Features

Death on the march

National | Legal inaction, referendum push "mercy killing" to the fore

Issue: "Pensacola," Dec. 20, 1997

It is obvious when somebody else doesn't think your life is worth living, says Diane Coleman, founder of Not Dead Yet, an advocacy group for the disabled based in Forest Park, Ill. "You can tell if the person assisting you heaves a long sigh, or if they avoid eye contact," she says. "It really doesn't take long for a person to feel bad for you." The "death with dignity" advocates have forgotten that dignity is not lost because a person cannot walk or feed himself, says Ms. Coleman. "That is not where dignity comes from." But in Canada, a judge two weeks ago disagreed. A Saskatchewan man convicted of second-degree murder in the carbon-monoxide poisoning death of his disabled daughter received an unusually lenient one-year prison term-despite mandatory sentencing guidelines calling for a minimum 10-year sentence before opportunity for parole. The judge held the mandatory sentence for what he regarded as a mercy killing would have been unconstitutional "cruel and unusual punishment." The federal justice minister is now considering whether to make that judge's decision the rule rather than the exception across the country. She might decide to reduce the 10-year minimum for second-degree murder in exceptional circumstances, such as euthanasia. In Oregon, voters last month refused to repeal the state's first-in-the-nation physician-assisted suicide law. The Supreme Court had ruled in June that, while there is no constitutional right to die, the states are not obliged to prevent such acts. The issue remains up in the air, because federal officials still must decide whether they will punish doctors who prescribe lethal doses to their patients; they could take away such a physician's prescription-writing privileges. The pro-euthanasia momentum could spark a nationwide repeat of this fall's knock-down, drag-out, right-to-die debate. Ms. Coleman says that able-bodied people do not understand the terror disabled people feel, wondering how long it will take assisted suicide in one state to become legalized euthanasia across the continent. "It's the ultimate form of discrimination," contends Ms. Coleman. "Some people get suicide prevention and others get suicide assistance, and which one you get is determined by someone's conception of which path you should be on." In 1994, by a 51-49 vote, Oregonians passed Measure 16, legalizing assisted suicide. That law was blocked by a court challenge. At the second referendum this fall voters upheld the original, still untested legislation by a 60-40 margin. The "death with dignity" law enables a person with a terminal illness and less than six months to live to ask for sufficient oral barbiturates to cause death. The patient must make one written and two oral requests; a second physician must be consulted; a single counseling session is required at any sign of depression; the patients must be informed of pain-management options; and a 15-day waiting period kicks in before the drug can be dispensed. David Stevens, executive director of the Christian Medical and Dental Society in Bristol, Tenn., says the law prevents Oregon doctors from recording on the death certificate that it was a physician-assisted suicide. Moreover, doctors will be almost immune from malpractice suits; to defend themselves legally physicians need only state that they acted in good faith. These two measures protect doctors from legal scrutiny. "Who will know when a doctor has coerced someone into killing herself?" asks Dr. Stevens. "They've opened Pandora's Box and they've put a shroud over it." Dr. Stevens predicts that the campaigns will erupt first in Wisconsin, Michigan, and California. "The ball is rolling now, and [assisted-suicide advocates] will want to keep pushing it along," he says. Pro-lifers learned a few lessons in Oregon, however. In that campaign right-to-die advocates accused their opponents of being tools of the religious right and of trying to impose their morals on everybody else. They also tapped into anti-government sentiment. Oregonians decided the issue in 1994, they said, so why is the government asking us again? "They pushed all the right hot buttons," says Dr. Stevens. The next time around, pro-lifers need to push some hot buttons of their own, he says. For example, they need to get across the points that doctors cannot predict death with any certainty, that mentally competent people who are suicidal need treatment for depression instead of an overdose, and that modern pain-control methods are good and getting better. "In the court of public opinion, we need to fight the battle fairly, but we need to be more aggressive in how we do it," says Dr. Stevens. For example, before the Oregon debate right-to-die advocates acknowledged that about a quarter of patients killed by overdose take longer than three hours to die, often in extreme pain, notes Rita Marker, executive director of the Steubenville, Ohio-based International Anti-Euthanasia Task Force. So in the Netherlands (where assisted suicide has been legal since 1981) doctors are expected to be on hand with a lethal injection. But the Oregon legislation has no provisions for lethal injections. Assisted-suicide supporters have long recommended that in such circumstances a family member finish the job with a good-quality plastic bag-available in local supermarkets. "The best size is about 19 inches by 23 inches," wrote Hemlock Society co-founder Derek Humphry in a 1994 letter to The New York Times. "Look for the label that says 'Oven bags' or 'Turkey bags.'" But in the last year, through commercials and other media, assisted-suicide forces portrayed death by overdose as a gentle, graceful slide into the hereafter-and Oregonians bought it, says Ms. Marker. Another problem in Oregon is that "the stops weren't pulled out until it was too late," says Dr. Stevens. Anti-euthanasia advocates outspent their opponents four-to-one and still lost. Moreover, too many Oregon churches were apathetic, or they avoided the issue as too divisive. "Pastors need to realize that this issue will affect every one of the people in the pews," says Dr. Stevens. "It's like folks having church as the boxcars go by in Nazi Germany." In recent months some members of the disabled community became vociferous in their opposition to assisted suicide and could become an increasingly influential voice. "The disabled community won't go down passively," says Steve Gold, Not Dead Yet's lawyer. "We've got people who are not afraid to get arrested over issues like transportation and housing. What do you think they'll do when the issue is life and death?" In the courts, the Latimer case in Canada and the inability of prosecutors to convict Jack Kevorkian illustrate how easily the laws to protect life can be eroded or avoided. In October 1993, Saskatchewan farmer Robert Latimer gassed to death his 12-year-old daughter Tracy, who had cerebral palsy. While the rest of the family was in church, he placed her in the cab of his truck, piped in the exhaust fumes, and then sat in the back of the truck and watched her die. Mr. Latimer eventually confessed, but he pleaded not guilty at his 1994 trial and was convicted of second-degree murder. That was overturned last year when the Supreme Court ruled that the prosecution improperly screened jurors. At his second trial in September, doctors testified that Tracy, who weighed under 40 pounds, needed yet another excruciatingly painful hip operation. Mr. Latimer claimed that he could not allow her to endure any more "torture" and "mutilation." Prosecutors also introduced evidence, however, that Mr. Latimer's wife recorded in her diary how Tracy had been cheerful and responsive in the weeks before her death. Mr. Latimer had also rejected offers to put her into a group home for the disabled, and a psychiatric assessment noted that he has a phobia of needles. He was again convicted. Two jurors cried when informed by the judge that the conviction carries a life prison sentence with no chance of parole for 10 years. A straw poll by the Edmonton Sun daily newspaper found 87 percent support for leniency, and editorials around the country called for the same. On Dec. 1 Mr. Latimer's "mandatory" life sentence was reduced, by a rare constitutional exemption, to one year in prison and one year confined to his farmhouse. Judge Ted Noble felt that under the circumstances 10 years before parole eligibility was "cruel and unusual punishment." In the aftermath Canadian Justice Minister Anne McLellan announced that she might reduce the 10-year minimum for second-degree murder in euthanasia cases or when a battered wife kills her husband. Unlike in the United States, where the battle will be fought on a state-by-state basis, if Ms. McLellan decides to change the Canadian Criminal Code, the entire country will be affected. Toronto lawyer David Brown, a Christian, observes that there is widespread support for legal change among Canadians. "We have a very strong notion of compassion for the sake of compassion," he says, "but without thinking about which principles should guide compassion." As the Latimer case wound through the Canadian courts, Dr. Kervorkian was twice acquitted in American jury trials in the spring of 1996. Ms. Marker notes that there was no serious doubt that Dr. Kervorkian was involved in the deaths of four people, one of whom was not even dying. But in both cases jurors were either sympathetic or swayed by technical arguments and refused to convict. In the aftermath of the Oregon vote, "managed care companies must be breaking out the champagne," says Ms. Marker. "They will now have a cost-effective 'treatment' that they can approve for patients without threatening company profits. Clearly, economic pressures to force vulnerable people into assisted suicide are already being put in place." Dr. Stevens hopes that the Drug Enforcement Agency will decide that prescribing drugs to cause death is "not a legitimate medical purpose" and will prosecute doctors who do. The American Medical Association has come out against physician- assisted suicide, and Dr. Stevens thinks that some specialists' associations will expel doctors who kill their patients. But many observers believe that euthanasia will eventually arrive anyway. "If I were a senior," says Ms. Coleman, "I'd be very worried." "There's a flood tide that's building," says Dr. Stevens. "It's way out in the ocean and people don't see it yet, but it's coming." "The first casualty in doctor-killing is trust," observes University of Ottawa medical professor John Patrick, who spends his summers practicing in Africa. He says that medical murder was common before Hippocrates and is still practiced in animistic medicine today. "When you go to the witch doctor," says Dr. Patrick, "you always wonder if you are paying him more than the guy who is paying him to kill you." He believes that eventually the issue will divide the medical system into two camps-Hippocratic and non-Hippocratic doctors. "Patients," he predicts, "will vote with their feet." "Ultimately," predicts Dr. Stevens, "society will have to go through the horrors of pre-Hippocratic medicine before they wake up and realize what's happening." That's if they wake up.

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Les Sillars
Les Sillars

Les directs the journalism program at Patrick Henry College in Purcellville, Va., and is the editor of WORLD's Mailbag section.

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