Death, Dying, and the Law
Bryan Hilliard, Ph.D.
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
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
Linda Fleming prepared a statement that was released by Compassion & Choices of
Obviously, Linda Fleming’s choice to hasten her death, as well as her physician’s willingness to assist her in accord with
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
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
· 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.