Vol. 14 No. 1 (January 2004)
PHYSICIAN-ASSISTED SUICIDE: THE ANATOMY OF A CONSTITUTIONAL
LAW ISSUE, by Susan M. Behuniak & Arthur G. Svenson. Maryland: Rowman & Littlefield Publishers,
Inc., 2003. 221 pp. $69.00. Hardcover. ISBN: 0-7425-1725-X.
Reviewed by Michele Goodwin, College of Law, DePaul University.
Email: mgoodwin@depaul.edu
The "right to die" and similar terminology became fixed within
the legal lexicon twenty-years ago. Its emergence was twofold, representing at once a movement
highlighted by contentious and sometimes conflicting moral, psychological
and legal issues, and, at the same time, a newer legal framework steeped in
constitutional law. While
seemingly "new" it is in fact an aged idea-a right to die-(dignity in death)
that predates modernity. Justice
Cardozo, for example, spoke forcefully to this after the turn of the twentieth
century, when in SCHLOENDORFF v. NEW YORK HOSPITAL (1914), he opined that
"every human being of adult years and sound mind has a right to determine
what shall be done with his own body."
However, to what extent and whether lawyers and physicians have a role
in facilitating death became a question debated in the latter half of the
twentieth century. This
question was complicated by other factors; does it matter whether patients
are competent? How does one interpret
the wishes of the dying without clear evidence of a preference or consent?
Last year assisted suicide captured national attention, ostensibly
brought into sharp focus with Florida's governor, Jeb Bush, intervening to
stop Michael Schiavo from withdrawing life support, specifically a feeding
tube, from his comatose wife, Terri.
The case reverberated throughout the United States and became a highly
political issue as the Florida state legislature took an unusual step by directly
involving itself in the case, promulgating Terri's Law, which inevitably led
to the reinstallation of Mrs. Schiavo's feeding tube, providing hydration
and nutrition. It became clear
that end of life decision-making, while seemingly clearly settled law, may
still be ambiguous or at least politically contentious in the twenty-first
century.
In CRUZAN (1990), the Court opined that a competent person
has a constitutionally protected right to refuse lifesaving hydration and
nutrition. But does that apply
to one who is incompetent? Considering
the CRUZAN opinion and the Patient Self-Determination Act of 1990, the issue
of whether a competent or incompetent person may refuse life-saving treatment
seems to have been well resolved-that authority is granted to patients (see,
e.g., Paris and O'Connell 1990). But,
Mrs. Schiavo's case is rife with political, legal, and moral implications. The constitutional issues involving incompetent
patients have been heavily litigated in the states-e.g, BROPHY (1986), JOBES
(1986), CONROY (1985), DINNERSTEIN (1978), Barber (1983), and Karen Ann Quinlan's
saga, and their progeny-nonetheless, considerable debate continues about such
questions as withdrawing hydration and nutrition, informed consent, privacy,
verifying final wishes, and autonomy.
In their new book, PHYSICIAN-ASSISTED SUICIDE: THE ANATOMY
OF A CONSTITUTIONAL LAW ISSUE, Susan M. Behuniak and Arthur G. Svenson broaden
the "end of life" questions to include physician assistance. They document the struggle over physician
assisted suicide (PAS), raising issues about the moral capacity of physicians,
fiduciary responsibility, and the notions of "rights" associated with the
style, timing, and method of dying.
Although the readability of their well-documented manuscript is partially
diminished by the book's organizational structure, the fairly comprehensive
presentation of cases governing this discourse makes it a valuable resource.
The authors focus primarily on end of life issues for competent, terminally-ill
adults. By doing so, they eliminate
the more controversial and contentious issues, which may involve children,
the incompetent, and those who are not terminally ill, but wish for a painless
death.
By contrast to the "beginning of life issues" that dominated
public policy health issues and bioethics discourse over the past thirty years,
the "end-of-life" issues, according to the authors, currently capture the
attention of politicians, lawyers and judges today. The aging baby-boom generation-a "cohort that once challenged
reproductive law and medical practice"-now confronts end-of-life conundrums
and face decisions for themselves and their aging parents at a time when technology
can both assist with maintenance of life and also facilitate death.
While this point may be slightly overstated by the authors, it nevertheless
underscores how demographic shifts in the United States are changing the discourse
associated with rights and privacy to include issues involving the elderly
and those with severely compromised health.
But is this anything new? Euthanasia is a well-studied practice.
Robert Veatch, in his seminal work (which continues to demand
attention), DEATH, DYING AND THE BIOLOGICAL REVOLUTION (1989), deals extensively
with both the theoretical and more pragmatic issues (although more emphasis
on the former) associated with dying. Indeed, over the past twenty years, a number of scholars, such
as John J. Paris, Frank Reardon, Arthur Caplan and Francis Moore, have helped
to define and explain the law's role in medical futility, including issues
of privacy and autonomy. What
Behuniak and Svenson offer readers, however, is a unique process-oriented
understanding of how courts navigate a nuanced death and dying issue-that
of PAS (other scholars refer to it as Physician Aid in Dying). Their book is offered as a case study
of physician assisted suicide, drawing more upon abbreviated synopses or deeply
edited cases, rather than a consistent narrative.
Behuniak and Svenson borrow directly from Alan Westin's,
THE ANATOMY OF A CONSTITUTIONAL LAW CASE (1952) to structure their book. Such an approach was applauded nearly
fifty years ago when Westin gained attention for his book, and indeed it has
become a classic. Such an approach
today has its undoubted strengths, presenting a balanced approach and being
useful as a reference resource, but it also possesses weaknesses, which may
detract from the authors' mission by perhaps appearing more as a reference
guide than a theoretical work. Their
book is not intended as an analytical approach to the topic, which might disappoint
law professors interested in a robust discussion of the philosophical and
constitutional arguments associated with physician assisted suicide.
For example, the authors do not attempt to complicate the text with
weighty discussions about human dignity, autonomy, privacy, informed consent
and fiduciary responsibility. Rather, they begin with excerpts from
articles, which differently frame physician assisted suicide.
PHYSICIAN-ASSISTED SUICIDE's strength may lie, however, in
its usefulness as a supplementary tool rather than a primary source. To enhance and update Westin's model, the
authors provide an introduction to each chapter, which helps to frame the
documents presented later. Such
documents range from article excerpts in Chapter One, to acts, codes, constitutional
amendments and actual cases in succeeding chapters, and each chapter contains
a section of questions for further consideration at the end. The book earns a place in bioethics libraries, because it presents
legal and political processes in a manner often overlooked in works that exclusively
address substantive law, while ignoring the evolution of a case.
Chapter One opens with an insightful overture, highlighting
the competing legal and moral issues in the physician assisted suicide debate.
It is a particularly strong chapter, as it provides a thorough introduction
to the topic, explaining core concepts and ideas.
The authors illuminate the two most critical issues considered by judges
and jurors - consent and causation. They highlight the distinctions between
active and passive participation in a patient's death, which ultimately centers
on capacity or intent. To
explicate, they suggest that withholding treatment is "passive" assistance
to suicide; whereas "active" involves directly administering an injection. How a jury may differently interpret the
two actions could best be captured by the legacy and saga of Jack Kevorkian,
a pathologist, who acquired the moniker "Doctor Death."
Kevorkian is perhaps best known for his acts of civil disobedience
by openly assisting patients' efforts to end their lives. That Americans were sympathetic to the
pain and suffering of his "patients" was clear. Although charged three times in Michigan for his role in the
deaths of patients, jurors refused to convict him. In those instances, Kevorkian's role was regarded as passive.
That tide turned later when he was convicted of second-degree murder
for active involvement in a patient's death who received a lethal injection
directly from the doctor. Where is the line? What influenced jurors' decision-making?
How has American opinion on euthanasia or physician assisted suicide
changed over the past fifty years and why?
Behuniak and Svenson raise the issues, and leave readers to find the
answers in the language of cases.
A second strength of their case analysis is found in the
early chapters, placing in context definitions that might elude the average
reader, as the death and dying terminology is sometimes conflated. For example, how does the law distinguish
terminal sedation, an arguably legally protected practice from voluntary active
euthanasia? Although the authors
do not provide an in-depth philosophical discussion of such questions, the
problems are nonetheless raised.
To ground their consideration of case law, Svenson and Behuniak
chart the unsuccessful efforts of PAS proponents to pass and implement death
with dignity provisions in Oregon, Washington, California and New York.
The authors note "litigants representing three different interests
[in Washington] joined to challenge the constitutionality of that state's
prohibition against PAS" (p.36). The litigants included a nonprofit corporation,
Compassion in Dying, three terminally ill adult patients, and four physicians.
The authors highlight the text of Oregon's Death with Dignity Act of
1994, the only successful provision of its kind to pass a referendum vote. PAS proponents in Washington who were defeated at the
polls took their concerns to the judicial branch, as others did in New York
at approximately the same time. However,
opponents also sought the courts. In Oregon a group of litigants challenged the new legislation
on grounds that it violated the constitution. The authors follow these stories through
appeals, the U.S. Supreme Court, and post-judicial actions.
Because the book's focus does not become apparent until Chapter
Two, readers may find this slightly distracting. For example, it is not explained within the first
few pages that the book will follow three states along their journeys to address
patient autonomy and physician-assisted suicide by studying referenda, statutes,
cases, and judicial decisions.
The authors conclude with executive, legislative and judicial
responses to physician assisted suicide. Each of the three cases, from Oregon, New York, and Washington,
are ultimately addressed by the United States Supreme Court, and in each case,
in 1997, the Court upholds state action, leaving the issue of physician assisted
suicide to voters and legislators. In this way, the law is ever evolving and represents the collective
consciousness of a community.
Behuniak and Svenson have collected a strong set of materials
to enhance any discussion of physician-assisted suicide. Their book belongs among the top few of
critical guides to legislative and judicial rule-making in the PAS area.
REFERENCES:
Paris, John J.,
and Kevin O'Connell. 1990. "The Patient Self -Determination Act of
1990." 5 CLINICAL ETHICS REPORTER
1.
Veatch, Robert
M. 1989. DEATH, DYING, AND THE
BIOLOGICAL REVOLUTION: OUR LAST QUEST FOR RESPONSIBILITY. New Haven: Yale University Press.
Westin, Alan F. 1952. THE ANATOMY OF A CONSTITUTIONAL LAW CASE: YOUNGSTOWN SHEET &
TUBE CO. v. SAWYER, THE STEEL SEIZURE DECISION. New York: Columbia University Press.
CASE REFERENCES:
BARBER v. SUPERIOR
COURT, 147 Cal. App. 3d 1006, 195 Cal.
Rptr. 484 (Ct. App. 1983).
BROPHY v. NEW
ENGLAND SINAI HOSPITAL, INC., 398 Mass. 417, 497 N.E. 2d. 626 (1986).
IN RE CONROY,
98 N.J. 321, 486 A.2d 1209 (1985).
CRUZAN v. MISSOURI
DEPARTMENT OF HEALTH, 110 S. Ct. 2841 (1990).
IN RE DINERSTEIN,
6 Mass. App. Ct. 466, 380 N.E. 2d 134 (App. Ct. 1978).
IN RE JOBES, 210
N.J. Super. 543, 510 A.2d 133 (Super Ct. Ch. Div. April 23, 1986), review
denied (N.J. March 10, 1986), cert. granted (N.J. Sept. 10, 1986), No. A-108/109,
slip. Op. (N.J. June 24, 1987).
IN RE QUINLAN,
70 N.J. 10 (1976).
SCHLOENDORFF v. NEW YORK HOSPITAL, 211 NY 125 (1914).
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Copyright 2004 by the author, Michele Goodwin.