Tuesday, September 8, 2009

Review of a Review: The Future of Assisted Suicide and Euthanasia.

(Whereby I use every possible chance to drill down on my peeves about common writing about euthanasia and assisted suicide.)

Metapsychology reviews a new edition of Neil Gorsuch's The Future of Assisted Suicide and Euthanasia. From the review, my comments un-italicized, interspersed:

The Future of Assisted Suicide and Euthanasia is worth reading just to catch up with the current state of play on these issues of deep social concern. More importantly, Gorsuch argues for a number of well-defined theses relating to the debate. Among these, some of the most important are:

1) Legal historians are wrong to suggest that the law has increasingly legitimized suicide over the past few centuries. Rather, changes in law reflect the identification of suicide as a symptom of mental illness and a recognition that posthumous "punishments" meant to deter suicides merely add to the suffering of bereaved families.

We wrongly - and exclusively - link desire for suicide to mental illness because we live in a culture that extolls not "going gentle." No one in their right mind, in other words, would want to end their life.

More importantly, we live in a culture that holds pain and suffering as redemptive. Writes commentor dfrost (#12) about the NYTimes article on Baxter v Montana, the assisted suicide case that was heard by the Montana Supreme Court on Wednesday, "We have free will but it is limited [and] we do not have the will to overule HIM, in HIS decision of how long we live. Why would anyone want to [condemn] themselves to etermal damnation. HE only permits what we can bare in our lives." All well and good perhaps, if you're a believer and forced to explain all natural phenomena, particularly the bad, as god's will.

Another mistaken commenter, ck (#22) writes, "It is against every fiber of the human soul to snuff out a life no matter what it is facing." A quick read of human history would dispell this misunderstanding. Or perhaps, a quick read of Of Mice and Men or some Chekhov. Her narrative may be more sweet and kind than the actual, but it is alas, a false narrative.

Another commenter, William Loughborough, #13), referring to the dying Robert Baxter who suffered with leukemia for 12 years and is a plaintiff in the Baxter v Montana case, writes, "Harsh as it seems, the plaintiff had plenty of other methods to end his life without forcing doctors to join in the furthering this sad undertaking." Tom (#67) agrees. "Granted," he writes, "there is suffering in life, especially in terminal illnesses, but that is part of life. When we start opting out of that aspect, it sends a destructive signal to society." What that destructive signal may be, I have no idea. "And yes," he continues, "if I ever find myself in that situation, I want to be able to hold out until the disease ends my life." Sounds like moral superiority to me. And an unrealistic understanding of what end of life can be like.

Like pregnant women, I suspect, the dying are expected to find violent, inhumane relief for their suffering outside the medical profession. In other words, the medical profession has no obligation to control suffering. If suffering does not reside in the medical realm, and one is not a believer attributing it to the God realm, where does suffering reside?

Just where the medical profession and the religious would rather put it, in the legal realm: suffering is punishment: redeeming, inescapable, and legal (ending suffering is illegal). Suffering is punishment, and as Garret Keizer writes, "pain is fundamental to justice, which makes perfect sense if justice is conceived as nothing more than a system of punishments and rewards."

Yet, ask anyone about those who lept from the World Trade Towers rather than burn to death and you will encounter equivocation. A majority of Americans, when asked in 2005 during the Terri Schiavo case if they for themselves would have wanted the removal of nutrition and hydration tubes as the court ordered, answered a resounding yes. Powerful personal stories that resonate with society.

Maybe, to better understand the assisted suicide movement, we just needs a new narrative.

2) Once euthanasia and assisted suicide are accepted as legitimate options for terminally ill patients, there remains little rational basis for keeping anyone from seeking euthanasia or assistance in committing suicide.

How so? Death with Dignity has very strict requirements: the terminal patient must be within 6 months of death; they must be of sound mind; they must self-administer the medicine. A doctor's responsibility becomes writing a prescription. The doctor is even forbidden under Oregon and Washington's laws, from mentioning assisted suicide.

Let's be clear: euthanasia is "mercy killing" of those deemed a burden to society. It is a term which implies the Holocaust or what municipalities do to stray dogs and it is a term that has no place in this discussion. (Unless you want to talk about "pulling the plug" or "principle of double effect" which doctor's seem to have no problem with because they are the ones making the decision, not the patient. See below.)

And the only thing assisted about assisted suicide as pertains to the Oregon and Washington laws is the doctor's writing of a prescription. The burden of death lies with the patient, not the doctor. I see no difference from a terminal, suffering patient having access to necessary medications (as is currently only obtained illegally or through a doctor) and a person standing on the roof of a 60 story burning building. Death comes; pick your method.

This "slippery slope" argument is unfounded and jerry rigged to suit the argument just as "respect for human life" has been employed for abortion, the forcing of a woman to have a child against her will. The premise is that once we begin to determine what life is worth, we lose our moral compass and prioritize certain groups to society as more important than others. The real premise underlying this is that we already prioritize the importance of lives in society: women and the ill and the poor unwilling suffer pain because they are low on the list and because they, again from Keizer, "are roundly condemned for their escape from 'responsibility' but truly feared for their escape from jurisdiction."

3) Regulation of euthanasia and physician assisted suicide in the Netherlands and in the State of Oregon (where physicians are allowed to prescribe lethal drugs to assist in suicide) is shockingly haphazard. Reporting procedures are practically worthless and in Oregon the law makes no serious effort to keep patients suffering from treatable depression from receiving lethal drugs for the purpose of suicide. Despite the decriminalization of euthanasia in the Netherlands, in many cases doctors do not go to the trouble of following official procedures in performing euthanasia. More generally speaking: by definition, euthanasia and physician assisted suicide are matters of life and death, but when decriminalized they have -- astonishingly - invited much less concern for malpractice than do normal medical procedures.

This is a sad and misleading trope from the "anti-choice" camp. In the ten years since Oregon has legalized Death with Dignity, every hospice, palliative care, and pain management medical entity or university has watched Oregon like a hawk. Add to that the pro- and anti-choice factions and you have a state health care system that is as transparent as possible. Not that there haven't been errors. But Oregon is recognized as having one of the best end of life care systems in the world. Detractors of course deny this. They are opposed to ending suffering.

4) Many of the great legal and ethical quandaries surrounding euthanasia and physician assisted suicide cold be better dealt with in terms of a principle of the "iviolability-of-life," which rejects any intentional killing of human beings (including suicide) but which also accepts the legitimacy of some actions that might bring about the death of human beings as an unfortunate - but expected -- secondary consequence. Here Gorsuch is arguing for the classic "principle of double effect," which, under certain circumstances, allows people to act so as to gain a desired positive effect even though they are aware that their action will also bring about an unintended additional negative effect. More specifically, Gorsuch holds that the right of the patient to refuse treatment because it is painful, futile, etc. can trump the fact that the patient will die more quickly without the rejected treatment. He is, however, skeptical about the power of custodians to make such decisions for legal incompetents.

It is precisely the "inviolability of life" and the "principle of double effect" that I believe will lead the Montana Supreme Court to determine that death with dignity is constitutional and not prosecutable under the homicide laws in that state, a state that places dignity, autonomy and independent rights as inalienable.

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