The Right to Assisted Suicide: Protection of Autonomy or an Open Door to Social Killing?
Rosenblum, Victor G., Forsythe, Clarke D., Issues in Law & Medicine
The status of assisted suicide as public policy in the United States is admittedly in a state of turmoil. This turmoil is reminiscent of the legal status of abortion in the few years preceding the Supreme Court's 1973 decision in Roe v. Wade.(1) The parallel may be indicative of the future direction of law and public policy regarding suicide.
The call for legalized suicide has been increasing in several quarters, most loudly, of course, from suicide advocacy organizations like the Hemlock Society, the Society for the Right to Die, and Americans Against Human Suffering. Some have suggested that "the subject of assisted suicide deserves wide and open discussion."(2)
The Society for the Right to Die scored a publication victory earlier this year with the article "The Physician's Responsibility Toward Hopelessly Ill Patients" in the New England Journal of Medicine.(3) The article supports assisted suicide for the "rational" patient who is hopelessly ill, dying, or in the end stages of an incurable disease.(4) This article is merely one of many published in recent years that is sympathetic to active euthanasia or suicide.(5)
At the same time, the attitude of Americans toward assisted suicide seems to be ambivalent. An Associated Press-Media General poll in February 1985 reportedly found that 68% of the respondents believed that incurable patients ought to be permitted to end their lives by active means.(6)
Conflicting legal decisions have added to the confusion. Cases such as those of Gary Weidner,(7) Peter Rosier,(8) Elizabeth Bouvia,(9) and Roswell Gilbert(10) are not based on identical premises and do not reach mutually reconcilable conclusions.
The rising incidence of suicide contributes to this turmoil. Suicide has been described as an "epidemic" in America in the 1980s.(11) In 1985, 28,500 Americans committed suicide, making suicide the nation's eighth leading cause of death.(12) Three years ago, the Metropolitan Life Insurance Company published a report that concluded that suicides among adolescents under age fifteen were hitting record numbers.(13) At the same time, the suicide rate for older Americans is almost 50% above the rate for the general population and rising.(14) Between 1948 and 1981, the suicide rate for older persons dropped from 28.1 to 17.1 per 100,000. But in the past several years, the rate has again risen, from 18.3 in 1982 to 19.2 in 1983 to 21.6 in 1986.(15) In addition, it is generally believed that official suicide statistics underestimate the true rate of suicide.(16)
All of these factors are converging to affect public opinion, to challenge the traditional opposition to suicide in Anglo-American law, medicine, and culture, and, potentially, to reshape public policy.
The Common Law and Assisted Suicide
The current campaign for the legalization of assisted suicide runs directly counter to the long history of Anglo-American common law. The traditional rejection of suicide in Anglo-American culture has been grounded in the common law's solicitousness toward vulnerable persons--including older persons, and persons who are mentally incompetent--through the criminal law.(17) The treatment of vulnerable or incompetent persons by third parties has long been scrutinized through the law of guardians and wards.(18) The Illinois guardianship statute commands: "Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence."(19) Guardians have long been charged with the care of their wards and can be liable for negligent homicide if their wards die through their neglect.(20) This includes neglecting to feed a disabled or incompetent ward. (21)
Suicide, a felony at common law, was regarded as "self-murder."(22) Cyril Means, among others, has concluded upon examination of its history at common law that suicide is not protected as a constitutional right: "Throughout its long history, the common law has always set its face against suicide. …