Arguments for legalizing physician-assisted suicide

Physician-assisted suicide should be legalized in all of America. The issue of physician-assisted suicide, from time to time, makes the rounds of the mainstream media, most recently with the case of Brittany Maynard, the terminal cancer patient who at the age of 29 used physician-assisted suicide. She had moved from California to Oregon in order to be able to do this, as the practice is not yet legal in her home state (The Telegraph, 2014). Her decision was criticized by the Vatican, and religion does often form the philosophical underpinning of the resistance to physician-assisted suicide in Western countries.

There are different arguments in favor of physician-assisted suicide. One, currently being used by civil liberties activists before the Supreme Court of Canada, holds that equality rights are being violated because the sick are unable to end their own lives in the same way that the physical-abled can, and that suicide is legal while physician-assisted suicide is not (Kirkey, 2014). Furthermore, the juxtaposition is offered that prohibitions against assisted-suicide are rooted in religious grounds, and therefore should be applied in secular society. That argument is nowhere near airtight, but it does provide a framework for understanding the role that secularism should play in the creation of laws governing our society. The argument in favor of legalizing assisted-suicide with therefore be made on the two dimensions of secularism and on human rights. Ethical arguments are frequently made, but they are more difficult to reconcile, as will also be noted

Ethical Background

Since there is an inherent ethical component to this debate -- it is essentially about what is right and what is wrong -- then the role of ethics needs to be understood. Suicide has always been ethically challenging. Plato had a mixed view of it, deeming it allowable under certain circumstances, but otherwise reprehensible. One of the circumstances where suicide would not be considered reprehensible was when it was "compelled by extreme and unavoidable personal misfortune," a category under which terminal illness could reasonably fall (Cholbi, 2012). Christian ethics, which stood more strongly against suicide, and which will be discussed in greater detail later in this work, became the dominant ethical framework in Western society for understanding suicide. This framework still hold considerably influence one how our laws have developed, even though much of our legal framework nominally derives from Enlightenment-era philosophy.

Enlightenment thinkers sought to reframe their ethical positions away from the influence of the Church -- Hume described traditional attitudes towards suicide as "muddled and superstitious" (Ibid). Thomas More's utopian society allowed for the terminally ill to choose their pathway to death (Young, 2010). A view of suicide developed apart from the traditional notion of violating one's duty towards God, but also it was noted that in many cases it did not violate one's duty towards other people. Certainly, an elderly person or someone with a terminal illness would not be in violation of duty towards others if they committed suicide. Thus, when the notions of personal liberty and utilitarianism are introduced, it becomes evident that stigma against suicide itself is baseless.

Kant, however, disagree and was opposed to suicide. Kantian ethics are, of course quite different from Hume's Enlightenment ethics. Kant's deontological ethics hold that "our rational wills are the source of our moral duty, and it is therefore a kind of practical contradiction to suppose that the same will can permissibly destroy the body that carries out its volitions and choices" (Cholbi, 2012). Interestingly, this sounds like an argument from incredulity, which is sloppy for Kant. Logically, even if we accept the proposition that our rational wills are the source of our moral duty, if our will accepts that death is inevitable then it is a fair argument that we no longer have a significant duty left. Those who die by physician-assisted suicide do not typically die until their symptoms are constraining their quality of life, and will never improve. This point is repeated in the Canadian argument -- "no one wants to die if living is better" (Kirkey, 2014). Kant perhaps did not extend his argument to consider the conditions under which one might change their own concept of moral duty -- moral duty is not necessarily fixed.

In terms of ethics and philosophy, there is no consensus on suicide, much less physician-assisted suicide. It does stand to reason that the person dying is not going to face criminal sanction, as death makes that point moot. The criminality concept is introduced to the person who assisted the suicide. But criminality for the physician is dependent on the view of suicide as a whole -- if you assist a crime like robbing a store, you are viewed under law as a criminal, too. If you assist in a lawful act, you are not generally viewed as a criminal. The law in the United States has seemingly created an exception to this principle in its position on physician-assisted suicide.

To create this exception, a certain cognitive dissonance must exist that holds there to be no difference between helping a person commit suicide and committing murder. Logically, it flows that if suicide is a legal act, then assisting suicide should be, too, but that can only hold if the proposition is accepted that there is a fundamental difference between different types of killing. This opens the door for the argument, introduced by More but more prominent recently, that there is a moral argument to help those who are suffering, and that this outweighs any moral prescription against killing -- that there is an inherent difference between murder and assisted suicide.

Moreover, in other areas of law we differentiate between different forms of killing. We have different degrees of murder, and other charges for various forms of negligence causing death. Drivers have special status when they kill someone. Police officers are afforded unique rights under law with respect to killing. In their case, it was an act of law that granted those rights, which would lead to a reasonable conclusion that we may need to create the same unique legal status for physicians where a specific set of conditions for assisted-suicide exist, and that those conditions will almost assuredly extend beyond the first condition of being requested to assist in suicide. Almost all advocates of assisted-suicide are careful to point out that within our society there must be other conditions beyond just the will to die, if we are to allow physician-assisted suicide.

Religion and the Law

Scripture says relatively little about suicide, and nothing about physician-assisted suicide (Cholbi, 2012), but this should not matter. The specific source of religious opposition to physician-assisted suicide is not relevant, only that there is opposition on religious grounds -- questioning the legitimacy of one's faith is not the same as questioning the faith itself. Indeed, the credibility of the religious argument is not relevant at all, if one accepts that the First Amendment creates a separation of church and state. This separation in the Constitution is that no law shall prohibit the free exercise of religion, not that no law shall be made that may be rooted in religious belief. On some level, many of our laws can be argued to be rooted in religious belief.

The secularism argument, which roughly holds that religious rules cannot be the basis of secular law, is therefore far from airtight. Not the least of its problems is that it is a red herring -- one need not be religious, specifically, to oppose physician-assisted suicide. It may be the case that virulent opposition typically has a religious bent, but religion is not necessarily the source of the law. Kant opposed physician-assisted suicide on non-religious grounds, after all. Thus, strictly speaking, it does not flow that all opposition to physician-assisted suicide is religious, nor that all of those who argue in favor of legalizing assisted suicide are doing so from a purely rational, enlightened perspective. The religious vs. secular argument is a red herring in this respect. It provides a backdrop to understanding some of the arguments being made, and certainly why this issue is so controversial, but ultimately the decision to support the right to physician-assisted suicide should be made on the preponderance of evidence. Perhaps part of the reason that the idea is argued on an ethical basis -- where common ground is difficult to find even among the world's eminent philosophers, much less in those whose style of debate is based on emotional reaction -- is because there is so little evidence. But in 2014, there is some evidence to work with, to help examine whether or not we should allow physician-assisted suicide.

Evidence

The controversial nature of physician-assisted suicide has made it fodder for a considerable body of scholarly study. It has attracted the attention of sociologists, psychologists, ethicists, and of course the medical community (Cholbi, 2012). Physicians are at the front lines, being the ones who would theoretically be charged with a crime, and that makes them the most important stakeholder, after dying person. Medical ethics draws upon the Hippocratic Oath, which holds "I will give no deadly medicine to anyone if asked, nor will I suggest any counsel." The Hippocratic Oath also says "With regard to healing the sick…I will take care that they suffer no hurt or damage." The two clauses are mutually exclusive when it comes to the terminally ill and physician-assisted suicide -- it would not be an ethical dilemma if one could simply choose between the two without any cost. So the Hippocratic Oath lacks power to resolve this issue, but thankfully there is an entire field of medical ethics on which to fall, not to mention a body of evidence from the five states where physician-assisted suicide is legal.

As was argued in the Canada case, "no one wants to die if living is better" (Kirkey, 2014). A survey of physicians in Washington revealed that 12% had received requests from patients for physician-assisted suicide. The three more common diagnoses associated with these requests were cancer, neurological disease and AIDS. The concerns highlighted were loss of control, being a burden, being dependent and loss of dignity. Physicians were more likely to provide assistance in cases where there were physical symptoms. The survey showed that requests for physician-assisted suicide are not rare and that in many cases the underlying issues are not physical (Back et al., 1996). Physicians typically refused to assist in the absence of physical symptoms, though this survey was conducted when it was still illegal in that state, so there is the question of whether or not legality would make a doctor more likely to assist.

In the Netherlands, which has long allowed physician-assisted suicide, 2.3% of deaths where a physician was present occurred through assisted-suicide. They used different methods than in the U.S., where prescription drugs are typical, with the use of opioids being on common method and withholding life-saving treatment another. The latter is not dissimilar to DNR policy, for which no significant ethical debate in the U.S. exists. This highlights a slightly different framing of the issue in the Netherlands, where assisted suicide is viewed more like honoring a DNR, at least ethically, than it is viewed as a form of murder. Assisted-suicide increased slightly in the Netherlands in the years after it was legalized, though it is possible that it was underreported when it was still illegal (Van der Maas et al., 1996).

There are also the views of the public to consider. In theory, the public elects Congress to pass laws. One can speculate whether any given Congress genuinely reflects the will of the people, detour into discourse about states' rights, and can surely debate about tyranny of the majority, but that is the theory. So the views of the American people do matter in this discussion, because at issue is the law. Gauging the public's perspectives is difficult -- Emanuel (2002) found that the way the survey was framed often differed significantly, and responses differed significantly as well. Those in favor of legalizing physician-assisted suicide ranged from 34% to 65%, a strong swing and one that provides no clarity on the will of the people. Support is very much contextual -- for those with terminal illness and unremitting pain, there is consistent support. For views of being a burden -- which were commonly expressed in the survey of Washington physicians -- public support was much lower, insufficient to pass a bill (Emanuel, 2002). Opponents of physician-assisted suicide will reject these facts with a slippery slope argument (Boudreau & Somerville, 2013) but there is support for physician-assisted suicide in the United States, at least under certain circumstances.