People With Pipes: a Question of Euthanasia

• Publication year: 1992

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 2WINTER 1993

People With Pipes: A Question of Euthanasia

Susan Machler(fn*)

No man is an island entire of itself; every man is a piece of the continent, a part of the main . . . . Any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.(fn1)

When I was a small child, my dad taught me a lesson in euthanasia, about choosing the time of dying. I grew up on a large farm in central Montana. One evening when I was very young, not even in school yet, I went with my dad to pen up some sheep and lambs for the night. It was a beautiful early summer night, one of the first evenings where you could be comfortable without a jacket. After having been bundled up all the long Montana winter, feeling warm air moving across my bare skin was freedom itself.

In the part of Montana where we live, the earth is flat, and the sky is a big dome overhead. On this night with my dad, the top of the dome was deep blue. The blue turned lighter toward the edges of the sky, except in the west where it was pink. Big, broad brush-strokes of high, pink clouds came streaking out of the northwest, as if they were hurrying, like almost everything else, to get across Montana on their way to some other place. I heard birds and lambs. I smelled the creek, the wild roses, and the sheep.

As my dad chased the sheep through the gate, one old ewe ran right into the gatepost and fell. She got up very slowly, and when she did, she was shaking and drooling and stumbling. It was obvious that she was blind.

My dad walked around the sheep looking carefully at her. Finally, he put his hand on her head and looked up at the sky. He bit his lip. He kicked around in the tall grass by the fence and picked up a piece of metal pipe about three feet long. He hit the sheep on the back of the head with it. She dropped to the ground. After a few seconds, the sheep stopped breathing, but she shook for a long time.

When she stopped shaking, my dad crouched beside me. He said, "You understand she's dead? When you live with animals, you learn that things die. You will never belong on a farm until you learn this."

So it is with people. It is simply not true that we can refuse to "play God," to refuse to make decisions about death. People make life and death decisions everyday about medical treatment, about what kind of medical treatment, about who should receive medical treatment, and, increasingly, about who should pay for medical treatment. As medical knowledge becomes more technologically advanced and more expensive, these decisions will become more common and more complex.

Moreover, an increasing number of people want to make their own decisions regarding medical treatment, which has led to a growing movement to create rights for the dying. Nancy Cruzan is a symbol of one concern of this movement-the removal of life support systems from comatose patients.(fn2) The work of Dr. Jack Kevorkian,(fn3) the Hemlock Society,(fn4) and the writers of the Washington State Death With Dignity Act(fn5) represent another concern-creating a legal mechanism whereby terminally ill patients may commit suicide with the help of their doctors, so-called active voluntary euthanasia or physician-assisted suicide.(fn6)

Courts have responded to the needs of dying patients and their families by defining a right to die under certain circumstances.(fn7) Legislatures have also responded by passing statutes that allow life support equipment to be withdrawn under certain circumstances.(fn8) Many statutes adopt in whole or in part the Uniform Rights of the Terminally III Act.(fn9)

The current statutory and common law therefore reflect the needs of comatose patients or those for whom death is imminent.(fn10) These laws also respond to the needs of families and the medical profession.(fn11) Safeguards are provided in the statutes to protect the patient from mistake and undue influence by others through requirements of a directive signed by the patient and witnessed,(fn12) an independent diagnosis of terminal condition by two physicians before the directive becomes effectuated,(fn13) and a reasonable effort by the attending physician to determine if the directive complies with the statute and reflects the patient's desires.(fn14)

However well these "living will" or "natural death acts" may work for comatose patients, or those for whom death is imminent, these statutes and their underlying policies will not serve those who would choose physician-assisted suicide. This is true for three reasons. First, the group of comatose patients, or those facing imminent death, is limited by the requirement that they must be receiving some sort of medical treatment, usually artificial life supports, which can be withdrawn or withheld.(fn15) Patients who request physician-assisted suicide may not be receiving any treatment, which therefore makes the group of qualified patients less easily defined.

Second, the patient who would choose physician-assisted suicide is conscious and physically able to express his or her intent to commit suicide. Such a patient need not be protected from mistake by others as to his or her consent, but instead may need protection from a hastily made decision on his or her own part. A competent patient may also need protection from too much protection by the state, which may interfere with his or her right to choose physician-assisted suicide.(fn16)

Third, the law does not view comatose patients, or patients on artificial life support systems who are near death, as com-miting suicide.(fn17) But competent patients who request physician-assisted suicide are clearly commiting suicide. Consequently, any law that allows physician-assisted suicide must define when suicide is acceptable and not mere self-destructiveness.

This Comment will focus on the constitutional and common law backgrounds of suicide and the right to refuse medical treatment, the need for well-articulated policies on right-to-die issues, and a possible legislative solution that will balance the needs of dying individuals with society's interest in preventing abuse. Until we develop policies regarding physician-assisted suicide, we are leaving the needs and the protection of the dying to "people with pipes." We are leaving policymaking to whomever wins the battle between a doctor who invents suicide machines and a prosecutor who wants to put the doctor in jail for an act that is not a crime.(fn18) We are leaving the resolution of the euthanasia question to do-it-yourself books(fn19) and physicians who practice euthanasia underground.

I. Physician-Assisted Suicide: The Problem and the Problem With Solutions

Darkling I listen; and for many a time I have been half in love with easeful death, Called him soft names in many a mused rhyme, To take into the air my quiet breath; Now more than ever seems it rich to die, To cease upon the midnight with no pain . . . .(fn20)

A. The Problem

As the examples provided below demonstrate, the interest in physician-assisted suicide is not limited to organizations such as the Hemlock Society. Physicians and patients who have never heard of the Hemlock Society have assisted and asked for assistance. In fact, there has been enough interest to put physician-assisted suicide measures on the ballots and before the legislatures in Washington, Oregon, California, Florida, and New Hampshire.(fn21)* In March 1990, the New England Journal of Medicine reported the story of a patient named Diane whose physician, Dr. Timothy E. Quill, helped end her life.(fn22) A grand jury refused to indict Quill.(fn23) * In May 1991, a Detroit jury acquitted Bertram Harper of Loomis, California, of second-degree murder in the death of his wife who suffered from liver cancer. Mr. Harper, his wife, and her daughter traveled to Michigan where there was no law at the time prohibiting physician-assisted suicide. Mrs. Harper died in a hotel room after swallowing sleeping pills and tying a plastic bag over her head.(fn24) * In June 1991, Dr. Jack Kevorkian revealed that he had assisted in the death of Janet Atkins of Portland, Oregon, an Alzheimer's patient, with his own invention: a suicide machine that he had placed in the back of a van. Dr. Kevorkian was not charged with a crime, but the judge ordered him never to use his suicide machine in Oregon again.(fn25) * In October 1991, Dr. Kevorkian assisted two Michigan women in ending their lives. Dr. Kevorkian's license to practice medicine was revoked in November 1991, and he was charged with murder on February 6, 1992.(fn26) * In November 1991, voters in Washington narrowly rejected a physician-assisted suicide initiative. Only fifty-four percent of the voters opposed the initiative, which would have legalized physician-assisted suicide for those with less than six months to live. If the initiative had passed, Washington would have been the only place in the world to legalize active voluntary euthanasia for anyone medically qualified.(fn27) * In January 1992, a national magazine featured the story of news reporter Betty Rollin who helped her mother commit suicide and escape the last stages of ovarian cancer.(fn28)

The problem is that these examples do not represent a mere passing fad. First...