Establishing a Right to Die

By JENNIFER MORAFATES – December 2014

On November 2, 2014, 29-year-old Brittany Maynard ended her own life by taking medicine provided to her by a doctor. Her story made headlines across the nation and stirred up debate on whether individuals should have the right to physician-assisted suicide. In Brittany Maynard’s case, she suffered from a terminal form of brain cancer. In early 2014, doctors gave her about six months to live due to her terminal condition.

Originally residing in California, a state that does not permit physician-assisted suicide, Maynard decided to move to Oregon, a state that grants residents the right to physician-assisted suicide. Before making the difficult decision to end her life, Maynard consulted with several medical experts about how she would die if she allowed the brain tumor to continue to grow, eventually causing her to die. After educating herself about the immense pain she could face in her last days, she decided she did not want palliative or hospice care. She wished to die in her own home, in her own bed, surrounded by her own family. She wanted to play her favorite music in the background and drift peacefully off to sleep. This is how she wanted to die. As she put it, she wanted to die with dignity.

Not only did Brittany Maynard’s story make headlines across the nation, but it also sparked debate on the issue of physician-assisted suicide. Maynard partnered with Compassion and Choices, a nonprofit organization that advocates for end-of-life options for patients. Maynard became an advocate for widespread adoption of a death-with-dignity law. Brittany explained that she was fortunate to have the family support and financial resources to move to a state that would allow her access to physician-assisted suicide. However, she recognized that many others with terminal illnesses do not have the resources or ability to make such an expensive move. She wished that the option for physician-assisted suicide would become available to more patients facing terminal illnesses no matter what state the individual resided in.

Physician-Assisted Suicide: A Fundamental Right?

When examining the issue of availability of physician-assisted suicide, the first issue to address is whether it is a fundamental right. The Due Process Clause of the United States Constitution specially protects fundamental rights; therefore, the federal and state governments cannot restrict a fundamental right unless the restriction is narrowly tailored to a compelling government interest. As it stands now, the Supreme Court of the United States has not recognized a fundamental right to physician-assisted suicide. In the 1997 case of Washington v. Glucksberg, the Court stated that the history of “[their] decisions lead [them] to conclude that the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.”

State Action

Although the Supreme Court of the United States has not recognized a fundamental right to physician-assisted suicide, the Court’s decision does not preclude states from recognizing the right for their own citizens. For instance, in 2013, a New Mexico state court recognized a fundamental right to physician-assisted suicide, stating, “[t]his [c]ourt cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying.” However, this case is currently being appealed. While pending on appeal, the state law banning physician-assisted suicide remains valid. States can also legalize physician-assisted suicide by legislative action. For example, four states, Oregon, Vermont, Washington, and Montana legalized physician-assisted suicide.

The four states that have legalized physician-assisted suicide can serve as a possible prototype for more states to follow suit and adopt a similar position. A court ruling enacted Montana’s legalization of physician-assisted suicide when it found a fundamental right within Montana’s state constitution. Because of the process in establishing this right, there are no rules or protocol in place for regulating the practice. Montana has unsuccessfully tried to pass legislation that creates guidelines. If other states were to legalize physician-assisted suicide through this method, they would likely encounter the same problem.

To the contrary, the other three states have legalized physician-assisted suicide through legislation. The legislation provides safety guidelines and specific protocols that must be followed. For instance, the patient must have a terminal illness that will cause death within the next six months. In addition, a consulting physician must confirm the diagnosis, and the patient must be deemed competent to make the decision. Additionally, there is a multi-step process in requesting the medication: (1) patient makes a first oral request to physician; (2) fifteen-day waiting period; (3) patient makes a second oral request to physician; (4) patient makes a written request to physician; (5) forty-eight-hour waiting period; (6) patient may pick up drugs from the pharmacy. This protocol addresses some of the concerns with legalizing physician-assisted suicide, but not all issues can be addressed so neatly with legislation.

Controversy Surrounding Physician-Assisted Suicide

The controversy surrounding physician-assisted suicide centers mostly on moral issues and the fear of a slippery-slope phenomenon. These issues prove to be more difficult to resolve as they center more on personal beliefs and fears.

The Morals of the Issue

The first major objection to physician-assisted suicide focuses on its morality.   Within this category, the distinction between passive euthanasia and active physician-assisted suicide becomes relevant as it relates to morals. Additionally, one should also consider the financial aspect of such choice.

Passive euthanasia is the denial of life-saving medical treatment. On the other hand, physician-assisted suicide involves actively doing something to hasten or bring about death of the patient. The Supreme Court of the United States has recognized a right to passive euthanasia and refusal of medical treatment. Some argue that refusal of treatment is essentially the same thing as active euthanasia because it produces the same outcome. Thus, individuals argue the two remain morally equivalent and if passive euthanasia is allowed, active euthanasia should be as well. However, others argue that there is a moral distinction between the two. Passive euthanasia is a way to let nature take its course and the patient dies from the illness. However, with active euthanasia, a physician brings about death in an unnatural form that would not otherwise have occurred. Hence, passive euthanasia and active euthanasia are not moral equivalents, and just because passive euthanasia is permissible, it does not follow that active euthanasia should be as well.

The financial aspect of physician-assisted suicide has two perspectives. First, there is the issue of perverse incentives in a patient’s treatment. Studies show that it is less expensive to end a terminally ill patient’s life than to provide palliative care to the patient. The fear, of course, is that physicians or insurance providers could coerce or pressure patients into making a decision to end their lives prematurely. The second issue relates to a patient’s reasoning behind his decision: if a patient is responsible for high out-of-pocket expenses, he may choose to end his life early in order to save money that could then pass to his heirs instead of being spent on medical treatments. However, while physician-assisted suicide is less expensive, statistics also demonstrate that the costs savings are miniscule and would amount to less than one percent of the country’s annual health care costs. Furthermore, there is evidence that individuals who opt for physician-assisted suicide end their life only a few weeks prematurely, leading to very little financial savings.

Slippery-Slope Phenomenon

The second major objection to physician-assisted suicide is the slippery-slope argument. Here, people fear that if states were to allow voluntary physician-assisted suicide, it would eventually lead to involuntary euthanasia.

While the link leading from physician-assisted suicide to involuntary euthanasia might seem unfathomable, the slippery-slope argument is not as attenuated as it may first appear. The argument is premised on the idea that if states allow physician-assisted suicide, it is permitted because in some instances euthanasia is beneficial to the patient. This assertion is incontrovertibly true because it is a reason used to support and advocate for legalization of physician-assisted suicide. Once euthanasia can be perceived as a benefit in some instances, this logic can be warped to justify involuntary euthanasia in cases where a patient is incompetent to make such decisions, like a patient who is tormented by a chronic mental illness.

While the slippery-slope concerns are valid, conceivably, there are ways to draw clear lines that permit only voluntary euthanasia. For example, the state guidelines mentioned above clearly protect patients who are unable to consent to euthanasia. However, there is still the concern that if voluntary euthanasia was to become commonplace, perception of it might change; then possibly, the idea of a physician or family member making that decision for an incompetent patient might not be as abhorrent as it is now, and the guidelines might be altered accordingly.

While there are valid reasons to support physician-assisted suicide, there are also valid concerns about ramifications of legalizing the practice. Although only four states currently permit physician-assisted suicide, there is pending litigation on the issue in New Mexico. Depending on how that case resolves itself, it may signal a shift in public policy regarding physician-assisted suicide. Brittany Maynard’s emotional story and emphatic advocacy in support of physician-assisted suicide may prove influential on public opinion, which may lead to more state legislatures permitting physician-assisted suicide.