Physician Assisted Suicide

States need the freedom to experiment with different ways of balancing the interests of those who have no reason to continue living with those who have an interest in avoiding a premature death.

Last week, the U.S. Supreme Court heard arguments regarding Oregon’s law allowing patients with a terminal illness having less than 6 months to live to obtain a doctor’s assistance in ending their own lives. The patient must meet a set of requirements that includes two oral requests made at least 15 days apart and a written request with two witnesses. The doctor’s assistance, in this case, consists in writing a prescription for a lethal dose of barbiturates, which the patient administers to himself or herself.

John Ashcroft, when he was Attorney General of the United States, attempted to use the Controlled Substances Act – a law empowering the federal government to fight the recreational abuse of drugs – against doctors who prescribe a lethal dose of drugs.

Again, I want to say that I am not going to write about what the Constitution may or may not say on this issue. I am interested in the question of what the law should say, not on what the law actually says.

There are two issues under consideration here. The first issue whether patients ought or ought not to be allowed to seek medical help in ending their lives. The second issue is whether the Federal Government should interfere with a State’s decision to allow this practice.

With respect to the first issue, I am not going to limit myself to cases of patients who are conscious, of sound mind, capable of asking for assistance in ending their own lives, and capable of administering their own lethal dose of drugs, which the Oregon law requires. I am interested in a more general set of cases that include euthanasia, where a doctor administers the lethal dose because the patient is not able to.

The Right To Die

I can imagine myself, some time in a future, laying in a hospital bed, unable to do the things that mattered to me in life. For me, this means lacking the ability to log onto a computer, read what others have written, comprehend their words, and write a lucid and meaningful response that would be useful to others; and with no reasonable chance of ever regaining that ability. (Let’s leave aside the question of whether I can do these things even today.)

I have spent my life attempting to save a fairly substantial portion of my earnings so that I can leave something behind when I die – something that I can offer as a donation to a project for making the world better. One of my worries is that this money gets wasted caring for my body when it is of no further use to me. Somebody has to pay for this. While the doctors keep my body alive, they would be draining my savings and destroying that which gave my live meaning.

In that case, I regard this body as just so much wasted protoplasm, and I see no particularly good reason to keep this body alive.

Furthermore, I want that death to be done right. When my body and mind become no longer useful to me, I may not be able to take my own life. If I could, I would still be reading and writing. If I can no longer read and write, I am not likely going to be able to take my own life.

There are some who say that assisting me in my death would violate the doctor’s obligation to care for his patient. This begs the question. Caring for the patient means doing what is in the best interests of the patient. Harming a patient means acting against the patient’s interests. The case I described above is one where the patient’s interests are better served by death than by life. Other cases would have to consider the patient’s interest in avoiding pain. In these cases, the greater harm is done by keeping the patient alive.

Two Concerns

In spite of the arguments given above, I have a number of concerns. Two of the biggest concerns are the possibility that those who pay for medical care may go into the business of marketing death, and the effects of weakening the aversion to killing.

Insurance Incentives

One problem is that a patient’s doctor often works for the patient’s insurance company. The insurance company is interested in keeping costs down. Permitting such a ‘right’ will create situations where an insurance company is collecting, let us say, $500 per month of health insurance, but paying out $5,000 per month in treatment. To improve the bottom line, it would be profitable for the insurance company to market death as an alternative treatment.

I am not talking about some callous insurance executive working diligently to promote early death, gleefully marking progress on a graph that shows an ever increasing use of early death options and money saved (though this might happen).

I am more concerned with the subtle ways in which a person’s interests taint the way he interprets data. Personal interest sits in the background, causing people to give extra weight to evidence that supports a desired conclusion, while creating a dismissive uneasiness over evidence that contradicts the desired conclusion. These insurance companies would be convinced that they are promoting early death because it is the right thing to do without consideration of profits. Only, their sense of ‘right thing to do’ is tainted by a subconscious background consideration of profits.

They will market early death options under this mindset. Many patients, in turn, will probably respond to the insurance company’s marketing efforts.

Respect for Life

Another potential concern would be the effects of weakening respect for life.

I think it is possible that regions with no capital punishment tend to have lower murder rates is because they teach their children to have a stronger aversion to killing. Children growing up in a society opposed to capital punishment learn, “Killing is so bad that you should not even kill those who murder and are captured.” Because they have a stronger aversion to killing, the idea to killing is less likely to enter their minds when they get angry or desperate.

If it is true, then we also need to worry about the effect of saying that early death options are permissible. This, too, may lower an aversion to death that makes other types of death easier to contemplate.

This is not a ‘slippery slope’ argument saying that if we allow these options we will end up killing anybody who we find unattractive or unpleasant in any way. I’m certain that people are intelligent enough to draw these distinctions. These arguments are used as scare tactics by people who are unwilling to look at the situation more rationally and objectively.

However, there is room for a lot of wrongful death well before we get to the point where we are executing anybody who displeases us.

States Rights

With respect to both of these concerns, it may be possible to arrange things to harvest the true benefit of early-death options in those cases where it applies, while avoiding the harmful effects. In order to find out what the answers are, we need data.

In a country such as the United States, we can get some of this data by allowing each state to seek its own way on this issue. We should let each state experiment with systems that, to them, seem most likely to secure their safety and happiness. As the results of those state-level experiments come in, other states can use that information to improve upon their own system.

This is part of the value of freedom. Each of us allows our neighbors to live their lives as they see fit (within certain constraints), allowing them to experiment and, perhaps, to fail in what they seek to accomplish in their lives. We learn from them, as they learn from us, which (hopefully) will generate more success than failure. ‘States Rights’ harvests this value of freedom at the state level.

What this means for the case that is before the Supreme Court is that the morally best option (though, perhaps, constitutionally prohibited) is for the federal government to leave this issue in the hands of the separate states and their citizens. Even if the Attorney General has the power to categorize lethal doses of medicine as drug abuse, he should not have this power.