Culture War

Death by Doctor: Coming Soon to a State Near You

Assisted-suicide laws are spreading across the country.
November 29, 2019
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This past September in the Netherlands, the Hague District Court acquitted a doctor accused of wrongfully euthanizing a woman. The doctor put drugs in her coffee and her relatives held her down while the doctor carried out an injection of a fatal dose of drugs, the Associated Press reported. This passed muster because the woman, who had Alzheimer’s, had previously requested euthanasia. Upon hearing the verdict, courtroom spectators broke out in applause. Think it could never happen here? Think again. The law in the Netherlands, which allows euthanasia, goes further than physician-assisted suicide (PAS) laws in the United States, but both kinds of laws share a basic premise: a deeply vulnerable person decides when it’s time to die, and a doctor conveys the means. America is now well down that road.

Ten U.S. jurisdictions permit terminally ill patients to kill themselves with a doctor’s help. Two of those states—Maine and New Jersey—enacted laws just this summer. Four others have PAS arising from legislative action (California, Vermont, Hawaii, District of Columbia), three by referenda (Oregon, Washington, Colorado) and one by court decision (Montana).

It’s a fractious issue; the laws and referenda passed by thin margins. Still, the grassroots “death with dignity” movement shows no sign of slowing down. Another 18 states are considering assisted-suicide laws. The trend is not limited to red or blue states. In this era of fractious politics, it seems at least some Americans are finding common ground: They want to kill themselves and expect doctors to help them.

New Jersey has the nation’s most recent assisted suicide provision, and a Catholic governor signed it into law. Its proponents, like those of other states, loudly asserted their “rights.” The U.S. Supreme Court, however, has said there is no such right: In Washington v. Glucksberg (1997), the Court held that suicide is not a protected liberty interest under the Due Process Clause. In another case handed down the same day, however, Quill v. Vacco, the Court ruled that New York’s ban on physician-assisted suicide didn’t run afoul of the Equal Protection Clause. 

Here’s how a typical PAS law works. A patient has six months or less to live. A psychologist deems him mentally “capable.” A doctor must ask him, on two occasions, if he wants to die. The patient—this is crucial—puts the lethal pill in his mouth himself, though some laws are not entirely clear about this. And the suicide must be witnessed. These measures create the aura of independence around the deathbed. 

PAS laws are carefully crafted by lawyers and politicians to keep the whiff of euthanasia from fouling the proceedings. Yet PAS and euthanasia are close cousins. PAS laws are separated solely by that “autonomous” hand gesture. Historically, PAS and euthanasia are closely linked medically, philosophically, and politically. The late Jack Kevorkian—the unconscious id of the right to die movement—knew this, and was blunt about it. 

In 1990, Dr. Kevorkian famously provided his mobile death service with a gizmo that released carbon monoxide. His “services” eventually landed him both in prison and the media spotlight, jump-starting a national conversation about the role of doctors and patient suicide. PAS laws were too tame for Dr. Kevorkian because they ignored deathbed reality: Some sick patients can’t manage the pill-pop on their own. 

Who’s Using PAS
A common trope among right-to-die advocates is that patients are driven by unbearable—and untreatable—physical pain. But data collected from states where assisted suicide is legal show that’s not often the case. 

Patients with private insurance are far less likely than patients on Medicare or Medicaid to commit suicide with PAS, data from Oregon and Washington reveal. The majority are elderly people with cancer, but pain is not what drives them. 

During the first three years of PAS in Oregon—from 1998 to 2000, when Oregon was the only state with PAS on the books, and back when palliative care was less effective than today—out of 70 patients who availed themselves of physician-assisted suicide, pain was not given as priority reason, the Oregon Public Health Division reported. Most cited concerns about being a burden, loss of bodily function, and autonomy. 

Since then, we have continued to see reasons other than pain as the primary motivations for patient suicide in Oregon. Between 1998 and 2015, 90 percent of patients choosing PAS in Oregon reported that they feared being “less able to engage in activities making life enjoyable,” and losing “autonomy,” the OPHD reported. Over the same period, about a quarter of PAS patients reported that fear of pain is a factor in the decision. Data from Washington in 2018 shows PAS patients cited loss of dignity and autonomy as leading reasons for wanting to commit suicide. Despite these anxieties, almost none of the patients were referred for psychiatric evaluation. 

When we offer such patients a pill and a quick death, we not only fail them on a human level, but we fail society on a policy level. Every death by PAS creates a model for insurance companies of a cheap, efficient alternative to humane—and more costly—end of life care overseen by physicians. One can now google “How much does physician-assisted suicide cost?” Here’s a hint: Not much.

The data that has emerged from Washington and Oregon is consistent with the clinical observations of Dr. Yosef Glassman, a Harvard-trained doctor practicing in New Jersey who is board certified in geriatric medicine. 

“Often it is those with existential pain that utilize these laws, versus true physical pain, which can be effectively treated,” said Dr. Glassman. 

Glassman was a plaintiff in a lawsuit to stop New Jersey’s new PAS law. The suit challenged the law’s constitutionality on the grounds that it interferes with Dr. Glassman’s fiduciary duties to his patients and violates his First Amendment rights “to freely practice” his religion in which “human life is sacred and must not be taken.” His lawsuit briefly succeeded in blocking implementation of the law in August, but that lower court ruling was overturned and the state supreme court refused to hear his emergency appeal.

A Suicidal Nation
Over about the last 20 years, suicide has both become more normalized in our culture and also responsible for a higher percentage of deaths, to the point that it’s the 10th leading cause of death in the United States.

In 2017, the most recent year for which data is available, 47,173 people in America killed themselves, the Centers for Disease Control found. In Montana, which has the highest suicide rate in the nation, suicide is about as common as succumbing to Alzheimer’s or diabetes, the CDC says.

The CDC statistics on rates of American suicide don’t include death by PAS. The “CDC does not track or have information on physician assisted suicide,” Julie Eschelbach, Health Communications Specialist at the CDC, said in an email. Physician-assisted deaths are recorded “as the terminal illness,” she said.

The Road to Euthanasia
Kevorkian was typical of early-1990s right-to-die proponents: He unabashedly favored euthanasia. Early activists advocated for assisted suicide and euthanasia, but realized that was too radical. They dialed it back and came up with a gentler message: “death with dignity.” The focus shifted away from euthanasia to having the doctor as an incidental helper for an empowered individual—who just happens to be at death’s door. (The Death with Dignity National Center did not return repeated requests to comment on this article.)

That’s a slippery slope to full-on euthanasia. Canada and the Netherlands provide cautionary tales. Canada has had PAS since 2016 and is considering extending it to children, according to the National Post. The Canadian government has asked a group of experts that includes doctors and ethicists to study the issue and they have published an exploration of the topic in a medical journal. The government also surveyed pediatricians to get a sense of their views. The survey revealed that many pediatricians had been approached by parents of severely disabled children requesting to end their lives—which would be euthanasia. 

In the Netherlands, euthanasia occurred under the radar before it was legalized in 2000. According to the Patients Rights Council—a U.S. based organization critical of physician-assisted suicide and euthanasia—the law permits doctors to end a life for patients with “psychic suffering” or even “the potential disfigurement of personality.” Government statistics show that euthanasia now accounts for 4 percent of deaths in the Netherlands.

In 2014, Belgium made physician-assisted suicide available to minors.

With all this death-for-the-asking, Europe now has a “death tourism” problem. “Going to Switzerland” has become a euphemism in the U.K. for seeking physician-assisted suicide, according to Medical Daily.

Do . . . Some Harm?
At present there are no indications that American doctors will go as far as their European counterparts. But there has been movement away from the “do no harm” admonition of the Hippocratic Oath. About a third of U.S. medical schools opt for an oath that doesn’t contain that provision, according to a 2009 survey. Time will tell how the PAS laws impact doctors and medical practice.

Meanwhile, Glassman and his co-plaintiffs returned to court earlier this month with their lawyers, arguing once more against New Jersey’s new PAS law. According to NJ.com, an assistant attorney general argued that Dr. Glassman and the other plaintiffs lack legal standing for the lawsuit, since they “have not suffered any harm” themselves.

There are some cases in which the harm or injury ends before a person can seek judicial relief, but is the sort of harm or injury likely to occur again. This was the sort of injury the U.S. Supreme Court had in mind in Roe v. Wade when it famously held that Roe, who was no longer pregnant but, like many women, might someday be in such a position again, presented facts “capable of repetition yet evading review.” Such a case, the court, said, may be heard.

In Glassman’s case, the people harmed by the new law are patients. As the data show, they are very sick, typically old, often poor, and frightened. The harm they experience will be most certain upon their death, when it will do them little good to have the right to sue. That sounds like a situation capable of repetition yet evading review.

Rudolf Virchow, the great 19th-century German doctor and scientist, wrote: “The doctor is the natural attorney for the poor.” Who is more impoverished than a patient who believes he has no better option than death? Who better to plead his case than a doctor who would “do no harm”?

Carla T. Main

Carla T. Main, a resident of New Jersey, is a former associate editor of The National Law Journal.