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04/26/2016

Legal history ignored by opponents of medically assisted death

by Stuart Chambers, Ph.D.

In a recent article in the National Review, author and lawyer Wesley Smith takes issue with what he describes as an unprincipled attack against Not Dead Yet (NDY), an American disability rights organization. From a legal and medical standpoint, both NDY and Smith support the withholding and withdrawing of medical treatment but remain steadfast in their opposition to legalizing assisted suicide and euthanasia.

As with NDY, Smith vigorously defends this stance based on the omission/commission moral distinction. As negative acts, omissions imply that no action is taken; there is an exclusion of a requisite step leading directly to a consequence. In terms of positive measures, acts of commission signify that an agent is the direct cause of a measurable outcome.

Since ethics and law often work in tandem in the public arena, Smith applies the omission/commission moral distinction to the contemporary death and dying debate. From his standpoint, acts of omission are “good” or at least acceptable because the patient expires from the underlying condition (i.e., a disease or trauma). However, Smith considers acts of commission—namely, lethal injections and prescription overdoses—“bad” or at least unacceptable because the patient dies as a result of the actions of a third party, specifically, the physician who provides or administers a fatal drug.

The problem, however, with Smith’s neat and tidy explanation of “good” versus “bad” acts is that it completely overlooks the history of paradigmatic shifts within bioethics. Over the past four decades, an analysis of the American death and dying debate reveals an uncomfortable truth: the omission/commission moral distinction is not an immutable standard. In fact, it represents only one step in a series of legal and ethical changes concerning end-of-life care.

In the 1970s, acts of omission and commission were both considered criminal offences. This is because traces of the sanctity of life ethos still permeated legal and medical discourses. According to adherents of this traditional doctrine, all life is sacred; therefore, only God can be the arbiter of life and death. Even in cases of terminal illness or non-sentience, one cannot intentionally hasten death using passive or active means; instead, “nature must take its course.” However, numerous high-profile court cases would eventually challenge this theological belief in life’s intrinsic value.

In 1975, twenty-one-year-old Karen Ann Quinlan fell unconscious and lapsed into a coma after consuming a lethal combination of drugs and alcohol. Quinlan was kept alive on a respirator, and after several months without improvement, her parents requested the hospital discontinue basic care and allow her to die. Believing it was participating in an actual killing, the hospital administration refused, and subsequent legal battles ensued.

The Quinlans appealed all the way to the New Jersey Supreme Court in the first American case of its kind, In re Quinlan. In deciding the matter, the Court felt that by permitting acts of omission (i.e., withdrawal of treatment) and rejecting as legally viable acts of commission (i.e., euthanasia), such attitudes represented “a balanced implementation of a profoundly realistic perspective on the meaning of life and death and that they respect the whole Judeo-Christian tradition of regard for human life.”

That said, only “extraordinary” treatment could be removed, such as a respirator. Withdrawing “ordinary” treatment—namely, nutrition and hydration—was still illegal. A moral distinction had now been drawn between “ethical” and “unethical” omissions, an historical fact often sidestepped by Smith and other prohibitionists against euthanasia and assisted suicide.

Likewise, treatment withdrawal became a highly contentious affair in the case of Nancy Cruzan. In 1983, Nancy experienced severe brain damage as a result of a car accident. Her parents sought to have her food and water removed so that she could die peacefully, but in Missouri, this kind of omission indicated an intent to kill. Instead of “nature taking its course,” human beings were speeding up the process.

Influenced by the sanctity doctrine, the Missouri Supreme Court sided against the Cruzans. As the Court noted in its decision, “Life is precious and worthy of preservation without regard to its quality.” Indeed, the transition from Quinlan to Cruzan—from turning off respirators to removing nutrition and hydration—was a work in progress.

At the state level, the omission/commission moral distinction became further entrenched with a 9-0 United States Supreme Court decision in Vacco v. Quill (1997). In this landmark finding, the Court ruled that a New York ban on physician-assisted suicide was constitutional. As the judges noted, “when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.” Therefore, as a matter of case law, there was no constitutional guarantee of a “right to die.”

Anti-euthanasia activists still believe that the conclusions in Vacco v. Quill are definitive and eternal, meaning that legal and medical bodies finally arrived at a consensus concerning methods of death-hastening. By adopting this absolutist position, prohibitionists against euthanasia and assisted suicide conflate ethics and law, two areas that are not always in sync. Whenever a law is considered constitutional, this does not necessarily make it ethically justifiable and vice versa. As with other disciplines, medicine and law are in constant flux. As one impacts the other, incremental advances in public policy are inevitable. For example, six states have since abandoned the notion that acts of commission are criminal: Oregon (1997), Washington State (2009), Montana (2009), Vermont (2013), New Mexico (2014), and California (2015) all permit some form of medical assistance in dying.

As well, American attitudes have been shaped by recent controversies surrounding intractable suffering, most notably, the case of Brittany Maynard. After being diagnosed with terminal brain cancer, Maynard moved to Oregon in order to end her life early. By 2014, she became the public face for the “death with dignity” movement. As further evidence of this shift in societal values, a 2015 Gallup poll found that almost 7/10 Americans supported some form of doctor-assisted suicide for terminally ill patients. Ironically, what was once considered murder—acts of commission—has now become socially acceptable.

As the last forty years of jurisprudence and legislation have shown, the omission/commission moral distinction represents only one ethical resolution among several paradigmatic shifts in bioethics. Yet for Wesley Smith, it remains the standard by which “good” acts (withholding and withdrawal of treatment) and “bad” acts (euthanasia and assisted suicide) are judged. In reality, the concept behind—and the making of—moral distinctions is both contested and contextual. This is clearly understood with even a cursory knowledge of medico-legal history.

Stuart Chambers, Ph.D., is a part-time professor who teaches a fourth-year class on death and dying in the Interdisciplinary School of Health Sciences at the University of Ottawa. He can be reached at schamber@uottawa.ca.

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