Court decisions may be giving 'right to die' firmer legal basis Doctor-aided suicides could rise before states draft laws to control them

April 04, 1996|By Lyle Denniston and Sandy Banisky | Lyle Denniston and Sandy Banisky,SUN NATIONAL STAFF

It may be at least a year before the Supreme Court says anything definite about the rights of dying patients who want to hasten their deaths, but doctors and patients may not wait for the outcome -- and neither will the deepening ethical, moral and political controversy.

Two recent rulings by federal appeals courts -- preludes to a likely test in the Supreme Court next year -- may already be sending a signal to terminally ill patients and their doctors that the "right to die" now has a firmer legal basis.

And that, some medical ethics experts suggest, could increase the number of doctor-assisted suicides, even before state legislatures have a real chance to draft new laws to control them.

After smoldering on or just below the surface of the nation's public awareness for more than two decades, the right-to-die issue suddenly has burst forth in the far-reaching court decisions and the celebrated trials -- and recent acquittal -- of the nation's best-known "obitiatrist," Dr. Jack Kevorkian. The Detroit doctor has helped 27 patients die since 1990.

The sequence of recent happenings in the law is pressing the controversy surrounding hastened death to an intensity it has not had since the New Jersey Supreme Court became the first court to declare in March 1976 that the law must recognize some form of a right to die.

"This is moving so fast," says Dr. Arthur Caplan, a medical ethicist at the University of Pennsylvania, "we've got to make sure we put in appropriate safeguards to make sure that people who are depressed don't take this action, that people who have pain that's manageable don't rush too fast to this conclusion."

Weeks and months before the Supreme Court even gets a look at the new round of lower-court rulings that are bolstering the hopes and the legal rights of terminally ill patients, very practical questions about exercising those rights are arising with new urgency.

"How do you really implement this?" Dr. Caplan asks. "Who's doing it? Where? Under what circumstances?"

While the American Medical Association continues to condemn doctor-aided suicide as unethical, that does not seem to be working as a strong deterrent. Dr. Caplan suggests that "all the ethical arguments in the world can't overcome" the image of patients dying long painful deaths alone in intensive care wards. Harris poll last year found 67 percent of Americans favor laws allowing doctors to help dying patients with suicide.

George Annas, who teaches ethics at Boston University's School of Medicine, criticizes parts of the new rulings as "just nuts," because they treat withdrawal of life-saving treatment the same as intentionally hastening death. But he said the decisions are important because they force a debate. "It's going to take something at least this strong to wake up the medical profession and the managed-care people."

Dr. Anthony Riley, medical director of the Hospice of Baltimore, at the Greater Baltimore Medical Center, is troubled by the "slippery" concept of doctor-assisted suicide.

If the practice becomes legal, he asked, "Am I an agent of the state? Am I an agent of the family? Am I an agent of the patient?"

It is an ill-kept secret that doctor-assisted suicide occurs, apparently with some regularity. A Seattle lawyer who was involved in both of the recent appeals court cases, Kathryn L. Tucker, remarked: "We know it's been going on, that doctors are doing it." Her client, a group known as Compassion in Dying, itself has been involved in more than 20 cases of hastened death over the past three years in Washington state alone.

No one yet knows, with certainty, how many more terminally ill patients and their doctors may now start to take advantage of the permission that seems to have emerged from new court rulings. Thirty-two states (Maryland is not one of them) still make doctor-aided suicide a crime, but -- except for Dr. Kevorkian's trials, and a handful of other threats of prosecution -- those laws have long gone unenforced.

And their deterrent effect may now have diminished as a result of the latest court decisions, which declared nearly total bans on doctor-aided suicide to be unconstitutional. Says Seattle attorney Ms. Tucker: "For doctors who are fielding these requests today, they certainly can feel safer than ever before."

She added quickly, however, that "very cautious doctors certainly will want to wait" until the Supreme Court acts, one way or another.

A survey that the Journal of the American Medical Association published last week found that 12 percent of doctors in Washington state received at least one request for doctor-assisted suicide in the past year.survey this year of doctors in Oregon -- the only state with a law, not yet in effect, permitting doctor-aided suicide -- found 73 percent said that, if the practice was legal, they would prescribe lethal doses of medication or refer the patient to a doctor who would. That figure may be lower elsewhere, the article said.

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