Baxter and the return of physician-assisted suicide.
Subject: Medicine (Practice)
Assisted suicide
Author: Robinson, John
Pub Date: 11/01/2010
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2010 Hastings Center ISSN: 0093-0334
Issue: Date: Nov-Dec, 2010 Source Volume: 40 Source Issue: 6
Accession Number: 268403533
Full Text: The term "physician-assisted suicide" usefully identifies a practice that is, and should be, a source of considerable controversy these days. Typically, the practice in question involves two crucial actors: a doctor and a terminally ill patient whose death is likely to occur within a short time. Knowing the condition of the patient and responding to the patient's request, the doctor prescribes a drug that should cause the patient's death shortly after it is taken. That's the "physician-assisted" half of the practice. The "suicide" occurs, if it ever does, shortly after the patient ingests the drug.

Physician-assisted suicide is legal in Oregon and Washington. Until very recently, it has been illegal in every other state, and claims to its being a federal constitutional right were rejected by the United States Supreme Court a dozen years ago in the Glucksberg and Quill decisions. (1) But a recent development in Montana has altered the landscape somewhat. On December 31 of last year, the Montana Supreme Court decided Baxter v. Montana, a case that most observers thought would clarify the status of physician-assisted suicide under Montana's constitution. (2) The court, it turns out, decided not to do that--not now, at least. It decided instead whether a physician who participates in a physician-assisted suicide in Montana--and does so in accordance with the rules that have been developed for this practice in Oregon and Washington--could lawfully be convicted of violating Montana's homicide statute after the patient died from taking the medicine that the physician prescribed.

The court concluded that the physician could not be convicted of violating the homicide statute because the physician would always be able to assert the consent of the patient in question as a complete defense. That being the case, the court concluded that no rule-abiding physician practicing medicine in Montana has any reason to fear prosecution for engaging in physician-assisted suicide, regardless of what the Montana constitution might be found to say about it; so there was no need for the court to proceed to the difficult and contentious step of trying to clarify it.

In Montana, as in every other state, there are exceptions to the consent defense. Consent is not a defense, for example, when the conduct in question is against public policy. For that reason, the Montana Supreme Court had to establish that physician-assisted suicide is not against Montana's public policy. Here's the argument offered by Justice Leaphart, speaking for the Baxter majority: Everyone agrees that the against-public-policy exception applies "to situations in which violent, public altercations breach public peace and endanger others in the vicinity"(p. 14). Everyone should also agree that neither a doctor's prescribing medication--even lethal medication--nor a patient's taking it in the privacy of his or her home is "comparable to the violent, peace-breaching conduct" that we have just agreed is against public policy (p. 21). The only serious question to be resolved, therefore, is this: What guidance does Montana law give when we are deciding whether doctors who prescribe lethal medication to their terminally ill patients (in assisted-suicide scenarios) should have a consent defense available to them if they are charged with homicide when one of their patients dies?

The answer to that question, Justice Leaphart says, can be found in the Montana Rights of the Terminally Ill Act, especially when read in conjunction with Montana's homicide statute. The homicide statute, with its focus on causing "the death of another human being," does not, he says, criminalize either the doctor's conduct or the patient's conduct in the assisted-suicide scenario (p. 26). The Rights of the Terminally Ill Act, for its part, envisions situations in which doctors will be required to take steps that will, in all probability, result in the death of their patients. The best reading of that statute, furthermore, is one that portrays the Montana legislature as having intended "to give terminally ill patients ... end-of-life autonomy, respect and assurance that their life-ending wishes will be followed"(p. 27). Justice Leaphart's argument on the against-public-policy issue ends as follows:

If, that is, Montana's public policy holds that doctors may engage in the more death-related act of withdrawing a respirator from a respirator-dependent patient, then it cannot be contrary to the state's public policy for a doctor to engage in the less death-related act of prescribing a medication that may be taken by the patient in the hope that it will cause his or her death. The greater includes the less, as lawyers sometimes say.

Case closed. Or is it? I don't think so. First of all, the greater does not always include the less. A person who says that the state may execute someone who has been convicted of a particularly heinous form of murder could, without contradiction, also say that it would be wrong for the state to spare that person's life but to dismember him or her. This would not be because being limbless is worse than being dead, but simply because no state should ever authorize any of its agents to do that sort of thing to a human being, or because no one should have that sort of thing done to him or to her (least of all by the agent of any state), or because that sort of punishment would make it harder for citizens to see punishment as a practice intended to set things right after a wrong is committed.

Second, Justice Leaphart does not do justice to either Montana's homicide law or its Rights of the Terminally Ill Act. As Justice Rice points out in dissent, a good case can be made that intentional suicide-assisters are guilty of a felony both when a suicide is eventually committed and when it is not (p. 101). And, as Justice Rice also argues, nothing in Montana's Rights of the Terminally Ill Act remotely suggests that it was intended to condone physician-assisted suicide (p. 108). To the contrary, the act is all about the right of Montanans, when competent, to mandate the withdrawal or withholding of treatment that only prolongs the process of dying if ever they should become both terminally ill and incapable of making decisions about their health care (p. 106).

Third, there is a relevant difference between the doctor who disconnects the respirator and the doctor who prescribes the lethal medication--a difference that the Montana Supreme Court overlooked as it was assessing the nexus between those two acts. The first doctor is accepting the perceived inevitability of the patient's death and removing impediments to its occurrence. The second is partnering with another in the other's potential suicide. The first doctor is acknowledging the limits of medical science and of the healing arts. The second is facilitating an act that is no part of medical science or of the healing arts. It is that difference that the court overlooked, but it is precisely that difference that the court should have made the focal point of its reasoning--or so I argue.

Let's start with patient autonomy, the most salient of the principles that govern the doctor-patient relationship in modern American bioethics. Reduced to its essentials, patient autonomy involves both a power that patients possess and a limitation on that power. The power is that competent adults can veto any medical treatment that their doctors propose. The limitation is that doctors can refuse to provide medical treatment that the patient wants but that the doctor believes to be inappropriate--subject, sometimes, to a duty to refer the patient to a doctor who will provide that treatment. Understood in this way, patient autonomy has very little to contribute to the debate over the legal status that physician-assisted suicide should enjoy in Montana or elsewhere. Neither the power nor the limitation that is included in this concept of patient autonomy has anything decisive to say about whether doctors should be free of criminal prosecution if they prescribe lethal medications for terminally ill patients who request them.

There is, however, another notion of autonomy in our culture that goes well beyond this understanding. It is radically libertarian: it makes each of us the ultimate moral judge of all of our conduct that does not directly harm others, and it denies to the state any authority to dictate what that conduct should be. From this perspective, physician-assisted suicide is a no-brainer: of course doctors should be free to prescribe lethal medication for competent adult patients who request it.

In the ever-more-Hobbesian political culture in which we live these days, this libertarian view is particularly troublesome. It does not merely silence the state on private matters in which the state has little interest and no particular competence; rather, it puts the state silently on the side of a major revolution in both moral theory and medical practice. Legalized physician-assisted suicide means that the state endorses that practice, if only by incorporating it into the standard repertoire of practices that it regulates.

If I am correct in thinking that the state cannot be neutral about physician-assisted suicide, then why should the state treat it as against public policy rather than as consistent with it? There are weighty consequentialist considerations--risk to the integrity of the medical profession, risk to patients whose terminal illness has left them weak and suggestible, and so on. Arguments of that sort have sometimes succeeded, but they failed in Oregon over a decade ago and in Washington more recently. In my judgment, they do not stand a chance against the libertarian juggernaut that is sweeping the American west these days. Success for the opponents of physician assisted suicide will come only if those opponents take on libertarianism and suicide more directly.

Libertarianism rests on accounts of the human person and of the state that are impoverished almost beyond recognition. Libertarianism assumes that human beings are radically self-creating. We have no debts to others that we have not consciously entered into. I am free to associate with others, but I am not bound to others by anything other than freely assumed ties. On this account, my death is mine both in the (superficially attractive) sense that I am in charge of it and in the (profoundly unsettling) sense that it may well end up being no one else's concern. Similarly, libertarianism assumes that the state is incapable of enriching human lives. The idea that the state might have an educative function, that it might feed the better angels of our nature and starve our demons, is anathema to it. Deep in our hearts, however, we know that we are not self-made beings, either literally or metaphorically. Our flourishing depends on the freely given love and care of other people, and on the existence of a thriving political, cultural, and affective community, in the well-being of which the state plays a significant role.

This should lead to a view of the state's role regarding physician-assisted suicide that is quite different from what the Baxter court gave us. We should encourage states to see that the state neutrality toward suicide built into the Baxter decision is both illusory and dangerous. If we accept that death is, at some level, terrifying, and that the intentional extinction of a human life is, at some level, even more terrifying, then we should not seek to facilitate suicide by insulating the doctors who assist it from criminal or civil liability. (3) We should seek instead to create in our communities values, practices, and institutions that will assure each of us the sort of care--familial, societal, and medical--that will make the resort to assistance in suicide unnecessary. And we should go one step further, encouraging the state, through its public policy, to reduce to a minimum the conditions that make suicide, with or without a doctor's assistance, appear to be a choice worthy of consideration.

(1.) Washington v. Glucksberg, 521 U.S. 702 (2007); Vacco v. Quill, 521 U.S. 793 (2007).

(2.) Baxter v. Montana, 224 P.3d 1211 (Mont. 2009). All further references to Baxter will be in the text. They will be to the relevant numbered paragraph in the Montana Supreme Court's decision.

(3.) See R. Burt, Death Is That Man Taking Names (Berkeley: University of California Press, 2002).
There is no indication in the Rights of the Terminally Ill Act that
   physician aid in dying is against public policy. Indeed, the Act
   reflects legislative respect for the wishes of a patient facing
   incurable illness. The Act also indicates legislative regard and
   protection for a physician who honors his legal obligation to the
   patient. The Act immunizes a physician for following the patient's
   declaration even if it requires the physician to directly unplug
   the patient's ventilator or withhold medicine or medical treatment
   that is keeping the patient alive. Physician aid in dying, on the
   other hand, does not require such direct involvement by a
   physician. Rather, in physician aid in dying, the final
   death-causing act lies in the patient's hands. In light of the
   long-standing, evolving and unequivocal recognition of the
   terminally ill patient's right to self-determination at the end of
   life in [the Rights of the Terminally Ill Act], it would be
   incongruous to conclude that a physician's indirect aid in dying is
   contrary to public policy. (p. 38, emphasis in original)
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