Wisconsin Lawyer
Vol. 82, No. 4, April 2009
n Feb. 25, 2009, the Georgia Bureau of Investigation (GBI) arrested four members of an alleged “assisted suicide ring” called the Final Exit Network. The GBI conducted an undercover operation for nearly a year, eventually carrying out searches of 14 sites in nine different states.
For a $50 annual membership fee, the Final Exit Network provides its 3,000 members with instructions on how to commit suicide. Their tools of choice: the “exit bag,” which is a plastic hood placed over the head and tied around the neck; and a tank of helium, to breathe under the hood. In some situations Final Exit also will provide an “exit guide,” a person who attends the suicide to provide comfort and counsel (and who removes the mask and tank from the scene). One of the four people arrested in Georgia is 81-year-old Dr. Lawrence Egbert, an anesthesiologist from Baltimore who is a cofounder of the group. All four are now free on bond.
States Struggle with Assisted Suicide
In 1994, Georgia made it a crime to “actively assist another person” in ending the person’s life. Georgia courts likely will work in the coming months to figure out what “actively assist” means. In the 1990s, Michigan courts on several occasions labored through a similar process with well-known assisted-suicide doctor Jack Kevorkian. Unlike the private, secretive approach of the Final Exit Network, Kevorkian, known as Dr. Death, was flamboyant and public. On June 4, 1990, the world met Kevorkian. A New York Times headline that day read, “Doctor Tells of First Death Using His Suicide Device.” By 1998 the New York Times had written 471 stories about Dr. Death and his alleged assisting in more than 130 suicides.
The response of the Michigan courts and legislature ranged all over the map in the 1990s. Prosecutors charged Kevorkian with murder, and a jury acquitted him. The legislature passed a law making assisted suicide a crime in Michigan, and juries continued to acquit him. Then, in 1998, Kevorkian went on the CBS News program 60 Minutes and directly injected a man with drugs to cause his death as 15 million U.S. households watched on television. The people and the courts had had enough, and Kevorkian was convicted of second-degree murder and sent to prison.
All of which suggest that the case of the Final Exit Network may prove vexing for the Georgia justice system. The GBI claims that Final Exit Network guides actively assist in suicide: “They hold your hands down so that you can’t remove the bag from your head,” said a GBI spokesman. Derek Humphry, a long-time assisted-suicide advocate, disagrees. “You hold hands as a last gesture of comfort to these people,” Humphry said. Final Exit Network members contend that they are simply providing information, and that their activities, far from constituting a crime, are protected under the First Amendment.
In the months ahead, the Georgia legal system will work to piece together the activities that led to these four arrests. Ultimately, a Georgia jury will weigh all of that conduct and the surrounding circumstances, applying the special wisdom that only juries have. Specifically, the jurors will decide whether the conduct of Final Exit Network members in the death of a Georgia man last summer constituted the crime of actively assisting a suicide.
Society Needs to Talk about Death and Dying
The Georgia case has proved something of a media sensation so far. If that media attention continues, then the case may help fuel some societal discussion about how we die. Though always stressful for those directly involved, the silver lining when any right-to-die case becomes public is that the case results in Americans pausing and talking for awhile about death and dying, topics we don’t easily discuss. But participants in that discussion who look to the law to resolve the complex moral and ethical questions about how we die will be disappointed – the law has no special ability to answer the question of what is “right” at the end of our lives.
Think about how laws are made. Societies pass laws to govern how human beings live with one another. On some issues all Americans agree. In each of the 50 states, if a person robs a bank with a gun and shoots the teller, we do not want that behavior in our society, and we call the act a crime. American society is less clear on how we view assisted suicide, and particularly assisted suicide when a doctor is involved. Physician-assisted suicide (PAS) is a crime in some states, like Georgia, but has been legal for years in Oregon. In Washington state, assisted suicide was a crime on March 4, 2009, and then became a right on March 5 when the state law changed. A Montana judge has ruled recently that Montanans have a state constitutional right to PAS. And in New York state in the mid-1990s, in the case of Vacco v. Quill, doctors and patients sued the New York Attorney General claiming that they had a federal constitutional right to the practice. The case made it all the way to the U.S. Supreme Court, which rejected the claim that the Constitution includes the right to PAS. The Court nonetheless was intrigued enough by the claim to accept the case, which it does in less than 5 percent of the appeals made to it.
Public opinion reflects conflict similar to that found in the law. Polls often show that a majority of people in the United States want to have access to physician assistance in dying. Dr. Egbert told a reporter that when he went to church the Sunday morning after his arrest in Georgia, he “got the first standing ovation in the church’s history.” On the other hand, groups like the American Medical Association (AMA) could not be counted among those applauding. The AMA told the U.S. Supreme Court in Vacco v. Quill: “The power to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides medicine. It is a power that most doctors do not want and could not control.”
On a complex social issue like PAS, concerning which people of goodwill differ so markedly on what is “right,” the law has limited ability to provide any satisfying moral resolution to the question. In fact, even with more mainstream end-of-life laws on which we find some societal agreement, the law is a cumbersome tool for navigating complicated human questions. The black-and-white of the written law is simply not that effective in making decisions in the massive gray area that is serious illness and dying in the modern medical-technological world. Law can give us rights, structure, and procedure, but few answers.
End-of-Life Laws Are Not Very Effective
One reason laws about end-of-life issues are not very effective is that they’re relatively new. For most of recorded time, illness came, nature took its course, and doctors had no real tools to stop that progression. People had no fear of being hooked to machines that prolonged their dying, because such machines didn’t exist. This is no longer true. The meteoric advance of medical technology over the last 40 years has left the idea of nature taking its course by the medical-technological roadside. Most deaths today happen in institutions, and most as the result of some decision – antibiotics refused, respirators turned off, and more.
William H. Colby is the Senior Fellow, Law and Patient Rights, with the Center for Practical Bioethics, Kansas City, Mo. He represented the family of Nancy Cruzan in the family’s right-to-die case, the first such case heard by the U.S. Supreme Court. Colby will be a featured speaker at the State Bar Annual Convention, May 7, discussing the ethics of end-of-life decisions.
In 1969, as technology was beginning this advance, a lawyer in Chicago had what was then a fairly radical thought: What if a person might want to say “no” to a doctor but can’t speak? The lawyer knew that the law provided a method to dispose of his property when he could no longer speak, when he was dead: a document called a will. He came up with the idea of writing on a piece of paper, “If I’m ever in a coma, I don’t want my life prolonged artificially by machines.” He called the paper a living will and wrote a law review article about the idea, and the societal debate began.
In 1976 California passed the first state living-will law. The law gave Californians a method to write down medical treatments they might want to reject if they could no longer speak. Through the 1970s, 1980s, and 1990s, other states followed suit. States also crafted durable-power-of-attorney-for-healthcare laws, out-of-hospital do-not-resuscitate (DNR) order laws, organ donor laws, definition-of-death laws, medical futility laws, and many more.
Think for a minute about how strange these laws are. Most doctors I know have dedicated their lives to helping others, and they’re good at it. Most people I know want that help. Why should we need living-will laws to stop those doctors? Why would we need a futility law to allow doctors to overrule families and stop medical treatment that the family wants – when the main goal of doctor, family, and patient is identical in both cases?
Decisions Turn on Fundamental, Human Questions
To find answers at the end of life – and this solution will sound simplistic, I know – we simply must do a better job of talking with one another. And while such decisions often involve complex medical information, the bottom line turns on fundamental, human questions. Why do we live our lives? When can medicine serve those ends? When does it not?
Four years ago much of the country sat riveted to news coverage of the battle over the fate of Terri Schiavo. Millions of people viewed video footage of Schiavo appearing to smile at her mother. Not surprisingly, Americans had varied and visceral reactions to that video. It took me back to the day in the fall of 1987 when I first met my client Nancy Cruzan. Nancy at that point had been in what doctors called a “persistent vegetative state” for four years. Doctors first named this diagnosis in 1972, as they began to see more and more patients brought back – but not all the way back – from the brink of death by improved technology in ambulances and emergency rooms.
On Nov. 1, 1990, after almost four years of highly contentious court fights with the state of Missouri all the way to the U.S. Supreme Court, my client and friend Joe Cruzan received the final court order granting the relief he sought, to remove the feeding tube from his permanently unconscious daughter. Joe said, “Well, if that’s winning, we won.” I will not forget his face – a man in his 50s, he looked 80, with the energy sucked out of him.
Most of us have little ability to understand that a person with her eyes closed can be unconscious. The very idea runs counter to our basic intuition. And in a fundamental way, it won’t matter how exactly we understand Terri Schiavo’s or Nancy Cruzan’s brain injuries, as long as we talk.
Advise Clients to Make Their Wishes Known
So how do lawyers advise clients, family members, and friends who ask, “Hey, what should I do about my living will?” My own solution may not be the gold standard, but I’ve thought a lot about the intersection of law and medical technology. Here are the three steps I’ve taken for myself.
- First, I filled out a legal document, a one-page power of attorney for health care. This document states that my wife (or the listed alternates) will make medical decisions for me if I cannot.
- Second, I’ve armed my wife to act as my advocate if necessary. We’ve talked about Terri Schiavo, and my grandmother’s Alzheimer’s disease, and other situations. My wife knows that I believe the purpose of medical technology is to serve as a bridge to recovery so that I can live life. If it cannot, I want it stopped.
- Third, I’ve talked with my siblings, my doctor, and other people who might be in the room when decisions are made about me. Health-care workers who deal with the dying all can tell a story about the somewhat-estranged adult child who flies in to “save” mom. To avoid conflict later, talk now.
Which brings me back to Georgia and the Final Exit Network. My bet is the four folks arrested are earnest, caring people. But it strikes me that a caring society can do a better job for its citizens than sending them to a secret room with a bag over their head and a tank of helium to exit this world. That solution is a failure for all of us. Hospice, palliative medicine, better counseling, home care, better pain management, and more discussion across our society – we have many places to focus our energy. So, let’s talk.
Wisconsin Lawyer
