Monday, June 04, 2007

Kevorkian Unbound

The release from prison last week of Jack Kevorkian on condition that he not assist in any further suicides is as good an occasion as any to reflect on the decade since the Supreme Court rejected a constitutional right to physician aid in dying in Washington v. Glucksberg and Vacco v. Quill. (Full disclosure: I assisted the lawyers challenging the laws in both cases and also co-authored a brief on behalf of a coalition of state legislators arguing for a constitutional right subject to reasonable state regulation). Kevorkian himself has always been at best an ambiguous figure among those (like myself) who favor some legal right of terminal patients to hasten or ease their deaths. He had the courage to stand up unequivocally for individual autonomy but he also appeared to act recklessly. Acting outside the law, he did not insist upon or follow the sorts of guidelines that one would want to ensure that a patient's choice was truly voluntary and considered.

Kevorkian's precise impact on the legal debate is difficult to know, but I'm tempted to think he did more harm than good---much as the religious conservatives who sought to keep Terri Schiavo connected to a feeding tube after a judge determined that this was contrary to her wishes when competent likely sparked a somewhat libertarian backlash against that position. (Yes, I know that these are considered different issues---disconnection from "artificial" means of prolonging life versus "active" measures to hasten death, but thoughtful people on my side in this debate deny that this distinction actually invokes the act/omission distinction in a persuasive form. A third party who, without the patient's consent, pulled the plug on a patient who was dependent on life support, would not thereby have "omitted" anything; he would have "acted" to commit murder; the key in these situations, my side says, is the presence or absence of fully informed consent, not a bogus invocation of the act/omission distinction.)

Still, whether or not Kevorkian is responsible, I do think there has been a marked shift in public debate on this issue over the last generation and a half, since Karen Ann Quinlan's tragic case first made headlines (and yes, same caveat about the non-distinction between "pulling the plug" and physician-assisted suicide). In those days, people who argued against a right to discontinue life-prolonging medical treatment and against physician-assisted suicide relied in large part on what I would call "religious" arguments to the effect that no one has a right to end his or her own life because life is a precious gift from God. One hears a secular version of this argument in Chief Justice Rehnquist's opinion in the Cruzan decision (another pulling the plug case), when he says that "a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual." At least in public debate, one rarely hears this sort of claim any more these days. Instead, arguments against physician-assisted suicide now typically focus on the potential negative consequences of legalization: that for some people a right to die will become a duty to die, and that this will be most true for those whose lives are least valued by society as a whole.

These objections cannot be dismissed but they can be met in one or both of two ways. The first is deontological: Even if it is true that the cost of recognizing X's right to hasten his death when his suffering becomes unbearable would be to make it somewhat more likely that some number of other persons will be pressured to die, we might think that this is no reason to require X's continued suffering. From X's perspective, the prohibition acts as a legal imposition of an extraordinary duty to rescue strangers. The second way to meet the objection is consequentialist and empirical. A NY Times story on Friday correctly noted that "[i]n the years Mr. Kevorkian spent in prison, little has changed legally in this realm across the country." Yet now, unlike when Kevorkian went to prison, we have a rough sense of what a regime of legal physician aid in dying looks like in the United States.

In Oregon, where physician aid in dying has been legal for the last eight years, there has been no rash of physician-assisted suicides and thus no reason to suspect that impatient heirs are using the law to dispose of their aging (and asset-consuming) potential benefactors. Moreover, the law legalizing physician-assisted suicide in Oregon has been credited with increasing use of hospice and other end-of-life palliative care. (See a California group's discussion of the Oregon experience here.) Thus, should American legislators and voters wish to make a reality-based decision about the risks and benefits of legalizing physician aid in dying, now they can do so.