USING THE ISSUE OF PHYSICIAN‐ASSISTED SUICIDE TO TEACH BASIC LEGAL PRINCIPLES
1998; Wiley; Volume: 16; Issue: 2 Linguagem: Inglês
10.1111/j.1744-1722.1998.tb00270.x
ISSN1744-1722
Autores Tópico(s)Ethics in medical practice
ResumoJournal of Legal Studies EducationVolume 16, Issue 2 p. 315-330 USING THE ISSUE OF PHYSICIAN-ASSISTED SUICIDE TO TEACH BASIC LEGAL PRINCIPLES Jordan M. Blanke, Jordan M. Blanke Associate Professor, Stetson School of Business and Economics, Mercer University, Atlanta, Georgia 30341, blanke [email protected], (770) 986–3313Search for more papers by this author Jordan M. Blanke, Jordan M. Blanke Associate Professor, Stetson School of Business and Economics, Mercer University, Atlanta, Georgia 30341, blanke [email protected], (770) 986–3313Search for more papers by this author First published: 06 May 2008 https://doi.org/10.1111/j.1744-1722.1998.tb00270.xCitations: 1 AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat REFERENCES 1 I teach law courses primarily in our graduate programs. I have used this approach in the following courses: Ethics and the Legal Environment (in our MBA program); The Legal Environment (in our EMBA program); Legal and Ethical Issues in Health Care Administration (in our MS in Health Care Policy and Administration program); and Computers and the Law (in our MS in Technology Management program). I have also used it in one undergraduate course, Computers and the Law. Google Scholar 2 Since graduate students are generally older and arguably more mature than undergraduates, they probably are better able to reflect upon the various issues and ramifications of physician-assisted suicide. I have never had a class that was not interested in hearing about and discussing the issue. Google Scholar 3 I have told my classes for years now that Picket Fences was the best legal show ever on television. One of the reasons was that its creators understood the formulas for success. Its main characters included lawyers, judges, doctors, policemen and children. The only ones missing were the cowboys. The show also, of course, had superb writing. There were several excellent episodes about physician-assisted suicide and physician-aid-in-dying. Google Scholar 4 For excellent discussions of the history of suicide and attempted suicide, see Washington v. Glucksberg, 117 S. Ct 2258, 2262 (1997); Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996) (Calabresi, J., concurring); Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir., 1996) (en bane), and Marzen, O'Dowd, Crone & Balch, Suicide: A Constitutional Right?, 24 Duq. L. Rev. 1, 17–56 (1985). Google Scholar 5 Id. Google Scholar 6 Id. Google Scholar 7 Thirty-six states have statutes explicitly banning assisted suicide. See Glucksberg supra, at 2287, n.14 (Souter, J. concurring); Compassion in Dying v. Washington, 79 F.3d 790, 847, & nn. 10–13 (9th Cir. 1996) (en bane) (Beezer, J., dissenting). See, e.g., Alaska Stat. § 11.41.120(aX2) (Michie 1996); Ariz. Rev. Stat. § 13–1103(A)(3) (1996–97); Ark. Code Ann. § 5–10–104(a)(2) (Michie 1993); Cal. Penal Code § 401 (West 1988); Colo. Rev. Stat. § 18–3–104(1)(b) (Supp. 1997); Conn. Gen. Stat. § 53a–56(a)(2) (1997); Del. Code Ann. tit. 11, § 645 (1997); Fla. Stat. § 782.08 (1998); Ga. Code Ann. § 16–5–5(b) (1998); Haw. Rev. Stat. § 707–702(1)(b) (1997); Ill. Comp. Stat. ch. 720, § 5/12–31 (1998); Ind. Code Ann. § 35–42–1–2 to 35–42–1–2.5 (Burns 1998); Iowa Code § 707A.2 (1997); Kan. Stat. Ann. § 21–3406 (1995); Ky. Rev. Stat. Ann. § 216.302 (Michie 1994); La. Rev. Stat. Ann. § 14:32.12 (West Supp. 1997); Me. Rev. Stat. Ann. tit. 17–A, § 204 (West 1983); Mich. Comp. Laws § 752.1027 (1997–98); Minn. Stat. § 609.215 (1996); Miss. Code Ann. § 97–3–49 (1994); Mo. Rev. Stat. § 565.023.1(2) (1994); Mont. Code Ann. § 45–5–105 (1995); Neb. Rev. Stat. § 28–307 (1995); N. H. Rev. Stat. Ann. § 630:4 (1996); N.J. Stat. Ann. § 20:11–6 (West 1995); N.M. Stat. Ann. § 30–2–4 (Michie 1996); N.Y. Penal Law § 120.30 (McKinney 1987); N.D. Cent. Code § 12.1–16–04 (Supp. 1995); Okla. Stat. tit. 21, § 813–15 (1983); Ore. Rev. Stat. § 163.125(1)(b) (1991); Pa. Cons. Stat. Ann. tit. 18, § 2505 (West 1983); R.I. Gen. Laws § 11–60–1 to 11–60–5 (Supp. 1996); S.D. Codified Laws § 22–16–37 (Michie 1988); Tenn. Code Ann. § 39–13-216 (Supp. 1996); Tex. Penal Code Ann. § 22.08 (West 1994); Wash. Rev. Code § 9A.36.060 (1994); Wis. Stat. § 940.12 (1993–94). Several other states ban assisted suicide by case law or implicitly by statute. See Compassion in Dying v. Washington, supra at 847, & nn. 10–13; Article, The Open Door: Will the Right to Die Survive Washington v. Glucksberg and Quill v. Vacco?, 16 Buff. Jour. Pub. Int. Law 79, nn.9 & 45 (1997/1998). Google Scholar 8 Washington v. Glucksberg, 117 S. Ct. 2258 (1997) and Quill v. Vacco, 117 S. Ct. 2293 (1997). See infra notesm 45–58 and accompanying text. Google Scholar 9 In re Quinlan, 70 N. J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). Google Scholar 10 For an excellent discussion of the Karen Quinlan case, see Gregory E. Pence, Classic Cases IN Medical Ethics 8–17 (2d Ed. 1995). Google Scholar 11 For an exhaustive list of state statutes authorizing living wills, see Comment, Death by Right: A Call for Change to Michigan's Health Care Decisions Law, 72 U. Det. Mercy L. Rev. 927, 936 n.80 (1995). Google Scholar 12 Id. at 937 n.83. Google Scholar 13 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). Google Scholar 14 Id. . Google Scholar 15 Id. at 292 (O'Connor, J., concurring). Google Scholar 16 Id. at 293 (Scalia, J., concurring). Google Scholar 17 Id. at 302 (Brennan, J., dissenting). Google Scholar 18 For an excellent discussion of the Nancy Cruzan case, see Gregory E. Pence, Classic Cases IN Medical Ethics 17–20 (2d Ed. 1995). Google Scholar 19 Mich. Comp. Laws Ann. § 752–1027. This statute has since expired. In separate trials in 1994 and in 1996, Kevorkian was acquitted on charges of murder and of common law assisted suicide, respectively. Google Scholar 20 Georgia enacted legislation as a pre-emptive attempt to prevent Dr. Kevorkian, or others, from assisting suicides in the state. O.C.G.A. § 16–5–5 (Supp. 1994). This statute's scope is extremely narrow, however. It requires that a person either 1) publicly advertise, offer, or hold himself or herself out as offering to assist in a suicide, and that an overt act be taken in furtherance of that purpose, or 2) destroy the volition of another person thereby causing that person to commit or attempt to commit suicide. See 11 Ga. St. U.L. Rev. 103 (1994). Google Scholar 21 Or. Rev. Stat § 127.800–127.897. Google Scholar 22 Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995), vacated and remanded, 107 F.3d 1382 (9th Cir.), cert. denied sub nom, Lee v. Harcleroad, 118 S. Ct. 328 (1997). Google Scholar 23 Compassion in Dying v. Washington, 79 F.3d 790, 810 & n.48 (9th Cir. 1996) (en bane). Google Scholar 24 Id. at 810 & n.50. Google Scholar 25 331 New Eng. J. Med. 89 (1994). Google Scholar 26 334 New Eng. J. Med. 310 (1996). Google Scholar 27 334 New Eng. J. Med. 303 (1996). Google Scholar 28 Ruling Likely Will Add Fuel to Already Decisive Debate, USA TODAY, January 7, 1997, at Al. Google Scholar 29 There are literally hundreds of law journal articles written about physician-assisted suicide. There have been several symposia devoted to the issue. Those journals provide an excellent starting point for a review of the literature because they generally include articles from varying perspectives. See Symposium: Physician-Assisted Suicide: Facing Death After Glucksberg And Quill, 82 Minn. L. Rev. 885 (1998) (which includes articles written by leading authors Yale Kamisar, Kathryn L. Tucker and Ezekiel J. Emanuel); Physician-Assisted Suicide: Rights And Risks To Vulnerable Communities, 24 Fordham Urb. L.J. 777 (1997); Symposium: Physician-Assisted Suicide, 19 W. New Eng. L. Rev. 313 (1997); Symposium Issue: Assisted Suicide, Health Care And Medical Treatment Choices, 72 U. Det. Mercy L. Rev. 735 (1995); A Symposium: Physician-Assisted Suicide, 18 Seattle Univ. L. R. 449 (1995); The Right to Die: An Exploration of the Legal, Medical, and Ethical Issues, 20 Ohio N.U.L. Rev. 559 (1994). See also Kamisar, Pope & John Lecture On Professionalism: Physician Assisted Suicide: The Problems Presented By The Compelling, Heartwrenching Case, 88 J. Crim. L. 1121 (1998); Quill, Michigan State Medical Society Mackinac Island Conference On Bioethics: A Deliberation On Ethics In Medicine: Speech: Physician Assisted Death: After The U.S. Supreme Court Ruling, 75 U. Det. Mercy L. Rev. 481 (1998); Hyman, Symposium: Pursuing Health In An Era Of Change: Emerging Legal Issues In Managed Care: Article: Consumer Protection In A Managed Care World: Should Consumers Call 911?, 43 Vill. L. Rev. 409 (1998). For articles exploring a variety of religious perspectives, see Amundsen, The Ninth Circuit Court's Treatment of the History of Suicide By Ancient Jews and Christians in Compassion in Dying v. State of Washington: Historical Naivete or Special Pleading, 13 Issues L. & Med. 365 (1998); Traina, Pope & John Lecture On Professionalism: Religious Perspectives On Assisted Suicide, 88 J. Crim. L. 1147 (1998); Resnicoff, Physician Assisted Suicide Under Jewish Law, 1 Depaul J. Health Care L. 589 (1997);. Google Scholar 30 In Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), the Supreme Court held that a Louisiana statute requiring separate, but equal, railway cars for black and white passengers did not violate the equal protection clause of the Fourteenth Amendment. But, in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court held that a segregated school system in Topeka, Kansas, did violate the equal protection clause. Google Scholar 31 Ga. Code § 16–9–93(b). Google Scholar 32 N.Y. Penal Code § 156.20–156.27. Google Scholar 33 S.C. Code § 16–16–10(j), 16–16–20(4). Google Scholar 34 Americans, it is sometimes said, begin to address a social issue by first making laws and then challenging them in court to fine-tune and adjust them; the Dutch, on the other hand, allow a practice to evolve by "tolerating" but not legalizing it, and only when the practice is adequately controlled—when they ve got it right, so to speak—is a law made to regulate the practice as it has evolved. Margaret Pabst Battin, The Least Worst Death 139 (1994). Since 1984, while technically not legalized, some forms of euthanasia and assisted suicide have been permitted in the Netherlands. Physicians are allowed to give lethal injections or prescribe lethal drugs as long as certain guidelines are followed. These guidelines were established by the Royal Dutch Medical Association in 1984 and were revised in 1995. The guidelines mandate that a request be made by a lucid individual of his or her own volition; that the person be fully informed; that the person's suffering be intolerable and hopeless, either physical or mental, with no prospect of improvement; that there be no acceptable alternatives; and that the physician get a second opinion. Physicians are not required to perform euthanasia or physician-assisted suicide. Not surprisingly the success of the Dutch system has been reported in many different lights. Some have deemed it to be highly successful, while others have pronounced it a failure. The old adage about statistics being able to support any position certainly appears to be true here. Proponents and detractors alike have confidently recited numbers supporting their respective views. See Hendin, Rutenfrans & Zylicz, Physician-Assisted Suicide and Euthanasia in the Netherlands: Lessons from the Dutch, 277 J.A.M.A. 1720 (1977); van der Maas, van der Wal, Haverkate, de Graaff, Kester, Onwuteaka-Philipsen, van der Heide, Bosma & Willems, Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995, 335 New Eng. J. Med. 1699 (1996). While the Dutch experience is certainly useful, there are some very important distinctions to be made between Dutch and American society. Virtually all residents of the Netherlands have comprehensive medical coverage and a personal physician, and most primary care is provided in the patient's home. None of this is true in this country. Further, about 40 percent of Dutch deaths occur at home, while up to 85 percent of American deaths occur in a hospital or other health facility. See Battin, supra. Google Scholar 35 Washington v. Glucksberg, 117 S. Ct. 2258, 2303 (1997) (O'Connor, J., concurring). See infra notes 45–58 and accompanying text. Google Scholar 36 Id. at 2275. Google Scholar 37 Id. at 2258. Google Scholar 38 Proposal B was defeated by a margin of 71–29 percent. The measure was criticized by some as being poorly drafted. Dr. Kevorkian believed there were too many requirements in the proposed law and did not support it. Proponents of the measure pointed to a lack of funding to combat the media blitz of the well-funded opposition. Measure's Defeat Isn't Surprise Even to Supporters, Detroit Free Press, November 4, 1998 at 1A; Proposal B May Have Another Chance, Detroit Free Press, November 5, 1998 at 3B. Google Scholar 39 See Karl Manheim and Edward P. Howard, Symposium on the California Initiative Process: A Structured Theory of the Initiative Power in California, 31 Loy. L. A. L. Rev. 1165 (1998). For a list of states that have some form of ballot initiative mechanism, see id. at 1168 n.26. Google Scholar 40 It has already become an issue at the local level. In Michigan, Oakland County Prosecutor Richard Thompson, who unsuccessfully prosecuted Dr. Kevorkian, was voted out of office in 1996, with his stance on this issue, and his aggressive prosecution of Kevorkian, an issue in the election. Furthermore, Geoffrey Fieger, Kevorkian's attorney and a much-publicized figure in the public debate over physician-assisted suicide, ran, unsuccessfully, in 1998, for Governor of Michigan, with this issue a factor in his campaign. Google Scholar 41 Pub. L. 105–12, 111 Stat. 23 (codified at 42 U.S.C. § 14401–14408). Google Scholar 42 Poll: Nation Sides With Oregon on Suicide Issue, The Oregonian, July 30, 1998, at Bl. Google Scholar 43 Suicide Law Passes Civil Rights Muster, The Oregonian, June 12, 1998, at Bl. Google Scholar 44 Reno Decides Not to Challenge Oregon's Assisted-Suicide Law, The Oregonian, June 5, 1998 at Al. Bills introduced in The House and the Senate would amend the Controlled Substances Act to prohibit physicians from prescribing lethal doses of drugs under the Death with Dignity Act. See Bills Blocking Assisted Suicide Continue to Move, The Oregonian, July 25, 1998, at Bl. Google Scholar 45 See supra note 7. Google Scholar 46 Washington v. Glucksberg, 117 S. Ct. 2258 (1997). Quill v. Vacco, 117 S. Ct. 2293 (1997). Google Scholar 47 This is essentially the question addressed by the Supreme Court in Glucksberg and in Quill supra, note 46. Google Scholar 48 This is the question arising out of the passage of Oregon's Death With Dignity Act and addressed by the Supreme Court in Glucksberg supra, note 46, at 2266. Google Scholar 49 Compassion in Dying v. Washington, 850 F. Supp. 1454 (W.D. Wash. 1994). Google Scholar 50 Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995). Google Scholar 51 Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en bane). Google Scholar 52 Glucksberg, supra note 46. Google Scholar 53 Id. at 2303 (O'Connor, J., concurring). Google Scholar 54 Id. at 2275 (Souter, J., concurring). Google Scholar 55 Complaint for Declaratory Judgment and Injunctive Relief, Quill v. Koppell, No. 94 CIV. 5321, Southern District of New York, United States District Court. Google Scholar 56 Quill v. Vacco, 870 F. Supp. 78 (S.D.N.Y., 1994). Google Scholar 57 Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996). Google Scholar 58 Quill v. Vacco, 117 S. Ct. 2293 (1997). Google Scholar 59 In Krischer v. Mclver, 697 So.2d 97 (Fla. 1997), the Florida Supreme Court, in a decision handed down just weeks after Glucksberg and Quill supra, held that the state's statute prohibiting assisted suicide did not violate either the federal or state constitution. The court cited Glucksberg and Quill in finding no due process or equal protection violations. It also rejected a challenge that the statute violated the state constitution's privacy clause. While acknowledging that a carefully drawn statute permitting assisted suicide might be permissible, the court held that the state's compelling interests in preserving life, preventing suicide and maintaining the integrity of the medical profession outweighed the individual's privacy interest: By broadly construing the privacy amendment to include the right to assisted suicide, we would run the risk of arrogating to ourselves those powers to make social policy that as a constitutional matter belong only to the legislature. Id. at 104. Google Scholar 60 See Two Die Using Suicide Law, The Oregonian, March 26, 1998, at Al. Third Known Assisted Suicide Reported, The Oregonian, May 5, 1998, at A01. Doctor Comes Forward in 4th Assisted Death, The Oregonian, June 7, 1998, at Cl. Google Scholar 61 Two Die Using Suicide Law, The Oregonian, March 26, 1998, at Al. See also Law Mixes Private Death, Public Policy, the Oregonian, March 29, 1998, at Al and More Details Are Sought on Suicides, The Oregonian, May 10, 1998, at Al. Google Scholar Citing Literature Volume16, Issue2June 1998Pages 315-330 ReferencesRelatedInformation
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