"Right to Die"---Good Slogan, Fuzzy Thinking

Yale Kamisar

In recent years we have heard a good deal about the "right to die." As my colleague Carl Schneider has observed, Americans tend to think about every social problem in terms of "rights," a mode of thinking we find convenient and comfortable. And few rallying cries or slogans have been more appealing and seductive than that of the "right to die." Few are also more fuzzy, more misleading, and more misunderstood. The term has been used loosely by many people to embrace at least four different rights:

(a) the right to reject or to terminate unwanted medical procedures, including life-saving treatment (the issue presented in the famous cases involving Karen Ann Quinlan and Nancy Beth Cruzan);

(b) the right to commit suicide or, as it is often called, the right to "rational" suicide (which, in the logic of it, suggests that if a competent person comes to the unhappy conclusion that he wants to die by suicide he must "qualify" under somebody else’s standards);

(d) the right to active voluntary euthanasia, that is, the right to authorize another to kill you intentionally and directly.

Each of these four "rights" should be kept separate and distinct. Unfortunately, many times they are not. For example, it is often said that since there is a "right" to commit suicide it follows that there is a right to assisted suicide as well—which does not follow at all.

Although one usually has the capacity to commit suicide, one does not have the right to do so. The fact that we no longer punish suicide or attempted suicide does not mean that we approve of these acts or that we recognize that "self-determination" or "personal autonomy" extends this far. The decriminalization of both suicide and attempted suicide did not come about because suicide was deemed a "human right" or even because it was no longer considered reprehensible. These changes occurred, rather, because punishment was seen as unfair to innocent relatives of the suicide and because those who committed or attempted to commit the act were thought to be prompted by mental illness.

The judgment that there is no form of criminal punishment acceptable for a completed suicide and that the threat of criminal punishment is singularly inefficacious in deterring attempts to commit suicide does not mean that there is a "right" to commit the act. Nor does it mean that one has a justified claim that others must or should provide assistance in committing the act. Indeed, society can do something about those who aid someone else to commit suicide—and it has. Throughout our history we have directed the force of the criminal law against aiding or assisting suicide or soliciting another to do so.

Another example of confusion generated by "right to die" talk is the decision handed down by Wayne County Circuit Judge Cynthia Stephens this past May in Hobbins v. Attorney General of Michigan. In the Hobbins case, Judge Stephens equated the right to assisted suicide with the right to terminate life-sustaining medical treatment—under the rubrics "self-determination," "right to die," and the like—and struck down Michigan’s three-month-old law against assisted suicide. (In June, the Michigan Court of Appeals stayed her order, thus reinstating the anti-assisted-suicide law until it decides the case on the merits.)

Judge Stephens invalidated the anti-assisted-suicide law on the basis of two rather technical Michigan constitutional provisions. But in what some would call an advisory opinion and others an alternative holding, she made it clear that had she not been able to strike down the law on a procedural ground she would have blocked its enforcement on the basis of what she called a due process right to assisted suicide. So far as I know, this is the first time any American court has recognized such a right.

Although one unfamiliar with the precedents in this area would never know it from the opinion in the Hobbins case, neither the 1976 Quinlan case nor the 1990 Cruzan case (the only one involving death, dying, and the "right to privacy" ever decided by the U.S. Supreme Court) nor any other case establishes an absolute or general right to die—a right to end one’s life in any manner one sees fit. The only right or liberty that the so-called "right to die" cases have established is the right under certain circumstances to be disconnected from artificial life-support systems or, as many have called it, the right to die a natural death. Indeed, the Quinlan case explicitly distinguished between letting die, on the one hand, and both direct killing and assisted suicide on the other.

Many proponents of the "right to die" are quick to point out that the sanctity of life is not an absolute or unqualified value—as quick as they are slow to realize that the same is true of the so-called right they advocate. In the past two decades, we have witnessed much change in public, medical, and legal judgments about "letting die." But it is no less true today than it was twenty years ago that in Anglo-American jurisprudence active voluntary euthanasia (what used to be called "mercy killing") is murder. So far as the law on the books in every state is concerned, it does not matter that one who intentionally kills another person does so at the victim’s request or that the killer’s motive is to end the victim’s suffering. A person cannot waive his right not to be killed; a homicide does not become excusable because the victim consented.

To be sure, some philosophers and bioethicists have forcefully argued that the right not to be killed should be waivable when a competent person decides that continued life is no longer desirable or sensible under the circumstances. But no American legislature nor any American court has bought that argument when one person directly kills another. Nor is any likely to do so in the foreseeable future.

Nor should the laws against assisted suicide be overlooked. Although Michigan’s new anti-assisted-suicide law has been disparaged as an overreaction to one person, Dr. Jack Kevorkian, the Michigan law is hardly aberrational. Approximately thirty states criminalize assisted suicide (most by specific legislation, a few by making it a form of murder or manslaughter).

The fact that there is no form of punishment acceptable for a completed suicide, nor any punishment likely to deter attempts to commit suicide, does not mean that the criminal law is powerless to influence the behavior of those who assist others to die by suicide. This, at least, is the judgment of the eminent scholars who drafted the American Law Institute’s Model Penal Code in the 1950s and 60s. The model code is widely regarded as the greatest criminal law reform project of this century. It criminalizes aiding or soliciting another to commit suicide, but neither suicide nor attempted suicide.

Assisted suicide is not quite the same as active voluntary euthanasia, for in the case of assisted suicide the final act, the one that brings on death, is performed by the patient himself, not his doctor (or friend or relative). But it is certainly something more than passive euthanasia. At the least, it is a bridge—the last bridge, I would say—between the termination of life-support and active euthanasia.

A number of commentators, among them Dan Brock, James Rachels, and the late Joseph Fletcher, would consider this an understatement. According to these authorities, although there is a mechanical distinction between assisted suicide and active voluntary euthanasia there is no significant, intrinsic moral difference between them. Even so, there is surely an emotional difference between the two. Assisted suicide, especially physician-assisted suicide, strikes many as less alarming than active voluntary euthanasia, and it is less widely condemned.

Thus for those who interpret the "right to die" expansively, the next step toward their ultimate goal is likely to be the establishment of a right to physician-assisted suicide. Those who hope to legalize active voluntary euthanasia in the end have had considerable success in overcoming resistance step by step, and the process is likely to continue.

Advocates of a right to assisted suicide may prevail at the polls (although they failed recently in California and Washington state), but they are unlikely to convince a court anytime soon that existing laws against assisted suicide are unconstitutional. (The circuit court ruling in the Hobbins case is an anomaly, unlikely to survive appellate review.) In the course of upholding a state’s power to keep Nancy Cruzan alive over her family’s objections, on the ground that she had not left clear instructions for ending life-sustaining treatment, Chief Justice William Rehnquist, who spoke for five members of the Court, pointed out that a state has an undeniable interest in the protection and preservation of human life—even the life of a person in a persistent vegetative state. He supported this assertion by noting that "the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide." (If, as the judge in the Hobbins case seems to think, a majority of the Supreme Court meant to suggest that laws against assisted suicide are constitutionally suspect, it chose a strange way of doing so.)

Now, whether there is a moral distinction, and whether there ought to be a legal distinction, between active voluntary euthanasia (or assisted suicide) and "letting die" is an issue that pervades the medical ethics literature. Some have maintained that these acts are morally no different—and ought to be legally the same—because the result is the same: the patient is dead in each case. The unflinching response to this argument by Daniel Callahan, the director and co-founder of the Hastings Center, is worth quoting at length. In his new book, The Troubled Dream of Life, Dr. Callahan observes:

[A]s a reality of nature, killing and letting die are causally different. . . . [T]here must be an underlying fatal pathology if allowing to die is even possible. Killing, by contrast, provides its own fatal pathology. Nothing but the action of the doctor giving the lethal injection is necessary to bring about death.

. . . [O]nce a judgment has been reached about [the futility of continuing life-extending treatment], it is considered acceptable by long-standing medical tradition to stop treatment. . . . [A judgment of futility] is not, and never has been in the generality of cases, a judgment that a patient ought to be dead, or would be better off dead. It is not principally a judgment about a patient’s life at all. It is, instead, a judgment about the limits of medical skills in providing further patient benefit. It is a way of saying that, because the limits of those skills have been reached, the patient may be allowed to die.

To call those judgments, and the ensuing omission of treatment, "intending" death distorts what actually happens. . . . If I stop shoveling my driveway in a heavy snowstorm because I cannot keep up with it, am I thereby intending a driveway full of snow? . . . Since death is biologically inevitable sooner or later, not a consequence of our actions, but outside of them, we can hardly be said to "intend" death when we admit we can no longer stop it.

Callahan’s arguments are persuasive, but even one unconvinced by them may still defend the distinction between active euthanasia (or assisted suicide) and "letting die" on pragmatic grounds. Two sets of beliefs are in conflict. On the one hand, we want to respect patients’ wishes, relieve suffering, and put an end to excessively burdensome and seemingly futile medical treatment. On the other hand, we shrink from the concept of a life not worth living. We want to reaffirm the supreme value of life. We want to maintain the salutary principle that the law protects all human life, no matter how miserable a person appears or how worthless he may feel. In short, we want it both ways.

As Dean Guido Calabresi of the Yale Law School has pointed out, when we have to make "tragic choices," we often want it both ways. The tragic choices we have to make in the setting of death and dying are no exception. According to this view, the function of the distinction between "direct killing" (or assisted suicide) and "letting die" is not to separate deaths caused by human action from those brought about by the processes of nature. Nor is it to separate intrinsically immoral practices from permissible ones. Rather the purpose of the distinction—or at least its effect—is to have it both ways: to honor and to implement both sets of beliefs.

Over the years many who supported the "right to die" insisted that they were opposed to active euthanasia (or assisted suicide). Well, no doubt a goodly number did favor only a limited "right to die"; they meant to support, and only to support, the right to reject unwanted medical treatment. But it is fair to say that a substantial number of others who advocated the right to terminate life support viewed it only as an interim step on the road to active euthanasia.

Times have changed. What used to be called "negative" or "passive" euthanasia is now a fait accompli in modern medicine. That battle is over. Proponents of active euthanasia (or assisted suicide) no longer fear that open advocacy of their ultimate goals will taint the right-to-die movement. They no longer feel the need to separate active euthanasia from the passive variety for tactical reasons. As they view the matter, the time has come to upset the compromise we have reached between killing and letting die—a compromise they considered convenient for a while.

In the years ahead, we will hear a good deal more about the "right to die"—along with "self-determination" and "personal autonomy." Proponents of assisted suicide and active euthanasia know a good slogan when they come across one. Unfortunately, it is much easier to chant a catchy slogan than to define it precisely or to spell out its limits. But as these proponents see it, if people confuse the right to active euthanasia with the right to terminate life support, so much the better. If people think that the right to enlist the assistance of others in committing suicide or the right to authorize some one else to kill you intentionally and directly is only another application or a slight variation of the "right to die" established in Quinlan and assumed in Cruzan, again, so much the better. As supporters of active euthanasia or assisted suicide see it, illuminating the meaning of the "right to die" or delineating its outer limits is not their problem.

They are right, of course. It is ours.

Yale Kamisar is Clarence Darrow Distinguished University Professor of Law at the University of Michigan.