Posted originally at Bill of Health on April 30, 2018, by Norman Cantor, and cross-posted on The Good Death Society Blog by agreement with Bill of Health.
Since 1997, when the U.S. Supreme Court rejected federal constitutional challenges to New York and Washington prohibitions of assistance to suicide, the notion that a dying patient might have a constitutional right to obtain a lethal prescription has gotten short shrift.
Even when the dying patient’s claim for physician assistance in dying (PAD) has relied on state constitutional provisions, no state supreme court has ruled that state liberty or equal protection guarantees so benefit a competent, terminally ill medical patient. See T.M. Pope, Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures, N. Mex. L. Rev. (2018). At least 5 state highest courts have rejected such claims. Yet developments and insights emerging over the last 21 years in death and dying jurisprudence provide reason to reinvigorate constitutional challenges to state prohibitions on a physician’s providing a lethal substance to a competent, fatally stricken medical patient.
The first Achilles heel in current legal doctrine relates to the “liberty” concept invoked by fatally stricken claimants. When Chief Justice William Rehnquist rejected the patients’ liberty claim in Washington v. Glucksberg, he labeled it as seeking a “right to suicide.” That over-simplistic formulation of the constitutional claim presaged its failure. Of course the guides to fundamental liberty, i.e., the traditions and collective conscience of the people, do not encompass “suicide.” Suicide, broadly viewed as a choice to “prematurely cut short a viable life, usually for reasons of a transient nature and often involving depression,” has always been disdained and discouraged. Pope, supra, at 29. Law has customarily allowed physical intervention to prevent suicide, and has criminally punished assistance to suicide.
Rehnquist, though, was unfairly characterizing the liberty claim of dying patients. Those dying patients in Glucksberg were not advancing a broad prerogative to terminate a life deemed unbearably unhappy. Rather, they were asserting a fatally stricken person’s interest in medical management of the dying process and in control of the timing of an unavoidable, lurking death. Only in the 20th century, with development of modern medical tools, did this issue really emerge. Only then did a fatally stricken patient incur risk of a protracted dying process with accompanying suffering or degradation. The 21st century is witnessing an expanded incidence of medically mediated death, a phenomenon warranting renewed focus on end-of-life self-determination.
The 21st century is also witnessing development in another measure of fundamental liberty – the collective conscience of the people. Polls in 2017 show that 67% of Americans now support the concept of physician-assisted death. Public sentiment may not be a determinative factor, but it is relevant in shaping the meaning of fundamental liberty. Also relevant are developments in legalization of PAD as in California, Colorado, New Hampshire, Montana, and the District of Columbia. In short, a basis exists for refining and resubmitting the constitutional claim that self-determination in management of a looming, unavoidable dying process should be deemed a fundamental aspect of liberty.
The second Achilles heel in current constitutional analysis of PAD relates to an equal protection claim. In Vacco v. Quill in 1997 Chief Justice Rehnquist summarily rejected the argument that New York arbitrarily denied equal protection of the laws by allowing terminal patients to hasten their own death by withdrawing medical life support while criminalizing a physician’s provision of a lethal substance to similarly situated patients. Rehnquist found that the state’s differential approach reflected a customary distinction between killing (action precipitating death) and letting nature (an underlying disease) take its natural fatal course. This distinction supposedly comported with recognized legal principles of causation and intent. In PAD, a poison and not a natural disease causes death. And in PAD a physician supposedly intends to bring about death by poison while in withdrawing life support the physician may only be respecting the patient’s wish to be free of medical machinery. State court judges have acquiesced in Rehnquist’s equal protection analysis without critical analysis.
Let’s put aside the fact that Rehnquist’s proffered analysis is not very convincing in the context of fatally afflicted medical patients. Contrary to Rehnquist’s perspective, a physician’s cessation of critical life support (like a respirator) “causes” death in the sense of shortening a sustainable life. (It would be homicide for a physician to turn off a life-preserving respirator without consent of the patient or an authorized surrogate). And the physician’s actual “intent” might be the same when providing a lethal substance as when removing mechanical life support – providing relief at the behest of a gravely debilitated, dying person who says that their quality of life is so unendurable that they prefer to die.
Put these arguable flaws in Rehnquist’s equal protection analysis aside because important new elements have emerged in medical management of the dying process that warrant fresh consideration of a dying patient’s equal protection claims. Since 1997, compassion for distressed patients facing unavoidable death has prompted physicians to acknowledge (and states to accept) an increasing variety of ways for a competent, fatally stricken patient to shorten a dying process. The most prominent emergent technique is for an afflicted patient to shorten their ordeal by voluntarily stopping eating and drinking (VSED), thus precipitating death by dehydration within a period of weeks. A modicum of palliative care ensures that the dying process is not too arduous. While no high-level court has explicitly endorsed this practice, medico-legal commentators widely assert that VSED is a legal prerogative of a fatally stricken patient.[i]
The legality of VSED undermines the equal protection contention of Chief Justice Rehnquist (and others) that states have simply been differentiating between physicians’ letting nature take its fatal course and medical practices that actively hasten death. VSED carries strong overtones of suicide. A stricken, distressed patient initiates a deviant practice (SED) that precipitates death despite months of salvageable life. The cause of death is dehydration rather than an underlying degenerative medical condition (like ALS or cancer). The patient’s intent is to abbreviate the ordeal of an intolerable dying process. And the intent of surrounding persons (including physicians) who provide emotional support and palliative care (including sedation when necessary) is to facilitate the patient’s chosen demise. Chief Justice Rehnquist’s facile invocations of “causation and intent” in Glucksberg and Vacco ring even more hollow in the context of VSED. All this gives renewed ammunition (regarding state arbitrariness) and hope to fatally stricken patients who invoke a constitutional claim for access to a lethal substance that would provide an even more expeditious and humane means of ending their ordeal than VSED.[ii]
The arguable inconsistencies in state regulation of end-of-life practices extend even further. Another emerging form of legitimate physician conduct is terminal sedation (sometimes known as sedation to unconsciousness, deep palliative sedation, or continuous deep sedation, but referred to here as TS), usually accompanied by cessation of nutrition and hydration. The TS practice is “terminal” because the treated patient expires without awakening from the sedated state. The open question is cause of death. According to guidelines issued by professional organizations that endorse TS, the practice is confined to the end-stage of a dying process (within days or weeks of projected death) and is only applicable in response to severe, refractory physical symptoms such as pain, nausea, and dyspnea.[iii] The sedative dosage is supposed to be titrated to produce symptom relief via unconsciousness but not death.
The actual cause of death for the end-stage patient receiving TS is uncertain – perhaps the underlying disease, perhaps the intrusive sedative, or perhaps dehydration from accompanying cessation of nutrition and liquids. Professional organizations maintain that the underlying disease, rather than TS, probably impels the imminently dying patient’s demise. However, some sources insist that TS often hastens death because dehydration accelerates the dying process.[iv] Depending, then, on the prevailing medical practice in any particular jurisdiction, legal acceptance of TS may complicate state efforts to defend exclusion of PAD as part of a distinction between letting a natural disease process take its fatal course and affirmatively hastening death.
Again, developments since 1997 in accepted medical practice regarding VSED and TS warrant fresh claims that state exclusion of lethal assistance to a competent, fatally stricken patient is so arbitrary as to violate equal protection of the laws under state and federal constitutions. While the prevailing jurisprudence for the past 20 years has upheld state bans on lethal poisons as a mode of protecting a vulnerable population (dying patients) against abuse or mistake, there are at least 2 cogent counter arguments in any renewed constitutional debate. First, any judicial declaration that a competent terminal patient is entitled to a lethal prescription could be conditioned upon basic procedural safeguards (independent confirmation of prognosis, competency, and informed choice), always with the caveat that legislators can redesign or add safeguards.[v] Second, the concerns about undue influence upon vulnerable populations are no more convincing in the context of lethal poisons than they are in cessation of life support, VSED, or TS – all of which end-of-life medical options currently operate without formalistic protective safeguards.
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[i] T. Quill, L. Ganzini, et al., “Voluntarily Stopping Eating and Drinking Among Patients with Serious Advanced Illness,” JAMA Internal Med. (11/6/17); A. McGee & F.G. Miller, “Advice and care for patients who die by voluntarily stopping eating and drinking is not suicide,” 15 BMC Med. 222 (2017); T.M. Pope & A. West, “Legal Briefing: VSED,” 25 J. Clin. Ethics 68 (Spring 2014); N. Cantor, Honing the Emerging Right to Stop Eating and Drinking, http://blogs.harvard.edu/billofhealth/2016/11/18/patients-right-to-stop-eating-and-drinking/ (2016).[ii] One constitutional attack on a state ban on PAD is currently pending in Massachusetts. See Kliger v. Healy, 2017 WL 2803074 (Mass. 2017).
[iii] Am. Academy of Hospice & Palliative Med., Statement on Palliative Sedation (Dec. 2014) ashpm.org); CEJA of the American Medical Assn, “Sedation to Unconsciousness in End-of-Life Care” (2008); Harvard Ethics Group, Report on Continuous Deep Sedation until Death (2011).
[iv] M.P. Battin, “Terminal Sedation: Pulling the Sheet over Our Eyes,” 38:5 Hastings Cent. Rep. (Sept. 2008), pp. 27-30. See also the concurring opinion of Judge Rivera in Myers v. Schneiderman, 85 N.E.3d 57 (N.Y. 2017) (accepting the contention that TS not only sedates a patient but quickens death).
[v] Canada’s highest court followed a variation on this course. When the court upheld a challenge to Canada’s ban on PAD, it suspended the declaration’s effect for a limited period to permit the legislature to adopt procedural safeguards. See Carter v. Canada (Attorney General), 2015 SCC 5 (S.Ct. Can. 2015)
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About Norman Cantor
Norman Cantor is Distinguished Professor of Law Emeritus at Rutgers University School of Law, Newark. He taught in the fields of Constitutional Law, Contracts, and Bioethics (Death, Dying, and the Law). He has been widely published in legal and medical journals on the topic of the legal handling of dying medical patients. His books are: After We Die: The Life and Times of the Human Cadaver (2010); Making Medical Decisions for the Profoundly Mentally Disabled (2005); Advance Directives and the Pursuit of Death with Dignity (1993); and Legal Frontiers of Death and Dying (1986). Professor Cantor is a cum laude graduate of Princeton University and a magna cum laude graduate of Columbia Law School where he served as Notes and Comments Editor of the Columbia Law Review. He has served as a visiting professor at Columbia University, Seton Hall University, Hebrew University of Jerusalem, and Tel Aviv University. He currently divides his time between Hoboken, N.J., and Tel Aviv.
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