Academic journal article Journal of Criminal Law and Criminology

Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case

Academic journal article Journal of Criminal Law and Criminology

Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case

Article excerpt

In 1991, the Chicago law firm of Pope & John Ltd. established a lecture series at Northwestern University School of Law. The Pope & John Lecture on Professionalism focuses on the many dimensions of a lawyer's professional responsibility, including legal ethics, public service, professional civility, pro bono representation, and standards of conduct. The Journal of Criminal Law & Criminology presents the October 25, 1997 Pope & John Lecture by Professor Yale Kamisar, which is followed by three responding commentaries.

I. INTRODUCTION

On the question you ask depends the answer you get.(1)

Now that the U.S. Supreme Court has upheld New York and Washington state laws prohibiting the aiding of another to commit suicide,(2) the spotlight will shift to the state courts, the state legislatures and state referenda. And once again proponents of physician-assisted suicide (PAS) will point to a heart-wrenching case, perhaps the relatively rare case where a dying person is experiencing unavoidable pain (i.e., pain that not even the most skilled palliative care experts are able to mitigate), and ask: What would you want done to you if you were in this person's shoes?

That is a hard question for opponents of PAS to answer, but, as I shall try to spell out in this article, I think it is the wrong question to ask. To put it another way, I think it is a very different question than one which asks: Should we enact a law allowing PAS under certain circumstances?

Different people oppose the legalization of PAS (or physician administered active voluntary euthanasia) for different reasons. I believe that what John Arras said of the twenty-four persons who made up the New York State Task Force on Life and the Law (New York Task Force)--all of whom wound up opposing the legalization of PAS/euthanasia(3)--applies to opponents of PAS/euthanasia generally. As Professor Arras pointed out, the opponents fall into three major camps:

First, those who believe the practices are "inherently immoral."(4) Second, those who are greatly disturbed by the fact that "physicians are being called upon to do the killing," a development they view as "fatally compromis[ing] the physician-patient relationship."(5) Third, those who recognize that in certain rare instances PAS/euthanasia might constitute "a positive good," but nevertheless "shrink from endorsing" these practices because they fear the "social consequences" of legalization.(6)

Professor Arras has disclosed that during his tenure with the New York Task Force he belonged to the third faction.(7) So do I.(8)

For those of us whose opposition to the legalization of PAS/euthanasia is based on grounds that put us in the third camp, the heartwrenching case, e.g., a person enduring the last stages of ALS (Lou Gehrig's disease) who, barely able to speak, begs for immediate death, is especially troublesome. Indeed, the heartwrenching case is a principal reason why there is so much support for PAS/euthanasia in this country.

All too often a reporter believes that the way to provide an in-depth treatment of the subject is to set forth a detailed account of a particular individual begging for assistance in committing suicide--a detailed, poignant account that blots out what might be called societal or public policy considerations. And all too often, I suspect, when asked by pollsters about their views on the issue, people focus on the compelling case for PAS/euthanasia they have read or heard about--with nary a thought about the societal consequences of legalizing the practice.

As Professor Arras has pointed out, whether we maintain the total prohibition against PAS/euthanasia or whether we lift the ban for certain groups of people, "there are bound to be `victims.'"(9) Continues Arras:

The victims of the current policy are easy to identify: they are on the

news, the talk shows, the documentaries, and often on Dr. …

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