The right to assisted suicide: protection of autonomy or an open door to social killing?

• Author: Rosenblum, Victor G.

The status of assisted suicide as public policy in the United States is admittedly in a state of turmoil. This turmoil is reminiscent of the legal status of abortion in the few years preceding the Supreme Court's 1973 decision in Roe v. Wade.(1) The parallel may be indicative of the future direction of law and public policy regarding suicide.

The call for legalized suicide has been increasing in several quarters, most loudly, of course, from suicide advocacy organizations like the Hemlock Society, the Society for the Right to Die, and Americans Against Human Suffering. Some have suggested that "the subject of assisted suicide deserves wide and open discussion."(2)

The Society for the Right to Die scored a publication victory earlier this year with the article "The Physician's Responsibility Toward Hopelessly Ill Patients" in the New England Journal of Medicine.(3) The article supports assisted suicide for the "rational" patient who is hopelessly ill, dying, or in the end stages of an incurable disease.(4) This article is merely one of many published in recent years that is sympathetic to active euthanasia or suicide.(5)

At the same time, the attitude of Americans toward assisted suicide seems to be ambivalent. An Associated Press-Media General poll in February 1985 reportedly found that 68% of the respondents believed that incurable patients ought to be permitted to end their lives by active means.(6)

Conflicting legal decisions have added to the confusion. Cases such as those of Gary Weidner,(7) Peter Rosier,(8) Elizabeth Bouvia,(9) and Roswell Gilbert(10) are not based on identical premises and do not reach mutually reconcilable conclusions.

The rising incidence of suicide contributes to this turmoil. Suicide has been described as an "epidemic" in America in the 1980s.(11) In 1985, 28,500 Americans committed suicide, making suicide the nation's eighth leading cause of death.(12) Three years ago, the Metropolitan Life Insurance Company published a report that concluded that suicides among adolescents under age fifteen were hitting record numbers.(13) At the same time, the suicide rate for older Americans is almost 50% above the rate for the general population and rising.(14) Between 1948 and 1981, the suicide rate for older persons dropped from 28.1 to 17.1 per 100,000. But in the past several years, the rate has again risen, from 18.3 in 1982 to 19.2 in 1983 to 21.6 in 1986.(15) In addition, it is generally believed that official suicide statistics underestimate the true rate of suicide.(16)

All of these factors are converging to affect public opinion, to challenge the traditional opposition to suicide in Anglo-American law, medicine, and culture, and, potentially, to reshape public policy.

The Common Law and Assisted Suicide

The current campaign for the legalization of assisted suicide runs directly counter to the long history of Anglo-American common law. The traditional rejection of suicide in Anglo-American culture has been grounded in the common law's solicitousness toward vulnerable persons--including older persons, and persons who are mentally incompetent--through the criminal law.(17) The treatment of vulnerable or incompetent persons by third parties has long been scrutinized through the law of guardians and wards.(18) The Illinois guardianship statute commands: "Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence."(19) Guardians have long been charged with the care of their wards and can be liable for negligent homicide if their wards die through their neglect.(20) This includes neglecting to feed a disabled or incompetent ward. (21)

Suicide, a felony at common law, was regarded as "self-murder."(22) Cyril Means, among others, has concluded upon examination of its history at common law that suicide is not protected as a constitutional right: "Throughout its long history, the common law has always set its face against suicide. . . ."(23) The difficulty of penalizing the successful perpetrator was at the foundation of American law's failure to penalize suicide.(24) However, even where the states failed to penalize suicide, many states penalized those who assisted suicide.(25)

Did emergence of the right to privacy have any bearing on suicide? What is today called the right to privacy had its early development in the Brandeis-Warren Harvard Law Review article of 1890.(26) In its original formulation, the Brandeis-Warren right to privacy was a right to informational family privacy. Viewed in the context of its relationship to the laws of homicide and suicide, the right to privacy did not encompass a right to suicide or to be free from interventions to prevent suicide.

The common law has protected a right to refuse medical treatment.(27) The so-called right to die is an unfortunate and inaccurate misnomer of very recent origin. As a phrase in increasingly common use, however, it reflects the abandonment of the traditional right to refuse medical treatment. That right of refusal connoted the right--not to seek death--but to avoid the imposition of a medical treatment that is simultaneously burdensome or painful and ineffective in averting imminent and inevitable death from a terminal illness. To transmute a right to refuse medical treatment into a "right to die," however, switches the focus from the burden of nonbeneficial medical treatment to the desire for death itself.

In applying the traditional right to refuse medical treatment, courts attempted to distinguish between ordinary and extraordinary medical treatment.(28) Some courts have failed to understand the distinction between extraordinary and ordinary treatment and have fostered the erroneous notion that the distinction relates to the frequency or novelty of the particular medical treatment.(29) Rather, the extraordinary/ordinary distinction has always been related to the benefit and burden of the particular treatment to the patient in the particular circumstances:

Ordinary means are all medicines, treatments, and operations,

which offer a reasonable hope of benefit and which can be obtained

and used without excessive expense, pain, or other inconvenience.

Extraordinary means are all medicines, treatments, and operations,

which cannot be obtained or used without excessive expense, pain,

or other inconvenience, or which, if used, would not offer a

reasonable hope of benefit.(30) This balancing between the benefits and burdens of treatment inheres in traditional medical ethics and in the day to day practice of the clinician.(31)

Maintenance of the distinction between ordinary and extraordinary treatment is essential to prevent the burgoening of euthanasia and suicide. If, for example, the treatment will in fact entail excessive expense or pain and there is no reasonable hope of benefit, then the patient is not committing suicide but is merely acquiescing in imminent and inevitable death by avoiding a painful and nonbeneficial treatment. However, if the treatment involves no excessive pain, and a reasonable hope of benefit from the particular treatment exists, then the patient, in refusing the treatment, may rightly be seen as intending to cause death.

This distinction also highlights and preserves the physician's ethical duty. For moral agents, "ought" assumes "can." A physician is not obliged to do what he cannot do.(32) If the treatment is truly "extraordinary," then the physician is not required to provide it, since the burden was excessive while there was no reasonable hope of benefit from it.

The earlier decisions in the development of the right to refuse medical treatment fostered this distinction. They eschewed quality of life criteria(33) and were resolvable under common law principles without resort to constitutional analysis.(34) In the 1980 Eichner(35) decision, for example, the New York Supreme Court, Appellate Division, emphasized that the case involved the right of a terminally ill patient in a comatose state to refuse extraordinary medical treatment when he is imminently dying.(36) After carefully defining the difference between "extraordinary" and "ordinary" treatment, the Appellate Division proceeded to use the term "extraordinary" treatment to define the right at issue no less than eight times.(37) Likewise, the court emphasized that the right at stake was the right of those who are "terminally ill."(38) More than once, the court emphasized that these were "[t]he necessary medical criteria for the activation of the patient's right. . . [t]he State's interest in protecting the sanctity of life will tolerate no less stringent medical standard than this. . . ."(39) In summarizing New York law, the court stated: "[T]here seems to be no public policy against permitting a terminally ill patient to choose not to delay the inevitable and imminent termination of his life. . . ."(40) On appeal the New York Court of Appeals further narrowed the grounds for the Eichner decision, relying on common law, and declined to adopt the constitutional right of privacy rationale proffered by the Appellate Division.(41)

Similarly, in Storar, the New York Court of Appeals held that blood transfusions could properly be continued to a patient with terminal cancer of the bladder, even though the patient found the transfusions "disagreeable."(42)

[T]he evidence convincingly shows that the transfusions did not

involve excessive pain and that without them his mental and

physical abilities would not be maintained at the usual level. With the

transfusions, on the other hand, he was essentially the same as he

was before except of course he had a fatal illness which would

ultimately claim his life. Thus, on the record, we have concluded that

the application for permission to continue the transfusions should

have been granted . . . a court should not in the circumstances of...