Law & Medicine

Physician-assisted suicide – an update


 

Question: Choose the best answer regarding physician-assisted suicide in the United States:

A. It is now legal in most states.

B. Under California law, assisting or causing one to commit suicide, including physician-assisted suicide, still remains a felony.

C. Both the U.S. Supreme Court and the New York Court of Appeals have held there is no constitutional right to physician-assisted suicide.

D. The American Medical Association is neutral on the issue.

E. Pain relief is the overriding reason for patients who request physician-assisted suicide.

Answer: C. We reviewed this topic in one of our regular columns in 2013.1 At that time, efforts to legalize physician-assisted suicide (PAS) appeared to be gathering momentum across the country, with four jurisdictions having legalized the practice, beginning with Oregon in 1994. The other states were Washington, Vermont, and Montana, whose Supreme Court held that there was no public interest reason against the practice.2

Since that time, California, Colorado, and the District of Columbia have joined the group. Currently, PAS – but not euthanasia – is legally available in these jurisdictions and in Switzerland, but both can be legally practiced in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.

All state statutes permitting PAS provide similar provisions and safeguards. Only competent individuals who are terminally ill, i.e., death expected within 6 months, can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Public support for euthanasia and PAS in the United States is said to have plateaued since the 1990s. But a significant number of Americans, 67%, still favor PAS, up from 56% a decade ago.3 However, not many patients resort to PAS – usually those with terminal cancers or neuromuscular conditions – and only a minority of physicians are participants.

For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.4 In Oregon and Washington State, less than 1% of licensed physicians write prescriptions for physician-assisted suicide each year. In contrast, about half or more of physicians in the Netherlands and Belgium reported ever having received a request, and 60% of Dutch physicians have granted such requests.

The California Department of Public Health reported that 111 terminally ill patients availed themselves of California’s End of Life Option Act in the 7 months after it became effective on June 9, 2016.

In a recent review on euthanasia and PAS for the period 1947-2016, Ezekiel Emanuel, MD, and colleagues noted that typical patients were older, white, and well educated, and pain was mostly not reported as the primary motivation.5 A large portion of patients receiving PAS in Oregon and Washington were enrolled in hospice or palliative care. Abuses have not been apparent.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including PAS, still remains a crime; for example, it is considered manslaughter under Hawaii state law §707-702.

In distinguishing between assisting suicide and withdrawing life-sustaining treatment, the U.S. Supreme Court’s landmark 1997 Vacco v. Quill decision emphasized issues of causation and intent.6 On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease; but if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things. On the other hand, a doctor who assists a suicide “must, necessarily and indubitably, intend primarily that the patient be made dead.”

In its companion case Washington v. Glucksberg, the Supreme Court held that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause.7

State supreme courts in Florida, New Mexico, and elsewhere have likewise rebuffed claims of any constitutional right to PAS. The latest court to so rule is in New York, which has a long history of criminalizing assisted suicide.8 The New York Court of Appeals recently addressed claims brought by three terminally ill individuals, several medical providers, and a nonprofit entity seeking a declaration that New York’s “assisted suicide” statutes exclude physicians from prescribing a lethal dose of drugs to terminally ill, competent patients.

The court unequivocally rejected such claims and affirmed that a physician who assists a suicide by prescribing lethal doses of drugs is subject to criminal prosecution for second-degree manslaughter. It refused to regard PAS as being different from assisted suicide in general, and it rejected the constitutional claim to assisted suicide by a terminally ill person. The state appeals court reiterated the U.S. Supreme Court’s distinction between refusing life-sustaining treatment and assisted suicide, the former being “at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions.” The New York Court of Appeals also noted that the state has a legitimate purpose and a rational basis for guarding against the risks of mistake and abuse.

These developments may signal a shift away from the legalization of PAS, as recently suggested in a Washington Post article.9 According to the end-of-life advocacy organization Compassion and Choices, none of the 27 states where such measures were introduced in 2017 passed them into law, including states such as Connecticut, Hawaii, and Rhode Island. In Central and Eastern Europe, support is decreasing, whereas the opposite is true in Western Europe.

U.S. federal lawmakers also appear to be pushing back. On July 13, 2017, the U.S. House Committee on Appropriations voted to block implementation of a “death with dignity” statute passed by the District of Columbia. Further, 11 House members – including 6 Democrats – have introduced a resolution asserting that PAS undermines a key safeguard that protects our nation’s most vulnerable citizens, including the elderly, people with disabilities, and people experiencing psychiatric diagnoses.10

The American Medical Association is steadfast in its opposition to PAS and euthanasia. In its latest Code of Ethics, the AMA reaffirmed its long-held position that “allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. … Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life.”11

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