Do Physician-Assisted Death Laws Deserve to Die With Dignity?

Even if an individual has a qualified right to determine what happens to her body, up to and including death, laws facilitating physician-assisted death (PAD) still might not be a good idea.

Brittany Maynard, the 29-year-old woman with terminal brain cancer who announced in a YouTube video that she would end her life on November 1, said this week that she will wait to follow through on her plan. Maynard’s video provoked nationwide debate about end-of-life choices, the role of physicians, and laws that either support or thwart individuals’ deciding to hasten their own deaths with the aid of the medical establishment.

Maynard moved to Oregon after her diagnosis with Stage 4 glioblastoma in order to take advantage of the state’s Death with Dignity law. Oregon is among only five states with similar provisions. Under Oregon’s law, an adult Oregon resident “capable of making and communicating health care decisions for him/herself” who is “diagnosed with a terminal illness that will lead to death within six months” may request a prescription for lethal medication from a licensed Oregon physician. The physician must certify that the patient meets the criteria, then follow a multi-step protocol meant to ensure the patient’s informed consent. Once the patient receives the prescription, she may self-administer the lethal drug at the time and in the manner she chooses.

A majority of Americans appear to support the right of terminally ill individuals to set the terms of their own deaths, including with a doctor’s support. However, even if an individual has a qualified right to determine what happens to her body, up to and including death, laws facilitating physician-assisted death (PAD) still might not be a good idea.

PAD laws ask the medical profession to do things its members are ill-equipped to do and often do not wish to do. They define the profession in ways that are either inconsistent with the profession’s self-definition or require physicians to perform their duties inconsistently.

PAD laws, by using medical criteria to determine a patient’s eligibility, give the appearance of certainty where there is little, if any. Oregon’s criteria illustrate part of the problem. The law requires patients requesting lethal prescriptions to have received a terminal diagnosis indicating that they have six months or fewer to live. A prognosis is not an exact science, however. Brittany Maynard herself exemplifies this imprecision. Doctors diagnosed her with Stage 4 cancer in April, then estimating that she would die within six months. Even if Brittany’s life ends today, she will have shown that prognoses are conjecture, not a schedule.

More than a pedantic quibble over technicalities, the fact that the law’s criteria are inconsistent with medical reality is important. The law asks physicians to act outside of the scope of their expertise. It falsely equates competent medical judgment with objective certainty, then rests legal and moral significance on that equation. The medical profession is poorly equipped to provide the assurances the law asks for, even if those assurances would make many people feel less ambivalent about voluntary death.

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Of course, no current PAD law compels medical doctors to certify a patient’s eligibility. But the laws shift the very definition of the profession in a way that the profession itself currently rejects or is, at most, deeply ambivalent about. The American Medical Association considers physician-assisted suicide to be “fundamentally inconsistent with the physician’s role as healer.” The Canadian Society of Palliative Care Physicians concluded from a survey of its members that neither euthanasia nor assisted suicide should be considered part of their practice of medicine. If you want to demolish a building, perhaps you should not expect the architect to do it. Even if the building is slowly collapsing on its own. Even if the architect, understanding the structural design, knows just how to make the building fall quickly. Urging a healing-oriented profession to hasten death may be outside of a practitioner’s job description, even if the patient on her own has a right to self-determination.

PAD law advocates, including some doctors, contend that a physician’s job is to end suffering. So, establishing legal machinery allowing them to end the suffering of terminally ill patients is appropriate. Yet neither current PAD laws nor the practice of medicine bear this out. In reality, doctors balance a variety of competing goals and interests while trying to further their patients’ health. (If physicians aimed foremost to minimize suffering, I would be a whole lot more medicated than I am.)

If PAD laws were only a natural extension of doctors’ job to end suffering, why should the laws not allow people without terminal illness to take advantage of them too? Why offer a medically assisted death to people tormented by physical illness and the emotional and dignitary harms it brings, but deny the same option to people tormented by depression or other mental illness? Systems like Oregon’s preference certain types of human suffering above others. If someone’s body is broken and they want to end their lives, we give them dignity. If someone’s mind is broken and they want to do the same, we institutionalize them against their will in order to prevent it. Why?

Of course, we don’t want someone with mental illness to do irreparable harm to themselves during a temporary suicidal period. We hope they will get better, whereas the terminally ill person will not. But some mental illness is not susceptible to effective long-term treatment, much less cure. More importantly, anyone who wants to die now might change her mind later if she were to continue living, regardless of whether she is suffering because of terminal illness or chronic mental illness. Why does it matter that one person might regret giving up a shorter time than the other? Though many PAD proponents quickly distance themselves from Dr. Jack Kevorkian, at least he was consistent about the centrality of suffering, not illness. A Detroit Free Press investigation suggested that at least 60% of Kevorkian’s 130 patients were not terminally ill. PAD laws, on the other hand, treat some suffering as worse than others.

The debate over physician-assisted death laws like the Oregon’s Death with Dignity Act should not fixate on whether Brittany Maynard can end her own life if she chooses. Of course, she can. Whether moral or not, whether legal or not, people sometimes make this choice, and they deserve our compassion when they do. Debating over that individual choice is different than debating over altering the scope of a profession through legislation. This debate is about whether we, collectively, want to define the practice of medicine to include death. It is about who we trust with the criteria used to determine eligibility, and who wants to be be trusted with this responsibility. It is about whether patients will eventually be able to insist upon this care from their physicians, as laws and mores shift. The debate is about whether other health insurance policy holders want to sponsor this option. It is about the effect that such laws will have on medical malpractice insurance coverage and potential liability when something goes wrong, even with the most scrupulous of protocols in place.

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Choices about one’s death — Brittany Maynard’s, yours, mine — may belong to the individual, but choices about the laws surrounding physician assisted suicide belong to us, collectively.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.