(Janis Landis’ professional career was spent at the Internal Revenue Service. Upon retirement, she turned her attention to the only topic less popular than taxes: death. Janis served as President of Final Exit Network from 2015 until June 2019. Janis continues to serve on the Board of Directors. This article will be posted in two parts. What follows is Part One.)
Many people are concerned that the recent U.S. Supreme Court decision overturning Roe v Wade is a precursor of other decisions, such as gay rights, being overturned.
For death with dignity, the good news (but also the bad news) is that the U.S. Supreme Court already decided the issue. Washington v. Glucksberg, 521 U.S. 702 (1997), was a landmark decision of the U.S. Supreme Court, which unanimously held that a right to assisted suicide in the United States was not protected by the Due Process Clause. So our cause has nothing further to fear or hope for on that specific issue.
What about state Medical Aid in Dying (MAiD) laws? None of these laws presumed a right to die based on the U.S. Constitution. These laws have already been challenged through each applicable state’s court system and upheld, so it seems extremely unlikely that the U.S. Supreme Court will find any basis for review of MAiD laws.
In addition, on June 27, 2022 in Xiulu Ruan v United States, the U.S. Supreme Court decided unanimously in favor of two doctors convicted of overprescribing painkillers. The Justice ruled that quantity of prescriptions was not per se a valid determinant of misuse of the doctors’ authority to prescribe controlled substances. Rather, states needed to look at the individual circumstances to determine whether the prescriptions were issued for the legitimate purpose of controlling pain that was not otherwise treatable.
While this ruling does not bear directly on death with dignity, it gives some cause for optimism that current procedures for pain treatment at end of life will continue. That is, pain medication may be provided by a physician in the amount needed to control pain in terminally ill individuals, even if the result is a hastened death.
But that’s not to say that all is well. With the national fight over abortion now moved back to the states, some right-to-life folks are taking a new look at death. The National Right to Life Convention is holding several sessions on defeating MAiD laws and preventing assisted suicides.
In addition, another area where this issue will be fought is in the very definition of what is “death”. It’s not as clear cut as we think and it’s about to get even murkier.
For millennia, death was obvious: there was no heartbeat or pulse. People would put a feather by someone’s nose or a mirror by their mouth. In modern times, a stethoscope confirmed that the heart had stopped. No heartbeat, no life.
Over time, doctors found that some people could have no brain function but their hearts kept beating. These individuals are determined to be alive but in a vegetative state. Such a person, without assistance of a ventilator but with nursing care, can live on in their vegetative state for years.
With the advent of ventilators came a new set of circumstances: individuals who were brain dead and had no respiratory function could be maintained on a ventilator. They were officially dead by any criteria: both brain and respiratory function was gone. But the ventilator meant that the internal organs continued to receive blood. This was the ideal state for transplants: the person was legally dead but the organs were being maintained in a viable state. Successful transplants went from a miracle to an almost everyday occurrence. Thousands of people are alive because of this.
But at the same time, families of the “dead” person were being asked to allow the organ retrieval to begin even though they could plainly see their loved one’s chest going up and down in the familiar sign of life. Of course, though, those signs of life were being produced artificially by a ventilator. Still, it was unnerving.
Many states tried to grapple with this problem, resulting in a patchwork of inconsistent laws. Finally, in 1980, a committee of experts were assembled and arrived at a definition of “death”. Their work resulted in the Uniform Determination of Death Act (UDDA). The UDDA offers two definitions for when an individual may legally be declared dead:
- Irreversible cessation of circulatory and respiratory functions; or
- Irreversible cessation of all functions of the entire brain, including the brain stem.
Efforts to create one uniform law, and current challenges to that law, will be discussed in Part Two next week.
(Credit to Daily Beast, July 2, 2022 “Inside the Heated Scientific Debate to Redefine Who Is Dead” on which much of this article is based.)
I do not share your optimism. I am aware that it is part of “Right to Life” organizations’ mission statements to promote a ” sanctity of life from conception to “natural” death. In fact several blueprints for such legislation have been discussed in State legislatures and among some Congress groups. The dearest wish of the very influential right to life movement is to take advantage of a Republican majority to push such a law federally which would nullify all the states ‘ “medical assistance in dying” laws now on the books. As for SCROTUS, six members are practicing Catholics and one, Gorsuch, has written a book on the “state’s interest” in prohibiting medical aid in dying. The recent decision helping holding doctors not criminally liable for prescribing large amounts of narcotics was intended to protect doctors from being “second guessed” as to suitability of treatment. If, however, the intent was to hasten or cause death.. that would be an entirely different kettle of fish.
I agree we have reason to worry. What state and federal entities may do to further erode our end of life choices is a real concern. My point was simply that absent any new laws, states will not be able to imprison a doctor solely by the number of patients who receive opoids. If, as in the case of hospices, the drugs are clearly for the relief of pain, then even if a hastened death occurs, the current ruling will protect the doctor from arbitrary arrest.
Thanks for the perspective, Janis. Thank goodness, I am a Canadian.
Many thanks, Janis, for alerting us to this potential threat to our freedom of choice at the end of life. As the saying goes: “Constant vigilance is the price of freedom.”