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Death, Dying, and the Law

by Bryan Hilliard, Ph.D.

09/15/2009

            On Thursday night, May 21, Ms. Linda Fleming hastened her own death with the assistance of her physician. In doing so, Ms. Fleming became the first reported person to end her life under Washington State’s new assisted suicide law. The motives and circumstances surrounding Ms. Fleming’s final act should encourage all of us to reflect anew upon the asserted state interests in prohibiting terminally ill, competent, suffering adult patients from ending their lives with the help of physicians. Rehearsed and honed for decades in lower and federal court decisions, policy debates, speeches by conservative politicians, and medical ethics argumentation, these interests asserted by the state in support of interference in the doctor-patient relationship have taken on, for many, an air of unquestioned authority, or at least a quiet respectability.  Might Ms. Linda Fleming’s desire to die with her autonomy, bodily integrity, and dignity intact force us to take a fresh look at these asserted state interests? If so, such a “fresh look” will come none too soon as the Montana Supreme Court prepares to consider the case of Robert Baxter and the legality of physician-assisted suicide in Baxter et al. v. State of Montana.

            Don Colburn, in The Oregonian, and Rachel La Corte, for the Associated Press, report that Linda Fleming was a 66-year-old woman diagnosed in April with end-stage pancreatic cancer. Ms. Fleming died at her home in Sequim, Washington, after ingesting barbiturate capsules. Present at her death were her physician, her chihuahua, and a volunteer from Compassion & Choices of Washington; Ms. Fleming’s daughter had visited with her mother earlier in the day. Seven minutes after ingesting the lethal dose of prescription medication, Ms. Fleming became unconscious, and she died two hours later.

            Linda Fleming prepared a statement that was released by Compassion & Choices of Washington on the day after her death. In the statement she said, “I am a very spiritual person, and it was very important to me to be conscious, clear-minded and alert at the time of my death. The powerful pain medications were making it difficult to maintain the state of mind I wanted to have at my death. And I knew I would have to increase them.” Compassion & Choices of Washington, an advocacy group that lobbied for passage of the Washington Death With Dignity Act (Annotated Revised Code of Washington, § 70.245), also released a statement saying, “She is really the kind of person the law was designed for. Even with the best hospice and palliative care, sometimes it’s not enough.” The statement further observed that Ms. Fleming “elected to die on her own terms and at the time of her choosing. She got the peace of mind and comfort of being in control.”

            Obviously, Linda Fleming’s choice to hasten her death, as well as her physician’s willingness to assist her in accord with Washington State law, has rallied critics of state laws and initiatives supporting physician assistance in hastening death and comes just as the Montana Supreme Court reviews a December 2008 district court decision holding that physicians could prescribe under certain circumstances lethal doses of medications to their terminally ill patients. Yet again, we prepare to hear and consider the important interests the state has in prohibiting Linda Fleming and others similarly situated from seeking physician assistance in hastening death. Anyone familiar with the law and ethics of end of life care is aware of the justifications offered by the state for infringing upon individual choices and freedom in determining the timing and manner of one’s death. Various constructions are possible, of course, but basically the state claims that it has and should assert the following interests:

1)      the unqualified preservation of human life

2)      preventing suicide, and in studying, identifying, and treating the causes of suicide

3)      protecting the ethics and integrity of the medical profession

4)      protecting vulnerable groups such as the poor, the elderly, and the disabled from abuse and neglect

5)      prohibiting the slide down the slippery slope toward voluntary and even involuntary euthanasia

6)      keeping temptation away from institutions and individual gatekeepers who, purposely or not, wish to minimize costs at the end of life by forcing individuals to hasten their own deaths.

            With regard to the protection and preservation of human life, Chief Justice Rehnquist reminds us in his decision for the Court in Cruzan v. Director, Missouri Department of Health that “…there can be no gainsaying this interest” (497 U.S. 261, 1990, at 280). That there also should be no “gainsaying” the significance of the other five asserted state interests is evident from Chief Justice Rehnquist’s later opinion in Washington v. Glucksberg. “We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, [and a state’s ban on assisted suicide] is at least reasonably related to their promotion and protection” (521 U.S. 702, 1997, at 735). So there we have it: these six interests are important and legitimate, and the state has the right to protect them. Since the Supreme Court has concluded that adult, suffering, terminally ill patients do not enjoy a fundamental right or liberty interest in assistance from a physician in hastening their deaths, a state of course may ban physician-assisted suicide.

            But, let’s remember Linda Fleming. And let us not forget Robert Baxter, whose case is now before the Montana Supreme Court. Mr. Baxter was a 75-year-old retired truck driver who suffered from prostate cancer, hypertension, and gastroesophageal reflux disease. The district court concluded that he enjoyed the right, under the Montana Constitution, to privacy and dignity, which encompasses the right to assistance from a physician to die with dignity. In a press release, Mr. Baxter stated, “I've just watched people suffer so badly when they died, and it goes on every day. You can just see it in their eyes: Why am I having to go through this terrible part of my life, when we do it for animals? We put them out of their misery.” Robert Baxter died the same day the district court handed down its ruling.

            Perhaps the time has come to respectfully disagree with Chief Justice Rehnquist and undertake the task to “weigh exactingly” the strengths of these six interests. Might it be that the significance of these interests could be “gainsaid” after all? Re-thinking the asserted state interests in prohibiting physician-assisted suicide leads to some powerful observations. By no means are these observations irrefutable, but they merit consideration. Advocates of a federal constitutional right, or state constitutional right, or common law right to death with dignity should not, must not, shrink from speaking up when the old state interests are trotted out. These observations include:

·        Neither Linda Fleming nor Robert Baxter were opposed to preserving human life, but they might have wished the state would recognize that life for all of us ends and that the state should not interfere with efforts by patients and health professionals to ensure that it ends well.

·        It is surely reasonable to think that neither Ms. Fleming nor Mr. Baxter wanted to commit suicide, nor did they wish assistance in committing suicide. What they sought was death with dignity and assistance in achieving that end.

·        Narrow conceptions of the physician as simply a healer do immeasurable harm to health professionals, patients, and the broader society. The goals of medicine must include actions that alleviate pain and suffering and that promote autonomy and self-determination. Counseling and assisting Ms. Fleming and Mr. Baxter are quintessential expressions of respect for the ethics and integrity of the medical profession.

·        The Oregon Death With Dignity Act has been in effect for more than a decade. Absolutely no evidence exists that vulnerable groups have been exploited. Quite the contrary. Evidence suggests that the ODWA has directly contributed to better hospice and palliative care for terminally ill adults in Oregon.

·        The Oregon experiment does not suggest any slide down a slippery slope toward voluntary or involuntary euthanasia. Any assertion that the differences between legally sanctioned physician-assisted death and euthanasia are only differences in degree seems completely false.

·        Finally, while we always are wise to guard against questionable motives and abuses of power by institutions and individuals, it is not unreasonable to think that properly drafted and carefully monitored procedures would result in the compassionate and professional assistance Ms. Fleming and Mr. Baxter desired. Indeed, we might observe that dogmatic insistence on keeping alive terminally ill patients who would desire an end to suffering and indignity is what leads to abuse and neglect.


        Certainly, Robert Baxter’s plight and the story of Linda Fleming remind us of the incredible tension that exists between recognizing certain state interests and the justifiable desire to allow terminally ill adults the ability to assert their values of self-determination and autonomy and to die with dignity. Perhaps the proper response to this tension is not to minimize or run from it, but to honestly and openly embrace it. Oregon and Washington faced the tension head on, and each state concluded that it indeed could respect asserted state interests while at the same time granting individuals in well-defined relationships with their physicians the ability to exercise their conception of what it means to die a dignified and peaceful death. The Supreme Court of Montana now has this opportunity to reexamine the proper meaning and scope of these state interests. In re-thinking the state’s concerns, we can hope that it draws the same conclusion as Oregon and Washington.

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