Guidelines for physician-assisted suicide: can the challenge be met?

Journal of Law, Medicine & Ethics, 24 (1996): 217–24. © 1996 by the American Society of Law, Medicine & Ethics. The question of legalizing physician-assisted suicide (PAS) has become a serious public debate. Growing interest in assisted suicide reflects a public increasingly fearful of the process of dying, particularly the prospect of dying a painful, protracted, or undignified death. PAS has been proposed as a compassionate response to unrelievable suffering, designed to give terminally or incurably ill individuals direct control over the timing, manner, and circumstances of their death. Although the American Medical Association remains firmly opposed to legalizing PAS,1 many physicians have begun to express support for the practice, and some have acknowledged that they have helped patients commit suicide despite the existing legal ban.2 As support for PAS grows, it becomes increasingly likely that the practice will be legalized in at least some states in the not-too-distant future. In 1994, Oregon voters approved a referendum legalizing PAS for competent, terminally ill patients;3 a federal court injunction preventing the referendum from going into effect is currently on appeal, and it is widely expected that the injunction will be lifted.4 Proposals to legalize assisted suicide are also pending in at least a dozen state legislatures.5 More significant, two federal appellate courts recently concluded that absolute prohibitions on assisted suicide violate the constitutional rights of competent, terminally ill patients who wish to hasten death.6 If the United States Supreme Court affirms one or both of these decisions, absolute prohibitions against assisted suicide may no longer be enforceable in any state. Even if the Court reverses both decisions, states would remain free to legalize assisted suicide through legislation, referenda, or judicial interpretation of state constitutional guarantees. Nonetheless, although a few supporters of PAS oppose any legal restrictions on the practice, most who advocate legalization believe that limitations of some sort are essential, to ensure that assisted suicide remains an option of last resort.7 Indeed, most proponents of legalization emphasize that laws discouraging suicide serve important societal interests, especially when applied to cases involving healthy individuals suffering from reversible physical or psychological problems. As Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals observed before striking down Washington State’s assisted suicide prohibition as applied to mentally competent, terminally ill patients, “the state has a clear interest in preventing anyone, no matter what age, from taking his own life in a fit of desperation, depression, or loneliness or as a result of any other problem, physical or psychological, which can be significantly ameliorated.” In such cases, he wrote, “the heartache of suicide is the senseless loss of a life ended prematurely,” and the state can legitimately take steps to prevent these suicides from taking place.8