The Constitutional Case against Permitting Physician-Assisted Suicide for Competent Adults with "Terminal Conditions."

By Bopp, James, Jr.; Coleson, Richard E. | Issues in Law & Medicine, Winter 1995 | Go to article overview

The Constitutional Case against Permitting Physician-Assisted Suicide for Competent Adults with "Terminal Conditions."


Bopp, James, Jr., Coleson, Richard E., Issues in Law & Medicine


The story of Tim illustrates poignantly an underlying social issue at stake in the legal debate over physician-assisted suicide for terminally ill patients. Aside from the constitutional issues, a question of great social import must be asked: Is helping people to kill themselves an appropriate response to the life conditions that cause them to ask for such "help" Tim was a patient of Dr. Herbert Hendin, a leading expert on the subject of suicide.(1) Dr. Hendin is professor of psychiatry at the New York Medical College and executive director of the American Suicide Foundation in New York City. A professional in his early thirties, Tim was referred to Dr. Hendin for psychiatric consultation after being diagnosed as having acute myelocytic leukemia. With treatment Tim would have a twenty-five percent chance of survival; without treatment he would certainly die within a few months.

Tim's immediate response to this life crisis was a desperate desire for suicide. He also wanted help in carrying it out. He was preoccupied with concerns about being dependent and unwilling to tolerate the symptoms of his disease or the side effects of the treatment. Due to these preoccupations, Tim could not even consider how he felt about death and its meaning to him. However, with counseling, Tim was able to talk about the possibility or likelihood of his death. He was able to express what it meant to him in terms of separation and bodily disintegration. As a result, his desperate avoidance subsided.

Tim decided to undergo medical treatment and complained little about its unpleasant side effects. He spent the remaining months of his life connecting with his wife and parents in ways that were moving and meaningful to him. Two days before he died, he talked about what he would have missed without the time and opportunity for a loving parting.

Dr. Hendin observed that Tim's expectation of painful circumstances surrounding his dying was not irrational. However, all his anxieties about death and dying were displaced onto amplifying them. Many patients and physicians displace anxieties about death onto the circumstances of dying--e.g., anxieties about pain, dependence, loss of dignity, as well as the unpleasant side effects resulting from medical treatment or, for the physician, frustration at not being able to offer a sure cure.

Dr. Hendin noted that, under Oregon's new law, the Death with Dignity Act or Measure 16, Tim would probably have requested assisted suicide. Since he was mentally competent and not clinically depressed, he would surely have qualified and been accepted for such assistance. Consequently, he likely would have committed suicide in an unrecognized state of terror without the chance to die in the dignified way he did.

In presenting the legal case against statutorily permitting physician-assisted suicide for competent adults with terminal conditions, the primary focus of this article will be the constitutional and statutory issues. Yet the backdrop to the constitutional debate is made up of real people in real crises, such as Tim. What does society say to Tim if it grants and facilitates his desire to kill himself because he is terminally ill? Is helping Tim kill himself an appropriate way for society to deal with his crisis situation?

The New York State Task Force on Life and the Law (hereinafter "New York Task Force" considered these questions in an exhaustive study entitled When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context,(2) and concluded that

[w]en a patient requests assisted suicide or euthanasia, a health care

professional should explore the significance of the request, recognize

the patient's suffering, and seek to discover the factors leading to the request.

These factors may include insufficient symptom control, clinical

depression, inadequate social support, concern about burdening family

or others, a sense of hopelessness, spiritual despair, loss of self-esteem,

or fear of abandonment. …

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