​A Gentle Solution?

Michael D. Peabody May/June 2020

Recently I overheard a group of teenagers discussing a celebrity who had committed suicide not long before. They eulogized him in glowing terms briefly, but then began to talk about the way he died. One of the kids said, “Well, he was in a lot of pain, so I can kind of understand why he did it.” Others chimed in that they agreed, until they reached the consensus that he had made the best choice he could; then they moved on to discuss other matters.

The suicide rate in the United States is reaching epidemic levels. According to the Centers for Disease Control, the rate increased by more than 25 percent between 1999 and 2016; and there were nearly 45,000 suicides in 2016 alone. While some blame media glamorization or social media for the increase, the increasing acceptance of health insurance-covered assisted suicide may play a role for those who engage in “self-treatment” to eliminate physical and mental pain.

The past 20 years have witnessed enormous changes in American attitudes on issues formerly perceived to be taboo. In 1999 society generally supported the ban on euthanasia and assisted suicide when Dr. Jack Kevorkian, who previously had lost his medical license, was charged with second-degree murder and sentenced to 10 to 25 years in prison for administering a lethal injection to a 52-year-old with Lou Gehrig’s disease. The nation was shocked when his attorney said that “Dr. Death,” as the media called him, had participated in 130 assisted suicides between 1990 and 1998.

However, times have changed, and although the U.S. Supreme Court has ruled unanimously that assisted suicide is not a fundamental right, if the Court were to revisit the issue in the next several years, it could conceivably make a finding that the right to die, and to expect medical help in the process, is a fundamental right, and doctors and hospitals who refuse might be forced to argue for their right not to participate.

Court Decisions and States Moving Toward Acceptance

In the mid-1990s a group of doctors and patients in Washington State filed a lawsuit to challenge the state’s ban on assisted suicide. The district court agreed with the group, and the matter was then heard by a smaller panel of the Ninth Circuit, which overturned the district court, but was reheard by the entire Ninth Circuit, which upheld the right to assisted suicide.

The matter then proceeded to the Supreme Court, which issued the 1997 ruling in Washington v. Glucksberg, finding that there was no fundamental liberty interest in assisted suicide, and that the state had demonstrated a rational basis for the law, with state interests, including preservation of human life and protection of the mentally ill and disabled from medical malpractice and coercion. The Court noted that most states attempted actively to discourage suicide, and addressed it as a “serious public-health problem, especially among persons in otherwise vulnerable groups.”

The Glucksberg Court distinguished physician-assisted suicide from abortion, stating that Roe v. Wade and Planned Parenthood v. Casey had recognized that states have an increasing interest in preserving life after the point of viability and had “legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child.”

Although there is no federal right to assisted suicide (at least at this time), states increasingly are passing legislation to allow the practice. Since 1997 eight states, California, Colorado, Hawaii, Maine, New Jersey, Oregon, Vermont, and Washington, as well as the District of Columbia, have passed “death with dignity” statutes. In the case of Montana, the state supreme court found that there was no ban on the practice, so it was determined to be legal by default.

In 2015 the Supreme Court of Canada identified unanimously a national right to assisted suicide. The court ruled that adults who are mentally competent and suffering intolerably with a “natural, reasonably foreseeable death” have a right to ask a doctor for assistance in dying. This reversed the court’s 1993 ruling in Rodriguez v. British Columbia (AG), which had denied the right to an assisted suicide.

In September 2019 a judge in Quebec found that two men who had post-polio syndrome but whose conditions were not terminal had the right to physician-assisted suicide, and that the law forbidding suicide without a terminal illness violated their charter rights. The federal and Quebec governments decided not to appeal the decision.

Doctors and Assisted Suicide

The centuries-old Hippocratic Oath, as vowed by physicians traditionally, forbids euthanasia. This foundational document for modern medical professionalism states, in part, “I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrongdoing. Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.”

In recent years, some medical schools have begun to remove the prohibitions on euthanasia and abortion, which had also been included in the oldest versions.

Cultural anthropologist Margaret Mead observed the importance of the oath and that physicians were “to be dedicated completely to life under all circumstances, regardless of rank, age, or intellect—the life of a slave, the life of the emperor, the life of the foreign man, the life of the defective child.” However, she also observed that “society is always attempting to make the physician into a killer—to kill the defective child at birth, to leave the sleeping pills beside the bed of the cancer patient.”

Where laws tend to move to require medical facilities to provide all legally available “medical treatment” to patients, the Trump administration attempted to provide a conscience exemption for medical professionals who could not participate in assisted suicide, abortions, gender-transition surgeries, or other actions on moral or religious grounds. A federal court blocked the “Conscience Act,” claiming that it exceeded the president’s executive power.

Economic Pressures

The costs of medical care for terminally ill patients is increasing constantly, and the fact that the administration of a suicide pill costs a tiny fraction of that for even a day in the hospital is not lost on taxpayers and family members in the waiting room who can lose thousands of dollars per day of inheritance that they otherwise would receive. If Grandmother’s savings decrease by the cost of one semester of college tuition for each day she remains in the intensive-care unit, the mental calculation is unavoidable, particularly if there is little hope that she will survive the next week. For an insurer or government, terminal hospitalization can be the equivalent of dozens of routine therapies for other patients on the path to recovery.

Derek Humphry, one of the founders of the Hemlock Society, which is known now as Compassion and Choices, said, “In the final analysis, economics, not the quest for broadened individual liberties or increased autonomy, will drive assisted suicide to the plateau of acceptable practice.”

The uncomfortable truth is that if a person is reaching (let us be frank) the point of diminishing returns, and time is money, then money might well win if that choice is available. If one now can legally, ethically, acceptably, and easily “unburden” his/her family from the weight of an uncomfortable or expensive life, it could become the default decision millions of aging baby boomers make. The generation that was the first to take advantage of the nationwide legalization of abortion following Roe v. Wade in 1973 may also be the first to engage in widely available, legal assisted suicide.

Assisted Suicide and the Taboo

When award-winning actor Robin Williams committed suicide in 2014, suicide rates rose by 10 percent over the next five months and the number of suicides by the means he used increased by 32.3 percent. In response to the Williams statistics, some blamed media reporting that “portrayed a glorified version of the event.”

However, because social media fail to observe such standards, it is not difficult for the curious to learn, in excruciating detail, what happened. As conversations take place over the Internet about mental and physical health considerations, some might relate to the victim and see the rationale reflected in their own lives.

Within the past 20 years, people have observed dramatic social changes that follow a general pattern. At first, most people may not know about or understand a particular issue. Then it becomes publicized, and the majority may claim to be offended by it. They may even vote against the issue, and it may not be recognized legally unless there is a significant judicial decision on the matter. Thereafter, the public has to change its policies to accommodate it, and a short time later, those who refuse to recognize it become social and legal pariahs, as the rhetorical poles have now shifted. Expressing any concerns about the issue is seen as unreasonably “judgmental,” and the final holdouts face dire consequences of their intransigence.

With respect to assisted suicide, we are nearing the height of the roller coaster just before it tips and careens into general acceptability. As suicide becomes increasingly mainstream, through further court rulings or social convention, those who continue to express concerns about it will be considered “judgmental” and ultimately will be considered “extreme.” It will become increasingly difficult to distinguish between physician-assisted suicide and more efficient “self-treatment.” Given the trends in Canada and prospective changes in American laws, either on a general federal level or state by state, suicide likely will lose its stigma and be increasingly identified as an equally viable option. Those who refuse to recognize the right to suicide will become the new social pariahs, and the discussion will have shifted irrevocably as people consider living to be the moral equivalent of seeking death. “Judging” another’s “death style” might become a new taboo, regardless of whether suicide is physician-assisted or self-directed.

As the arguments for assisted suicide reach their climax, with euthanasia to follow inevitably, it may be well for people of good will to recall the words of the poet Dylan Thomas:

“Do not go gentle into that good night,

Old age should burn and rave at close of day;

Rage, rage against the dying of the light.”

Article Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”