Physician-Assisted Suicide

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Physician-Assisted Suicide

Sections within this essay:

Background
Supreme Court Rulings
Oregon's Death With Dignity Act
The DWDA and the Controlled Substances Act of 1970

Additional Resources
Organizations
American Medical Association (AMA)

Background

Physician-assisted suicide involves the hastening of death through the administration of lethal drugs, upon request of the patient. Physician-assisted suicide is sometimes known as active euthanasia. It differs from withholding or discontinuing medical treatment in circumstances that will result in death. Withholding or discontinuing medical treatment is sometimes called passive euthanasia. Passive euthanasia is generally accepted, although not without controversy, in the United States as an individual's right to refuse medical treatment. Examples of passive euthanasia include turning off respirators, stopping medication, discontinuing food and water, or failing to resuscitate.

The Hippocratic Oath has been used by physicians as a code of ethics for more than two thousand years. Attributed to Hippocrates, (ca. 460-370 BCE), the oath provides in part: "I will follow that method of treatment, which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to anyone if asked, nor suggest any such counsel.

The American Medical Association takes this stance: "It is understandable, though tragic, that some patients in extreme duress-such as those suffering from a terminal, painful, debilitating illness-may come to decide that death is preferable to life. However, allowing physicians to participate in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks."

Dr. Jack Kevorkian, self-styled "Dr. Death," has garnered much publicity for his role in physician-assisted suicides. Kevorkian escaped conviction on murder charges several times during the 1990s as he assisted in numerous suicides. Kevorkian operated on his own set of rules to determine whom he would assist; he supposedly assisted more than 130 patients. When he began, Michigan did not have a law that specifically prohibited assisted suicide. As his notoriety grew, the Michigan legislature passed a law prohibiting assisted suicide. The Michigan Supreme Court upheld the statute in 1994, ruling that no constitutional right to suicide exists, including assisted suicide. Kevorkian's second-degree murder conviction was upheld.

The Supreme Court has determined that no right exists for physician-assisted suicide. However, states are free to enact laws to permit it. Oregon is the only state that currently permits physician-assisted suicide. Technically, however, a death under Oregon's Death With Dignity Act is not considered suicide, assisted suicide, or homicide. Oregon's law has survived numerous legal challenges since its enactment in 1994. In January 2006, the United States Supreme Court the law against former Attorney General John Ashcroft's attempt to render the statute illegal under federal law.

In 1997 President William Jefferson Clinton signed the Assisted Suicide Funding Restriction Act of 1997. The law's intent was "to clarify Federal law with respect to restricting the use of Federal funds in support of assisted suicide," euthanasia, or mercy killing. The act banned the funding of assisted suicide through Medicaid, Medicare, military and federal employee health plans, veterans' health care systems and other federally funded programs. It also prohibited the use of taxpayer funds to subsidize legal assistance or other advocacy in support of legal protection for assisted suicide.

Supreme Court Rulings

In two cases from 1997, the U.S. Supreme Court ruled that physician-assisted suicide is not a protected liberty interest under the Constitution. However, the rulings in Vacco v. Quill and Washington v. Glucksberg left the door open for states to permit physician-assisted suicide. Washington v. Glucksberg dealt with the constitutionality of a Washington statute that made it felony for a person to assist in the suicide of another. According to the statute, "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." Maximum punishment for conviction was five years' imprisonment and a $10,000 fine. Another statute in Washington, the Natural Death Act, provided, "Withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a suicide." A number of physicians and their terminally ill patients brought suit to challenge the constitutionality of the assisted suicide law. These plaintiffs claimed "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide."

The district court agreed with the doctors and patients. The court ruled that the law placed an undue burden on the exercise of a constitutionally protected liberty interest. The state appealed the case to the Ninth Circuit Court of Appeals. A three-judge panel reversed the district court. According to that opinion, this country has never recognized a "constitutional right to aid in killing." However, a subsequent en band hearing before all the judges of the Ninth Circuit resulted in victory for the doctors. According to the en banc decision, "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death—that there is, in short, a constitutionally-recognized 'right to die.'" Furthermore, Washington's law was unconstitutional, "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians."

The state appealed, and the Supreme Court reversed. The opinion, written by Chief Justice William Rehnquist, traced the history of assisted suicide. The court noted that few exceptions to the rules against assisted suicide exist anywhere in Western democracies and states. Moreover, the punishment or disapproval of suicide or assisted suicide reaches back more than 700 years. The earliest statute to outlaw assisted suicide came in 1828, but long before that, common law recognized it as a crime. The court noted that advances in medicine and technology have caused many states to reexamine their stances on assisted suicide. For the most part, states have reaffirmed deeply-rooted bans on assisted suicide. To rule in favor of the doctors, the court noted, it would have to "reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State." Quoting another case, the court recognized that if something has been practiced for two hundred years by common consent, it will "need a strong case for the Fourteenth Amendment to affect it." The court also noted the danger of allowing policy preferences of the members of the court to subtly transform constitutional law.

Based on the history of assisted suicide laws in this country, the Supreme Court ruled that there is no fundamental liberty interest in a right to assisted suicide that is protected by the due process clause. Moreover, the ban on assisted suicide, as set forth in Washington's law, was rationally related to legitimate government interests. Those government interests include:

To preserve life
To prevent suicide
To avoid the involvement of third parties and the use of arbitrary, unfair, or undue influence
To protect the integrity of the medical profession
To avoid future movement toward euthanasia and other abuses

The Supreme Court did not, however, ban assisted suicide. The opinion recognized the right of states to engage "in serious, thoughtful examinations of physician-assisted suicide."

Oregon's Death With Dignity Act

Only in Oregon is physician-assisted suicide legal. Voters in Oregon passed the Death With Dignity Act (DWDA) in 1994 by a narrow margin. The measure legalized physician-assisted suicide under certain circumstances. Physicians may not be forced to participate in the DWDA. A person who sought to employ the law needed to show:

Patient must be at least 18 years of age
Suffering from a terminal illness
With a life expectancy of six months or less
The patient must make two oral requests for assistance in dying
The patient must make one written request for assistance
Two physicians must be convinced that the patient is sincere, not acting on a whim, and that the decision is voluntary
The patient must not be influenced by depression
The patient must be informed of "feasible alternatives" such as hospice care and pain control
The patient must wait 15 days between the verbal requests

Almost immediately after passage, court challenges succeeded in suspending the law. After the Supreme Court rulings in Glucksberg and Vacco v. Quill in 1997, the Ninth Circuit Court of Appeals lifted an injunction on DWDA. The law took effect on October 27, 1997. Voters in Oregon were asked to vote whether to retain the law in 1997. This time, 60 percent of voters approved of it.

In 2004, according to figures supplied in an annual report by the Oregon Department of Human Services, forty physicians wrote prescriptions for the lethal dosages. The total number of prescriptions written was 60, which represented the first decline since the law took effect. The high was 68, in 2003. Thirty-seven Oregonians "ingested medications prescribed under provisions of the Act;" compared to 42 patients in 2003. This number reflects that about one in 800 deaths in Oregon is attributed to DWDA. By December 31, 2004, 25 people who had been given the medication had not ingested them. Thirteen of the people had died from their illnesses, while the rest were still alive. (The numbers do not add up to 60 because of prescriptions issued in 2003, but not used before December 31, 2003.)

The median age of a patient receiving a prescription under DWDA in 2004 was 64. Just over one-half had at least a baccalaureate degree. Males and females were equally likely to avail themselves of the law. Malignant tumors accounted for 78 percent of the illnesses. According to the report, the three most frequently cited reasons for requesting assisted suicide were: a decreasing ability to participate in activities that made life enjoyable, loss of autonomy, and a loss of dignity. Death came anywhere from five minutes to 31 hours after ingestion of either pentobarbital or secobarbital.

The DWDA and the Controlled Substances Act of 1970

The stated purpose of the Controlled Substances Act is to "to provide increased research into, and prevention of, drug abuse and drug dependence … and to strengthen existing law enforcement authority in the field of drug abuse." A regulation promulgated under the act provided, "A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice."

In 1984 the act was amended to give the U.S. Attorney General the authority to revoke a physician's prescription privileges upon a determination that the physician has "committed such acts as would render his registration … inconsistent with the public interest."

On November 6, 2001, U.S. Attorney General John Ashcroft issued an interpretation of the Controlled Substances Act. Ashcroft's interpretation made it illegal for doctors to prescribe controlled substances under Oregon's Death With Dignity law. According to Ashcroft's determination, prescribing such drugs was a violation of the Controlled Substances Act because physician-assisted suicide was not a "legiti-mate medical purpose." A doctor who made such prescriptions could have his or her registration to distribute controlled substances under the act revoked or could be criminally prosecuted.

Ashcroft's determination reflected a reversal of administration policy from Clinton's presidency to that of George W. Bush. Janet Reno, attorney general under President Clinton, had determined that the pertinent section in the Controlled Substances Act would not apply in states where physician-assisted suicide was legal. Ashcroft's decision on the subject has come to be known as the "Ashcroft Directive."

The state, along with a doctor, a pharmacist, and a group of terminally ill patients, filed a lawsuit to challenge Ashcroft's interpretation of the Controlled Substances Act. On November 20, 2001, a federal judge issued a restraining order from implementation of the Ashcroft Directive. In April 2002 U.S. District Court Judge Robert Jones upheld the DWDA in light of the Controlled Substances Act. The U.S. appealed; the Ninth Circuit Court of Appeals upheld the federal district court decision. The appellate decision opined that the Ashcroft Directive violated the plain language of the Controlled Substances Act: "Contrary to the Attorney General's characterization, physician-assisted suicide is not a form of 'drug abuse' that Congress intended the CSA to cover." Moreover, the Ashcroft Directive undermined Congressional intent, and overstepped the bounds of the attorney general's authority.

Judge Richard Tallman's decision also noted that the federal government was interfering in an area delegated to the states. "The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government are the 'primary regulators of professional [medical] conduct,'" Tallman wrote. He concluded, "The Attorney General's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician assisted suicide and far exceeds the scope of his authority under federal law." Moreover, "To be perfectly clear, we take no position on the merits or morality of physician assisted suicide. We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care. This case is simply about who gets to decide."

On January 17, 2006, in a 6-3 decision, the Supreme Court upheld Oregon's statute. Writing for the majority, Justice Anthony Kennedy found that the "authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design." Although the Oregon law may stand under the decision, the case did not resolve the controversy surrounding physician-assisted suicide. Congress could amend the Controlled Substances Act to allow the Attorney General to determine whether Oregon's law is permissible under the statute, and this amendment would effectively negate the Court's decision.