Thursday, February 21, 2013

Who owns your death?

kw: book reviews, nonfiction, politics, legislation, supreme court, death with dignity

There is a scene in the opening chapter of Shogun in which a Japanese warrior has failed to kill his opponent and is lying, injured and disarmed, in a pit below a shattered house. His commanding officer looks in, throws down a knife and walks off. The warrior expresses his thanks and kills himself with the knife, thus retaining some shred of honor after his shameful defeat. I discussed this with my wife, who is Japanese, and she understood that this was a case of "officer-assisted suicide", not murder, because the officer didn't actually hold the knife and kill the warrior. However, I had brought up this example to illustrate the difference between physician-assisted suicide, in which a doctor prescribes lethal medication that is later ingested by the patient, and what Dr. Kevorkian did, which was in at least some cases to actually kill his "patient". Even after this discussion, she did not see the latter difference. This mis-perception underlies a great difficulty confronting proponents of legislation and other measures such as referenda that would permit physicians to write such lethal prescriptions.

I had showed my wife the book At Liberty to Die: The Battle for Death with Dignity in America by Howard Ball. She said just one word, "Kevorkian". "Dr. Death" has been dead only a year and a half, so he is still fresh in the American psyche. Although he last participated in a patient's death in 1998, to some folks it is like yesterday. It seems to me that he has made things harder, not at all better, for those who would decriminalize physician-assisted death (PAD), the term author Ball prefers to physician-assisted suicide. In the present situation, a terminal patient wishing to control the time and manner of death must become a "death migrant", establish residence in Oregon or Washington, and request PAD services there.

The bulk of the book, and nearly the exclusive content of 4 of its 7 chapters, is detailed discussion of the legal cases and legislative battles that led to the present situation. An appendix lists the 53 court cases discussed; by my quick count 23 were decisions of the U.S. Supreme Court. The most significant of these were two cases adjudicated back-to back in 1997: Washington v Glucksberg and Vacco v Quill. The bottom line: the Court found that no constitutional right exists to control one's time and mode of death, nor to request or require a physician to participate. They threw the issue to the states.

Voters in the state of Oregon had already acted; the Oregon Death with Dignity Act passed in November 1994. Fourteen years later a nearly identical law was enacted by the legislature of the state of Washington. After another year, the Montana supreme court stated that nothing in state law prevented a physician from honoring a competent, terminal patient's request for a lethal prescription for the patient to use. Efforts to introduce a law in Montana similar to the Oregon or Washington measures are still ongoing.

In the other 47 U.S. states, PAD is prosecuted as either murder or manslaughter. Though nearly half the state legislatures have considered pro-PAD legislation, anti-PAD activists have blocked all other attempts, and they continue to challenge the Oregon and Washington laws. Their loudest, if not strongest, argument is the "slippery slope", that allowing PAD will inevitably lead to euthanasia, at first voluntary perhaps, but eventually even involuntary euthanasia. Today, parents may joke, "Be on good terms with the boy's girlfriend. One day she may decide our nursing home." Will tomorrow's joke be, "One day she may decide when we die."?

The real slippery slope is in the argument. The political climate in America has been getting more polarized for at least 60 years (It is probably not yet as polarized as it was in the 1860s!). Now, no matter what the issue is, both sides claim their opponents are the devil in a union suit. Here, pro-PAD folks claim the "right to lifers" (who are pretty much identical to the anti-abortion crowd) "hate" the dying in favor of their doctrinal purity, and most of them do base their sanctity of life stance on religious belief. The anti-PAD folks claim that PAD will lead to euthanasia for a rapidly growing list of reasons, until we return to a Nazi like state, and eventually anyone can be killed for the "sin" of inconvenience.

The fact is, every decision has a possible slippery slope. Many people like to drive just a bit faster than the speed limit. Not all are speed maniacs, just a little impatient. But you do see the occasional fool weaving through traffic, determined to shave another minute off his last record for getting to work. That fool has fallen down the slope, and can be voted "most likely organ donor". Many like a drink at a party. They don't go there intending to get totally snockered, but may get falling down drunk anyway. And how many "it's only lunch" occasions turn into love affairs, followed by divorces and other nastiness?

The Oregon and Washington laws contain anti-slippery-slope provisions. Will they be enough? They will likely be better than letting the occasional Kevorkian run unchecked. Dr. Ball is unabashedly pro-PAD. I am guardedly pro-PAD, while my wife is entirely anti-PAD. I am pretty sure at least we three recognize that times and laws change, if slowly. Will new laws move us, even slowly, down a slippery slope? It is possible. So is a more conservative swing that leads to overturn not only of the PAD laws currently in effect, but even of Roe v Wade. These issues are deeply divisive, and every generation has to confront them anew.

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