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Annotations
Eryn R. Ace, Note: Krischer v. Mciver: Avoiding the Dangers of Assisted Suicide, 32 Akron Law
Review 723 (1999).
The author examines how one state, Florida, has dealt with the issue of Physician Assisted
Suicide after the United States Supreme Court held that the prohibition of assisted suicide did
not violate the Fourteenth Amendment or the Equal Protection clause of the Fourteenth
Amendment.(1) The issue was decided by the Florida Supreme Court in the case Krischer v.
Mciver(2). The author first begins with the background of how the issue came before the Florida
Supreme Court. Since the federal Questions of constitutionality had already been decided by the
United States Supreme Court the Florida court only had to deal with the Florida Privacy
Amendment. The Florida Supreme court relied on the following policy reasons in making its
decision (1) the preservation of life, (2) the prevention of suicide, (3) the protection of innocent
third parties, and (4) the maintenance of the ethical integrity of the medical profession.(3)
Although the author does a good job at outlining the decision of the Florida court and the
progression of the issue in Florida, there is very little critique of any of the decisions rendered by
the courts involved. This article offers a good starting point for someone who wishes to explore
the progression of the issue in the Untied States.
Christopher Kelly, The "Right to Die" in America: The Ninth Circuit's Decision in Compassion
in Dying v. The State of Washington, Vol 29, No. 4 American Health Lawyers Association,
Journal of health Law 246 (July 1996/August 1996).
The author tracks the development of the legal issues as the courts of the United States have
tried to deal with the issue of Physician Assisted Suicide. "Throughout their professional
careers, many physicians are forced to deal with terminally ill patients who want to end their
suffering. The legal issue that has developed from these types of patient requests is whether a
terminally ill, competent patient possess a right to die"(4)
The author first begins with a look at the historical foundations of the "right to die". The United
States first began consideration of this issue with the case of Karen Quinlan in 1976.(5) The
Quinlan case dealt with whether Karen Quinlan's right to privacy granted to her the ability to
decline medical treatment. The New Jersey court relied on the right to privacy because the
"right to die" is not expressly granted.(6) The first watershed case for the United States Supreme
Court to decide was the Cruzan case.(7) The court stated that, while a liberty interest to refuse
treatment does exist, a constitutional violation can be found only "by balancing the individual's
liberty interests against the relevant state interests."(8) The author then looks at the decisions of
the trial court as well as all the subsequent appeals in Compassion in Dying v. The State of
Washington.(9) "The court sought guidance from the abortion decisions, because the court
determined that each issue involved 'the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the liberty interest
protected by the Fourteenth Amendment."(10)
The author does a good job of defining the issues that the many courts have articulated in
decisions already issued. He takes a methodical approach to looking at each decision that has
lead to the current legal status of Physician Assisted Suicide. He offers no opinion as to any of
the arguments addressed by the various courts but simply offers the decisions with no additional
comments. This offers the reader an opportunity to merely look at the progression of the issue
without the tainted views of the author. It was difficult for this reader to determine on what side
of the issue the author falls on. This article offers a good starting point for anybody who may
wish to journey into this very heated discussion with so many differing opinions.
Dr. G. Steven Neeley, The Constitutional Right to Suicide, The Quality of Life, and the
"Slippery-Slope": An Explicit Reply to Lingering Concerns, 28 Akron Law Review 53 (Summer
1994).
Many courts and scholars appear to be motivated by an implicit concern with the so called
"quality of life" argument.(11) Dr. G. Steven Neeley contends that this argument is simply an
extension of the slippery slope arguments which he contends are logically misleading and, at
best, are swayed only by emotional appeal.(12) He first examines the problems with the slippery-slope argument. There are several different comparisons that are drawn when using the slippery-slope arguments. Some have linked voluntary euthanasia with the Nazi Genocide. Still others
argue that if voluntary euthanasia were legalized there is reason to believe that compulsory
euthanasia would then be legalized at a later date.(13) He criticizes these arguments by drawing a
line of demarcation because of the voluntariness of the act of Physician assisted suicide.(14) He
continues to argue that society will not lose respect for human life once it accepts the sanctity of
individual choice.(15)
The second argument he attacks is that of a "falling dominoes" scenario. Although he considers
this more plausible than the first set of arguments, he finds fault with it as well.(16) This argument
proceeds as follows: once legislature legalizes voluntary euthanasia then inevitably political
pressures will mount for legalization of nonvoluntary euthanasia, which will then be legalized.
This will then lead to pressure for legalization of involuntary euthanasia and so on.(17) His
problem with this theory is mainly that it depends on how these dominoes are in place, and that
can not be determined by any certainty.(18) He goes on to argue that there are many circumstances
in which society views killing as acceptable; war, capital punishment, and self-defense, yet these
exceptions have not led to the devaluation of human life.(19) There does seem to be some fault in
the logic of the authors argument. A simple look at the society in which we live in, is
increasingly showing signs of a devaluation of human life. Although the "falling dominoes"
scenario does not seem logically possible, his argument against it does seem to ignore the fact of
our increasingly violent society.
Another criticizism of Physician Assisted Suicide involves the doctrine of substituted judgment.
This doctrine would under some circumstances allow a guardian ad litem to assert the "right" to
physician assisted suicide on behalf of an incompetent patient.(20) The author argues that because
the court endeavors to follow what the incompetent patient would have chosen that euthanasia
under this doctrine would actually fall under voluntary euthanasia.(21)
The author offers as an argument in support of physician assisted suicide that "the absolute
interdiction of suicide and euthanasia involves the impossible assertion that every life, no matter
what its quality or circumstances, is worth living and obligatory to be lived.(22) He continues by
asserting that the right to suicide stems from the constitution's commitment to personal
autonomy and that this does not harm others.(23)
The author does a good job at pointing out the weakness in the arguments of those that oppose
Physician Assisted Suicide. This paper offers the reader a good look at the many views
regarding this issue. He attempts to argue that those that oppose Physician Assisted Suicide
have terrible weaknesses inherent in their arguments. The one major weakness of the article is
that the author ignores the weaknesses in his argument instead of trying to deal with them.
David A. Pratt, Too Many Physicians: Physician-Assisted Suicide after
Glucksberg/Quill 9 Albany Law Journal of Science and Technology 161 (1999).
The author begins with a look at the decisions of the United States Supreme Court in
Washington v. Glucksberg and Vacco v. Quill.(24) He does a quick overview of the different
arguments that were presented on both sides of the debate to the Supreme Court. The author
first starts with the decision in the Glucksberg case. The legal issue presented to the court in this
case as articulated by the Chief Justice was whether "the 'liberty" specially protected by the Due
Process Clause includes a right to commit suicide which itself includes a right to assistance in
doing so."(25) The Chief Justice's opinion concludes that there is no fundamental right to
Physician Assisted Suicide and offers little hope to proponents that any future due process claim
would be successful.(26)
The author then moves on to the decision of the Supreme Court in Vacco v. Quill. The Quill
case involved the issue of whether the Equal Protection Clause could offer any protection of the
'right" to Physician Assisted Suicide.(27) The proponents of Physician Assisted Suicide did not
fare any better in this decision than they did in the Glucksberg case which was decided by the
court at the same time. Proponents of Physician Assisted Suicide have made the assertion that
there is little difference between the right for a competent adult to refuse medical treatment that
would prolong life and the right to Physician Assisted Suicide. The court drew a very important
distinction between the two. When someone refuses treatment they die from the underlying
condition; but when someone ingests drugs that are prescribed by a physician in order to
facilitate the suicide, the person is dying from the medication.(28) The court also distinguishes
between the intent of the parties involved in the two different circumstances.(29) The author
points out that someone who refuses treatment does not always do it out of a desire to die, there
are often religious reasons or merely because the treatment is painful.
The author then moves into the policy debate surrounding the issue. The briefly reviews the
different physicians that have been caught up in the debate and the actions of the courts in those
states in which these physicians have conducted the activity. Some courts have indicated that
merely prescribing drugs to a terminally ill patient would not constitute a violation of the laws
prohibiting Physician Assisted Suicide.(30) Proponents then argue what difference is there
between prescribing pain medication that a physician suspects the patient will use to commit
suicide, and a physician taking a more active role such as Dr. Kevorkian's "suicide machine".(31)
The author asserts that to allow the second would be to ignore the "disastrous side effects of this
radical change."(32)
The author then takes a look at the only state that has made Physician Assisted Suicide legal,
which is Oregon. The Oregon law is still fairly new and therefore it is difficult to get an
accurate picture of whether there are abuses. The author critiques a report that was issued by the
Oregon Health Division after the first year under the new law. He notes that the report relies
heavily on physician self-reporting, which in turn tends to show that the law is operating well
and it is being regularly being followed.(33)
The author suggest that we need to ascertain the risks of mistake and abuse as well as the real
need for Physician Assisted Suicide before relaxing any of the prohibitions.(34) He argues that we
must proceed with great care and that the issue must be addressed by the state legislatures and
not simply ignored.(35) If it is ignored then he asserts the Court would be forced to entertain a
constitutional challenge not to a state's assisted suicide laws, but to other laws which deny dying
patients adequate palliative care.(36)
The authors critique of proponents of Physician Assisted Suicide argument is through and points
out the many weaknesses that are inherent in their argument. The author does not just stand on
the Supreme Courts decisions that there is no constitutionally protected right to Physician
Assisted Suicide. He goes further and discusses fully the "holes" in not only the legal arguments
but the social arguments as well. It is a well rounded argument, not just concentrating on the
weakness of the proponents argument but discusses the oppositions arguments fully as well.
Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, And
the Right To Die, 44 The American University Law Review 803 (1995).
The author first begins with a discussion of how the issue of Physician Assisted Suicide is
linked to the issue of the right of a woman to an abortion as outlined by the Court. He asserts
that "each of the judges who has voted to permit assisted suicide has based his or her decision in
part on an inference from the abortion cases."(37)
It has been argued that if a woman has a right to
control her own body and avoid a pregnancy then a patient suffering in pain should have a
similar right to end the condition which causes him/her such pain.(38) The author asserts that this
connection should not be made.(39) The author draws a clear line between the two issues stating
that "unlike abortion, where the status of the fetus is a matter of intense moral debate, in the area
of assisted suicide, the State must choose between preventing deliverance from suffering and
acquiescing in the risk of what all would concede is murder.(40) He also notes the similarities
between the two decisions. This article was penned before the United States Supreme Court
issued its decisions in the Glucksberg and Quill cases and therefore the author makes arguments
as to why there should not be any constitutionally guaranteed right to Physician Assisted Suicide.
There is still considerable debate about whether a fetus is a life and if it is when does it become
a life. In contrast, there is no debate that those that request Physician Assisted Suicide are
indeed lives and therefore should be protected.
The author does not just discuss the legal implications of legalizing Physician Assisted Suicide.
He also goes into great detail about the social and moral issues that must be faced if Physician
Assisted Suicide was to be legalized. One argument that has been advanced is that as long as
guns, plastic bags, and tall buildings are freely available, most people have the capacity to
commit suicide. The author does point out the weakness in this argument, in that it ignores the
fact that many who desire Physician Assisted Suicide do so because they do not have the
physical means to use any of the above mentioned "means" to commit suicide.(41)
The author also discusses the observational error that is believed to be so prevalent in the
medical field. Medical literature suggests that doctors often estimate the quality of life to be
lower than the patient themselves.(42) The possibility of a lethal mistake he argues is a reason not
to lift the ban.(43) An argument is made that if the ban is lifted that doctors will not be able to
resist the financial considerations and other pressures, and that euthanasia will result.(44) This
argument seems to me to be close to absurd. It is not doubtful that a physician may consider all
the implications, but to lift the ban on Physician Assisted Suicide does not effect the illegality of
euthanasia. The author spends little time with the argument which leads one to believe that it is
not in fact a strong argument.
An additional argument made by the author is in which he asserts that current medical practice
radically undertreats pain, which in turn makes suicide an attractive option to those that are
suffering.(45) If the medical profession took a more aggressive role in pain management perhaps
the need for Physician Assisted Suicide would decrease greatly. It has also been expressed the
medical profession has difficulty diagnosing and treating depression.(46) If this were to change the
need for Physician Assisted Suicide would seem to decrease as well.
The author acknowledges that the prohibition of assisted suicide forces the State to choose to
protect the welfare of others at the cost of the patients control over her own body, which raises
moral difficulties.(47) The author asserts that "to prohibit assistance enshrines the State's
responsibility to protect the vulnerable and to affirm their connection to society."(48)
This article though written before the decisions by the United States Supreme Court that there
was not Constitutionally protected right to Physician Assisted Suicide, does an amazingly good
job of anticipating what the Court would rest its' decision on. The author discusses the many
legal, social and moral issues involved in this debate. He acknowledges the seemingly unfair
result of "forcing" those that desire not to, to continue living. The arguments presented are for
the most part well thought out and articulated very well. He also offers alternatives to lifting the
ban on Physician Assisted Suicide such as better pain management.
Robert L. Kline, Commentary: Give Me Liberty and Give Me Death: Assisted Suicide as a
Fundamental Liberty Interest,6 The Boston Public Interest Law Journal 527 (Winter 1997).
This article was written prior to the Supreme Court's decisions in the Glucksberg and Quill
cases but the author does a very good job of outlining the arguments that were asserted in front
of the Second and Ninth circuit Courts of Appeals. The author first discusses the Glucksberg
case. There were two steps to the Ninth Circuit's decision, the first being to decide whether
there was a liberty interest in hastening death. Secondly, provided that an interest exists,
whether the state may restrict exercise of that interest by banning medically assisted suicide.(49)
The court held that the state's absolute prohibition on assisted suicide for mentally competent,
terminally ill adults unconstitutionally limited such person's liberty interest.(50) The Ninth Circuit
analogized the liberty interest in assisted suicide to the liberty interest of a woman to terminate
her pregnancy.(51)
The author also discusses the Second Circuit Court of Appeals decision in Vacco v. Quill.(52) The
court in this case found no liberty interest in the right to physician assisted suicide.(53) The court
did find a violation of the Equal Protection clause of the Fourteenth Amendment.(54) The court
reasoned that if individuals on life support were permitted to refuse or terminate life support
systems, then mentally competent, terminally ill individuals should be permitted to make similar
decisions.(55) It was argued that physicians do not fulfill the role of a killer by prescribing
medication than they do by disconnecting life support.(56)
The author noted that Justice O'Connor was going to be a key on how the "right" to assisted
suicide cases were to be decided. The author discusses in detail the opinions of Justice
O'Connor on the issue of liberty. In an opinion by O'Connor in the Cruzan case she discussed
two themes, first the government should be prevented from violating an individual's bodily
integrity.(57) Second, individual decisional privacy where the government burdens an individual's
choice on intimate and personal matters relating to an established constitutional right or liberty
interest should be preserved.(58) The author states that Justice O'Connor's opinion that the
government should not violate an individual's bodily integrity applies to assisted suicide as
well.(59)
The author thought that the court would find a constitutionally protected liberty interest in
physician assisted suicide.(60) This is an excellent overview of the different arguments that were
presented to the Supreme Court. Of course, now we know that these arguments were rejected by
the court. However, it is important to know these arguments because it is likely that the court
will hear arguments on this subject again. Once the "experimentation" in the states begins in
earnest the court most likely find many challenges to the states interpretation. In order to know
what arguments would succeed it is important to know what failed. Also with the likelihood that
the makeup of the court will change over the course of the near future it is important to note the
balance of the court in these decisions.
Paul Moore, Physician-Assisted Suicide: Does "The End" Justify the Means? 40 Arizona
Law Review 1471, (Winter 1998).
Like so many others this article begins with the overview of the decisions by the Supreme Court
in the Glucksberg and Quill cases. There is nothing unique in this overview of the cases and
therefore I will not go into detail about them. The author expands from just a general overview
of the cases. He notes that the separate concurring opinions filed in Glucksberg of Justices
Souter, O'Connor, Stevens, and Breyer all point out the narrowness of the decisions.(61) Justice
O'Connor indicated that the court need not reach the question of whether a mentally competent
person who is experiencing great suffering has a constitutional interest in controlling the
circumstances of his or her imminent death.(62) Justice Stevens noted that "the constitutionality of
the general statutory ban on assisted-suicide does not validate every application of that ban."(63)
This leaves the issue of assisted-suicide in the hands of the states. The author then looks at the
physicians ethical and traditional role in assisted-suicide. A majority of the medical profession
continues to be opposed to physician-assisted suicide.(64) In legalizing physician assisted suicide
the relationship between physician and patient will be changed. Both sides of the discussion
agree to that. What they do not agree on is in what way the relationship will change.(65) Given the
current diminishing regard for the health care profession, and the highly publicized desire to cut
costs, it is easy to believe that patients will suspect the advice of a physician prescribing death.(66)
The author next discusses the difficulty in defining what condition would qualify for assisted
suicide. He notes the difficulty in being able to determine how long an individual has to live.(67)
If pain and suffering is included in the definition of who qualifies then how exactly do you
determine what is pain and suffering.(68) It is also difficult to determine who has a terminal illness
from those that are in the last stage of a terminal illness and this distinction should be very
important.(69) He also points out that the opponents of physician assisted suicide have argued that
the medical community should take a more aggressive role in alleviating the physical and
emotional suffering of patients, and by doing this the need for physician assisted suicide would
decrease greatly.(70) This argument may in fact not be accurate because there is strong evidence
that pain has very little to do with a request for suicide.(71)
Depression is the primary indicator for a request for assisted suicide.(72) If this is indeed correct
then the author argues that legalization of physician assisted-suicide is not the answer but better
treatment of depression would be.(73) There is a legitimate concern that the "insurance-poor" and
other groups that lack adequate health care coverage as well as minorities, disabled and the
elderly will receive unequal guidance regarding assisted suicide.(74)
This is an excellent review of not just the legal arguments but some of the social arguments as
well. The author believes that perhaps the best thing to do is to leave the situation as it is and to
increase the effectiveness of treating depression in order to decrease the requests for assisted
suicide.
John A. Brennan, Note: A State Based Right To Physician Assisted Suicide, 79 Boston
University law Review 231 (February, 1999).
The United States Supreme Court has issued rulings in which the right to physician assisted
suicide is not protected by the constitution. It does not appear that this is the end of the debate.
The author of this article believes that the right to physician assisted suicide may indeed be
protected in the individual constitutions of each state.(75) There are two avenues suggested by the
author, the first is through legislative measures and the second is through the constitutions of
each state.(76) Most states have reacted by enacting laws that explicitly bar assisted suicide.(77)
This avenue does not seem to be one in which proponents would be successful.
The second avenue is through the courts interpretation of each state's constitution. In the past
state constitutions have played a vital role in the protection of individual rights.(78) There have
been many instances in which the states have gone in a different direction in interpreting the
state constitution than the Supreme Court has gone in interpreting the constitution.(79) The author
does a quick overview of a few of these instances. The instances the author discusses are
Consensual Homosexual Sex, Paternity Rights, and Abortion Rights.(80)
The author then applies this reasoning to the instance of Physician Assisted Suicide. "The
analysis demonstrates how claims involving intimate and personal decisions relating to
sexuality, paternity and abortion, which were lift unprotected by the United States Supreme
Court under the Fourteenth Amendment, were later embraced by state courts through their own
constitutions."(81) The author turns first to how Florida and California have dealt with the issue.
Both of these states have rejected the idea of a right to assisted suicide under their
constitutions.(82) Both of these states interpret their constitutions similar to how the Supreme
Court interprets the Constitution.(83) He then moves on to Kentucky which has a tradition of
protecting individuals from "majoritarian moralistic views even when the United States Supreme
court has been reluctant to do so."(84) "The notion of protecting a mentally competent, terminally
ill person from state interference in matters of end-of-life decision making fits well with
Kentucky's natural law tradition of respecting individual autonomy."(85)
The author believes that the only protection that physician assisted suicide will find is within the
confines of the state constitutions. This seems to be the most likely course of action for the
debate. This is a good look at what may be the only successful course of action. He does not
rely on emotional or social arguments but merely observes what is most likely to be successful.
Lynne Marie Kohm and Britney N. Brigner, Women and Assisted Suicide: Exposing the
Gender Vulnerability to Acquiescent Death, 4 Cardozo Women's Law Journal 241 (1998).
It is argued that there are certain portions of the population that are at an increased risk of
seeking physician assisted suicide. "Legalized physician-assisted suicide could effectively bring
about a haste toward death among women that would recreate the 'gender gap' as never
before."(86)
The authors first begin with a discussion of some of the issues that makes women
particularly vulnerable. The first issue is the many financial factors. In the situation of a
divorce often the women have a stark reduction in available income.(87) This is often true as well
in cases where a women's spouse dies.(88) It is also well known that women often earn less for the
same work that a man performs, which in turn also creates a financial hardship.(89) Women also
have a greater need for health care both in their reproductive years and as they get older.(90)
Many women are forced to rely on public resources because of the lack of adequate financial,
family , social and emotional support.(91)
There are other factors as well, such as emotional and biological factors. "Women are twice as
likely as men to suffer from major depression, for reasons more often cultural than
biological..."(92) It is argued that women often take on the roll of nurturer, that they are used to
sacrificing and are uncomfortable with a roll of being the recipient of sacrifice.(93)
Next the authors begin to look at the women that Dr. Kevorkian has assisted in their desire to
commit suicide. This is an alarming list. At the time the authors wrote this 71% of his reported
cases of assisted suicide had been women.(94) The authors list each woman that Dr. Kevorkian
had assisted and what their reported diseases were and a little biographical information. The list
is very effective helping the reader to understand the dynamics involved in each case. The list
contains information on fifty-eight(58) women.(95) Many of the women suffered not only from
physical ailments or mental conditions but also suffered from one of the previous mentioned
factors.(96) Emotional factors were present in the majority.(97) "The brief portraits of the women
assisted in their suicide by Jack Kevorkian are ominous, and provide compelling evidence for
the gender vulnerability to acquiescent death."(98) There is a stark difference between the women
Kevorkian assisted and the men that he assisted. Most of the men were declared terminally ill
by their own doctors, were in constant, severe pain and were often physically incapacitated.(99)
One the other hand many of the women had ambiguous complaints, and were not diagnosed
terminal and had not been complaining of severe or constant pain.(100)
This article makes it clear why there is such opposition to physician assisted suicide. It does it
in a way that is most effective. It is difficult to read the stories of the many women assisted by
Dr. Kevorkian and not believe that perhaps these women really do need the protection of the
state. When you look at the way many other factors make women more vulnerable you can see
the need to really look into whether assisted suicide is the appropriate measure for the women.
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