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Dying Well, Assisted Suicide, and the Law

 

by M. Cathleen Kaveny

In the summer of 1997, the United States Supreme Court decided that the Constitution does not protect a right of competent, terminally ill patients to commit suicide with the aid of a physician. This means that the decision whether or not to legalize assisted suicide and euthanasia will be left to each state. Thus far, only Oregon has chosen to legalize physician assisted suicide. But vigorous debates about its moral and legal status are taking place in many other communities. How should Catholic Christians, who are both believers and citizens, approach the issue of physician assisted suicide as it arises in their own states?

It is important to acknowledge the very real problems in our health care system that have created the demand for assisted suicide. Over the past thirty years or so, the dark side of medical progress has made many people fear that they will die lonely, dehumanized deaths. They worry about being hooked up against their will to medical technology that cannot benefit them, but can only prolong their suffering. They worry about indifferent care givers and uncontrolled pain. They worry about being isolated in a hospital bed, separated from the family members and friends whose love and support they desperately need. But assisted suicide and euthanasia are the wrong responses to these very real worries.

The Catholic Vision of a Good Death

The Roman Catholic moral tradition offers a trenchant critique of a society that would allow anyone to die alone and in pain. But it also opposes the view that a "good death" is a sharp and sudden transition from existence to non-existence, facilitated if necessary by a lethal prescription. From the perspective of Catholic thought, the process of dying should not be viewed as a useless experience. A death that allows us the time to come to terms with our lives and those with whom we have lived it—to thank and be thanked, to forgive and be forgiven—is a good death. It can allow us time to deepen our relationship with God.

The process of dying can be a graced experience, not only for the persons undergoing it, but also for the persons called to care for them. The Catholic tradition has long considered the practice of caring for the sick and dying a corporal work of mercy, like feeding the hungry and visiting the imprisoned. It expresses our solidarity with the most vulnerable in our midst, vividly revealing that neither their fundamental dignity nor our own depends upon worldly power or independence. The dignity of each of us rests in the fact that we are created in God's image and likeness.

The Catholic vision of a good death is supported by the moral perspective it offers on end-of-life decision-making. First, that perspective asks us to see ourselves as exercising stewardship, rather than complete dominion, over our mortal lives. Our decision-making authority over our lives is real, but circumscribed by our need to respond to God's invitation to know, trust, love and serve Him. Thus the Church rejects both assisted suicide (in which a patient voluntarily consumes a lethal dose of medication prescribed for that purpose by a physician) and euthanasia (intentionally killing another human being to end his or her suffering). Despite the understandable motives of such actions, they assume that there can be no meaning or purpose in allowing patients to continue their own process of letting go of life, for them or those around them.

The focus of the moral prohibition on assisted suicide and euthanasia is the intention or aim of the agent. Our intention reveals the fundamental nature of our actions. A physician can give narcotics to a terminally ill patient with the aim of suppressing respiration to hasten death—or with the aim of relieving severe pain in the only way possible, despite the fact that it might unintentionally hasten death. The first is an act of euthanasia incompatible with the true meaning of being a physician; the second is a central example of that meaning.

Second, the Church teaches that mortal existence is a great good but not the highest good, since we are all called to enjoy eternal life with Christ after our deaths. Consequently, we are morally obliged to take "proportionate" (ordinary) but not "disproportionate" (extraordinary) means to preserve our lives. Refusal of disproportionate means to preserve life is not suicidal, even if it may appear virtually certain that death will result from it. Such a refusal simply recognizes that in these concrete circumstances, the disadvantages of the specific measures necessary to fight death outweigh their likely advantages.

The prohibition on assisted suicide and euthanasia, as well as the distinction between proportionate and disproportionate medical treatment, supports the Catholic vision of a good death. It also converges with the best of secular wisdom on the issue of death and dying, which can be found in the hospice movement. The virtues of both mercy and solidarity call upon us to provide the dying with compassionate care, so they can see their own relinquishment of earthly life as an opportunity to grow into eternity. Because severe pain can interfere with our ability to do just that, we are called to ensure that every person who is dying and in pain can receive adequate means to control their pain. Because the challenge of dying well requires coming to terms with limits, including the limits created by one's own mortality, no dying patient should be forced to submit to life-prolonging measures against his or her will. Numerous studies show that patients whose pain and depression are controlled no longer desire to end their lives.

Sound End-of-Life Policy

Catholic citizens should join with other persons concerned about those who are seriously ill and the dying to ensure that broader social structures foster the possibility of a good death.

Solidarity requires us to ensure that everyone in our society has access to good end-of-life care, so that no one is forced to die alone or in pain. With the failure of national health care reform and the ascendancy of unregulated managed care, this task is even more urgent. About fifteen percent of Americans now lack health insurance; an increasingly tattered "safety net" means that many of them are denied necessary health care, including adequate end-of-life care and support.

We also need to ensure that more physicians are trained to treat the pain and depression that can accompany the dying process, and that frequently motivate requests for assisted death. Medicine has advanced to the point where it is possible to control pain while preserving consciousness in the vast majority of cases; only a very small proportion of patients require sedation to control physical suffering. However, there is a large gap between what is technically possible and what is practically available to many dying patients. (See Robert G. Twycross, "Where There is Life, There is Hope: A View from the Hospice," in John Keown, ed., Euthanasia Examined.) We need to encourage our health plans to hire specialists in pain management, and support continuing education in that area for other physicians.

Finally, we need to practice the corporal works of mercy ourselves, visiting the sick and shut-ins, sitting by the bedsides of those who are dying. We need to proclaim with our deeds as well as our words that no form of physical dependence can diminish the innate dignity of a human person. As the growing influence of the hospice movement suggests, all these steps can be taken in a way that appeals to a broad base of religious and non-religious support.

Legalizing Assisted Suicide: A Deadly Mistake

Physician assisted suicide and euthanasia are morally incompatible with the vision of a good death articulated in the Catholic tradition. But in a pluralistic society such as the United States, are there solid nonsectarian reasons to oppose the legalization of physician assisted suicide? Absolutely. In 1994, the New York State Task Force on Life and the Law, composed of experts with different views of the morality of assisted suicide and euthanasia, unanimously concluded that these practices should remain legally prohibited. The Task Force's Report concluded: "We believe that the practices would be profoundly dangerous for large segments of the population. ... The risks would extend to all individuals who are ill. They would be most severe for those whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, or membership in a stigmatized social group."

One looming worry is that physician assisted suicide will be used as a means of cost containment. The past decade has brought intense efforts to control the costs of health care, which now consume about fourteen percent of the gross domestic product. Care for the terminally ill has been estimated to constitute ten percent of the nation's health care expenditures; it consumes an estimated twenty-seven percent of the Medicare program's budget. Forty percent of that amount is incurred during the final month of an elderly patient's life. A well-timed decision in favor of assisted suicide, it has been argued, could save substantial amounts of money for both federally funded programs and private purchasers of health care.

Of course, no one can predict with certainty how legalization of physician assisted suicide would affect the health care budget. In a recent article in the New England Journal of Medicine, Ezekiel Emanuel (who opposes the legalization of physician assisted suicide) and Margaret Battin (who favors it) argue that the savings likely to accrue from the practice of physician assisted suicide are likely to be very small—less than one-tenth of one percent of both total American spending on health care and of an individual managed care plan's budget. Right-to-die advocates could cite this article to argue that worries about assisted suicide being used to contain costs are unfounded.

But there are two interrelated problems with the Emanuel/Battin analysis. First, they predict the number of persons who will seek assisted suicide by drawing on data from the Netherlands, where euthanasia is widely practiced although still technically illegal. They also use these data to predict the timing of the decision to end a patient's life. Yet it is doubtful that assisted suicide in the United States will follow the course it has taken in the Netherlands, simply because the societies themselves are so different. Dutch society is characterized by a homogeneous population; its citizens are the beneficiaries of a wide array of government-provided social services, including comprehensive health care, higher education, and generous family leave policies. Moreover, its medical system still protects a stable physician-patient relationship; many Dutch doctors still make house calls. In the United States, however, many persons do not have adequate health coverage. They and their families cannot depend upon an extensive network of social services to help them through the challenges of a terminal illness.

In short, terminally ill patients might have a variety of reasons for seeking assisted suicide or euthanasia, and time their decisions to accord with those reasons. In the Netherlands, it may well be the case that financial considerations have little or no effect on either the choice or timing of patients' decisions to end their own lives, because the cost of providing care for the terminally ill will not bankrupt them. In the United States, however, financial considerations, as well as other burdens, may well motivate the choice and the timing of assisted suicide.

A second problem with the Emanuel/Battin article is that it ignores the broader incentives within the American health care system that might pressure patients to alter their decisions about assisted suicide in a more cost-effective direction. Many advocates of physician assisted suicide also assume that physicians will encourage their patients to delay taking their own lives until there is no other alternative. But in the fast-growing world of managed care, this may be a deadly assumption. Under managed care, many health care providers lose money rather than profit from patients who require expensive treatment. Although studies have shown that younger people in generally good health can do rather well in managed care, those at the margins of society do not have the same experience. The poor and those who suffer from complicated health problems, such as the chronically ill elderly, the poor, minority populations, and persons with disabilities, have significant difficulties in accessing care in HMOs.

What will happen if we add assisted suicide to the mix? Under managed care, physicians and health care providers could have a financial incentive to encourage patients with terminal illnesses to consider ending their own lives before they run up substantial bills for the health plan. This encouragement can be given in very subtle ways, including the composition of the standard benefit package. One health plan in Oregon, for example, covers assisted suicide for terminally ill patients ($35-$75 per dose), but places a $1000 cap on hospice services. Encouragement for death can also be communicated to patients indirectly, in the physician's tone and phrasing as he or she discusses treatment options. How would most of us respond, for example, to hearing our physician say: "You've only got six months to live, and they're not necessarily going to be the best six months. I just want to let you know that you have the option of avoiding that problem through physician assisted suicide. It will be very painless, and it is your right under the law." Unless we are willing to monitor each and every conversation between terminally ill patients and their health care providers, there is no way to prevent this from happening.

In addition, society may place increasing pressure upon terminally ill persons to end their own lives in order to avoid imposing "useless" costs on society and their family members. These pressures are likely only to increase in the coming years, as the Baby Boomers become senior citizens. The idea of using assisted suicide as a tool of cost containment, previously only whispered about, is now being voiced more openly. In his most recent book, Hemlock Society founder Derek Humphry calls cost containment the "unspoken argument" for legalizing physician-assisted suicide. It will not be difficult for cost-conscious benefit managers to rationalize facilitating a patient's choice of assisted suicide, by seeing it as beneficial both to the plan and to the patient. Humphry himself suggests that "Physician-assisted suicide is a win-win situation." (Derek Humphry & Mary Clement, Freedom to Die: People, Politics and the Right-to-Die Movement).

The desire to save money could even eclipse the concern for patient choice in assisted suicide. Humphry points us firmly in this direction: "Might not the money be better spent on preventive treatment, medicine for the young, educating the youth of the nation, or for that matter, the children in the patient's own family? Is there, in fact, a duty to die—a responsibility within the family unit—that should remain voluntary but expected nevertheless?" But make no mistake about it: An elderly, terminally ill, and vulnerable patient who makes a choice for assisted suicide that is a "duty," that is "expected," that is a "responsibility," is NOT making a voluntary choice. In fact, practically speaking, he or she is given no choice.

Finally, the motive of cost containment could fuel the pressure to expand the class of patients eligible for assisted death. First, why not allow voluntary euthanasia as well as assisted suicide, so that people unable to take the lethal dose themselves can still exercise their "right to die"? Second, why limit the right to the terminally ill, since there are many chronically ill persons with a longer time of suffering (and cost) ahead of them? Third, why limit the right to competent patients? Shouldn't surrogate decision-makers be able to make the choice on behalf of non-competent patients who are suffering? There has already been one instance of euthanasia in Oregon, involving a patient who was physically unable to commit suicide; Oregon officials say they may have to allow this to ensure that severely disabled people have "access" to assisted suicide. By so expanding the "right to die," we also expand the possibilities for saving money. Many advocates for persons with disabilities are rightly alarmed at the prospect of a broadly defined right to die, which they fear will become a duty to die in the manner that Derek Humphry advocates. The slippery slope is steep, and the temptation to save money will grease every inch of it.

The Way Forward

No one can deny that our society needs to address the challenges posed by rising health care costs. But legalizing assisted suicide and euthanasia, particularly in the context of unregulated managed care, is the wrong way to do so. It radically threatens the equal dignity of all human beings, which is a basic premise of democratic government. It also wrongly assumes that the process of dying can never be an important life experience for terminally ill persons and those who love them.

Instead, our task is to work to ensure that everyone in our society has access to basic health care, which always includes comfort care and pain control for those who are terminally ill. The challenges posed by climbing health care costs cannot be met in a way that denies the fundamental dignity of all human beings. They cannot be met in a way that erodes our capacity to respond to those who most need our care. This is a matter of both justice and charity. As Pope John Paul II writes in his encyclical Evangelium Vitae (EV): "Where life is involved, the service of charity must be profoundly consistent. It cannot tolerate bias and discrimination, for human life is sacred and inviolable at every stage and in every situation. ... We need then to "show care" for all life and for the life of everyone" (EV, 87). That is the most fundamental challenge of all, the challenge of living the gospel of life.

Professor Kaveny is an associate professor of law at Notre Dame Law School. She has authored many articles on the relationship of law and morality, and holds four graduate degrees from Yale University, including an M.A., M. Phil., J.D. and Ph.D.



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