Language shapes perception. It becomes the reality by which we judge circumstances and draw conclusions. Thus when people use the term “Physician Assisted Suicide” (“PAS”), it suggests an almost nefarious collaboration between a doctor and a depressed patient. It assimilates individuals in two antipodal situations: the first, an able-bodied, physically healthy but mentally deranged or at least impaired individual with no physical obstacles to a continued life who is dealing with a temporary set-back; the second, a mentally competent but physically incapacitated, terminally ill person, increasingly decrepit and often suffering incurable excruciating pain whose days on earth are circumscribed to at best a few months.
Can one really call acts to end life in both situations identical or even so similar that they warrant the same descriptor. One individual has every possibility of continuing to live perhaps for years or decades; the other is condemned by a terminal illness to a few months. One’s act often strikes us as the height of irrationality; the other seems a rational response to the inevitable.
It is for this reason that the preferred term of art for the type of legislation we are seeking is Medical Aid in Dying or Death with Dignity or Physician Assisted Dying. To use the word “suicide” to describe what competent patients facing a terminal illness choose as their exit plan is to trivialize the courage and strength of character involved.
We all can imagine talking a would-be suicide off the ledge: “Don’t do it! You have a family that loves you…this too will pass… you have your health… all is not lost!” And those pleas are founded in reason, fact and logic.
But what do you say to a bedridden emaciated, dying person hooked up to feeding tubes or a respirator, lapsing in and out of consciousness form the daily regime of morphine to stifle temporarily the otherwise constant pain? There would be a cruelty to lie to the patient that somehow the cancer will miraculously go away when every day it takes a larger toll; you know the person’s quality of life will only deteriorate and that the patient will never again be able to walk or run or enjoy life the way he once did.
Two vastly different situations warrant vastly different descriptions.
Let us examine then the statutory prohibitions in 40 states against Assisted Suicide, often deemed a felony which can result in lengthy prison time. The first such law in the US was enacted in New York in December 1828. This was a rather logical addition to the criminal code because at that time, suicide itself was a serious crime with grave repercussions for the heirs of the decedent. The prohibition on suicide was largely a reflection of the common Judeo-Christian religious condemnation of self-murder as interfering with God’s plan. Clearly if committing an act is illegal, abetting that act should logically also be illegal. And so it was. In every jurisdiction in the country, suicide was statutorily illegal and assisting someone in the commission of that crime was thus deemed a felony offense.
We have come a long way since theology alone dictated the whims of our legislators. Now, suicide, albeit a tragedy and a national disgrace, is legal in every state and there are no legal repercussions for the heirs (with the exception that most life insurance policies are invalidated). How then is it logical or even rational to state that although an individual may commit a certain act with impunity, anyone who aids that person in committing that legal act may go to jail for abetting the commission of, not a crime, but of a lawful action. Should it be illegal to help someone do something lawful?
Even if we were to accept that what is right for the individual is impermissible for the abettor, clearly there are differences warranting legislative precision.
Again let us imagine two different situations. Abel has just been dumped by his girlfriend. In tears, he calls upon his estranged brother Cain for counsel. Cain, knowing that he will inherit the totality of their parent’s patrimony if his brother Abel is out of the picture, takes advantage of Abel’s distraught and fragile state of mind and readily accedes to Abel’s jeremiad of self-pity. When Abel mentions feeling suicidal, Cain suggests that would be the best solution and then hands him a loaded revolver with which Abel then shoots himself.
In another scenario, Jill lies in bed as she has for over a year, in a semi-comatose and constantly deteriorating situation: incontinent, hooked up to intricate medical technology, in constant pain, unable to move her cancer-ravaged body without excruciation and exhaustion. She was once a champion equestrian, fiercely autonomous and independent. Now she languishes dehumanized, humiliate, dependent on nurses, and loved one for all her daily needs. Her doctor has been brutally honest that the cancer is incurable, inoperable and terminal. She has at most 6 months to live. She asks her loving sister Jane to facilitate her end by passing her an extra large dose of morphine. She passes quietly surrounded by those who love her best.
In both cases, the state could prosecute Abel, the evil, sinister, malevolent brother and Jane, the loving, caring sister as equally guilty felons. But query whether Jill is committing suicide when hastening her death by a few months given the inevitability of the outcome compared with Abel who has many years ahead of him if only he could get over his depression.
Words matter– it is irresponsible to deem Medical Aid in Dying as anything other than Good Samaritanism with the patient’s ultimate and rational wishes at heart.
For those of us committed to enactment of Medical Aid in Dying legislation across the country, the writings of Judge Gorsuch give us pause. In a full length book and several law review articles, Gorsuch is unambiguous in his disdain for such laws. He views the practice, based on worst case scenarios extrapolated from a limited data sampling as of 2002 of the Oregon and Dutch experience, as a parade of horribles. And yet, in 2017, we now have a score years of statistics compiled by the Oregon Department of Health, which show zero cases of abuse, error, euthanasia or discrimination. It is as if Judge Gorsuch in 2002 said to the proponents of Medical Aid in Dying: “I am pretty sure your little experiment will fail in a torrent of predictable horrors, so there is no need to continue, but if you do, I, and my fellow skeptics, will be watching!”
We can hope Judge Gorsuch is a man of his word, because the dis-sync between his predicted outcomes and the actual results is so dramatic that he should be invited to revisit his writings and update his conclusions. Either Judge Gorsuch was an ideologue hiding in an empiricist’s clothing, or he is in fact a rational jurist who lets the facts determine his beliefs.
Reading Judge Gorsuch’s well researched articles against Medical Aid in Dying, I am struck by his dismissive critique of the Oregon regime as nothing more than unqualified doctors killing unwilling patients. He has reviewed data from the Netherlands where euthanasia is practiced and in fact preferred by patients who have a long standing relationship with their primary medical provider and who are in extremis. He has found in the data instances where Dutch doctors do not have explicit requests for the termination of life, but who nevertheless proceed to euthanize their patients, based on what they believe the patient would want. And he then confounds this practice as proof positive that all Medical Aid in Dying regimes will ultimately degenerate into hurried doctors dispatching their most inconvenient patients with nary a by-your-leave, whether they wish to end their life or not.
Most troubling is Judge Gorsuch’s confounding of Medical Aid in Dying as nothing more than a run-of-the-mill suicide: an irrational, regrettable and unnecessary act motivated by a curable depression or a momentary disappointment. He dismisses the possibility that a rational individual could could ever wish to terminate a life bounded by the hopelessness of an incurable and terminal illness. He ascribes almost an animus to any physician who would treat a patient seeking Medical Aid in Dying.
He writes in the Wisconsin Law Review, Volume 2004, page 1375:
“[In the Oregon law] there is absolutely no recourse for family members when a doctor kills (sic) a patient on the basis of gross negligence by misdiagnosing the patient as terminal or by misassessing the patient as competent.”
Judge Gorsuch has perhaps misread the Oregon statute. Any doctor who kills a patient under the Oregon statute is guilty of murder, full stop. A family member thus absolutely has recourse. The Oregon statute, unlike the Dutch law to which he makes frequent comparisons, prohibits the doctor from administering the lethal dose, on pain of prosecution.
If Judge GOrsuch is merely trying to write flamboyantly and means that it would be tantamount to killing for the doctor to misdiagnose a patient as terminal or to find a patient competent who is in fact not, Judge Gorsuch seems to forget that it is the patient who has sought out the doctor because he is suffering from what he knows to be a terminal illness and wants to end it. It is the patient who has sought the very prescription which the doctor later writes. This is not a case where a patient not knowing what is wrong, seeks the consultation of a doctor whose misdiagnosis causes unwanted troubles.
Let us go back to the rather muscular language which Judge Gorsuch utilizes. For him, Medical Aid in Dying is nothing more than a physician enabling an unnecessary suicide. But language matters and it colors the debate. Shall we talk about a family member, grieving, tearful, disconsolate, who after weeks by the bedside of a comatose grandmother nods to the attending to disconnect the respirator as nothing more than a “murderer” because surely, unplugging the respirator will “kill” Granny? Shall we call it “killing” when a doctor, respecting the wishes of his patient, writes a lethal dose of a prescribed medicine because the patient is in constant excruciating pain, bedridden, incontinent, humiliated and deeply resentful of his compromised and dehumanized state? Shall we call it suicide when a bedridden patient asks for the respirator to be turned off? Is there a difference between an able-bodied, competent, healthy individual who blows out his brains because he has just been fired from work and is deeply humiliated with an 85-year old diagnosed with a metastasised cancer which has spread to his spinal column and is invading his brain?
In point of fact, this is not a mere matter of splitting hairs. When an individual commits suicide, there can be dire unintended legal consequences, besides the grief at the loss of a loved one. Typically life insurance policies, for example, are invalidated by an act of suicide. Some religions will refuse to accord the decedent funeral rites. Accordingly, the Oregon statute specifically sates that ending life with the Act’s parameters is not considered “suicide” or “assisted suicide”; rather the cause of death its he underlying terminal illness.
Judge Gorsuch is promiscuous if not flippant in his use of inflammatory and deeply misleading vocabulary in all his writings on topic. A more dispassionate approach would go a long way to make his arguments far more palatable.
Despite protestations by United States Senate Democrats that they will give as good as they got, the likelihood of successfully filibustering Judge Neil Gorsuch’s nomination ad infinitum is slim, if for no other reason Majority Leader Mitch McConnell can always dispense with the filibuster requirement by simple majority vote. Thus, it behooves us all to become familiar with the thinking of this brilliant 49-year old jurist who is likely to be on the court for a generation or more.
Of particular interest to those of us who advocate Death with Dignity legislation is the extensive writings of Judge Gorsuch on “Assisted Suicide” (his words). He has written a book on topic as well as several law review articles.
What is interesting about Judge Gorsuch’s views is they were developed during the infancy of the Death with Dignity legislative regime, without the benefit of the now 20 years of supporting data. As Judge Gorsuch appears to be very much a social scientist more than an ideologue, I am hopeful that he will have an open mind and revisit his thesis in light of more recent data and modify his views. His writings make clear he is adamantly opposed to Physician Assisted Suicide and euthanasia for a variety of reasons. His parade of horrors would make anyone recoil, yet a score years on with the Oregon experiment, joined by five other states, including his native Colorado, and the District of Columbia have shown that there has been no abuse, no racial profiling, no shunting aside of the weakest among us. The Oregon regime works well. We hope Judge Gorsuch will reconsider his premature condemnation.
We were thrilled to meet on Wednesday, February 1, with the two co-sponsors of HB 611, introduced in 2015, which called for enactment of a Death with Dignity statute similar to the one in place since 1997 in Oregon. Rep Pricey Harrison (D-57) and Susan Fisher (D-114) met with us as we reviewed the encouraging developments in the last few months: passage in California, approval by voter referendum in Colorado, passage in Washington, DC by the city council, enactment of comprehensive legislation in Canada. Reps Harrison and Fisher indicated an interest in reintroducing a bill during the current legislative session, with the goal to get at least either to hearings in committee or agreement to have a study group.
Rep Harrison introduced us to several other legislators who were interested in hearing about the legislation, including both GOP and Democratic Senators and Representatives. We were especially pleased to meet with Speaker Tim Moore’s LA focused on health issues who asked probing but fair questions. We promised to provide background materials to help legislators study the history of the law.
Our visit was most timely as the President had just announced his nominee for the Supreme Court, Judge Neil Gorsuch who has written extensively on “Assisted Suicide” including a full-length book. We believe the country will hear quite a bit about Judge Gorsuch’s views on Death with Dignity in the next few months.
We can’t choose how and when we are born, and to a large extent, as children, we cannot control our environment, where we live, and what we do. Our parents, teachers, pastors, scout leaders dictate terms.
But with maturity, comes autonomy– the right, within the confines of our financial and moral constraints, to decide how to live our lives. How curious, then, that society for so long has denied us the right to choose how we exit life.
We all know that death awaits us– we can’t predict when, we can’t know how. We can prepare for it, of course, by preparing a will, filling out various forms, taking out life insurance. But we never know for sure that today might not be our last day on earth.
Now imagine, if you will, that you learn that you have contracted a fatal, irreversible illness. Surgery is not an option; drugs do not exist to cure the encroaching disease, and the best that can be hoped for is you will eke out something resembling a compromised existence for a period of months. Keep in mind, that every day things will get worse– you will be less continent, more fatigued, in greater pain, less autonomous, more dependent, less coherent. As bad as today is as you struggle to get through the hours of agony, tomorrow is going to be worse
Every day your family and friends make the pilgrimage to your bedside to exchange loving inanities, tastefully avoiding the elephant in the room. You do not enjoy people seeing you so diminished, so unlike the way you used to be. It takes a huge toll on them to visit daily and you are getting no joy out of life. The fact that the situation is medically hopeless and predictable makes the wait frustrating and counterproductive.
At some point, you decide: this is not what I want. I am in a sterile hospital room, surrounded most hours of the day by well-meaning medical staff, interrupted by the brief hours when I have visitors. Every day, it takes more and more of an effort just to survive for less and less reward. I would like to just end it. There is nothing more on Earth left for me to do before I return to see my Maker, who is calling me, who despite my prayers, has settled on my fate. I want simply to say good-bye and let go.
Now ask yourself: could this happen to you or to someone you care about. Would you want that painful decision to rest not with you and your family but rather with a state legislature that knows nothing about you. Shouldn’t you be able to ask your doctor to facilitate a painless, quick exit so that you might plan the date and time of your death, under conditions under your control: perhaps at home, perhaps surrounded by your loved ones, perhaps with your favorite soothing music on a day of your choosing. Your pastor or priest might object that you are better off suffering until the end, despite the pain, despite the embarrassment, despite the dependences, but should he be able to veto your decision. Listen to him, of course, but don’t be forced to give up your personal plans for your exit because of his beliefs, not yours.
For most of humanity, individuals rarely reached an advanced age. Life was cruel, brutish and short. If you even survived childhood, and most did not, you faced any host of rampant diseases, all of which are now treatable, and most of which were poorly understood in the first place. The medical profession was as likely to do more harm than good in its treatment and beliefs.
So we really never had a society-wide proliferation of aging people. Soon the typical demographical pyramid with a wide base of young and a narrow top of the aged will be rectangular and at current trends will eventually be an inverted triangle.
We also today have made such vast technical improvements in medical care that we can artificially prolong life, even when it is vastly compromised, even when autonomy and mobility have been robbed. THe disabled can live productive fulfilling and happy lives which was close to impossible a century ago.
Thus for most of humanity, we really didn’t have much input in how we died. We were swept away in epidemic outbreaks such as the Black Plague, or cholera, or typhoid or yellow fever. In wartime, to be injured was likely to lead sooner than later to death.
But now, we actually have a choice. We can have the plug pulled. That is a constitutional right, to decide when we have had enough and no longer want to continue the struggle tied up to a machine. But that means of course, that we are in a hospital. We now die in hospitals, not at home. A century ago, almost everybody died at home, surrounded by family and friends holding vigil. Today, most of us die in antiseptic, unfamiliar nursing homes and hospitals.
Dying is the last thing each of us does as a human, as a living thing. As humans, we can control our destiny’s end. SHouldn’t that be our supreme right.