David Levon, a member of the organization Compassion & Choices, came to NYLS mid-February to discuss the issue of Physician Aid in Dying and the recent film “You Don’t Know Jack,” about the controversial Dr. Jack Kevorkian. This coincided with the constitutional law discussion of the issue in my Con Law II class.
While the United States recognizes (and the supreme court upholds) a constitutional right to refuse or withdraw life-sustaining treatment, it leaves the issue of physician aid in dying through medication up to the states. While mentally competent adults who are terminally ill, imminently near death, and suffering great pain, may in some situations have a right to make a fully voluntary unpressured decision to seek medical help to hasten death through the aid of their physician, this only exists with those whose lives are dependant on being hooked up to “life support.” That is, only 3 states allow mentally competent adults who are terminally ill, imminently near death, and suffering great pain, to make a fully voluntary unpressured decision to seek medical help to hasten death through prescribed life-ending medication. Those are Washington, Oregon, and Montanta.
The United States Supreme Court tried to distinguish the 2 acts in 1997 in the case of Washington v. Glucksberg. The first distinctions cited by Justice Rhenquist was that in case of withdrawing or refusing life saving treatment, the patient is dying from the underlying disease and not a medication. But on the other hand, it could be argued that in both circumstances the underlying disease and the action by the physician cause the death of the patient. If not for the underlying disease, there would be no need for intervention. Similarly, not only in the medication prescribed scenario is the doctor the cause of death, but also in the life-sustaining treatment scenario is the doctors action the proximate cause of the death.
The second distinction that the court in Glucksberg sets forth is the physician’s intent: Justice Rhenquist, joined by 4 other justices, argues that the intent in this scenario is to make the patient dead, whereas the intent in the refuse or withhold life-saving treatment scenario, the intent it to alleviate pain. But, from a tort law perspective, intent is the reasonably foreseeable consequence of action. Death is reasonably foreseeable consequence of both actions by the physicians (Alleviating pain is as well.)
Is there a legitimate distinction that would support a difference in treatment?