Why libertarians should support the right to die

In the US, the war on drugs and federal heavy-handedness are limiting a doctor’s ability to help patients in exceptional pain.

Wendy Kaminer
columnist

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In a pre-dawn home invasion, on 4 October 2009, four teenage boys armed with a machete brutally murdered a New Hampshire woman and maimed her 11-year-old daughter, just for the hell of it, prosecutors alleged, after making an arrest: ‘They picked the house at random because it was in an isolated area… the intent was to kill the occupants.’ (1) One of the suspects enjoyed watching a graphic TV series about a serial murderer, according to his Facebook page (the Boston Globe reported); and the effort to make sense of this horrific crime seems likely to include indictments of violence in the media and the culture of cruelty it promotes.

Free speech advocates, like me, will respond with the usual arguments – that the effects of media are variable and unpredictable, and speculations about it are unduly subjective; that there is generally no clear, causal relationship between imaginary and actual violence, and, in this as in virtually all cases, no basis for assuming that the crime would not have been committed were it not for the influence of media; that censoring depictions of evil would not eradicate the impulse to indulge in it. Underlying these and other arguments in opposition to censorship is the belief that the fundamental, individual, moral right to speak and think freely should prevail over concerns, or speculations, about the cumulative effects of free speech on the culture.

This commitment to preserving individual rights in the face of lamentable cultural trends is the essence of civil libertarianism. Yet, there are at least a few noted, staunch libertarians, like Nat Hentoff, who vehemently oppose recognising a right to die, out of concern about creating a ‘culture of death’. The ‘slippery slope’ argument usually employed in defence of liberty (notably free speech) is employed in opposition to it when the right to die is at issue. Legalising physician-assisted suicide, Hentoff insists, is a step down the slippery slope towards mandatory euthanasia and the horrors of Nazi Germany (2).

I disagree. Is the relationship between physician-assisted suicide and murder so much more clear and direct than, say, the relationship alleged between violent pornography and violence against women, or between gay marriage and heterosexual divorce? Not in my view, and not according to the evidence so far. The state of Oregon legalised assisted suicide in 1994, by popular referendum, and the law does not seem to have sanctified murder or even encouraged a wave of suicides: since the implementation of the Death with Dignity Act in 1997, 401 people have used it to end their lives, according to the state Department of Human Services (3). It’s also worth noting that a significant number of people who obtain prescriptions for lethal medications do not use them: ‘Eighty-eight prescriptions for lethal medications were written under the provisions of the DWDA compared to 85 during 2007. Of these, 54 patients took the medications, 22 died of their underlying disease, and 12 were alive at the end of 2008.’

Opponents of legalising assisted suicide don’t lack compassion for terminally ill people seeking quick and painless deaths (and civil libertarians understand rights of self-determination, whether or not they consider a right to die as essential to individual autonomy as the right to speak your mind). But opponents of legalisation sometimes suggest that the terminally ill are already able to hasten death discreetly, without the explicit approval (and assistance) of the law. As spiked editor Brendan O’Neill has observed, ‘Throughout history, desperate people have found a way to end their lives and sympathetic doctors have oftentimes found a way to help them, by administering too much morphine or quietly refusing to resuscitate… Also, it is widely known, but quite rightly rarely spoken about, that kind doctors often “help” seriously ill patients to die in their final days at their request – and no doctor has ever been successfully prosecuted for doing so.’ (4) This suggests that we can support the criminalisation of assisted suicide for its symbolic value, without worrying about its practical effects – that prohibiting assisted suicide affirms a culture of life, while not preventing desperate people from opting out of it.

Well, maybe in Britain doctors can and do assist terminal patients in suicide without fear of prosecution, but in the US doctors have good reason to fear the legal consequences of providing patients with palliative medicines that could hasten death. Put aside the eight-year imprisonment of the controversial Dr Jack Kevorkian (5). Consider a pending lawsuit by a Connecticut doctor, Gary Blick, seeking a ruling from state court that would prevent manslaughter prosecutions of doctors for providing terminal patients with potentially lethal medications. Blick says that fear of prosecution has, in fact, deterred him from helping desperate patients, who are ‘dying from cancers, leukaemia or complications of HIV/AIDS. They have no chance of recovery. I have seen many patients in agony while dying from their terminal illnesses and heard them crying for help in their dying. They’ve begged me to help them ease their suffering and aid in their dying.’ (6)

If you think Blick’s fears are exaggerated, you should review the recent history of federal criminal prosecutions of doctors who prescribe pain-relieving narcotics, with no intent to enable suicide. As criminal defence attorney (and my friend and colleague) Harvey Silverglate reports, in the US physicians have been among the many victims of the war on drugs. ‘[P]hysicians engaged in the good faith practice of medicine are being second-guessed – not by fellow physicians, but by the federal government – and punished under the criminal law for administering what the Drug Enforcement Agency (DEA) of the Department of Justice considers more narcotics than is necessary to alleviate a patient’s pain’, Silverglate reports. ‘Since 2003, over 400 doctors have been criminally prosecuted by the federal government, according to the DEA… It is notoriously difficult even for trained physicians to distinguish an addict’s abuse from a patient’s dependence. Nonetheless, federal narcotics officers have increasingly terrorised physicians, wielding the criminal law and harsh prison terms to punish perceived violators… One result is that chronic-pain patients in this country are routinely under-medicated.’ (7)

Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is a chilling account of abuses by federal prosecutors, who’ve been empowered by the dramatic, recent increase of broad, vaguely written federal criminal laws. (According to a 1999 study by the American Bar Association, 40 per cent of all federal criminal laws enacted after the Civil War dated back only to 1970.) Invoking this complicated, expansive web of penal law, federal prosecutors now enjoy the power to select someone for prosecution first, and decide how to charge him later, Silverglate demonstrates convincingly. ‘[P]rosecutors can find some arguable federal crime to apply to just about any one of us, even for the most seemingly innocuous conduct (and since the mid-1980s have done so increasingly).’ (8)

In this environment, as the war on drugs continues, and merely dispensing pain medications can carry the risk of imprisonment, it is naive, and maybe delusional, to assume that physicians can and regularly do dispense lethal medications to ease the pain and suffering of the terminally ill without fear of prosecution. Civil libertarians, at least, should know better than to trust government officials not to abuse their discretion; civil libertarians should be among the last people to value laws against assisted suicide for the message they convey while minimising the repression they can easily impose. From the perspective of aggressive prosecutors (and there are many imbued with more fervour than integrity), the penal law is not a symbol; it is a weapon.

State laws can disarm federal prosecutors inclined to take aim at doctors who enable suicides. In 2006, in Gonzales v Oregon, the Supreme Court ruled that then attorney general John Ashcroft could not use federal drug laws against doctors who prescribe federally regulated drugs to their patients pursuant to the Oregon Death with Dignity Act (9). In part, this was an administrative law decision, limiting the scope of the attorney general’s discretion to interpret the federal Controlled Substances Act (which does not address assisted suicide).

But the decision also reflected the Court’s deference, so far, to state debates and decisions about assisted suicide: ‘The States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues’, the Court noted in Washington v Glucksberg, in 1997, rejecting a challenge to the constitutionality of a state law prohibiting assisted suicide (10). (Washington state has since legalised assisted suicide, by popular referendum.)

Oddly, or irritatingly, and most inconsistently, the Court has been much less sympathetic to state debates and decisions about medical marijuana. In 2005, only one year before it decided Gonzalez v Oregon, the Court held, in Gonzales v Raich, that seriously ill patients who used marijuana to relieve their symptoms, pursuant to California’s Compassionate Use Act, could still be prosecuted under the federal Controlled Substances Act (11). In other words, state law can immunise from federal prosecution doctors who prescribe lethal drugs to help patients die; but state law may not similarly immunise doctors who prescribe or patients who use marijuana to help them live (12).

It is difficult to exaggerate the sheer irrationalism of our interlocking policies about drug use and end-of-life care. Reason has been another casualty of the war on drugs, an ongoing culture war, and increasingly extreme partisanship. Consider the hysteria over recent legislative proposals providing Medicare reimbursement for end-of-life counselling every five years, equated by the right with ‘death panels’. Nothing in this proposal would have mandated counselling much less required or encouraged people to ‘pull the plug on grandma’. In fact, Medicare has long provided reimbursement for hospice care (including counselling and medications) for patients deemed to have six months or less to live. As far as I know, these provisions, dating back some 20 years, were not widely denounced for creating imaginary ‘death panels’.

Indeed, I imagine that an effort to end hospice care reimbursement would be met with fierce protests, like the protests of Congressional efforts in 2005 to block withdrawal of life support from a woman in a vegetative state (Terri Schiavo) (13), and like recent protests of proposals to extend reimbursement for end-of-life counselling, which, for example, could have afforded lower-income people with information about living wills. (It might be interesting to know how many of the ageing politicians who so loudly opposed Medicare end-of-life counselling have living wills of their own.) If there was any logic in recent debates about end-of-life care, it was the logic of political cynicism.

What prompts people to draft living wills or support physician-assisted suicide? It’s not the culture of death so much as the culture of hospitals and advances in medical technology that drive the movement for individual control over the process of dying. Who or what determines your natural life span? Demands for a right to die partly reflect a fear of being forced to live.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon(UK).)

Read on:

Letter from America

(1) 4 teens held in N.H. slaying, Boston Globe, 7 October 2009

(2) The culture of death, Village Voice, December 2003

(3) 2008 Summary of Oregon’s Death with Dignity Act, Oregon state

(4) Do I have the right to die?, Big Issue Scotland, 18 August 2009

(5) Kevorkian Freed After Years in Prison for Aiding Suicide, New York Times, 2 June 2007

(6) Easing Suffering Became ‘Real Personal Issue’ For Doctor, Harford Courant, 8 October 2009

(7) Witchita Witch Hunt, Forbes, 1 September 2009

(8) Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent, Encounter Books, 2009, p. xxx.

(9) Gonzales v Oregon

(10) Washington v Glucksberg

(11) Gonzales v Raich

(12) Attorney General Eric Holder has announced that the Justice Department will stop targeting people who distribute marijuana under state law, but, as the New York Times recently reported, ‘in recent weeks, law enforcement officers, some of them federal, have raided dispensaries in California and Washington State, and in the absence of any actual change in the federal law, many still fear prosecution’.

(13) Poll: No Role for Government in Schiavo Case, ABC News, 21 March 2005

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