Killing off the dying?

Public Interest, Spring, 1998 by Adam Wolfson

Dworkin and Quill are among the most influential and thoughtful of the supporters of assisted death - they represent the movement's high brow. The constitutional case for physician-assisted suicide is made by Dworkin: Because the Due Process Clause of the Fourteenth Amendment protects a person's right to make intimate and personal choices, the state oversteps its bounds when it prohibits doctors from assisting in the deaths of patients who want such aid. Quill, who has worked extensively with dying patients, provides the medical rationale: Because even the best palliative care cannot control some patients' suffering, doctors should be allowed to provide assistance in dying as a humane alternative.

The two men recently teamed up to argue in favor of physician-assisted suicide before the Supreme Court. Quill wanted New York's ban on physician-assisted suicide overturned. When the case, Vacco v. Quill, made it to the Supreme Court, Dworkin filed one of the key briefs in support of the practice. The Court decided to remain neutral, however. Chief Justice Rehnquist observed in a companion case that "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide," a debate he thought should not be cut short by the Court but should "continue." At least for a time, it is for the American people to decide whether physicians are granted the power to kill. Thus it is especially important to understand the state of the assisted-death movement in America and the argument made on its behalf.

What the Constitution says about the extent of our liberty and what palliative care can accomplish are two aspects of that argument. But since there are no shortage of legal and medical experts (of which I am neither) to debate these matters, I will explore some more general issues, ones that have gone largely unnoticed. ! have in mind the cultural and political aspects of doctor-assisted death - the phenomenon of assisted death as it manifests itself in our common life. For example: Is a narrow elite pushing the issue or is the public in general concerned about the state of medical care at the end of life? Why has doctor-assisted killing become a cause, and what political arguments are made in its favor? Finally, what sort of America would we be if doctors gained a license to kill? To answer such questions I have gone to those who advocate assisted death, whether on the Internet, or in popular books, newspapers, and journals.

Doctor death

It would be a mistake to suppose that the demand for assisted death is the preoccupation of a "New Class" or liberal elite out of touch with the majority of Americans. Twenty-five years ago such an elite secured a national right to abortion by making an end run around state legislatures that were struggling with the issue. An appeal was made to the Supreme Court, which declared abortion a fundamental right protected by the Constitution. In the case of doctor-assisted death, it is the American people who are out in front of the Court.

This past November, residents of Oregon voted in favor of legalizing physician-assisted suicide. They had done the same in 1994 by a narrow margin, 51 percent to 49 percent. However, a Federal judge had prevented the original measure from being put into effect, and in the meantime, the state legislature, dominated by Republicans, had sent the measure back to the voters for a second look. The hope had been that opponents of assisted suicide would prevail, but that did not happen. Though opponents outspent advocates by $2.5 million to $600,000, Oregon residents voted for the second time in three years to legalize assisted suicide, this time by an overwhelming margin - 60 percent to 40 percent.

Oregon is the first state officially to recognize a legal right to physician-assisted suicide. It is too early to say how it will be exercised in practice. But Michigan has unofficially recognized such a right since 1990, the year Jack Kevorkian began his killing spree in Michigan, and there the record of the right's use is extensive.

Hollywood could not have created a more ghoulish character than Kevorkian. Early in his medical career, he got the nickname "Dr. Death" for the hospital rounds he would make decked out in a black arm band, on the lookout for dying patients whose eyes he would peer into to determine the exact time of death. Much later in his career, he became an artist, recently displaying, the New York Times reported, "a collection of 13 oil paintings depicting severed heads, moldering skulls and rotting corpses." But Keyerkian has always had a much larger goal. In his autobiography, Prescription: Medicide, he recounts how as a young medical resident in the late 1950s he "became convinced" that he had "the responsibility to promulgate a profound idea." That idea was to conduct medical experiments on death-row prison inmates before they were executed. The experiments were to be performed only on anesthetized inmates who had previously consented and only for certain ends, the good of humanity and basic research, or so he claimed. (Needless to say, no such experiments ever took place.)