Dr. Robert Brody offers his verdict on the verdict: "It didn't change a thing."
In the days before the Supreme Court's June ruling on assisted suicide, there was a kind of hush among ethicists and lawyers waiting for word from on high. You could have heard a pin drop. But this pin must have dropped on a feather pillow.
In upholding the ban on assisted suicide, the Supreme Court turned the debate back to the states. The court virtually urged Americans to continue what Chief Justice Rehnquist described as "an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."
Now Brody, the burly chair of the ethics committee at San Francisco General Hospital, describes the meaning of the decision in the language of grass-roots politics, "Think globally, act locally." The local action has continued in as haphazard, even chaotic, a fashion as before the court ruling:
In Michigan, the bodies of two more women have been found in motel rooms with notes telling the police to contact Jack Kevorkian's lawyer.
In Florida, a doctor and an AIDS patient suing for the right to aid-in-dying under state privacy laws lost their battle.
Everywhere, in hospitals and at bedsides, decisions that determine death and dying are still being made in private conversations.
As Dr. Brody says, those doctors who were assisting suicide before the court decision will continue. Those who refused will continue to refuse. "It will remain underground and remain something that patients feel they should choose."
He speaks from the perspective of San Francisco, a city that confronted the issue of assisted suicide in the context of the AIDS epidemic. Here, half of the doctors who treat AIDS acknowledge that they have helped a patient to "hasten death."
And so here a network of medical ethics committees has taken the lead in determining a common path for doctors through the chaos of decision-making. They have published the first set of guidelines in the country for physicians on the practice of hastening death.
Dr. Brody helped to co-author these guidelines not merely as a physician who has "seen fates worse than death." He and his colleagues worry about terminal patients who didn't have palliative care or who hurried death when they needn't have.
Indeed, the guidelines scripted by the Bay Area Network of Ethics Committees consider "physician-hastened death" the last resort. They define the task to "improve the care of the terminally ill and to avoid unnecessary suffering." Under their terms, any physician providing aid-in-dying should determine first that the patient is terminally ill within six months of death and mentally competent; that hospice or palliative care has been made available; that the choice is freely made "independent of finances, family, health care workers, health insurance or other coercion."
They insist as well on a second opinion by a physician, evaluation by a hospice or pain specialist, counseling with family, and a signed, witnessed consent form. And for family doctors who may feel out of their moral depth, the protocol offers a 15-point checklist.
For some, such guidelines are little more than a professional first draft. An ethical protocol for a practice that is still illegal in most states. They don't mute the deep divisions over doctor-assisted suicide.
But every doctor from Jack Kevorkian to Timothy Quill has rued the lack of consensus in the medical community.
We are operating now in limbo. On the one hand, doctors cannot hurry death legally. On the other hand, juries won't punish those who help a suffering person die.
In the next months and years, the states and the status quo will change. With state legislation, we are likely to have a patchwork of laws as well as a collage of practices.
For now, there is breathing room for doctors to begin drawing a blueprint. Here, where doctors have a long, secretive history of hastening death, the discussion is now open.
Boston Globe Newspaper Co.