On Kamisar, killing, and the future of physician-assisted death.

• Author: Cantor, Norman L.
• Position: Yale Kamisar

Tens--perhaps hundreds--of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article--Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation (1)--presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD"). (2) Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief substances alleviating physical suffering while risking accelerated death/ That article demonstrated remarkable prescience and intellectual honesty while shaping the content of opposition to PAD.

Kamisar continued to participate in the debate for decades thereafter, (4) always exhibiting remarkable intellectual honesty and insight. Kamisar's special insights started with his prediction about the legal status of a physician's withholding of LSMT. Years before cases addressing this issue emerged, he correctly anticipated that a physician's failure to provide LSMT might be treated as homicide by omission in light of a physician's affirmative fiduciary duty to the patient. (5) He also foresaw that the fiduciary obligation would not rigidly dictate maintenance of medical life support in the face of a competent patient's request to withhold or withdraw LSMT. Later, he correctly forecast that the Supreme Court would refuse to find assistance in suicide to be a fundamental liberty and would instead leave regulation of physician-assisted suicide ("PAS") to the states. (6)

Kamisar established his unwavering honesty with his 1958 concession that PAD could be morally correct. He boldly stated that he would "hate to have to argue" the moral case against PAD for an irremediably stricken patient suffering intolerably and expressing a fixed and considered desire to die. (7) Kamisar also conceded that a physician's cooperation with a patient's rejection of LSMT was morally equivalent to PAD, at least where the cooperating physician intended to bring about death. For him, no moral difference existed between pulling a plug and providing a poison or giving a fatal injection. "As a matter of logic," he wrote, the analogy between PAD and ending LSMT was appealing. (8) He believed that neither form of hastening death--withdrawal of LSMT or PAD--was intrinsically immoral. (9) (All this doesn't mean that Kamisar thought that the legal handling of PAD and removal of LSMT ought to be identical. His ultimate position will be examined in more detail below in the section on "Killing versus Letting Die").

Kamisar was also appropriately skeptical about hinging legal prohibition on a physician's state of mind or specific intent in the context of end-of-life decisionmaking. (10) He observed that a physician-actor's motives run a gamut, are sometimes mixed, and are almost always difficult to identify. (11) (He could not have anticipated that some later commentators would try to distinguish medical practices like removal of life support and administration of potentially fatal analgesics from PAD primarily on the basis of physicians' intentions). That skepticism about specific intent later helped him resolve for himself the tension between PAD and administration of risky analgesics. (12)

Kamisar showed remarkable prescience in identifying the "practical issues" that would ultimately form the crux of the dispute over legalization of PAD. For him, the benefit of PAD was expeditious relief from prolonged suffering. (13) That important benefit, however, had to be considered together with several other factors. The need for PAD depended on availability of alternative means of mitigating suffering like palliative or analgesic techniques as well as alternative legal means to hasten the death of a suffering patient. (14) The possible benefits of PAD had to be weighed against certain "utilitarian obstacles (15)--abuse of vulnerable patients in the administration of PAD and unsavory extensions of PAD beyond the realm of voluntary active euthanasia of competent patients nearing the end of a painful dying process. These predicted abuses would take the form of "unwilling or manipulated death[s] of the most vulnerable members of society." (16) Some abuse would flow from medical mistake in diagnosis or mistake in assessing the competence of patients seeking PAD. Kamisar wondered how stricken patients facing terrible stress, pain, or effects of narcotic analgesics could possibly make careful, considered judgments about PAD. (17) Clinicians might also needlessly make PAD an attractive option by failing to perceive treatable depression or by under-treating pain. (18) Stricken patients would be susceptible to subtle pressures that might coerce them into agreeing to PAD. Those pressures might come from surrounding family facing the emotional and financial burdens of a deathwatch or from health-care providers burdened with caretaking tasks. (19) Or the patient's own consciousness of surrounding people bearing burdens of caretaking might generate pressure to seek PAD. (20)

Another hazard troubled Kamisar from the start: his conviction that legalization of voluntary PAD would inexorably result in unsavory extensions. Proponents of euthanasia (as well as later proponents of PAS) pushed only for legalization of PAD for competent patients facing a terminal illness. Kamisar perceived these ostensibly limited objectives as a strategic move to cultivate public opinion and insert a legal wedge leading to further extensions. (21) He was most wary of a slippery slope leading to nonvoluntary euthanasia, remarking in 1958: "Miss Voluntary Euthanasia is not likely to be going it alone for very long." (22) He recounted the horrific progression of what the Nazis had deemed mercy killing and recounted how some American proponents of euthanasia had wanted to euthanize mentally disabled persons and other "social detritus." (23) He worried about the medical fate of " 'the drooling, helpless disoriented old man or the doubly incontinent old woman lying log-like in bed.' " (24) Kamisar concluded that, on balance, the potential abuses of voluntary PAD combined with extensions to "far more objectionable practices," outweighed the utility of PAD in relieving the suffering of some patients who genuinely did want to die. (25)

Kamisar's 1958 article, Some Non-Religious Views, has had an amazing impact over the last forty-five years. It may not have been cited as often as the classic article by Warren and Brandeis on the right to privacy, (26) but it was probably more successful in accomplishing its objectives. (27) Kamisar's article, with its emphasis on "utilitarian obstacles" to PAD, has not only framed the discourse over the last forty-five years, but also successfully influenced the outcome of the debate. Subsequent commentators have followed Kamisar's format by focusing on the practical consequences of legalization rather than intrinsic immorality. (28) The New York State Task Force on Life and the Law, probably the most comprehensive examination of PAD ever done, relied on the consequentialist arguments first articulated by Kamisar. (29) Successful opponents of state voter initiatives to legalize PAD have uniformly focused on the asserted hazards of abuse and lack of procedural safeguards. (30)

The impact of Yale Kamisar's opposition to PAD is undisputable. The harder question is whether, in light of post-1958 developments, Kamisar pushed in the right direction. Kamisar's initial posture preceded a number of developments: a) new and improved medical technologies capable of sustaining lives well beyond the point that many people would desire; b) evolution of jurisprudence and medical ethics governing the withholding and withdrawal of LSMT; c) sophisticated palliative care techniques, especially drugs capable of both mitigating pain and hastening death; d) a shift in typical causes of death from virulent diseases to slower, progressive conditions carrying the prospect of lingering in a gravely debilitated state; e) changes in the nature and financing of the doctor-patient relationship away from a long-term relationship rendered on a fee-for-service basis and toward managed care carrying disincentives for expensive medical interventions; and f) acceptance of voluntary euthanasia or assisted suicide in the Netherlands, Belgium, Germany, Switzerland, and Oregon. Those developments prompt this reexamination of PAD forty-five years after Kamisar's landmark piece. I will argue that, while prohibitions on PAS and voluntary euthanasia ostensibly prevail, a variety of lawful means of hastening death exist that render the legal prohibitions of PAD anomalous.

Part I considers the theoretical tensions between the prevailing ban on PAD and the jurisprudence authorizing rejection of life support and administration of risky analgesics. How sound is the prevailing distinction between killing and letting die? And how convincing is the claim that any benefit from PAD would be outweighed by accompanying risks of abuse? Part II reflects on the ultimate bounds of legalization of PAD. Are the envisioned extensions of voluntary patient choice inevitable and, if so, are they as objectionable as portrayed? Finally, Part III reexamines opposition to any legalization of PAD in the light of existing lawful means of hastening death. I argue that existing commentary on PAD misconceives the moving force behind the legalization movement as compassion (relief of suffering) rather than provision of medical handling that allows fatally afflicted people to preserve their personal visions of a dignified death. Autonomy, constructive preference, (31) and dignity are the crucial objects. And those objects...