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I. Suicide and Mental Illness
II. Pain Control Issues
III. Terminally Ill Issues
IV. Civil Remedies
Following is a brief summary of points worth making in rebutting arguments for legalizing active euthanasia:
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| 1. A request for assisted Suicide is typically a cry for help. | It is in reality a call for counseling, assistance, and positive alternatives as solutions for very real problems. |
| 2. Suicidal Intent is typically transient | Of those who attempt suicide but are stopped, less than 4 percent go on to kill themselves in the next five years; less than 11 percent will commit suicide over the next 35 years. |
| 3. Terminally Ill patients who desire death are depressed and depression is treatable In those with terminal illness. | In one study, of the 24 percent of terminally ill patients who desired death, all had clinical depression. |
| 4. Pain is controllable. | Modern medicine has the ability to control pain. A person who seeks to kill him or herself to avoid pain does not need legalized assisted suicide but a doctor better trained in alleviating pain. |
| 5. In the U.S. legalizing "voluntary active euthanasia [assisting suicide] means legalizing nonvoluntary euthanasia. | State courts have ruled time and again that if competent people have a right, the Equal Protection Clause of the United States Constitution's Fourteenth Amendment requires that incompetent people be "given" the same "right." |
| 6. In the Netherlands, legalizing voluntary assisted suicide for those with terminal illness has spread to include nonvoluntary euthanasia for many who have no terminal illnesses. | Half the killings in the Netherlands are now nonvoluntary, and the problems for which death in now the legal "solution" include such things as mental illness, permanent disability, and even simple old age. |
7. You don't solve problems by getting rid of the people to whom the problems happen.
| The more difficult but humane solution to human suffering is to address the problems. |
What's Wrong with Making Assisted Suicide Legal? By David N. O'Steen and Burke J. Balch
Many argue that a decision to kill oneself is a private choice about which society has no right to be concerned. This position assumes that suicide results from competent people making autonomous, rational decisions to die, and then claims that society has no business "interfering" with a freely chosen life or death decision that harms no one other than the suicidal individual. But according to experts who have studied suicide, the basic assumption is wrong.
A careful 1974 British study, which involved extensive interviews and examination of medical records, found that 93% of those studied who committed suicide were mentally ill at the time.
1 A similar St. Louis study, published in 1984, a mental disorder in 94% of those who committed suicide.
2 There is a great body of psychological evidence that those who attempt suicide are normally ambivalent,
3 that they usually attempt suicide for reasons other than a settled desire to die,
4 and that they are predominantly the victims of mental disorder.
Still, shouldn't it be the person's own choice?
Almost all of those who attempt suicide do so as a subconscious cry for help,
5 not after a carefully calculated judgment that death would be better than life.
A suicide attempt powerfully calls attention to one's plight. The humane response is to mobilize psychiatric and social service resources to address the problems that led the would-be suicide to such an extremity. Typically, this counseling and assistance is successful. One study of 886 people who were rescued from attempted suicides found that five years later only 3.84% had gone on to kill themselves.
6 A study with a 35-year follow-up found only 10.9% later killed themselves.
7 The prospects for a happy life are often greater for those who attempt suicide, but are stopped and helped, than for those with similar problems who never attempt suicide. In the words of academic psychiatrist Dr. Erwin Stengel, "The suicidal attempt is a highly effective though hazardous way of influencing others and its effects are as a rule...lasting."
8
In short, suicidal people should be helped with their problems, not helped to die.
But shouldn't we distinguish between those who are emotionally unbalanced and
those who are making a rational, competent decision?
Psychologist Joseph Richman, writing in the Journal of Suicide and Life-Threatening Behavior, notes,
[A]s a clinical suicidologist, and therapist who has interviewed or treated over 800 suicidal persons and their families... I have been impressed [that those] who are suicidal are more like each other than different, including ... those who choose "rational suicide".... [A]ll suicides, including the "rational," can be an avoidance of or substitute for dealing with basic life-and-death issues. ... The suicidal person and significant others usually do not know the reasons for the decision to commit suicide, but they give themselves reasons. That is why rational suicide is more often rationalized, based upon reasons that are unknown, unconscious, and a part of social and family system dynamics.... The proponents of rational suicide are often guilty of tunnel vision, defined as the absence of perceived alternatives to suicide.9
What about those who are terminally ill?
Contrary to the assumptions of many in the public, a scientific study of people with terminal illness published in the
American Journal of Psychiatry found that fewer than one in four expressed a wish to die, and all of those who did had clinically diagnosable depression.
10 As Richman points out, "[E]ffective psychotherapeutic treatment is possible with the terminally ill, and only irrational prejudices prevent the greater resort to such measures."
11 And suicidologist Dr. David C. Clark observes that depressive episodes in the seriously ill "are not less responsive to medication" than depression in others.
12 Indeed, the suicide rate in persons with terminal illness is only between 2% and 4%.
13 Compassionate counseling and assistance, such as that provided in many hospices, together with medical and psychological care, provide a positive alternative to euthanasia among those who have terminal illness.
What about those in uncontrollable pain?
They are not getting adequate medical care and should be provided up-to-date means of pain What about those in uncontrollable pain control, not killed. Even Dr. Pieter Admiraal, a leader of the successful movement to legalize direct killing in the Netherlands, has publicly observed that pain is never an adequate justification for euthanasia in light of current medical techniques that can manage pain in virtually all circumstances.
14
Why, then, are there so many personal stories of people in hospitals and nursing homes having to cope with unbearable pain? Tragically, pain control techniques that have been perfected at the frontiers of medicine have not become universally known at the clinical level. What we need is better training in those techniques for health care personnel -- not the legalization of physician-aided death.
What about those with severe disabilities? What would it say about our attitude as a society were we to tell those who have neither terminal illness nor a disability, "You say you want to be killed, but what you really need is counseling and assistance," but, at the same time, we were to tell those with disabilities, "We understand why you want to be killed, and we'll let a doctor kill you"? It would certainly not mean that we were respecting the "choice" of the person with the disability. Instead, we would be discriminatorily denying suicide counseling on the basis of disability. We'd be saying to the nondisabled person, "We care too much about you to let you throw your life away," but to the person with the disability, "We agree that life with a disability is not worth living."
Most people with disabilities will tell you that it is not so much their physical or mental impairment itself that makes their lives difficult as it is the conduct of the nondisabled majority toward them. Denial of access, discrimination in employment, and an attitude of aversion or pity instead of respect are what make life intolerable. True respect for the rights of people with disabilities would dictate action to remove those obstacles -- not "help" in committing suicide.
Opponents of legalizing assisting suicide say it will lead to non-voluntary euthanasia.
Aren't these overblown scare tactics?
Absolutely not. As attorney Walter Weber has written in the
Journal of Suicide and Life-Threatening Behavior,
Under the equal-protection clause of the Fourteenth Amendment to the U.S. Constitution, legislative classifications that restrict constitutional rights are subject to strict scrutiny and will be struck down unless narrowly tailored to further a compelling governmental interest. ... A right to choose death for oneself would also probably extend to incompetent individuals. ... [A] number of lower courts have held that an incompetent patient does not lose his or her right to consent to termination of life-supporting care by virtue of his or her incompetency.... [T]he ["substituted judgment"] doctrine authorizes-- indeed, requires -- a substitute decision maker, whether the court or a designated third party, to decide what the incompetent person would choose, if that person were competent. ... Therefore infants, those with mental illness, retarded people, confused or senile elderly individuals, and other incompetent people would be entitled to have someone else enforce their right to die.15
Thus, if direct killing is legalized on request of a competent person, under court precedents that have already been set, someone who is not competent could be killed at the direction of that person's guardian even though the incompetent patient had never expressed a desire to be killed.
1. Barraclough, Bunch, Nelson, & Salisbury, A Hundred Cases of Suicide: Clinical Aspects, 125 BRIT. J. PSYCHIATRY 355, 356 (1976).
2. E. Robins, THE FINAL MONTHS 12 (1981).
3. See, e.g., Dorpat & Boswell, An Evaluation of Suicidal Intent in Suicide Attempts, 4 COMPREHENSIVE PSYCHIATRY 117 (1964).
4. See H. Hendin, SUICIDE IN AMERICA 223 (1982); Jensen & Petty, The Fantasy of Being Rescued, 27 PSYCHOANALYTIC Q. 327, 336 (1958); K. Menninger, MAN AGAINST HIMSELF 50 (1938); Rubinstein, Meses & Lidz, On Attempted Suicide, 79 A.M.A. ARCHIVES NEUROLOGY AND PSYCHIATRY 103, 111 (1958); & Stengel, SUICIDE AND ATTEMPTED SUICIDE 113 (1964).
5. Jensen & Petty, supra note 4; Rubinstein, supra note 4, at 109; & Stengel, supra note 4, at 73.
6. Rosen, The Serious Suicide Attempt: Five Year Follow Up Study of 886 Patients, 235 J.A.M.A. 2105, 2105 (1976).
7. Dahlgren, Attempted Suicides 35 Years Afterward, 7 SUICIDE AND LIFE-THREATENING BEHAVIOR 75, 76, 78 (1977).
8. Stengel, supra note 4, at 113-14.
9. Joseph Richman, “The Case Against Rational Suicide,” Suicide and Life -Threatening Behavior, Vol. 18, No. 3 (Fall 1988): p. 285, 285-86.
10. James H. Brown, Paul Henteleff, Samia Barakat, and Cheryl J. Rowe, "Is It Normal for Terminally Ill Patients to Desire Death?" American Journal of Psychiatry, Vol. 143, No. 2 (February 1986): p. 210.
11. Joseph Richman, Letter to the Editor, "The Case against Rational Suicide," Suicide and Life-Threatening Behavior, Vol. 18, No. 3 (Fall 1988): p. 288.
12. Flora Johnson Skelly, "Don't dismiss depression, physicians say," American Medical News, September 7, 1992, p. 28.
13. Id.
14. Pieter Admiraal, “Euthanasia in the Netherlands - A Dutch Doctor’s Perspective,” (speech presented at the national convention of the Hemlock Society, Arlington, VA, 1986).
15. Walter Weber, “What Right to Die?” Suicide and Life-Threatening Behavior, Vol. 18, No. 2 (Summer 1988): p. 181-96.
Part I: Suicide and Mental Illness
By Burke J. Balch, J.D., and Randall K. O'Bannon, M.A.
Under the banners of compassion and autonomy, some are calling for legal recognition of a "right to suicide" and societal acceptance of "physician-assisted suicide." Suicide proponents evoke the image of someone facing unendurable suffering who calmly and rationally decides death is better than life in such a state. They argue that society should respect and defer to the freedom of choice such people exercise in asking to be killed.
But what would be the consequences of accepting this perspective? Let us examine the facts.
Accepting a "right to suicide" would create a legal presumption of sanity, preventing appropriate mental health treatment.
If suicide and physician-assisted suicide become legal rights, the presumption that people attempting suicide are deranged and in need of psychological help, borne out by many studies and years of experience, would be reversed. Those seeking suicide would be legally entitled to be left alone to do something irremediable, based on a distorted assessment of their circumstances, without genuine help.
An attempt at suicide, some psychologists say, is often a challenge to see if anyone out there really cares. Indeed, seeking physician assistance in a suicide, rather than just acting to kill oneself, may well be a manifestation, however subconscious, of precisely that challenge. If society creates a "right to suicide" and legalizes "physician-assisted suicide," the message perceived by a suicide attempter is not likely to be, "We respect your wishes," but rather, "we don't care if you live or die."
Almost all who commit suicide have mental health problems.
Few people, if any, simply sit down and make a cool, rational decision to commit suicide. In fact, studies have indicated that 93-94% of those committing suicide suffer from some identifiable mental disorder. In one such study, conducted by Dr. Eli Robbins of suicides occurring in St. Louis, Missouri, 47% of those committing suicide were diagnosed as suffering from either schizophrenic panic disorders or from affective disorders such as depressive disorders, dysthymic disorders, or bipolar disorder. An additional 25% suffered from alcoholism while another 15% had some recognizable but undiagnosed psychiatric disorder. 4% were found to have organic brain syndrome, 2% were schizophrenic, and 1% were drug addicts. The total of those with diagnosable mental disorders was 94%. An independent British study came up with a remarkably similar total figure, finding that 93% of those who commit suicide suffer from a diagnosable mental disorder.
Persons with mental disorders make distorted judgments.
Suicide is often a desperate step taken by individuals who consider their problems so intractable as to make their situations hopeless. But experts in psychology recognize the evaluations these individuals make of their personal situations are flawed.
The suicidal person suffering from depression typically undergoes severe emotional and physical strain. This physical and emotional exhaustion impairs basic cognition, creates unwarranted self-blame, and generally lowers overall self esteem, all of which easily lead to distorted judgements. These effects also contribute to the sense of hopelessness that is the primary trigger of most suicidal behavior.
Studies have shown that during the period of their obsession with the idea of killing themselves, suicidal individuals tend to think in a very rigid, dichotomous way, seeing everything in "all or nothing" terms; they are unable to see any range of genuine alternatives. Many seem to be locked into automatic thoughts and responses, rather than accurately to understand and respond to their environment. Suicide attempters also tend to maximize their problems, minimize their achievements, and generally to ignore the larger context of their situations. They sometimes have inordinately unrealistic expectations of themselves. During the period of their disorders, these individuals usually see life as much more traumatic than it actually is and view temporary minor setbacks as major permanent ones.
Most of those attempting suicide are ambivalent; often, the attempt is a cry for help.
Studies and descriptions of suicide attempters who were prevented from committing suicide by outside intervention (or in some cases, because the means used in the attempt did not take complete effect) demonstrate that most suicidal individuals have neither an unequivocal nor an irreversible determination to die. For example, one study conducted by two psychiatrists in Seattle, Washington found 75% of the 96 suicide attempters they studied were actually quite ambivalent about their intentions to die. It is not actually a desire to die, but rather the desire to accomplish something by the attempt that drives the attempter to consider such a drastic option. Suicide is the means, not the end.
Often, suicide attempters are apparently seeking to establish some means of communication with significant persons in their lives or to test those persons' care and affection. Psychologists have concluded that other motives for attempting suicide include retaliatory abandonment (responding to a perceived abandonment by others with a revengeful "abandonment" of them through death), aggression turned inward, a search for control, manipulative guilt, punishment, escapism, frustration, or an attempt to influence someone else. Communication of these feelings -- rather than death -- is the true aim of the suicide attempter. This explains why, paradoxically but truthfully, many say after an obvious suicide attempt that they really didn't want to kill themselves. Psychiatrists have long advanced the opinion that underlying a suicidal person's ostensible wish to die is actually a wish to be rescued, so that a suicide attempt may quite accurately be described, not as a wish to "leave it all behind," but as a "cry for help." To allow or assist in a suicide, therefore, is not truly fully respecting a person's "autonomy" or honoring an individual's real wishes.
The disorders leading many to attempt suicide are treatable.
Depression can be treated. Alcoholism can be overcome. The difficult situations and circumstances of life which, at the moment, seem permanent and pervasive, often dissolve or resolve in time. The emotional and cognitive patterns of thought and emotion which cloud the suicide attempter's judgement and lead to feelings of utter despair and hopelessness, with proper psychiatric care, can be rechanneled in more rational, positive ways.
Crucial to such turnarounds is intervening to stop the suicide attempt and getting the attempter professional psychological assistance. Encouraging or validating the disturbed individual's feelings or misperceptions in fact makes it less likely the individual will get the help he or she needs and subconsciously probably wants.
Few of those rescued from suicide attempts try again.
Proof that most individuals attempting suicide are ambivalent, temporarily depressed, and suffering from treatable disorders is the fact that so few, once rescued and treated, ever actually go on to commit suicide. In one American study, less than 4% of 886 suicide attempters actually went on to kill themselves in the 5 years following their initial attempt. A Swedish study published in 1977 of individuals who attempted suicide at some time between 1933 and 1942 found that only 10.9% of those eventually killed themselves in the subsequent 35 years. This suggests that intervention to keep an individual alive, is actually the course most likely to honor that individuals true wishes or to respect the person's "autonomy."
Burke J. Balch is the Director of the Department of Medical Ethics for the National Right to Life Committee. Randall K. O'Bannon is a Research Associate for the Department of Medical Ethics.
Part II: Pain Control
by Burke J. Balch, J.D., and David Waters
Proponents of euthanasia argue that "mercy-killing" is necessary because patients, particularly those with terminal illness, experience uncontrollable pain. They argue that the only way to alleviate the pain is to eliminate the patient. But is there a better way?
The better response to patients in pain is not to kill them, but to make sure that the medicine and technology currently available to control pain is used more widely and completely. According to a 1992 manual produced by the Washing ton Medical Association,
Pain Management and Care of the Terminal Patient, "adequate interventions exist to control pain in 90 to 99% of patients." The problem is that uninformed medical personnel using outdated or inadequate methods often fail in practice to bring patients relief from pain that today's advanced techniques make possible.
Doctor Kathleen Foley, Chief of Pain Services at the Memorial Sloan-Kettering Cancer Center in New York, explained in the July 1991
Journal of Pain and Symptom Management how proper pain management has mitigated patient wishes for assisted suicide:
We frequently see patients referred to our Pain Clinic who request physician-assisted suicide because of uncontrolled pain. We commonly see such ideation and requests dissolve with adequate control of pain and other symptoms, using combinations of pharmacologic, neurosurgical, anesthetic, or psychological approaches.
Approaches to Effective Pain Management
Treating "Total Pain"
The social and mental pain suffered by terminally ill patients may exacerbate the physical pain they experience. Dr. Matthew Conolly points out, "[F]ailure to remember this complexity is one of the most common reasons why patients fail to achieve adequate symptomatic relief." Effective pain control therefore requires a team effort of doctors, nurses, psychiatrists, and counselors to address the "total pain" a patient is suffering.
Severe Pain
Proper administration of an opioid, particularly morphine, has been proven to provide effective pain management in the majority of patients with severe pain. A February 1993 article in
Anesthesiology notes:
In the setting of widespread cancer, although more than half of patients will experience pain, their pain is manageable by oral administration of opioids alone in 70-80% of cases.
And many methods other than opioids are available. Some patients may benefit from radiation therapy, nerve blocks (including even spino-thalamic tractotomy in selected cases), non-steroidal anti-inflammatory drugs, and non-pharmacological methods, which include distraction and relaxation. Transcutaneous electrical nerve stimulation and direct spinal cord (dorsal column) stimulation may be valuable.
Technological Advances
Technological advances have greatly increased the available options in administering opioids. One of these, Patient Controlled Analgesia (PCA) (a pump which can deliver a continuous infusion of a drug such as morphine, as well as allow patient-activated doses for breakthrough pain), eliminates the delay in receiving pain relief caused by having to wait for a nurse to administer the necessary medicine. Studies have shown that PCA may actually lower the amount of medicine administered to patients, while providing them with a safe and effective way to have more control over their treatment.
Another technological advance is the availability of a 72 hour patch made by Alza Corporation which releases controlled amounts of the opioid fentanyl through the skin. This patch allows patients to sleep through the night, avoiding the need to to wake up to take more medicine. The development of time released morphine provides this same benefit. There is increasing interest in infusing opiates directly into the spinal column, sometimes using an implanted pump. This allows effective pain relief with a much lower total dose so that fewer systemic side effects are encountered.
Barriers to Effective Pain Control
Despite our ability to control pain through medicine and technology, there are some patients who are needlessly suffering due to beliefs and practices which disrupt proper pain management. Poor pain assessment by physicians, patient reluctance to report pain, and patient hesitance to take and physician reluctance to prescribe appropriate medication, are some barriers that prevent proper pain management.
These practices are based on several myths, related to addiction, tolerance, and side effects. Some doctors do not prescribe adequate opioid medication because they fear their patients will become addicted.
Research shows, however, that only 0.04% of patients treated with morphine become addicted. Side effects associated with opioids, such as constipation, nausea, and vomiting, can be effectively managed by other medication and careful opiate titration. While a patient may develop a degree of tolerance to morphine over time, this is never total, and therefore increased doses of the opioid continue to provide relief.
Efforts to Educate Doctors and the Public
In an effort to counter beliefs and practices which disrupt proper pain management, health care professionals in 27 states are promoting cancer pain initiatives. These initiatives provide education for doctors, patients, and the general public about effective pain management, especially in terminal patients. The U.S. Department of Health and Human Services has produced a series of
Clinical Practice Guidelines for Acute Pain Management and is now working on additional guidelines specifically for cancer pain.
We have the technology and the medicine effectively to control pain. While there do exist some barriers to the implementation of that medicine and technology, efforts are being made to remove those barriers. Instead of trying to legalize the killing of patients in pain, the public should be making sure that doctors are taught, and use, effective pain management.
Part III: What About the Terminally Ill?
By Burke J. Balch, J.D., and Randall K. O'Bannon, M.A
Proponents of physician-assisted suicide frequently begin by advocating its legalization for those who are terminally ill, although they have moved far beyond that category. But, as this article will demonstrate, 1) treatable depression, rather than the terminal illness itself, usually accounts for such a patient's expression of a wish to die; 2) after a diagnosis of terminal illness, a person normally goes through a series of stages of coming to terms with impending death and resolving unfinished business in his or her life, a valuable process that is cut short by acceding to a depression-induced request for assistance in suicide; and 3) given growing pressures to contain medical costs and prevailing social attitudes, if assisting suicide is legalized, many terminally ill patients will be led to feel they are burdens and have a duty to die.
Most terminal patients seek suicide not because they are ill, but because they are depressed.
A study of terminally ill patients published in The American Journal of Psychiatry in 1986 concluded:
The striking feature of [our] results is that all of the patients who had either desired premature death or contemplated suicide were judged to be suffering from clinical depressive illness; that is, none of those patients who did not have clinical depression had thoughts of suicide or wished that death would come early.
USA Today has reported that among older people suffering from terminal illnesses who attempt suicide, the number suffering from depression reaches almost 90%.
This fact is not really in dispute. Even Jack Kevorkian, the notorious "suicide doctor," said at a court appearance that he considers anyone with a disabling disease who is not depressed "abnormal." But what Kevorkian and others who argue in favor of physician-assisted suicide ignore is that even though the disease itself may be untreatable, the depression is treatable, and
it is the depression, not the disease, which makes such persons suicidal.
Suicidologist Dr. David C. Clark notes that depressive episodes in the seriously ill "are not less responsive to medication"[5] than depression in others. And psychologist Joseph Richman, former President of the American Association of Suicidology, says, "[E]ffective psychotherapeutic treatment is possible with the terminally ill, and only irrational prejudices prevent the greater resort to such measures." Indeed, the suicide rate in persons with terminal illness is only between 2% and 4%. Competent and compassionate counseling, together with appropriate medical and psychological care, are the caring and appropriate response to people with terminal illness who express a wish to die.
Especially for those who are terminally ill, it is not good to circumvent the dying process.
In 1969. psychiatrist Elisabeth Kubler-Ross outlined the 5 stages of the dying process -- denial, anger, bargaining, depression, and acceptance. Since that time, Dr. Kubler-Ross has worked with thousands of dying patients and their families to help them deal with the dying process. In a recent interview, she indicated that her experience over the past 20 years tells her that suicide is wrong for patients with terminal illness.
Lots of my dying patients say they grow in bounds and leaps, and finish all the unfinished business. [But assisting a suicide is] cheating them of these lessons, like taking a student out of school before final exams. That's not love, it's projecting your own unfinished business.
This "unfinished business" of considering the ultimate meaning of one's life, of resolving old disputes and mending relationships, of coming to a final recognition and appreciation of all the good things that have been a part of one's life, are all short-circuited by those who, overcome by depression , give up too soon in the process and kill themselves. And despite their compassionate motives, those healthy bystanders who encourage or even assist in these suicides are in fact helping to steal the last precious moments of these patients' lives.
Many consider suicide primarily because they are pressured into seeing themselves as burdens on their families or society.
The principal reason people in a 1991 Boston Globe survey said they would consider some option to end their lives if they had "an incurable illness with a great deal of physical pain" was not the pain, not the "restricted lifestyle," and not the fear of being "dependent of machines," but rather that they "don't want to be a burden" to their families. Family members who support the suicide of a terminally ill patient often unwittingly reinforce the notion that the ill family member's life has lost all meaning and value and is nothing but a "burden."
In an era of concern over escalating medical costs, "unproductive" consumers of medical services are increasingly made to see themselves as drains on society and the economy. When suicide is promoted as a socially acceptable "option," the pressure to avail oneself of it is immense.
Thus, if assisting suicide for those with terminal illness is legalized, the so-called "right to die" is very likely in practice to become a "duty to die."
Part IV: The Need for Civil Remedies to Prevent Assisting Suicide
by Burke J. Balch, J.D. and David N. O'Steen, Ph.D.
On May 2, 1994, a Michigan jury acquitted Jack Kevorkian of charges related to his publicly proclaimed assistance in the suicide of Thomas Hyde. The verdict points up the way in which the pathos of individual cases often leads criminal case juries to react emotionally, failing to give considerate attention to the general effects on older people and people with disabilities of signaling societal acceptance of death as the solution to human problems.
As this article will show, there are strong reasons why more states should follow the lead of Minnesota, Tennessee, and North Dakota, all of which have recently enacted "civil remedy" statutes that, entirely apart from criminal remedies, allow private parties to obtain injunctions against those who assist suicides. Injunctions are granted by judges, without juries, and a judge can punish violators with sanctions for contempt of court.
Regrettably, the Kevorkian acquittal is not an isolated case of jury nullification of laws protecting suicide victims. Recent history demonstrates that no physicians, and few non-physicians, have been successfully prosecuted for assisting suicide. The emotional tug of individual cases makes prosecutors reluctant to seek punishment and juries reluctant to impose it.
An article in the November 5, 1992 issue of the New England Journal of Medicine co-authored by Dr. Timothy Quill (who himself escaped penalty when a grand jury refused to indict him for his openly announced participation in assisting a suicide) notes, "In every situation in which a physician has compassionately helped a terminally ill person to commit suicide, criminal charges have been dismissed or a verdict of not guilty has been brought." Other studies confirm this conclusion, which in fact is not limited to circumstances of "terminal illness" or "compassion."
While there have been a few successful criminal prosecutions of non-doctors, they have been extremely rare. A 1986 article in the Columbia Law Review concluded:
[A]ll indications are that assistance statutes are rarely, if ever, used. ... [D]espite the thousands of suicides each year, only about fifty news reports regarding some form of prosecution in the past decade for some type of assistance to suicide have been located. ... No post-1930 decision appears to exist in any state reporter of an appeal from a prosecution for the specific offense of assisting or causing a suicide. Surely, many more cases of suicide assistance are occurring than are prosecuted.
.... Police and prosecutors appear to be reluctant to bring charges for suicide assistance. A British study found only one-sixth of all reported cases of suicide assistance were prosecuted. ... It seems plain that police and prosecutors are exercising their discretion to turn a blind eye to acts of assistance to suicide, which means that legislative enactments are not being enforced.
What happens when criminal prosecutions are actually brought? Leonard Glantz accumulated reports on 20 prosecutions from 1939 through 1983. Only in three of them is there a record of jail sentences for the accused, and in each of those three cases there were unusual factors that cast doubt on how "merciful" were the defendants' motives.
A few of the others resulted in suspended sentences, but the great majority resulted either in grand jury refusals to indict or acquittals. Glantz concluded, "[A]s a practical matter, the laws of homicide may not offer much protection to very sick, elderly patients."
Why Are Criminal Penalties So Frequently Evaded?
Most of those involved in assisting suicide seem more sympathetic characters to a jury than the typical street criminal. They are often doctors or family members and friends of the suicide victim. Even when prosecutors or juries are convinced that what these people have done or are doing is objectively wrong, it is hard for them to regard such people--who often subjectively have convinced themselves they are doing the right thing--as hardened criminals worthy of punishment. Indeed, this is an area in which almost all--including those of us pushing most strongly for laws to protect potential suicide victims from "assistance"--are more interested in preventing the act than in seeking retribution against the actor.
Thus, one law review article quotes a local prosecutor as saying "the District Attorney's office [does] not seek out such cases and would prosecute only those in which one of the people involved complained" and another as saying "that the law-enforcement authorities should stay out of them as much as possible." It must be remembered that in our system there is absolute "prosecutorial discretion" and there is no legal duty on the part of any prosecutor to investigate or to take to court someone who even admittedly has violated the law.
If a prosecution does in fact come to trial, and against the odds a conviction is secured, a dilemma occurs. If a stiff jail sentence is given, the defendant may well come to be seen as a martyr; if a lenient one, the deterrent value of the law will be greatly undermined. In either case, respect for the law is diminished, and pressure for its repeal--as either "draconian" or "ineffective"--is likely to grow.
What can be done to make more effective the laws already on the books against assisting suicide? After all, the pro-life objective is actually to protect potential suicide victims from those who would "assist" their suicides, not just to have the law symbolically condemn the act. There is reason to believe that if those otherwise inclined to assist suicides knew they could be sued for substantial sums by family members or others given "standing" (the legal right to sue), they might view that prospect as a more realistic deterrent than the unlikely chance they will be convicted under the criminal law. Even if the person planning to aid the suicide first secured the consent of family members (as Jack Kevorkian is apparently careful to do), he or she could never be sure that one of them might not later sue--either because of a change of mind, or simply because there would be a financial incentive. And if the law provided an easy way to get an injunction against a serial assister like Kevorkian, then the ability of the court to impose ever-increasing fines for contempt of court if the injunction was violated would be likely to deter all but the most resolute of euthanasia advocates.
How and Why Civil Remedies Work
Under a civil remedies approach, private individuals (such as family members of the suicide victim) are given "standing"--the ability to sue the suicide assister. This means that the prosecutorial discretion of public officials can no longer completely thwart the taking of steps against the assister. It also emphasizes that assisting suicide is not a "victimless" crime--that apart from the suicide victim himself or herself, those close to the one who dies are harmed, a point that may be important to juries.
There are two types of civil remedies: injunctions and civil damages. An injunction has a number of advantages. It allows action to prevent a death before it happens. It permits a case to be brought promptly before a judge who can directly order the would-be assister not to violate the law. That person then knows that if he or she violates the court order, the judge will order heavy fines for contempt of court. For most doctors, in particular, this is likely to be a far more realistic deterrent than the unlikely prospect of serving time in jail.
As the doctors' fear of malpractice liability demonstrates, sanctions that hit the pocketbook are extremely effective. They can be enforced through the garnishment of income and the seizure of assets.
Civil damages are monies awarded after the fact, as in traditional malpractice cases. Insurers are likely to exercise strong pressure on doctors to avoid actions that could subject them to such suits.
Kevorkian, who apparently enjoys posing as an iconoclastic martyr for the death crusade, might shrug off bankruptcy. But individuals like him are few, and the greatest danger is that more and more "respectable" doctors will come out of the woodwork to publicly assist suicides, if convinced the odds of criminal conviction are low. It is these whom civil remedies would be likely to deter.
If the legislation provides that relatives may bring suit for civil damages even if they consented to the killing, those who assist in a suicide will know they cannot ensure a cover-up even by involving family members in the conspiracy, since those who know will not be prevented from suing and will have a strong financial incentive to do so.
Civil remedies have another advantage from the perspective of taxpayers. The criminal law is enforced by prosecutors who are paid with tax dollars and by using jails constructed and run with tax dollars. But civil remedies are largely financed from the pockets of the wrongdoers, not only through fines but also through the awarding of reasonable attorney's fees to the lawyers for the plaintiffs if their suit is successful.
But Won't Civil Remedies Lead to Groundless, Harassing Suits?
If a suit is brought frivolously, or in bad faith, the plaintiff may be penalized by the awarding of reasonable attorney's fees to the defendant. This not only recompenses someone who is recklessly and wrongly accused, but also deters plaintiffs from filing suits unless they have clear evidence to back up their allegations.
Is There Any Precedent for the Use of Civil Remedies?
Much of the enforcement of civil rights statutes has come not through the criminal statutes but through the use of injunctions, sometimes issued in suits brought by government officials, but more frequently in those initiated by private citizens represented by public interest lawyers.
Suits for injunctions against discrimination in schools, public accommodations and the like frequently resulted in giving the plaintiffs the authority to monitor the future activities of the defendants, to check to see whether they were violating the injunctions.
It is these civil remedies that, even today, provide the principal means of preventing racial discrimination. Now is the time to work to add effective civil remedies to the existing protections against assisting suicide. We must be pro-active in the fight to protect vulnerable people from those who, instead of offering them help and counseling, will so very readily agree that they are better off dead.
Burke J. Balch is the Director of the NRLC Department of Medical Ethics and David O'Steen is the Executive Director of the National Right to Life Committee
