Death By Decree: “Living Wills” and the Right to Die

On January 30, 1987, the American Civil Liberties Union of Colorado filed a petition on behalf of client Hector Rodas, requesting that Rodas be given a lethal injection or other “medicinal agent” to provide him with a “comfortable, dignified demise.” Rodas was a 34-year-old auto mechanic and illegal immigrant who became a quadraplegic after a drug overdose last year. Colorado’s Living Will legislation gives competent adults with a terminal illness the right to determine medical treatment, but excludes food and water as “medical treatment.” There was question both as to Rodas’ competency and whether he was “terminally ill.” The ACLU had sued the Hilltop Rehabilitation Center, which was caring for Rodas, with assault and battery — because it had placed a tube providing food and water into his stomach while the questions were being decided. On January 22, the Mesa County (Colorado) Court ruled that Rodas had the right to starve himself to death.

The January 30th petition, filed by ACLU’s David Miller, claimed: “Mr. Rodas requested that he be provided with a medication or medicinal agent that would cause his death, so that he would not be required to suffer a withdrawal of treatment including nutrition and hydration which would result in a prolonged and painful death.” Rodas died on the sixteenth day of his fast, and the ACLU apparently backed off before the complaint could be settled.

To those concerned about Living Will legislation and the numerous “right to die” cases this should come as no shock. As one disability rights leader said, “We’ve slid down the slippery slope; we are now at the edge of the precipitous cliff.”

Fearing the loss of decision-making if they were to become terminally ill or seriously disabled, some citizens have been caught up in the frenzied promotion of Living Will legislation. “Living Wills” are directives, written in advance, which are touted as helpful and necessary tools to insure control over medical treatment decisions. Most people don’t realize that common law allows a person to participate in health care decisions and, with informed consent, to refuse treatment. In addition, the existing law offers protections Living Will laws cannot: up-to-date, informed consent, opportunity for due process, the assumption of a basic standard of care, and physician/health-care provider responsibility.

Most people don’t stop to consider that a piece of paper, binding or not, is a poor substitute for open communication, mutual respect, and common sense between family members and between parents and their doctors. Few realize that no church, law, medical society, or pro-life group insists that unnecessary or heroic measures be used to keep a dying person alive.

Hard-line promoters of Living Will legislation know this — but they don’t care. The Living Will is the first, necessary step in a four-step program to reach their ultimate goal: “self-determination in dying.” That is, any person, of any age, not necessarily terminally ill or dying, has the right to control the circumstances of his or her own death by any means, anywhere, any time. At an international conference of right to die enthusiasts in Nice, France, a few years ago, the agenda was announced:

  • Gain social and legal acceptance of Living Wills.
  • Legalization of suicide and assisted suicide.
  • Legalization of active euthanasia.
  • Suicide or “self-deliverance” clinics, freestanding or within hospitals similar to abortion clinics.

The first step, social and legal acceptance of Living Wills, is well established. All but thirteen states have legalized Living Wills; most of the remaining states are facing legislation. Two significant observations must be made: first, in most states with Living Will legislation, there have been constant efforts to amend and expand its scope; and second, courts have progressively undermined legislative safeguards. The problem in both arenas is confusion and lack of consensus about such key phrases as “terminally ill,” “imminent death,” and “medical treatment.” The result has been a dangerous erosion of protections for those who are medically vulnerable. Consider the following:

(1) In January 1985 the New Jersey Supreme Court ruled in the Conroy case that “all life sustaining treatment, including feeding tubes, can be withheld or withdrawn from competent as well as incompetent terminally ill patients, provided that is what the patient wishes.” Nowhere in the Conroy case was it established that Claire Conroy was terminally ill.

(2) The Medical Tribune (March 27, 1985) has suggested that if tube feedings were discretionary, perhaps spoon feeding of patients who are demented due to strokes or Alzheimer’s disease should also be discontinued.

(3) At Abbott-Northwestern Hospital in Minneapolis, 89-year-old Ella Bathurst was denied food and water and all medications — even though she called out, “water, water” — for six days until she died. Although Ella was very hard of hearing, she had not been judged incompetent; she was neither comatose nor dying. She had lived independently until she broke her hip a few weeks earlier.

(4) On September 12, 1986 the Supreme Court of Virginia, in the Hazleton case, ruled that “imminent death” could be interpreted to mean several months, and that Harriet Hazleton need not be fed.

(5) In the Rasmussen case, currently before the Supreme Court of Arizona, the definitions of “incompetent or incapacitated” in the Living Will law could include and threaten the lives of thousands of people with disabilities.

It is likely that a signer of a Living Will interprets “incompetent/unable to make decisions” as comatose, not merely mildly senile or handicapped. It is likely that a signer understands “final stages” as the last few weeks of life and “imminent” as momentary, not several months in the future, and that he or she considers “artificial life-prolonging procedures” to mean respirators and heart-lung machines — not medications such as antibiotics or insulin by hypodermic, or intravenous food and water, or spoon feeding.

Even where Living Will legislation attempts to be protective (although, by nature, Living Wills are unnecessary, counter-productive to the rights of patients, and dangerous), organized efforts have attempted to sabotage these protections. At this writing, the Oregon Senate is considering replacing the existing Living Will statute with more progressive “Death with Dignity” legislation. Among its most controversial aspects SB 20 would allow children 15 years old to make legally binding Living Wills; no reference is made to “terminal condition”; and a Living Will could be given by any means, even gesture, to a physician in the presence of only one witness (whose name, if not known, need not be recorded). Doctors or other persons are granted immunity from civil and criminal liability if they act in “substantial compliance with the law,” although not necessarily in complete accordance with the measure’s requirements.

The attack on the Colorado law was complete when, in the Rodas case, the health-care providers were granted immunity from their actions. Hilltop Hospital originally held that to withdraw feeding and hydration at its facility would assist Rodas in suicide, which is illegal; that Rodas was incompetent to make this decision; and that Rodas’ request undermined the mission of the institution, which is to rehabilitate the ill. Once released from liability, they declined to appeal. (So much for the objections to medically-hosted suicide and commitment to “mission.”)

Living Wills allow a physician to invoke his or her own personal opinion and bias in determining a patient’s “quality of life.” Living Wills, in offering immunity, give more legal protection to doctors and health-care providers than to the vulnerable patients whom they purport to protect.

And in California, the first state to enact Living Will legislation — legislation which has already been amended numerous times — another amendment is soon to be introduced. Titled the “Humane and Dignified Death Act,” the legislation would enable a physician to administer “aid in dying” which will “terminate the life of a qualified patient swiftly, painlessly, and humanely” by lethal injection or drugs. Similar legislation is being discussed in Arizona and Florida, states with large elderly populations, in Washington state, and in Illinois.

Four major groups are promoting the Living Will: The Hemlock Society (often described as the most radical, the “street fighters”) and its political sister organization, Americans Against Human Suffering; Concern for Dying (formerly the Euthanasia Educational Council; note that the title is not Concern for the Dying); and the Society for the Right to Die. Newsletters and media interviews from these groups indicate that Living Wills are only a first effort, and that suicide, assisted suicide, and “voluntary” euthanasia are clearly on the agenda. The ACLU and the American Humanists Association both have positions in support of euthanasia and suicide. But in recent months, these advocates for death have received unwitting support from unexpected corners.

Some right to life groups are now promoting the “Patient’s Rights Act” (PRA), a so-called pro-life version of a living will, drafted by the National Legal Center for the Medically Dependent and Disabled, and promoted by the National Right to Life Committee (NRLC) and some of its affiliates. The motivation or the good will of those promoting the PRA is not in question, but the results are disastrous. Clearly a compromise in that it concedes that legalized advance directives are necessary, the PRA falls into the trap of the same confusing verbiage as its deadly counterparts. Some of the words and phrases which it uses sound protective; an attempt is made to ensure that certain basic types of care will not be withdrawn, but careful study makes it clear that such protection is an illusion. Further, sloppy writing results in some sections contradicting others. As one attorney summarized, “It’s a lawyer’s delight — it has litigation written all over it.”

Because the PRA has been endorsed by some pro-life individuals and groups, it has not received the scrutiny it deserves by the broader pro-life movement, or by legislators committed to their cause. Pro- life legislators in Minnesota, for example, were convinced by lobbyists for the Minnesota Citizens Concerned for Life (MCCL), the NRLC affiliate, that only two options were available to the state: drafting “good” Living Will-type legislation or accepting the inevitability of bills promoted by euthanasia proponents (the Minnesota legislature was faced with three versions of the Living Will, including the PRA). They have failed to recognize that, either way, pro-death legislation is advanced.

Human Life Alliance of Minnesota, which Derek Humphry of the Hemlock Society calls “the most outspoken wing of the pro-life movement [on euthanasia],” attempted for two years to convince NRLC and MCCL that the strategy was both inconsistent and faulty. The introduction of SF 310 in Minnesota put HLA and disability rights groups — groups who, in principle, had to oppose the disastrous course of action — at odds with MCCL and the pro-life authors, and made the differences public. (Neither the Minnesota Catholic Conference nor the Bishops have made statements on any living will legislation.) By session’s end, the two more “classic” living will bills were combined into one, and it and the PRA were laid over (this was accomplished due more to time constraints than pro-life success), but neither are dead. The likelihood of holding off death legislation beyond this current session is practically nil; though well intended, the PRA backfired. First, since it has been conceded that legalized advanced directives are necessary, legislation in this area is now certain. Second, the PRA has undermined the united pro-life effort at the Capitol and discouraged, confused, and angered many of the natural allies, while encouraging opponents. Third, heavy-handed tactics used by some PRA lobbyists, including attempts to manipulate the legislative process, have infuriated many legislators, including faithful pro-lifers. It may well be that middle-of-the-roaders (who can usually be persuaded to vote pro-life, if only for the sake of pragmatism) will vote for a living will (or not support other pro-life legislation) as “punishment.” At minimum, it will be a long time before pro-lifers regain the trust necessary to work successfully in the public policy-making process. In short, it has been counterproductive and tragic.

It’s all so insidious, yet also so logical. Once defenders of life compromise for the sake of political efficacy, advancement of euthanasia is certain. Once the public has been convinced that major factors — cost containment, population control, or “quality of life” — make any euthanasia justifiable, it is but a short step from refusing unnecessary, heroic care (which is morally acceptable and already legal) to the “right to die.” Once a decision is made to discontinue food and water to encourage death, it is but a short step to the lethal injection. Once we decide that people such as Hector Rodas, people with few talents and lots of problems, are burdensome, not only to society but to themselves, it is but a short step from the “right to die” to the “duty to die” to the “duty to help.” And then, to the “right to kill.”

The slogan “right to die” may be appealing to the individual signing a Living Will, but it has far-reaching ramifications. The right to refuse treatment is already well established, but until the Elizabeth Bouvier decision, no legislature or court has spoken in terms of a “right to die.” In his concurring opinion in that case, Judge Compton wrote, “The right to die is an integral part of our right to control our own destinies so long as the rights of others are not affected. That right should, in my opinion, include the ability to enlist assistance from others, including the medical profession, in making death as painless and quick as possible.”

Let’s look at what it would mean to move beyond the right to refuse treatment, which is already protected under common law and our Patient’s Bill of Rights, to embracing a “right to die.” Walter M. Weber, Associate General Counsel for the Milwaukee-based Catholic League for Religious and Civil Rights, has advised that if people were to have a right to die, the right to life would lose much of its force. Instead of protecting life, the law would only protect the choice whether to live or die. In short, life would become a mere elective matter.

If people had a right to die, those who interfere with that right — by saving lives — could be sued, as happened in the Rodas case and is happening in a current case in New Jersey. In the latter, Concern for Dying has submitted a brief which states, “In essence, to permit the health care provider’s wishes to prevail over the patient’s refusal of treatment [food and fluids being called ‘treatment’] would be judicially to condone the unconscionable commission of institutional battery.”

If people had a right to die, it would apply just as much to the housewife with a migraine as to the terminal cancer patient. Equal protection would apply to the individual who is facing imminent and unavoidable death and to the teenager who is overwhelmed by a bad case of acne. Suicide would become a civil liberty. Some state courts might require funding of suicides for poor people. If people have a right to die, other people would also have a right to kill — as Judge Compton expressed it (and the ACLU agreed), to provide the victim “the assistance she needs in ending her life.” Because they do not recognize the right to kill willing victims, existing homicide laws could be declared unconstitutional.

As Weber analyzed, the right to refuse treatment may result in someone’s death. Exercise of the right to die will certainly do so. Much in current discussion insists all this will be “voluntary,” but considering the corroding of previous promises, one can stand secure in the belief that involuntary euthanasia is close at hand.

Perhaps slogans like “right to die” and “freedom of choice” have become so hackneyed that we no longer sense their deadly implications. Or that we are so caught up in our hurry-up-keep-up world that we only worry about ourselves and those closest to us. Or, that we don’t believe it could really happen. Nevertheless, it is happening. We have skidded down the slippery slope and we are at the precipice. Unless we all yell “Stop!” and lay open the safety nets, all that is left is for the historians to record the damages.

By

At the time this article was published, Mary Senander was a free-lance writer who had followed the euthanasia issue since 1963. She was a consultant to the International Anti- Euthanasia Task Force, a division of the Human Life Center at the University of Steubenville.

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