Many of my friends and patients consider Jack Kevorkian a hero for helping sick people escape from their suffering. And many of my own patients—not only those facing cancer and other terminal illnesses, but also those in despair over disability, immobility, and pain arising from arthritis, diabetes, and strokes—have asked me to give them something to end their life. Thus far, I have not felt it legal or appropriate to do so. There is, in the first place, the difficulty of knowing whether they are speaking in rueful jest. Beyond that, whatever sympathy and temptation one might feel in such a situation, emotional and ethical discomfort—as well as fear of liability or sanctions—is always present, especially for physicians.
The Terms of Debate
Suicide, assisted suicide, and euthanasia—though they differ in critical ways—are not always carefully distinguished. Suicide, of course, is the taking of one's own life by one's own hand, even if one uses equipment or substances supplied by someone else. Assisted suicide, then, is a subcategory of suicide: "the act of intentionally killing oneself with the assistance of another, who deliberately provides the knowledge, means, or both." (Quoted definitions are from the U.S. Senate Special Committee on Euthanasia and Assisted Suicide.) The issue of assisted suicide has come to the fore because, in many cases, an individual may not have the knowledge, ability, or means to commit suicide without assistance, particularly if the individual is sick or disabled. Indeed, most of the discussion of assisted suicide involves cases of terminal illness and disability, though other troubling scenarios have been raised in the course of debate.
Euthanasia is defined as "a deliberate act undertaken by one person with the intention of ending he life of another person to relieve that person's suffering where the act is the cause of death." Euthanasia may be active or passive, that is, it may entail providing a substance to hasten death on the one hand, or withdrawing or withholding life support on the other. Passive euthanasia is relatively uncontroversial now, so long as proper consent is obtained from the patient or family. Also uncontroversial are acts sometimes labeled "indirect euthanasia," which would include administering a drug such as a morphine, primarily for pain relief, while knowing it might have the secondary effect of hastening death.
At least in hospital settings, pain medicines and sedatives are used liberally when patients suffer from uncomfortable terminal illnesses, and life-sustaining treatments are frequently withheld or withdrawn, usually with the agreement of the patient and family but occasionally even unilaterally by physicians who feel no obligation to provide or continue treatments they believe are futile. Few today dispute these practices, which are common if not officially approved.
The Legal Disputes
But the distinctions laid out above are not so neat in practice, and it was this lack of sharp boundaries that provided the basis for lawsuits seeking a constitutional right to assisted suicide. In a 1990 case out of Missouri, Cruzan v. Missouri Department of Health, the Supreme Court held that a person has a right to passive euthanasia, that is, the right to refuse life-sustaining treatment. Assisted suicide, however, remained a crime in forty-four U.S. states, plus the District of Columbia, either by statute or under common law, and Congress prohibited the use of federal funds (including Medicare and Medicaid dollars) for physician-assisted suicide.
Consequently, in New York State, the following paradox arose: Doctors could, at the request of a patient, withhold or withdraw treatment sustaining the patient's life, but they could not assist a terminally ill patient in committing suicide. Because of this paradox, three doctors sued the attorney general on behalf of themselves and three terminally ill patients, claiming that it was discriminatory to permit the former act but ban the latter. The Second Circuit Court of Appeals agreed. Some patients, the Circuit Court said, could "hasten death" by ending treatment, while others were not allowed to "hasten death" by assisted suicide.
The U.S. Supreme Court disagreed. A majority decision, written by Chief Justice Rehnquist handed down on June 26, 1997, said that "unlike the court of appeals, we think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical." This is questionable. When an individual decides to give up life, in the face of an incurable disease, it is the individual himself making the decision, and it is the individual who, by that decision, is responsible for his death. It is not the physician pulling the plug or supplying the morphine on request.
Even if this decision had gone the other way, however, nondiscrimination is a weak reed on which to base the right to assisted suicide. A determined foe could say, "If the Cruzan decision leads to assisted suicide, then Cruzan was wrongly decided. Let us again ban the withdrawal of life-sustaining treatment."
For this reason, a case from Washington State, decided the same day as the New York case, was more interesting. Here, Chief Justice Rehnquist, again writing for the majority, posed the question starkly: "Is there a right to die?" Or, in the language the Court likes to use: Is there a "liberty interest" in being able to commit suicide equal to the liberty interest the court found when it upheld the right to refuse life-sustaining treatment?
The standard for such a liberty interest, Rehnquist said, is whether the asserted right "is deeply rooted in this nation's history and tradition." Once he had framed the question in those conservative terms, the conclusion was inevitable. He found that "we are confronted with a consistent and almost universal tradition that has long rejected the asserted right." Indeed, under common law, suicide is a form of homicide, although it is difficult to forbid an individual from killing himself and impossible to punish him for doing so.
As it happens, the chief justice would probably have reached the same conclusion even if he had been less conservative and drawn on the best of the classical liberal tradition. For Lockean philosophy, too, holds that suicide equals homicide, inasmuch as an individual's life is a gift from God that he has a duty to preserve.
Fortunately, the chief justice (and Justice David Souter, in a concurring opinion) broke with this suicide-equals-homicide formula and suggested that state legislatures could experiment with creating variously circumscribed, statutory rights to assisted suicide. At the time, only Oregon had passed such a law, its 1994 Death with Dignity Act, and that presented the court with its next test. (Looking abroad, only the Northern Territories of Australia, which passed a Rights of the Terminally Ill Act in 1995, has a similar law authorizing and strictly regulating physician-assisted suicide.)
Oregon's law permits physicians to comply with a request for lethal drugs if a competent patient has less than six months to live and if certain further constraints are met. The law requires (1) a second opinion that the patient is in fact terminally ill, (2) a competency assessment, (3) mandatory counseling if a psychiatric disorder is suspected, (4) a written request, (5) witnesses to confirm that the patient is acting voluntarily, and (6) a fifteen-day waiting period. This law was upheld by the Ninth Circuit Court, and in October 1997 the Supreme Court declined to hear an appeal, which meant that the law went into effect. This, of course, was consistent with the High Court's earlier ruling that states might wish to experiment with statutory rights to doctor-assisted suicide. As it happened, the November ballot in Oregon contained a referendum that would have overturned the 1994 law. But the referendum was defeated 60 percent to 40 percent.
The Objectivist Perspective
Whatever one thinks of the Supreme Court decision as a matter of law, Objectivists will want to ask whether a person properly has a right to commit suicide and a right to seek assistance from doctors or others in committing suicide.
To date, Objectivists have had little to say on these subjects, but one may extrapolate a few points from the basic principles of the Objectivist ethics. A fundamental Objectivist tenet (detailed in Ayn Rand's Atlas Shrugged and The Virtue of Selfishness) holds that one's life is the only proper goal of one's actions. From this, it follows that man's life—the life appropriate to a human being—is the standard of one's values. But it does not follow that life is to be preserved at all costs or against one's will. In a well-known passage of Atlas Shrugged, John Galt declares that if his enemies threaten to torture Dagny, he will commit suicide right there. In Objectivism: The Philosophy of Ayn Rand (247–48), Leonard Peikoff wrote that "Suicide is justified when man's life, owing to circumstances outside of a person's control, is no longer possible; and example might be a person with a painful terminal illness, or a prisoner in a concentration camp." In reviewing Peikoff's book, however, David Kelley pointed out that any attempt to say when suicide is "justified" contradicts the truth that the choice to live precedes all morality and thus cannot itself be morally evaluated (IOS Journal, Spring 1992).
Whatever the ethical status of suicide in Objectivism, it seems clear that the philosophy's politics must allow for an absolute right to commit suicide, so long as a competent adult is acting on his own uncoerced choice. Yet this (as Chief Justice Rehnquist pointed out) is very much at variance with our political tradition. The difference arises because, in the Objectivist perspective, individual rights are not moral principles protecting a God-given life, but moral principles defining and sanctioning a rational being's freedom of action. Killing oneself is no more a violation of one's right to life than destroying one's own goods is a violation of one's right to property. (Indeed, some carry the property/self analogy so far as to say a person "owns" himself, but as Robert Bidinotto wrote: The metaphor is "wonderfully evocative of an individualist outlook; as a theoretical pillar, it leaves much to be desired" [705 Journal, April 1997]).
Should the reasoning that Objectivists apply to suicide be similarly applied to assisted suicide? On this question, Objectivists have had virtually nothing to say, apart from some remarks Peikoff has made on is radio show. But the obvious logic would be: If a person has a right to appoint an agent or seek assistance in destroying his property, does he not have a similar right to appoint an agent or seek assistance in destroying his life? The analogy seems sound. But many—including Objectivists—see troubling consequences.
Though the current national debate focuses solely on physician-assisted suicide for terminally ill individuals, assisted suicide might spread quickly to healthy individuals. One can imagine innumerable disconcerting instances of such people who might buy painless fatal drugs: a young person disfigured in an accident or abandoned by a lover; a worker who is laid off; an elderly individual fearing disability or a nursing home. In short, one can assume that there are a large number of individuals, more or less unhappy, who would kill themselves if it were possible to do so legally and painlessly. Worse still, in our present culture, impulsive acts of legal and painless suicide might be glamorized.
But why should a terminal illness, or unbearable pain, give or take away fundamental political rights? If a human is absolute owner of his life, there is logically no time at which he does not have a right to end his existence. Likewise, it would seem, there is no means that is forbidden him as a method of ending his life, if it does not violate the rights of others. So, could two people, by mutual consent, agree to hunt each other for sport? This may seem preposterous and horrifying, but if we believe in absolute control over one's life and absolute freedom of interaction and contract, why is this not the logical conclusion?
One possible answer, which is offered here for readers' consideration, is the limit implicit in calling rights "inalienable," a term used by Rand as well as Jefferson. A person has the right to destroy whatever property he may come to own in the future. But could a person delegate to an agent the rights to destroy whatever property the person might come to own at any time in the future? Under a theory of inalienable rights, it would seem he could not. Because a person's rights are inalienable, he must always be able to reclaim from his agent any power that has been delegated to the agent. In similar fashion, John Stuart Mill's On Liberty excluded from the freedoms conferred by autonomy the right to sell oneself into slavery, as it is self-defeating and contradictory to use one's freedom for the purpose of losing one's freedom.
A modern expositor of the doctrine has expressed it this way: "We may alienate (or destroy) the object of an inalienable right, but not the right itself" (Michael P. Zuckert, Natural Rights and the New Republicanism, 295). How this distinction would apply in the case of life, the source of rights, is a difficult question. Perhaps it would render permissible every possible assistance to a would-be suicide, and yet declare active euthanasia illegal. That is a question for political philosophers.
In defining the rights that a person has, Objectivists customarily take for granted the "normal" case: an adult human being, who is mentally competent, who is acting in accordance with his own wishes, and who is employing either his own goods or those entrusted to him. Before urging a law that would secure the right to assisted suicide, therefore, one must carefully define what the right entails, even in the normal case; what abnormal circumstances would limit the right; and what limits are prudent in the present cultural context.
(i) The requirement that only competent adults have a right to suicide seems unproblematic.
(ii) Equally unproblematic in theory, though not in practice, is the slippery-slope concern over the transition of assisted suicide into plain and simple murder. What guarantees would exist to prevent one person from killing another, then claiming the victim was willing to be killed?
In the Netherlands, despite technical legal proscription of euthanasia and assisted suicide, doctors are not prosecuted if they follow strict guidelines; and Dutch surveys indicate that about two percent of all deaths in that country now involve various forms of euthanasia. Inevitably, controversy has arisen over whether the practice is used in contravention of guidelines and regulations, sometimes even without the patient's consent. Thus, many U.S. commentators fear that, if assisted suicide and euthanasia were legalized, death would be inflicted unwillingly on disabled, disadvantaged, or otherwise "undesirable" individuals who might be considered a burden by their caregivers or the state. Biased physicians, family members, or managed care organizations might consciously or subconsciously influence difficult or expensive patients to take advantage of assisted suicide.
Under the circumstances, Oregon's requirements for a written statement, and for witnesses to certify that the patient is acting voluntarily, seem eminently reasonable. As for whatever residual danger may exist: Maria Angell noted in the New England Journal of Medicine that the "slippery slope" cannot be avoided in any aspect of real life; that no human endeavor is immune to abuse; and that, if abuse is sufficiently rare, it can be offset by benefits.
(iii) The requirement of mental competency would also seem relatively uncontroversial. After all, the Objectivist conception of rights is predicated on the requirements of rational, autonomous beings. If a person is mentally ill, to the point of being incapable of rational thought, surely rights are diminished. Joanne Lynn et al. wrote in the Journal of the American Geriatrics Society that in many cases where people suffer from depression, the issue of voluntariness cannot be clearly defined.
(iv) "Acting in accordance with one's own wishes" can be problematic even when people are capable of rational thought. John Stuart Mill suggested that one may restrain an unwitting man from crossing an unsafe bridge because he would not really wish to take such a risk if fully informed. Thus stated, it is an appealing counterexample to the principle that one may never use coercion against another: After all, how long would one have to restrain the hapless pedestrian to explain that the bridge is unsafe? In the present context, an analogous case might be a depressed patient who is capable of making objective decisions but who lacks insight into available treatment options. One could argue that it is acceptable to compromise his autonomy briefly until he has been so informed.
But Mill's counterexample weakens as it grows more complex. A "philosophers' brief," provided to the Supreme Court by five prominent philosophers, including Robert Nozick, argued that—though every competent person has the right to make momentous personal decisions which invoke fundamental religious or philosophical convictions about life's value—people may make such momentous decisions impulsively or out of emotional depression. The brief therefore allows that in some circumstances a state should have the power to override that right in order to protect citizens from mistaken but irrevocable acts of self-destruction.
"States may be allowed to prevent assisted suicide by people who—it is plausible to think—would later be grateful." For example, depressed people, if allowed to, might commit suicide before they could be helped by treatment; following treatment, they might well reject suicide. This, however, goes well beyond Mill. For it is no longer a matter of restraining a person until he has been informed of his options, but of restraining him until he has been counseled about his life and persuaded to accept treatment. Where does this principle come from, and what is its reach? How long would it be permissible to restrain the would-be suicide in order to counsel and persuade him?
Notice, though, that the philosophers' brief speaks not of preventing suicide as such, but of preventing assisted suicide. Could it be that, while all competent adults have a right to commit suicide at will, the right of others to assist them requires that those assistants make sure the would-be suicides' ability to think rationally is not seriously impaired by a condition such as depression? It is difficult to answer these questions objectively, but some safeguards against impulse—such as Oregon's fifteen-day waiting period—might be justified.
(v) Another fear arising from our present culture is that a right to assisted suicide would become a duty to assist or subsidize suicides. Objectivists know that the right of an individual to enlist aid in committing suicide does not mean any other person is obligated to provide such assistance, nor to subsidize it. But with today's mixed economy and socialized medical system, it is a legitimate fear of many who disapprove of suicide that if such a treatment is legalized, it will become government-provided and subsidized. One way around this concern might be to ban government funding for the procedure even while legalizing it, as is done already with passive euthanasia, abortion, and fetal research. [Editor's Note: "The state panel that runs Oregon's health plan voted (February 26) to spend tax money to pay for doctor-assisted suicide of terminally ill poor people." The New York Times, February 27, 1998.]
(vi) A related concern derives from the doctor's current role. A survey quoted in the Annals of Internal Medicine indicated that only 40 percent of physicians were willing to help patients commit suicide. The American Medical Association's statement that "physician-assisted suicide is fundamentally incompatible with the physician's role as healer" was referred to by the Supreme Court and must be taken seriously. Over time, this perception of the physician's role as limited to promoting his patient's health may broaden into a more general obligation to be the patient's advocate in matters of health, and that in turn may mean advocating acceptance of the patient's desire to commit suicide. Meantime, however, the task of dealing with would-be suicides might be undertaken by privately-funded, non-physician groups, specially trained and certified to work with physicians when their patients desire death.
I can see no objective philosophical basis for limiting human autonomy by banning suicide or assisted suicide. However, to pass from that observation to a law securing an unlimited right to assisted suicide would be rash. Philosophical questions exist about the right's proper extent, and practical questions exist about its impact in our present culture. Thus, state laws carving out various statutory rights to assisted suicide seem the best course at present. And such laws are within reach, while a reversal of the Supreme Court's decision probably is not. Majorities in Western countries appear to support the concept of assisted suicide. According to a recent survey cited in the British Medical Journal, 60 percent of Britons do so, and recent polls have found that up to 68 percent of Americans and similar proportions of physicians support the concept of physician-assisted suicide.
To be sure, many medical organizations have supported the Supreme Court's and states' bans on assisted suicide, advocating instead more aggressive palliative care. But this is probably because they foresee tremendous questions of liability and red tape. That is indeed a risk. And adequate supportive and palliative car for terminal illness would make people less terrified of being tortured with futile invasive procedures and with dying miserable and alone in hospitals and intensive care units. What most people fear is not death but dying abandoned and in pain. Physicians should be supported in their efforts to improve the care of the dying and relieve discomfort and suffering. Still, pain and suffering cannot always be controlled medically, and physicians should not abandon patients by saying they can commit suicide by themselves.
Nor does the issue of controlling pain affect the philosophical situation, or the personal face of that situation. For me, as a specialist in geriatric medicine, the most worrisome aspect of physician-assisted suicide and euthanasia is raised by Alzheimer's disease. Though not immediately fatal or painful, this mind-robbing condition is one that people greatly fear because it gradually obliterates the memory, personality, indeed the very self. When people find out they have this disease, if they are still mentally intact enough to understand the implications, they sometimes wish to end their life before the loss, indignity, and burden becomes too much for themselves or their families to bear. As one caregiver recently wrote: "It is really a matter of . . . pride in who and what I am. . . . The state has no business telling me that I can't avoid a future that peels away my soul."