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Euthanasia and the Rule of Law: How Courts and Legislators Transgress the Boundaries of Clinical Practice

June 24, 2017

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The rapid expansion in North America of legalized euthanasia and physician-assisted suicide (under the rubric “medical assistance in dying,” or “MAID”) during 2016 was supported (and most often opposed) by familiar appeals to “rights.” The more traditional right to bodily autonomy was conjoined to a “right” to be free from intolerable suffering; the latter right, in turn, was defined to include the right to save family and friends from having to witness (and remember) their loved one in a state of debilitation and pain. Arguments in opposition also relied heavily on “rights-talk,” specifically, the need to protect vulnerable patients and populations from abuse, as well as from the violation of autonomy inherent in non-voluntary and involuntary direct euthanasia. Opponents also focused on the rights of conscience for medical providers and institutions who decline to participate in MAID. In accepting the former arguments, and dismissing the latter, courts and legislators transmogrify the “negative” rights traditionally associated with patient self-determination–the most common example being the right to refuse medical treatment, even if life-sustaining–into a positive right to demand that physicians use their State-authorized power over the prescription and administration of medication for a purpose inimical to the healing arts as generally understood, and inimical even to the purpose for which such medications were developed. Despite the appeal to “autonomy,” it is self-evident that courts, legislators, and executives view the option to relieve suffering by intentionally causing death not merely as an individual option but as a social good, one that should be available to (and even offered to) all patients at risk of “intolerable suffering.” To carry out this social policy of justified killing, legal authorities have deputized the profession of medicine. While relatively few physicians (to date) participate in physician-assisted suicide in the United States, substantial pressure is being brought to bear upon other physicians to cooperate (to a greater or lesser extent) in these practices, and for leading medical organizations to revise their policies and ethics statements to conform to the trend of legalization. These developments represent a profound failure on the part of legal authorities, and the legal profession, on three related fronts: First, they abdicate the law’s responsibility to prevent unjustified killing by exonerating physicians who act “in good faith” that they have followed the inherently flexible standards for determining whether a patient is terminally ill or suffering “intolerably.” Second, they conscript the entire medical profession, without its consent, to condone not only the practice of MAID by certain of its members, but to participate as proxy regulators of the conditions and limits on medicalized killing. Third, while relying heavily on speculative philosophical-ethical principles such as patient autonomy, they ignore almost completely the realm of clinical ethics, specifically the complex array of factors that may lead patients to request MAID, the clinical options (and challenges) in addressing those conditions, and the potential disincentives a regime of “medicalized killing” may pose to meeting those challenges.

Keywords:
Euthanaisa; Physician-assisted suicide (PAS); Right to die; Human rights; Right of conscience