THE RIGHT TO DIE IN THE USA
By Professor Daniel C. Maguire
There are three free states in the US...."free" that is in that you are free to accelerate your dying in cases of terrible final suffering with the help of a physician's prescription. Those states are Oregon, Washington, and Montana. In 47 states you can't do that. Just three weeks ago at this writing, in a case reported to me by a Washington State physician a patient in Washington ended his life by self-administering the drugs prescribed for him. He was suffering from ASL, also known as Lou Gehrig's disease. In this disease, your mind can remain clear but you gradually lose all control over your body. In its final phases you need to be fed by a stomach tube and you may die in a horrible way when your lungs can no longer function.
When this patient had lost control of one arm he took the prescribed drugs and died peacefully-and legally. He could not have done that in the other 47 states.
The Wisconsin Medical Society recently entertained a motion (Resolution 14) to urge Wisconsin to institute the same legal regulations in effect in Oregon. The ethics Council of the society invited me as a professional ethicist to testify in favor of that. The Council voted against any such change "at this time." My testimony follows:
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PROHIBITION
OR PATIENT CHOICE
Testimony by Professor Daniel C. Maguire, Marquette University:
I congratulate the Wisconsin Medical Society for discussing the issue of our moral dominion over the dying process. The historian Arnold Toynbee chided Americans saying we look on death as an un-American activity even though some two million American get away with it every year. To discuss it in such a context is an act of sanity and courage.
Hilaire Belloc joined the chiding with this ironic verse:
Of old when folks lay sick and sorely tried
The
doctor gave the physic and they died.
But here's a happier age for now we know
Both
how to make folks sick and keep them so.
When I published my book DEATH
BY CHOICE in 1973 and in its second edition in 1984, I found that the most common
objection to mercy death was the objections of many names such as : the "parade
of horrors," 'the domino effect," "the finger out of the dike,"
"the camel's nose under the tent," "the slippery slope," and
"the wedge" objection. This same objection arises whenever a new extension
of moral freedom is proposed, as we see in the protest against same sex marriage
which it is alleged would lead to the collapse of heterosexual marriage and other
horrors.
This objection again dominates the negative reactions to Resolution
14. The objectors focusing particularly on the Oregon experience claim many abuses.
The unproved and unprovable assumption of the objectors is that abuses can be
forestalled by keeping mercy death illegal. I would call this legalistic naivete.
When there is a strong consensual base of approval for an activity, declaring
it illegal does not make it disappear. This is the same naivete that thought that
abuses of alcohol could be stopped by Prohibition and abortions could be stopped
by banning them. One province in Australia legalized for a short period physician
assisted dying. When they were overruled, the practice of accelerating dying did
not stop. It went underground. In a poll of Australian nurses, 66 percent said
they had been asked by patents to accelerate he dying process and 85 percent of
the group had complied. ("Euthanasia Down Under," in Hastings Center
Report 22 (Nov./Dec.. 1992), 3 ) As Oregon, Washington, and Montana illustrate
there is a strong support for the right to accelerate dying in certain cases and
to get physician assistance in doing it.
When I first published my support for mercy death I was invited to present my position to the annual convention of the Philadelphia Bar and bench Society. Another speaker was a physician and professor of family medicine at Jefferson Medical School in Philadelphia. After my presentation he announced to the 450 lawyers and judges from his city that he had been accelerating dying for patients for years. When a patient was in terrible pain and praying for death, this doctor, without going through any consent process, instituted what he called his "London cocktail;" a formula he developed when practicing in England. The result of the formula was quick relief of pain followed by deep sleep and death in about four days. The doctor's wife was seated in the audience beside a friend of mine and she commented to my friend: "They never last more than four days." The doctor then told the lawyers and judges that because they did not know for whom he did this they could do nothing and they nodded in agreement. He acted on his interpretation of the patient's mind. Clearly an abuse.
A relevant example from abroad: when I wrote my Death By Choice book I called the Uruguayan embassy to ask if their 1933 law was still in effect. That law, in cases of assisted dying, said the case must be brought before a judge. If there were no suspicious circumstances, if the assistance was offered out of compassion and induced by repeated requests of the person, the judge could dismiss the case since it would not be seen as a murder. I asked if the law were still in effect. The embassy person said yes, and then added with polite hesitancy. "It spares us the embarrassment of your system" where people take things into their own hands secretly and without review.
The objectors to Resolution 14 do well to highlight documented abuses (not urban legends or gossip) that attend the legalization of accelerated dying. They do not do well in saying that the possibilities of abuse require an absolute prohibition. As I have said, absolute prohibitions that run counter to a consensual base in the society do not work. The practice goes underground without the oversight of law. That is especially the case if there is strong ethical and religious warranty for the issue in question...as there is regarding accelerated dying. Better wisdom is found in the old Latin maxim: Abusus non tollit usum, which can be translated: because something can be abused does not mean that it cannot be intelligently used.
"Respectable Debate in a Pluralistic Society"
My response to the "slippery slope" "parade of horrors" objection is this: in social ethics, issues that fall within the realm of "respectable debate in a morally pluralistic society" should not be outlawed. I develop this in my forthcoming book Ethics: A Complete Method for Moral Choice, from Fortress Press. There are three criteria for "respectable debate." If those criteria are met, it is unethical and ineffective public policy to outlaw it. The prohibition of alcohol expanded organized crime; the prohibition of all abortions led to high female mortality, especially among poor women.
The three criteria are: (1) solid reasonable arguments that (2) appeal to a large number of people in the society, and (3) are approved by mainstream humanitarian institutions. Examples of bad prohibitive law are the Prohibition of alcohol or contraception. Examples of good prohibitions fill the law books: such things as forbidding homicide as a form of private conflict resolution or forbidding religious fundamentalists keeping snakes as a form of faith testing in unguarded settings. These meet none of the three criteria.
On the issue of accelerating a dying process that is already under way, there are (1) solid reasonable arguments that (2) appeal to a large number of people as well as a large number of religious and other ethicists, and (3) have been institutionalized and made part of law with the backing of humanitarian institutions here and abroad. From the perspective of social ethics, this is a reasonable argument to support a law permitting this exercise of patient autonomy.
To suppress freedoms that are well endorsed and that meet the above criteria is fascistic in spirit and an effort to impose an arguably minority view on a whole society. Furthermore it does not work.
The world religions always enter into issues of life and death and the world religions, like the American public and like the members of the Wisconsin Medical society are divided on this issue. All religions are concerned for the preservation of life, but many of them support the acceleration of dying in certain circumstances. Thus in the Morgan and Lawton study Ethical Issues in Six Religious Traditions (Edinburgh University Press,1996) approval is found in Buddhism, Christianity, Hinduism, Judaism, but not in Islam or Sikhism. Interestingly, given the history of this issue in the Netherlands, the Reformed Churches of the Netherlands issued a report in which it said that taking a life in a mercy death situation "is not necessarily without justification in the light of faith."(Maurice A. M. De Wachter MAM, "Euthanasia in the Netherlands." in Hastings Center Report, 22, March-April 1992) 27)
Questions for Physicians and the Wisconsin Medical Society
The question that arises for physicians is whether they can in any way assist the patient in this ethically and religiously approved exercise of patient autonomy. The question before the Wisconsin Medical Society is whether they should publicly oppose the availability of this choice for patients who claim religious and ethical authority for this choice and thus, in effect, lobby against liberalization of law.
At the present time the Wisconsin Medical Society has publicly sided with the conservative ethical position on this topic: "ETH-20 STATES: The Wisconsin Medical Society believes that the intensional termination of the life of one human being by another-mercy killing or euthanasia-is contrary to public policy, medical tradition, and the most fundamental measure of human value and worth.." (HOD. 0404)
There are other ethical views on this in this medical society and in this state. There are good reasons and good authorities on both sides of this issue.
The American Medical Society takes a similarly restrictive view on the choice of acceleration of the dying process but they are not as dogmatic as the Wisconsin Medical Society. They state "A more careful examination of the issue is necessary." The risks of physician assistance in this moral choice of patients are "too great....at this time." (AMA: H-149.966, (4)
This acknowledges that the issue is freely debated in this society and yet they insist on the most conservative view as normative for all, even those patients who on ethical and religious grounds disagree and feel that this infringes on their moral autonomy.
The issue comes down to two options: Prohibition (which is now the law) or Patient Choice. Dr. Kenneth Stephens in testimony to the Council worries about "extreme self-determination and limitless autonomy." That's too simple. The real question is whose autonomy?.... the autonomy of patients who would exercise this moral and religiously endorsed freedom, over against the autonomy of the prohibitionists who would ban and lobby against anyone ever exercising this freedom legally.
At the present time, the Medical Society of Wisconsin is in the latter camp since they have put their authority on the side of prohibition. The currently official statement of the Medical Society is saying to me, to many professional ethicists, to many of its own members, to religious authorities in Judaism, Buddhism, Christianity, and other religious that our view of this issue is "contrary to... the most fundamental measure of human value and worth." Do you as a Society want to say that to us? Would you not prefer a law that would honor our consciences as well as that of the prohibitionists? The prohibitionists need never use this freedom even if it were legal. The question is whether they have the right to deny that freedom to the majority of citizens who disagree. That is the choice before you.
Other Lessons from Ethics
Space and time permitting I would discuss "the conscience clause, and how it would reply. Briefly, were this freedom to accelerate the dying process made legal, physicians could claim conscientious objection but since it would be a public law they would be morally bound to refer the patient to another doctor. Otherwise, they are comparable to those pharmacists who will not fill a prescription for a contraceptive and will not refer the request to another pharmacist. This amounts to saying in a pluralistic society that a private conscience can trump the law and block the use of that law by other citizens.
Time permitting I would also discuss the ethical category of "negative absolutes," i.e. certain actions or practices that are intrinsically evil, with no imaginable exception. Ethicists don't find many of them. Nuclear war, yes. Rape, yes. But assistance to accelerated dying is not in that category. There is perennial wisdom in the view of Aristotle and Thomas Aquinas that "human actions are good or evil according to the circumstances." (Thomas Aquinas, Summa Theologiae, I II q. 18, a.3) There is also wisdom in knowing , again in Aquinas' words, that practical moral principles are applicable most of the time (in pluribus) but that there are exceptions. (Ibid. I II Q. 94). Ethics would also press us to acknowledge that "suffering" is broader than "pain," and that not all unbearable suffering responds to a morphine drip... and that different persons have different levels of tolerance.
It is a good principle to company with the dying, to comfort then, and keep them with us as long as possible. Life is the good thing and the precondition of all good things. But the life that is good also bears the mark of the tragic. There are times when the ending of life is the best that life offers, when death which is ever the enemy, becomes our last best friend.