Doctors without Borders

WASHINGTON STATE'S NEW PHYSICIAN-ASSISTED SUICIDE LAW

By a vote of 59 percent to 41 percent on November 4, 2008, Washington State voters endorsed a ballot initiative to legalize physician-assisted suicide (PAS). If the final outcome was never much in doubt, the margin of victory was surprising. In 1991, an initiative in favor of euthanasia had been defeated in Washington. But this time Washington’s proponents shifted to PAS. The assumption, a shrewd one, was that the public would be more willing to accept a patient’s self-administered death than one directly carried out by a doctor.

What, if anything, are the national implications of the Washington vote? The answer to that question is unclear. When Oregon’s PAS law, passed as a ballot initiative in 1994, went into effect in 1997, there was a widespread expectation that other states would soon follow. With the exception of Washington, that has not happened. There seem to be no states anywhere now near a change in their laws, either through legislative or ballot initiatives. A number of such efforts in a variety of states failed in the 1990s, and recent years have not seen similar bursts of activity. The Washington vote might reignite such efforts, but that is by no means certain.

The history of the Oregon initiative and law offers some hints about what may happen in Washington. In Oregon, the most unexpected outcome has been the small number of people who have taken advantage of the law, only 341 in eleven years. One plausible explanation is that the law stimulated efforts to develop better palliative care and hospice programs. Another is that many of those who support the legalization of PAS do so out of tolerance for the convictions of others, but have no interest in making personal use of PAS. Still another is that for some people availability of PAS is attractive if worse comes to worse, but as a desperate and rare remedy only—much as some people feel comforted in having a gun in the house but hope never to use it. Finally, some expected that out-of-staters would flock to Oregon to take advantage of the law, but they didn’t.

A major concern of opponents of PAS, almost always voiced in campaigns against both PAS and euthanasia, is the specter of possible abuse. Most notably, the argument goes, it will eventually be the poor, the old, and the socially marginalized who will be victimized-cajoled, coerced, or seduced into ending their lives. While I am sure there are many opponents who believe that will eventually happen—and some who think it a good tactic for conservatives to use as a way of appealing to liberals—I have never shared that belief. From what I can see, both in the Netherlands, the first country to legalize euthanasia (in 2000) and PAS, and in Oregon, that has not happened, and there is no compelling reason to think it will.

On the contrary, it seems that at the heart of the legalization drives has been an obsession with good old-fashioned bourgeois self-control: It is my body and my life, and if I want to die, I should be allowed to do so. It is no accident that the Netherlands led the way. It is by far the most libertarian nation in the world, famous for its legal prostitution and lenient drug laws. Self-determination is a very high value for the Dutch, as for many people in Oregon and Washington. An early study of PAS-users in Oregon and similar studies in Holland have shown that the main reason for embracing it is fear of losing self-control, not fear of pain. A study in Oregon of cancer patients in the first year following legalization found that those who wanted PAS were less likely to be in pain than patients who did not want it.

Appeals to the sanctity of life have little sway with those bent on maintaining a sense of self-control. They believe they respect that sanctity as much as anyone, and that one way to do so is to give people the freedom to manage their own lives, especially at the end. I don’t share that view, but it is important to understand its appeal in secular democratic societies that see freedom of choice as a valued way of respecting human dignity (a concept that has both good and bad uses).

Nonetheless, if apocalyptic visions of abuse resulting from state-sanctioned euthanasia and PAS have not proved true, room for concern remains. Holland has demonstrated the slippery slope in action, gradually allowing euthanasia for adolescents, newborn infants, and the depressed. As late as the 1980s, defenders of the Dutch euthanasia practices indignantly rejected charges of abuse. But an early 1990 anonymous survey of Dutch physicians showed that less than 50 percent of respondents were reporting their acts of euthanasia as required by law, and that at least a thousand cases a year were “involuntary,” that is, without patient consent. Still, there was no evidence that the poor or the burdensome elderly had been singled out for such treatment.

The (weak) defense offered by the Dutch was that Dutch doctors and patients have longer-term and more intimate relationships than those in other countries, and that physicians could thus more easily intuit the wishes of their patients. That kind of argument would hardly pass muster in the United States, but then the Dutch contend they are different, and that the rest of us just don’t understand. No, we don’t.

Defenders of PAS in Oregon have claimed that there have been no abuses, but in the June 2008 issue of the Michigan Law Review, Kathleen Foley and Herbert Hendin documented at least four cases. There may be more, but who knows? In the name of privacy, Oregon has made it almost impossible for the public to get any meaningful information about the 341 official cases. Washington has followed suit by explicitly forbidding public inspection of its state records. Until Oregon undertakes a confidential survey of physician practices, as the Dutch did, there can be no credibility to the claim that no abuses are taking place. I rate the likelihood that Oregon and Washington will conduct such a survey at about one in a thousand.

The estimated amount of money spent in favor of Washington’s successful ballot initiative was $4.9 million, against $1.5 million by opponents. Several Catholic organizations were part of that opposition. I consider it a misfortune that, for many, the opposition was seen as religious, and narrowly sectarian at that. One does not need religion to make a case against PAS. It would be wise if religious opponents joined forces with other opponents in the future, but not as parallel efforts; their money should go to secular advocacy groups. To allow an issue to be labeled “religious” is, in many quarters, a sure-fire way to minimize its credibility, especially in Washington State. That’s a shame and often unfair, but that’s the way things play out in a pluralist society that is often ambivalent about allowing explicitly religious groups to have their say.

The history of PAS in Oregon suggests that arguments about potential patient abuse carry little empirical weight and are not likely to prove effective in the United States. What arguments might be more successful in future struggles in other states? The main objection that should be raised to legalizing PAS is that it would legitimate the role of physicians as abettors of suicide or, in the case of euthanasia, it would permit them to use their medical skills to kill consenting patients directly. That legitimation would be the greatest abuse. It not only distorts the role of physicians in patient care but would allow PAS and euthanasia to be classified as medical procedures. Doctors should not be in that role any more than medicine should lend its weight to gaining social approval for such practices.

 


Related: Cathleen Kaveny on Minnesota's PAS ruling: 'Peaceful & Private'
The Editors on PAS in 1998: License to Kill

Published in the 2009-01-30 issue: 

Daniel Callahan, a former Commonweal editor, is president emeritus of the Hastings Center and the author of What Price Better Health: Hazards of the Research Imperative.

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