The Pacific Center for
Health Policy and Ethics
University of Southern California
presents a conference on
Physician
Assistance in
Bringing about Death:
Can Regulation Work?
18 November 1997
Town and Gown
USC's University Park Campus
Los Angeles, California
On June 26, 1997, the Supreme Court rejected challenges brought by dying patients and their physicians under the Fourteenth Amendment to the New York and Washington statutes against assisting suicide.The Court held that neither the Due Process nor the Equal Protection Clauses requires States to allow physicians to prescribe lethal medications for competent, terminally ill patients who voluntarily choose to end their lives. Yet, rather than closing the topic, the Court's decisions placed it squarely before the Nation.
Much of the public debate about legalizing assisted death focuses on whether it is right for physicians to participate in ending life directly. While that issue is important, any move toward legalization must also address another issue: Can regulations be crafted, not only for assisted suicide but for euthanasia, that appropriately balance personal interests in well being and autonomy with state interests? And what relationship should such rules bear to the now less controversial practices of "pulling the plug" or administering pain medications that may produce a "double effect"?
The Challenging Task of Crafting Safeguards
"Americans are engaged," as Chief Justice Rehnquist noted in Washington v. Glucksberg, "in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide." Beyond any objections in principle to assisted-suicide and euthanasia, perhaps the most "challenging task," as Justice O'Connor wrote in her concurrence, is that of "crafting appropriate procedures for safeguarding . . . liberty interests," a task the Constitution entrusts "to the 'laboratory' of the States."
The feasibility of crafting regulations adequate to protect legitimate State interests (such as safeguarding human life and ensuring voluntary choice) received considerable attention in Washington v. Gluckberg, especially in Justice Souter's concurring opinion. The interests asserted on behalf of dying patients who want physicians' aid in ending their lives are important enough to deserve constitutional deferrence, but in the end Justice Souter was satisfied that they were defeated by the seriousness of the State interests. Might state regulation with "teeth" be enough to overcome concerns that any lines the State might try to draw would prove too porous? Justice Souter found "reasons for caution in predicting the effectiveness of the teeth" proposed thus far.
[The patients'] proposals . . . sound much like the guidelines now in place in the Netherlands, the only place where experience with physician-assisted suicide and euthanasia has yielded empirical evidence about how such regulations might affect actual practice. . . . There is, however, a substantial dispute today about what the Dutch experience shows. . . . The day may come when we can say with some assurance which side is right, but for now it is the substantiality of the factual disagreement, and the alternatives for resolving it, that matter.
What can we learn from the experience in the Netherlands? What problems, if any, exist in practice there? Have the Dutch not gone far enough by allowing euthanasia under legal rules while not actually removing it from the criminal code? That's one conclusion reached by Professor John Griffiths, who has just completed a book describing Dutch law and how it works in practice and analyzing the effectiveness of legal control. He argues for fashioning a single framework outside the criminal law for all medical behavior that shortens life rather than treating decisions about the withdrawal of care differently--and with a lower level of formal regulation--than is usually proposed for euthanasia and assisted suicide. Or have the Dutch gone too far? Bringing years of experience with suicidal patients to his first-hand study of evolving practices in the Netherlands, Dr. Herbert Hendin concludes that the Dutch experience shows that regulations are ineffective in preventing the reality of the slippery slope and that people don't turn to euthanasia when good care is available for dying patients. As one who has personally observed the Dutch system, noted ethicist Corrine Bayley will provide commentary on the issues raised for healthcare institutions as well as for patients and physicians, while Steven Heilig will discuss a proposal formulated by the Bay Area Network of Ethics Committees, which earlier this year published its own advisory guidelines.
Ever since the Death with Dignity Act was approved by Oregon voters in November 1994, lawyers, physicians, and others have been struggling to figure out how it will be implemented when and if it comes into effect. Two Oregon attorneys--Eli Stutsman, a drafter of the act and advocate on its behalf in the courts, and Kelly Hagan, a bar association leader and counsel to the Oregon Medical Association, who approaches the issues from the perspective of patient protections and liability exposure to providers--will explore the effects the law has already had and whether it can be made to work as intended. Finally, to bring in the real world of human suffering, Dr. Barbara Paul will engage in a discussion with a patient who requests assistance in ending life.
Conference Faculty
8:00 - 8:30 a.m.
Registration and Continental Breakfast
8:30 - 8:45
Welcome
Alexander Morgan Capron
What Can We Learn from the Dutch Experience?
8:45 - 9:30
Effective Regulation of Medical Behavior that Shortens
Life
John Griffiths
9:30 - 9:50
Discussion
9:50 - 10:35
Physician Assisted Suicide and Euthanasia: The
Human Dimension of Legalization
Herbert Hendin, M.D.
10:35 - 10:50
Discussion
10:50 - 11:05
Break
11:05 - 11:25
Commentary from an Institutional Perspective
Corrine Bayley
11:25 - 11:45
Commentary from a Harm-Reduction Perspective: The BANEC
Guidelines
Steven Heilig, M.P.H.
11:45 - 12:15 p.m.
Discussion
12:15 - 1:15
Luncheon
What Can We Learn from the Oregon Experience?
1:15- 2:05
Contrasting Views on the Feasibility of Appropriate
Regulations
Eli Stutsman, Esq.
Kelly Hagan, Esq.
2:05 - 2:30
Panel Discussion: John Griffiths, Kelly Hagan,
& Eli Stutsman
2:30 - 2:45
Break
2:45 - 3:45
A Physician Talks with a Patient Requesting Active Aid to
End Life
Barbara Paul, M.D.
3:45 - 4:30
A Chance to Dialogue: Breakout Groups with Speakers
