No constitutional right to assisted suicide: U.S. Supreme Court
In what can only be described as a major defeat for the right-to-die movement, the U.S. Supreme Court has unanimously ruled — in two separate cases — that state laws banning assisted suicide do not violate either the Due Process or Equal Protection Clauses of the U.S. Constitution’s 14th Amendment. The high court’s decisions in Washington v. Glucksberg and Vacco v. Quill were long-awaited and the subject of great speculation on both sides of the right-to-die issue.
However, ever since the oral arguments on 1/8/97, when the Court questioned the attorneys in both cases, it became evident that the justices were not going to be easy marks for the euthanasia movement’s euphemistic argumentation. Here, in this country’s highest court, the justices were clearly cognizant of the serious implications and dangers associated with striking down state anti-assisted suicide laws by finding for a constitutionally-protected “right” to die. (See Update, 1-2/97:1.)
On 6/26/97, by a vote of 9-0, the Supreme Court reversed earlier rulings by the Ninth and Second U.S. Circuit Courts of Appeals which struck down statutes banning assisted suicide in Washington State and New York State, respectively. The majority opinions in both cases were written by Chief Justice William Rehnquist and joined by Justices O’Connor, Thomas, Kennedy, and Scalia. Justice O’Connor also issued a separate but concurring opinion, as did Justices Ginsburg, Souter, Stevens, and Breyer.
Washington v. Glucksberg
On 3/6/96 — when the Ninth Circuit Court of Appeals upheld a federal district court’s ruling that Washington’s anti-assisted suicide law was unconstitutional — Judge Stephen Reinhardt, writing for the majority, found that the Due Process Clause of the 14th Amendment contains “a constitutionally-protected liberty interest in determining the time and manner of one’s own death.” [Compassion in Dying v. State of Washington; hereafter cited as Compassion in Dying. (Note: At the U.S. Supreme Court level, this case became Washington v. Glucksberg.)]
The Ninth Circuit based its finding on misinterpretations of two rather recent U.S. Supreme Court decisions, Cruzan v. Missouri Dept. of Health (1990) and Planned Parenthood v. Casey (1992). In reversing the Ninth Circuit’s ruling, Supreme Court Chief Justice Rehnquist was not timid about pointing out exactly how the high Court’s findings in both the Cruzan and Casey cases had indeed been misinterpreted by the Ninth Circuit majority.
According to the Ninth Circuit opinion, the Supreme Court in Cruzan, “by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one’s own death.” [Compassion in Dying] Not so, wrote Chief Justice Rehnquist, who authored the Cruzan opinion in 1990. Explaining first the common law rule that forced, unwanted medical treatment is considered battery, and that the refusal of medical treatment is “quite distinct” from assisted suicide, the chief justice wrote:
In Cruzan itself, we recognized that most States outlawed assisted suicide — and even more do today — and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide. [Washington v. Glucksberg; hereafter cited as Glucksberg.]
In Casey, the Supreme Court upheld the controversial right-to-privacy/abortion ruling in Roe v. Wade (1973), prompting the Ninth Circuit to find Casey “‘highly instructive’ and ‘almost prescriptive’ for determining what liberty interest may inhere in a terminally ill person’s choice to commit suicide.” [Compassion in Dying] But, again, Chief Justice Rehnquist rejected the Ninth Circuit’s supposition:
That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, and Casey does not suggest otherwise.
The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. [Glucksberg, emphasis added]
The Supreme Court also summarily dismissed a dangerous utilitarian notion expressed by assisted-suicide advocates in their Brief for Respondents in the Glucksberg case. According to the respondents, while the state has an interest in preserving and protecting human live, that interest applies only to “the lives of those who can still contribute to society and enjoy life.” [Glucksberg, Brief for Respondents, 35, n. 23] Judge Reinhardt offered essentially the same argument in his Ninth Circuit ruling. “The state’s interest is dramatically diminished,” Reinhardt wrote, “if the person it seeks to protect is terminally-ill or permanently comatose and has expressed a wish that he be permitted to die….” [Compassion in Dying]
Chief Justice Rehnquist was unequivocal as he addressed the notion that states have a diminished interest in protecting the lives of the sick:
Washington has rejected this sliding scale approach and, through its assisted suicide ban, insists that all persons’ lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law. As we have previously affirmed, the States “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy.” Cruzan, 497 U.S., at 282. This remains true, as Cruzan makes clear, even for those who are near death. [Glucksberg, emphasis added]
The chief justice repeatedly emphasized that state laws banning assisted suicide are “longstanding expressions of the States’ commitment to the protection and preservation of all human life.”
The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.” 49F. 3d, at 592. The State’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s. [Glucksberg, emphasis added]
Turning his attention to Washington State’s “slippery slope” argument — that, if assisted suicide is found to be a constitutional right for the terminally ill, the state could not limit or contain it — Chief Justice Rehnquist then focused on the broad scope of the Ninth Circuit’s ruling. By quoting directly from that ruling, the chief justice demonstrated that, if the Ninth Circuit’s decision were allowed to stand, it would also legalize voluntary euthanasia (lethal injection by doctors), involuntary euthanasia (through the substituted judgment of another), and even the killing of patients by those not associated with the medical profession:
The Court of Appeals’ decision, and its expansive reasoning, provide ample support for the State’s concerns. The court noted, for example, that the “decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself,” 79F 3d, at 832, n.120; that “in some instances, the patient may be unable to self administer the drugs and… administration by the physician… may be the only way the patient may be able to receive them,” id., at 831; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide. Id., at 838, n.140. Thus, it turns out that what is couched as a limited right to “physician assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. Washington’s ban on assisting suicide prevents such erosion. [Glucksberg, emphasis added.]
Vacco v. Quill
The question before the Supreme Court in Vacco v. Quill was whether New York State’s two statutes banning assisted suicide violated the Equal Protection Clause of the 14th Amendment. According to that mandate, a state cannot deny equal protection of its laws to individuals within its jurisdiction.
Last year, the Second Circuit Court of Appeals found that New York’s assisted-suicide statutes do “not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths.” According to Judge Roger J. Miner, writing for the majority, terminally-ill patients on life support have the legal right to hasten their own deaths with medical assistance by refusing life-sustaining treatment. However, terminally-ill patients not on life support cannot get medical assistance in hastening their deaths because of the state’s laws banning assisted suicide. Judge Miner concluded that “it seems clear that New York does not treat similarly circumstanced persons alike….” [Quill v. Vacco. (Note: At the U.S. Supreme Court level, this case became Vacco v. Quill.)]
The Supreme Court wasted no time rejecting outright the Second Circuit’s contention. Holding that New York’s statutes banning assisted suicide “neither infringe fundamental rights nor involve suspect classifications,” Chief Justice Rehnquist wrote:
On their faces, neither New York’s ban on assisting suicide nor its statutes permitting patients to refuse medical treatment treat anyone differently than anyone else or draw any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause. [Vacco v. Quill; emphasis in original. Hereafter cited as Quill.]
Chief Justice Rehnquist next addressed the claim that there is no real difference between assisting a suicide and withdrawing life-sustaining treatment. “Unlike the Court of Appeals,” he wrote, “we think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational.” According to the Supreme Court, there is a major distinction between “letting [someone] die” and “killing.” If a doctor assists in a suicide, he or she “must, necessarily and indubitably, intend primarily that the patient be made dead.” On the other hand, if the doctor honors a patient’s wish to withdraw life-sustaining treatment, that doctor’s intention may be to simply “cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them…. The law has long used actors’ intent or purpose to distinguish between two acts that may have the same result.” [Quill, emphasis added.]
The chief justice concluded by summarizing the Court’s ruling in support of New York State’s right to ban assisted suicide:
For all these reasons, we disagree with respondents’ claim that the distinction between refusing lifesaving medical treatment and assisted suicide is “arbitrary” and “irrational.” Brief for Respondents 44. Granted, in some cases, the line between the two may not be clear, but certainty is not required, even were it possible. Logic and contemporary practice support New York’s judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. By permitting every one to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction. [Quill, emphasis added.]
What happens now?
Since the U.S. Supreme Court has officially slammed the door on the constitutional “right” to assisted suicide claim, the ongoing battle over assisted suicide and euthanasia now moves to the court of public opinion at the state level. The battlelines and trenches will start appearing in targeted state legislatures and on state voter ballots.
In an attempt to turn defeat into victory, right-to-die advocates point to the fact that the Supreme Court did not declare the practice of assisted suicide unconstitutional. They call “hopeful,” for example, Chief Justice Rehnquist’s concluding statement in Glucksberg (that the Supreme Court’s ruling “permits this debate to continue, as it should, in a democratic society”) and Justice Stevens’ comment in his concurring opinion (that there may be in the future “situations in which an interest in hastening death is legitimate”). According toBarbara Coombs Lee, head of the suicide advocacy group Compassion in Dying, which sponsored both the Glucksberg and Quill cases, “The court’s decision is really a green light to states who wish to reach out and provide some dignity and relief to its dying citizens.” [Detroit News, 6/27/97]
In a press release, dated the day after the Supreme Court issued its rulings, the Seattle-based Compassion in Dying announced the formation of two new off-shoot groups: Compassion in Dying Federation of America (to “provide leadership in education and advocacy” throughout the country) and Compassion Center for End of Life Law and Policy (a legal group committed to bringing “the laws on assisted dying into accord with public opinion”). The latter is headed byKathryn Tucker, lead counsel in both Glucksberg and Quill. [Compassion in Dying Press Release, 6/27/97]
While Compassion in Dying claims that public opinion is with the right-to-die movement, recent polls have shown that the induced-death advocates are, in fact, loosing support. During the last year, national support for euthanasia has fallen 18 percentage points. In a 1996 Gallup Poll, 75% of Americans said they favored permitting a doctor to end a patient’s life. But in a Gallup Poll this year, released on the day of the Supreme Court decisions, support had fallen to 57%. [The Gallup Poll Monthly, 5/96:4; CNN Newsday transcript, 6/25/97] This change reflects the fact that, as people learn more about assisted suicide, the more likely they are to oppose it.
The reality is that the right-to-die movement was dealt a devastating blow by the Supreme Court’s unanimous rulings. According to Dr. Ezekiel Emanuel, associate professor of medical ethics and medicine at Harvard Medical School, “The prospects for the legalization of physician-assisted suicide are zero as a practical matter.” “It is not going to happen in the federal courts after these decisions,” he told reporters, “and you don’t see politicians rushing to embrace it, quite the opposite.” [Washington Post, 6/27/97:A19]
But, if assisted-suicide advocates have been anything in this country, they’ve been persistent — and there has been no indication that that will change now.
No constitutional right to assisted suicide: Florida Supreme Court
Exactly three weeks after the U.S. Supreme Court ruled that there is no “right” to assisted suicide guaranteed in the U.S. Constitution, the Florida State Supreme Court delivered a second crippling blow to the right-to-die cause by ruling that Florida’s law prohibiting assisted suicide does not violate that state’s constitutional right-to-privacy provision. Florida is one of only five states in the country with a specific right-to-privacy provision in its constitution.
The case before Florida’s high court, Krischer v. McIver, was an appeal of the 1/31/97 ruling by Florida Circuit Judge S. Joseph Davis granting physician Cecil McIver the right to help AIDS patient Charles Hall end his life. According to Judge Davis, Charles Hall “has a constitutional right under the Privacy Amendment of the Florida Constitution, Article I, section 23, to decide to terminate his suffering and determine the time and manner of his death, and in order to accomplish this he has the right to seek and obtain the assistance of his physician, Dr. Cecil McIver….” [McIver v. Krischer; see also, Update, 1-2/97:6 & 3-5:7.]
In addition to finding a right to die in the state’s privacy provision, Judge Davis found that the U.S. Constitution’s Equal Protection Clause also supported Hall’s right to assisted suicide. Of course, that ruling (as applied to the federal constitution) was nullified by the recent U.S. Supreme Court decision in Vacco v. Quill, leaving only the state constitutional privacy question before the Florida high court.
On 7/17/97, by a vote of 5-1, the Florida Supreme Court reversed Judge Davis’ decision and upheld the constitutionality of Florida’s assisted-suicide law. The law (Section 782.08, Florida Statute [1995]) was first enacted in 1868 and reads, in part, that “every person deliberately assisting another in the commission of self murder shall be guilty of manslaughter.” Florida also has other statutes prohibiting mercy killing and euthanasia. Justice Stephen Grimes, writing for the majority, pointed to Florida’s long history of prohibiting these induced-death practices and concluded: “Thus, it is clear that the public policy of this state as expressed by the legislature is opposed to assisted suicide.” [Krischer v. McIver; hereafter cited as McIver.]
Justice Grimes looked to California and cited the only other case in the country where a court had determined whether assisted suicide is protected under a state constitution’s right-to-privacy provision. In the California case Donaldson v. Lungren (1992), the court held that Donaldson’s right to privacy could not be expanded to “provide a protective shield for third persons who end his life.” According to the court, the state’s competing interest in protecting society from abuses outweighed any interest in assisted suicide under the state’s right to privacy.
In the present Florida case, according to Justice Grimes, there are three recognized state interests which clearly outweigh Charles Hall’s claim for assisted suicide. Those “unqualified” interests include the preservation of life, prevention of suicide, and maintaining the integrity of the medical profession. Regarding the first interest, Justice Grimes explained:
Mr. Hall will not die from the complications of his illness. Rather, a physician will assist him in administering a “death producing agent” with the intent of causing certain death. The state has a compelling interest in preventing such [an] affirmative destructive act and in preserving Mr. Hall’s life. [McIver, emphasis added.]
The court’s majority clearly rejected the argument that there is no difference between the right to refuse medical treatment and the right to assistance in suicide.
The assistance sought here is not treatment in the traditional sense of that term. It is an affirmative act designed to cause death — no matter how well-grounded the reasoning behind it. [McIver, emphasis added.]
Like the U.S. Supreme Court, Florida’s highest court left open the possibility for future legislative action to legalize assisted suicide. “We do not hold that a carefully crafted statute authorizing assisted suicide would be unconstitutional,” Justice Grimes wrote. But legislative leaders have shown little interest in changing the state’s position on assisted suicide. According to an aide, Senate President Toni Jennings’ priorities do not include assisted suicide, and House Speaker Dan Webster told reporters, “I believe the will of the House is that the current law is good.” [Miami Herald, 7/18/97] Florida’s Democratic governor, Lawton Chiles, is also on record supporting the high court’s ruling and opposing any change in the status quo regarding assisted death. [Sun-Sentinel, 7/17/97]
Oregon Measure 16 referred back to voters for repeal
It’s now official. Oregon’s Measure 16 (also known as the “Oregon Death with Dignity Act”) will be back on the ballot in November for voter reconsideration.
Measure 16, which narrowly passed in 1994 by a margin of 51% to 49%, makes it legal for doctors to intentionally prescribe fatal medication in order to end certain patients’ lives. It is the only law in the world to legalize physician-assisted suicide. However, Measure 16 has thus far been barred from taking effect due to a constitutional court challenge which is still pending.
Concerned about the possibility that Measure 16 might eventually be enacted once the court challenge ended, lawmakers began to take a closer look at the measure and found that it was poorly written and fatally flawed. Other information and studies began to surface as well, showing that even before the new law passed, assisted-suicide supporters knew that Measure 16’s provisions were seriously flawed. Proponents knew that at least one in four assisted-suicide attempts would fail, with patients lingering for hours and even days, suffering convulsions, vomiting, and brain damage — hardly what the public would consider a “dignified death.” (See Update, 3-5/97:1.)
For the majority of legislators, it became apparent that Oregon voters had been deceived in 1994 and that they now had the right to reconsider Measure 16 with all the facts out in the open. On 5/13/97, the Oregon House of Representatives voted 32 to 26 to refer the measure back to the people. Less than a month later, on 6/9/97, the Oregon Senate voted 20 to 10 to give voters a chance to make an informed decision on the measure.
But, prior to the Senate vote, Measure 16 supporters mounted a last ditch effort to stop the measure from being referred back to the people in its original form. Instead, they argued, Measure 16 should be amended so that any problem area or loophole could be fixed. The people had already approved the law, proponents said, it was now the legislature’s responsibility to make Measure 16 work.
That strategy, however, failed. Once Measure 16 supporters introduced their “Proposed Minority Report Amendments,” it became obvious that the measure’s problem areas were not fixable. The Minority Report contained close to 20 amended changes, many of which actually broadened, not lessened, Measure 16’s flaws. As a result, the Minority Report was defeated when it came up for a vote in the Senate. [The Oregonian, 6/10/97:1A; Statesman Journal, 6/10/97:1A; AP, 6/10/97; New York Times, 6/10/97]
The ballot in November will be a special election, with only two measures up for vote. The first is Measure 51. A yes vote on Measure 51 is a vote to repeal Measure 16.
Now that the U.S. Supreme Court has pointed to the states as the proper arena for the assisted-suicide debate, all eyes are on Oregon. Washington Post writer William Claiborne referred to Oregon as the “national battleground” for the assisted suicide issue, and a recent New York Times op-ed piece suggested that Oregon has the potential for blocking right-to-die efforts across the country for many years. [Washington Post, 6/27/97:A19; E. Emanuel & L. Emanuel, “Assisted Suicide? Not in My State,” New York Times, 7/24/97]
Editor’s note: In 1994, the IAETF prepared a detailed 6-page factsheet on Measure 16 entitled, “The Facts About the Oregon Death with Dignity Act.” This information is available on the IAETF web site (www.iaetf.org) under “Factsheets.” For those without Internet access, a printed copy can be obtained by sending $1.00 for postage and handling to IAETF, P.O. Box 760, Steubenville, OH 43952.
Michigan developments: Fieger’s misconduct prompts mistrial and a call to action
Before any witness could testify, before any evidence could even be introduced, attorney Geoffrey Fieger’s opening statement in the latest Kevorkian trial was so improper and inflammatory that Ionia County Circuit Court Judge Charles Miel had to declare a mistrial, saying that Fieger’s comments had tainted the jury. “The extent of the possible bias cannot be measured but the court feels there is a high likelihood that the impartiality of one or more of the jurors may be affected by the opening statement of defendant’s counsel,” Judge Miel said. “Prejudice of the jury cannot be repaired by any corrective instructions,” he added. [Reuter, 6/12/97]
The trial was Jack Kevorkian’s fourth, but the first in rural Ionia County and the first one with Raymond Voet as prosecutor. Throughout all the pre-trial posturing, Voet was not easily intimidated and showed himself as a prosecutor who took his job seriously. It was the Ionia County grand jury that had indicted Kevorkian on four felony counts in the 8/30/96 death of multiple sclerosis patient Loretta Peabody. It was Voet’s job, as Ionia County prosecutor, to bring Kevorkian to justice. (See Update, 3-5/97:9.)
Voet’s opening statement was low-key and brief. He told the jury that this was going to be an emotional trial and urged them to follow the law and not be swayed by either “sympathy or prejudice.” He talked about the videotape the prosecution would introduce, the one that shows Kevorkian conferring with Peabody and her husband in their Ionia County home shortly before she died. He told the jury that the tape showed that Peabody made “a contract for the services of Jack Kevorkian” and that “she was to die by injection,” an injection of the heart-stopping drug, potassium chloride. All in all, Voet’s opening statement took only 30 to 35 minutes. Fieger’s opening comments, on the other hand, lasted for three hours.
During his statement, Fieger tried to shift attention from Kevorkian and focus it on the prosecutors and on Peabody’s illness. His earlier training as a thespian came in handy as Fieger modulated his voice, switching from soft whispers to loud shouting. He told the jury that Kevorkian has never advocated suicide, that his only goal is to help eliminate pain and suffering. He accused Voet of conspiring against Kevorkian and of carrying out a corrupt and religiously motivated vendetta. Fieger claimed that the prosecution had harassed the Peabody family and that Voet had taken “the law into his own hands.” He also claimed that Michigan has no law against assisted suicide, even though the Michigan Supreme Court ruled in 1994 that assisted suicide is a common law felony in that state. He brought up Kevorkian’s three previous acquittals, essentially telling the jury to go along with what the other juries had decided. Voet repeatedly raised objections throughout Fieger’s tirade, but Judge Miel, hearing his first major case, was not in control. While he upheld Voet’s objections, the judge also allowed Fieger to continue with what Voet has called “the most outrageous, illegal opening statement I’ve seen in my life.” [UPI, 6/11/97; Detroit News, 6/12/97; Detroit Free Press, 6/12/97, 8/2/97; Reuter, 6/12/97; AP, 6/11/97, 6/12/97]
Fieger then went after former Oakland County assistant prosecutor Michael Modelski. While now in private practice, Modelski had volunteered to help Voet with the Kevorkian trial. In 1991, Modelski had successfully obtained a permanent injunction barring Kevorkian from assisting in any future deaths or using any of his homemade suicide devices. That injunction has never been enforced, but was upheld by the Michigan Supreme Court in April 1996 after Kevorkian’s attorneys challenged it.
Fieger appeared bent on discrediting Modelski in front of the jury. He accused Modelski of helping to “cover up” a murder, which Fieger said was committed several years ago by a member of Modelski’s family. Modelski later explained that he had briefly provided legal counsel to an out-of-state family member and had simply advised that person to not talk to police without an attorney present. The family member was eventually found guilty of manslaughter.
But Fieger didn’t stop there. Even after the mistrial was declared, he appeared on CNN’s Burden of Proof and said on national TV that Modelski was “a traveling, itinerant, unemployed prosecutor”; that “he’s been unemployed” for the “last two years”; and that he has “a checkered past” — none of which is true. [Burden of Proof, CNN Transcripts, 6/16/97]
“No one is holding Fieger accountable for what he does,” Modelski told the Oakland Press. “Fieger could attack me all day and night and that wouldn’t hurt me,” Modelski explained, “but I don’t need to look for trouble for my family.” “Fieger has cheapened the whole legal profession.” [Oakland Press, 6/14/97:A3] According to Modelski, “We had a jury we could have won with, and Fieger knew that.” “That’s why he tainted it,” Modelski added, “and it went down in flames.” [Detroit Free Press, 6/13/97]
Voet agreed. He said that, after jury selection, he “was extremely satisfied with the jury that was ultimately chosen with the help of my jury consultant.” “Significantly,” Voet added, “Geoffrey Fieger kept complaining about the jury, claiming that a change of venue was necessary, and that there were some sort of sacred ‘religious plants’ who were part of the jury.” [News Release, Ionia Co. Prosecuting Attorney’s Office, 8/1/97:5]
Over a month after the mistrial was declared, Voet announced that he would not re-try Kevorkian for Loretta Peabody’s assisted death. Many factors entered into that decision, including:
· Members of the Peabody family, who were present when Kevorkian visited Loretta on the day of her death, have been experiencing “significant memory deficits since they were first questioned.” Not coincidentally, those family members are represented by Fieger.
· Judge Miel’s handling of the case allowed Fieger and Kevorkian the widest possible latitude. The conditions of the bond were not enforced; Kevorkian was not required to be present at the trial, “even if just to waive his presence, as required by the law”; and there was a question whether Judge Miel would even hand down a meaningful sentence if Kevorkian was convicted.
· In order for there to be a fair trial, Fieger would have to be strictly dealt with in court and not “allowed to run roughshod over the legal system.” But according to Voet, “It is with deep regret that I cannot foresee any way of preventing Mr. Fieger from just reenacting his egregious misconduct in a second trial once he felt things were not going his way.” [News Release, pp. 7-8]
In his news release, Voet called for the legal profession to get “serious about the unscrupulous conduct of Mr. Fieger…”
“I call upon the State Bar and the Michigan Supreme Court to look at its rules of professional conduct in the context of Geoffrey Fieger and his representation of Jack Kevorkian. A conflict of interest question has to arise where an attorney is representing a criminal defendant and also most of the witnesses who are called to testify against that defendant. More importantly, there is the question of Mr. Fieger’s role in the most recent six or seven ‘assisted suicides’… How is it that Mr. Fieger has been retained beforehand by those who have been assisted in their suicides, or by their families? Is Mr. Fieger now involved in the planning of these assisted suicides? After all, the latest cases involve bodies abandoned in various motel rooms with just a note indicting that Mr. Fieger is to be contacted. Mr. Fieger then has available for the news media details about the dead bodies.” [News Release, pp. 9-10]
Attempting to shame the legal profession in Michigan into action regarding Fieger, Voet wrote: “Even the boxing profession acted against Mike Tyson when he used his mouth in a blatantly unprofessional manner against Evander Holyfield.” [New Release, footnote 11, p. 9]
But Fieger laughs off ethical violations and legal fines — they’re just part of the battle. And to him, the Kevorkian battle is over. Referring to Macomb, Wayne, and Oakland County prosecutors, Fieger told a Detroit Free Press reporter, “Carl Marlinga isn’t going to prosecute him. John O’Hair isn’t going to prosecute him. David Gorcyca certainly isn’t going to prosecute him. It’s over.” [Detroit Free Press, 8/2/07]
Michigan developments: Kevorkian’s unofficial body count keeps rising
Since last reported in the Update, three more bodied have been abandoned in motel rooms, with notes saying call Geoffrey Fieger for information. Those victims are:
· Janis Murphy, 40, of Henderson, NV, died 6/26/97 (day of Supreme Court ruling upholding state laws banning assisted suicide) — she had chronic fatigue syndrome and fibromyalgia (painful muscle disorder), both considered not terminal conditions.
· Dorinda Scheipsmeier, 51, of Oceanside, CA, died 7/2/97 — she had multiple sclerosis.
· Lynne Lennox, 54, of Lakewood, NJ, died 7/2/97 — she had multiple sclerosis.
Counting these last three victims, the total number of known Kevorkian-related deaths is 55.
Michigan developments: Assisted-suicide petition drive launched
A group called “Merian’s Friends” (named after Merian Frederick, Kevorkian’s 19th victim) have officially launched a campaign drive to qualify an initiative legalizing physician-assisted suicide for the 1998 statewide ballot. According to Ed Pierce, M.D., a retired Ann Arbor physician, “We people of Michigan have the right to have the choice of the time of their own demise.” [AP, 7/22/97] The group has until 11/15/97 to garner 350,000 signatures from registered Michigan voters in order to ensure that they end up with at least the needed 250,000 valid signatures. Pierce has said that it will take at least 10,000 volunteer signature gathers to get the needed signatures. Presently, the group only has 4,000 volunteers. [Detroit Free Press, 7/22/97]
The initiative, entitled “Terminally Ill Patient’s Right to End Unbearable Pain or Suffering,” is incredibly lengthy, taking up 11 legal size sheets of paper containing very small print. One organizer told reporters that they would not seek Kevorkian’s support. “We disagree about the safeguards,” he said. “We deal only with terminally ill people.” [Detroit News, 7/22/97]
Psychiatrists add to mounting evidence of Dutch plunge down euthanasia’s slippery slope
The 6/19/97 issue of the New England Journal of Medicine (NEJM) contained a study evaluating “physician-assisted death” in psychiatric practice in the Netherlands. The study found that “nearly two-thirds of the Dutch psychiatrists who responded to the survey considered assisted suicide for psychiatric patients acceptable.” In addition, a majority of the psychiatrists “could conceive of a situation in which they would be prepared to assist” in a psychiatric patient’s death. [J. Groenewoud et al., “Physician-Assisted Death in Psychiatric Practice in the Netherlands,” NEJM, 6/19/97:1800]
The study’s authors point to a 1994 Dutch Supreme Court decision to show the acceptability of assisted death for psychiatric patients. The Dutch Supreme Court ruled that a psychiatrist, Dr. Boudewijn Chabot, was medically justified and followed established euthanasia guidelines when he helped his physically healthy, but severely depressed, patient commit suicide. The patient was 50-year-old Hilly Bosscher, who had been depressed over the deaths of her only two children. This Dutch Supreme Court ruling essentially expanded the existing euthanasia guidelines to include unbearable mental suffering without physical disease as justification for doctor-assisted death. Referring to this case specifically, the study’s authors wrote that it is “the degree of suffering rather than its cause” that “is decisive.” [p. 1795]
In an accompanying editorial, two Oregon physicians, Linda Ganzini and Melinda Lee, questioned whether assisted death is “ever justified for patients whose intractable suffering is caused by a mental disorder, not by a terminal illness.” According to Ganzini and Lee, “A depressed person may articulate a coherent set of values and a convincing analysis of the benefits versus the burdens of continued life, even when hopelessness, poor self-esteem, and pessimism permeate the decision.” Furthermore, “there is no established threshold,” wrote Ganzini and Lee, “for determining whether a person is competent to choose suicide.” They suggest that, without such a standard, “the psychiatrist’s evaluation may reflect his or her personal values and beliefs about this contentious issue more than psychiatric expertise.” “That the majority of psychiatrists in the Netherlands endorse physician-assisted for intractable mental disorders,” the Oregon doctors wrote, “suggests that beliefs about what is permissible expand as a result of acculturation to changes in social policy.” [Linda Ganzini, M.D., and Melinda A. Lee, M.D., Editorial: “Psychiatry and Assisted Suicide in the United States,” NEJM, 6/19/97:1824-1826]
Related:
· In an earlier study conducted by Ganzini et al., it was found that only 6% of Oregon psychiatrists were very confident that they could determine in one consultation whether a patient, requesting physician-assisted suicide, had a mental disorder which impaired his or her judgment. This finding is most significant considering that, under Oregon’s permissive assisted-suicide law (Measure 16), a licensed psychiatrist or psychologist would be the final authority to determine, in a single consultation, if a patient had a mental disorder causing impaired judgment related to his or her assisted-suicide request. [Linda Ganzini et al., “Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide,” American Journal of Psychiatry, 11/96:1469-1475]
· In a recent issue of the Journal of the American Medical Association (JAMA), Dr. Herbert Hendin et al. analyze two studies, sponsored by the Dutch government in 1990 and 1995, on physician-assisted suicide and euthanasia practices in the Netherlands. Commenting on the fact that induced-death practices cannot be contained or regulated by euthanasia guidelines, Hendin wrote, “More slippery than the extension of euthanasia to more patients is the inability to regulate the process within established rules. Virtually every guideline set up by the Dutch — a voluntary, well-considered, persistent request; intolerable suffering that cannot be relieved; consultation; and reporting of cases — has failed to protect patients or has been modified or violated.” [Herbert Hendin, M.D., et al., “Physician-Assisted Suicide and Euthanasia in the Netherlands,” JAMA, 6/4/97:1721; emphasis added]
The Oregon Board of Medical Examiners has ruled that the actions of Corvallis physician, James Gallant, in caring for a 78-year-old comatose woman were illegal and unethical. Last year, the board filed a formal complaint against Gallant, accusing him of “active euthanasia” in the death of Clarietta Day. Day had suffered a usually fatal brain hemorrhage and was brought to Good Samaritan Hospital in Corvallis, OR. Before Day’s death, Gallant, without her knowledge or consent, ordered that two painkillers be administered every 5 to 10 minutes over a 4-hour period and that a magnet be placed over her pacemaker in an attempt to shut it down. Eventually, he ordered that Day be injected with a lethal dose of succinylcholine (a drug which paralyzes respiratory muscles). A male nurse, Gerald Keuneke, actually administered the lethal injection. (See Update, 7-8/96:8.)
On 7/17/97, the medical board suspended Gallant’s medical license for 60 days, issued a formal reprimand, and ordered Gallant to pay $6,371 in fines to cover the cost of the state’s investigation and hearing. In its report, the medical board explained that Gallant’s medical license had not been revoked because of mitigating factors. “It is clear that Dr. Gallant’s motive — misguided as it was — was to help his patient and her family,” the board wrote. Other mitigating factors included the fact that the lethal injection had originally been the nurse’s idea, not Gallant’s, and that Day had previously indicated that, if she were ever terminally ill, she would not want extraordinary means used to keep her alive. A decision by the Lane County district attorney’s office on whether Gallant will face criminal charges is still pending. [AP, 8/6/97; Corvallis Gazette-Times, 7/19/97:A1]
Florida: Dr. Ernesto Pinzon-Reyes
On 6/26/97, Dr. Ernesto Pinzon-Reyes was found not guilty of first-degree murder in the death of cancer patient, Rosario Guirrieri, 70. While the state argued that Pinzon had injected Guirrieri with potassium chloride to kill him, the defense insisted that Pinzon had used potassium chloride to relieve the patient’s pain and to slow down his heart rate. That claim was refuted by hospice physician Paul Southard, who testified, “If potassium is injected directly into someone’s veins, like someone on death row, it kills them.” But, the prosecution was dealt a devastating blow when the judge barred testimony from Highlands Regional Medical Center head nurse Ginger Caroll. Caroll was to testify that she had had a conversation with Pinzon after the patient died and that Pinzon admitted giving Guirrieri an injection of potassium chloride and then falsifying the medical chart. The judge barred Caroll’s testimony on a technicality: Pinzon’s comments to her were part of a peer review process and, as such, could not be used in a criminal trial to incriminate him. [St. Petersburg Times, 6/27/97; Tampa Tribune, 6/21/97; AP, 6/27/97, 6/17/97]
On 11/10/96, Dr. Nancy Morrison, an intensive care physician at Queen Elizabeth II Health Sciences Centre in Halifax, Nova Scotia, gave a lethal injection of potassium chloride to 65-year-old cancer patient Paul Mills. An internal hospital review found that the administration of potassium chloride to Mills was “outside the bounds of medical practice and was unacceptable.” Morrison, 42, has been charged with first-degree murder, has resigned from her intensive care job, but is still practicing medicine and remains on the faculty staff of Dalhousie University’s medical school.
Mills had late-stage throat cancer, and his family had asked that life support be withdrawn. But his widow, Dorice Lastowski, said she would never have gone along with a lethal injection. “I’m still shocked by it,” she said. “We took it for granted that they would take him off the life support and let nature take its course, but that did not happen.”
According to her attorney, Morrison has done nothing wrong, saying that Canadian doctors practice medicine in this kind of “gray area” all the time. But prosecutor Craig Botterill said, “This is a first-degree murder charge, and I’m arguing that she killed him.” The case is not expected to go to trial until next year. [Halifax Herald, 6/8/97, 7/22/97; Washington Post, 7/15/97:A13; Ottawa Citizen, 7/25/97]
England: Drs. Michael Irwin & David Moor
Two British physicians now claim that they have euthanized patients over the course of their long medical careers. Dr. Michael Irwin, chairman of the Voluntary Euthanasia Society and former U.N. medical director, announced that he had administered fatal doses to approximately 50 patients over his 40-year career. Dr. David Moor, a general practitioner, said that he had given lethal injections to 150 people over his 30-year career, two of them most recently during the second week of July. According to Moor, “I help whoever needs helping, I don’t know how many I have helped over the years… If anybody comes up with a terminal problem and I decide it’s time that they go, in discussion with them and their relatives, then they go. If they can’t express an opinion then by that point I’m happy to take on board the decision on their behalf. I think that’s my job.” [Electronic Telegraph, 7/21/97; UPI, 7/20/97; British Medical Journal, 7/26/97; PA News, 7/23/97]
After Moor’s announcement, authorities halted the cremation of one of Moor’s most recent patients, and post-mortem exams were performed. On 7/30/97, Moor was arrested and released on bail. It is unclear if any action will be taken against Irwin. [Electronic Telegraph, 7/28/97, 8/1/97]
