Northwest Effort on Right to Die Faces High Court
The Pacific Northwest, which has spawned consumer revolutions from personal computers to gourmet coffee, has become home to the latest upheaval in individual rights: a terminally ill person’s right to “hasten death” with a fatal dose of medication.
While maverick Michigan pathologist Jack Kevorkian has made headlines for helping dozens of patients die, a small group of activists in Washington and Oregon has moved quietly--and, so far, successfully--to make the practice legal.
In March, the Seattle-based group Compassion in Dying won a landmark federal appeals court ruling that declared “a mentally competent, terminally ill adult” has a right to obtain medical help to end his or her life.
That means people like Alice Hagli, a 70-year-old widow whose lung cancer has spread to her breast and throat. Five years ago she cared for her husband as he died of cancer, an ordeal that convinced her she does not want to linger for agonizing weeks.
“I want to live,” she says. “Who doesn’t? But I don’t want to live in agony and pain. What’s the point?”
This week, the U.S. Supreme Court will consider an appeal of the right-to-die ruling filed by Washington’s attorney general. If the justices reject the appeal, assisted suicide will be legal in California and eight other Western states.
More likely, the high court will hear the case and use it to set a national precedent on the right to die.
Meanwhile in Oregon, another small group of retirees, AIDS activists and physicians won a state ballot initiative that permits dying patients to obtain medicine to end their lives. A federal judge in Eugene has blocked the law from taking effect, but the same U.S. appeals court that ruled in the Seattle case is expected to overturn his order.
If it does, Oregon will become the first state where assisted suicide is legal.
The battle, however, may be just beginning.
“This is the abortion issue of the 1990s,” says Susan Dunshee, who heads both the Seattle AIDS Support Group and Compassion in Dying.
She and other advocates call it a matter of personal choice, the right of dying people to control their final days. Dunshee says she became interested in the issue eight years ago when a friend who had AIDS, alone and in despair, jumped off a bridge one Sunday morning.
“No one should have to die alone, especially in a violent, horrible way like that,” she says. “We will put a dying animal out of its misery, but we can’t bring ourselves to help a patient who asks for the same help.”
Under its guidelines, Compassion in Dying and its volunteers work only with patients who are likely to die within six months. The patients must request help to end their lives on at least three occasions, and their close relatives must agree with the decision.
Even then, the group neither provides lethal medication nor administers it. Instead, it informs patients about how to get a physician to prescribe medicine that can be fatal in large doses.
“This is not suicide in the normal use of that word,” says Ralph Mero, a Unitarian Universalist minister who founded the group. “Suicide is usually a secretive, violent act by a despondent person. It cuts short a life and leaves a family traumatized.
“This is very different. . . . It is hastening death for someone who is already dying. And it is not secretive or traumatic. They are at home. The family is brought together. They say their final goodbyes. And then they simply fall asleep.”
Opponents condemn assisted suicide as violating two fundamental principles of civilized society: that doctors should not kill their patients and that government should not sanction the practice.
Leaders of the Catholic Church and the American Medical Assn. say they fear the nation is about to start down a road that will inevitably lead to putting to death the old, sick, disabled and unwanted.
“It is a very dangerous proposition when society begins to decide which lives are worth living,” says Richard Doerflinger of the National Conference of Catholic Bishops. For the state to allow assisted suicide “would be saying society has an interest in protecting the lives of the healthy and able-bodied but not those who are terminally ill.”
The AMA says the “physician’s role as healer” would be fundamentally jeopardized if the law permitted doctors to end the lives of some patients. “Morally, there is a world of difference between using pain medication to relieve pain and using it to cause death,” says Linda Emanuel, the AMA’s vice president for ethics standards.
Despite the AMA leadership, many doctors apparently support assisted suicide. A confidential survey of more than 2,700 Oregon physicians found that 60% believed it should be legal to help some terminally ill patients die.
“A lot of docs are closet supporters” of the right to die, says Dr. Thomas A. Preston, chief of cardiology at Seattle’s Pacific Medical Center. “They certainly want this choice for themselves, but they don’t want to say it publicly.”
If many Americans have become less afraid of dying than of living too long, it is because of medical technology’s growing capacity to prolong life. Doctors can “keep a human body alive for longer than any reasonable person would want to inhabit it,” as Justice Antonin Scalia once put it in concurring with a Supreme Court opinion that actually limited the right to die.
More than that, cost concerns have forced many people to abandon their family doctors in favor of health maintenance organizations and other large medical institutions.
“They’re afraid of dying a miserable death, in pain, surrounded by technology that keeps them alive and makes them uncomfortable, at huge cost, delivered by strangers in a lonely, ugly environment,” says Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania. When he asks people whether they would rather spend a year in a medium-security prison or a nursing home, he says the response is 80% to 20% in favor of prison.
In the Pacific Northwest, the right-to-die movement has succeeded in the face of political leaders’ silence or outright opposition. In Washington and Oregon, the governors and state legislatures refused to get involved in the issue, and most of the leading newspapers, church figures and medical leaders spoke against the idea.
Support came from the grass roots, from people such as Don and Sheila Cook, who both watched their mothers die slow deaths.
“Once you see a loved one dying, it can change your view forever,” says Sheila Cook, now 65. “My mother spent nine years in a nursing home with Alzheimer’s. By the end, they were forcing food down her throat.”
Her husband, a retired 70-year-old Boeing engineer, is still haunted by the memories of his mother dying of ovarian cancer.
“I knew I did not want to put my family through that kind of ordeal,” he says. “It’s not the pain; they can make you a zombie. It’s the total helplessness. Wearing diapers. Unable to move, unable to feed yourself. The total loss of control over your life.”
In 1991, the Cooks and other volunteers put on the Washington state ballot a measure to authorize euthanasia. While early polls showed strong support, the tide turned when ads raised the specter that doctors would simply kill their unwitting patients.
The initiative was defeated, 54% to 46%, leaving it illegal for doctors to assist suicides under all circumstances. A year later, Californians rejected a similar initiative by an identical 54% to 46% vote.
Neighboring Oregon has its own grass-roots activists, notably Al Sinnard, a lively 79-year-old who built a series of wholesale tire stores in the Portland area. In 1989 his wife, Sara, was suffering from a rare and painful heart defect. No one could cure the disease or even alleviate the pain.
“Finally, she said to me one day, ‘Al, I want out. I’m alive, but I’m not living,’ ” he says. In the weeks afterward, she told her children and close friends of her decision.
She also insisted that her husband not be present when she carried out the act because Oregon’s law, like California’s, makes it a crime for any person to take part in a suicide. One day, Al returned home to find his wife’s lifeless body in bed with a plastic bag over the head.
“I swore right then I was going to change that law,” he says. “It was absolutely wrong for the law to say I couldn’t be there, that she had to die alone.”
Sinnard joined forces with a group of gay activists, including Tim Shuck, a 47-year-old with AIDS. Like many gay men, Shuck has become a reluctant expert on death and dying.
“I’ve lost 20 close friends,” he says, including a companion of 16 years who died of meningitis.
Unlike most of the AIDS and cancer patients who have been active in the right-to-die campaign, Shuck has lived long enough to see the victories. He is weakened these days, too fatigued to tend his garden. He takes morphine three times a day to ease the pain. He says he has stockpiled medication to end his life when he can no longer communicate with his family and friends.
“I’m lucky in that sense,” he says. “I got into this to help those who come later.”
Oregon Ballot Item
Sinnard, Shuck and Oregon’s other right-to-die activists were unable to prevail upon the state Legislature to change the law. So they gathered signatures and put the issue on the ballot in 1994.
Learning from Washington state’s experience, the Oregonians wrote detailed guidelines to make clear that the scope of assisted suicide would be carefully limited and that the patient, not the doctor, would be in control at all times.
Two doctors, according to the Oregon law, must certify a patient is likely to die within six months. That means the initiative will not aid those with an incurable illness that does not threaten imminent death, nor will it help Alzheimer’s patients who cannot express their wishes.
Doctors who choose to participate may prescribe death-inducing medication, but their patients must take it. The law “does not authorize mercy killing, lethal injection or active euthanasia,” according to the guidelines.
Voters backed the Oregon Death With Dignity Act, 51% to 49%.
The outcomes of both the Washington state and the Oregon ballot initiatives were appealed to federal courts. They overturned the votes in both cases: a peculiar result in which federal judges declared unconstitutional the Washington law that forbids assisted suicide and the Oregon law that allows it.
In Washington, Kathryn Tucker, a 37-year-old Seattle lawyer who worked pro bono for Compassion in Dying, suggested challenging the state’s existing law banning assisted suicide as unconstitutional.
By an 8-3 vote, the U.S. 9th Circuit Court of Appeals supported that challenge, striking down the Washington law on grounds that it violated the personal liberty of dying patients. Writing for the court, Judge Stephen Reinhardt of Los Angeles cited a doctor’s description of his helplessness when faced with the ghastly suffering of a man dying of AIDS.
“For such patients, wracked by pain and deprived of all pleasure, a state-enforced prohibition on hastening their deaths condemns them to unrelieved misery and torture,” Reinhardt wrote.
And before the Oregon law could take effect, the National Right to Life Committee brought a lawsuit that has stopped its implementation. James Bopp Jr., the group’s general counsel, said in court: “These people kill themselves because they are suffering from the psychiatric illness of depression. They are incapable of making a rational decision.”
“I heard him say that in the courtroom, and I was offended by it,” Shuck says.
U.S. District Judge Michael R. Hogan sided with the Right to Life Committee, ruling that Oregon’s right-to-die initiative was unconstitutional because it made the law different for terminally ill and healthy persons.
But the state attorney general and the initiative’s sponsors have appealed to a panel of the U.S. 9th Circuit Court, which has already come down on the side of the right-to-die activists in Washington. Lawyers agree that Hogan’s order is likely to be reversed.
The appeals of the Washington and Oregon cases turn on a single clause in the 14th Amendment: No state shall “deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
At first blush, the guarantee that a person’s “liberty” will not be taken away “without due process of law” suggests only that the state may not lock people up until it has won a conviction.
Throughout the 20th century, however, the Supreme Court has said the word “liberty” implies much more. It has used the 14th Amendment to establish constitutional rights to travel freely outside the United States, to get married and to send children to private or parochial schools.
In 1973, in its most controversial decision of recent decades, the court said this individual liberty includes a pregnant woman’s right to choose abortion. Just four years ago, a closely divided Supreme Court upheld the abortion right, saying matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment.”
That passage looms large in the battle over the right to die. In the suit challenging the Washington law banning assisted suicide, Tucker said a wish by dying persons to end their suffering was exactly the kind of “intimate, personal choice” that should be left to the individual.
Reinhardt agreed in his opinion setting aside the Washington law.
Tucker filed a similar claim in New York on behalf of Dr. Timothy Quill, a Rochester physician threatened with criminal prosecution after describing an assisted suicide in a medical journal.
She won there too. The U.S. 2nd Circuit Court of Appeals struck down New York’s law against assisted suicide on grounds that it discriminated unconstitutionally among dying patients.
This week, the U.S. Supreme Court justices will decide which of more than 1,500 appeals they will hear. Prominent on the list are the right-to-die cases, which are called Washington vs. Glucksberg, 96-110, and Vacco vs. Quill, 95-1858.
Lawyers for the AMA and the California Medical Assn. filed a joint brief urging the court to reverse the 9th Circuit. Separately, California Atty. Gen. Dan Lungren also filed a brief reminding the court of the state law making it a felony to “deliberately aid or advise or encourage another person to commit suicide.”
Lungren called the appeals court ruling “a radical departure from our nation’s history and tradition” that threatens “the sovereign power of the states to protect and preserve the lives” of the terminally ill.
Alice Hagli, the cancer patient from the Seattle area, is just glad to be around to see the case proceed. Earlier this year, she chose to forgo further treatment for her cancer, and she stockpiled barbiturates to end her life. She had chosen Oct. 18, the anniversary of her husband’s death, as her day to die.
But right now she is feeling better than she has in a long time, and her doctor has reported that her tumors have not been growing. She visited her daughter in Alaska in early September.
“I’ve given myself another six months,” she says cheerfully, “and I’m going to enjoy it.”