By Harvey Berman
On Tuesday, the Court of Appeals will hear Myers v. Schneiderman, a renewed attempt to legalize physician-assisted suicide in New York. The plaintiffs are three patients, two of whom have since died, several physicians and End of Life Choices New York, a non-profit agency that provides counseling for patients requesting assistance in ending their lives.
Three aspects of the plaintiff arguments will be of interest to those following the court proceedings.
First, the plaintiffs contend that the lower courts erred in employing a literal interpretation of the penal code, sections 120.30 and 125.15, stipulating that any person who intentionally causes, aids or promotes another person to commit suicide is guilty of murder at most or manslaughter at least. Acts that are intentional are central in criminal law, and acts proven to be intentional can lead to a conviction of murder rather than manslaughter.
In the strongest sense, the plaintiffs are requesting the Legislature to recast the criminal code so that what would be a criminal act if committed by Mr. Smith, is instead a permissible medical procedure when committed by Dr. Smith.
Second, the plaintiffs argue that physician-assisted suicide will affect only a “very small subset of patients,” suggesting that such deaths will be few in number. This assertion ignores data from Oregon showing that the number of deaths from physician-assisted suicide has grown more than eight-fold since it was introduced in 1997.
Such growth in assisted suicide prompts a related concern of “suicide contagion,” the idea that assistance with death comes to be seen as a medically ordinary and routine therapeutic option.
Third, the plaintiffs take exception to slippery slope arguments, contending that safeguards will be in place to protect the elderly, the disabled and those not competent to make valid consent. Yet the evidence arguing against such claims is overwhelming. Over the past 30 years, since it was legalized in the Netherlands and Belgium, euthanasia has devolved from assisted death only for the terminally ill to include those who are chronically ill, from those with physical illness to those with psychological illness, from adults to children, and ultimately to those who are simply “tired of living.”
There is the infamous case earlier this year in the Netherlands of the elderly woman who decided not to be euthanized; the physician had to restrain her – with the aid of the patient’s family – in order to complete the euthanasia procedure. This indicates that once legalized, physician-assisted suicide becomes the inevitable first step to active euthanasia. In the words of one jurist, “the legal machinery initially designed to kill those who are a nuisance to themselves may someday engulf those who are a nuisance to others.”
The bizarre notion of a right to die – a right that everyone will eventually exercise – will be seen by tired, confused and pressured patients as a “duty to die.”
Harvey Berman, Ph.D., M.P.H., teaches pharmacology and medical ethics at the University at Buffalo. He is currently on sabbatical leave at the Kennedy Institute of Ethics at Georgetown University in Washington, D.C.