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Physician-assisted Suicide from the African-American Experience

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Patricia A. King and Leslie E. Wolf

excerpted from:  King, Patricia A and Leslie E. Wolf, Empowering and Protecting Patients: Lessons for Physician-assisted Suicide from the African-American Experience , 82 Minnesota Law Review 1015-1043, 1015-1018 (1998)(101 Footnotes)

While we were watching round her bed,
She turned her eyes and looked away,
She saw what we couldn't see;
She saw Old Death. She saw Old Death.
Coming like a falling star.
But Death didn't frighten Sister Caroline;
He looked to her like a welcome friend.
And she whispered to us: I'm going home,
And she smiled and closed her eyes.

The increasing medicalization of death has led to widespread fear that death is unnecessarily prolonged, painful, expensive, and without dignity. This fear has given momentum to the desire of patients to have more control over their dying and to the movement to legalize physician-assisted suicide (PAS) and active voluntary euthanasia (AVE). Others may have a different fear. They may be concerned that their lives are not highly valued in this society and thus fear that they will not have access to life-prolonging treatment or palliative care that, for them, represents death with dignity. Moreover, many others may not share either of these fears, considering death a "welcome friend" to be greeted with family or, in any event, a process that is beyond their control. Making sure that all of these voices are heard in the PAS debate is a challenge.

While we share many of the concerns and values espoused by proponents of PAS and AVE, we believe that existing prohibitions on PAS and AVE should be maintained for the foreseeable future. Central to our argument is the view that this society does not have a sufficient understanding of how and why competent individuals are rendered vulnerable near the end of life. We are especially concerned that inadequate attention has been given to the sociohistorical and cultural contexts in which competent individuals function. If we do not fully appreciate the multiple ways in which an individual's autonomy and well-being can be compromised, we cannot modify existing institutional arrangements and practices in the health care system in ways that will empower and protect all patients. It is important to empower patients so that their decisions will be respected, while at the same time protecting them from abuse and exploitation.

When the Supreme Court held unanimously in Washington v. Glucksberg and Vacco v. Quill that state laws prohibiting assisted suicides did not violate the Due Process Clause or the Equal Protection Clause, the opinions of the Justices reflected concern that the interests of all patients should be protected. For example, the majority opinion in Glucksberg recognized that states have an interest "in protecting vulnerable groups--including the poor, the elderly, and disabled persons--from abuse, neglect, and mistakes." Quoting the work of the New York State Task Force on Life and the Law (New York Task Force), the majority opinion stated that "[t]he risk of harm is greatest for the many individuals in our society whose autonomy and well- being are already compromised by poverty, lack of access to good medical care, advanced age or membership in a stigmatized social group." Significantly, the opinion pointed out that "[t]he State's interest [in protecting the interests of all patients] goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes and 'societal indifference."'

As a result of the rulings in these two cases, the states will have the responsibility for insuring that the interests of patients near the end of life are not imperiled. Whether it is possible for the states to make available at this time a compassionate option of last resort for some competent, terminally ill patients, without, as a practical matter, making it harder for other patients to exercise their preferences for life prolonging treatment or palliative care, is a vexing public policy matter. Since more attention has been paid to elaborating the principles and rules that should govern practices at the end of life than to ascertaining whether the principles or rules can be effectively implemented in the context of actual decisionmaking, the states' task will be complicated. As the New York Task Force has pointed out: "For purposes of public debate, one can describe cases of assisted suicide in which all recommended safeguards would be satisfied. But positing an 'ideal' or 'good' case is not sufficient for public policy, if it bears little relation to prevalent social and medical practices." Moreover, the medical context is inextricably linked with the social and economic inequities existing in the broader society. Again, as the New York Task Force persuasively notes, "no matter how carefully any guidelines are framed, assisted suicide and euthanasia will be practiced through the prism of social inequality and bias that characterizes the delivery of services in all segments of our society, including health care."

This Article examines the African-American experience with medicine for the insights that such scrutiny offers about the vulnerability of competent individuals. We begin by offering reasons why such a perspective is critical to development of policies about PAS and AVE and end-of-life decisionmaking generally. It is important to reflect on the African-American experience because it offers insights into the nature of society's responsibilities for those who are competent but whose autonomy and well-being may be compromised by historical, social, and cultural forces at work in society itself. Thus, some individuals are in need of protection because they have been rendered vulnerable by their own society.

We turn next to a historical exploration of the relationship between African- Americans and medicine, because, in order to understand the black patient today, there must be some appreciation of the legacy that is carried forward in memories of those who went before. This examination makes clear that, as a historical matter, black lives have not been as highly valued as white lives. We continue by documenting existing disparities in health status, access to health care, and the scope and quality of health care between blacks and whites. The existence of these disparities perpetuates the view among African- Americans that their lives are devalued. Significantly, these disparities also indicate that blacks are severely disadvantaged in negotiating all aspects of the health care system.

Initial efforts to understand the causes of these disparities suggest that their existence may be due to limited access to health care, cultural differences, differences in patient preferences, and unconscious bias. This preliminary work offers insights about the role of race, culture, and mistrust in the physician-patient relationship and medicine generally. It suggests that African-Americans as a group have little reason to believe that their preferences regarding end-of-life decisions will be either understood or respected.

We conclude by indicating ways in which the African-American experience with medicine might inform the states' consideration of PAS and AVE. We hope that others will be motivated to offer similar analyses of other groups for the implications that their history and culture have for PAS.

[a1]. Carmack Waterhouse Professor of Law, Medicine, Ethics and Public Policy, Georgetown University Law Center; J.D. 1969, Harvard Law School; B.A. 1963, Wheaton College.

[d1]. Greenwall Fellow in Bioethics and Health Policy, Georgetown University and Johns Hopkins University; A.B. 1988, Stanford University; J.D. 1991, Harvard Law School; M.P.H. 1997, Johns Hopkins School of Hygiene and Public Health

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Professor Vernellia R. Randall
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The University of Dayton School of Law
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Email: randall@udayton.edu


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