Seattle University School of Law Digital Commons Faculty Scholarship 1-1-1996 Autonomy and Death Annette E. Clark Follow this and additional works at: https://digitalcommons.law.seattleu.edu/faculty Part of the Courts Commons, and the Health Law and Policy Commons Recommended Citation Annette E. Clark, Autonomy and Death, 71 TUL. L. REV. 45 (1996). https://digitalcommons.law.seattleu.edu/faculty/386 This Article is brought to you for free and open access by Seattle University School of Law Digital Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. Autonomy and Death Annette E. Clark* In this Article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to eitherlegalize or criminalizephysician-assisted death, with particularemphasis on the constitutional questions that are currently before the United States Supreme Court. She then examinesphysician-assisted death from both medical and societalperspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the properpersons in whom to rest power over assisted death. She points out the irony in a process that would set up physicians as protectors of individual autonomy, and ultimately concludes that by deferring to the medical profession in this process, we risk losing the very autonomy that assisted death is designed to effectuate. I. INTRODUClON ......................................................................... 46 II. THE CURRENT CLIMATE ...........................................................49 A. Public Opinion ................................................................ 49 B. Legalizing Physician-AssistedDeath ............................. 55 1. Attempts at Legalization ......................................... 55 2. The Oregon Death with Dignity Act ...................... 58 C. CriminalizingPhysician-Assisted Death ........................ 65 1. Michigan ................................................................. 66 2. Washington ............................................................. 70 3. New York ................................................................ 83 I1 THE PHYSiCIAN'S ROLE: THE MEDICAL PERSPECTVE ........... 87 A. Defining Events in Medicine............................................ 88 1. "It's Over, Debbie". ................................................ 90 2. The Council of Twelve ............................................ 92 3. Jack Kevorkian ...................................................... 93 4. Dr. Timothy Quill ................................................... 95 B. The Debatefrom Within ................................................... 98 1. Medical Perspectives on Assisted Death ................ 98 2. Medical Perspectives on the Physician's Role ......... 101 3. Physician Survey Results .......................................... 105 * Associate Professor, Seattle University School of Law. M.D. University of Washington School of Medicine, 1985; J.D. University of Puget Sound School of Law (now Seattle University), 1989. TULANE LAW REVIEW [Vol. 71:45 IV. THE PHYSICiAN'S RoLE: ASOCITALPERSPECTIVE ................. 109 A. Asking the Process Question.............................................. 110 1. Medical Technology .................................................. 114 2. Medical Decisionmaking .......................................... 116 3. The Nature of Medical Training ............................... 131 B. Revisiting the Substantive Question .................................. 135 I. JNTRODUCTION A physician writes a prescription for a lethal dose of pills with the knowledge that an individual intends to use the medication to end his or her own life.! Or, at the request of the individual, a physician intentionally causes the person's death by administering a lethal dose of a drug.2 An extraordinary confluence of events-legal, medical, and ethical-has forced the issues of physician-assisted suicide and euthanasia to the forefront of the debate over individual autonomy and the power of the state to regulate individual decisionmaking.3 In the past five years, opponents and proponents of legalization of euthanasia and physician-assisted suicide have advanced and retreated in waves, making their voices heard within the state legislative processes, through grassroots state initiatives, and more recently, through federal constitutional challenges. It now appears that the opposition is at an 1. Physician-assisted suicide occurs when a physician writes a prescription for a lethal dose of pills or counsels the patient on doses and methods of administration with the knowledge that the patient intends to take his or her own life. See Peter A. Singer & Mark Siegler, Euthanasia-A Critique, 322 NEw ENG. J. MED. 1881, 1881 (1990); Sidney H. Wanzer et al., The Physician'sResponsibility Toward Hopelessly Ill Patients: A Second Look, 320 NEw ENG. J. MED. 844, 848 (1989). Thus, the physician provides the means and guidance but the final act is performed by the patient. See Singer & Siegler, supra at 1881. 2. Voluntary euthanasia occurs when a physician administers a drug or other agent at the individual's request, thereby performing the final act that results in the patient's death. See David Orentlicher, Physician Participationin Assisted Suicide, 262 JAMA 1844, 1844 (1989); Singer & Siegler, supra note 1, at 1881 (defining euthanasia as "the deliberate action by a physician to terminate the life of a patient"). Literally, the term "euthanasia" means "good" or "gentle" death. Edmund D. Pellegrino, Doctors Must Not Kill, 3 J. CUmCAL ETHIcs 95, 95 (1992). Of course, although this point is frequently ignored or forgotten, euthanasia can be performed by non-physicians. 3. In this sense, the debate over assisted suicide and euthanasia follows in the rather formidable footsteps of the abortion debate. The question of whether a state can constitutionally prohibit physician-assisted suicide for the terminally ill turns on an analysis of the Supreme Court's abortion jurisprudence. See discussion infra Part II.C; see also Seth R Kreimer, Does Pro-ChoiceMean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die, 44 AM. U. L. REv. 803 (1995) (discussing whether the abortion cases support a constitutional right to assisted suicide). 1996] AUTONOMYAND DEATH ebb and we will soon see the practice of legal physician-assisted suicide or euthanasia in one or more states." An interesting phenomenon has occurred in the ongoing debate over whether we, as a community, should move toward a society in which assisted death5 is allowed and even facilitated. In virtually every proposal, initiative, constitutional challenge, and debate, a crucial and often implicit assumption has been made: if we legalize assisted death for the terminally ill, the medical profession, specifically physicians, will be the individuals empowered to assist or actually perform the acts that result in death. It is almost as if legislators and commentators cannot imagine any other possibilities 4. See Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-PatientRelationship, 10 J. CONTEMP. HEALTH L. & PoL'Y 47, 61-62 (1994) (stating that, given the current trend in public and professional opinion, voluntary euthanasia and assisted suicide will likely be legalized); States Wrangle with Death Wishes, USA TODAY, May 23, 1994, at 8A (quoting Arthur Caplan of the Center for Bioethics at the University of Pennsylvania as stating, "I expect to see a state in the next few years legalize [physician-assisted suicide]"). The citizens of Oregon in 1994 passed a ballot measure legalizing physician-assisted suicide under some circumstances, but the statute was struck down as unconstitutional. The case is currently on appeal to the Ninth Circuit. See infra Part H.B.2. In addition, the Washington and New York statutes that criminalize assisting suicide have been declared unconstitutional by the Ninth and Second Circuits respectively, to the extent that they prohibit physician-assisted suicide for the competent, terminally ill. See infra Parts ll.C.2-3. If the United States Supreme Court affirms these decisions, we will see legalized assisted suicide in the near future. Legalized physician-assisted death already occurs in Australia. In 1995, a regional parliament in Darwin, Australia passed a bill legalizing physician-assisted suicide and lethal injection for the terminally ill. See Philip Shenon, Australian Doctors Get Right to Assist Suicide, N.Y TIMEs, July 28, 1995, at A8; see also Tom Bates, Australian Territory OKs Suicide Bill, OREGoNiAN, May 25, 1995, at A5. Any Australian who meets the statutory requirements may travel to the Northern Territory to take advantage of the statute's provisions. See id. 5. I have borrowed the term "assisted death" from an article by Howard Brody and will use it to include both assisted suicide and euthanasia. See Howard Brody, Assisted Death-A Compassionate Response to Medical Failure, 327 NEw ENG. J. MED. 1384 (1992). 6. When commentators do explicitly discuss physician involvement, it is usually in response to the broader substantive question of whether to permit or prohibit euthanasia and assisted suicide.