Arguments For and Against Euthanasia
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Euthanasia: Whose decision is it???
In a 1988 issue of the Journal of the American Medical Association, an article titled "It's Over Debbie" describes how an anonymous doctor administers a fatal dose of morphine to a woman dying of ovarian cancer (Anonymous, 1988). In a 1989 issue of the New England Journal of Medicine, ten doctors associated with the nation's leading hospitals and medical schools declare their belief that "it is not immoral for a physician to assist in the rational suicide of a terminally ill person" (Wanzer, et. al., 1989). In 1991, the New England Journal of Medicine published a detailed account written by Dr. Timothy Quill which discussed his decision to help a patient suffering from leukemia commit suicide (Quill, 1991). In 1990, Dr. Jack Kervorkian uses his suicide machine to help a woman suffering from Alzheimer's disease, one Janet Adkins, end her life in the back of a Volkswagen bus (Risen, 1990). Janet was the first of twenty patients who have been aided by Kervorkian in the past three years. He remains committed to his practice. In 1991 the Hemlock Society publishes a how-to manual on committing suicide. Entitled Final Exit, it zooms to the top of the national best seller lists and stays there for several weeks (Altman, 1991). Each of these events has served to provoke ever widening media coverage of the issues surrounding euthanasia and physician assisted suicide, and a national debate has arisen around these practices. This debate is not merely limited to attorneys and physicians. Suddenly, these issues and this debate are now a part of life in mainstream America, and many Americans face dilemmas that did not exist in simpler times; dilemmas that many would rather not have to face.
II. Review of the Literature
a. Euthanasia: The Nature of the Debate
It is this sudden change in the way Americans are dealing with death, the nature and scope of the debate about dying, which prompts this analysis of the issues surrounding euthanasia. This debate is largely a debate about what is ethical. Questions the debate attempts to answer include: Is it right to commit suicide? Is it ethical for someone else to help? Is it right to put others to death at their own request or at the request of family members? These questions are important because they help to define our society and our culture. The way people deal with and respond to issues of life, ritual, and death serves to shape the nature of our society. This is why society must attempt to decide what is right; what is ethical conduct for the various actors in our communities when we face death. There are several reasons why this debate has surfaced in the 1980's. Death is nothing new, it has existed for thousands of years. Each culture has developed its own rituals and mechanisms for dealing with death. These mechanisms serve to provide solace, a sense of continuity, and allow the culture to continue even as the members of the community cannot. However, our own culture has experienced many shattering changes that have altered the nature of dying. Suddenly we are forced to rethink the issue of death and we must decide what types of behavior are ethical when someone is dying. Before we can examine the debate about the ethics of dying, we must examine why the debate exists. Perhaps the main reason that death has changed in western culture has to do with advances in medicine and technology. Many of the diseases that have historically killed people are now no longer a threat to most individuals. Medicine has made a variety of advances in the treatment of diseases such as smallpox, tuberculosis, malaria, pneumonia, polio, influenza, and measles. People now rarely die of such traditional causes. Life expectancy has risen to almost 75 years in the United States. The quality of life has also changed fundamentally during the past 100 years. Not only does almost everyone in the United States have enough to eat, but people eat higher on the food chain. There is a great deal more meat and animal fat in modern diets. Just these differences alone have changed death significantly. People now develop heart disease, adult onset diabetes, cancers, and AIDS. These types of diseases are more the result of lifestyle than bacteria.
With these new diseases, suffering is often more prolonged and treatment is frequently quite painful. Also, as people are living longer, the diseases of the aged have become increasingly prevalent. Many more people now suffer from problems like senile dementia and Alzheimer's disease. These diseases ruin the mind while preserving the body, allowing life to continue long after any quality that the life might have is gone. If what we die of has changed, perhaps the way that we die has changed even more. Throughout history, death has been a family affair. People usually died in the home after a short bout with an illness or as the result of an accident. Today, increasingly, death occurs in an institutional setting such as a convalescent home or a hospital, after a variety of technologies are applied in an attempt to prolong the life of the sick person. Often these technologies can be quite effective. People can now live for months and even years attached to a variety of tubes and technologies. "About 75% of all deaths in 1987 occurred in hospitals and long term care facilities, up from 50% in 1950 . . . The Office of Technology Assessment Task Force estimated in 1988 that 3775 to 6575 persons were dependent on mechanical ventilation and 1,404,500 persons were receiving artificial nutritional support. This growing capability to forestall death has contributed to the increased attention to medical decisions near the end of life." (CEJA, 1992, p. 2229) People realize that the chances of facing the institutionalization of death increase daily, and they feel a profound lack of control. Surveys have consistently indicated that a large majority of people in the United States would like to be allowed to end their lives before incurable and painful diseases finally kill them (CEJA, p. 2229). Because of the changes that have impacted death, with regard to both how and where we die, the debate about how we should be allowed to die has been renewed. This paper will examine the several facets of this debate. It will define the terms that are relevant to the debate, examine the legal state of euthanasia today, discuss the ethics of euthanasia by examining arguments made by proponents and opponents of euthanasia, and by applying several Normative Ethical Theories to the issue. Finally, it will explore the power implications that infuse the debate on euthanasia and present arguments in favor of moving toward a care based ethic of dying and away from the current rights based ethic.
If we are to effectively understand the debate about the right to die in the United States, it is imperative that a few basic terms be understood. The first and most important term is euthanasia. Originating from the Greek terms "eu" (happy or good) and "thanatos" (death), euthanasia means literally "happy death" or "good death." The American Medical Association's Council on Ethical and Judicial Affairs defines the term as follows: "Euthanasia is commonly defined as the act of bringing about the death of a hopelessly ill and suffering person in a relatively quick and painless way for reasons of mercy. In this report, the term euthanasia will signify the medical administration of a lethal agent to a patient for the purpose of relieving the patient's intolerable and incurable suffering." (p. 2230) Other sources have defined euthanasia variously: "The act or practice of painlessly putting to death persons suffering from incurable conditions of diseases." (Wolhandler, 1984, p. 363), ". . . to refuse unwanted medical treatment or to have ongoing care withdrawn even though the patient will die if treatment is terminated." (Adams, et. al., 1992, p. 2021). Euthanasia is a general term that can actually mean a variety of different things depending upon the context in which it is used.
For this reason, a number of supporting terms has become the convention when discussing euthanasia. These terms help to narrow the subject matter and distinguish between different types of euthanasia. The important terms that help to subdivide and classify euthanasia by type are voluntary/involuntary and active/passive. Voluntary euthanasia is a death performed by another with the consent of the person being killed. This consent may be in writing as in the case of a living will or advance directive. Involuntary euthanasia is a death performed by another without the consent of the person being killed. The AMA's Council on Ethical and Judicial Affairs makes three distinctions concerning consent and euthanasia: "Voluntary euthanasia is euthanasia that is provided to a competent person on his or her informed request. Non-voluntary euthanasia is the provision of euthanasia to an incompetent person according to a surrogate's decision. Involuntary euthanasia is euthanasia performed without a competent person's consent."(p. 2230) Wolhandler compares the terms in a different context."Those who condemn euthanasia of both kinds would call the involuntary form murder and the voluntary form a compounded crime of murder and suicide if administered by the physician, and suicide alone if administered by the patient himself.
As far as voluntary euthanasia goes, it is impossible to separate it from suicide as a moral category; it is, indeed, a form of suicide. Voluntary euthanasia may involve participation of second parties." (p. 366) The distinction between active and passive euthanasia is not nearly as clear as the previous distinction. Although many authors claim that the difference between the two types cannot be identified or is irrelevant at best, much of the debate on the subject is over this distinction and most of the current legal issues turn on this distinction.
While this paper will contend that the difference between the two should not be recognized, it is both useful and important to know where the line is drawn. The AMA, which is strongly opposed to active euthanasia, has seen fit to endorse passive euthanasia in appropriate situations. The Council on Ethical and Judicial Affairs makes the distinction as follows: "The physician is obligated only to offer sound medical treatment and to refrain from providing treatments that are detrimental, on balance, to the patient's well being. When a physician withholds or withdraws a treatment on the request of a patient, he or she has fulfilled the obligation to offer sound treatment to the patient. The obligation to offer treatment does not include an obligation to impose treatment on an unwilling patient. In addition, the physician is not providing a harmful treatment. Withdrawing or withholding is not a treatment, but the foregoing of a treatment." (p. 2231) According to Wolhandler, (p. 367) it is the nature of the acts performed by the second party that distinguishes between active and passive euthanasia. The courts have held that acts of "omission" (removal of respiratory assistance, hydration, and feeding tubes) are allowable behavior. "Although unplugging a respirator and switching off a dialysis machine are arguably acts of commission, an increasing number of judges and commentators have accepted these acts as permissible passive euthanasia in both voluntary and involuntary settings." Gifford (1993) describes the difference between the two types of euthanasia this way: "Passive euthanasia involves allowing a patient to die by removing her from artificial life support systems such as respirators and feeding tubes or simply discontinuing medical treatments necessary to sustain life. Active euthanasia, by contrast, involves positive steps to end the life of a patient, typically by lethal injectiond" (p. 1546) The right to passive euthanasia has also been termed "the right to die" by some authors (Adams, et. al., p. 2021-22). With an understanding of the different types of euthanasia, we can now define some other key terms. It is important to understand how physician assisted suicide differs from euthanasia, and it is also necessary to define the terms "advance directive" and "competence" since they are crucial in determining the difference between voluntary and involuntary euthanasia. The term "physician assisted suicide" is somewhat self-explanatory. It occurs when a physician provides aid to a patient so they can commit suicide.
However, it is also necessary to see the difference between this type of action and euthanasia. The AMA's Council on Ethical and Judicial Affairs states that "Euthanasia and assisted suicide differ in the degree of physician participation. Euthanasia entails a physician performing the immediate life ending action (e.g., administering a lethal injection). Assisted suicide occurs when a physician facilitates a patient's death by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide)." (p. 2231) It is important to realize that the difference between euthanasia and assisted suicide lies in the behavior of the physician. This difference in behavior has recently become a major legal battleground that will be explored in the following pages. The advance directive has recently become an important new device to aid the terminally ill. Many states have legalized the advance directive, partly in an attempt to avoid dealing with problems associated with active euthanasia, and partly to help ease the burdens on the dying and their families. Singer (1992) provides a good definition of advance directive and explains how it is used. "An advance directive is a written document completed by a competent person that aims to guide medical treatment after the person becomes incompetent. There are two types: instruction directives, which focus on the types of life-sustaining treatment that the person would want under various clinical situations, and proxy directives, which focus on who the person would want to make health care decisions if the person were unable to do so." (p. 22) The advance directive is useful because it can theoretically eliminate the need for involuntary euthanasia. It ensures that a voluntary decision is made in advance, even if the individual could not make such a situation at a later date. If everyone made use of the advance directive, there would be no need to debate policy decisions that must be made in the case of an incompetent person on life support. Because advance directives have neither been accepted nor widely used by the general public, many of the problems that could potentially be solved remain. This situation caused right to die groups in both California and Washington to propose ballot initiatives that would legalize active euthanasia (Gifford, p. 1550-51). Although active euthanasia is not legal in any United States jurisdiction, passive euthanasia is generally allowed at the request of a "competent" individual. Because of this it is critical to understand what constitutes competence. "Courts have defined legal competence as the 'mental ability to make a rational decision, which includes the ability to perceive, appreciate all the relevant facts, and to reach a rational judgement upon such facts.' In the euthanasia context, legal competence is the incurable's ability to understand that in requesting active euthanasia he is choosing death over life. Only clear and convincing evidence should suffice for a finding of an incurable's competence." (Wolhandler, p. 366-67)
c. The Legal State of Euthanasia
With a knowledge of the meaningful terms that will be involved, it is important to discuss the legal state of euthanasia in the United States today. As technology has placed more and more people on life sustaining devices in this country, the courts have had to deal with several cases that pertain to euthanasia in a variety of ways. This section of the paper is designed to review those cases briefly and to assess how the rulings in those cases have set the policy for the practice of euthanasia today. The courts first dealt with euthanasia in the Quinlan case in 1976. Karen Ann Quinlan lapsed into a coma after mixing a variety of pills and alcohol at a party. After it became apparent that she would not be revived, her parents went to court to have her respirator removed. The New Jersey Supreme Court ruled that her parents had the right to have the respirator removed and that Karen be allowed to die. Ironically, because her parents did not request removal of feeding and hydration tubes, she survived nine more years curled in a fetal position in a New Jersey rest home (Wolhandler, p. 366). In this case, the New Jersey court effectively sanctioned nonvoluntary passive euthanasia. The next prominent case was decided by the New York Supreme Court in Superintendent of Belchertown State School v. Saikewicz. Here the court found that a competent patient had the right to refuse medical treatment, allowing for a patient to decide in cases of voluntary passive euthanasia (Gifford, p. 1575-76). Later, in Satz v. Perlmutter, a Florida District Court of Appeals came to essentially the same conclusion (Wolhandler, p. 372-73). In Severns v. Wilmington Medical Center, the Delaware Supreme Court gave the husband of a comatose woman the right of guardianship and the authority to remove her respirator or withhold other treatment as he saw fit. In this case the court relied on previous decisions made in Quinlan, Saikewicz, and Satz for its finding (Wolhandler, p. 373). In Thor v. Superior Court (California), the court granted the request to withhold treatment from a severely depressed quadriplegic only after a psychiatric evaluation determined that the request was based on poor quality of life and not just on severe depression (Pugliese, 1993, p. 1326). The courts have not restricted the right of passive euthanasia to just the terminally ill. Elizabeth Bouvia was a relatively young woman who suffered from severe cerebral palsy and attempted to starve herself to death in a California hospital by requesting the removal of a nasogastric feeding tube. She was denied this request because the hospital feared it would be party to suicide.
The California court of appeals ordered the physicians to remove the tube and argued that she had the right to enlist the assistance of others in ending her life (Sprung, 1990, p. 2213). The courts have also found that doctors and hospitals must at least obtain consent from third parties that would have a significant interest in the patient's outcome if the patient is incompetent. In the case of Helga Wanglie, a Minnesota court denied a hospital administrator permission to disconnect her respirator against the wishes of her husband (Gifford, p. 1571). In sum, these cases indicate an emerging consensus that courts will generally allow treatment to be withheld from patients who are terminally ill if it is in the best interests of the patient and at the request of patients or family members. It is this emerging consensus that made the U.S. Supreme Court's decision in the Cruzan case so interesting. In the only euthanasia case heard to date by the U.S. Supreme Court, the justices, in a 5-4 decision, allowed to stand the decision made by the Missouri Court of Appeals not to disconnect the life support apparatus from Nancy Cruzan (Cruzan v. Director, Missouri Dept. of Health, 1990). Although the court did find that a right to refuse treatment could be found in the Due Process clause of the Fourteenth Amendment, and did not prohibit the courts from looking in other areas for this right (Adams, et. al., p. 2025), it also upheld the right of the State of Missouri to require ". . . clear and convincing evidence that Ms. Cruzan would have desired withdrawal of these treatments. (Newman, 1991, p. 175). In the realm of physician assisted suicide, only two major cases have been decided. In the case against Dr. Timothy Quill that arose because of the publication of his article in the New England Journal of Medicine, the grand jury for the state of New York refused to return an indictment (Bender, 1992, p. 524). In the more publicized case of Dr. Jack Kervorkian, the courts have not yet decided on the constitutionality of the Michigan law that bans physician-assisted suicide. Kervorkian is currently free on bond and continues to aid other patients who wish to commit suicide (Pugliese, p. 1300-05).(1) A brief assessment of the cases described above indicates that the courts have essentially legalized voluntary passive euthanasia, finding justification to refuse or have medical treatment withheld in the constitutional right to privacy, the common law right of self determination, or the more general concept of autonomy (Gifford, p. 1575-78). With regard to involuntary passive euthanasia, the courts are generally supportive of the practice, but they have the right to insist on a more stringent standard of evidence before approving such procedures. The courts have generally employed a balancing test that weighs the patient's right to privacy and self-determination against the interest of the state in preserving life. The interests of potential third parties that might desire that the patient continue to live, and the ethical image of the medical profession (Adams, et. al., p. 2022). In cases of assisted suicide, some states have laws against the practice, the AMA forbids it, most juries are refusing to find the actors guilty, and the courts have yet to decide the question. Both voluntary and involuntary active euthanasia remain illegal.
d. The Debate About Euthanasia
The movement to legalize active euthanasia has existed for quite some time. Initially popularized in Britain during the 19th century, it gained some adherents in the United States during the 1920's. It was the Nazi program of active euthanasia in the 1930's and 4o's that cast a pall of disrepute over the practice that remains today. The revival of this movement today can largely be attributed to the onset of the issues discussed at the beginning of this paper, and to the efforts of the Hemlock Society, a group of individuals that actively promotes the right to "dignified death." The Hemlock Society recently promoted ballot initiatives in both Washington and California that would have legalized active euthanasia in those states (Gifford, 1993). This revival of the "right to die" movement has led to hotly contested debate about the practices of active euthanasia and physician assisted suicide.
This paper will attempt to encapsulate this debate by presenting the arguments made by both opponents and supporters of these procedures. Since arguments made by both sides are used in cases of euthanasia and assisted suicide, the generic term "euthanasia" is used for simplicity to suggest the concept of "aided death" unless otherwise indicated. Those opposed to euthanasia and assisted suicide present a variety of arguments in support of a ban.
e. The Case Against Euthanasia
Euthanasia destroys societal respect for life. By becoming commonplace and used in medical practice along with more traditional methods of healing, society becomes desensitized toward death to the point where life is no longer valuable. This attitude serves to degrade humanity and leads to a variety of social ills. In a society that devalues life, people have no compunctions about committing violent crimes and murdering others. The overall quality of life becomes seriously undermined and society as a whole deteriorates (Doerflinger, 1989, p. 16-19, Koop, 1989, p. 2-3). Once euthanasia becomes legal, opponents contend, the potential for abuse at the hands of caregivers vastly increases. Closely related to this argument is the argument that those who enjoy the exercise of power over others might become intoxicated with it and actually come to enjoy killing. One step down the path toward euthanasia simply makes it that much easier in the future to take further steps. This argument is also referred to as the "wedge theory" or the "slippery slope." One of the most outspoken opponents of euthanasia, University of Michigan professor of law Yale Kamisar, has articulated a three pronged attack that utilizes the wedge theory, the risk of abuse, and the risk of mistake. The proponents of the wedge theory argue that "Once society accepts that life can be terminated because of its diminished quality, there is no rational way to limit euthanasia and prevent its abuse. According to this theory, voluntary euthanasia is just the thin edge of a wedge that, once in place, will be driven deeply into our society. Kamisar concludes that legalized voluntary euthanasia inevitably would lead to legalized involuntary euthanasia because it is impossible to draw a rational distinction between those who seek to die because they are a burden to themselves and those whom society seeks to kill because they are a burden to others."(2) (Wolhandler, p. 377) Many who raise the "wedge" or "slippery slope" argument use the Nazi experience with euthanasia as an empirical example of this process in action. They argue that a public policy of murder inexorably follows from an initial, limited step, namely the adoption of a carefully defined euthanasia program, and that a program designed to get rid of those with "lives unworthy of life" quickly degenerated into the holocaust (Newman, p. 167). What follows is a description of the Nazi euthanasia program excerpted from Lifton's (1986) book: "National Socialist euthanasia or "mercy death" was a program of killing persons with unworthy lives. These persons were not moribund, and their families, with the rarest exceptions, wanted them to live. It was not a "good death," as the word denotes, but a systematic program of killing without any mercy whatsoever . . . The program, referred to in the National Socialist bureaucracy as T4, was not based on any law, but was initiated by a secret order traceable to Hitler and his chief physician, Karl Brandt . Mental hospitals were required to report all chronic schizophrenics, manic-depressives, mental defectives, epileptics, and later, debilitated old persons. A separate division, the 'Public Transport division for the Sick,' took care of the collection and transport of such patients to institutions where they were put to death . Relatives received false death certificates and even letters of condolence . . . It is estimated that during two years of this program, ninety thousand persons went to their deaths." While this description of the Nazi euthanasia program is indeed chilling, it provides within it a devastating attack against using it as justification for the slippery slope argument. Proponents of euthanasia in the United States point out that the Nazi program was not one of euthanasia, but a program of mass murder disguised as euthanasia. Gifford (p. 1570) sums up the response of several authors by stating that "The Nazi's hid their racist, eugenic agenda behind the term 'euthanasia,' terminating in secret the lives of 'undesirables.' It must never be forgotten that the Nazi 'euthanasia' program was never euthanasia at all. That the Nazi's co-opted the term for their own purposes should not obscure the fact that their motive was, from the very beginning, entirely different from that of today's euthanasia proponents.
The current euthanasia movement is anything but covert. The Hemlock Society and other supporters of the right to receive aid in dying have spent millions of dollars to publicize their efforts. In this context, death is presented as a positive alternative to pain and suffering, not a utilitarian tool." Proponents of euthanasia also attempt to refute the slippery slope argument in a variety of other ways. They contend that the current mechanisms used by the courts could easily prevent any slide toward involuntary euthanasia,(3) that the current practice of passive euthanasia proves that the slope isn't all that slippery since we haven't witnessed any massive killing programs, and that the example of how forced sterilization in the U.S. has diminished rather than increased, provides a more appropriate example to rely on. Even Callahan (1989), a vocal opponent of active euthanasia, admits that the Nazi experience is not particularly applicable to the U.S. experience and that "Lives are not being shortened. They are steadily being lengthened, and particularly for those who are the most powerless: sick children and the very old, the mentally and mentally retarded, the disabled and the demented" (p. 4). Newman (1991) also attacks the concept of the slippery slope itself. Arguing that just pointing out that one type of action could conceivably lead to another constitutes a very unpersuasive argument and that for the premise to hold true, it must be shown that pressure to allow further steps will be so strong that these steps will actually occur. He also reminds us that such arguments are frequently abused in legal and social policy debate (p. 169). Besides Kamisar, the risk of abuse argument has also been put forth by a host of other authors who variously claim that assisted suicides might result in flagrant murders that may be perpetrated by deliberately forcing or coercing self-destruction and that others may advance personal motives by aiding in suicide (Adams, et. al., p. 2031); that when the entire medical profession is involved in euthanasia, including the poorly trained, the insensitive, the less skilled, there becomes the danger that physicians might not do whatever they can to avoid euthanasia if possible (Newman, p. 177); and that some people who enjoy the exercise of power over others might become addicted to the process (Doerflinger, p. 19). It is this fear of abuse that leads the AMA's Council on Ethical and Judicial Affairs to argue that the ban on active euthanasia is a bright line distinction that deters this type of potential abuse. They state: "Allowing physicians to perform euthanasia for a limited group of patients who may truly benefit from it will present difficult line-drawing problems for medicine and society. In specific cases it may be hard to distinguish which cases fit the criteria established for euthanasia. For example, if the existence of unbearable pain and suffering was a criterion for euthanasia, the definition of unbearable pain and suffering could be subject to different interpretations, which might lead to abuse of the process in the case of certain practitioners." (CEJA, p. 2232).
Proponents of euthanasia argue that the risk of abuse, while certainly present, is not really much of a threat. This is true first, because laws against homicide are severe enough to provide a strong deterrent (Newman, p. 178); second, because a clear set of guidelines prescribing when active euthanasia is allowed will prevent confusion (Adams, et. al., Gifford); third, because we already risk the practice of abuse by allowing passive euthanasia, and such abuse has not occurred (Newman, p. 178); and finally, that the current state of illegality promotes an absence of discussion and actually encourages the practice of clandestine euthanasia (Newman, p. 177). As Gifford (p. 1572) succinctly puts it, "what slope could be more slippery than one with no guardrails whatsoever?" Additionally, the balancing tests already in place by the legal system should serve to eliminate this problem. Adams, et. al., (p. 2034) explain: "For example, some opponents of physician-assisted suicide argue that permitting some assisted suicides may lead to the killing of patients who want to live. This "slippery slope" argument expresses a utilitarian rationale for prohibiting suicide assistance. Others argue that suicide and the assistance of suicide is "intrinsically evil," and that sanctioning them will damage the fabric of social morality. These and other utilitarian and moral considerations are encompassed within the state's interest in preserving the sanctity of all life and affect its weight in the balance against the patient's interest in self-determination." Opponents of euthanasia contend that there is no guarantee that euthanasia will be strictly voluntary. The potential for subtle coercion will threaten from several different angles. Family members faced with the overwhelming burden of caring for an ill person may unconsciously impart a feeling of worthlessness, thus hastening a "voluntary" decision toward euthanasia. The pervasive societal attitude in a "euthanasia culture" might convey that the infirm, disabled, and unproductive are worthless and a burden to society. According to Doerflinger, (p. 17) "Elderly and disabled patients are often invited by our achievement-oriented society to see themselves as useless burdens on younger, more vital generations. In this climate, simply offering the option of "self-deliverance" shifts a burden of proof, so that helpless patients must ask themselves why they are not availing themselves of it. This situation might lead some to "voluntarily" decide to end a life that is perceived as worthless." The ever-increasing costs of health care, especially for the terminally ill and those on life support systems, might also serve to influence some toward a decision for an early death. "The growing incentives for physicians, hospitals, families, and insurance companies to control the cost of health care will bring additional pressures to bear on patients." (Doerflinger, p. 17) Proponents contend that carefully drawn laws and the use of balancing tests already in place can effectively eliminate such concerns (Gifford, p. 1563-64).
Widespread active euthanasia might also serve to destroy the ethical image and trust of the medical profession. The public might fear that doctors are too eager to use the new techniques at their disposal and be scared away from proper health care. People could become frightened of their doctors and would no longer view them as friends and helpers, but as potential enemies. "The prohibition of killing is an attempt to promote a solid basis for trust in the role of caring for patients and protecting them from harm. This prohibition is both instrumentally and symbolically important, and its removal would weaken a set of practices and restraints that we cannot easily replace." (Beauchamp & Childress, 1989). Newman declares: "Some writers contend that legalization will reduce the public's trust in doctors and in the health care system. Michael Levy warns of the erosion of 'trust that the health care delivery system will do everything possible to relieve suffering prior to terminating life' Dr. Alan Stone claims that 'it is destructive to the public good to make people worry that when they go to a hospital the doctor is thinking about whether to allow them to live or die. When I go to the emergency room, I want to know that the doctor is going to do everything to keep me alive. I do not want to go to somebody who has had a class on ethics and is thinking that maybe I would prefer to die.'" (p. 170) However, Newman goes on to present some convincing arguments against this position, stating that the public already views the medical profession with distrust and that this distrust is likely to grow since doctors frequently have poor communication skills, and spend little time with individual patients. As over-reliance on technology increases and as hospitals and nursing homes continue to increase already exorbitant fees, this distrust is likely to increase. Newman even contends that a caring program of active euthanasia and physician assisted suicide might actually serve to increase public trust in the medical profession and serve to reduce some of the impression that doctors and health care institutions only care about the bottom line (p. 170-171). Perhaps the most intriguing argument against legalizing active euthanasia is presented by Elizabeth Wolf (1989). She argues that legalization will destroy the gains made in the domain of passive euthanasia, especially for those who are not considered terminally ill. If active euthanasia were legalized, the courts would certainly have a heightened interest in regulating the space that surrounds the issue and would have a much greater profile around the bedside. Wolf contends that this could prevent some passive euthanasia deaths that are currently allowed from happening, and that much stricter regulation on the part of the legal system would actually make it more difficult to end the suffering of those who want to die (p. 13-14). The arguments put forth by proponents of euthanasia are less numerous than those of their opponents and are generally based on rights premises. As advocates for policy change away from the status quo, proponents spend a great deal more time in a defensive posture, responding to the arguments of opponents and defending their own from attack.
The linchpin argument of euthanasia proponents concerns the right to die. They contend that the individual has certain rights guaranteed under the law and the Constitution that allow them to choose when they can die. These rights are generally argued from the standpoint of autonomy or self-determination, or from the constitutional right to privacy. Proponents contend that individual liberty is a fundamental constitutional guarantee, and that the right to privacy protects the right of an individual to choose to die. Wolhandler (entire article) argues forcefully that the constitutional right to privacy elucidated in Griswold v. Connecticut and expanded in Roe v. Wade, also applies to euthanasia; thus protecting the individual from the purview of the state if that person chooses assisted suicide or active euthanasia. He also argues that the protection of the right to self determination is the key to democracy and the social contract on which this nation is built when he says: "Recognition of the right of self-determination is the condition for the concept of a community not based on force. Force used to impose on others, against their wishes, what one thinks is best for them is thus not allowed. This view undergirds a peaceable accommodation to the fact that there is a pluralism of moral beliefs. Although one may not be able to agree about what constitutes good life or good death, one can agree to let each make his own choices, as long as those choices do not involve direct and significant violence against others." (p. 370) There is some doubt, however, about whether the Supreme Court in its current configuration would be willing to extend a right that is not specifically stated in the Constitution to cover such practices (Gifford, p. 1576-77). In the Cruzan decision, the Court seemed quite willing to let questions of this nature be settled by the states (Cruzan, p. 2842). As we have already seen, the argument for privacy and autonomy has generated considerable support in the realm of passive euthanasia. It is the support that the courts have given to passive euthanasia that provides the basis for a second and perhaps the most crucial argument. This is the argument that the passive/active distinction made by the courts and the medical profession is invalid, cannot be made, and in actuality does not exist. If it can be proven that this distinction is invalid, then all of the rights that allow for passive euthanasia would then allow active euthanasia as well. Advocates present a variety of different reasons for why the active/passive "bright line" cannot exist.
The first argument in support of this position claims that court decisions about the interest of the state make the active/ passive distinction irrelevant. According to Adams, et. al. (p. 2034), "when considering the state's interest in preserving an individual's life in a suicide assistance case, a court should find that, absent evidence of coercion or the patient's interest." This logic would presumably apply to cases of active euthanasia as well. A second argument concerns the transparent nature of the distinction itself. "It is sometimes claimed that the "passive" techniques are morally acceptable because they allow for a natural death, while "active" techniques independently cause death. But in the modern medical setting, these terms and distinctions are ephemeral. The concept of natural death in the hospital has lost its meaning. 'If you want to have a natural death,' says Dr. Alan Stone, you have to stay out of the doctor's hands.' If you make it alive to the hospital, medical technology derails nature and alters the course, experience, and timing of death." (Newman, p. 166) In this respect, the nature of technology almost demands that euthanasia be deployed as an option in some cases, because it prolongs life unnaturally. Additionally, the nature of the activities involved in both active and passive euthanasia, as well as the decision making process, makes the active/passive distinction a difficult one to understand. Adams says that "Opponents of physician assisted suicide argue that it is fundamentally different from the refusal of treatment. Their arguments rely on the existence of alleged bright line distinctions between suicide and natural death, killing and letting die, or active and passive euthanasia. These distinctions rest, in part, on supposed differences between acts and omissions. However, the attempt to draw such bright line distinctions between acts and omissions fails in practice and in theory. It is often difficult, in the hospital or the courtroom, to state decisively whether something is an act or an omission. Is a physician who turns off a functioning respirator "actively" turning off a machine or "omitting "to provide air? Is a patient who refuses food and water "actively" starving or "omitting" to eat?" (p. 2028) A third argument examines a specific death situation that has blurred the active/passive line to the point where it no longer exists. When people are in a great deal of pain, the amount of medication required to provide relief from the pain can be so great as to cause death. When a physician administers pain medication in a significant dose, is this active or passive? Vaux (1989, p. 20) states that "A second class of actions can be designated "double effect euthanasia." Theologically and morally it is acceptable for a patient to choose palliative treatments that may result in death and for a physician to administer potentially lethal analgesia in the relief of pain. And many ethicists argue that the administrator of a lethal dosage is not culpable if his primary intent is to relieve suffering, though the ensuing death may be foreseeable, so long as the patient and family consent. We might understand Debbie's case(4) best from this perspective." Clearly, in a case like this it is difficult to see whether the act should be considered active or passive. Thus, the main argument made by proponents of euthanasia argues that the courts have already allowed certain fundamental rights to protect the process of passive euthanasia, and since there is no logical or fundamental difference between active and passive euthanasia, or at least no way to demarcate such a difference clearly, then active euthanasia and assisted suicide ought to be legal as well. Interestingly, it may be just this type of logic that opponents of euthanasia see as the "slippery slope" discussed earlier. Active euthanasia would allow the individual control, choice, and a greater ability to face suffering and death effectively.
According to Newman (p. 183), "A total ban on assisted deaths might have another unintended, detrimental effect. Persons with diseases like Alzheimer's are now tempted to try suicide at an early stage of their disease when they are still mentally and physically fit. If they knew euthanasia were available later, perhaps through an advance directive or health care proxy, these individuals might choose to live longer, through a later stage of the illness." It is also worthwhile to remember that Dr. Quill's patient was able to face death much more calmly knowing that she had the ability to end her life when she chose. This enabled her to spend her energy strengthening her connections with her family and enjoying the time she had left. Euthanasia prevents state control. The state has no right to coerce the individual or control the body of the individual unless there is some sort of compelling interest. The balancing tests that courts use in the case of passive euthanasia are just as valid in the cases of assisted suicide and active euthanasia. Because there is no state interest in most cases, this proves that the practices stated above should be legal. Engelhart (1989, p. 8-9) argues that the state has no moral authority to prevent euthanasia. This is because euthanasia is a negatively established right. He says that "The right to euthanasia, like most other rights to act freely by oneself or with consenting others, is established negatively. It does not depend on some claim that such liberty would be good, beneficial, or worth endorsing. Rather, it is a function or the failure to establish the authority of others, in particular, the state, to intervene coercively. With this, one comes face to face with the plausible limits of a secular state. One will need to live with individuals' deciding with consenting others when to end their lives, not because such is good, but because one does not have the authority coercively to stop individuals acting together in such ways. In a secular, pluralist society one will need to accept euthanasia by default." These arguments constitute the major offensive positions taken by euthanasia advocates. The other two arguments, that euthanasia might actually increase the level of trust among patients and the public toward the medical profession, and that euthanasia would also prevent abuse by providing a clear set of guidelines regulating the behaviors of various actors, have already been dealt with as responses to the opponents of the practice.
f. Normative Ethical Theories and Euthanasia
As stated at the beginning of this paper, the controversy regarding the practice of euthanasia is essentially a controversy about ethics. The debate about euthanasia is a value debate among people who weigh values differently, who see the nature of the world and the place of humans in that world differently. The differences between those on opposite sides in this debate can best be seen through an examination of value hierarchies. A value hierarchy is the manner in which a person orders his or her value system by ranking different values in order of importance. Perhaps Abraham Maslow (1954) developed the most famous value hierarchy. His hierarchy of needs attempts to explain various facets of human behavior by showing how people can move up or down the hierarchy depending on which needs are met. All types of values can be organized in hierarchies. Proponents of euthanasia have a different value hierarchy than do the opponents. Doerflinger clearly argues for a particular value hierarchy when he contends that life is the supreme good and that all other goods must come only after life is secured. His logic states that without life, no other value or good can exist, and therefore it is a prerequisite for all other values. Proponents of euthanasia also believe in the value of life, but they don't place it as highly on their hierarchy. Instead, a proponent of euthanasia might argue that individual rights are the supreme value, or that quality of life is more important than the value of life itself. The logic here is that although life is clearly an important value, there may be times when life itself is not worth living. If a person has no individual rights, or if a person has a low quality of life, they may make the decision to end their life because it is no longer worth living, no longer a good life. One of the main reasons that the debate about euthanasia has been so hotly contested is because it challenges the value systems of people. The people who believe in individual rights and quality of life as the supreme value see their value hierarchy threatened in the status quo by the power of the state. If the status quo were to change to eliminate this threat, people who see life itself as the supreme value would find their value hierarchy threatened. One way of examining values and ethics to see if they are worthwhile is through the use of normative ethical theories. By examining a problem or particular policy through the lens of a normative ethical theory, we can determine if the system needs changing or if a particular policy option is an ethical one. There are several normative ethical theories that have been proposed by philosophers. The researcher will examine ethical egoism, utilitarianism, and rights theory; and then use these theories in order to analyze the problem of euthanasia. This might give a basis for determining whether or not the practice of euthanasia is ethical.
Thomas Hobbes in Leviathan first propounded ethical egoism in modern times. It operates from the general rule that if any action increases my own good, then it is right. Hobbes argued that we cannot help but act in our own self-interest, and therefore, such actions are ethical (Rosen, 1990, p. 37-44). Ethical egoism in the context of euthanasia would contend that if a person wants or does not want to end their life using euthanasia, this desire is motivated by a need for self benefit, and is therefore an ethical action.
Utilitarianism was most completely articulated by John Stuart Mill in On Liberty. It operates from the general rule that if any action increases overall good, then it is right. The corollary to this is that if any proposed direct moral rule, when generally acted from, increases overall good, then it is a correct direct moral rule (Rosen, p. 45-52). In the context of euthanasia, we must examine the practice to determine if it increases the overall good in order to determine if it is ethical.
Rights theory has a well-established pedigree in American thought. Based on Kant and Locke, Jefferson and other founders of the United States used rights theory as the basis for government. Rights were established in the constitution and assigned to the judiciary for their protection. Rights were conceived of as natural, protected by law but not created by law. There are very few natural rights, and most of these are established negatively (Rosen, p. 62-64). As we have already seen, euthanasia proponents rely heavily on rights theory as justification for euthanasia. (5)
These normative ethical theories can be used to illustrate the conflicts that surround the various actors involved when the problem of euthanasia must be considered. When such a decision must be made, there are several points in the system where a decision can potentially occur. These points are where the decision-makers reside: the individual, the family, the physician, and the state. In each of these cases, there are normative ethical theories that can illustrate the value conflict, which occurs at each level. At the individual level, the person must make a decision whether or not to end their life. The normative ethical theories of ethical egoism and utilitarianism illustrate the value conflict and the ethical dilemma involved.
Egoism may lead one to want to die, as the individual may believe that based on their self-interest and to their personal benefit, it would be better to die. The individual may be experiencing a great deal of pain, loss of bodily functions, and faced with spending the remainder of their life as an invalid. On the other hand, egoism may lead one to want to live under conditions that might dictate otherwise. A person might argue that all available medical technology ought to be brought to bear in the preservation of their life. In the case of a utilitarian perspective, a person may choose to live for the good of others. For the sake of loved ones and the pain they might feel because of death, or because of the premium that society places on life, a person may choose to go on living even though they might make an individual choice to die if such considerations did not exist.
By the same token, a utilitarian perspective may lead a person to choose death. The pain and financial burdens that family members or society might have to endure could be so great that although the person might want to go on living, it would be in the best interest of the family or of society that the individual should choose to die. The family might also experience an ethical dilemma that is also illustrated by the competing theories of ethical egoism and utilitarianism. This dilemma would be most relevant in the case of an incompetent individual who is unable to make their own decision whether to die. Egoism might lead the family to choose to keep the individual alive because they are unable to live with the knowledge that they pulled the plug on a loved one. They would be more at peace knowing that they had done all they could to keep the individual alive. Alternatively, egoism might entice the family to choose to allow the individual to die. They may conclude that the emotional and financial trauma on the family would be so intense that it would be in their best interest to prevent medical treatment from continuing. A utilitarian perspective may cause the family to keep an individual alive. They may decide that it is harmful to society to weaken the value of life, and that if there is a possibility of saving life, in any condition, it should be done for the good of everyone. However, the same perspective may lead the family to conclude that the individual should be allowed to die. They may believe that society would be forced to bear the financial burden of an individual utilizing such expensive medical care, and that such resources might be better allocated if they were used on those who were not beyond hope. The physician also faces an ethical dilemma. The universal imperative of the profession revolves around the Hippocratic Oath. Doctors have a duty to preserve life at all costs. Society commits physicians to preserve life. Since life is a most precious commodity, nothing should be done to take it away. It is the universal imperative that generates arguments by the AMA and other opponents of euthanasia which intimate that the practice would severely damage the ethical image of the profession. In conflict with the universal imperative stands the doctrine of patient autonomy and the rights of the patient. The physician has a duty to respect the wishes of the patient. If the patient is in a permanent vegetative state, and the individual or family has indicated a preference for the death of that person, the doctor has a duty to respect those wishes. Rights theory and patient autonomy have generated arguments regarding paternalism, and also have led proponents to assert privacy and self-determination interests in the right to die. At the state level, the value conflict can be illustrated by examining utilitarianism and rights theory.
Rights theory contends that the state has a limited right to intrude on the affairs of the individual. Only in the face of a compelling state interest does the state have the right to limit individual rights to privacy and self-determination. In most cases, there is no compelling state interest when an individual decides to die. A compelling state interest can only exist if there is a significant threat to society, or the interest of a third party at stake. Whether these interests exist in most cases of euthanasia is open to debate. The state must make utilitarian considerations that include the risk of physician abuse, the image of the medical profession, the effect that such practices would have on the value accorded to life in society, the costs of keeping terminally ill patients alive, and...the burden those patients place on social support systems. The state must balance all of these utilitarian considerations, and then must decide what power the state has in the face of individual rights. As the above discussion indicates, even an analysis of normative ethical theories doesn't provide a clear answer to what should be done in the case of euthanasia. Normative ethical theories provide no basis for consistent decision making because there is no consensus of the good. Differences between individual value hierarchies and lack of agreement on what constitutes "good" means that people can use normative ethical theories to defend whichever position they choose to take. It is clear that most of the arguments made either for or against euthanasia are derived on the basis of normative ethical theories, but that they provide no clear mechanism for determining which decision is best. I will attempt to provide some clearer decision making mechanisms in the conclusion of this paper. Further complicating the discussion on euthanasia are the power interests who attempt to control both the subject and the debate. Two of the most powerful professions in American societyâ€”the medical profession and the legal professionâ€”have a significant stake in the outcome of the debate.
Each of the professions stands to lose or gain depending on the outcome of the debate. Foucault's (1973) landmark study of the medical profession demonstrates how the medical profession has empowered itself through the development of a specific knowledge and vocabulary concerning the body. It is this discursive formation about and knowledge of the body that has given the medical profession a privileged position of power in our society. Physicians have the power over issues of life and death in our society and they have used this power to shape the debate on euthanasia. It is also this power that has led to charges of paternalism. The specialized vocabulary and knowledge about the body, place the physician in a position to "know what is best" for the patient. If the medical community advocates a ban on euthanasia, its power over this "medical" issue gives the profession an abnormally large voice in the debate. The legal profession is in an analogous position to the medical profession. As a profession with a specialized knowledge and vocabulary concerning the legal system, the legal profession is in a similar position of power. If the legal community advocates the legalization of euthanasia, its power over this "legal" issue gives the profession an abnormally large voice in the debate. In the case of euthanasia, we have a collision between law and medicine. The result has been a strenuously argued debate that is ultimately about which profession should have the power to make these life and death decisions. The medical profession advocates a ban on euthanasia because this will give it the power to decide when it is appropriate to terminate the life of a patient. The medical profession has a significant stake in this debate because they do not want to be seen by society as killers. They want to retain their image as healers. More importantly, they want the power to decide when the treatment of the patient should be terminated. This is one of the main reasons for the AMA council on ethics. The profession has a stake in remaining a self-regulated organization. They do not want to be subject to a variety of court decisions, which regulate when they should terminate life. The legal profession is also intensely interested in euthanasia because it stands to gain if euthanasia is legalized in our currently litigious society. A system of legalized euthanasia would likely mean that the courts and the legal system would get to determine the rules under which the practice is carried out, effectively transferring a great deal of power from the medical profession to the legal profession. Although neither side will admit that the euthanasia debate is a power struggle between two powerful professions, almost all the literature on the subject from the medical profession opposes legalization of euthanasia, while almost all the literature from the legal profession favors legalization. It is in this debate between two powerful systemic opponents that the power of the individual patient and the family gets lost. If a person wants to make a decision concerning the end of their life in the current system, they must first fight battles with the physicians or in the courts.
g. Rethinking the Ethic: A Possible Solution
It is this power struggle, wherein the power of the patient is lost, that leads me to advocate a rethinking of our societal structures that surround and control our end of life processes. The discussion about euthanasia needs to be analyzed from a new viewpoint, a new paradigm, which will allow us to move outside the present debate that will inevitably empower either the medical or legal community. The debate must be shifted to center on an approach that will empower the patient, the family, and the community. The problem of euthanasia must be viewed from both philosophical and practical standpoints, by examining the metaphysics of quality and the ethic of care. In elucidating his truly revolutionary metaphysics of quality, Pirsig (1991) argues that the world is not composed of substance, subject and object, mind and matter; it is composed instead primarily of value. He explains this radical concept by stating: "The low value that can be derived from sitting on a hot stove is obviously an experience even though it is not an object and even though it is not subjective. The low value comes first, then the subjective thoughts that include such things as stove and heat and pain come second. The value is the reality that brings the thoughts into mind . . . Value is not a subspecies of substance, substance is a subspecies of value. When you reverse the containment process and define substance in terms of value the mystery (of where values exist in the world) disappears: substance is a "stable pattern of inorganic values"." (p. 99, 101)
Using the terms: quality, value, and moral almost interchangeably, Pirsig says that quality and morality is the primary reality of the world and that the world is primarily a moral order. There are two types of quality: static and dynamic quality. Dynamic quality is responsible for progress. It is the evolutionary force that has led to the explosion of life, the creation of cultures, cities, art, and literature. Static quality is responsible for preservation. Once a dynamic advance has occurred, static quality is what prevents the slide back down the evolutionary spiral. Retention of adaptations such as clothing, fur, tools; and things like libraries, ritual, and laws are examples of static quality or static patterns of value preserving the advances made by dynamic quality. (p. 107-121) After Pirsig splits the concept of quality into static quality and dynamic quality, he then identifies four separate levels of value or quality. These he terms, in ascending order of level of evolution, inorganic quality, biological quality, social quality, and intellectual quality. Each level of quality has worth in its own right. Each higher level of quality depends on the lower levels of quality for existence, but each higher level of quality is also more valuable than its lower level cousins. Pirsig says that "What the evolutionary structure of the Metaphysics of Quality shows is that there is not just one moral system. There are many. In the Metaphysics of Quality there's the morality called the "laws of nature" by which inorganic patterns (of value) triumph over chaos; there is a morality called the "law of the jungle" where biology triumphs over the inorganic forces of starvation and death; there's a morality where social patterns triumph over biology, "the law"; and there is an intellectual morality, which is still struggling with its attempts to control society." (p. 158-159) Pirsig also contends that the Metaphysics of Quality is an excellent device for resolving ethical dilemmas. â€œThe Metaphysics of Qualityâ€? has much more to say about ethics however, than the simple resolution of the Free Will vs. Determinism controversy.
The Metaphysics of Quality says that if moral judgements are essentially assertions of value and if value is the fundamental ground-stuff of the world, then moral judgments are the fundamental ground-stuff of the world. It says that even at the most fundamental level of the universe, static patterns of value and moral judgment are identical. The 'Laws of Nature' are moral laws . . . When inorganic patterns of reality create life the Metaphysics of Quality postulates that they've done so because it's 'better' and that this definition of 'betterness' ”this beginning response to dynamic Quality”is an elementary unit of ethics upon which all right and wrong can be based." (p. 156-157) Because the Metaphysics of Quali
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