Assisted suicide: a disability perspective.

National Council on Disability(*)

Physician-assisted suicide and related issues have garnered much judicial, media, and scholarly attention in recent months. Well-publicized instances of legal prosecutions of medical practitioners, such as Dr. Jack Kevorkian, for engaging in acts of assisted suicide, and recent consideration by the United States Supreme Court of a pair of cases in which the legality of state laws prohibiting physicians from assisting suicides by their patients has been contested have generated considerable debate, controversy, and pontificating by various individuals and organizations.

As the principal agency within the federal government charged with the responsibility of providing cross-disability policy analysis and recommendations regarding government programs and policies that affect people with disabilities, the National Council on Disability is issuing this position paper in the hope of presenting a coherent and principled stance on these issues drawn from the input and sometimes conflicting viewpoints of individuals with disabilities. This position paper was drafted for the National Council on Disability by professor Robert L. Burgdorf Jr. of the University of the District of Columbia School of Law.

Complexity of the Issues

Discussions of the issues surrounding the question of physician-assisted suicide should not oversimplify the subject. While various individuals and organizations have sometimes formulated their positions in ways that make the issues seem simple and straightforward, consideration of the legal, medical, and societal implications of assisted suicide are inherently thorny and multifaceted. If one limits consideration only to matters of legality, the question whether or not physician-assisted suicide should be legal involves a number of component questions: Is there or should there be a legal right to commit suicide? Should it ever be legal for some other person to assist in a suicide? Should a physician ever be permitted to assist in a suicide? Should any right to commit suicide or to assist in someone else's suicide be limited to situations where a person is terminally ill? If so, how imminent must the person's death be? Should any right to commit suicide or to assist in someone else's suicide be limited to situations where a person is in severe pain? If so, how much pain suffices? Sporadic or constant pain? What if the pain is partially or fully treatable? Is it assisting suicide to treat pain with medication or other techniques that will shorten life? Should a person's age and life expectancy ever be considered? Is there a difference in the criteria that should be applied to determinations whether or not to provide ordinary medical treatment; to provide, refuse to provide, or to terminate "extraordinary measures;" or to assist the termination or shortening of life? Should there be a difference in the requirements and standards applied to decisions to administer medical procedures that will save a person's life versus those that will merely extend it somewhat? Who should make such determinations--the patient, the doctor, the family, medical review boards, the courts? Do the same or different considerations apply regarding individuals who are not capable of making the decisions about their treatment themselves? What types of procedural safeguards should be imposed to ensure the integrity of the decision-making process? Can such procedural prerequisites be workable and effective in application?

Even the more straightforward situation where an individual is able to take her or his own life without direct assistance involves its own legal complications. If a physician prescribes medication that is used in the suicide, the doctor may risk legal liability to the extent that it appears that the doctor intentionally prescribed the medication for that purpose. And the individual who decides to take his or her life may endanger family members or others who are present when the deed is done, because they may risk liability for aiding or abetting the suicide, a circumstance that at the very least adds stress, guilt, or isolation and loneliness for all of those involved in the scenario.

This position paper does not aim to unravel all such complexities and answer all of the foregoing questions. It seeks, rather, to delineate some criteria and principles derived from the experiences and deliberations of people with disabilities that will hopefully enlighten future initiatives undertaken by the federal government and the states to refine the law in this area. There can be little question that current laws and legal principles regarding treatment, nontreatment, and assisted suicide need refinement. One of the ironies of the law as it currently stands has been described by a physician in an article in the New England Journal of Medicine in which he cited two hypothetical patients:

One is 28 years old, despondent over the recent breakup of a romantic relationship, and because of an acute asthma attack, temporarily dependent on a ventilator. Apart from asthma, this person is in good health. The other patient is 82 years old, is wracked with pain from extensive metastic cancer, and has only a few weeks to live. Assume that both persons want to end their lives, the 28-year-old by refusing the ventilator and the 82-year-old by suicide. Under current law, the 28-year-old has the right to refuse the ventilator, whereas the 82-year-old generally lacks the right to assistance with suicide.(1) People with disabilities report numerous other problems with the law as it currently stands, including unconsented denials of treatment, pressure to refuse or discontinue treatments, disregard of requests for relief from pain, "Do Not Resuscitate" consent forms hidden within a stack of admission and consent papers, and involuntary assisted-"suicide."

The Cases Under Consideration by the Supreme Court

The United States Supreme Court has before it this term two cases that raise the question of the legality of physician suicide and the permissibility of state laws that prohibit it--Vacco v. Quill(2) and State of Washington v. Glucksberg.(3) This section provides a brief summary of those two cases. As a precedential backdrop, however, it is important to be aware of a prior decision of the Court--Cruzan v. Director, Mo. Dept. of Health.(4)

In Cruzan, the Court considered the challenge by the parents of a woman who had been in a coma for seven years following an automobile accident to the refusal by state hospital officials and the Missouri Supreme Court to authorize the removal of a feeding tube keeping Nancy Cruzan alive. The Supreme Court of the United States upheld Missouri's legal standard for such cases, which required "clear and convincing evidence" of the patient's wishes before life support could be removed. In doing so, the Court recognized that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment," and assumed for the purposes of the case that the Constitution "would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."

In its reasoning upholding the Missouri legal framework restricting the removal of life support for persons not able to make the decision themselves, the Cruzan Court recognized Missouri's interests in the protection and preservation of life and in avoiding erroneous decisions to withdraw life-sustaining treatment. It noted in passing that "the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide."

The current cases examine the legality of such state laws. The Vacco and Glucksberg cases present the Court with two different legal theories under which physician-assisted suicide laws have been challenged--in Vacco, equal protection, and in Glucksberg, due process.

In Vacco v. Quill,(5) three terminally ill patients and three physicians who treat terminally ill patients challenged the constitutionality of New York statutes that made it a crime (manslaughter) for any person to intentionally cause or aid another to commit suicide. The plaintiffs challenged the laws as violating both the due process and equal protection guarantees of the U.S. Constitution. The trial court dismissed both claims. On appeal, the United States Court of Appeals for the Second Circuit ruled that the N.Y. assisted-suicide laws violated the Equal Protection Clause because they are not rationally related to any legitimate state interest.(6) In reaching this conclusion, the Second Circuit reasoned as follows:

New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs.(7) The Second Circuit found that there was no legitimate state interest to support the difference in treatment between terminally ill patients on life-support and those seeking assistance in directly ending their lives. The Supreme Court agreed to review the Second Circuit's equal protection ruling in Vacco.

State of Washington v. Glucksberg(8) involves a similar challenge, by four physicians who treat terminally ill patients, three terminally ill persons, and an organization that provides assistance to terminally ill persons, to the constitutionality of a Washington law that makes it a crime for any person who knowingly causes or aids another person to attempt suicide. The plaintiffs had challenged the Washington statute under the Equal Protection and Due Process clauses of the U.S. Constitution. The district court granted summary judgment in favor of the plaintiffs on both claims.

A panel of the United States Court of Appeals for the Ninth...