Wednesday, July 05, 2017

An Unqualified Right to Die

by Sherry F. Colb

In my column for this week, I discuss a case in which a judge found a woman guilty of involuntary manslaughter for texting her boyfriend messages repeatedly urging him to commit suicide immediately, which he ultimately did. The column raises some potential objections to holding the woman who texted messages accountable for the actions of her boyfriend, including the freedom of speech, the right to die, and the notion that the victim's own actions superseded what his girlfriend said beforehand as the causal agent of his death. The column concludes that the judge was right to hold the girlfriend accountable, notwithstanding the various objections.

In this post, I want to elaborate on my view that a competent individual (i.e., one who understands what he is doing) ought to have a right to die, a point I make in passing in the column when discussing the right to die. The Supreme Court, in Washington v. Glucksberg, has rejected a right to physician assistance in dying, even for the terminally ill, and only six states and the District of Columbia recognize a right to assistance in dying. In those states, moreover, the right extends only to the terminally ill. I would recognize a right to die (and to assistance in dying) for anyone who wishes to end their life.



How can I say this when I concluded in my column that it was right to convict a woman of homicide in connection with the suicide of her boyfriend? My view of that case is that the victim was ambivalent about whether he wanted to die and his girlfriend, rather than "helping" him to fulfill his wishes, pushed him hard and consistently to do something he had reservations about doing. My view is not that suicide should be encouraged or pressured but that when a person has had an opportunity to think about the choice, he or she should be allowed to carry it out in a painless fashion and with the help of those willing to assist.

As I have said elsewhere, I think that a right to die that is limited to a particular population (such as the terminally ill) carries an invidious implication--that the law regards people in that population as reasonably wanting to die. That is, when the law prohibits suicide to everyone except members of group X, the law necessarily is saying that people in group X have lives that are not as worth living as people outside of group X.

To understand this implication, consider the following hypothetical rule: no one is allowed to commit suicide except people who are paralyzed. Such a rule would necessarily carry the message that people who are paralyzed ought to be able to die because their lives are not likely to be as fulfilling and worthwhile as the lives of people who are not paralyzed. That is what it means to give one group of people an option to die that no one else has. Similarly, if a strong and effective pain medication were made available only to people suffering from acute back pain, that would be a way of communicating that acute back pain is worse than other sorts of pain and that therefore its sufferers are more entitled to the relief possible from the special pain medication. Likewise, limiting the right to suicide and to assistance in dying to the terminally ill necessarily communicates the idea that people who are terminally ill might logically and reasonably want to die. Death, in other words, is a sensible option for people who are terminally ill.

My view is that anyone who wishes to live has a life that is worth living, and that includes people who are suffering from a terminal illness. There is no reason to create a hierarchy of lives and their worthiness by blocking off the terminally ill as the exclusive holders of a right to die. We might look at a young and healthy person and think that he has everything to live for, but he wishes to die because, for example, he suffers from a depression that has failed to respond to any treatment. Every day, he wakes up in emotional agony, and the remainder of the day brings no relief. The only time he feels at peace is when he is about to fall asleep, after having taken a sleeping pill. He lives like this for years, and he craves death every moment of every day. He should be allowed, after a waiting period and after professionals have made sure that he understands the stakes, to take his own life in a peaceful and humane way.

I was watching a television show a few weeks ago in which one of the characters, after a long struggle with mental illness, decides to commit suicide. He does not do it in a peaceful way. He sets a fire in his home that will eventually kill him. I took the message of the television show, in context, to be that it was sensible for this character to commit suicide. We feel sad as viewers of the program, but we understand the decision because it is "understandable." This is exactly the sort of thinking that underlies the permission for only terminally ill patients to take their own lives: their wish to die is understandable. I believe the law ought to refrain from judging which individuals' wishes to die is "understandable" and which are not.

Why should the law refrain from making such judgments? Because once the law starts making judgments about which lives are worth living and which are not, it is likely to treat the wellbeing of those whose lives are not worth living as less important than the wellbeing of others.  If someone is terminally ill, for example, we might choose not to spend much money on medicines or procedures to help him because his life is not worthy of that expense. People with terminally ill relatives, moreover, may resent having to fund medical or hospice care for the person who could just kill herself and save the family a lot of money.

It may seem ironic to say that we should allow anyone who wishes to commit suicide to do so as a way of communicating that all lives are of equal and great value. How can letting everyone who wants to kill themselves proceed show that we value life? It does so by saying that from society's perspective, every life is valuable, but we recognize that it is the individual herself or himself who has to live that life and it should therefore be that individual who gets to decide when living has become too painful to bear.

Some of the people who fall into this category will be those we might expect to want to die or even be tempted to validate in their decision--such as the terminally ill--and others will look inexplicable to us--such as a young person who seems to have everything to live for. A radical egalitarianism counsels in favor of extending this right to everyone who is competent to exercise it (and to helpers who will make it easier for that exercise to take place, without applying pressure), while maintaining an attitude of respect for the lives of all. We can best respect the lives of everyone by welcoming those who wish to live into our midst and by supporting the choice of those who wish to die, without judging the choice as warranted or unwarranted, as the few states recognizing a right to die currently do judge. Compassion and not judgment is what is called for in dealing with those who want to end their lives.