The first law in the United States allowing physicians to prescribe a drug overdose so patients can kill themselves was approved by Oregon voters in 1994. After surviving a legal challenge and an attempt to rescind it by ballot initiative, it took effect late in 1997. Not until 2008 did Washington state pass the second such law. Now another seven jurisdictions have followed their lead: Vermont (2013), California and Colorado (2016), the District of Columbia (2017), Hawaii (2018), and New Jersey and Maine (2019).
Supporters advertise this as unstoppable momentum and claim that critics are “on the wrong side of history.” But while two states approved legalization bills this year, fourteen rejected them, including liberal states like Maryland and Connecticut. Beginning in 1997, eight states have legalized assisted suicide but eleven have passed new laws against it, including Ohio and Alabama in 2017 and Utah in 2018. They join twenty-eight other states that have defeated all efforts to weaken or rescind their pre-existing bans. And efforts to establish a constitutional “right” to assisted suicide have been unanimously rejected by judges on the U.S. Supreme Court (1997) and the highest courts of liberal states like New Mexico (2016) and New York (2017). (The outlier is a confusing Montana state supreme court ruling of 2009, which does not declare such a right but makes it difficult or impossible to convict a physician who assists suicide at a patient’s request.)
Still, the assisted suicide agenda is advancing rapidly, and that prompts three questions. First, what are the principled moral arguments against physician-assisted suicide? Second, what do laws allowing it do in practice, and where are they headed? Third, what does this issue really mean for our society?
The Moral Equation
The clearest moral assessment of suicide arises from the Christian tradition. In his encyclical Evangelium Vitae, “The Gospel of Life,” Pope St. John Paul II reaffirmed the traditional Christian view, saying that “euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a human person.” He described this teaching as based on natural law, available to any reasoning person, as well as on the written word of God. He continued:
Suicide is always as morally objectionable as murder. The Church’s tradition has always rejected it as a gravely evil choice. Even though a certain psychological, cultural and social conditioning may induce a person to carry out an action which so radically contradicts the innate inclination to life, thus lessening or removing subjective responsibility, suicide, when viewed objectively, is a gravely immoral act. . . . To concur with the intention of another person to commit suicide and to help in carrying it out through so-called ‘“assisted suicide” means to cooperate in, and at times to be the actual perpetrator of, an injustice which can never be excused, even if it is requested.
Note several things about John Paul’s argument.
First, to kill oneself is, objectively, as much an act of disrespect against the gift of life as to kill someone else. St. Augustine addressed this question seventeen centuries ago, when Christian women raped during the barbarian invasions of Rome were tempted to take their own lives. In Book I of The City of God, he offered two insights. First, you yourself are a human person made in the image and likeness of God. The command to love my neighbor as myself makes no sense unless I am called to love myself, to respect my own life (I, 20). Moreover, as the innocent victim of a crime such as rape, you have nothing with which to reproach yourself. Because evil comes only from a sinful will, the idea of shame as some kind of taint upon the victim is misguided. You are not guilty of anything, unless you sin now by taking your life (I, 25–27).
Second, personal responsibility for suicide can be reduced or eliminated by personal and psychological factors, such as duress, feelings of hopelessness, or psychological conditions such as depression, which medicine recognizes as being involved in the great majority (some studies say about 90%) of suicides. The Catholic Church’s pastoral practice recognizes this as well, generally allowing a funeral Mass and Christian burial for Christians who have died by their own hand (Catechism of the Catholic Church, nos. 2282–3). In “assisted suicide,” those who provide vulnerable people with the means to take their own lives, or even encourage such action, have by far the greater guilt.
This insight about the guilt of the assisting party is also reflected in the laws against assisting suicide that remain in place in most states. These laws are based on the Model Penal Code proposed by the American Law Institute in 1962. Under that code, suicide and attempted suicide were no longer crimes, because the desperate person involved needed counseling and treatment rather than punishment. But assisting someone else’s suicide was a crime—distinct from homicide but still generally a felony—while use of force to stop a suicide was legally protected from being considered an assault. This was clearly not recognition of a right to suicide.
Third, arguments about personal autonomy fail here. The argument condemns assisting a suicide “even if it is requested.” For a Christian, my bodily life is not something to be kept or thrown away by my choice; it is a precious gift from God over which I am called to have careful stewardship, not absolute dominion.
Even in a natural-rights approach, our first and most basic right is the right to life, as our nation’s founders affirmed in the Declaration of Independence. They listed unalienable rights as first life, then liberty, then the pursuit of happiness—knowing that liberty and all other rights have no meaning if life is not respected first and foremost. I cannot promote your freedom by helping to destroy your life, because that destroys all future freedom in this world as well. I promote your freedom by stopping you from killing yourself, and helping you to recapture your appreciation for things you can still accomplish and enjoy in your life.
Christians’ answer to the question “whose life is it anyway?” is that it belongs to the Creator, and we are called to respect and care for it. But even a non-religious person can see that my bodily life is not just another possession of mine like others. If it were, I would have a right to do whatever I want with it, such as sell myself into slavery (which our Constitution forbids). My bodily life is me in my earthly reality, and to kill myself is to destroy not only the “property” but its alleged owner. Of course, if suicidal decisions are made under the influence of depression, which narrows and distorts freedom, it is even more obvious that aiding and abetting such decisions does not serve the person’s true autonomy.
Fourth, this does not mean that we must do everything possible to prolong life, regardless of circumstances. The Catholic tradition, which has had a decisive influence on the development of Western medical ethics, recognizes natural limits to earthly life: We may refuse treatments that cannot effectively sustain life or do so only by subjecting us to great hardship. We may also accept pain-control drugs to relieve suffering, even when they may have the side effect of shortening life. What is rejected is the deliberate, intentional causing of someone’s death, even when we claim that we are relieving suffering because dead people don’t suffer. (Dead people don’t feel relief from suffering either.) The authentic response to suffering is “com-passion,” to “suffer with” the afflicted person and provide all care and comfort consistent with respect for life (Evangelium Vitae, nos. 66–7).
This is not only a Christian teaching. Our medical profession has a millennia-long tradition against doctor-assisted suicide. “I will not give a fatal drug to anyone if I am asked, nor will I suggest any such thing,” states the Hippocratic Oath, which predates Christianity by five centuries, but was taken up as the authentic model for medicine into recent times. Through the oath’s rejection of abortion and assisted suicide, and its dedication to the well-being of the patient above all else, medicine became a “profession”—not just a set of technical skills used to heal or kill, but a vocation that professes and serves the goal of healing. That tradition is under attack today, but it perseveres in the ethical codes of most medical societies, including the American Medical Association’s recently reaffirmed statement that physician-assisted suicide is “incompatible with the physician’s role as healer” and similar statements by the American College of Physicians and the World Medical Association. To set aside this tradition is to return us to the dark days when you would go to the same person for an antidote to poison, or the poison itself.
These moral and medical traditions are compelling to many, but they are not sufficient to withstand the heavily funded campaigns for assisted suicide. The argument for assisted suicide says, in effect: “Your ancient moral traditions may be fine for you, but you can’t impose them on me. What I value is the freedom to control how my life ends, and the ability to avoid intolerable pain and suffering as death approaches. The law should let me live by my more flexible moral code.” The national organization promoting it even calls itself “Compassion & Choices.”
Therefore opponents of assisted suicide must show that this agenda is not about compassion or the patient’s choice. That requires us to understand how these laws work and what their real effects are. Many voters and legislators who favor the abstract idea of “death with dignity” have turned against a proposal once they realize how dangerous it is. If people support such laws from fear of an undignified death, they need to know about the prospects for meaning and comfort in the last months of life and the graver dangers that laws allowing assisted suicide promote.
What the Laws Do
Let us review the Oregon law hailed as a model, which in its first twenty years has legally claimed the lives of over 1,459 patients by barbiturate overdose. (Oregon and Washington data are found in this fact sheet and article and the sources they cite.) In most respects the laws passed in other states are very similar. Let us compare the claims its proponents make with what the law actually does.
Whose Free Choice?
First, is this all about the patient’s free and autonomous choice?
The first thing to note in the Oregon law is that many other people involved may have their own agendas. The patient’s request for lethal drugs must be witnessed by two people. One of them can be an heir who profits by the patient’s death. If the patient is in an assisted living or long-term care facility, the other witness must be an employee of that facility, which can have its own financial incentive to hasten the death of someone whose care has become costly.
The most powerful decision-makers here are not the patient or witnesses, however, but the doctor who prescribes the lethal drugs and the doctor he hand-picks to provide a second opinion. These doctors—often from a list of willing physicians compiled by Compassion & Choices—decide that the patient is likely to die in six months, that the patient is competent to make a decision, and that he does not need any evaluation by a psychologist to see if his judgment is impaired by depression or other mental condition. As a result, in Oregon and Washington, 98 percent of patients receive no psychological evaluation, even though clinical depression is a major factor in suicidal wishes among the terminally ill. The prescribing physician then does all reporting about how the process worked.
In Oregon, despite the zone of privacy covering these cases, a few individual cases have come to public attention. One woman, Kate Cheney, was initially denied the lethal drugs because she had dementia, but her grown daughter—described by one physician as “somewhat coercive” in her insistence that her mother needed assisted suicide—simply found a more willing physician. A man, Michael Freeland, was well known to have had bouts of suicidal depression for decades before he became ill, but he received no evaluation and was given the lethal drugs by a physician allied with Compassion & Choices. Fortunately, Michael came into contact with better physicians who addressed his depression and his suffering, allowing him to reconcile with an estranged daughter before passing away comfortably of natural causes. At one point legal authorities had removed all guns from his home because he was a danger to himself—but they left the barbiturate overdose in his medicine cabinet.
After death by assisted suicide, the physician who prescribed the lethal drugs may sign the death certificate, and the state instructs him to lie by listing the underlying illness as cause of death, preventing an autopsy or other outside scrutiny. (Falsifying the certificate is promoted in Oregon by the state health department, and explicitly required by the Washington statute.) While that doctor is the only person qualified to report what happened, he is seldom present when the patient dies, and so simply does not know whether at that time the patient was competent or coerced by others. State officials have said the doctor’s report could be “a cock-and-bull story,” yet the state has no resources and no authority to second-guess it.
Amazingly, in twenty years in Oregon (and nine years in Washington), these doctors have never complained that they themselves did anything wrong. Imagine how effective speed limits would be if any policeman who stops you and asks, “Do you know how fast you were going?” were required to believe whatever number you make up. And once the state does its annual statistical report on these cases, original reports are destroyed.
Moreover, the two doctors’ estimates about competence and the patient being terminally ill need only be made in “good faith,” the loosest legal standard. In every other area of medical practice, doctors are held to a negligence standard: they are responsible for what they should have taken into account as professionals. Here they need only say in effect, “I really thought he was sick,” or, “She didn’t look too depressed to me, so I didn’t check.”
One other person has more decision-making power than the patient: whoever is the last person in the room with the patient and that bottle of pills, who is almost certain to be physically stronger than the patient. It may be a loving friend or spouse, an impatient relative waiting for the inheritance, or a pro-suicide activist who volunteers to be present to promote C&C’s agenda. No one knows, because the only person filing reports—the doctor—is not present at the time of death in 83% of cases. The state and its agents step back and leave the patient, and that other person, alone with the means of suicide or homicide.
To be sure, some patients who obtain the lethal prescription do not use it but die of natural causes. This was true of 48 out of the 249 people who received the prescriptions last year. Supporters like Dr. Timothy Quill assure us that when people obtain the prescription, they are not necessarily deciding to take the drugs—they are only taking out an insurance policy so they will later have the option of deciding whether to take their lives. But that means any psychological evaluation at the time the prescription is written is largely meaningless. The real need for psychological evaluation, for safeguards against undue influence, against coercion, against outright homicide by someone else, occurs when the drugs are used. And at that time, there are no safeguards against any abuses. None whatsoever.
The reference to homicide above is no exaggeration. Shortly after Oregon’s law went into effect, legal authorities questioned a case in which the patient was apparently too weak to take the pills himself, so his brother “helped” get them into his mouth. The state attorney general’s office responded that people with physical disabilities have the same right to a dignified death as other patients; if help from someone else is needed, forbidding such active assistance could violate the Americans with Disabilities Act. Other states have hastened to clarify this ambiguity. Washington state’s law, for example, says the dose must be “self-administered” by the patient—and then defines “self-administer” to mean only that the patient must be the person who “ingests” (that is, swallows or absorbs) the overdose. These laws set the stage for other parties to cause the patient’s death. Yet supporters have said voluntariness is assured by keeping control over the act of ending life in the hands of the patient.
While some claim that assisted suicide is the ultimate exercise of autonomy, last year 95 percent of these patients said they were getting the drugs because they were “losing autonomy.” By their own account, these are the people in the situation with the least control, the least choice. 96 percent say they are obtaining the prescription because they are “less able to engage in activities making life enjoyable,” which could be said by anyone experiencing a chronic illness or disability who needs help and support. 64 percent of patients say they are becoming a “burden” on family, friends or caregivers. This feeling of being a burden is surely influenced by feelings they pick up from those around them.
Finally, the patient’s choice may be under pressure from the real power brokers in our health care system: those who control health care coverage. In Oregon, over two-thirds of those taking the lethal drugs (68 percent) have no insurance or only government insurance (Medicaid and Medicare). And the state’s Medicaid rationing plan readily funds assisted suicide, while forbidding payment for various treatments that may prolong life. In Oregon and California, patients or their doctors have been denied coverage for further treatment and advised to consider assisted suicide instead.
Thus C&C can announce there are no reported abuses, no known coercion or undue influence, in these states. Abusers are protected by the law: either they themselves do the reporting, or they are invisible to the doctors who do the reporting but may never have met them. Outside scrutiny is prevented by the closed reporting system, falsified death certificates, and subsequent destruction of the reports. So much for the claim that this process is controlled by the patient’s free choice.
A False Compassion
Second, do these laws serve compassion, the other half of the “Compassion & Choices” mantra? Do they affect only a small class of patients who are inevitably in the last weeks of life, with unbearable pain that cannot be addressed any other way?
Let us begin with the prediction that the patient would die anyway within six months. This may be only a guess made in “good faith,” and no doctor can be accused of misconduct for guessing wrongly. Such predictions are known throughout the medical profession to be unreliable, and the track record of these laws confirms that. More ominous is the fact that no one involved in the process seems to be concerned about this.
In Oregon, the illnesses qualifying patients for the lethal dose are chiefly forms of cancer, but increasingly have included conditions with far less predictable trajectories: chronic heart and lung disease, Parkinson’s, diabetes, and recently even “benign” tumors. Three patients in Oregon have qualified with no listed illness at all.
Of 168 patients in Oregon who died from the prescribed drugs in 2018, eleven were diagnosed as having less than six months to live in previous years and given the lethal prescription. Over the last five years this has been true of sixty-two patients. So during those years, 62 patients were assisted in killing themselves although they were not terminally ill as defined by the law. In Oregon in 2018, the time from a request for lethal drugs (supposedly by a patient with less than six months to live) to the patient’s death from those drugs has been as long as 807 days, well over two years; in 2017 it was 603 days, and in 2016 it was 539 days. It has been as long as 1009 days (over five times the patient’s alleged life expectancy).
This “policy creep” is not mere carelessness. Proponents have said for many years that they hope to broaden the laws over time to encompass people with chronic illnesses and disabilities. Booth Gardner, the former governor who was the leading sponsor of the Washington state law, said openly to the New York Times that focusing on the terminally ill was only “a first step.” And this is why disability rights activists like the members of Not Dead Yet are right to be alarmed at what this agenda means for them. The slippery slope is real. It is not even a slope but the actual agenda, revealed gradually.
That was proved definitively last year by Swedish investigator Fabian Stahle. His country was considering a law like Oregon’s, and he realized that this prediction about having only six months to live is ambiguous. Does it mean death is likely in six months without any treatment, or even with treatment? Stahle asked this question of an official at the Oregon Health Authority and received a clear answer: People are eligible for assisted suicide if they are thought to be likely to die in six months without treatment, even if they could have lived many years with some easily provided treatment. This explains why you can be eligible for the lethal drugs because of diabetes: every diabetic is “terminal” if he or she has no insulin or other medication. If you refuse life-saving treatment—or it is refused by a doctor, or by an insurance company that doesn’t want to spend money on you—you become terminal and eligible for the prescription. In Oregon and most other states, where assisted nutrition and hydration are “treatment” that can be refused through a “living will” or a proxy decision-maker, everyone who cannot swallow food orally is “terminal” in this sense once the feeding tube is withdrawn.
What about unbearable pain? Only 31% of the patients in Oregon cite pain, or even a fear of future pain, among the reasons for taking their lives. And the drugs themselves can cause suffering. They took as long as fourteen hours to cause death last year, and twenty-one hours the year before; they have been known to take over four days. Overall, forty-one patients have regurgitated the drugs or had other complications. In an alarming 768 cases we simply do not know what agonies the patients suffered, because the reporting physician wasn’t present or did not report on this. At least eight patients have regained consciousness and died later, generally of natural causes. Interestingly, there is no record of anyone ever attempting assisted suicide a second time.
More troubling still is the effect of these laws on our efforts to provide compassionate care to the much larger group of seriously ill patients who do not have any intention of taking their own lives. In countries like the Netherlands and in states in this country that have legalized assisted suicide, efforts to provide palliative care for these patients have declined. After Oregon’s law took effect, reports of moderate or severe pain and distress among terminally ill patients increased. The state’s commitment to hospice care went down, and only five hospices opened in Oregon at a time when 1,832 opened in the rest of the country. We see these trends in Washington and Vermont as well.
By contrast, when states pass laws that forbid assisted suicide, pain control efforts have generally increased. This trend makes perfect sense. Why would a doctor, or a society, commit to the hard work of learning how to solve all the physical, psychological and spiritual problems of the dying process if the toolkit includes one bottle of pills that solves them all at once? If a patient does not want the lethal drugs, that is the patient’s choice and the patient’s problem.
What does increase when a state allows assisted suicide is . . . suicides. In the decade following the first full year of the assisted suicide law, Oregon’s overall suicide rate jumped 49 percent (compared to 28 percent nationally). By 2014, it was 43 percent higher than the national average. This is in addition to the legally approved physician-assisted suicides, which state law forbids counting as suicides. C&C’s entire campaign violates the guidelines accepted nationally and internationally for media reporting on suicides, which are aimed at preventing these reports from provoking copycat suicides among young or depressed people. One of the key guidelines is: “Avoid language which sensationalizes or normalizes suicide or presents it as a solution to problems.” But this is exactly what proponents of these laws do, often with heavily funded media campaigns. As we can see, the casualty count from these laws in terms of increased suffering, reduced compassionate care, and increased suicides, is far greater than the number of people “assisted” in taking their lives.
An Expanding Agenda
Even the largely meaningless safeguards of the Oregon law are being quietly dropped in that state and others.
Supporters have hailed Oregon’s waiting periods (fifteen days between first and second oral request, and two days from written request to prescription) as ensuring that patients will not be hurried to death. But in 2019 the legislature approved an amendment to waive these, if doctors think the patient may die before the relevant period ends. Given the meaning of “terminal” noted above, this encompasses patients who could live a long time with treatment but will die soon without it. And if they take the drugs before the waiting period would have been over, no one will know the prognosis was mistaken. In Oregon, doctors can bury their mistakes.
In 2018 the Oregon legislature established a government committee to prepare new model forms for advance directives. There, and in other states, “right to die” advocates are urging that the forms define spoon feeding as an optional treatment. With this change, patients who need help eating by mouth due to dementia or disability will become “terminal” under the assisted suicide law. If “self-administer” means ‘to passively take in the drugs’—already explicit in Washington, and proposed in Oregon—others will be able to deliver the drugs.
In New Jersey and Colorado, the psychological evaluation is designed not to discover a depression or other condition that may impair judgment, but only to determine that the patient can absorb information and communicate a decision, regardless of whether the patient’s judgment is impaired. In New Jersey and Hawaii, the evaluation may be done by a clinical social worker instead of a psychologist or psychiatrist. The Hawaii legislature, before enacting its law, defeated an amendment describing a patient as terminal only if he or she is likely to die in six months despite “reasonable and ordinary medical treatment.” Hawaii has also followed Washington in defining “self-administer” to imply that the patient need only passively swallow or absorb the drugs.
With these trends we move toward exactly the place where right-to-die supporters in the U.S. told us we would never be: we will be in the Netherlands, where assisted suicide and active euthanasia long ago moved beyond terminal illness, mentally competent patients, or voluntary choice.
What Is This Issue Really About?
If legalizing assisted suicide is not about patient choice or compassion, what is it about? I agree with disability rights groups like Not Dead Yet and the Disability Rights Education and Defense Fund that it is about prejudice. It is about invidious discrimination.
It is about a view that some people’s lives objectively have less value and dignity than other people’s lives. Only then does it make sense to address suicidal feelings with suicide prevention for most people, and with suicide assistance for one class of people. We, the generally able-bodied lawmakers and voters, decide that their suicides will be good suicides: good for them, and maybe good for the rest of us in a society of limited health-care resources. And we decide this by law, in advance of any decisions that individual patients make. We say, in effect, that if and when they are tempted to kill themselves, the rest of us are waiting to assist. That message pushes people with the relevant health conditions toward despair and feelings of worthlessness.
Only if this person’s life does not have the value of other people’s lives can we see his or her self-destruction as nothing more than a personal “choice,” because there is no important value to act as a counterweight to choice. Both morally and legally, “equal protection” and equal respect are very much what is at stake. It is telling that the only federal court ever to rule on the merits of the Oregon law found that it violates the Equal Protection clause of the U.S. Constitution. (That decision was vacated by an appellate court, on the astonishing basis that patients suing against the law had no standing to sue because they were not simultaneously requesting a lethal prescription.)
Every seriously ill person’s will to live is then demoted, from a just and natural respect for one’s own life into a mere “choice,” a personal whim. And why spend limited health care resources on personal whims? Some, like Hemlock Society founder Derek Humphry, have even said it is a selfish whim that families should talk people out of. And so in the name of “choice,” we push people toward death.
The people most harmed by this agenda are seriously ill people hearing from society and physicians that death by overdose will end their problems; other patients suffering from a reduced commitment to care; people with disabilities who are next in line to be seen as a “burden” on others; and lonely and depressed people of any age, seduced by the message that suicide is a positive solution. They are not numerous or powerful enough to fight for their rights or make lawmakers treat them as having their own equal and innate dignity. That task, then, belongs to all of us.