Ninth Circuit creates constitutional “right to die”
By a vote of 8-3, the U.S. Ninth Circuit Court of Appeals in San Francisco has overturned itself and ruled that Washington State’s 142-year-old anti-assisted suicide law is unconstitutional. The decision ultimately affects the nine Western states. In addition to Washington, those include Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Oregon — all of whom have laws or judicial precedents prohibiting assisted suicide. [New York Times, 3/8/96:A8]
Last March, a Ninth Circuit 3-judge panel issued a 2-1 decision strongly rejecting Washington District Court Judge Barbara Rothstein’s earlier ruling that terminally-ill, competent patients have a constitutionally protected right to have assistance in ending their lives. In response to that decision, attorneys for Compassion in Dying, a Seattle-based assisted-suicide advocacy group and a plaintiff in the original suit, petitioned the Ninth Circuit for a rehearing “en banc” (a rehearing before a larger panel). On 8/2/95, the court agreed to have an 11-judge panel rehear the case. (See Updates, 3-4/95:1, 9-10/95:3.)
The majority “en banc” ruling, issued on 3/6/96 and written by Judge Stephen Reinhardt, held that “there is a constitutionally-protected liberty interest in determining the time and manner of one’s own death,” and that “insofar as the Washington statute prohibits physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths, it violates the Due Process Clause of the Fourteenth Amendment.” [Compassion in Dying v. State of Washington, No. 94-35534, 1996 WL 94848 (9th Cir Mar 6,1996) at 3]
Judge Reinhardt relied heavily on interpretations and misinterpretations of U.S. Supreme Court decisions in two abortion cases, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), as well as Cruzan v. Missouri Dept. of Health (1990), the only case regarding termination of food and fluids to reach the high court to date. Regarding Cruzan, for example, Judge Reinhardt erroneously concluded that the Supreme Court, “by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one’s own death.” [p. 21]
But the Supreme Court in Cruzan did not assume or even suggest that there is a guaranteed liberty interest in assisted suicide. As noted constitutional law expert Yale Kamisar has pointed out,
“Quite the contrary. The Court asserted that a state has an undeniable interest ‘in the protection and preservation of human life’ and supported this assertion by noting: ‘[T]he majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.'” [Yale Kamisar, “Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia,” Address to McGeorge School of Law, Sacramento, CA, 4/21/94]
In fact, none of the Supreme Court justices disputed a point made by fellow judge Antonin Scalia in his concurring opinion in Cruzan, “that American law has always accorded the State the power to prevent, by force, if necessary, suicide.” [Quoted in, Yale Kamisar, “Are Laws against Assisted Suicide Unconstitutional?” Hastings Center Report, 5-6/93:32]
Yet, according to Judge Reinhardt, the state’s interest in protecting human life lessens for terminally-ill or comatose people:
“[T]he state’s interest is dramatically diminished if the person it seeks to protect is terminally ill or permanently comatose and has expressed a wish that he be permitted to die without further medical treatment (or if a duly appointed representative has done so on his behalf). When patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the state’s interest in forcing them to remain alive is clearly less compelling. Thus, while the state may still seek to prolong the lives of terminally ill or comatose patients or, more likely, to enact regulations that will safeguard the manner in which decisions to hasten death are made, the strength of the state’s interest is substantially reduced in such circumstances.” [Compassion in Dying v. Washington, p. 24]
This quote from the majority opinion clearly indicates that the created, constitutionally-protected right to die extends far beyond physician-assisted suicide for only the terminally-ill, competent adult, and includes those who are not competent to voluntarily choose death. Footnote 120 confirms that a third party through “substituted judgement” would be legally able to request death for an incompetent patient: “Finally, we should make it clear that a decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself.” [Footnote 120, p. 83]
Furthermore, the right to induced death assistance would not be limited to just doctors prescribing medication which the patient self-administers. According to Judge Reinhardt, “We recognize that in some instances, the patient may be unable to self-administer the drugs and that administration by the physician, or a person acting under his direction or control, may be the only way the patient may be able to receive them.” He further asserted, “We consider it less important who administers the medication than who determines whether the terminally ill person’s life shall end.” [p. 34] In footnote 140, Judge Reinhardt specifically listed those who, in addition to a doctor, would be considered acceptable death facilitators or medication administrators: a pharmacist, health care worker, family member, or any “persons who help the patient to his death bed….” [Footnote 140, p. 85]
The Ninth Circuit’s broad ruling obliterated any distinction between withholding or withdrawing of unwanted medical treatment (letting someone die) and the intentional provision of lethal medication (making someone die). Moreover, it summarily dismissed the ethical principle of double effect as applied to the provision of pain medication, as well as any argument remotely associated with the “slippery slope” concept. [pp. 25-29]
Regarding the possibility of people dying “as a result of errors in medical or legal judgement,” Judge Reinhardt wrote,
“[A]lthough life and death decisions are of the gravest order, should an error actually occur it is likely to benefit the individual by permitting a victim of unmanageable pain and suffering to end his life peacefully and with dignity at the time he deems most desirable.” [p. 27]
Many of Judge Reinhardt’s “findings” appear to be based more on a “better-dead-than-dependent-or-disabled” attitude than on legal precepts. For example, he wrote that a competent, terminally-ill adult has a “strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent.” [p. 20]
Judge Reinhardt did not limit his comments to only the case at hand (Compassion in Dying v. Washington). He over-stepped his authority and took the opportunity to essentially “rule” on another case (Lee v. Oregon), which has been appealed to the Ninth Circuit, but has not yet been heard by that court. Commenting on District Judge Michael Hogan’s decision that Oregon’s new law permitting assisted suicide (Measure 16) is unconstitutional, Reinhardt wrote, “Judge Hogan clearly erred.” [p. 40]
Last year, numerous states across the country rejected Measure 16-like bills. Already this year, clones of Measure 16 were defeated in New Hampshire and Colorado, and, in California, another such measure never even survived long enough for a vote in the House Judiciary Committee. Currently, South Carolina’s legislature is considering a bill to outlaw assisted suicide, and Iowa’s legislature just passed a law to prohibit the practice. (See pp 9-10 of this Update.)
Criticism of the Ninth Circuit and its ruling has been plentiful. According to Erwin Chemerinsky, professor of constitutional law at the University of Southern California, “In the last 10 years, the Ninth Circuit has probably been reversed by the Supreme Court more than any other [court].” Douglas W. Kmiec, a visiting law professor at Pepperdine University, wrote in the Los Angeles Times, “The U.S. Supreme Court has shown little hesitancy in reversing this judge [Reinhardt] in the past…the court should do so again.” Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, voiced his concern that “as a matter of public policy, [the decision] puts us in the bizarre situation of staggering toward becoming a society that guarantees the right to die at the hand of a physician, with no right to treatment at the hand of a physician.” [Los Angeles Times, 3/8/96; New York Times, 3/8/96:A8]
IAETF executive director Rita Marker wrote for USA Today,
“Cloaked in the language of compassion and choice, the judges looked down from their benches and stripped legal protection from those whom they consider unworthy of life…. They paid no attention to the fact that many are routinely denied access to care that would comfort or cure. How ironic, then, that the court has declared that there is one ‘treatment’ that should be considered a right — the right to a deadly overdose.” [USA Today, 3/8/96:11A]
California Medical Association chief executive Dr. John C. Lewin issued a stinging statement regarding the “tremendous potential of abuse” generated by the Ninth Circuit’s ruling. “In today’s for-profit health care world,” Dr. Lewin said, “one could imagine in the future a corporation wanting to save money on hospital beds by hastening a patient’s death.” That concern was echoed by Dr. Victor Dorodny, president of the Pacific division of the National Association of Managed Care Physicians. “I’m sure there will be pressure from the business side,” Dr. Dorodny stated. “Something like 70% of expenditures occur in the last six months of life.” [Los Angeles Times, 3/8/96:A1] The National Hospice Association was also sharp in its opposition to the Ninth Circuit’s ruling, calling it “socially devastating and legally appalling.” [PRNewswire, 3/7/96]
A lead editorial in the San Francisco Chronicle voiced the following concern:
[B]road legalization of assisted suicide would place society on a slippery slope that could demean the sanctity of human life, and jeopardize those who are old, sick, severely handicapped, mentally ill or otherwise inconvenient to those around them…. When physicians may legally provide an overdose of medication to a patient in extremis, the differences between suicide and homicide become uncomfortably murky.” [San Francisco Chronicle, 3/8/96:A22]
It is expected that the Ninth Circuit’s decision will be appealed to the U.S. Supreme Court. Washington State has 90 days from the time the decision was issued to file a petition for cert with the Supreme Court. Meantime, some right-to-diers, like the Hemlock Society’s co-founder Derek Humphry, have concluded that West Coast physicians are now free to intentionally prescribe lethal drugs. [PRNewswire, 3/13/96]
IAETF video wins two national awards
The International Anti-Euthanasia Task Force’s compelling 15-minute video, Euthanasia: False Light, has won two prestigious national Telly Awards. The highly-respected Telly Awards were established in 1980 and showcase outstanding television and video productions. The IAETF’s educational video was categorized as a non-broadcast film and won in the “social issues” category. Over 9,000 total entries were submitted and judged.
Produced by the California firm Cavalier & Associates, Euthanasia: False Light looks at euthanasia and assisted suicide through the eyes of five people — three patients diagnosed as terminally ill, a doctor, and a hospice nurse — all of whom speak from their hearts, not from a script. The fast-moving, informative film is narrated by actor Joseph Campanella. “Winning this coveted award in the ‘social issues’ category is especially significant,” said producer Chuck Cavalier. “It shows that the video really moves people, even film judges, to see the very real personal and societal dangers inherent in the practices of assisted suicide and euthanasia.”
Kevorkian acquitted of violating expired statute
The statute had expired, the judge was biased in his favor, the jury was confused by the letter of the law and a deceptive lawyer’s word games, and the jury foreman supported assisted suicide. It was the perfect formula for a “not guilty” verdict — which was exactly what Dr. Death wanted. On 3/8/96, a jury of seven women and five men found Jack Kevorkian not guilty in the 1993 assisted-suicide deaths of Merian Fredrick, 72, and Dr. Ali Khalili, 61. The deaths had occurred when a temporary statute prohibiting assisted suicide was in effect. The ban, which at the time had the overwhelming support of the state legislature and the governor, was hastily enacted in 1993 in hopes of stopping Kevorkian from claiming anymore lives. It temporarily made assisting a suicide a felony by statute in MI, while a 22-member “death and dying” committee studied the issue. The law was then challenged on constitutional grounds, but the MI Supreme Court ultimately upheld the statute as validly enacted and constitutionally sound. The state’s highest court also determined that, even without an explicit statute banning assisted suicide, aiding in another’s suicide is a felony in MI under common law. [See Update, 1-2/95:1]
The fact that the temporary statute was allowed to expire in late 1994 without further action by the legislature was a factor in Kevorkian’s acquittal. Another factor was the wording of the statute. Kevorkian attorney Geoffrey Fieger was able to confuse the jury regarding a section of the statute which states that a person is not guilty of criminal assisted suicide if the person’s intent was to “relieve pain and discomfort and not to cause death.” Fieger’s defense strategy was to convince the jury that his client’s only intention was to relieve suffering. The fact that carbon monoxide (Kevorkian’s poisoning gas of choice) has absolutely no legitimate pain-relieving or therapeutic value whatsoever and that Kevorkian admitted on the stand that he would not give the gas to any suffering patient unless that patient wanted to die, was apparently lost on the jury. [The Detroit News, 3/6/96:1D; New York Times, 3/6/96:A16]
Also working against a guilty verdict, was Judge Jessica Cooper’s obvious bias in support of Kevorkian. Her rulings, comments in chambers, and instructions to the jury were so prejudicial, that Oakland County prosecutors were filing appeals with the MI Court of Appeals on a regular basis. The Appeals Court ruled in support of the prosecution on a regular basis as well. In one such ruling, the appellate judges found that Judge Cooper erred in her opening instructions to the jury. She told the jurors that the prosecution had to prove that Kevorkian’s only intention was to cause death, not relieve pain and suffering. The Appeals Court ordered her to inform the jury that prosecutors only had to prove that Kevorkian provided the means of death or participated in the act of causing death. Instead of explaining the new instructions in language the jury could understand, Judge Cooper read verbatim from the Appeals Court’s order which contained numerous legal terms jury members would not understand. She also did not inform the jury that her earlier instructions were erroneous. Confused over the conflicting instructions, jurors asked that the new instructions be reread. Judge Cooper refused, saying she would reread them at the trial’s end. When prosecutors again appealed to the higher court, the appellate judges wrote out two pages of instructions in plain English and ordered her to read them to the jury. [Detroit Free Press, 2/27/96:1B; AP Wire Service, 2/28/96]
The next significant factor in Kevorkian’s acquittal surfaced when the jury was in deliberation. What most trial watchers did not know was that the influential man elected as jury foreman was a United Methodist bishop who, in 1993, wrote in the statewide church publication, Michigan Christian Advocate, that laws regarding assisted suicide should be changed. In that article, Bishop Donald Ott concluded that “choosing the time of one’s death in a terminal condition can be an expression of faithful living.” Prosecutors said later that they knew he supported assisted suicide, but they were only allowed a limited number of juror challenges, and Ott had claimed during the jury selection process that he could set aside his personal opinions and decide the case based on the law. Geoffrey Fieger, who had used a jury consultant firm to scope out information on prospective jurors prior to selection, claimed he knew nothing of Ott’s stand on assisted suicide. “I had never seen the man or heard of the man before,” Fieger told reporters. [Detroit Free Press, 3/9/96; New York Times, 3/9/96; Detroit News, 3/10/96:4A]
Kevorkian’s legal problems are not over, however. He is scheduled to go on trial April 1 for the 1991 deaths of Sherry Miller and Marjorie Wantz. This time, Kevorkian is being charged, not under an expired statute, but under common law as determined by the MI Supreme Court. Of all the 27 known Kevorkian-assisted deaths, the Wantz case may be the strongest case to argue in court. Kevorkian claimed that she had excruciating pelvic pain, but he never examined her. An autopsy found that there was nothing physically wrong with her.
Kevorkian and His Poisonous Gas: By Eric M. Chevlen
When the coroner was called to examine the body, the first thing he noticed was the bright pink blush of the cheeks. It was not the glow of health. It was the artificial pink that only carbon monoxide gives to its victims. And in Oakland County, Michigan, death by carbon monoxide suggests only one perpetrator: Jack Kevorkian.
As an expert in cancer pain management, I was called on by the prosecutors to review the medical records of one of Kevorkian’s victims, obtained from a police search of the unlicensed pathologist’s home. I also reviewed the videotape that Kevorkian had made of his interview with the victim, shortly before his death by inhalation of poisonous gas.
I thought I had grown used to seeing death. But the deaths that I have seen so often were far different from the images that flickered in this amateur videotape. The deaths I have witnessed were almost always those of people whose pain was controlled, people surrounded by family, often literally holding their hands as their lives slipped away. This death, with Kevorkian’s aid, was to be little different from putting the family dog to sleep.
The videotape seemed to be filmed in a cheap hotel room. In it I saw a man with advanced myeloma (bone cancer) asking for assistance in suicide. He appeared to be a textbook example of depression in the face of medical illness and inadequately treated pain: the flat voice, the lack of eye contact, the moving description of how life no longer yielded any pleasure, and even the veiled contempt he expressed for his own disability. I have seen many such patients in my career. In every case, the request for suicide was a symptom of a depression, a treatable complication of cancer. In every case, proper treatment of the patient’s pain, accompanied by emotional support and occasionally antidepressants resulted in reversal of the wish to be killed. As I watched the taped interview, I felt like shouting at the eerily jovial “doctor” on the screen, “He’s depressed, you idiot! Treat him, don’t kill him!”
But of course I already knew that hours after the videotape was made, the myeloma patient had joined the long list of those who had died “in the presence of” Jack Kevorkian.
The taped interview itself reminded me of carbon monoxide. Just as carbon monoxide is colorless and odorless, resembling healthy air, so this encounter between Kevorkian and his victim had the simulacrum of a genuine medical interview. But when Kevorkian asked the victim whether or not he had been experiencing pain, it was not with the intent to find a better medicine to treat it. It was to justify the use of the carbon monoxide he had obtained even before meeting the man. When Kevorkian asked about the victim’s anguish and wish to die, it was not to assess or relieve the obvious depression. It was to document that his “assistance” was given only with the victim’s consent.
The trial too has carried the taint of carbon monoxide. The judge’s initial instructions to the jury were such a distortion of the law that an appellate court ordered her to change them even while the trial was still in progress. And the defense attorney, whose rudeness to witnesses and arrogance had led some courtroom observers to liken him to an “overgrown schoolyard bully with a bad haircut,” argued with a straight face that
Kevorkian’s purpose in supplying the poison gas had not been to kill, but rather to relieve pain and suffering. It all seemed like law and pretended to be a search for justice, but, like carbon monoxide, was but a perversion of what it struggled to resemble.
Somehow all this facade and mimicry is perfectly appropriate for a trial that revolves around the question of euthanasia. For euthanasia itself, in its promise of “a good life, a good death,” appears to be the rose, but in fact is the serpent beneath it. Euthanasia does not put an end to burdensome treatment; it puts an end to burdensome people. It does not seek to relieve pain and suffering; it seeks to eliminate the desperate person whose inadequately treated pain and depression has led him to want suicide. Euthanasia does not care for the disabled; rather it shows contempt for them by saying that their lives are not worthy of living.
How ironic! In his choice of carbon monoxide as his agent of death, Jack Kevorkian has stumbled on the perfect metaphor for the euthanasia movement. It has no odor; it appears to be simply so much air. But all it leaves in its wake is a pink-cheeked corpse.
Eric M. Chevlen, M.D., is a cancer specialist, a board certified pain control specialist, and a medical consultant to the IAETF. He testified as an expert witness for the prosecution in the most recent Kevorkian trial. Dr. Chevlen is the director of Palliative Care at St. Elizabeth Health Center in Youngstown, Ohio.
Honor thy father: A Klooster case update
A former California physician, who was diagnosed with Alzhiemer’s disease six years ago, is now at the center of an ugly two-state court battle that has pitted judge against judge and family member against family member.
As reported in the last Update (11-12/95:1), Dr. Gerald “Chip” Klooster II, a Michigan osteopathic physician, found out that his mother, Ruth, was making plans to end his father’s life with the help of Jack Kevorkian. If Chip had not taken action by removing his father from his mother’s control, the elder Dr. Gerald Klooster, who is not competent to make informed decisions, might have unknowingly been Kevorkian’s 27th victim. Telephone records indicate that last November, while Chip’s parents were vacationing at the Florida home of longtime friends, Joseph and Teresa Rodriguez, Ruth, a member of the Hemlock Society, made four calls to Kevorkian, three to Neal Nicol (Kevorkian’s close associate whose home has been the site of a number of assisted deaths), and two calls to the Concord Inn (a motel near Nicol’s house). The IAETF has confirmed that a reservation at the Concord Inn in the name of Gerald Klooster was made for November 18, with a departure date of November 19.
The Rodriguez couple alerted Chip to the fact that his father’s assisted death may be imminent. Chip immediately flew to Florida, brought his father back with him to Michigan, and filed for legal guardianship there. He also took his father to Dr. Robert Fawcett, a psychiatrist, and Dr. Karen Lauze, a neurologist, for a competency evaluation. Both doctors found that Gerald, Sr., was indeed incompetent and “would not be able to give informed consent regarding ‘assisted suicide.'” They also noted that he “had no recollection of discussions about seeing Dr. Kevorkian, and when asked if he wanted to die, he firmly said no, that he wanted to live.” [Psychiatric Evaluation of Gerald Klooster, Sr., 11/19/95]
Michigan Probate Judge Frederick Mulhauser immediately granted Chip temporary custody of his father pending a formal hearing. Shortly after, however, California Probate Judge William McKinstry granted temporary custody to Chip’s sister, Kristin Hamstra, stating that Chip’s conduct in taking his father to Michigan made him an inappropriate candidate for guardianship. [California Superior Ct., In the Matter of Gerald Klooster, Sr., No. HO23466-9. 12/1/95, Transcript, p. 99] Judge McKinstry gave Kristin custody in spite of her testimony that she and her three brothers living in California knew about their mother’s assisted-suicide plans and Kevorkian. [p. 28] They all knew, but only Chip, a Michigan resident, had taken action to protect his father.
In his ruling, Judge McKinstry deferred to the Michigan court, stating that if, after conducting its hearing, that court “empowers Gerald Klooster II in Michigan to fix the temporary residence of Gerald Klooster, Sr., then that prior order controls… I am not vacating or sitting in review in any fashion of the court in Michigan.” [pp. 100-101]
In December and January, Michigan Judge Mulhauser spent five days conducting a fully-contested hearing, with testimony given by both the California and Michigan family members and Joseph and Teresa Rodriguez from Florida. Ruth Klooster, however, refused to answer questions, citing the Fifth Amendment protection against self-incrimination.
Judge Mulhauser issued his findings on January 23. He ruled in favor of Chip, stating, “Chip Klooster was apparently the only person who felt bold enough to act. Through his efforts, it is not too dramatic to say that his father’s life may have been spared.” The judge rejected a request by Kristin to allow her father to return with her to California, where she would act as his guardian. It was argued that Ruth no longer intended to pursue any assisted-suicide plans. But Judge Mulhauser ruled that it would not be safe to return Gerald, Sr., to California because his wife could continue her “determined plan” to persuade him to end his life. [The Detroit News, 1/24/96:6C; San Francisco Chronicle, 1/24/96:A3; Contra Costa Times, 1/23/96:6B, 1/24/96:1A] “This court,” Mulhauser said, “has seldom seen anyone less intimidated by public scrutiny, the court process, or pressure from friends and family than Ruth Klooster.” That observation was substantiated by Ruth’s close friend, Teresa Rodriguez, in an interview with newsman Morley Safer on CBS’ 60-Minutes. “You don’t stop Ruth,” Teresa said. “She has to prove to Chip that she has the last word.” [“Family Values,” 60-Minutes, 2/25/96]
Nonetheless, Judge Mulhauser’s ruling angered California Judge McKinstry. On February 16, despite his earlier deferral to the Michigan court, Judge McKinstry ordered Chip to return his father to California by 3/1/96 or face contempt of court charges. Judge McKinstry also said that, by keeping his father in Michigan, Chip’s behavior amounts to elder abuse, obstruction of justice, false imprisonment, and a violation of his father’s civil rights. [San Francisco Chronicle, 2/21/96:A11]
In response to the judge’s order, Chip issued a statement: “I am utterly amazed that Judge McKinstry accused me of elder abuse because I saved my father’s life. My father wants to live. My mother actively plotted his death. Yet, according to the judge, it was not my mother who violated my father’s civil rights but me, when I thwarted her plans.” He added, “I wish nothing more than to protect my father’s life. I mean no disrespect to the California court, but I love my father, he wants to live, and unfortunately, my family has shown themselves untrustworthy to protect his safety.” Chip also pointed out that Michigan is his father’s original home state, where his dad’s brothers, sister, son and grandson live, and where his father can be lovingly cared for. [Statement of Gerald (Chip) Klooster II, 2/17/96]
The California and Michigan courts handling the Klooster case are on a collision course. Michigan Judge Mulhauser responded to Judge McKinstry’s order with an order of his own: Chip Klooster is currently not permitted to take his father out of the state of Michigan. When Chip honored that order and did not bring his father to California by 3/1/96, Judge McKinstry found Chip in contempt of court, charged him with obstruction of justice, issued a warrant for his arrest (with bail set at $50,000), and ordered Kristin to file a lawsuit against him in federal court. [California Superior Ct., In the Matter of Gerald Klooster, Sr., No. HO23466-9, Proceedings of 3/1/96, p. 4]
Then, on 3/4/96, Michigan Judge Mulhauser issued a detailed case summary asserting the Michigan court’s jurisdiction in this case. He affirmed that Chip’s actions were protective in nature and that the Michigan court “has found that Chip did not kidnap his father and based on the testimony of Trooper Sundmacher, together with other evidence… the Court has specifically found that the ward [Gerald, Sr.] entered the state voluntarily and that no plan existed on the part of Chip to prefer Michigan as a forum.” [Case Summary, 7th Probate Court for the County of Emmet, MI, File No. 95-01060-GD, 3/4/96, p. 16]
Judge Mulhauser also expressed concern regarding Kristin’s inability to withstand her mother’s manipulation and her apparent acceptance of Ruth’s story that she only contacted Kevorkian to get information and has abandoned any and all plans for her husband’s death. Regarding this, Judge Mulhauser wrote, “the extensive evidence concerning Ruth’s lack of forthrightness, her deceptiveness and active misdirection, has not been fully aired outside Michigan nor has Kristin’s lack of insight into her mother’s personality and the troublesome dynamics of their relationship been examined.” “Because it only takes a moment to end life and because that decision or act cannot be reversed,” he concluded, “a Court cannot release a protected person to the care of someone who has attempted harm unless that person no longer presents a risk…. There is overwhelming evidence in the record of this case that Ruth intended to pursue the ending of Gerald Klooster’s life… For Kristin to still believe her mother’s story in the face of such compelling evidence only emphasizes the need that Kristin has for reflection and the further need to demonstrate that she can deal with her mother with emotional distance…. Only a person with this type of wariness can effectively protect Gerald Klooster.” [pp. 18-19]”
The friction between the California and Michigan courts is only surpassed by the hostility of Klooster family members. Kristin’s attorney, Mark Petersen, said that Kristin may also seek damages against Chip in her federal lawsuit because Ruth has had to endure an extended separation from her husband. Craig Klooster, Chip’s oldest brother and a podiatrist in California, called Chip a “criminal” and told a San Francisco Chronicle reporter that Chip’s real motivation is to get his hands on their father’s estate. “We have a young man here who wants his inheritance early,” Craig said. “It’s a money issue. It’s a power issue. It’s revenge against his mother.” But Chip told the same reporter, “They’ve [the CA Klooster family] offered me $100,000 to send my father back to California. My father is not to be bought and sold.” [San Francisco Chronicle, 2/28/96:A1, 3/2/96:A1; Contra Costa Times, 3/2/96:1A]
Comment: Craig’s allegation that his brother is greedy for the Klooster inheritance is at odds with the fact that Chip’s actions are indicative of a son fighting to save his father’s life. If what Chip wanted was an early inheritance, as Craig contends, then all he had to do was remain silent and go along with his mother and siblings — and Kevorkian.
There is a temptation to view this case as a soap opera-like drama. But the real issue can easily get lost in the quest for who-said-what-about-whom. A recent San Francisco Chronicle editorial on the Klooster matter, however, managed to put it into proper perspective. “The tragic tug-of-war,” the editorial stated, “illustrates the Pandora’s Box of horrors that can be unleashed by the prospect of assisted suicide, and raises troubling moral and legal questions.” [“An Alzheimer’s Dilemma,” San Francisco Chronicle, 2/29/96:A16]
IAETF submits brief on the constitutionality of Oregon’s assisted-suicide measure
The IAETF has submitted an amicus curiae brief to the Ninth Circuit Court of Appeals in support of Federal District Judge Michael Hogan’s 8/3/95 ruling that Oregon’s Measure 16 violates the equal protection clause of the U.S. Constitution. Hogan also issued a permanent injunction barring the assisted-suicide measure from taking effect. The unprecedented new law would have allowed doctors to prescribe lethal drugs with the intention of ending patients’ lives. Supporters of the measure appealed Hogan’s decision to the Ninth Circuit in San Francisco. (See Updates, 1-2/95:3, 3-4/95:4, 9-10/95:1.)
The following are a few excerpts from the IAETF’s 35-page brief:
(Note: the terms “Appellants” and “Intervenors” refer to those supporters of Measure 16 who are appealing Hogan’s ruling.)
“The District Court has rightly found that Measure 16 singles out one group of individuals and excludes them from the protection that Oregon laws provide for others. That group, described as the ‘terminally ill,’ includes individuals who are among the most vulnerable people in society. Yet, at the very time when protection and care both for and about them should be the greatest, Measure 16 would permit such individuals to be abandoned.” [IAETF Amicus Brief, Lee v. Harcleroad, U.S. 9th Cir. Ct. of Appeals, p. 2]
“Appellants acknowledge that Measure 16 is a ‘controversial experiment.'(1) That is an understatement. This experiment is one which has broad, radical implications for all of society and which — contrary to arguments of Appellants — would actually undermine, rather than promote, any legitimate state interest. The ‘experiment’ is intended to serve as a means for transforming the state’s long recognized legitimate interest in protecting the lives of its citizens into an unprecedented state sanction for the destruction of life, based upon arbitrary and ever widening categories of those eligible for hastened death. Indeed, that Intervenors intend Measure 16 to be but the first step in a broader social experiment was specifically noted by the District Court.”(2) [pp. 6-7]
Intervenors attempt to deny [the] discriminatory import of Measure 16 by claiming that the Shakespearean question, ‘To be, or not to be?’ is applicable ‘not only for moody Danish princes but everyone alive’ and that some with a ‘joyless, hopeless, and degrading’ existence, should receive ‘help in settling off to sleep.'(5) Notwithstanding Intervenors’ attempts to apply a literary gloss, the brutal reality remains: Measure 16 is not about “settling off to sleep.’ It is about conducting a ‘controversial experiment’ in which the state would permit and participate in what amounts to human experimentation — experimentation in which death producing compounds are prescribed for a particularly vulnerable class of citizens.” [p. 23]
“Experts in suicidology explain that, in despairing individuals, ‘the desire to die and the desire to find life worth living teeter in balanced opposition until something tilts the equilibrium.'(6) If health professionals and family members agree with the self-destructive impulse and if the state abandons its interest in preventing suicide, the crucial shift would occur. That shift would place every vulnerable person who has been diagnosed or misdiagnosed with a life-threatening condition on a downhill course that terminates in the grave…. As Eric Severeid observed, ‘The membrane holding civilized life is thin. There is no limit to man’s inhumanity to man unless limits are imposed.'(7) Laws impose these limits. They do not mandate how citizens feel or believe, but they wisely regulate behavior…. Measure 16 would place the full force of the state’s authority and societal pressure on ‘terminally ill’ individuals to die sooner, rather than later, by implying that they no longer belong within the community of citizens that the state has any interest in protecting. Such abandonment never has been — nor should it ever be — a valid public policy.” [pp. 32-33]
Notes:
1 Appellants Brief at 30.
2 Lee v. Oregon, 891 F. Supp. 1429, 1232, (D.Or. 1995).
5 Id. at 29-30.
6 C. Gill, Suicide Intervention for People with Disabilities: A Lesson in Inequality, 8 Issues in Law & Medicine 37, 46 (1992).
7 K ristallnacht 1938-1988 (PBS television broadcast, Nov. 9, 1988).
Editor’s note: Anyone interested in obtaining a copy of the IAETF’s 35-page brief, please send a request plus $7.50 for postage and handling to: IAETF, P.O. Box 760, Steubenville, OH 43952.
States grapple with assisted suicide
- New Hampshire rejects assisted-suicide bill
On 1/4/96 New Hampshire’s House of Representatives overwhelmingly defeated HB 339, a bill (almost identical to Oregon’s Measure 16) which would have legalized assisted suicide. This was the third attempt by right-to-die advocates in that state to pass such a measure. Despite all their efforts, the bill was resoundingly rejected by a vote of 256-90. An earlier attempt to table the bill for a future vote also failed by 220-125. Many believed that the bill would likely pass in the House since that branch of the state legislature is thought to be very liberal, particularly with regard to social policies. Last October the House Judiciary and Family Law Committee recommended passage of the bill by a vote of 12-7 and re-referred the measure for a full House vote in January 1996. This was the first time any state legislative committee had approved an assisted-suicide bill.
The inevitable abuses which would result from legalizing assisted suicide were clearly on the minds of some legislators. “Although the intent of the bill may be humane, the chances of abuse are high,” commented Rep. John McCarthy. “Assisted suicide is not freedom to choose… it’s freedom to be killed,” he added. Rep. Richard Wasson, who also opposed the bill, said, “I bet I could go into any nursing home or hospital and convince five or six people that they would be better off if they passed on.” [Manchester Union Leader, 1/5/96:A1] An editorial, which appeared in the Manchester Union Leader the day before HB 339 was defeated in the House, was equally critical. “All the high-minded rhetoric in the bill’s language about ‘death with dignity’ notwithstanding, this misguided legislation is about killing and assisting killing…. Of course a humane society cares deeply for those in pain or facing a fatal disease. But encouraging and assisting the ill to kill themselves — rather than comforting them and ameliorating their pain — is a step toward barbarism. It is but a short way from giving the terminally ill the ‘right’ to kill themselves, and asserting their duty to do so.” [Manchester Union Leader, 1/3/96]
- Colorado defeats “Dignity in Death” measure
A legislative committee in Colorado has also rejected a Measure 16-like assisted-suicide bill — for the second time. Last year, State Rep. Peggy Lamm, the sister-in-law of former Colorado governor Richard Lamm, attempted to get her “Dignity in Death” Bill (HB 1308) passed by the House Committee on Health, Environment, Welfare, and Institutions (HEWI), but the committee voted down the measure 9-2. This year, Lamm reintroduced virtually the same bill, only this time it carried the number HB 1185. There was another significant change as well. Lamm’s first bill, if passed by the legislature, would have put the assisted-suicide measure up to a vote of the people, whereas, if this year’s version (HB 1185) had passed, it would have gone directly into law. Lamm told reporters that she made that change because she realized that couching the measure as a “let’s ask the people” bill would not have changed the minds of her legislative colleagues who were philosophically opposed to the bill. Besides, a ballot measure would be too divisive and expensive, she said. [Boulder Sunday Camera, 2/4/96:1D] On 2/5/96, HB 1185 met the same fate as its predecessor HB 1308. The HEWI rejected the measure by a vote of 7-4. Despite the loss, Lamm was encouraged by what she perceives as a closer vote margin and has stated that she will continue to reintroduce some version of the measure each year. [The Colorado Statesman, 2/9/96:5]
- Florida’s assisted-suicide law challenged
Florida’s American Civil Liberties Union (ACLU) and the Hemlock Society of Florida are being persistent in their joint attempt to overturn Florida’s law banning assisted suicide. Since 1994, Hemlock’s Florida chapter has been advertising in its newsletter for terminally-ill patients as well as doctors who would be willing to serve as plaintiffs is a lawsuit challenging the constitutionality of that 127-year-old statute. (See Update, 9-10/94:2.)
Last December, it appeared they had found their “test case” plaintiffs: patient, Eric Straumanis, Ph.D., and doctor, Cecil McIver, M.D. The duo filed suit against the state and the state Board of Medicine, seeking to prevent the prosecution of Dr. McIver if he helped Straumanis die at home. But Straumanis, who had cancer, died before the case could be heard, rendering the case moot. [The Palm Beach Post, 12/28/95:1A; Fort Lauderdale Sun Sentinel, 12/28/95:1A; Reuter News Service, 1/4/96] Now the ACLU and Florida Hemlock have come up with three plaintiff patients, who, along with Dr. McIver, have filed a new lawsuit in Palm Beach County Circuit Court. [Reuter News Service, 2/16/96]
- South Carolina and Iowa take measures to outlaw assisted suicide
A bill which would make assisted suicide a felony has been introduced in the South Carolina legislature. HB 4377 would amend the state penal code, making it a felony for a person to intentionally provide “the physical means by which the other person attempts to commit suicide” or participate “in a physical act by which the other person attempts to commit or commits suicide.” HB 4377 is currently before the House Judiciary Committee.
The Iowa legislature has passed a bill prohibiting assisted suicide. The governor is expected to sign the bill into law. SB 2066 makes it a class “C” felony “if the person intentionally or knowingly assists, solicits, or incites another person to commit or attempt to commit suicide, or participates in the physical act by which another person commits or attempts to commit suicide.” The penalty for assisting a suicide is up to 10 years in prison and a $500 to $10,000 fine. The bill also allows for the consideration of “mitigating circumstances” at a pre-sentencing hearing.
Doctors in two states polled on assisted suicide
According to abstracts from two separate surveys, published in the 2/1/96 issue of the New England Journal of Medicine, a majority of physicians in Oregon and Michigan favor legalizing physician-assisted suicide. In actuality, however, the surveys’ findings are not that cut and dry.
While 60% of the 2,761 Oregon doctors who responded to a mail survey supported legalization of assisted suicide in some cases, most Oregon doctors have serious reservations about implementing the practice. Fifty percent (50%) said they were not confident they could accurately predict if a patient had less than six months to live (a requirement under Oregon’s Measure 16). Moreover, almost one-third of the respondents were not sure they could recognize depression in patients requesting death, and more than 90% of the doctors feared that patients would ask for assisted suicide rather than be a burden on others. Eighty-three percent (83%) thought that patients may opt for assisted-suicide because of financial pressures. [NEJM, 2/1/96:310]
Another mail survey in Michigan — co-authored by assisted-suicide proponent Howard Brody, M.D., and supported by a grant from the Blue Cross and Blue Shield of MI Foundation — presented two “plans” for legalizing physician-assisted suicide. Those “plans” assured respondents that strict safeguards would be in place and operational, and that only mentally-competent, depression-free, terminally-ill patients with “unrelenting pain” would ever be assisted to die. Given those “idyllic” theoretical plans, 56% of the 1,119 respondents supported legalization of assisted suicide, 37% favored a ban, and 8% were uncertain. When asked “whether a physician should ever be allowed to take the final action in response to a patient’s request for assisted death,” 35% opposed “any form of physician-assisted death or suicide, 15% supported some forms but only if the patient “takes the final action,” 27% supported doctors “taking the final action” but only if the patient could not, 17% supported both doctors and patients “taking the final action,” and 5% were uncertain. [NEJM, 2/1/96:303]
Commentary: No Blank Bullets: By Nancy Valko
Ready… aim… fire!
All the B-movie scenes I watched as a child flashed through my mind when I heard that a convicted murderer had been recently executed by firing squad. My visceral reaction was to cringe, instantly imagining the terror of being blindfolded and waiting for the bullets to hit. What I couldn’t imagine, though, were the feelings of being one of the men called to pick up and aim a piece of cold, hard steel at another human being. Would the man cope by pretending it was just another round of target practice? Would he try to remember the details of the murders and the tears of the victims’ families to muster the outrage that such crimes call for? What did he feel after the execution — sadness or satisfaction?
I was not surprised to later learn that one of the firing squad guns contained only blank bullets. In such circumstances, it is sensible to protect each executioner from the certain knowledge that he personally ended another’s life. In the more common lethal injection executions, the process is said to include at least two people and two buttons to start the process. Again, the procedure for legally terminating another life tries to protect those whom society asks to perform the awful task.
It is ironic, therefore, that society is considering the addition of yet another kind of execution to the legal list — assisted suicide — but this time without the blank bullets.
Few people would seriously consider legalizing relative– or family-assisted suicide. The inherent dangers of this type of private killing are much too obvious. Thus, the goal must be physician-assisted suicide or, more accurately, health care professional-assisted suicide, since nurses also must necessarily be involved when the assisted suicide occurs in a health facility or home health situation. We doctors and nurses are the ones society is now considering asking to perform the act of terminating lives, but unlike the firing squad or the lethal injection team, we will know and have to live with the certain knowledge that we caused death.
It is doubly ironic that when a convicted murderer tries to discourage efforts by lawyers to stop his or her execution, this is considered as a sign of stress or mental disorder, while a sick person’s willingness to die is considered an understandable and even courageous decision! How do we reconcile the two views that killing is the ultimate punishment for a convicted murderer and, at the same time, the ultimate blessing for an innocent dying or disabled person?
Both the American Medical Association and the American Nurses Association have recently issued strong statements against assisted suicide and euthanasia. While acknowledging the very real deficiencies too often found in care at the end of life, these organizations call for more education and access to help instead of the simple but dangerous option of killing terminally-ill or severely-disabled people or helping such people kill themselves. It is eminently logical that our concern for life should not be limited to just the curable.
And, although some polls show that a significant number of doctors and nurses, like the general public, say they could support assisted suicide in a hypothetical case, when faced with the realities and ramifications of legalizing the practice, most express deep concerns and fears regarding its implementation.
Society has long insisted that health care professionals adhere to the highest standards of ethics as a form of protection for society. The vulnerability of a sick person and the inability of society to monitor every health care decision or action are powerful motivators to enforce such standards. For thousands of years doctors (and nurses) have embraced the Hippocratic standard that “I will give no deadly medicine to any one, nor suggest any such counsel.” Should the bright line doctors and nurses themselves have drawn to separate killing from caring now be erased by legislators or judges?
As a nurse, I am willing to do anything for my patients — except kill them. In my work with the terminally ill, I have been struck by how rarely these people say something like, “I want to end my life.” And the few who do express such thoughts are visibly relieved when their concerns and fears are addressed and dealt with instead of finding support for the suicide option. I have yet to see such a patient go on to commit suicide.
This should not be surprising. Think about it. All of us have had at least fleeting thoughts of suicide in a time of crisis. Imagine how we would feel if we confided this to a close friend or relative who replied, “You’re right. I can’t see any other way out either.” Would we consider this reply as compassionate or, instead, desperately discouraging? The terminally-ill or disabled person is no different from the rest of us in this respect.
I often wonder if right-to-die supporters really expect us doctors and nurses to be able to assist the suicide of one patient and then go on to care for a similar patient who wants to live without this having an effect on our ethics or our empathy. Do they really want to risk more Jack Kevorkians setting their own standards of who should live and who should die?
The excuse that the only real issue is the patient’s choice would be cold comfort to us doctors and nurses when we have to go home and face the fact that we helped kill another human being or had to remain silently powerless while some of us legally participated. There will be no blank bullets then for us — or for society.
Nancy Valko, R.N., is an oncology nurse and the author of numerous articles on bioethical issues. She is also listed in the 1996-1997 edition of Who’s Who in American Nursing.
Religious groups take positions on induced death practices
The Episcopal Diocese of Newark, NJ, has approved a resolution stating that committing suicide or assisting another to commit suicide may be morally permissible under certain circumstances. The resolution was passed after a lengthy debate by approximately two-thirds of the 600 delegates attending the diocesan convention January 26-27. The resolution states that it is acceptable for a terminally-ill person to commit suicide if “pain is persistent and/or progressive; when all other reasonable means of amelioration of pain and suffering have been exhausted; and when the decision to hasten death is a truly informed and voluntary choice free from external coercion.” This statement is in direct opposition to a resolution adopted by the national Episcopal Church during its General Convention in 1991. That resolution states that “it is morally wrong and unacceptable to take a human life in order to relieve the suffering caused by incurable illness.” The sometimes controversial Episcopal bishop of Newark, John S. Spong, said that his diocese’s new resolution would be brought to the national General Convention in 1997. [The Living Church, 2/96] It is expected to meet with strong opposition within the Episcopal Church.
Last year delegates to the Lutheran Church Missouri Synod’s 59th convention passed a resolution stating that it is morally objectionable for medical personnel to have “any part in actively inducing death, even at the patient’s request or the request of the patient’s family.” [Washington Post, 7/29/95:B6] Recently, the Evangelical Lutheral Church of America, the National Association of Evangelicals, the Christian Legal Society, and the Christian Medical and Dental Society have also taken strong stands against assisted suicide and euthanasia. [Detroit News, 2/5/96:5D]
In 1994, the Catholic Church issued a new document reiterating its long-held opposition to induced death practices. Entitled Charter for Health Care Workers and written by the Pontifical Council for Pastoral Assistance to Health Care Workers, the new document states, “Euthanasia is a homicidal act, which no end can justify…. The pity aroused by the pain and suffering of terminally ill persons, abnormal babies, the mentally ill, the elderly, those suffering from incurable diseases, does not authorize any form of direct euthanasia, active or passive. This is not a question of helping a sick person, but rather the intentional killing of a person.” [p. 126, emphasis in original] The Charter also addresses the issue of withholding food and fluids: “The administration of food and liquids, even artificially, is part of the normal treatment always due to the patient when this is not burdensome for him: their undue suspension could be real and properly so-called euthanasia.” [p. 105]
Christian denominations are not the only ones which have recently issued statements against assisted suicide and euthanasia. In early February 1996, the Council of Orthodox Rabbis of Greater Detroit denounced Jack Kevorkian and his practice of “medicide.” Spokesperson Rabbi Elimelech Silberberg said that the Council usually speaks out on issues only within the Jewish community, but after Kevorkian claimed his 27th victim, the Council decided to spread its message to the general public. According to the Council, Kevorkian can give assisted suicide the fancy name “medicide,” but it is still murder — and the government should put a stop to it. “We hope the government recognizes this for what it is,” commented Silberberg. “We pray that it takes the proper steps to ensure that this does not continue.” Kevorkian attorney Geoffrey Fieger responded to the statement by saying that the Council should “stay out of my business.” “They’re closer to Nazis than they think they are,” Fieger said. “Orthodox Jews are not different than the right-wing Christian nuts. If you’re a religious nut, you’re a religious nut. It doesn’t matter if you are Christian, Jewish or Hindu.” [Detroit News, 2/5/96:5D]
- Australia
Amendments to the Northern Territory’s controversial euthanasia legislation were passed by a majority of the Territory’s 25-member Parliament on 2/20/96. Reportedly, this action ensures that “The Rights of the Terminally Ill Act,” the world’s only euthanasia measure ever passed by a parliament, will go into effect within the next several months. The Act, which originally was passed on 5/25/95, needed amendments to clarify specific provisions of the new law before it could be enacted. The law makes it legal for doctors to prescribe, prepare, and administer lethal drugs to end certain patients’ lives. (See Update, 5-6/95:1.) The Australian Medical Association has indicated that it will join with community and church groups in pursuit of legal challenges to the new law, including a High Court challenge on constitutional grounds. Oppo-
nents of the measure can also lobby the Federal Government, which has the power to overturn Territory law. [The Australian, 2/21/96:2, 2/22/96:1]
- Canada
The Supreme Court of Canada has agreed to hear Robert Latimer’s appeal of his 1994 conviction of second-degree murder in the death of his disabled daughter. Last July, the Saskatchewan Court of Appeals upheld the conviction. But now Latimer argues that the confession he gave to police should have been inadmissible at his trial, since police had not yet arrested him, and they did not inform him that he had the right to remain silent. At that time, Latimer told police that he had placed his daughter, Tracy, in the cab of his truck, then gassed her to death by hooking tubes and pipes to the truck’s exhaust system. Tracy, who had severe cerebral palsy, was only 12-years-old when she died. Her father told police that he had decided to gas her after rejecting earlier thoughts of shooting her in the head and setting her body on fire. He said that he just wanted to end her suffering. (See Update, 11-12/94:7.) Even if the Canadian Supreme Court does not overturn Latimer’s conviction on the confession technicality, it will likely order a new trial. Last year it was revealed that authorities had questioned potential jurors regarding their ethical beliefs, including their stand on euthanasia. Some of those potential jurors ended up on the Latimer jury. [The Globe and Mail, 2/9/96; The Vancouver Sun, 2/9/96]
- China
According to a report released by New York-based Human Rights Watch–Asia, children in Chinese orphanages are being systematically starved to death or killed through neglect in order to keep the number of abandoned children low. Between November 1991 and October 1992, 207 children died at the Children’s Welfare Institute, just one orphanage in Shanghai. Of those 207, almost one-third had been in the orphanage less than a month. Among babies, who were admitted at the age of two months or less, 92% died within the first year. [Fort Worth Star-Telegram, 1/6/96:A15; News-Register (Wheeling, WV), 1/7/96:6]
