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California legalization of doctor-prescribed suicide threatens vulnerable nationwide

by | Oct 12, 2015

By Jennifer Popik, JD, and Burke Balch, JD, Robert Powell Center for Medical Ethics

California Gov. Jerry Brown

California Gov. Jerry Brown

Jubilant death advocates are celebrating the addition of one-tenth of the nation’s population to the American jurisdictions in which killing the vulnerable is becoming a standardized form of “medical treatment.” They hope, and life advocates fear, that California’s action will be the tipping point in their decades-long battle to eliminate those deemed burdensome, initially “voluntarily,” next through surrogate decision-making for those unable to speak for themselves, and ultimately mandatorily as ordered by ethics committees or governmental action, regardless of the wishes of the victims.

After a dramatic special session in the California Legislature, on October 5, 2015, Gov. Jerry Brown became only the second governor to sign a law authorizing doctors to prescribe deadly drugs to kill their patients. This makes California the 4th state in the nation to give health care providers the power directly to cause their patients’ death through active euthanasia. Oregon and Washington State each legalized doctor-prescribed suicide using ballot initiatives, and Vermont, like California, passed the bill via the legislative process.*

The pro-suicide movement, headed by Compassion and Choices (C&C) (formerly the Hemlock Society) had struggled in state after state this past legislative session to pass even one piece of legislation. C&C arguments were also rejected this year by Tennessee courts along with the New Mexico Court of Appeals.

C&C had supported bills in 28 states plus D.C. and all had so far failed to advance (a tiny fraction of state legislatures currently remain in session).

In California, the regular session had come to a close, and the bill had stalled in a Senate Health committee. However, an extraordinary session, normally meant to finance state health care, was called and the bill was pushed through over the objection of dozens of diverse groups, including those in the disability rights community, the American Medical Association, and pro-life groups.

This new law, modeled on Oregon’s, will authorize a doctor to prescribe a massive overdose of drugs for a person to take to end his or her life. This new law was promoted as just another end-of-life option and one that would enhance patient choices — but that could not be further from the truth.

O. Carter Snead, University of Notre Dame law professor and director of the University’s Center for Ethics and Culture issued a statement pointing out its true effect:

Governor Brown and those like him – affluent, privileged, able-bodied, and with supportive families – are not the ones who will pay the price for this new “freedom.” Governor Brown has purchased the right to assisted suicide at the expense of the disabled, the marginalized, the poor, and the elderly. Shame on him for being so selfish and short-sighted.

Because the law is so similar to Oregon’s nearly 20-year-old law, we know for a fact that this law will not work the way proponents say it will. One of the major deeply flawed “safeguards” states that the patient is supposed to be terminally ill. Under the new California law, as in the other 3 states with similar laws, the patient is supposed to have six months to live or less.

However, we know that many people in Oregon who receive lethal prescriptions but postpone taking them long outlive their prognosis. This is not due merely to errors in prediction, commonplace though these are. It is because the term “terminally ill” is interpreted to include those likely to die within the time limit without life-saving treatment, even if they could live indefinitely with treatment.

Consequently, this so-called safeguard has allowed the killing of diabetics, those with HIV, or those with hepatitis simply because without treatment they would die within six months—even though with treatment they could live much longer. Assisting suicide legalization has led people to give up on treatment and unnecessarily lose years of their lives.

Other abuses ranging from patients with dementia and mental illness receiving a lethal dose, to numerous non-terminally ill people getting prescriptions, to pressure from the state health plans to utilize the cheaper suicide option have been documented and exposed. Nevertheless, the real depth and number of abuses is difficult to know.

The law relies on doctors to self-report. However, there is no penalty for physicians who do not report statistics and complications. Furthermore, doctors are not held to the ordinary standard of medical malpractice in implementing the “safeguards,” but a far lower one. Under Oregon law, the death certificate is actually falsified so that it lists the underlying illness, not suicide, as the cause of death. And much to the dismay of many families who found this out too late, the law does not require families to be notified of a patient’s suicidal intent.

We can expect that after a year or two, California will be issuing reports, like those Oregon has published, claiming that there have been few or no “abuses.” That is significant not just because these misleading reports will be used to push for legalization in additional states.

Of greater consequence is how they may be used by the United States Supreme Court if just one new Justice is appointed to definitively shift its ideological balance. While the United States Supreme Court in Washington v. Glucksberg (1997) unanimously rejected the claim that there was a constitutional “right” to assist suicide, many of the concurring Justices suggested they agreed only because there was not yet enough evidence to show that states could not rationally fear abuses.

Official reports from California, Oregon, and other states where euthanasia is legal, despite their misleading nature, could in the future be cited to claim that fear of abuses has become irrational and no longer allows states the constitutional latitude to prevent assisting suicide.

Indeed, in one concurring opinion in Glucksberg, then-Justice John Paul Stevens made a point of saying that he did not intend to “foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.”

In addition to this open-ended invitation to bring a case in the future, the High Court has also indicated that it likes to look at trends. In the 2005 Roper v. Simmons case (an unrelated juvenile death penalty case), the Court wrote, “It is not so much the number of . . . States [changing their laws] that is significant, but the consistency of the direction of the change.”

So while you might not live in one of the states where doctor-prescribed suicide is legal, if more states join the ranks of California, Oregon, Washington, and Vermont, — and above all if 2016 sees the election of a president and Senate likely to use the next Supreme Court vacancy to nominate and confirm a Justice sympathetic to euthanasia, there is the real risk that in the future the U.S. Supreme Court might well follow Canada’s in holding there is a federal Constitutional right to assist suicide.

Presidential candidate Hillary Clinton has called assisting suicide “an appropriate right to have.”

If the Court were to follow Canada’s example, such a ruling might not, even nominally, apply the right only to the “terminally ill.” Instead it could include anyone who “has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual.”**

Indeed, as in Canada, the same opinion might suggest that “surrogates” can direct the killing of children with a disabilities or older people with Alzheimer’s who have never asked to die but are deemed incompetent to decide for themselves.

No one should suppose that the death advocates will stop with voluntary or even non-voluntary euthanasia – involuntary euthanasia is an ultimate goal. In a book published in 1998, Derek Humphry, the founder of the Hemlock Society (a predecessor of Compassion and Choices), wrote supportively of the use of assisting suicide as “one measure of cost containment.”

“[T]he elderly,” he wrote, are “putting a strain on the health care system that will only increase and cannot be sustained.” Speaking of people with disabilities, he wrote, “People with chronic conditions account for a disproportionately large share of health care use, both services and supplies.”

He wrote of recognizing a “duty to die” and invoked the precedent of hospital ethics committees that, then as now, routinely deny life-saving medical treatment, and even assisted feeding, against the will of patients and their surrogates. Other death advocates have made similar predictions of the need to require that the burdensome with a low quality of life be given lethal prescriptions against their will.

It would be foolish to attempt to understate the magnitude of the impact of California’s decision, but it may be hoped that the gravity of this defeat will shock and energize those who recognize that you don’t solve problems by killing those to whom the problems happen. It may cause us to redouble our efforts to block further expansion of the culture of death and, above all, to prevent the election of a president and senators who will use every available opportunity to entrench it irreversibly.

*Assisting suicide may have some legal immunity in the state of Montana, due to a state Supreme Court decision.

** “Irremediable,” the Canadian Supreme Court stressed, “does not require the patient to undertake treatments that are not acceptable to the individual.” Thus, as in the Netherlands, a depressed patient who rejects treatment for the depression has a “right” to be killed.

Categories: Assisted Suicide