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Abstract:
While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient's interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity of life demands suppression of all intentional killing, including suicide (self-killing) and killing motivated by a desire to relieve suffering. Mercy killing has long been anathema in American law. Even though compassion for a dying person may tempt a health care provider or other observer to relieve suffering by any means possible (at least when the patient is requesting such relief), a ban on mercy killing is a symbolic reminder of the preciousness of human life and of the moral worth of every human. Letting die, but not intentional hastening of death, is said to be compatible with the sanctity of life.

This article argues that this pat framework is simplistic and deceptive. Current medical ethics and the jurisprudence of death and dying authorize practices that intentionally hasten death. Lawful forms of hastening death include: a physician who, at a competent patient's behest, pulls the plug on a life-sustaining medical intervention while sharing the patient's wish to end a torturous dying process; a physician who cooperates with a gravely afflicted person's fatal decision to voluntary stop eating and drinking (VSED); a physician who administers deep sedation to a preservable but suffering patient while knowing that the patient has already declined artificial nutrition and hydration (ANH) and hence will soon die; and a physician who administers pain relief in a known lethal dosage (even with the primary intention to relieve intractable suffering). These ways of hastening death (with concomitant physician participation) are probably legal and probably in widespread use.

Do these modes of hastening death make bans on physician-assisted suicide (PAS) and/or voluntary active euthanasia (VAE) anomalous? Do they obviate any strong need for legalization of PAS or VAE? Do they meet the common objective of providing competent, dying persons with a means of shaping a dying process to assure a modicum of dignity?

The currently legal modes of hastening death often entail a period when the dying patient lingers in unconsciousness or semi-consciousness before expiring. A short period of insentience or unawareness as a prelude to death - usually lasting for no more than a few days - does not violate intrinsic human dignity. Therefore, publicizing the current availability of legal modes of hastening death and making them readily accessible might make the legal status quo morally tolerable. But then some dying persons will have to undergo an unwanted period of lingering helplessly (for days). And we will continue to live with the hypocritical pretense that physician-assisted death is lawful only in Oregon.

Abstract:
The furor surrounding the recent Schiavo case included the assertion that the Florida court was implementing a quality of life ethic that would inevitably undermine a preferable sanctity of life ethic. This paper recalls how similar assertions have continuously been made by right to life supporters ever since the Quinlan case in 1976. Those supporters have constantly claimed that surrogate end-of-life medical decisions would jeopardize the well being of vulnerable populations.

This paper argues that quality of life judgments are an unavoidable part of end-of-life medical decisionmaking. The alternative is to keep pumping fluids and gases into floundering, moribund patients until the last possible breath. Notions of intolerable indignity in the dying process can be defined and administered in a sensible fashion.

Death and Dying, Medical Jurisprudence, Quality of Life

Abstract:
In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active euthanasia and assisted suicide would diminish. These modes secure a relatively tranquil death after a maximum period of approximately 10 days lingering in an insentient state. At the same time, I contend, these lawful modes of hastening death are so akin to suicide and euthanasia as to render anomalous the present ostensible prohibitions of physician-assisted death. Perhaps it is time to acknowledge that not all forms of assisted suicide and active euthanasia are criminal and unethical.

And what about Yale Kamisar's projections of abuse and distasteful extensions of voluntary medical decisionmaking? The 46 years of safe utilization of the above modes of hastening death belie the projection that PAD would ineluctably be abused. At the same time, current surrogate decisionmaking about end-of-life issues affecting now-incompetent patients tends to confirm Kamisar's predictions about extensions of PAD to the chronically afflicted (as opposed to the terminally ill) and to incompetent patients. The thesis of this paper, though, is that these extensions, rather than being alarming, are a salutary part of making death with dignity a genuine possibility for fatally stricken persons.

Medical Jurisprudence, Death and Dying, Euthanasia

Abstract:
Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to "the same right" to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have a 14th Amendment right to have a bonded surrogate make important medical decisions on their behalf. Such a right is necessary in order to protect the disabled patient's constitutionally grounded interests in bodily integrity, well being, and dignity. This right invalidates the state cases (in California, New York, Wisconsin, and Michigan) that have sought to confine end-of-life decisions to situations where the dying patient has given clear prior instructions. Such preclusion of surrogate choice leaves every never-competent patient in a medical limbo that sometimes constitutes an undignified and inhumane status. The Supreme Court's 1990 Cruzan decision is criticized and distinguished.

Death and Dying, Incompetent Persons, Surrogate Decison Making

Abstract:
Language in concurring opinions in Glucksberg and Vacco, the 1997 Supreme Court cases regarding assisted suicide, has prompted commentators to infer an emerging constitutional "right to be free of unnecessary pain and suffering at the end of life." This article analyses the relevant language in those opinions and considers the implications of that language for the legal bounds of aggressive palliative care.

The article points out tensions between the Justices' assumptions about available pain relief techniques and traditional criminal law doctrine concerning end-of-life palliative care. Despite those tensions, the Justices' expressions are likely to impel recognition of a "necessity" defense for use of risky pain relief treatment and for use of some forms of terminal sedation. The article examines the likely shape of that defense and assesses the legality of one ultimate form of terminal sedation -- deep sedation accompanied by withholding of artificial nutrition and hydration. One conclusion is that the forms of aggressive palliative care either explicitly sanctioned or implicitly encouraged by the 1997 opinions will go some distance (though not the complete way) toward assuring a modicum of dignity in the dying process.

Abstract:
Two and a half decades have passed since the New Jersey Supreme Court made its hesitant but monumental contribution to end-of-life jurisprudence by ruling that a conscientious surrogate could seek removal of life support from a permanently unconscious patient. Since then, judges, legislators, and commentators have struggled with the issue of human control of the time and manner of dying. This article traces the successes and failures of their efforts to assure dying persons a modicum of dignity in the dying process.

Under the banners of self-determination and bodily integrity, American law has accorded considerable leeway to competent patients seeking to control their own dying processes. This article sketches the established prerogative to reject life-sustaining medical intervention, as well as the emerging prerogatives to stop eating and drinking and to obtain necessary pain relief even in dosage posing risk to life. At the same time, the article challenges the conventional wisdom regarding aggressive palliative care that seeks to transpose the doctrine of double effect from moral philosophy to the context of end-of-life care. And it asks whether public policy should continue the prevailing bans on assistance to suicide and voluntary active euthanasia in light of various means of hastening death that are now accepted.

The picture of end of life jurisprudence is bleakest as to dying patients who have lost capacity to make their own medical decisions. While law has established a sound theoretical framework recognizing prospective autonomy -- the prerogative of patients to use advance directives to try and shape their post-competence medical handling -- significant defects and obstacles have emerged in administration of the advance directive mechanism. The article also sketches the confusing patchwork of decision-making standards that are supposed to govern when people have not left clear indicia of their end-of-life treatment wishes. Besides underlining the weaknesses in several of the prevailing standards, the article suggests a solution in the form of a new standard called constructive preference. That standard seeks to implement the objective underlying most decision-making standards in the end-of-life context -- medical handling consistent with the vision of dignified death shared by most people.

Abstract:
For a dying medical patient whose suffering and/or indignity have passed tolerable limits, a variety of modes of hastening death might seem appealing. These include cessation of life-sustaining medical intervention (once the patient is machine dependent), stopping of eating and drinking, use of pain relievers that might hasten death, terminal sedation, suicide, and euthanasia. The legal status of some of these modes is well established. Physicians may cooperate with rejection of medical intervention and may not assist a suicide or administer euthanasia no matter how dismal the patient's condition. The legal status of the remaining modes of hastening death is less examined and less well understood.

Popular wisdom says that risky analgesics and terminal sedation are lawful so long as the cooperating physician intends to relieve suffering rather than to cause the patient's death. That wisdom relies on the principle of double effect. This article vigorously contests the thesis that the physician's specific intent is the key determinant in shaping the legal status of risky analgesics and terminal sedation. Rather, principles of recklessness -- grounded in degree of mortal risk, nature of the palliative justification, and professional palliative care practices -- govern the legality of these disputed means of hastening death.

This article also discusses the implications of the recklessness framework for the crimes of assistance to suicide and euthanasia. In contrast to some commentary that finds the distinctions among various modes of hastening death to be utterly arbitrary, this article argues that plausible theoretical distinctions separate the currently licit from the illicit modes of hastening death. Nonetheless, the article finds tensions and anomalies within the existing legal structure and suggests that the impetus for death with dignity will eventually impel legal acceptance of currently prohibited modes of hastening death. At the same time, the article acknowledges that the bounds will not stop at physician-assisted suicide for competent dying patients. Expansion of the legal limits will ultimately encompass both euthanasia and non-voluntary euthanasia for some fatally stricken patients.

Abstract:
Bashing advance directives is a growth industry. Some sources doubt the practicality of the entire enterprise, involving as it does the prospective shaping of preferences regarding multitudinous possibilities in inherently unknowable post-competence situations. Other sources cite the ineffectiveness of instruction directives, relying on studies indicating that advance directives have had little or no impact on end-of-life medical care.

Virtually none of these studies, and very little of the criticism directed toward advance directives, differentiates among different types of advance directives. The thesis of this article is that carefully drawn documents can be effective. The inadequacy of the advance directive mechanism to date flows from documents that are too vague and uninformative. People preparing advance directives are usually seeking to define a level of intolerable indignity at which death becomes preferable. By focusing on the elements of indignity that commonly trouble dying persons, drafters of advance directives can prepare forms that are relevant and meaningful to most people. This article examines the efforts of some existing forms to define intolerable indignity and suggests an additional approach. That additional approach is embodied in a model advance directive included as an appendix to the article.