is once again brought up for debate as moral, religious, and legal arguments are made for and against this procedure (Lewis).

Relevant Supreme Court Precedent in Context

The illegality of physician-assisted suicide is historically predicated on the argument that the act stands in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment and Fifth Amendment, respectively. However, precedent from two landmark cases, Washington v. Glucksberg (1997) and Vacco v. Quill (1997) has determined that banning physician-assisted suicide is not a violation of constitutional rights.

Washington v. Glucksberg (1997)

At the core of Washington v. Glucksberg, the Due Process Clause is created by combining two separate but related Amendments, the Fifth and Fourteenth. The Fifth Amendment states that “No person… [shall] be deprived of life, liberty or property without due process of law” (U.S. Const. amend. V). This Amendment is part of the Bill of Rights and refers to a restriction of federal power as the country feared abuse by the central government given its previous relationship with Britain. As such, the Fifth Amendment provides the protection of legal rights of individuals from violation by the federal government. The Fourteenth Amendment states that “…any state [shall not] deprive any person of life, liberty, or property, without due process of law…” (U.S. Const. amend. XIV, § 1). With this Amendment, some of the exact same phraseology is repeated in order to further emphasize citizen rights in relation to the law, however, the minute addition of “state” here specifies people’s rights with regard to limiting state power. The case itself revolves chiefly around Dr. Harold Glucksberg, along with four other doctors, three terminally ill patients, and a nonprofit organization, all challenging the state of Washington's ban on physician-assisted suicide by arguing that the ban violated due process of the law (Washington v. Glucksberg). Specifically, they challenged the constitutionality of the ban as they believed that, due to the state having "historically criminalized the promotion of suicide attempts by those who ‘knowingly cause or aid another person to attempt suicide,’” Washington was denying competent, terminally ill citizens the right to choose their own death, or to die on their own terms (“Washington v. Glucksberg,” Oyez).

Vacco v. Quill (1997)

Vacco v. Quill, compared to Washington, was not argued as a violation of the Due Process clause, but rather the case is based upon a supposed violation of the Equal Protection Clause. This clause is legally connected to the Due Process Clause as it is also housed within the Fourteenth Amendment. Specifically, it says that states cannot “…deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV, § 1). Intrinsically, this is similar to being deprived of the due process of the law, however, the Equal Protection Clause is targeted more towards empowering citizens to be able to claim that a state has discriminated against the person in its laws or actions rather than a federal power. This is exactly what Dr. Timothy E. Quill, along with other physicians and three seriously ill patients, argued when challenging the constitutionality of the New York State's ban on physician-assisted suicide (Vacco v. Quill). In comparison with Washington’s criminalization of assisted suicide attempts, New York's banning of the practice actually allowed for patients to refuse lifesaving treatment on their own (“Vacco v. Quill,” Oyez). The distinction is extremely important as, in essence, a patient could then effectively commit suicide, albeit not immediately. If a patient were to refuse necessary treatment or sustenance such as food and water, the person would essentially be killing themselves. While this would be far slower than actual suicide, it served as a loophole to the ban. Furthermore, “New York’s ban historically made it a crime for doctors to help patients commit or attempt suicide” despite the fact that these patients were terminally ill and/or in great pain (“Vacco v. Quill,” Oyez). Thus, Quill argued that the Equal Protection Clause was violated “…by allowing competent terminally ill adults to withdraw their own lifesaving treatment, but [by] denying the same right to patients who could not withdraw their own treatment and could only hope that a physician would do so for them” (“Vacco v. Quill,” Oyez).

Analysis of the Impact of the Two Cases and their Reasoning

These two landmark Supreme Court cases are often consolidated given their similar rulings on the same subject matter. As such, they serve as the most recent and current precedent for physician-assisted suicide. For Washington v. Glucksberg, this meant the Supreme Court unanimously voted against Glucksberg, ruling that the state of Washington had not violated the Due Process Clause (“Washington v. Glucksberg,” Oyez). Its reasoning was based upon two aspects of what the Clause guarantees: the protections afforded by our nation’s fundamental liberties, and what actually constitutes something as pertinent enough to be a due process liberty interest. By analyzing these two components, the Court held that Washington’s ban was related to the state's legitimate desire to preserve all human life and to protect medical ethics as well as disabled and terminally ill patients from any prejudice or influence, which might persuade them to end their lives early. In terms of this state interest brought up by the case, the Washington Post wrote, 

In almost every State – indeed, in almost every western democracy – it is a crime to assist a suicide. The States' assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life… More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide… (“'The State Has an Interest in Preventing Suicide . . . and Treating Its Causes'”)

As detailed in the article, the value of human life has long been held sacred and that any assisted suicide ban is not an “innovation.” Additionally, the Court also held that the right to assisted suicide is not an essential liberty that is constitutionally protected since this action is rather controversial and is offensive to many national traditions and religious/ethical underpinnings of American society (“Washington v. Glucksberg,” Oyez).

As for Vacco v. Quill, the Supreme Court likewise took the side of the state in affirming New York’s ban on physician-assisted death. The Court utilized the Rational Basis Test when deciding whether the Due Process Clause was violated in the aforementioned case and they utilized the same method in unanimously ruling in this case that the Equal Protection clause was not violated. The Rational Basis Test is a judicial review method of determining whether the “statute or ordinance [has] a legitimate state interest [as well as] there must be a rational connection between the statute's/ordinance's means and goals” (“Rational Basis Test). Just as Washington’s ban was a legitimate state interest, so too was New York’s. The Court distinguished, though, that there is a difference between refusing a lifesaving treatment and someone assisting with suicide as they stated the “…later involves the criminal elements of causation and intent. No matter how noble a physician’s motives may be, he may not deliberately cause, hasten, or aid a patient’s death” (“Washington v. Glucksberg,” Oyez).

The Current Situation in America

When taking these two landmark cases together, the Court was firm on ruling that federally there is no legal right to physician-assisted death given the ethical issues that the practice entails. However, the Court did not say that it was constitutionally wrong either and that is exactly why the process is legally allowed today. As it currently stands, deciding whether or not to ban physician-assisted suicide has been left to the states and their voters to determine. As such, there are only a minority of states, who have bills allowing for physician-assisted death to occur. Currently, Colorado, Hawaii, New Jersey, Vermont, Washington, Maine, Oregon, and the District of Columbia are the only states and federal district where “Death with Dignity” is legally allowed (“Physician-Assisted Suicide Fast Facts”). The most recent state on this list is Maine as their bill went into effect September 2019 and Wisconsin is now proposing a similar act to be passed. In Montana and California, only by a court ruling or judicial power can a terminally ill patient and doctor be given permission to perform the act. In total, this means that only ten of the fifty states currently allow for physician-assisted suicide.

The original state, which is also perhaps the most famous, to allow this procedure is Oregon. Enacted on October 27, 1997, the Death with Dignity Act made Oregon the first place in the country to permit terminally ill Oregonians to end their lives through the voluntary self-administration of lethal medications, which had to be prescribed by a physician for that exclusive purpose (“Oregon’s Death with Dignity Act”). In order to be eligible to die with dignity, the citizen needs to be a resident of Oregon, eighteen years of age or older, deemed mentally competent to be able to make and communicate health care decisions and desires for himself/herself, and, lastly, is diagnosed with a terminal illness that will lead to death within six months (“Oregon’s Death with Dignity Act”). These eligibility requirements must be fulfilled by the patient, but such fulfilment does not guarantee being given the lethal prescription. It is up to the patient’s doctor to decide whether all the criteria are being met and whether he/she is willing to assist in the matter. As such, a patient will not automatically be authorized for legal suicide just because eligibility has been met, but instead it is left up to the physician’s discretion to approve the request. Given the ethical issues that surround this issue, many doctors may refuse based upon moral and/or religious grounds. This is a legally appropriate action for the physician and as per medical ethics step away policies, they must then help the patient find a doctor who would be willing to authorize the prescription. In general, every other state where this is legal has bills almost exactly like that of Oregon. While the verbiage and titles may be different (although most are called Death with Dignity Acts), the core elements of eligibility criteria, residency, and being diagnosed as terminally ill, do not change.

Conclusion

This current climate in the U.S. towards such actions has left society in an ambiguous place, although state legislatures have slowly been moving in a more progressive direction. When American citizens were surveyed, roughly two-thirds of the U.S. population approve of physician-assisted death as an option for “terminally ill patients with intractable suffering” (Quill and Sussman). However, when the question asked is whether such an act should be legalized, the vote is usually split half and half (Quill and Sussman). With sentiments overall starting to change, the requirements to partake in these programs have not eased up, as states have remained firm that the patient must be terminally ill with death fairly imminent in order to be allowed to choose when and how he or she dies. Naturally, there are and will always be staunch proponents on both sides of this complex issue. Beyond just the legal status in each state, many claim suicides are religiously wrong and as such, should never be permitted by the government, while predominantly physicians state that such actions go against their professional moral code of conduct. Health care providers want to assist their patients in any manner possible, so the thought of helping someone die is antithetical to the core tenets of the profession. By contrast, most citizens and doctors agree that they want to help people by respecting their autonomy and not letting anyone suffer unduly. As such, this hotly debated problem will likely go back and forth at the state level unless the Supreme Court decides to go beyond precedent and either federally allow for physician-assisted suicide or completely reverse their federalist stance of judicial conservatism and fully ban such a practice. As both hypothetical events are rather improbable given the current situation, only time will tell which new states will pass death with dignity acts.

David Schulman is a Student at New York University and can be contacted at des500@nyu.edu

Citations

Ethics Explainer: What Is The Harm Principle?” The Ethics Centre, The Ethics Centre, 27 Oct. 2016, https://ethics.org.au/ethics-explainer-the-harm-principle/.

“Is Suicide Illegal? Suicide Laws By Country.” Mental Health Daily, https://mentalhealthdaily.com/2014/07/24/is-suicide-illegal-suicide-laws-by-country.

Lewis, Brittany. “Wisconsin Lawmakers Introduce Legislation That Would Legalize Physician-Assisted Suicide.” CBS58, WDJT, 20 Sept. 2019, https://www.cbs58.com/news/wisconsin-lawmakers-introduce-legislation-that-would-legalize-physician-assisted-suicide.

“Oregon's Death with Dignity Act.” Oregon Health Authority, Oregon Government, https://www.oregon.gov/oha/ph/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx.

“Physician-Assisted Suicide Fast Facts.” CNN, Cable News Network, 1 Aug. 2019, https://www.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts/index.html.

Quill, Timothy E., and Bernard Sussman. “Physician-Assisted Death.” The Hastings Center, The Hastings Center, https://www.thehastingscenter.org/briefingbook/physician-assisted-death/.

“Rational Basis Test.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/rationalbasistest.

“'The State Has an Interest in Preventing Suicide . . . and Treating Its Causes'.” The Washington Post, The Washington Post Company, 27 June 1997, http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/062797b.htm.

U.S. Const. amend. V.

U.S. Const. amend. XIV, § 1.

Vacco v. Quill, 521 U.S. 793 (1997)

“Vacco v. Quill.” Oyez, Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law, https://www.oyez.org/cases/1996/95-1858.

Washington v. Glucksberg, 521 U.S. 702 (1997)

“Washington v. Glucksberg.” Oyez, Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law, https://www.oyez.org/cases/1996/96-110.