Update 003: Volume 10, Number 3 (May-June 1996)

15 states file joint brief in support of NY’s appeal to US Supreme Court

Fifteen states have filed an amici curiae brief in support of New York State’s appeal to the U.S. Supreme Court in Quill v. Vacco, the recent U.S. Second Circuit Court of Appeals decision which found two NY statutes banning assisted suicide unconstitutional. (See Update, 4/96:1.)

The fifteen amici states are California, Arkansas, Colorado, Florida, Georgia, Iowa, Maryland, Massachusetts, Michigan, Montana, Nebraska, South Carolina, Tennessee, Virginia, and Washington. California Deputy Attorney General Thomas S. Lazar, lead counsel for the amici states, told the IAETF that many more states would have signed on to the joint brief, but the time limitation set by the filing date deadline made it prohibitive.

The brief argues that the U.S. Supreme Court should agree to hear this case (grant a Writ of Certiorari) because

“At stake in this case are, first and foremost, the lives of people, both those who wish to die, and those who wish to live no matter what their circumstances. Also at stake is the sovereign power of the States to protect and preserve those lives without a federal requirement that the State [make judgments about an individual’s quality of life]…. The resolution of this question will arguably affect more lives than any case which this Court will confront in the foreseeable future.” [Brief of Amici Curiae States in Support of Petitioners Dennis C. Vacco, et al., Vacco v. Quill, No. 95-1858, p. 2; emphasis in original]

According to the amici states, the Second Circuit clearly erred when it ruled that the NY statutes prohibiting assisted suicide violate the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. The Second Circuit found that – since terminally-ill patients on life-support treatment can legally hasten their deaths with medical assistance by refusing such treatment, but those not on life-support are prohibited by the assisted-suicide statutes from obtaining medical assistance in hastening their deaths-“it seems clear that New York does not treat similarly circumstanced persons alike.” [Quill v. Vacco, No. 60, slip op. (2nd Cir. Apr. 2, 1996) p. 23]

It is precisely the Second Circuit’s failure to distinguish between the removal of life-sustaining treatment (letting someone die) and assisted suicide (making someone die) which the amici states say “infected [the Second Circuit’s] constitutional analysis, contributed to its misplaced reliance on right-to-refuse treatment cases, and led directly to its ultimate erroneous conclusion.” [Amici Curiae Brief, p. 6]

The brief also argues that the courts are not the appropriate forum to resolve “broad questions of public policy” such as assisted suicide. Whether the line should be “redrawn to permit an individual to commit suicide without state interference, and then redrawn yet again to permit assisted suicide, is a matter appropriately left for the people to decide, through their duly elected representatives or by initiative ballot. The principles of federalism embodied in our Constitution require no less.” [pp. 18-19]

The U.S. Supreme Court’s decision on whether to hear this case is still pending.

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AMA resoundingly rejects physician-assisted suicide

The American Medical Association’s 430-member House of Delegates, in a virtually unanimous vote taken on 6/25/96, rejected two resolutions which would have compromised the AMA’s strong stance against physician-assisted suicide. The delegates, who represent 296,000 doctors nationwide, also called for intensified training for physicians in pain and symptom control, depression, and end-of-life care.

One of the assisted-suicide resolutions, supported by Rhode Island physician David P. Carter, called for a reevaluation of the AMA position on the issue in light of the recent Ninth and Second Circuit Court of Appeals rulings. The other resolution, proposed by retired Illinois radiologist Ulrich F. Danckers, was more far-reaching in that it called for the AMA to abandon it’s strong position of opposition to assisted suicide and instead go neutral on the issue. “It is intellectually dishonest for us to collectively get on our ethical high horse and then look the other way when this is practiced at the bedside,” Danckers argued at the AMA Board of Trustees meeting held on 6/23/96. “There is a real danger of the AMA being totally left behind by judicial action and public sentiment,” he added.

Two days later, at the full House of Delegates meeting, no one except Danckers stood up to speak in favor of the resolution. But there were many who criticized both assisted-suicide resolutions, saying that proponents fail to see the distinction between a patient’s right to refuse unwanted treatment and a physician actively intervening to end a life. “We are healers, first, last and always,” commented New Jersey doctor William E. Ryan. “We have no right to kill.”

California cancer specialist Rex Greene said that patients who ask to die are really asking for help. “The treatment of choice for depression,” Greene added, “is not carbon monoxide.” St. Louis psychiatrist Jo-Ellyn Ryall told the AMA delegates, “My patients who talk to me about suicide want help and do not want to be killed.” “So I recommend that if anyone comes to you, even if they’re terminal and they’re in pain and they’re requesting suicide,” said Ryall, “that you evaluate them for the depression and anxiety that they probably have, and treat those illnesses.”

AMA Board of Trustees head Nancy W. Dickey told reporters that the delegates’ all out rejection of physician-assisted suicide reflects “a deeply felt ethical principle.” “Today’s overwhelming reaffirmation sends a strong message,” she said. “The medical profession will not tolerate being put in a position to judge the value of the lives of the patients we are trained to heal, comfort and care for…. We must never lose sight of the caveat that physicians are healers, and where we cannot heal, our role is to comfort.” Dickey also indicated that the AMA would initiate an educational program aimed at training doctors to be more aggressive in treating pain. [Washington Post, 6/26/96:A3; U.S. Newswire, 6/25/96; AP, 6/25/96; Detroit News, 6/24/96; Reuter, 6/24/96]

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Supreme Court extends stay on Ninth Circuit ruling

The U.S. Supreme Court has extended an order, originally issued by Justice Sandra Day O’Connor, allowing Washington State’s law banning assisted suicide to remain in effect, at least until the Supreme Court decides whether to accept Washington’s pending appeal of a U.S. Ninth Circuit Court of Appeals ruling in Compassion in Dying v. Washington. That ruling, issued on 3/6/96, struck down Washington’s 142-year-old anti-assisted suicide law as unconstitutional because, according to the majority opinion, it violates a “constitutionally-protected liberty interest in determining the time and manner of one’s own death.” [Compassion in Dying v. State of Washington, No. 94-35534, 1996 WL 94848 (9th Cir. Mar. 6, 1996) p. 3] (See Update, 1-3/96:1.) If the Ninth Circuit’s ruling is allowed to stand, it will nullify laws banning assisted suicide in nine Western states.

On 3/25/96, the Ninth Circuit, in a most unusual move, directed the parties in the case to submit briefs on whether a full panel of all the active Ninth Circuit justices should rehear the case. (See Update, 1-3/96:3.) But on 5/29/96, the appeals court decided not to reconsider its earlier ruling, clearing the way for Washington’s attorney general’s office to file an appeal with the U.S. Supreme Court. The deadline for that filing is 7/4/96. [Reuter, 5/29/96]

Just hours after the Ninth Circuit decided not to rehear the case, Supreme Court Justice Sandra Day O’Connor, who oversees the Western Circuit, issued an emergency temporary order, at the request of Washington State officials, staying the Ninth Circuit’s ruling. Her order would remain in effect at least until 6/5/96, the deadline for parties favoring the Ninth Circuit decision to file their brief as to why the stay should be lifted. [Wall Street Journal, 5/30/96; AP, 3/29/96] The very next day, the doctors who brought the original lawsuit along with the Seattle-based suicide advocacy group Compassion in Dying, filed papers with the Supreme Court, arguing that the country’s highest court should not accept the case on appeal because the New York-based Second Circuit Court of Appeals also found state anti-assisted suicide laws unconstitutional. [UPI, 5/30/96]

But, while the Second Circuit did rule NY’s statutes unconstitutional, it did so for completely different reasons than the Ninth Circuit used. In fact, the Second Circuit rejected outright the “liberty interest” argument espoused by its West Coast counterpart. “The right to assisted suicide finds no cognizable basis in the Constitution’s language or design,” the Second Circuit concluded, “even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death. We therefore decline… to identify a new fundamental right.” [Quill v. Vacco, pp. 13-14] This obvious disagreement as to the constitutional basis for striking down state anti-assisted suicide laws would be, in and of itself, sufficient reason for the Supreme Court to accept both cases.

On 6/10/96, the Supreme Court justices extended O’Connor’s ban to allow for Washington State to file its appeal and to allow time for the justices to decide whether or not to take the case. Their decision is not expected until this fall. If the Supreme Court does not accept the case on appeal, the stay will be immediately lifted, essentially making assisted suicide legal in the nine Western states. [The Columbian, 6/10/96; The Oregonian, 6/11/96; UPI, 6/10/96]

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Judge Hogan stands firm on injunction barring Measure 16 from taking effect

Federal District Court Judge Michael Hogan has refused to lift an injunction barring Oregon’s new law permitting assisted suicide from taking effect. Judge Hogan originally issued the permanent injunction on 8/3/95 when he ruled that Oregon’s Measure 16 violates the equal protection guarantees contained in the U.S. Constitution’s Fourteenth Amendment. At that time, Judge Hogan found that Measure 16, which would allow doctors to intentionally prescribe lethal drugs for the purpose of ending patient’s lives, contained inadequate safeguards and, consequently, denied terminally-ill patients the same protections against abuses which all other Oregonians enjoy under the state’s anti-assisted suicide law. (See Update, 9-10/95:1.) That decision in Lee v. Oregon was subsequently appealed to the Ninth Circuit, which, to date, has not officially heard the case.

But Judge Hogan has been under pressure to reconsider his injunction against Measure 16. When the Ninth Circuit issued its ruling striking down Washington State’s assisted-suicide law, Judge Stephen Reinhardt, writing for the majority, editorialized on Judge Hogan’s decision in Lee v. Oregon, even though the case was not before Reinhardt’s panel. In other words, he essentially “ruled” on this case without the case ever being heard by a Ninth Circuit panel of judges. Judge Reinhardt’s conclusion: “Judge Hogan clearly erred.” [Compassion in Dying v. Washington State, p. 40; see also, Update, 1-3/96:3] Encouraged by Judge Reinhardt’s comments, backers of Measure 16 petitioned the Ninth Circuit to lift Judge Hogan’s permanent injunction. In turn, the Ninth Circuit allowed a limited remand back to Judge Hogan, giving him the opportunity to reevaluate his decision and possibly lift the injunction himself.

Despite the pressure, Judge Hogan issued an order on 5/9/96 clearly reaffirming both his decision and the permanent injunction. The judge once again concluded that “Measure 16 subjects terminally ill patients to irrational prejudice” and it’s safeguards “are not adequate and infringe on the constitutional rights of the terminally ill.” [Lee v. Oregon, Order, Civil No. 94-6467-HO, May 9, 1996, pp. 20 & 24] He also denied both the intervenor defendants’ and the state of Oregon’s motion to lift the injunction. [p. 25]

Commenting on Judge Hogan’s order, euthanasia advocate Derek Humphry said, “Nobody in the world has thought of a better law. The Oregon law [Measure 16] is as sound as any law in the world. It doesn’t matter what safeguards we put in it, people like Hogan will always find ways to block it.” [AP, 5/10/96] But shortly after Measure 16 passed by a narrow margin in 1994, Humphry’s comments about Oregon’s new law were not so glowing. Humphry, who authored the suicide manual, Final Exit, and had actively supported Measure 16 prior to its passage, wrote to the New York Times that “the Oregon law, which forbids injections, could be disastrous.” He continued, “Evidence I have accumulated shows that about 25 percent of assisted suicides fail, which casts doubts on the effectiveness of the new Oregon law….” [New York Times, 12/3/94:14]

The appeal of Judge Hogan’s original 1995 ruling is still pending before the Ninth Circuit. Oregon Deputy Attorney General Tom Balmer, has indicated that the state will also appeal Judge Hogan’s refusal to lift the ban on Measure 16. [AP, 5/10/96]


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Patients in pain less likely to favor euthanasia or assisted suicide

The first ever scientific survey of American cancer patients’ views on euthanasia and physician-assisted suicide (PAS) found that patients actually in pain were more likely to view both induced-death practices as unacceptable. The survey, published in the 6/29/96 issue of Lancet and conducted by researchers at the Dana-Farber Cancer Institute, found that, while two-thirds of patients and the general public generally support PAS for terminally-ill patients with severe pain, once confronted personally with pain and terminal illness, their views change. Patients in pain were found more likely to consider euthanasia and PAS unethical, more likely to view a discussion with a doctor on either practice grounds for lessening their trust in that doctor, more likely to change doctors if their doctor had previously engaged in euthanasia or PAS, and no more likely to request either practice. “People may look at a terminally ill patient and think, ‘I’d rather die than be like that,'” said Dr. Ezekial J. Emanuel, lead author of the survey. “But our data indicate that what cancer patients with pain are really interested in is getting rid of their pain, not in dying.” Emanuel added that the study’s findings “suggest that before our society rushes into legalizing euthanasia or physician-assisted suicide, we need to understand more clearly which patients would want these interventions and why. We may approve of them for one reason — alleviating pain — but find they are being used for reasons that we find unethical.” The survey also found that “patients with depression and psychological distress were significantly more likely to have seriously discussed euthanasia, hoarded drugs, or read Final Exit.” [Press Release on “Euthanasia and physician-assisted suicide: attitudes and experiences of oncology patients, oncologists, and the public,” Lancet, 6/29/96:1805-1810]

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Kevorkian turns Michigan into death capital

  • Kevorkian allowed to run amuckJack Kevorkian, the unemployed pathologist who admits involvement in the assisted deaths of 31 people, has, at least for now, beaten the system. Emboldened by his third jury acquittal (see following article), Kevorkian has participated in three assisted deaths within a 10-day period. And there appears to be little the state of Michigan is willing to do to stop him.State Representative Michael Nye, who would like to see Kevorkian’s killing campaign stopped, told an Associated Press reporter, “I don’t see us doing anything in regard to assisted suicide.” “We had the [temporary] ban, he was found not guilty under the ban,” Nye said. “We had the common law, he was found not guilty under that situation. What do we pass so he won’t be found not guilty?””He seems to understand that he can become bolder because it’s become increasingly clear that you can’t get a conviction,” commented Yale Kamisar, a University of Michigan law professor. “Unless he trips up, unless someone testified she changed her mind… unless a spouse says, ‘No, I told him not to do this,'” Kamisar said, prosecutors will have a difficult time getting him convicted. [AP, 6/21/96]

    While the state impotently looks on, Kevorkian continues to add to his body count, importing “subjects” (his term) to advance his agenda. Most recently:

    • Austin Bastable, 53, from South Windsor, Ontario; Canadian assisted-suicide activist with multiple sclerosis; died on 5/6/96 of carbon monoxide poisoning. Kevorkian assisted Bastable’s death while he was on trial for two 1991 deaths. [Reuters, 5/9/96]
    • Ruth Neuman, 69, from Columbus, NJ; recently widowed; was partially paralyzed from a stroke in May and reportedly had battled uterine cancer, diabetes, and back problems; friends said she had been depressed since her husband died last fall but was even more so after the stroke; deemed not terminally ill by medical examiner; died on 6/11/96 of carbon monoxide poisoning. [Detroit Free Press, Detroit News, 6/12/96]
    • Lona Jones, 58, from Chester, VA; had malignant brain tumor; prior to going to Michigan, she had been in contact with Kevorkian only by phone and by mail; died on 6/19/96 of carbon monoxide poisoning. [AP, 6/19/96]
    • Bette Lou Hamilton, 67, from Columbus, OH; was divorced and had no children; described as a recluse; had syringomyelia, a rare and progressive neurological condition of the spine, which Kevorkian’s attorney acknowledged was not terminal; died on 6/20/96; definitive findings on cause of death still pending. [NY Times, 6/22/96; AP, 6/22/96]

    Immediately after the last victim’s death, Geoffrey Fieger, Kevorkian’s lawyer, announced that his client would now offer future “patients” the option of donating their organs. “It’s going to happen,” said Fieger. [AP, 6/21/96] What Fieger neglected to mention was that harvesting organs from live patients who want to die and from death row inmates has been Kevorkian’s ultimate goal — as well as scientific experiments on live “subjects,” including infants, children, and the mentally incompetent. The outcome in all cases, of course, would be death. [See Jack Kevorkian, Prescription: Medicide (New York: Prometheus Books, 1991) p. 255; “Medicide: The Goodness of Planned Death — An Interview with Dr. Jack Kevorkian,” Free Inquiry 11, no. 4 (Fall 1991), p. 15]

  • Another jury sets Dr. Death free

The case was the one experts predicted would finally land Kevorkian in jail. Marjorie Wantz, 58, had died in 1991 using Kevorkian’s homemade lethal injection device, dubbed the “suicide machine.” She had complained of acute pelvic pain, but refused to follow through with her doctors’ recommendations. Reportedly, she had been taking higher than recommended doses of Halcion, a drug known to impair judgement and sometimes produce suicidal tendencies when abused. The autopsy performed after her death showed no physical illness or disease. Kevorkian had never clinically examined her.

On 4/1/96 Kevorkian would be tried for Wantz’s assisted suicide as well as for the death of Sherry Miller, 43, who died with Wantz in a rustic, old, Bald Mountain Park cabin on 10/23/91. Miller, who had multiple sclerosis, was the first of Kevorkian’s victims to die from carbon monoxide gas — a last minute, makeshift alternative to his suicide machine. Kevorkian, after repeated tries and puncture wounds, had not been able to insert the machine’s IV needle into her veins.

This trial was going to be different. This time Kevorkian would be charged, not with violating an expired statute which jurors could easily dismiss, as in the last trial (Update, 1-3/96:1), but with violating long-established common law — defined as law “distinguished from statute law, and deriving its origin and authority not from any express declaration of the will of the legislature, but from the recognition given by the courts to principles, customs, and rules of conduct” previously established by the state’s case law. [The Attorney’s Pocket Dictionary, 1981, pp. 98-99]. In 1994, the Michigan Supreme Court ruled that, even without an explicit statute prohibiting assisted suicide, aiding in another’s suicide is a common law felony in Michigan (Update, 1-2/95:2).

Fieger’s defense strategy was to argue that common law was no law at all. In his closing arguments, Fieger told the jury that Kevorkian was being persecuted and that the common law crime of assisted suicide was a fabrication of a tyrannical Michigan Supreme Court. According to Fieger, “Some men and women got together in a back room in Lansing and said, ‘How do we get Jack Kevorkian?'” He also told the jury, “There is no crime when there is no law.” [Detroit News, 5/11/96; Reuters, 5/10,96] Earlier in the trial Fieger countered the prosecution claim — that Kevorkian had intended to break the law when he assisted in the deaths of Wantz and Miller — by arguing that Kevorkian could not have broken the law because “no one ever knew [in 1991] a law against assisted suicide existed.” [Detroit News, 4/17/96:1A]

But Kevorkian did know in 1991 that assisted suicide was a crime in Michigan, according to former Oakland County prosecutor Michael Modelski. Prior to the 1990 death of his first victim, Janet Adkins, Kevorkian placed a call to then assistant prosecutor Kathleen Bohner-Solomon to ask if assisted suicide was against the law. At that time, she informed him that it was indeed a crime and that the Oakland County Prosecutor’s Office would charge anyone who assisted in a suicide. Modelski says both the prosecutor’s office and Fieger have a copy of Bohner-Solomon’s memo detailing Kevorkian’s call and her advice to him. (News Release issued by Michael J. Modelski, 5/6/96:1)

The hard facts of the case — that Kevorkian openly admitted that he assisted in the death of both women, that his fingerprints were found on the mask worn by Miller as she was gassed to death, that in a taped 911 emergency call Kevorkian identified himself and reported the double assisted suicide — were apparently lost on the jury. Not even the testimony of a volunteer firefighter, who had talked with Kevorkian at the scene of the deaths, impacted the jury. Firefighter James Brown had testified, “[Kevorkian] told me he used gas for one and an injection for the other. He said ‘You have to use your imagination doing these things because there’s no electricity at the cabin.’ He said it will be legal one of these days.” [Detroit News, 4/17/96:1A] A 1991 video tape from Australia’s version of “60 Minutes,” also entered into evidence, showed Kevorkian saying, “I’m doing more than handling the gun and the bullets. I’m loading the gun and giving it to the patient.” Kevorkian then referred to his suicide machine, saying, “It’s a killing machine….” [Detroit News, 5/1/96]

The testimony of witnesses — the coroner, saying that neither Wantz nor Miller were terminally ill; Miller’s doctor, saying she was “severely depressed”; Wantz’s son, saying that he had not agreed with his mother’s suicide decision but was pressured into going along with it — also had little effect on the jury. [Reuter, 4/19/96; Detroit Free Press, 4/20/96] What apparently did impact the jury were the defense arguments that all Kevorkian wanted to do was eliminate pain and suffering, not cause death, and that common law is no law at all.

After 13 hours over a 3-day period and 3 ballots, the jury reached its verdict: Not guilty on 2 counts of assisted suicide. As the jury foreman, Dean Gauthier, told reporters, “We had a hard time understanding the common law… and what it came down to was a belief that the prosecution had not proven beyond a reasonable doubt that he had broken it.” Another juror, Cameron Beedle, said she wanted to see the law “written down in black and white” before she convicted anyone. “We begged for many different versions of the common law that we never got,” she added. The jurors said that they were not swayed by the arguments that the two women were not terminally ill or that they were depressed. Another juror, Vince Muscillo, said, “I felt Dr. Kevorkian was a smart, intelligent man who cared very much for his patients.” Jury members indicated that they had been moved by the defense video tapes of the two women saying that they wanted to end their suffering and die. Some jurors were so impressed with Kevorkian that they asked for his autograph. [Detroit Free Press, 5/15/96; NY Times, 5/16/96]

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Commentary: Not Dead Yet


Nat Hentoff

Ten years ago, before Dr. Jack Kevorkian became a Halloween mask, I went to a conference in Minnesota of disability rights activists. Much of their anger was directed at the American Civil Liberties Union, which some of them had previously regarded as an ally.

The Southern California affiliate of the ACLU had gone to court to establish the right of a woman with cerebral palsy and other disabilities to get help in committing suicide. The ACLU did not succeed, and its client, having recovered from clinical depression, decided she did not want to die after all.

Since then, the Michigan and Florida affiliates of the ACLU have vigorously supported assisted suicide, and the national office, being politically correct in these matters, goes along. Now, at last, the ACLU does seem to have won this battle for death-on-demand. Both the 9th and 2nd Circuit Court of Appeals have ruled not only that assisted suicide is legal but that a doctor may both prescribe pills for the despairing patient and, under some circumstances, may directly administer a lethal injection. That is, the doctor can commit an act of euthanasia.

Of all those opposing these lethal court decisions, the most apprehensive and enraged are various disability rights groups. An alliance of the dissenters has created a new force. It’s called Not Dead Yet. One of the organizers is Woody Osburn, a full-time civil rights specialist with the Pennsylvania Coalition of Citizens With Disabilities. He is a quadriplegic.

“Americans with disabilities,” he and the others say, “don’t want your pity or your lethal mercy. We want freedom. We want LIFE. We, the people living with severe disabilities and chronic illnesses, are the most affected by assisted ‘suicide.’

“Our deaths are being viewed as more desirable than providing services such as in-home care, that would allow us to live as free and independent citizens. Instead, many of us are caged in nursing homes and other institutions or dependent on a family member — the two main circumstances that lead to ‘assisted suicide.'”

Not Dead Yet is circulating a prescient, ominous statement of the social value of assisted suicide by Dr. Kevorkian. He presented it to the Michigan Circuit Court in 1990. Said the good doctor:

“The voluntary self-elimination of individual and mortally crippled lives, taken collectively, can only enhance the preservation of public health and welfare.”

Those who are not dead yet are afraid that much of the general public uncritically assume that the “voluntary” part of Kevorkian’s prophecy will be exactly that. After all, not a few of us do not like to look at — or think about — “defective” people and believe that the severely disabled probably do wish, in their heart of hearts, to be “liberated” by suicide.

Through the years, in hospitals, some of the disabled have been told, one way or another, that their “quality of life” is hardly worth their effort to preserve it, let alone the efforts of their doctors or the cost to society. And with some of the disabled, that assessment of their lives can become persuasive.

One of the witnesses during a recent hearing on assisted suicide by the House Subcommittee on the Constitution was Diane Coleman, executive director, Progress Center for Independent Living. Because of spinal muscular atrophy, she has been a wheelchair user since the age of 11.

She told the subcommittee — headed by Rep. Charles Canady (R-Fla.) — about court decisions that over the last decade have allowed life-sustaining treatment to be withdrawn from persons “with substantial, though not terminal, disabilities. This trend is rooted in pervasive and largely unconscious, societal prejudices against people with disabilities.”

In a publication called Mouth — a lively and continually challenging advocate for disability rights (61 Brighton St., Rochester, NY 14607-2656) — Joe Ehman, a reporter with disabilities, tells of his encounter with a prejudicial view of his own “quality of life.”

“A few hours after surgery, still delirious from the anesthesia and from post-surgical morphine and Demerol, I had to hear from a social worker who wanted to force-feed me a Do Not Resuscitate order to the doctors.

“I mustered my strength and screamed, ‘I’m 30 years old. I don’t want to die.’

“Another nurse came into the room. She asked why I was verbally abusing a staff member.

“I responded that there was nothing in arms’ reach to throw ….”

Not dead yet.

Nat Hentoff is a syndicated columnist with the Newspaper Enterprise Association. His article, which ran in The Washington Post, June 8, 1996, is reprinted with permission from the author.

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House subcommittee conducts hearing on assisted suicide

The U.S. House of Representatives’ Subcommittee on the Constitution conducted an oversight hearing entitled, “Assisted Suicide in the United States,” on 4/29/96. Subcommittee chairman, Florida Representative Charles Canady, convened the hearing because of the importance of both the Ninth and Second Circuits’ recent rulings on the constitutionality of anti-assisted suicide laws. According to Canady, “With no national debate, these courts are attempting to implement a broad public policy that would profoundly affect the way Americans deal with life and death and drastically alter the role of physicians in society.” [Transcript, U.S. House of Representatives, Subcommittee on the Constitution, Oversight Hearing: “Assisted Suicide in the United States,” 4/29/96, p. 3]

The hearing consisted of three panels of experts testifying about the medical, legal, and ethics issues involved in assisted suicide. The following are a few short excerpts from some of the testimony given by those who support and oppose the practice.

Kathleen Foley, M.D., Chief of Pain Service, Memorial Sloan-Kettering Cancer Center, NY; Director, Project on Death in America

“The thrust of my testimony is based on the construct that we need to move the current debate from its very narrow focus on the question of the legalization of physician-assisted suicide to the broader issue that concerns the American public — improvements in the care of the dying.” [p. 11] “[T]here are serious flaws in our current health care system that impact on the quality of care provided to patients who are dying. It seems ironic that at a time when we have refused to guarantee health care to everyone, the judiciary selected physician-assisted suicide as the one health care right that deserved constitutionality status.” [p. 15]

Timothy Quill, M.D., Professor of Medicine/Psychiatry, University of Rochester School of Medicine

[Referring to physician-assisted suicide]

“It would only be used as a last resort for terminally ill patients whose suffering could not be relieved by adequate palliative measures…. Our commitment not to abandon patients is fundamental in this process. When people are struggling for life in the ICU, we show no restraint in our efforts to keep their life going. When a person is disintegrating prior to death, you lose what it means to be a person, in my opinion. And we must show a similar lack of creativity and lack of restraint. It is nothing short of a medical emergency.” [p. 23]

Diane Coleman, J.D., Executive Director, Progress Center for Independent Living; Spokesperson, Not Dead Yet

“Court after court has already declared that people with disabilities are essentially the same as people with terminal illnesses based on our perceived low quality of life….” [p. 24] “Research shows that physicians dramatically underestimate quality of life for people with disabilities compared to our own assessments…. In the U.S., involuntary, passive euthanasia of people with mental disabilities is already common….” [p. 25] “We ask all who care about social injustice to believe us when we state that disability-based discrimination in this culture is deep seated, virtually unconscious, pervasive, and overwhelming. This discrimination against millions of Americans must be acknowledged, understood, and reversed long before we can discuss expanding the ways in which society’s unwanted can be killed…. We are the proverbial canaries in the coal mine. If we are declared expendable, who will be next?” [p. 27]

Barbara Combs Lee, J.D., F.N.P., Chief Petitioner, Oregon’s Death with Dignity Act (Measure 16); Executive Director, Compassion in Dying

“During our campaign [to pass Measure 16] we argued that physicians already assist their patients, and we were merely codifying and adding safeguards to the status quo. And, in fact, subsequent to the passage of the Death with Dignity Act, surveys in Washington and Oregon and other places have revealed that that is so. The most recent survey that came out in Washington actually revealed that the rate of requests, although covert and surreptitious in Washington, is approximately the same as it is in the Netherlands, and the rate at which physicians respond physically to those requests is also the same. The only difference, of course, is that under the Oregon Death with Dignity Act, there would be guidelines and safeguards…. Incredibly some would contend that covert, illegal assistance is preferable to decriminalization.” [pp. 74-75]

Yale Kamisar, Clarence Darrow Distinguished University Professor, University of Michigan

[Responding to argument that doctors are already illegally engaging in assisted suicide for the terminally ill]

“If doctors are violating the law now, why won’t they violate the law later?” [p. 79] “[W]hy should we expect the doctors to comply with the new laws, which would only authorize assisted suicide in very limited circumstances, only do it for the terminally ill?… After all, if this is a basic right, either people have the right to determine the time and manner of their death or they don’t. If there is such a right, and I would say there isn’t… how in the world can we limit this basic right to people who are terminally ill and not apply it to people who are paralyzed or people in wheelchairs or people with severe arthritis, etc.?” [p. 82]

Charles H. Baron, Professor of Law, Boston College Law School; co-author of “A Model State Act to Authorize and Regulate Physician-Assisted Suicide”

“I share with those who oppose the legalization of physician-assisted suicide their concern that a patient’s right to die could, in the wrong hands, be turned into a duty to die. I share also the concern that a power to assist suicide could be used to discriminate. But at the same time, those who oppose the legalization of physician-assisted suicide must recognize, the move towards legalization is being driven by terminally-ill patients themselves, not by those that wish to discriminate against them.” [p. 92]

Herbert Hendin, M.D., Executive Director, American Suicide Foundation; Professor of Psychiatry, New York Medical College

“Social sanction in the Netherlands has encouraged patients and doctors to see assisted suicide and euthanasia, intended as an unfortunate necessity in exceptional cases, as almost a routine way of dealing with serious or terminal illness. The [U.S.] public has the illusion that legalizing assisted suicide and euthanasia will give them greater autonomy. If the Dutch experience teaches us anything, it is that euthanasia enhances the power and control of doctors who can suggest it, not give patients obvious alternatives, ignore patients’ ambivalence, and even put to death patients who have not requested [it].” [p. 38]

Charles Krauthammer, M.D., Syndicated columnist

“What we are talking about here are the inevitable pressures that will occur on people in this kind of vulnerable position in which they will be driven to accepting, by their own signature of course, as happens in Holland, their own death in circumstances in which they might not otherwise have…. But I think the public policy issue here is, do we want to construct a system under which thousands of people will be initiating their own death in circumstances in which they are doing so because of the pressures that have been created around them, including the pressures from the family and from the physician?” [p. 106]

Bishop John S. Spong, Episcopal Bishop, Newark, NJ

“Assisted suicide must never be a requirement, but it should always be a legal and moral option. This decision to end one’s life needs to be faced openly, honestly, freely and in consultation with our loved ones, or doctors, and our spiritual advisors. When the decision on assisted suicide is made this way, I am convinced that it is a life-affirming, moral choice.” [pp. 136-137]

Leon Kass, M.D., Addie Clark Harding Professor, College and Committee on Social Thought, University of Chicago

“The legalization of physician-assisted suicide, ostensibly a measure enhancing the freedom of dying patients, is, in fact, a deadly license for physicians to prescribe death free from outside scrutiny and immune from possible prosecution. The manufacture of a so-called right to die, ostensibly a gift to those not dying fast enough, is the State’s abdication of its duty to protect innocent life and its abandonment of the old, the weak, and the poor.” [p. 138] “People who care for autonomy and dignity should try to correct this dehumanization of the end of life instead of giving dehumanization its final triumph by welcoming the desperate good-bye to all that contained in one final plea for poison. Not the alleged humanness of the elixir of death, but the humanness of connected living while dying is what medicine and the rest of us most owe the dying. Treatment of choice is and always will be company and care.” [pp. 142-143]

Carlos F. Gomez, M.D., Assistant Professor of Medicine, University of Virginia School of Medicine

“I am a physician who spends a significant part of his working day caring for terminally-ill people and their families…. It is these very patients, the terminally ill, those in desperate pain, the isolated and marginalized in our society whom proponents of assisted suicide would now have us “aid” toward what is painted as a painless, merciful and, let us be honest here, economical end.” [pp. 145-146] “The lives of terminally-ill people are as important as those who have better prospects for life. The devaluation of life at the end of life is one of the problems that has led us, I think, to Kevorkian and others of his ilk.” [p. 147] “We now have it well within our technical means to alleviate, to palliate and comfort and control the worst of symptoms of those of our fellow citizens who are terminally ill. The question before this committee and the country at large is whether we have the heart, the courage, and the will to make it so, or whether we will opt for expedience and call it mercy.” [p. 149]

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Klooster case update: Ruth gets husband backContrary to an earlier settlement agreed upon by both the Michigan and California sides of the Klooster family, Alzheimer’s patient Dr. Gerald Klooster, Sr., has been returned to his wife, Ruth, who, last fall, planned to end her husband’s life with the help of Jack Kevorkian. (See Updates, 4/96:6; 1-3/96:6; 11-12/95:1.) California Superior Court Judge William McKinstry ruled on 6/10/96 that it would be in Gerald Sr.’s best interest to return him home to be with his wife. One of the Kloosters’ sons, Dr. Gerald (Chip) Klooster, a Michigan osteopathic physician, disagrees, saying that Judge McKinstry’s decision “puts my father’s life in jeopardy.”

Last November, Chip had learned that his mother, a Hemlock Society member, had been in contact with Kevorkian for the purpose of ending his father’s life. A flight to Michigan had been booked, and a reservation was made under the name Gerald Klooster for a motel near the home of Kevorkian assistant Neal Nicol. Nicol’s home has been the site of several of the Kevorkian-assisted deaths. Chip flew to Florida where his parents were vacationing, and took Gerald Sr. back to Chip’s home in Michigan. If Chip had not removed his father from Ruth’s control, the elder Klooster, who has repeatedly said he wants to live, might have unknowingly become Kevorkian’s 27th victim.

After an ugly court fight which spanned two states and pitted family member against family member, a settlement was struck in April. Chip would return his father to California if his mother, sister, and brothers agreed to certain protective provisions, including the requirements that Gerald Sr. live with Chip’s sister, Kristin Hamstra; that Ruth abandon any plans to end her husband’s life, even if assisted suicide or euthanasia ever become legal in California; and that, for a period of 6 months, a third person must be present when Ruth visits with her husband.

But only 2 months after Chip signed the agreement, Judge McKinstry essentially nullified several of its protective provisions by ruling that Gerald Sr. should live with Ruth unsupervised. “I’ve heard about Dr. Klooster becoming agitated on occasion, which makes me very, very concerned,” Judge McKinstry said. “I believe it is in the best interests of the conservatee to reside in his home with his wife.” Lawyers for the California Kloosters had argued that living in Kristin’s home with her three children was upsetting to Gerald, Sr., and he would be happier in a quieter environment with Ruth. They also claimed that phone calls from Chip were upsetting to his father, so McKinstry ruled that the elder Gerald is not required to talk to any family member. Chip reportedly had tried calling his father many times, but Kristin and his brothers rarely allowed him to speak with his father, a direct violation of the April agreement which granted Michigan relatives telephone visitation rights.

Chip, who flew to California for the latest hearing, told reporters, “My mom had the suicide all planned out and I haven’t seen any evidence that the plans have changed.” “My mom’s probably relieved now because she thinks she has another opportunity,” he added. “If my father’s life is ended, it’ll be presented to Judge McKinstry at that point.” [Oakland Tribune, 6/11/96; Associated Press, 6/11/96; San Francisco Chronicle, 6/12/96]

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George Delury goes to jail and becomes celebrity spokesperson for right to die

George Delury, the 62-year-old former editor of the World Almanac who assisted in the 7/4/95 death of his disabled wife, Myrna Lebov, is currently serving a six month sentence in a NY jail. He will likely be released after four months.

Delury, who kept a computer diary entitled, “Countdown: A Daily Log of Myrna’s Mental State and View Toward Death,” originally pleaded not guilty to second-degree manslaughter, then changed his plea to guilty (as part of a plea bargain for a lesser charge of attempted manslaughter) after prosecutors released transcripts of the diary. The diary revealed the dark side of Delury’s true motivations in giving his wife, who had multiple sclerosis, a lethal drink containing an antidepressant and honey. According to the computer log, Delury viewed his wife as a burden who was “sucking my life out of [me] like a vampire and nobody cares.” Referring to Myrna, he added, “…I no longer believe in you.” [Diary entry for 3/27/95, p. 7; see also, Updates, 3/96:7 & 11-12/95:3.]

But Delury has become somewhat of a celebrity, despite the diary and his admission that he cashed his wife’s $50,000 lump-sum disability check against her wishes because he was anticipating her death and figured the money would pay off his debts and allow him to live more comfortably.

Delury was invited to speak at the American Psychiatric Association’s annual meeting on 5/7/95, a little over a week before his scheduled incarceration. He took that opportunity to promote his eugenic views about the right to die:

“Let me suggest a simple solution…. Suppose hopelessly-ill people or people past age sixty just apply for a license to die, notify the state that they intend to exercise their option as human beings with free wills at some future time, with or without assistance as required. I should think that such a license would be, should be, granted on request without examination by doctors, without securing the permission of any professional experts, provided that no immediate family member, with immediate personal… practical interest in this person’s continued life, object [sic]…. We have to think. We cannot continue to let sentimentality rule our thinking about moral contradictions in the medical enterprise….” [Transcript of audio tape, Address by George Delury to the Amer. Psychiatric Assoc., 5/7/96]

Again, on the 5/16/96 edition of CNBC’s “The Charles Grodin Show,” Delury took on celebrity status for his role in his wife’s death. Host and actor Charles Grodin, an admitted supporter of assisted suicide, used the opening to his show to dramatically (and tearfully) portray Delury as a loving, devoted husband who was unjustly sentenced for the compassionate act of assisted suicide. During the ensuing interview, Delury expounded once more on his eugenic views:

Delury: “This country is not too sane about death…. People have to think about it in advance and be prepared to act to save their families a great deal of distress, and themselves. Quite simply, I believe that if

God requires us to live a little less than angels, he certainly can’t require that we die like animals — unaware, terrified, without recognizing the value of our death to society.”

Grodin: “Keeping others from suffering…”

Delury: “Keeping others from suffering, but making room for the new that is coming.” [Transcript, “The Charles Grodin Show,” 5/16/1996]

IAETF legal consultant Wesley J. Smith, who was also featured on the same program, but not on camera at the time of this Delury/Grodin exchange, later commented, “I was shocked that, without any pause from Grodin, Delury was saying that disabled people should die and get out of the way.”

But Grodin is not Delury’s only supporter. Hemlock Society co-founder Derek Humphry (who helped his first wife with breast cancer to die and then abandoned his second wife when she was diagnosed with breast cancer) wrote about his view of Delury and Delury’s diary on his Internet “right to die” subscriber forum:

“Much has been made of the ‘admissions’ which Mr. Delury unwisely left on a computer disc. It is said (by prosecutors, of course) that these remarks virtually condemned him. But I don’t see them that way. I read them in the New York Times (and on this list) and they seemed to me to reflect the understandable anguish of a person facing the role of helping a loved one die. I, like many of you, have been there.”

Humphry also wrote that Delury made “a mistake both for himself and the cause of assisted suicide” by pleading guilty. According to Humphry, “A caring and fluent lawyer could have told a jury trying Mr. Delury that there were different ways to interpret these remarks in the computer diary.” “…I hear (2nd hand) that Dr. Kevorkian’s lawyer, Geoffrey Fieger, would have helped,” Humphry wrote. [Derek Humphry, “Right to Die” Internet Mailing List and Forum, 5/19/96]

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Questionable survey published on nurses and euthanasia

The 5/23/96 issue of The New England Journal of Medicine (NEJM) carried an article entitled, “The Role of Critical Care Nurses in Euthanasia and Assisted Suicide.” The article reported on a mail survey, conducted by David A. Asch, M.D., of the University of Pennsylvania, which found that 16% of critical care nurses who responded had engaged in the practice of euthanasia or assisted-suicide at least once, 4% said that they had hastened a patient’s death by not providing doctor-ordered life-sustaining treatment, 4.8% indicated that had hastened death at the request of the patient, 8.7% at the request of the family or surrogate, 13% at the request of a physician, 1.2% at the request of another nurse, and “at least” 7% reported that they hastened death without the knowledge of the patient or others. [NEJM, 5/23/96, pp. 1374 & 1376]

Professional reaction to the survey has been generally critical, often pointing out that the survey only added to the confusion which already exists regarding life-sustaining treatment and hastened death. In an edi-torial published in the same NEJM issue, Colleen Scanlon, R.N., J.D., of the American Nurses Association Center for Ethics and Human Rights, stated that “[a] review of the [survey] questionnaire (not included in Asch’s report) arouses substantial concern about the validity of the findings.” “It is hard to imagine that in a 10-minute survey even the most ethically sophisticated of clinicians could have been sure of the meaning of the questions,” wrote Scanlon. “Since confusion and unclear language already plague the debate about these issues, the vagueness of the language used in the questionnaire introduces the likelihood of subjective misinterpretation by both the survey respondents and the researcher.” [NEJM, 5/23/96, pp. 1401-1402]

Disturbed by aspects of the survey, Denise Jacob, R.N., a doctoral student at the Univ. of Michigan, commented, “Since when is failure to decrease pain medication euthanasia? This whole area of practice is troubling enough, and research using imprecise definitions and unclear interpretations does little to shed light.” University of Rochester nursing professor Judith Gedney Baggs, Ph.D., said she hoped people wouldn’t “overlook the major methodological flaws” in the survey. Research data based on anecdotes “are not more scientific and should not be considered more compelling because they were published in the New England Journal of Medicine,” she added.

While Asch has defended his research, saying that the “underlying science” is good, he acknowledged that the subject area is an “extremely confused area.” [American Medical News, 6/10/96:3]

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International news

  • The fate of Australia’s Northern Territory euthanasia law seriously in questionOpposition to Australia’s Northern Territory (NT) euthanasia law has mounted to such a degree that the law may be doomed. The Rights of the Terminally Ill Act technically took effect on 7/1/96, however action taken on both the territorial and federal levels may ultimately kill the law.On 6/18/96, Australian Medical Association Northern Territory President Dr. Chris Wake, in conjunction with Aboriginal leader Rev. Djiniyinni Gondarra, filed a constitutional challenge to the new law with the NT Supreme Court. The legal challenge claims that the legislation is constitutionally invalid because it violates fundamental rights guaranteed in the Australian Constitution, it sanctions the infliction of death without judicial supervision or control, it is inconsistent with the rule of law and the doctrine of the separation of powers, and it is beyond the power of the Northern Territory Government. [Press Release, Australian Medical Association, 6/18/96]

    Then, on 6/25/96, the Federal Government got involved. Prime Minister John Howard opened the door for the Federal Parliament to block NT’s euthanasia law. Howard, who is strongly opposed to the measure, said the Federal Cabinet will meet to discuss the possibility of overriding the law. (The Australian federal government has constitutional power over territories, but not states.) Howard also indicated that he would allow a conscience vote in the Federal Parliament and has given tacit approval to a bill to overturn the NT law. The bill, which will be introduced in September by MP Kevin Andrews, would overturn the law retroactively. This retroactive provision has prompted criticism among many MPs, who otherwise support the bill, as being unduly punitive to doctors and possibly unconstitutional. But Andrews said that “it may well be [that] the problem with retrospectivity doesn’t arise.” The pending legal action against the law, he added, would likely prevent euthanasia deaths until September. [The Age, 6/26/96:1; The Sydney Morning Herald, 7/2/96]

    Meanwhile opposition on the Federal level has broadened significantly with the leaders of all three major political parties coming out against the NT euthanasia measure. Deputy Prime Minister Tim Fischer declared his opposition to the law by saying that doctors who engage in euthanasia would be “practitioners of death.” Health Minister Dr. Wooldridge told Parliament that the Federal Government has embraced the Australian Medical Association’s view that euthanasia is unethical and medically inappropriate. He also said that euthanasia procedures would not be eligible for Medicare benefits. When federal Opposition Leader Kim Beazley announced his anti-euthanasia law position by saying he hoped Federal action would pressure the NT Government to rethink the law, Australia’s national newspaper, The Age, ran an article saying “the fate of the Northern Territory euthanasia law appears sealed.”

    On the territorial level, the NT Government’s chief health officer, Dr. Shirley Hendy, wrote a letter to all NT physicians warning that any doctor who engaged in euthanasia before the legal challenges are concluded could face murder or manslaughter charges. She told the physicians that, if the legal challenges are successful, “the likely effect is that the act would be invalid from the outset.” [The Age, On-Line Australian Digest, 6/28/99]

  • Canadian doctor charged with assisted suicide

Dr. Maurice Généreux, 49, a Toronto doctor specializing in patients with HIV and AIDS, has been formally charged with assisted suicide, a criminal offense in Canada carrying a maximum sentence of 14 years in prison. It is believed that Généreux is the first physician ever to be charged with that crime in Canada.

Généreux is charged with assisting in the death of his patient, Aaron McGinn, 31, who had been diagnosed with HIV in 1990, but had not yet developed AIDS. McGinn died on 4/11/96 after he intentionally overdosed on Seconal which Généreux had prescribed for him months earlier.

Originally McGinn’s death was attributed to AIDS, but a call to the Toronto coroner’s office alerted authorities to the fact McGinn’s death was not what it seemed. After an investigation by the coroner’s office, Généreux was formally charged.

Reportedly, McGinn was known to be a manic-depressive and had been under psychiatric care for that condition. Most recently, he was on disability leave from his job as a business analyst, not because of his HIV infection, but because of his depression. His close friend, Steve Minuk, described McGinn as “haunted by ghosts which denied him peace of mind.” Minuk also said that McGinn’s “physical health was fine at the time he decided to take matters into his own hands.”

According to Toronto’s Globe and Mail, this is not the first time Généreux has been in trouble. In 1994 he was convicted of 6 counts of sexual misconduct with his patients. His medical license was suspended for 24 months, but after only nine months he was allowed to practice again on the condition that, for a period of 15 months, a third person be present during physical exams of patients. His suspension was cut short because of a shortage of doctors specializing in AIDS. [Globe and Mail, 6/21/96; AP, 6/24/96]