Bringing Euthanasia Issue to the Ballot Box : Group Sponsors State Initiative to Legalize ‘Physician-Assisted Suicide’

The Christmas season of 1984 found Los Angeles attorney Robert Risley and his cancer-stricken wife, Darlena, 41, in rented quarters in the Bahamas where they went seeking a miracle but ended up facing death, instead.

The couple discussed the situation and reached what would become for Robert Risley a life-altering decision. If the circumstances--Darlena’s intensifying pain and the growing futility of her life, marred by rapidly advancing ovarian cancer combined with hepatitis--warranted it, Robert Risley would take his wife’s life.

It never came to that. After about two weeks of accelerating deterioration in the Bahamas apartment, Darlena Risley died. “We talked about it but (in the end) she never really requested it (assistance in dying),” Risley said in an interview. “She fought until the last moment. But I had decided that, no matter what the risk, I’d do what she asked.”

Intensifying Discussion

That experience 2 1/2 years ago has thrust Risley and the state of California into the forefront of the intensifying discussion over a narrowly specialized aspect of euthanasia--a practice called “physician-assisted suicide.”

Risley, 54, and his law partner, Michael White, have formed an organization they call Americans Against Human Suffering. With technical assistance from the Hemlock Society--which has long advocated the right to suicide--the two lawyers are attempting to place on the 1988 California ballot an initiative that would make it legal for doctors to kill terminally ill patients who want to die.

It is a long-odds proposition, almost everyone agrees. But while it is uncertain even if the referendum can qualify for the ballot, its drafting and the formation of a sponsoring group--complete with direct mail fund-raising campaigns--have already made California the first state in which a euthanasia referendum has gotten this far.

The issue has also surfaced for the first time in a state Legislature--in Hawaii--where a bill roughly similar to the Risley-White referendum was introduced earlier this year by an Oahu assemblywoman, Joan Hayes. The bill, which Hayes said will not even come up for a hearing in the current session, would amend Hawaii’s living will act (including the right to refuse heroic measures to maintain life) to permit a person to agree in advance to assistance in dying if he or she is terminally ill. Hayes said she hopes to attract additional sponsorship next year.

Risley has conceded privately that the sheer mechanics of gathering the 450,000 to 500,000 signatures required to qualify for the ballot may delay the suicide initiative until 1989, at the earliest. Risley and White, along with Hemlock Society general counsel George Garbesi, agree that, though public opinion polls appear to show Californians in favor of such a right to die, the outcome if such an issue ever got on the ballot is difficult to predict.

The Opposition

Right-to-life groups--including a federally funded organization that organized a conference on assisted suicide at Stanford University last week--have signaled certain opposition to the Risley-White ballot measure. Prominent medical ethicists, including USC’s Alexander Capron, and organized medical groups including the California Medical Assn., have indicated they, too, will join the battle on the opposing side.

Opponents say legalizing the taking of a terminal patient’s life would, as a practical matter, be too open to abuse to be justifiable--despite its emotional attraction in genuine tragedies.

But even if the fate of the proposed California referendum is tenuous, the state grows increasingly prominent in the international controversy over assisted suicide. The government of the Netherlands, which has long unofficially countenanced the right of the terminally ill to die if they wish, is currently considering a series of proposals to formally legalize the practice.

Dutch doctors active in the euthanasia movement say as many as 6,000 doctor-assisted suicides occur there each year, though government spokesmen insist those estimates are exaggerated and that the true total is somewhat less. Prosecutions against physicians occur but are infrequent.

Whatever the true number of euthanasia deaths, Dutch anesthesiologist Dr. Pieter Admiraal believes the situation in the Netherlands--and perhaps California--may be on the verge of another step in legal evolution. Admiraal is known as the Dutch euthanasia movement’s most prominent exponent. “It’s just, in my opinion, the quiet before the storm now,” Admiraal said in a telephone interview.

This legal evolution in the United States and elsewhere, a variety of observers agreed, amounts to extending the current practice of not prolonging life--by turning off respirators, shutting down oxygen lines and terminating food and water in hopeless patients--to what advocates and opponents agree is the next logical step. If someone who will surely not survive is entitled to discontinue heroic measures to prolong life, can’t that person also authorize specific, decisive termination of the same life?

J. H. W. Kits Nieuwenkamp, legal adviser to the Dutch Ministry of Welfare, Health and Culture, said the government hopes to complete a review of legal criteria that could be set for formally legalized euthanasia sometime later this year--perhaps as early as June.

“The administration wants to legalize and accept active euthanasia (as opposed to the termination of life-support services, which is sometimes called ‘ passive euthanasia’) and accept it under suitable circumstances,” Admiraal said. “They (the government) are finding out what kind of circumstances will be best.”

Admiraal said he has performed “about a hundred” euthanasias on terminally ill patients in intractable pain. “It’s not the quantity,” he said. “It’s the quality of terminal care.”

Darlena Risley’s death had many of the classic elements of tragedy. Diagnosed as having ovarian cancer, she underwent, Robert Risley said, two courses of chemotherapy, including one experimental treatment at UC San Diego. There were two operations in a year and a half, but her condition continued to decline steadily.

After they got to a controversial cancer clinic in the Bahamas, though, she and her husband found several weeks of hope. Some of the cancer that had spread into her lymph nodes appeared to vanish. “We were absolutely ecstatic,” Robert Risley said. But then, as the treatment continued, Darlena developed hepatitis and, he recalled, “the hepatitis and cancer teamed up. It got so it was very painful.”

Robert Risley returned to Los Angeles alone after Darlena died, determined, he said, to change California law so someone in an analogous situation would not feel as legally powerless and at risk as he had.

In California, any action that abets a suicide is a felony--even including, legal experts agree, giving a terminally ill patient a gun, syringe or pills that the patient later uses to take his or her own life.

With that in mind, Risley traveled to Sacramento and approached a series of legislators, including state Sen. Barry Keene (D-San Rafael), a key backer of earlier changes in California law that now permit a person to give advance authorization to someone else to decide if life-support efforts are to be terminated in the event of a coma or other situation that renders the patient unable to function.

But Keene and other legislators, a spokesman for Keene confirmed, agreed Risley’s proposal seemed too controversial and politically risky to stand any chance of getting through the Legislature. It was at that point, Risley said, that he and White first decided to draft their proposed ballot initiative, formally called the “Humane and Dignified Death Act.”

Ironically, the referendum language on which the two lawyers finally settled would not have accommodated the situation Risley and his wife faced. Nor would it apply to most comatose patients. Alzheimer’s patients wouldn’t qualify, either, because they would not be competent to consent to their own deaths. The proposed change in law would not, for that matter, have applied to Elizabeth Bouvia, the quadriplegic Riverside woman who fought for the right to starve herself to death. Bouvia was not terminal by many definitions.

Instead, the Risley-White referendum would permit a physician--and no one else--to kill if a patient was terminal and had been found by at least two physicians to be incurable and likely to die within six months. A patient could sign a document in advance directing his doctors to end his life.

The validity of the authorization could be challenged and the patient himself could revoke the advance authority at any time, up to the very moment death--probably by lethal injection--was to occur. The death could only take place in a hospital.

“Physician-assisted death happens now, of course,” Risley said. “One of the ways it happens is the patient is in the hospital and, when the IV (intravenous tube) is running and the morphine is going in, it’s simply increased to ‘control pain’ at the expense of longevity. But when that’s done, whoever is doing it is at risk criminally. We’d like to exonerate them.”

The two lawyers have also tried to attract support among attorneys, with some success. The Beverly Hills Bar Assn. endorsed the Risley-White measure and the California Bar Assn.’s advisory Conference of Delegates, which does not set association policy, defeated an endorsement on a close voice vote earlier this year, a bar association spokeswoman said. Risley and White say they plan to try again in early 1988.

Risley and White say they have tried to anticipate the possibility that the life-ending power could be abused, but both men say they expect that if the initiative qualifies for the ballot and if it is passed, it would be challenged immediately by opponents.

“Of course there’s abuse potential,” Garbesi said. “To suggest that society is unable to deal with the problem because of the possibility of abuses is to miss the point that all law is subject to abuses.”

Within the last few weeks, Assemblyman Larry Stirling (D-San Diego) has agreed to consider sponsoring a version of the Risley-White measure. Stirling said in a telephone interview he may introduce the bill as part of a package of related measures sometime next year, “because we shouldn’t be leaving our citizens and our professionals in this gray area.

“It’s a question society has been shying away from for a long time because of our fundamental and religious values. We have a hard time with this.”

Physicians generally don’t quarrel with the assertion that some doctor-assisted deaths now occur. But to Burlingame internal medicine specialist Dr. Francis Healy, a member of the California Medical Assn.’s statewide ethics committee, accepting legally established roles as executioners is a concept so foreign to American medicine that the Risley-White referendum stands little chance of attracting widespread support.

“Our objections are several-fold,” Healy said in a telephone interview. “Can a physician really stand in both positions--that of a healing and caring person and also as a person who ultimately dispatches you to the Great Beyond?”

To Healy, the issue is uncomfortably similar to two other conundrums doctors face: the ethics of administering lethal injections as a means of executing criminals and the controversy in repressive countries over the role of doctors in examining people being tortured.

To USC ethics expert Capron, extending legal sanction to the killing of the terminally ill would involve completely unacceptable risks of abuse. Making this kind of law in California, he said, would risk extending the “right to die” until it became a “duty to die,” under which the terminally ill could be pressured to accept death--intimidated, perhaps, by physicians and others who could argue that the terminally ill were unnecessarily absorbing scarce financial resources.

“My impression is that they (backers of the ballot measure) are going to try to piggyback on people’s understandable distress at the lack of control they have in the dying process,” Capron said, “and, in effect, confuse . . . the extension of life through artificial means . . . (and) active killing.” More than a moral issue, though, for Capron, the essence of the controversy is practical rather than ideological. This practicality, he said, raises a series of questions for which, to ethicists, there can be no defensible answers:

- What if doctors had made a mistake in their terminal diagnosis?

- What would happen to the doctor-patient relationship if the doctor could legally take life as well as try to save it?

- Wouldn’t legal physician-assisted killing discourage doctors from going to extraordinary lengths to find an effective cure?

- Wouldn’t such legalized taking of life make it dangerously easy for physicians to terminate the lives of patients on whom they had made diagnostic or therapeutic mistakes?

- How could society guard against the subtle transition between a patient giving informed consent to termination of his or her life to the same patient being coerced by family members or doctors eager for the relief that might come to others if the life was ended?

Such questions dominated the recent conference, co-sponsored by the Stanford University School of Medicine, the Santa Clara University School of Law, the Horatio Storer Foundation and the National Legal Center for the Medically Dependent and Disabled. The latter organization is based in Indiana and funded by the federal government’s Legal Services Corp.

The government-funded group is dominated by right-to-life and disability rights advocates. The center’s director, attorney James Bopp, said in an interview that the conference had been convened in response to renewed interest in the United States in euthanasia issues.

“I think it is not inconsistent with some other trends in law,” Bopp said, that the extension of greater legal sanction to the right to die has inevitably led to what could be called the next logical step. “Once you have gone that far in withdrawing legal protection from classes of persons and saying it’s legally acceptable for a physician or a nursing home to select out and starve to death certain patients, there’s a certain perverted logic to saying, isn’t it more ‘humane’ to say we ought to give them a lethal injection?”

Paul Longmore, a historian and research fellow at the Huntington Library in San Marino, contended that disabled people may have reason to fear that formal enactment of an assisted-suicide law would constitute a chilling risk for the disabled, who might find themselves under pressure to accept death.

“I don’t think it’s far-fetched or paranoid to assume that these same suicide rights advocates will use this law to push for significant expansions,” said Longmore, who himself is partially paralyzed from polio. “They don’t just want it for the terminally ill. They have a very broad agenda.

“It is simply too dangerous to permit legally authorized, medically-assisted suicide for anyone because they (advocates of the concept) intend to go well beyond that.”