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Should Physician-Assisted Suicide be Legal

Throughout the twentieth century, major scientific and medical advances have greatly enhanced the life expectancy of the average person. However, there are many instances where doctors can preserve life artificially. In these cases where the patient suffers from a terminal disease or remains in a “persistent vegetative state” or PVS from which they cannot voice their wishes for continuation or termination of life, the question becomes whether or not the patient has the freedom to choose whether or not to prolong their life even though it may consist of pain and suffering.

In answer to this question, proponents of physician-assisted suicide, most notably, Dr. Jack Kevorkian, are of the opinion that not only should patients be able to abstain from treatment, but if they have a terminal and/or extremely painful condition, they should be able to seek out the assistance of a doctor in order to expedite their death with as little pain as possible. Contained herein are the arguments for and against the le galization of doctor-assisted suicide, as well as where the state courts stand in respect to this most delicate of issues.

In the hopes of larification, we must first distinguish between active and passive euthanasia. Passive euthanasia involves the patient’s refusal of medical assistance. It involves the right to die which is protected by the United States Constitution clauses of due process liberty and the right to privacy (Fourteenth Amendment). The right to doctor-assisted suicide, or active euthanasia, consists of, “… a patient’s right to authorize a physician to perform an act that intentionally results in the patient’s death, without the physician’s being held civilly or criminally liable for having caused he death” .

The “passive” form of euthanasia was first deemed legal by the New Jersey State Supreme Court in 1976 In re Quinlan . In the Quinlan case, the court allowed a competent patient to terminate the use of life- sustaining medical machines to prolong life. Since New Jersey’s decision, all fifty states have enacted similar statutes which contain living will provisions. However, although the United States Supreme Court upheld the Quinlan decision in re Cruzan , it changed the parameters of passive euthanasia .

With the Cruzan decision, the Supreme Court held that passive uthanasia was legal but only for competent adults or those who are incompetent but have previously procured a living will. However, if the patient is without a living will and incompetent, it becomes the burden of the family to prove that there is “clear and convincing evidence” to the affect that the patient does not want to continue living in a vegetative state.

As to active euthanasia, there has been no Supreme Court ruling determining whether the right to die, as understood in passive euthanasia cases, can be bound over to active euthanasia. The decision is thus left to he individual states. Currently, thirty-one states have criminalized explicitly the a ct of assisted suicide . Physician-assisted suicide is generally recognized as illegal under the parameters of homicide, however it is very difficult to meet all of the elements of the crime and conviction subsequently becomes nearly impossible.

The fact that the U. S. Supreme Court has not reviewed a physician-assisted suicide case, which would create precedent, constitutes a dilemma for the state courts in that there is no uniform test or ruling by which to decide. Most states have eveloped their own laws to, more often than not, make doctor-assisted suicide illegal. However, when a case comes to trial it is usually dismissed either by the judge in a pretrial motion or by the jury. For example, in at least three of the assisted suicides which Dr. Kevorkian was involved in, all criminal charges were dismissed.

So, the laws have been created, but when it comes to convicting a doctor and sending him to prison, in lieu of the circumstances, the law often breaks down and the charges are dismissed or the doctor is acquitted. In the case of the nineteen states hich have not delineated the criminality of doctor-assisted suicide, the issue becomes less clear. Many of these states have a hard time grouping physician-assisted suicide with homicide.

The case which Michigan judges cite in refusing this linkage of criminality is the People of the State of Michigan v. Campbell . In the Campbell case, the “court found that ‘the term suicide excludes by definition a homicide'” . Since, suicide is not a homicide, then an assisted suicide cannot be deemed a homicide. At the time of the appellate courts hearing of the Campbell appeal, there was no ther codified law expressing what crime an assisted suicide would fall under and the homicide charges were dismissed. Anti-active euthanasia proponents feel that it is the duty of physicians to help and heal patients as opposed to hastening their exit from this world.

They also fear that the legalization of doctor-assisted suicide may be abused by doctors who do not feel that there is any hope for the patient and counsel them to terminate their life. The state also has an interest in the life of the individual. The individual state was originally set up to protect the ights of individuals and to see that “the value of an individual’s life… and the value of life to society as a whole” is protected. The value of an individual’s life includes their personal well-being and safety from harm, even if it is self- inflicted.

So, it has now become the duty of the individual states to balance the interests of the state against the interests of the individual patient in order to come up with a law which is accommodating to both. Persons who are for active euthanasia believe that legislation against it is “violative of the undamental concepts of liberty, freedom of choice, and self-determination” They base these beliefs on the text of the fourteenth amendment to the United States Constitution. The voluntary choice between life and death is, to them, a basic human right which the government has no right to legislate.

They often compare this choice of euthanasia to the right to abortion. Judge Lynn Compton embodies these views in her opinion in the case of Bouvia v. Superior Court , “If there is a time when we ought to be able to get the government ‘off our backs’, it is when we face death- either by choice or otherwise” . The trend in the law seems rather obviously to be against the legalization of physician-assisted suicide. This is clear due to the thirty-one states which have already incorporated the act into their penal codes as being illegal.

As to the other states, there is much controversy as to it’s legalization. Although in popular polls, the general public seems to be in favor of active euthanasia’s legalization, the courts in all of the states find that the possibility for infraction of the statute supersedes the wishes of the patient. The courts aim to protect doctors from civil suits, patients from doctor’s dvisory abuse, and the country’s general policy of the sanctity of life. In the courts view, passive and active euthanasia are two entirely different things.

One involves the withholding or cessation of care which may or may not end up in death and the other involves a doctor’s administration of a lethal substance with the specific intent of impending death. In other words, one entails allowing death to occur without doctor intervention and the other is killing, albeit “mercy” killing. Based on my research, it seems clear that the effort to legalize active euthanasia is ne that is not going to go away in the near future. This is especially due to the spread of the AIDS virus and other incurable diseases.

However, although I feel that it should be legalized with certain provisions, I cannot foresee it’s uniform, federal regulation in the near future, especially with a conservative Supreme Court as is sitting today. Presently, there are twenty-one states which allow citizen legislation through the use of the general election ballot. In these states, special interest grou ps which support active euthanasia have placed initiatives on the ballot. An xample of one of these groups is the California based Americans for Death with Dignity or ADD .

The DDA designed a statute, proposition 161, that would legalize doctor-assisted suicide. The statute was also created “with extraordinary care to provide all reasonable precaution to protect against the risks” of legalizing the practice of active euthanasia. One of the clauses of the statute which aims at the prevention of abuse is that the statute would only allow licensed physicians to partake in helping someone end their life. Although proposition 161 was not passed, it is a reflection f the general population’s sentiment that active euthanasia should not be illegal.

At the time of the publication of this article, California, Washington, Oregon, and Michigan were preparing or has already proposed general election initiatives which would permit aid-in-dying by physicians. The act of taking a life is a serious one. The American people are notoriously weary of it’s implementation, as can be seen in the case of capital punishment. Although, active euthanasia is consensual, the paradox which lingers in the term “physician-assisted suicide” is difficult for lawmakers and citizens alike to consent to.

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