American Journal of Law & Medicine

Aid-in-dying: should we decriminalize physician-assisted suicide and physician-committed euthanasia?

Recent news stories, medical journal articles, and two state voter referenda have publicized physicians' providing their patients with aid-in-dying. This Note distinguishes two components of aid-in-dying: physician-assisted suicide and physician-committed voluntary active euthanasia. The Note traces these components' distinct historical and legal treatments and critically examines arguments for and against both types of action. This Note concludes that aid-in-dying measures should limit legalization initiatives to physician-assisted suicide and should not embrace physician-committed voluntary active euthanasia.

I. INTRODUCTION

Janet Adkins and Jack Kevorkian, Patricia Diane Trumbull and Timothy Quill -- during the last two years, these names have become inextricably linked both with each other and with the ethical and legal ramifications of physician-assisted suicide. At Adkins's request, Dr. Kevorkian connected her to his "suicide machine"; Adkins, who was suffering from Alzheimer's disease, thereafter pushed a button, starting the flow of lethal drugs through her veins.(1) Likewise, Dr. Quill prescribed a lethal dose of barbiturates for the terminally ill Trumbull, who decided that she did not want to suffer the indignities and pain of endstage leukemia.(2)

In neither case was the physician subject to criminal penalties. Indeed, a Michigan district court dismissed murder charges against Kevorkian,(3) while a Rochester, New York grand jury refused to return a criminal indictment against Quill.(4) In fact, in a subsequent civil action involving Quill's license to practice medicine, the New York Board for Professional Medical Conduct ruled that "no charge of misconduct was warranted."(5)

This apparent reluctance of the citizenry and their legal representatives to punish doctors for rendering suicide assistance to terminally or incurably ill patients likely signals a shift toward viewing such conduct sympathetically. In addition, polls evidence a similar attitudinal change toward physician-committed euthanasia.(6) A 1991 nationwide public opinion poll sponsored by the Boston Globe and the Harvard School of Public Health revealed that almost two-thirds of Americans currently favor both physician-assisted suicide and physician-committed euthanasia for terminally ill patients requesting either.(7)

In response to this public attitudinal shift, several groups have presented American voters with a series of actions concerning the issue of physicians' providing patients with "aid-in-dying."(8) Typically, such aid-in-dying initiatives encompass both physicians' assisting patients' suicides and doctors' actively engaging in euthanasia at the patient's request.(9) While no state has yet adopted an aid-in-dying measure, Washington state's proposed Initiative 119 ("I-119") garnered 46% of the popular vote in a November 1991 referendum.(10) Because future aid-in-dying referenda are likely to be modelled on I-119, this Note focuses on I-119's aid-in-dying provisions and takes them to be paradigmatic.(11)

In brief, I-119 countenances three decidedly different forms of physician action. First, under its refusal of treatment provision, a physician may discontinue treatment (e.g., remove a nasogastric feeding tube) in accordance with a patient's desire.(12) Second, under aid-in-dying, the doctor may leave the patient with the requisite drug dose and/or information for the patient to commit suicide.(13) Third, again under aid-in-dying, the physician may commit voluntary active euthanasia,(14) bringing about the patient's death via lethal injection, for example, at the patient's request.(15)

All three alternatives involve physician action of one sort or another as opposed to mere omission. Yet both I-119 and the courts draw sharp distinctions among the three forms of conduct. Within I-119, the first example illustrates refusal of treatment, whereas the second and third are examples of aid-in-dying. Moreover, each alternative receives decidedly different legal treatment in the courts. For example, when a patient declines (or refuses to continue) life-sustaining medical measures, the courts have decreed that the patient's wish "may not properly be viewed as an attempt to commit suicide."(16) As one commentator has noted, the patient's right to refuse treatment, thus, constitutes the current legally acceptable dimensions of the right to die.(17) Hence, doctors' actions in compliance with a patient's expressed desire to refuse life-sustaining medical intervention, whether those actions constitute withholding or withdrawal of treatment, are not viewed as suicide assistance.

In contrast, a doctor's prescribing or leaving a lethal drug dosage for a patient to take later has traditionally fallen under the rubric of physician-assisted sucide.(18) Because the patient intentionally brings about her own death by her own hand, the patient commits suicide, or self-murder. The physician simply provides the means for the patient to do so.

Such suicide assistance, even from beneficent motives, has generally been sharply distinguished from the physician's directly bringing about the patient's death. In suicide, the patient kills herself; in euthanasia, the physician performs the killing (e.g., by injecting a drug overdose). Consequently, euthanasia is usually punished under criminal homicide statutes rather than suicide-assistance prohibitions (in states that have both types of laws).(19)

Thus, I-119's aid-in-dying rubric elides physician-assisted suicide ("PAS") and physician-committed voluntary active euthanasia ("PCVAE"). Indeed, some authors have averred that, given modern medical realities, no distinction can be maintained between the two.(20) Such authors ask: is there any real difference between putting a lethal drug dose into a patient's hand (so she can take it herself) as opposed to putting it into her arm (via injection)? Moreover, when the suicide victim is disabled, comatose, or paraplegic, it is said that "the distinction between these two forms of behavior is so negligible as to be almost illusory."(21)

Certain obvious questions, therefore, present themselves. Is there a fundamental difference, legal or moral, between PAS and PCVAE? Should criminal penalties attach to one type of action but not the other? Should physicians be exempt from legal strictures that others must obey? If states legally permit such physician actions, what safeguards are adequate to prevent abuse? Do/should physicians' professional ethics preclude their taking certain actions, even when patients request them? What are the economic and social costs of legally countenancing such practices?(22)

To answer these questions, this Note surveys the historical, legal, and socio-economic dimensions of suicide assistance and voluntary active euthanasia. Part II discusses the differing historical treatment of assisted suicide and euthanasia. Part III considers the current legal status of both actions and their justifications. Part IV critically analyzes traditional arguments offered for and against legalizing PAS and PCVAE. Part V examines Washington's I-119 initiative and offers some factors to be considered by those who favor aid-in-dying legislation.(23) Finally, Part VI concludes that aid-in-dying legislation should be modified so that only physician-assisted suicide is legalized.

II. HISTORY

A. ASSISTED SUICIDE

The origin of suicide as an English common law offense was clearly ecclesiastical.(24) In CE 673, the Council of Hereford brought Church canon law into England, including the stipulation that denied suicides traditional funeral rites.(25) Later in 967, King Edgar promulgated a canon explicitly reaffirming the denial of Christian burial to a suicide and further holding that all of a suicide's goods were to be forfeited to his liege lord, unless the suicide killed himself as a result of illness or madness.(26) By custom, a suicide's burial was not simply devoid of Church blessing; it was also accompanied by a dishonoring of the corpse: the burial was in the highway with a stake driven through the body.(27)

Thus, in feudal times and prior to the common law of suicide, a suicide was subject to secular imposition of ecclesiastical censure and his heirs burdened by fiscal loss of the suicide's property to his lord. However, in the fourteenth century, the ultimate repository of a suicide's goods changed; the King's cupidity dictated that a lucrative source of income enrich the Crown's coffers as opposed to going elsewhere.(28) To accomplish this diversion of goods from the suicide's immediate lord to the royal treasury, suicide was declared a felony, since every felon had to forfeit his goods to the king.(29)

As such, the crime of suicide received a special appellation: "felo de se."(30) Blackstone applied the sobriquet to the perpetrator and described a felo de se as "he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death ...."(31) Moreover, while enumerating the legal prerequisites of the crime -- majority age and competency(32) -- Blackstone adverted to the ostensible ecclesiastical and royal rationales behind punishing self-murder: "A [sane adult] suicide is guilty of a double offense; one spiritual, in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects ...."(33)

What was in feudal times a sinful act with secular penalties was, thus, transformed into a crime against the state. Nonetheless, as a felonious crime, the penalties for suicide remained substantially the same as before: ignominious, non-Christian burial and forfeiture of goods.(34) The only significant difference was that all of the suicide's goods and chattels now went to the Crown, the victim harmed, as it were, by the suicide's act.(35)

The common law also deemed suicide assistance to be a felony. At common law, the state considered a person who advised a perpetrator to commit a crime and who was present when the crime occurred a principal in the second degree.(36) Consequently, since suicide at common law was equivalent to the crime of homicidal murder, a person who provided suicide assistance (who qualified as principal in the second degree) was also guilty of murder.

The early American colonies also generally condemned suicide (and, inter alia, suicide assistance), imposing by statute or by common law the traditional English common law penalties against suicide, namely ignominious burial and forfeiture of goods.(37) Some retained those practices even after independence. Massachusetts, for example, passed a statute in 1660 outlawing suicide(38) and requiring contemptuous burial of a suicide's corpse on a public highway with "a Cart-load of Stones laid upon the Grave as a Brand of Infamy, and as a warning to others to beware of the like Damnable practices."(39) This statute was not repealed until 1823,(40) long after the United States declared independence from Britain.

When states decriminalized suicide -- by repealing suicide statutes, by legislating the abolition of the common law offense of suicide, or by judicial decision -- a threefold rationale was offered. First, given the impossibility of punishing the perpetrator, suicide was an unpunishable crime.(41) Logic, if nothing else, dictated its abolition. Second, imposing ignominious burial or forfeiture of goods was deemed to visit unwarranted punishment on the suicide's family, who were innocent of all wrongdoing.(42) Third, suicide came to be regarded as the act of a mentally ill, sick, and depressed individual, who required medical treatment not punishment, compassion not culpability.(43)

The historical origins of American punishment and subsequent decriminalization of suicide provide a background for briefly assessing a contemporary legal position against legalizing PAS. This argument is based on an asserted state interest in the prevention of suicide,(44) which courts aver is one of four state interests that must be weighed against a patient's right to refuse medical treatment.(45) Yet, judicial discussions of this state interest, in general, neither argue for it nor trace its origin.(46) In contrast, our historical survey of the Anglo-American common law of suicide reveals that the state's alleged interest in suicide prevention has three sources: religious belief -- the origin of the ignominious burial penalty;(47) sovereign cupidity -- the rationale for declaring suicide a felony at common law;(48) and protection of a vulnerable minority -- the movement to abolish penalties for suicide and substitute treatment for those unsuccessfully attempting it, who were now perceived as mentally ill, depressed, or melancholic.(49)

Of these three grounds, only the last will serve as a modern-day foundation for an argument against a right to suicide or suicide assistance. Religious belief may be eliminated as a valid ground on the basis of the constitutional principle of neutrality toward religion.(50) Similarly, sovereign cupidity (or filling the king's coffers) fails since there are less intrusive, not to say less vulgar, methods of raising state money than by taxing a suicide's possessions.

Only protecting the psychologically unsound from harming themselves remains as a ground for the state interest in suicide prevention. If we accept this ground as valid, it follows that the state may justifiably take steps to prevent irrational individuals' suicides and may prohibit others from helping them. What does not follow, however, is that the state may legitimately prevent rational persons' suicides. Logically, the state's paternalistic concern evaporates if the suicidal individual is demonstrably rational. Thus, if states can legislate adequate safeguards to ensure the rationality of those who wish to commit suicide, a limited right to suicide and suicide assistance can be granted consistent with the state's historical interest in suicide prevention.

B. EUTHANASIA

In contrast to suicide, Anglo-American historical treatment of voluntary active euthanasia has been unremittingly condemnatory. Etymologically, the English word "euthanasia" derived from the Greek words "eu" (good) and "thanatos" (death), meaning in combination a good, or even noble, death.(51) However, there was no ancient Greek equivalent of "euthanasia," in its now dominant English sense of a mercy-killing -- an action inducing a gentle death in those suffering from terminal and painful illness.(52)

The concept of mercy-killing was and is roundly rejected in Western religious teaching. Jewish Talmudic law considers the active euthanasia of a dying person, even when done to relieve considerable pain and suffering, to be an intentional killing and prohibits it.(53) Christian teaching likewise finds active euthanasia abhorrent, basing its prohibition on the Sixth Commandment's "Thou shalt not kill."(54)

One rare exception to the almost universal Anglo-American condemnation of voluntary active euthanasia appeared during the Renaissance. Sir Thomas More's Utopia described a society that officially permitted and encouraged voluntary active euthanasia under certain narrowly delimited circumstances.

[I]f, besides being incurable, the disease also causes constant excruciating pain, some priests and government officials visit the person concerned, and say something like this: '... Since your life's a misery to you, why hesitate to die? ... [S]ay the word, and we'll arrange for your release ....' If the patient finds these arguments convincing, he either starves himself to death, or is given a soporific and put painlessly out of his misery. But this is strictly voluntary ... Officially sanctioned euthanasia is regarded as an honourable death ....(55)

The attitudes of the Renaissance toward voluntary active euthanasia did not prevail. Thus, at common law, one who intentionally killed another was guilty of murder, although she did so at the victim's request(56) and/or from a worthy motive.(57)

III. CURRENT LEGAL STATUS

A. ASSISTED SUICIDE

In England, as a result of the Suicide Act of 1961, neither suicide nor attempted suicide is a crime.(58) However, the same statute makes it a crime to aid, abet, counsel, or procure the suicide or attempted suicide of another.(59) Thus, in England, assisting another to perform an act that is not itself criminal is a crime.

Following the English model, many American states not only decriminalized suicide, but also legislated prohibitions against suicide assistance. Presently, no state or federal statute punishes an individual who commits or attempts suicide.(60) However, thirty states and two territories currently have laws imposing criminal sanctions for aiding, assisting, causing, or promoting suicide.(61) An additional five states impose such criminal penalties under case law.(62)

Moreover, Section 210.5 of the Model Penal Code proposes criminal penalties for causing or aiding suicide. Under the Code, purposely causing another to commit suicide is punishable as criminal homicide.(63) In contrast, purposely

aiding or soliciting another to commit suicide is a second-degree felony if this conduct causes a suicide or an attempted suicide; otherwise, it is a misdemeanor.(64)

Notwithstanding these laws, several noted physician-authors collaborating on an article have stated: "The frequency with which [physician-assisted suicides] are undertaken is unknown, but they are certainly not rare."(65) Moreover, those same physicians wrote, "all but two of us ... believe that it is not immoral for a physician to assist in the rational suicide of a terminally ill person."(66) Yet, despite the purported frequency of physicians' aiding in terminally ill patients' suicides and the statutory majority rule criminalizing assisted suicide, there are no recorded cases of physicians' being criminally punished for providing suicide assistance.(67) However, at least in the cases of Drs. Kevorkian and Quill, detailed above,(68) physicians assisting in suicide have come under prosecutorial scrutiny.

Kevorkian's assistance in the suicide of Janet Adkins took place in Michigan, which at the time lacked a statute criminalizing assisted suicide. Hence, if Kevorkian was to be punished for assisting in Adkin's death, it would have had to be under Michigan case law. In People v. Roberts, the Michigan Supreme Court affirmed a murder conviction against a husband who mixed poison for his wife and left it within her reach, despite the fact that the victim requested him to do so and administered the poison to herself.(69) Given Roberts, one might, not unreasonably, have expected the state to prosecute Kevorkian for murder.

While Kevorkian was indeed charged with murder, a Michigan district court judge dismissed the murder charges, on grounds that it was Adkins and not Kevorkian who caused Adkins's death.(70) Adkins, the judge ruled, died by her own hand and, hence, committed suicide; she was not murdered.(71) In the absence of a Michigan statute prohibiting assisted suicide, the court held that the state could not prosecute Kevorkian for his conduct.(72)

How is this result to be reconciled with Roberts? Interestingly, while the Michigan Supreme Court never explicitly overruled Roberts, it seems to have acquiesced in its demise. In 1984, after a lower court reversed a murder conviction of a defendant who had supplied a shotgun and shells to someone who used them to commit suicide, the Michigan Supreme Court denied appeal.(73) In denying the appeal, the Michigan high court appears to have accepted the lower court's reasoning: supplying the means for someone to commit suicide is not murder,(74) and such assistance can be punished only if there were a Michigan law prohibiting incitement to suicide.(75) The ground was, therefore, set for the dismissal of charges in Kevorkian's case.

Not surprisingly, Michigan introduced legislation making it a felony to assist in a suicide immediately after the dismissal of charges against Kevorkian.(76) However, while passage of such legislation ensures that suicide assistance is an indictable offense in Michigan, it by no means ensures that persons providing such assistance will be indicted, let alone convicted.

New York, after all, has had statutes criminalizing assisted suicide for years. Notwithstanding these laws, a Rochester, New York grand jury refused to indict Dr. Quill for assisting in the suicide of Patricia Diane Trumbull.(77) Had the grand jury seen fit, Dr. Quill might have been indicted under all three New York laws prohibiting assisted suicide: first, for the sui generis felony of promoting a suicide attempt;(78) second, for second-degree manslaughter for internationally aiding another to commit suicide;(79) and third, for second-degree murder, since Quill aided in Trumbull's suicide, without the use of duress or deception.(80)

B. VOLUNTARY ACTIVE EUTHANASIA

As a form of euthanasia, PCVAE possesses four features: it is (1) a direct killing performed by someone other than the victim; (2) at the victim's request; (3) where the other is motivated by mercy or at least not ill-will; and (4) is a physician. Features one through three characterize and are common to all cases of voluntary active euthanasia. Item four, the occupational status of the perpetrator, is PCVAE's only truly distinctive feature.

Consequently, current legal treatment of PCVAE focuses on its common, generic characteristics -- items one through three. Since there are no sui generis state statutes specifically criminalizing euthanasia,(81) legal analysis of voluntary active euthanasia centers on case law interpreting criminal homicide statutes.

Direct Killing Performed by Someone Other Than the Victim. Because voluntary active euthanasia constitutes killing, its perpetrator may be charged with murder, manslaughter, or simple criminal homicide. Consequently -- and particularly in states that have both criminal homicide and assisted suicide statutes -- state courts have taken great pains to distinguish the direct killing involved in euthanasia from conduct characterizing mere suicide assistance:

[The Oregon assisted suicide] statute does not contemplate active participation by one in the overt act directly causing death. It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death, -- the gun, the knife, the poison ... But where a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or ... administering the poison, ... his act constitutes murder ....(82)

Thus, in the eyes of the law, the person who only furnishes the means by which the victim kills herself assists suicide. Conversely, the person who proximately causes the victim's death can be held liable for homicide.

At the Victim's Request. While the consent of the victim sometimes defeats a necessary element of a tortious cause of action,(83) the victim's consent is generally irrelevant in criminal prosecutions.(84) In particular, in homicide cases, victims' "[i]nvitation and consent to the perpetration of a crime do not constitute defenses, adequate excuses, or provocations."(85)

In Turner v. State, for example, the defense contended that the accused's conduct was not murder since the victim requested it.(86) However, the Tennessee Supreme Court stated: "Murder is no less murder because the homicide is committed at the desire of the victim. He who kills another upon [the other's] desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head."(87) The California Supreme Court in People v. Matlock(88) reaffirmed this sentiment: "[W]here a person actually performs, or actively assists in performing, the overt act resulting in death ... it is wholly immaterial whether this act is committed pursuant to an agreement with the victim ...."(89)

Motivated By Mercy. In American criminal jurisprudence, the perpetrator's motive for killing is not an element of homicide.(90) Nonetheless, "malice aforethought" is generally required for murder.(91) Consequently, persons who have committed euthanasia sometimes have attempted to show that they did not possess the requisite "malice aforethought" because they were motivated by care and concern for the victim, not ill will.

The courts have, however, soundly rejected this claim. Notably, in People v. Conley, the California Supreme Court declared that a person who commits euthanasia possesses the requisite malice aforethought necessary for murder.(92) According to the court, the necessary malice consists of intentionally engaging in a legally proscribed killing; such malice had nothing to do with the perpetrator's motive.

Nonetheless, some defendants contend that a perpetrator's mercy motivation should be considered in her prosecution for murder. In People v. Cleaves, for example, the defendant requested a California appeals court to fashion a new manslaughter category for a killing performed at the victim's behest and based on an absence of malice.(93) The court refused to do so.(94) Moreover, in Gilbert v. State, a husband, convicted of premeditated first-degree murder in the mercy-killing of his wife, who suffered from Alzheimer's disease, offered a Florida court euthanasia as a novel defense for his action.(95) While acknowledging the mercy motive propelling the defendant's conduct, the court nevertheless declared: "Euthanasia is not a defense to first degree murder in Florida."(96)

In each case, the courts' reluctance to consider mercy motivation as an explicit extenuating factor or as a defense appears to have hinged on an unwillingness to engage in judicial activism. If euthanasia is to be recognized as a legitimate defense to murder or as a specific type of manslaughter, that is a job for the legislature(97) or, at least, for the supreme court of the state.(98)

The considerations that the courts have brought to bear on mere voluntary active euthanasia are identical to those used in the four located cases of physician-committed active euthanasia. That is, at law, the occupational status of the perpetrator (viz., physician) has neither obviated a charge of homicide nor been considered a defense thereto. In three cases, the physicians -- Hermann Sander,(99) Vincent Montemarano,(100) and Peter Rosier(101) -- were acquitted of the criminal homicide charges lodged against them. In the fourth case, the only one in which a doctor was punished for his euthanasic conduct, Dr. Joseph Hassman negotiated with the prosecutor for a plea-bargained charge of manslaughter.(102) Thereafter, Hassman pled guilty to the mercy-killing of his mother-in-law and was sentenced to two years' probation.(103) In none of the cases did a jury find the defendant doctor who had committed active euthanasia guilty of the homicide with which he was charged.

IV. ARGUMENTS: PRO AND CON

The foregoing surveys of the history and legal status of assisted suicide and euthanasia bear on several important arguments for changing the law as it now exists. This section examines two general arguments -- one in favor of changing the current law on PAS and PCVAE, and one for retaining the status quo. …

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