The thought of suicide is a great consolation: by means of it one gets successfully through many a bad night.(1)
The debate on the right to die has recently reached the proportions the abortion debate has held over the last few decades. This is due, in part, to improvements in medical technology and a gradual shift in medicine from paternalism to patient self-determination.
As in the abortion debate, proponents of assisted suicide have begun to focus their efforts on legal reform. In November of 1991, Initiative 119, a ballot measure in Washington state that would have legalized active euthanasia for competent terminally ill patients, narrowly failed, 46% to 54%.(2) In the three months between December 1991 and March 1992, legislators in four states--Michigan,(3) New Hampshire,(4) Maine,(5) and Iowa(6)--introduced legislation to legalize either assisted suicide or physician aid-in-dying for the terminally ill. In addition, the group Californians Against Human Suffering gathered 570,000 signatures placing a physician aid-in-dying measure on the ballot in California.(7)
In the absence of legal reform, assisted suicide for the terminally ill is now occurring outside of the law throughout the United States.(8) Rather than asking physicians to risk their professions and futures and requiring that patients continue to suffer against their will, carefully drafted laws legalizing assisted suicide in narrow cases should be passed.
Suicide is defined as the intentional taking of one's own life.(9) It is not currently illegal under any state statute, although it may arguably be a crime in a few states under common law.(10)
In order to be classified as assisted suicide the death must be considered a suicide, i.e., not withholding or withdrawal of life support;(11) and there must be "affirmative, assertive, proximate, direct conduct such as furnishing a gun, poison, knife, or other instrumentality of usable means by which another could physically and immediately inflict some death producing injury upon himself."(12)
For the purpose of this article, assisted suicide is distinguished from active euthanasia. In the former, a physician simply prescribes drugs for a patient, who then ends his or her own life. In the latter, the physician or some other person performs the act that brings about death, e.g., a lethal injection.
Assisted Suicide Statutes
Despite the fact that suicide is not a crime, assisted suicide generally is. Twenty-seven states have specific statutes making assisting a suicide a crime.(13) Although it is not clear the types of cases for which most of these statutes were intended, at least one was passed for the specific purpose of preventing assistance in the suicide of a terminally ill individual.(14)
In those states that do not specifically criminalize assisted suicide, it may fall under murder or manslaughter statutes.(15) Because most cases are handled on the trial court level and therefore not reported, one can only speculate on the outcome in an individual case of assisted suicide where no specific statute exists.(16)
An exception to this is the state of Michigan. Michigan has no statute criminalizing assisted suicide. In addition, the case of People v. Campbell(17) reinforces the legality of assisted suicide, as do recent judicial actions related to Dr. Kevorkian's assistance in several suicides.(18) In the Campbell case, not involving a terminally ill person, Steven Campbell gave a gun to a suicidal friend and encouraged him to use it. Mr. Campbell was ultimately charged with murder and initially convicted. On appeal, the conviction was overturned. The court reasoned that under the law suicide is not homicide, "hope alone" does not constitute the necessary intent, and the trend is moving away from classifying assisted suicide as a crime, since two-thirds of states do not do so.(19)
Cases Where Assistance in Suicide Was Requested
The majority of cases regarding the right to die are refusal of medical treatment cases and, as such, are distinguished from assisted suicide cases.(20) There are, however, several cases that explicitly discuss assisted suicide and offer some guidance on how courts view this issue.
The most well-known opinion favoring the right to assisted suicide is that of Bouvia v. Superior Court.(21) Elizabeth Bouvia was quadriplegic from cerebral palsy and lived in a state hospital. She was totally dependent on others and required intermittent pain medication. She petitioned the court, seeking removal of a feeding tube being maintained against her will. The California Court of Appeal ultimately ruled that Ms. Bouvia had the right to refuse medical treatment, stating that the decision to live or die belongs to the patient rather than the state.(22)
While the majority distinguished refusing medical treatment from committing suicide, a concurring opinion written by Justice Compton treated the case as one of requesting assisted suicide. Justice Compton wrote:
The right to die is an integral part of our right to control our own destinies so long as the rights of others are not affected. That right should, in my opinion, include the ability to enlist assistance from others, including the medical profession, in making death as painless and quick as possible.(23)
Although characterized as assisted suicide, the facts of the Bouvia case are quite different from those in the recent case of Donaldson v. Van De Kamp.
In Donaldson v. Van De Kamp,(24) Thomas Donaldson, who suffered brain cancer and was expected to die within five years, petitioned the court to be allowed assistance in his suicide so that he could be cryogenically preserved until a cure was found and, he hoped, his body returned to life.(25)
The court referred to relevant state interests (preserving life, preventing suicide, protecting innocent third parties, and maintaining the ethical standards of the medical profession) that must be balanced against an individual's interest. It also added an unqualified general interest in the preservation of human life. However, the court failed to articulate whether Donaldson's interest in choosing death outweighed the state's interests. Instead it based its conclusion that Donaldson not be allowed assistance in suicide on the state interest in "maintaining the social order through enforcement of the criminal …