Pragmatism in the Face of Death: The Role of Facts in the Assisted Suicide Debate
40 Pages Posted: 21 Jan 2011
Date Written: 1998
This article argues that sound law and policy on physician-assisted suicide demand careful attention to the empirical realities. Few arenas of medical practice have generated more empirical studies. Yet too much debate over physician-assisted suicide ignores the data. Consider this thought experiment: Were any of us offered a choice between unrelieved agony at life's end and assisted suicide, we would probably choose the latter. And if we were further assured that there was already a widespread practice of physicians directly and intentionally causing death, we would fail to see why law should block the relief we sought. Then how is it that many of us continue to oppose legalizing the practice? To a large extent, the answer lies in the facts. In reality we will not face that binary choice, as physicians can relieve virtually all pain, certainly if they can sedate patients to unconsciousness. And there is no real evidence of a widespread practice of physicians directly and intentionally causing death. Termination of life-sustaining treatment could be done to kill, but there is no evidence it usually is. Similarly, we have no persuasive evidence that physicians usually administer pain relief or sedation to terminal patients with the intent to end life. Indeed, it is not even clear that giving pain relief in high doses or heavy sedation actually hastens death. The point is that facts matter. They do not alone resolve the outcome of the assisted suicide debate; normative controversy figures large. But they alter the arguments, by showing some claims to be based on clinical realities and others not.
Nothing shows the conflict between unsupported rhetoric and clinical data more clearly than the litigation of Washington v. Glucksberg and Vacco v. Quill. In the Supreme Court, respondents adverted to empirical work on some issues, especially on the Dutch situation and what they called "terminal sedation." Yet they advanced core arguments unsupported or contradicted by the data. Petitioners also made uneven use of the data. It really fell to the amicus briefs to offer a fuller empirical picture. Thus, buried in the current debates over policy and constitutional law on physician-assisted suicide is a deeper struggle. It is a struggle between abstract argument that largely avoids the data on end-of-life practices and presents future assisted suicide in idealized terms, and argument that places assisted suicide in the context of data, tethering claims to the realities of the clinic. This, of course, is a struggle with implications far beyond assisted suicide. It involves the degree of abstractness and generality with which we frame rights, and the role of facts - especially what have been called "legislative facts" - in policy and constitutional disputes. It has animated a widespread revival of interest in pragmatism and its associated empiricism.
This article is an attempt to face directly the problem of empiricism's role in the assisted suicide debate. It argues that there are strong reasons to insist on pragmatism and empirical analysis in confronting assisted suicide. Not only are the data copious, but the life-and-death stakes demand careful attention to context and current practice. The article considers the role of data in both in the Supreme Court’s adjudication of the constitutional issues, and state determinations of whether to legalize the practice post-Glucksberg and Quill. The article argues that acontextualism and failure to attend to the data are enormous problems in both spheres. The sweeping rights that respondents advocated in the Supreme Court litigation sound appealing in the abstract. It is only when one begins investigating the underlying factual assumptions and the realities of care at the end of life that the picture becomes more complex. The article argues that in the states, empiricism is a critical component of responsible democratic debate.
Ultimately, this article is about how we choose to face death. Many have tried to beat the Grim Reaper with grand rhetoric before. And we lawyers can hardly be blamed for trying to force death into the regime we know, the world of rational rights-bearers, documents, and arm's length transactions. But decades of work on death and dying place us now in a new position. Armed with data, facing death no longer behind closed doors but in the more public light of the hospital and nursing home, we can start using what we know. We can try to look squarely at death, facing the needs of real patients and caregivers, insisting on pragmatism at life's end.
Keywords: Physician-assisted suicide, euthanasia, termination of treatment, end-of-life care, death and dying, constitutional law, health law, bioethics, empirical studies, pragmatism, empiricism, law and medicine, law and science
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