In many cultures throughout history, suicide was considered an appropriate and, indeed, honorable choice for persons to make in certain circumstances and individuals were honored who elected to end their lives in such a manner. Most are aware that in Japan, samurai considered suicide an appropriate action to reclaim lost honor, but fewer people are aware that in the West such actions were celebrated in both Greece and Rome. Socrates and Seneca, two of the great philosophers of their eras, each committed suicide at the demand of the State. And the modern soldier who sacrifices his life willingly for his country is, essentially, someone committing suicide for a higher purpose.
Modern legal theory, however, has focused on the use of suicide to end lives of the mortally ill who seek to avoid continuing pain or expense and face an end that appears inevitable. Religious, philosophical and legal questions abound with such institutions as the Catholic Church considering suicide or assisting suicide as mortal sins while various groups and associations claim it as an absolute right of an adult who is competent.
This article shall explore the basic law concerning suicide of adults in such medical condition.
Physician-assisted suicide involves the hastening of death through the administration of lethal drugs, upon request of the patient. Physician-assisted suicide is sometimes known as active euthanasia. It differs from withholding or discontinuing medical treatment in circumstances that will result in death. Withholding or discontinuing medical treatment is sometimes called passive euthanasia.
Passive euthanasia is generally accepted, although not without controversy, in the United States as an individual’s right to refuse medical treatment. Examples of passive euthanasia include turning off respirators, stopping medication, discontinuing food and water, or failing to resuscitate.
The Hippocratic Oath has been used by physicians as a code of ethics for more than two thousand years. Attributed to Hippocrates, (ca. 460-370 BCE), the oath provides in part: “I will follow that method of treatment, which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to anyone if asked, nor suggest any such counsel.
The American Medical Association takes this stance: “It is understandable, though tragic, that some patients in extreme duress-such as those suffering from a terminal, painful, debilitating illness-may come to decide that death is preferable to life. However, allowing physicians to participate in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”
Dr. Jack Kevorkian, called by the Press “Dr. Death,” was exposed to much publicity for his role in physician-assisted suicides. Dr. Kevorkian avoided conviction on murder charges numerous times during the 1990s as he publically and notoriously assisted in many suicides, allegedly assisting more than 130 patients. At first, his state of residence, Michigan, did not have a law that specifically prohibited assisted suicide. As his notoriety grew, the Michigan legislature passed a law prohibiting assisted suicide. The Michigan Supreme Court upheld the statute in 1994, ruling that no constitutional right to suicide exists, including assisted suicide. Kevorkian’s second-degree murder conviction was upheld.
The Supreme Court has determined that no Constitutional right exists for physician-assisted suicide.However, states are free to enact laws to permit it. Put simply, the State can allow it but the citizen has no absolute right to require the State to so allow and the State may ban it.
Oregon is the only state that currently permits physician-assisted suicide. Technically, however, a death under Oregon’s Death With Dignity Act is not considered suicide, assisted suicide, or homicide. Oregon’s law has survived numerous legal challenges since its enactment in 1994. In January 2006, the United States Supreme Court upheld the law against former Attorney General John Ashcroft’s attempt to render the statute illegal under federal law.
But there were other ways for the Federal government to demonstrate its resistance to physician-assisted suicide.
In 1997 President William Jefferson Clinton signed the Assisted Suicide Funding Restriction Act of 1997. The law’s intent was, “…to clarify Federal law with respect to restricting the use of Federal funds in support of assisted suicide,” euthanasia, or mercy killing. The act banned the funding of assisted suicide through Medicaid, Medicare, military and federal employee health plans, veterans’ health care systems and other federally funded programs. It also prohibited the use of taxpayer funds to subsidize legal assistance or other advocacy in support of legal protection for assisted suicide.
As discussed in our article on Living Wills, Directive to Physicians, a durable power of attorney for health care is a binding document that instructs the person granted the power for an incompetent person as to what care to allow and not allow-essentially allowing passive euthanasia as described above. It will not, in California, be able to legally require active euthanasia in this State.
Those with a personal physician, however, often find ways to obtain sufficient medications so that they are able to, without assistance, or with the assistance of a friend or relative, achieve active euthanasia without the direct involvement of a physician. It is important to note that such actions are illegal in California-indeed, may be charged as murder though such prosecutions are rare, indeed. It is a risk and a substantial one for any person either requesting active euthanasia or one assisting it to seriously consider.
Assuming one is a resident (not visitor) to Oregon, it is possible to obtain legal active assistance but that requires forethought and planning long ahead of the euthanasia and should be carefully considered. More often the ill person is incapable of making such a change of residence, both due to physical disability and the economic cost of relocating a person who is mortally ill.
It is also possible to misread the chances for continued life. This writer has seen many persons given up for dead who somehow manage to live years and, very occasionally, recover much better health. When filled with often mood altering medications, it is easy to become too depressed and to elect euthanasia when it may not be necessary. Most States, including Oregon, have excellent counseling services available to consult with persons seriously considering what steps to take.
We have found that most persons confuse passive euthanasia with active euthanasia and most person welcome the former but are deeply concerned as to the latter. The actual taking of human life, however justified, strikes many as inappropriate. If you are seriously considering passive euthanasia, then a well written Durable Power of Attorney or Living Will should achieve your goal in this State. If you are considering active euthanasia, you owe it to yourself and to anyone you hope to assist you to carefully consider all alternatives, not let drug induced depression influence your decision, and if possible not to involve other persons in the implementation of such actions since it will constitute a crime. As Joni Mitchell wrote, “Beware the Power of Moods…”