Stopping for Death: Re-Framing Our Perspective on the End of Life

54 Pages Posted: 24 Sep 2009 Last revised: 15 Jul 2010

See all articles by Ruth C. Stern

Ruth C. Stern

Independent

J. Herbie DiFonzo

Hofstra University - School of Law

Date Written: September 18, 2009

Abstract

How we die is increasingly becoming a matter of law and public policy. We grapple with issues of patient autonomy, the proper parameters of doctor-patient discussions on the end of life, the right to hasten death, and the right to control our own medical treatment. But it is physicians and patients, not judges and legislators, who are the principal actors in events at the end of life. Palliative medicine is just beginning to probe the multi-dimensional totality of suffering in dying and seriously ill patients. What we learn will influence our options at the end of life and tell us why different approaches benefit different individuals. Before we invite the lawyers and the policy makers to our bedsides, it is important that we understand the dying process, and how doctors and patients can more effectively collaborate in the pursuit of a better death. As litigation in appellate courts and battles over state voter initiatives reveal, our legal system has not yet decided who should control the final decision over our lives. Stopping for Death: Re-Framing our Perspective on the End of Life, continues the examination of the judicial, ethical and policy responses to the demand for legalized assisted suicide and euthanasia which we began in Terminal Ambiguity: Law, Ethics and Policy in the Assisted Dying Debate, 17 B.U. Pub. Int. L.J. 99 (2007). This new article reflects upon our society’s growing sensitivity to suffering, and examines how recent developments have altered expectations of the doctor-patient relationship. Learning more about the nature and impact of serious illness highlights the limitations of our current end-of-life laws and policies. The legal parameters for voluntarily ending our lives are currently confused and in conflict. Moreover, they have been debated and enacted amidst a cacophony of rights’ talk and discourse about the permissible extent of governmental authority and the range of constitutionally-commanded privacy. Indeed, the current clamor threatens to drown out more subtle yet insistent voices asking that, before we bestow a right, we thoroughly investigate the nature of the wrong. But an insufficient amount of scholarly literature has addressed the conditions at ground zero in the assisted suicide debate: the quality of life of those near death, as well as their expectations for care and how a reasonable society might fulfill them. This article questions the utility of the concept of “terminal illness” in devising methods to care for the dying, and it argues that hospice and palliative care, long believed to be nearly infallible in end of life care, do not benefit all patients. We conclude by suggesting that assisted dying is but one of several ways to manage our own dying. What is more important is that, in an era of shrinking health care resources, we revise the ways in which we think about death, both medically and legally.

Keywords: assisted suicide, euthanasia, health law, medical ethics, right to die, jurisprudence

JEL Classification: I12, I18

Suggested Citation

Stern, Ruth C. and DiFonzo, J. Herbie, Stopping for Death: Re-Framing Our Perspective on the End of Life (September 18, 2009). Hofstra Univ. Legal Studies Research Paper No. 09-21. Available at SSRN: https://ssrn.com/abstract=1475348 or http://dx.doi.org/10.2139/ssrn.1475348

J. Herbie DiFonzo

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

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