Physician Assisted Suicide

Jody Blanke, ProfessorComputer Information Systems and Law

Mercer University, Atlanta

Ancient Rome“It’s good to be

King” (or Emperor)Convicted

criminals forfeited real and personal property to the Emperor

Suicide became a crime

English Common LawStill good to be KingSuicide also a crime, but punished by

forfeiture of personal property onlyEarly American colonies adopted this rule,

but over time, abolished forfeiture penaltiesBy Civil War, suicide is not a crime

United States Today39 states have statutes specifically banning

assisted suicideAnother 3 criminalize it by common lawAnother 4 have no specific law or are unclear

about itBut competent adults have a right to refuse

medical treatment

Karen Anne Quinlan1975 – Karen Anne Quinlan mixed drugs and

alcohol and became comatoseFamily sought court order to “pull the plug”Order granted, but family convinced to wean

her from respiratorShe remained comatose for over 10 years,

until her death in 1986

Living WillsIn aftermath of Quinlan case, every state

enacted some sort of living willMost states also have some type of durable

power of attorney

Nancy Cruzan1983 – Nancy Cruzan was in a car accident

and became comatoseCourt refused to let parents “pull the plug”

absent “clear and convincing proof” that that was what Nancy would have wanted

Supreme Court – state has sufficient interest to adopt this higher standard

Nancy Cruzan (cont.)Justice O’Connor – “safeguarding

incompetents’ liberty interests is entrusted to the ‘laboratory’ of the states”

Epilogue – a “good friend” came forward with “clear and convincing” evidence that Nancy would not have wanted to live this way – she died in 1990

Dr. KevorkianAssisted in many suicides in the 1990sSome states enacted legislation in response

e.g., GeorgiaFinally, successfully prosecuted for murder –

on the fourth tryParoled in 2007 after serving 8 years of a 10-

25 year sentence

Oregon’s Death with Dignity ActBallot initiative passed in 1994Challenged in court

Becomes effective in 1997Legal (societal) experiment“Oregon, the Suicide State”?

Oregon’s Death with Dignity Act

Oregon’s Death with Dignity Act

Supreme Court CasesWashington v. Glucksberg, and

Quill v. Vacco (1997)Challenged bans on assisted suicide in

Washington and New York states“Fundamental liberty interest” and “equal

protection” challenges deniedCourt referred to Oregon and the

“’laboratory’ of the states”

Terry Schiavo1990 – Terry Schiavo became comatose as

a result of eating disorders1998 – husband sought order to remove

feeding tube2005 – Schiavo died after feeding tube was

removed - after 14 appeals, numerous motions and hearings, 5 federal suits, state legislation, federal legislation, and 4 denials of certiorari by the U.S. Supreme Court

Other StatesDeath with Dignity Act

Washington passed it in 2008Vermont passed it in 2013

MontanaFirst Judicial Court ruled that a terminally ill patient has a

right to die under the Montana Constitution (2008)Montana Supreme Court held that physician assisted suicide

is not banned by state law, but did not address the issue of whether there is a constitutionally protected right to die (2009)

New MexicoCourt of Appeals reverses lower court’s holding that “aid in

dying is a fundamental liberty interest” (August 11, 2015)

The NetherlandsDecriminalized physician assisted suicide in

1993Legalized it in 2002“Intolerable suffering”

The NetherlandsThe law allows medical review board to suspend

prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

the patient's suffering is unbearable with no prospect of improvement the patient's request for euthanasia must be voluntary and persist

over time (the request can not be granted when under the influence of others, psychological illness or drugs)

the patient must be fully aware of his/her condition, prospects and options

there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above

the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present

the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents)