Academic journal article Issues in Law & Medicine

Withdrawing Life-Sustaining Treatment from People with Severe Disabilities Who Request It: Equal Protection Considerations

Academic journal article Issues in Law & Medicine

Withdrawing Life-Sustaining Treatment from People with Severe Disabilities Who Request It: Equal Protection Considerations

Article excerpt

In 1983, the Southern California affiliate of the American Civil Liberties Union (ACLU) sued on behalf of Elizabeth Bouvia, a young woman with cerebral palsy. The ACLU sought a court order requiring a hospital to provide intravenous morphine to Ms. Bouvia while she starved herself to death.(1) The Bouvia case was the first highly publicized right-to-die court proceeding to involve a conscious individual with substantial but not terminal disabilities.

Although Ms. Bouvia had experienced a series of personal setbacks including a miscarriage, spousal abandonment, loss of certain financial benefits, and loss of an opportunity to pursue a master's degree, these events were not addressed as factors precipitating a suicidal crisis subject to clinical intervention and treatment.(2) Her very public request for assistance to die was not interpreted as the proverbial "cry for help." Instead, the court, the ACLU attorneys, psychiatric professionals, and the media assumed that Ms. Bouvia was rationally preferring death over the life with disabilities she had experienced since birth.(3)

A number of individuals with disabilities attended the trial court proceedings in the Bouvia matter and protested the court petition by picketing the ACLU's offices. The lower court denied Ms. Bouvia's right-to-die petition.(4)

The appellate court reversed by ruling that Ms. Bouvia's request did not involve an assisted suicide.(5) Nevertheless, by the time the appellate decision was handed down, Ms. Bouvia's suicidal crisis had passed, and she did not carry out her plan of self-starvation.(6) Unfortunately, in the course of the proceedings, she did not receive appropriate psychological counseling or other support services, her limbs contracted from disuse, preventing her from using the motorized wheelchair she had used to get through college, and she became dependent on morphine.(7)

While Ms. Bouvia has dropped out of the public eye, her case continues to serve as legal precedent for similar court rulings across the United States. A recent right-to-die ruling was issued in the Nevada case of Kenneth Bergstedt.(8) The Nevada Supreme Court relied, in part, on the Bouvia analysis in determining that Mr. Bergstedt's petition to direct his caregivers to disconnect his ventilator was not a request for suicide, but rather was a request for natural death.(9) When considering requests for assistance in dying by persons with severe disabilities, other courts have made the same "it's not suicide" determination.(10)

Why do courts conclude that petitions for an assisted death by persons with severe but nonterminal disabilities do not implicate suicide? The answer may be that these courts elect not to apply the equal protection constraints on state action found in the federal and state constitutions. By declining to apply protections against suicide, and indeed by encouraging or approving death for persons with disabilities, while continuing to extend suicide protections to persons without disabilities, the courts risk denying persons with disabilities the equal protection of the laws.(11) Only by ruling out suicide in these right-to-die cases can courts avoid a direct confrontation with equal protection principles.

This article examines the practice and consequences of treating requests to die by persons with disabilities as rational choices and not as suicidal pleas for help and assistance in living. By selectively ignoring laws and policies for suicide prevention in these cases, courts are applying a double standard for persons with and those without disabilities. This double standard is based on the courts' ill-informed quality of life judgments. The resulting court actions are subject to constitutional challenge for their failure to provide equal protection to persons with disabilities.

Statement of Facts: McKay v. Bergstedt

Kenneth Bergstedt was a thirty-one year old man with quadriplegia who had used a ventilator since the age of ten. …

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