Decisions about Death
Free Inquiry, August/September, 2005
The great irony of the work of right-to-life advocates who sought in vain to prolong Terri Schiavo's life is that all the publicity about the case has triggered a surge in the number of people completing advance declarations, making it clear that they do not wish to continue to live in circumstances like those in which Schiavo lived for the fifteen years before her death. Thus, the fight over the removal of Schiavo's feeding tube is likely to significantly increase the number of feeding tubes removed. More broadly, the case has revived interest in the full range of right-to-die questions, including issues like active voluntary euthanasia and physician-assisted suicide-which, because they require a patient to be competent to make decisions, raise ethical questions very different from those at issue in the Schiavo case.
When Killing Is Not Wrong
Any discussion of the ethics of voluntary euthanasia must begin by considering whether it can ever be right to kill an innocent human being. The view that this can never be right gains its strongest support from religious doctrines that claim that only humans are made in the image of God, or that only humans have an immortal soul, or that God gave us dominion over the animals-meaning that we can kill them if we wish-but reserved to himself dominion over human beings. Reject these ideas, and it is difficult to think of any morally relevant properties that separate human beings with severe brain damage or other major intellectual disabilities from nonhuman animals at a similar mental level. For why should the fact that a being is a member of our species make it worse to kill that being than it is to kill a member of another species, if the two individuals have similar intellectual abilities or if the nonhuman has superior intellectual abilities?
So, let's start again, without the preconceptions imposed on us by millennia of religious teachings, and ask: what makes it wrong to kill any being? One possible answer is: whatever goods life holds for any being, killing ends them. If happiness is a good, as classical hedonistic utilitarians hold, then killing is bad, because when one is dead one is no longer happy. Or if it is the satisfaction of preferences that is good, as modern preference utilitarians hold, then killing is bad because, when one is dead, one's preferences can no longer be satisfied.
These answers suggest their own limits. First, if the future life of the being killed would hold more negative elements than positive ones-more unhappiness than happiness, more thwarting of preferences than satisfaction of them-then we have a reason for killing rather than against killing. That is, of course, relevant to the question of euthanasia. But who is to decide when a being's life contains, or is likely to contain, more positive characteristics than negative ones?
Freedom to Choose
The nineteenth-century philosopher John Stuart Mill argued that individuals are, ultimately, the best judges and guardians of their own interests. So in a famous example, he said that if you see people about to cross a bridge you know to be unsafe, you may forcibly stop them in order to inform them of the risk that the bridge may collapse under them, but, if they decide to continue, you must stand aside and let them cross, for only they know the importance to them of crossing and only they know how to balance that against the possible loss of their lives. Mill's example presupposes, of course, that we are dealing with beings who are capable of taking in information, reflecting, and choosing. So, here is the first point on which intellectual abilities are relevant. If beings are capable of making choices, we should, other things being equal, allow them to decide whether or not their lives are worth living. If they are not capable of making such choices, then someone else must make the decision for them, if that question should arise.
Because I want to focus on voluntary euthanasia and physician-assisted suicide, I shall not now go into details regarding life-and-death decisions for those who are not capable of exercising choice. But to those who urge that, in the absence of choice, the decision should always be "for life"-as those who wanted Schiavo kept alive appear to believe-it is worth asking if they really want to insist on the use of every possible means of life support to draw out existence to the last possible minute. Very few people really want this, either for themselves or for those they love. The Roman Catholic Church does not insist on it, allowing for the withdrawal of what are sometimes called "extraordinary means." Yet, by allowing life to end earlier than it might, these proponents of "pro-life" attitudes are effectively deciding for those who are not capable of making such decisions, and they are deciding against life, not for it.
Anyone who values individual liberty should agree with Mill that the person whose life it is should be the one to decide if that life is worth continuing. If a person with unimpaired capacities for judgment comes to the conclusion that his or her future is so clouded that it would be better to die than to continue to live, the usual reason against killing-that it deprives the being killed of the goods that life will bring-is turned into its opposite, a reason for acceding to that person's request.
The Slippery-slope Argument
Undoubtedly, the most widely invoked secular argument against the legalization of voluntary euthanasia is the slippery-slope argument, i.e., that legalizing physician-assisted suicide or voluntary euthanasia will lead to vulnerable patients being pressured into consenting to physician-assisted suicide or voluntary euthanasia when they do not really want it. Or perhaps, as another version of the argument goes, they will simply be killed without their consent, because they are a nuisance to their families or because their health-care provider wants to save money.
What evidence is there to support or oppose the slippery-slope argument when applied to voluntary euthanasia? A decade ago, this argument was largely speculative. Now, however, we can draw on evidence from several jurisdictions in which it has been possible for doctors to practice voluntary euthanasia or physician-assisted suicide without fear of prosecution. Active voluntary euthanasia has been openly practiced in the Netherlands since 1984, after a series of court decisions exonerated doctors who had been charged with assisting patients to die, and it was fully legalized by parliament in 1997. Belgium passed a similar law in 2002. Physician-assisted suicide-which allows the physician to prescribe a lethal dose of a drug, but not to give a lethal injection, has been legal in Switzerland for more than fifty years and in Oregon since 1997. (Despite President George W. Bush's opposition to "distant bureaucracies" and his oft-repeated statements that his philosophy is to "trust individuals to make the right decisions," his administration, first under the direction of Attorney General John Ashcroft and now under Alberto Gonzales, is doing its best to prevent Oregonians from acting in accordance with a law that its voters have twice ratified. The Supreme Court will eventually decide whether the federal government has the power to prevent physicians in Oregon from writing prescriptions that could enable their patients to end their lives.) According to Oregon officials, between 1997, when the law permitting physician-assisted suicide took effect, and the end of 2004, 208 patients used the act to end their lives. The number of patients using the act increased during the first six years and fell slightly in the seventh, but the numbers are still very small. There are about 30,000 deaths in Oregon annually, and only about 1 in every 800 deaths in that state results from physician-assisted suicide. There have been no reports of the law being used to coerce patients to commit suicide against their will and no reports of abuses have reached the Oregon Board of Medical Examiners, which has formal responsibility to investigate complaints. Contrary to suggestions that in the United States, physician-assisted suicide would be pushed upon those who are poor, less well-educated, and uninsured, Oregonians with a baccalaureate degree or higher were eight times more likely to make use of physician-assisted suicide than those without a high-school diploma, and all of those who have used the law to date have had some kind of health insurance. From all the available evidence, this does not appear to be a situation in which the law is being abused. Opponents of voluntary euthanasia contend that the open practice of voluntary euthanasia in the Netherlands has led to abuse. In the early days of nonprosecution of doctors who carried out voluntary euthanasia, prior to full legalization, a government-initiated study known as the Remmelink Report indicated that physicians occasionally-in roughly 1,000 cases a year, or about 0.8 percent of all deaths-terminated the lives of their patients without their consent. This was, almost invariably, when the patients were very close to death and no longer capable of giving consent. Nevertheless, the report gave some grounds for concern. What it did not, and could not, have shown, however, is that the introduction of voluntary euthanasia has led to abuse. To show this, one would need either two studies of the Netherlands, made some years apart and showing an increase in unjustified killings or a comparison between the Netherlands and a similar country in which doctors practicing voluntary euthanasia are liable to be prosecuted.
Such studies have become available since the publication of the Remmelink Report. First, there was a second Dutch survey, carried out five years after the original one. It did not show any significant increase in the amount of nonvoluntary euthanasia happening in the Netherlands and thus dispelled fears that that country was sliding down a slippery slope.
In addition, studies have been carried out in Australia and in Belgium to ascertain whether there was more abuse in the Netherlands than in other comparable countries where euthanasia was illegal and could not be practiced openly. The Australian study found that while the rate of active voluntary euthanasia in Australia was slightly lower than that shown in the more recent Dutch study (1.8 percent as against 2.3 percent), the rate of explicit nonvoluntary euthanasia in Australia was, at 3.5 percent, much higher than the Dutch rate of 0.8 percent. Rates for other end-of-life decisions, such as withdrawing life support or giving pain relief foreseen to be life-shortening, were also higher than in the Netherlands. The Belgian study, which examined deaths in the country's northern Flemish-speaking region before voluntary euthanasia was legalized in that country, came to broadly similar conclusions. The rate of voluntary euthanasia was, at 1.3 percent of all deaths, again lower than in the Netherlands, but the proportion of patients given a lethal injection without having requested it was, at 3 percent of all deaths, similar to the Australian rate and also like it, much higher than the rate in the Netherlands. These two studies discredit assertions that the open practice of active voluntary euthanasia in the Netherlands had led to an increase in nonvoluntary euthanasia. There is no evidence to support the claim that laws against physician-assisted suicide or voluntary euthanasia prevent harm to vulnerable people. Those who still seek to paint the situation in the Netherlands in dark colors now need to explain the fact that that country's neighbor, Belgium, has chosen to follow its lead. The Belgian parliament voted, by large margins in both the upper and lower houses, to allow doctors to act on a patient's request for assistance in dying. The majority of Belgium's citizens speak Flemish, a language so close to Dutch that they have no difficulty in reading Dutch newspapers and books or watching Dutch television. If voluntary euthanasia in the Netherlands really were rife with abuses, why would the country that is better placed than all others to know what goes on in the Netherlands be keen to pass a similar law?
One way to interpret the results of the studies of euthanasia in Australia and Belgium, as compared with studies in the Netherlands, is that legalizing physician-assisted suicide or voluntary euthanasia brings the issue out into the open and thus makes it easier to scrutinize what is actually happening and to prevent harm to the vulnerable. If the burden of proof lies on those who defend a law that restricts individual liberty, then in the case of laws against physician-assisted suicide or voluntary euthanasia, that burden has not been discharged.
In jurisdictions where neither voluntary euthanasia nor physician-assisted suicide is legal, whether death comes sooner or later for terminally ill patients will often depend on whether or not they require a respirator-which most physicians will be prepared to withdraw. Or it may vary with how ready a physician is to administer life-shortening doses of a painkiller, perhaps risking being reported to the police by a zealously pro-life nurse. Whether we are concerned to maximize liberty or to reduce suffering, we should prefer that the time when death comes depends on the wishes of mentally competent patients. The Netherlands, Belgium, Switzerland, and Oregon now allow their citizens or residents to make that decision. There is no sound reason why other countries, and other parts of the United States, should not allow their citizens the same freedom.
1. For further discussion, see my Rethinking Life and Death.
2. Oregon Department of Health and Human Services, Seventh Annual Report on Oregon's Death with Dignity Act, March 10, 2005. Available at http://egov.oregon.gov/DHS/ph/pas/docs/year7.pdf.
3. House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill, vol. I, Report, The Stationery Office, London, 2005 HL Paper 86-I, pp. 55-57. Available at: http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn040405adb.cfm.
4. See Ministry of Justice and Ministry of Welfare, Public Health, and Culture, Report of the Committee to Investigate Medical Practicing Concerning Euthanasia ("The Remmelink Report") (The Hague, 1991) and P.J. Van der Maas et al., Euthanasia and Other Decisions Concerning the End of Life (Amsterdam: Elsevier Science Publishers, 1992).
5. P.J. van der Maas, G. van der Waal, et al. "Euthanasia, Physician-assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995." New England Journal of Medicine 335 (1996):1699-1705.