Live and Let Die ...
By William Westmiller
Dr. Kevorkian has pressed the contest for a right to die against the next barrier of legal restrictions. In a video-taped "60 Minutes" segment, "Doctor Death" went a step beyond physician-assisted suicide to physician-aided suicide, directly applying lethal drugs at the patient's request. While this type of publicity stunt is bound to elicit horror and revulsion, his act is a heroic assertion of constitutional rights.
The Supreme Court has already ruled favorably on one method of suicide -withholding extreme measures - and will soon rule on another - bans against lethal prescriptions. Dr. Kevorkian hopes to present the courts with a third step in the pursuit of an individual's right to willfully terminate their own life: direct physician action to expedite death.
The pending issue of lethal prescriptions was sent on a course to the Supreme Court with a ruling two years ago by the Ninth Circuit Court of Appeals. In an otherwise commendable ruling, the Court chose to limit its judgement to the narrow issue of whether physicians can assist a terminally-ill patient who wishes to end a painful, protracted and agonizing death. It did not rule out, but rather chose not to rule, on the broader issue of physician assistance or of a general right to suicide. It's likely the Supreme Court will uphold this limited finding under the Due Process clause of the Fourteenth Amendment. It will take another case, resting on the Equal Protection clause of the same amendment, to expand this liberty to encompass Dr. Kevorkian's most recent act of mercy.
Those who are distressed at what could be construed as an activist court should know that suicide has been legal in every state for the past decade. No state has prosecuted an unsuccessful suicide attempt in the past half century. The issue is the criminal liability of those who prescribe or administer lethal medication at the patient's request. Physicians, pharmacists, and family are currently protected when pain-relieving drugs are administered - even if they contribute to - or frequently cause - a patient's death. Nearly a decade ago, the Supreme Court decided that patients have a right to refuse unwanted medical treatments, even if the consequence is death. It may be thisyear that the Court supports a liberty right to receive drugs whose known consequence is death.
What the courts have always upheld is the legal distinction between willful death - suicide - and unwillful death - murder. This is the critical factor which interrupts any "slippery slope" in the law. No advocate of the right to die has ever contested this fundamental point in order to defend a murder. Nor will any constitutional analysis ever preclude an individual from choosing to suffer a long and tortuous death, if that is their will. Everyone agrees that there ought to be objective guidelines and presumptions in the law that preclude an unwillful death at the hands of another. Certainly, guardians of minors and the mentally ill need those kind of guidelines and restraints. And no death should be, or needs to be, financed by taxes. The actual costs of most lethal drugs are well within the means of even the most impoverished. No dependent should be ever be executed for the financial benefit or convenience of a geriatric maintenance program. Nor should any doctor's government license be in jeopardy for refusing or agreeing to provide lethal drugs. Slippery slopes are not, however, the primary concern of most opponents.
Religious opposition to suicide bears more on the presumed abrogation of god's will than any issue of willful choice on the part of a person. Aside from ignoring the divine grant of free will, religious doctrine developed primarily from a misunderstanding. Early Christians welcomed death as a doorway to heaven, provided they were in a state of grace. The urgency of this desire reached a peak with the Donatists, who, upon achieving a state of grace, begged, pleaded and threatened others to end their lives and guarantee their entrance into heaven. Having confused assisted suicide with martyrdom, their act was roundly condemned by St. Augustine as a "detestable and damnable wickedness", persuading the church to condemn the practice. The challenge to religious objectors is to explain how a state of grace is achieved by the compulsion of law. Central to any religious doctrine is the premise of willful acceptance of - not compulsion to comply with - what is perceived as god's will.
Dr. Kevorkian has never been convicted for his arguably legal conduct and he probably never will be. However, he isn't always the best advocate for his cause. Erroneously, he labeled his physician-preformed suicide as "euthanasia", a term that suggests merciful, but not necessarily willful, death. Let's keep the distinction clear between murder and suicide. The issue of will is essential to justice. The right to life is only meaningful if the right to end life is reserved to each individual. Wisdom dictates clear legal guidelines whenever a third party is burdened with a guardianship decision or participates in the willful termination of another life. Dr. Kevorkian has made animportant and valuable contribution toward drawing those clear lines.
©1998, William Westmiller
California Coordinator of the Republican Liberty Caucus
Past Candidate for the Republican Nomination for (24CD) Congress
Former National Secretary, California Chairman, Libertarian Party
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