Update 005: Volume 10, Number 5 (October-November 1996)

U.S. Supreme Court to rule on constitutionality of assisted suicide

The issue of whether the U.S. Constitution’s Fourteenth Amendment guarantees a right to die with medical assistance is now in the hands of the U.S. Supreme Court. On 10/1/96, the country’s highest court agreed to jointly review two extremely controversial and contradictory rulings issued by the U.S. Ninth and Second Circuit Courts of Appeals, respectively.

Both rulings under review found that state anti-assisted suicide laws violate the Fourteenth Amendment — but for different reasons. On 3/6/96, the Ninth Circuit Court of Appeals, based in San Francisco, struck down Washington State’s 142-year-old law making it a felony for anyone to cause or aid another to attempt suicide. According to the court, “there is a constitutionally-protected liberty interest in determining the time and manner of one’s own death,” and “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 CirMar 6, 1996) at 3; see also, Update 1-3/96:1]

Less than a month later, the Second Circuit Court of Appeals, based in New York, ruled that New York State’s two anti-assisted suicide laws were also unconstitutional, saying that the laws violate the Equal Protection Clause, not the Due Process Clause, of the Fourteenth Amendment. In fact, the Second Circuit rejected outright the argument, espoused by the Ninth Circuit, that there exists a constitutionally-protected right to die. “The right to assisted suicide finds no cognizable basis in the Constitution’s language or design, even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death,” the Second Circuit said. “We therefore decline… to identify a new fundamental right, in the absence of a clear direction from the [U.S. Supreme] Court whose precedents we are bound to follow.” [Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996) at 724-725; see also, Update, 4/96:1]

Instead, the Second Circuit based its ruling on the argument that the two anti-assisted suicide laws prevent the equal treatment of terminally-ill patients. According to the court, terminally-ill patients on life-support can legally hasten their own deaths with medical assistance by directing that life-support measures be removed or withheld, but terminally-ill patients not on life support cannot legally get medical assistance to hasten their deaths, because of the two laws banning assisted suicide. [Quill v. Vacco, at 729]

By so ruling, the Second Circuit overlooked a long-held, major legal distinction between the removal of unwanted, bodily-invasive, life-sustaining treatment and assisted suicide. To force or require invasive life-sustaining measures against a patient’s wishes constitutes an invasion or violation of bodily integrity. It is this right against bodily intrusion which is the basis of the legal right to refuse life-sustaining treatment. State bans on assisted suicide involve no such intrusions and, in fact, protect vulnerable patients from bodily harm. But apparently this distinction was ignored by the Second Circuit, which also rejected the distinction between letting a patient die and making a patient die, as is the case with assisted suicide.

Many legal experts and others see the U.S. Supreme Court’s decision to review both the Ninth and Second Circuit rulings as a sign that the justices may reverse the lower courts. Constitutional law expert Yale Kamisar said, “[B]ased upon previous cases and based on general precedent, I think there is a very good chance that the court will overturn both rulings.” “I don’t think the court is kind of calling for closure in the fight over abortion and in the next breath opening a new battle over assisted suicide,” Kamisar added. [Detroit Free Press, 10/2/96; Detroit News, 10/2/96] Michigan prosecutor and Kevorkian foe Richard Thompson agreed. “It’s my prediction that the court will reverse those decisions and allow individual states to make political decisions based on policy rather than on the Constitution,” Thompson said. [Detroit Free Press, 10/2/96] Unlikely as it may seem, Kevorkian lawyer Geoffrey Fieger agreed with both Kamisar and Thompson. “They [the Supreme Court justices] don’t want it [assisted suicide] to be the law,” commented Fieger. “If they wanted it to be the law, the easiest thing they could do is turn (a review) down.” [Detroit News, 10/2/96] University of Southern California constitutional law professor Erwin Chemerinski concurred, saying that the Supreme Court is very “reluctant to recognize new constitutional rights.” [USA Today, 10/1/96]

In addition to being hesitant to create new constitutional rights, the justices may also be concerned about maintaining the balance of power between the states and the federal government. Referring to the Ninth and Second Circuit rulings, University of Chicago law professor Michael McConnell commented, “This looks like a bald-faced example of judges making law on their own. I think it is extremely likely they will be reversed.” [Los Angeles Times, 10/2/96]

One member of the Supreme Court has already voiced his view on this subject. Last April, Justice Antonin Scalia told students at Bridgewater College in Virginia that assisted suicide was not an issue the Supreme Court should decide. “Why would you leave that to nine lawyers, for heaven’s sake?” he asked. “It’s better to let the people decide.” [Washington Post, 10/1/96] Again on October 18, Justice Scalia told a group at Catholic University, “It’s absolutely plain there is no right to die.” “It doesn’t belong in the Supreme Court as a constitutional question,” he said. [USA Today, 10/28/96; AP, 10/28/96]

This question of federalism was the basis of Washington State’s petition for review to the Supreme Court. Washington argued that, if the Ninth Circuit decision is allowed to stand, it would create “an expansive and intrusive role for the federal judiciary in reviewing State statutes.” [State of Washington v. Glucksberg et al., Petition for a Writ of Certiorari, July 3, 1996] In a press release issued after the Supreme Court agreed to hear the case, Washington Attorney General Christine Gregoire reiterated the argument for states’ rights: “We will continue, as we have throughout this litigation, to defend the statute and protect the ability of the State Legislature and Washington voters to decide what the law should be.” [Press Release, 10/1/96]

But not all legal professionals think that the high court will reverse the right-to-die rulings. Columbia University law professor Michael Dorf, a recent Court clerk, said that a Supreme Court majority might uphold a constitutionally-protected right to die if it is narrowly limited to only the terminally ill. “You won’t see a broadly written opinion that goes either way,” he said, adding that, in these cases, you don’t have “innocent human life” whose interests have to be protected by the state. [Los Angeles Times, 10/2/96] Right-to-die attorney Kathryn Tucker, who argued both cases before the Ninth and Second Circuits, said, “I’m optimistic that a majority of the justices agree with the large number of federal judges who’ve already reviewed the issue and found there is a constitutional right. Either theory [due process or equal protection argument] would protect this choice.” But Rita Marker, IAETF’s executive director, disagreed. “There certainly is no constitutional right to be killed,” Marker said. “Never has the court ever hinted that anyone has any right to be killed by one’s doctor or be poisoned or gassed to death.” [The Washington Times, 10/2/96]

Regarding the notion that the Supreme Court may be able to effectively limit assisted suicide to only the terminally ill, Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, warned, “Let nobody think that this is an argument about putting to death people with terminal cancer.” “That will last about five minutes. Then it will move to ‘I don’t want to be alive with Alzheimer’s disease. I’m not terminally ill, but by the time I am I will not be able to ask for help in dying.'” Then there would be the even more problematic cases involving a third party or surrogate making decisions for an incompetent patient, Caplan explained, where people would say, “My mother always said she didn’t want to be kept alive if she had Alzheimer’s disease.” [New York Times, 10/20/96:8]

Oral arguments in both the Ninth and Second Circuit cases will probably be heard in January 1997. A final decision by the Supreme Court is expected early next summer.

What the 14th Amendment Actually States

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Editor’s note: The IAETF has submitted an amicus brief to the U.S. Supreme Court in support of overturning the circuit court rulings. There will be more on this and other briefs in the next Update.

Related Supreme Court action: The U.S. Supreme Court denied a petition filed by Kevorkian’s attorneys asking the Court to overturn a 1991 permanent injunction barring Kevorkian from assisting in suicides (see Update, 7-9/96:7) By denying Kevorkian’s appeal, the high court justices, without comment, let stand an earlier Michigan Supreme Court decision upholding the injunction. For more information, see article on Kevorkian in this Update.

The Supreme Court also denied the State of California’s petition for review of a decision by Federal District Judge Consuela Marshall, which cited the Ninth Circuit’s ruling as justification for declaring California’s anti-assisted suicide law unconstitutional. Since Judge Marshall’s court is under the Ninth Circuit’s jurisdiction, the Supreme Court’s refusal to hear this case has

little impact, because the outcome of this California case will be directly affected by the outcome of the Washington case. But Judge Marshall’s decision will be most significant — if the Supreme Court overturns the Ninth Circuit and rules that it is up to individual states to decide if assisted suicide should be legal — because Judge Marshall ruled that California’s long-standing law banning assisted suicide does not violate the California constitution’s right to privacy clause. [Kevorkian & Doe v. Arnett, Medical Board of California, & Lungren, CV-94-6089 CBM (Kx), Order, 9/11/96]

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U.S. House subcommittee chair issues report on Dutch euthanasia and assisted suicide

The chairman of the House Judiciary Committee’s Subcommittee on the Constitution has issued a report on the practices of physician-assisted suicide and euthanasia in the Netherlands. Subcommittee chairman and Florida Representative Charles T. Canady issued the report because “[r]ecent legal developments in the United States have driven this country to a crossroads — similar to that faced in the Netherlands in the 1970’s and 1980’s — regarding whether physician-assisted suicide will be an accepted practice.” [Charles T. Canady, “Physician-Assisted Suicide and Euthanasia in the Netherlands,” Report to House Subcommittee on the Constitution, 9/96:2] Last April, Canady chaired a House oversight hearing, entitled “Assisted Suicide in the United States,” in response to the Ninth and Second U.S. Court of Appeals rulings on the unconstitutionality of anti-assisted suicide laws (see Update, 5-6/96:8).

The report chronicles in some detail the Dutch experience with induced death practices — going from complete illegality to illegal but acceptable under certain guidelines; from voluntary to involuntary; from just for the terminally ill to acceptable for the chronically ill, the disabled, the depressed, and the mentally disturbed; and from terminating the lives of adults to killing babies and children. The 21-page report concludes:

“The Dutch experience vividly shows how judicial sanctioning of physician-assisted suicide for terminally-ill patients motivated by supposedly high ideals such as the right to individual self-determination and the ‘compassionate’ alleviation of physical suffering can easily lead to the unchecked nightmare of non-consensual termination of human life. Simply put, an individual’s so-called ‘right to die,’ over time, can be transformed into a demand by society that certain individuals have a ‘duty to die.’ This is the slope down which the Netherlands has slid. The tragedy of the situation in the Netherlands should serve as a graphic reminder to courts and legislatures in this nation that there is no way to regulate euthanasia. There is no way to stop the slide once a society steps onto the slippery slope by legalizing physician-assisted suicide.” [p. 21]

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Act to prohibit federal funding of assisted suicide introduced

Senate (S. 2108) and House (HR. 4149) versions of the “Assisted Suicide Funding Restriction Act” (ASFRA) were introduced in the waning days of the 104th Congress. The bills, which garnered strong bipartisan support, were necessary, sponsors said, because of the passage of Oregon’s Death with Dignity Act legalizing assisted suicide and recent court decisions. While the Oregon law is currently being challenged on constitutional grounds and has yet to go into effect, the director of Oregon’s Medicaid program has already indicated that federal Medicaid funds would be used to reimburse physician-assisted suicide services if the law is ever enacted. [New York Times, 9/28/96; AP, 9/28/96]

ASFRA would prohibit the use of any federal money “to provide, procure, furnish, fund, or support, any item, good, benefit, program, or service, the purpose of which is to cause, or to assist in causing, the suicide, euthanasia, or mercy killing of any individual.” [“Assisted Suicide Funding Restriction Act of 1996,” Sec. 2] The programs affected by ASFRA would include Medicare, Medicaid, the military health care system, Federal Employees Health Benefits plans, Public Health Service programs, programs for the disabled, and the Indian Health Service.

The Senate version was introduced on 9/24/96 by Senators Byron Dorgan (D-ND) and John Ashcroft (R-MO) and has a total of 17 bipartisan co-sponsors. When introducing the bill, Sen. Dorgan told those assembled, “The majority of taxpayers I have talked to do not want their tax money used to assist in suicides. In fact, when asked in a poll in May of this year whether tax dollars should be spent for assisting suicide, 83% of taxpayers feel tax money should not be spent for this purpose.” Sen. Dorgan also said that he and his co-sponsors introduced the bill late in the legislative session so that, when it is reintroduced in the next Congress, the bill’s progress would be facilitated. [Congressional Record, 9/24/96, p. S11175]

The same strategy is planned for the House version, which was also introduced on 9/24/96 by Rep. Ralph Hall (D-TX) and has 119 members listed as co-sponsors. According to Rep. Hall, “no one has turned me down as a co-sponsor, we just have not had the time to get around to every office.” He added that public support has been “overwhelming.” [Congressional Record, 9/24/96, pp. H10974, H10975]

Both the Senate and House sponsors emphasized that ASFRA does not interfere in any way with the individual’s right to forego life-sustaining treatment nor does it affect the funding of services which are intended to alleviate a patient’s pain or discomfort. [Congressional Record, p. S11175, p. H10975]

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Kevorkian saga continues: New deaths, new charges, new facts

Since last reported in the Update, the man referred to as Dr. Death has increased his body count by five, bringing the total known deaths to at least 45. As Jack Kevorkian and his associates continued their orchestrated “cat and mouse” game with the law and as previously unknown information surfaced about a couple of the victims, authorities in two Michigan counties filed multiple new charges against Kevorkian and his death team.

  • New deaths
  • Kevorkian’s secret participation in the deaths of Michigan residents was confirmed on 11/4/96 when lawyer Geoffrey Fieger announced at a press conference that his client had indeed assisted in the 8/30/96 death of Loretta Peabody, 54. Authorities had not been alerted to Peabody’s death until 9/6/96 when police confiscated a video tape showing Kevorkian and Janet Good, former head of the Michigan Hemlock Society, conferring with Peabody, who had multiple sclerosis, and her husband at their Ionia County home. The tape was part of several pieces of evidence which police found in the motel room of Kevorkian’s 40th victim, Isabel Correa, the night before she died. Initially Fieger denied knowing about any connection between his client and Peabody’s death. At that point, her death had been thought to be from natural causes, and her body had been cremated. Fieger told reporters, “I had no knowledge of Peabody. But if it were up to me, I’d tell all the families and friends of the patients to tell the police they went to Disneyland and fell off the mouse ride.” But Ionia County authorities took the video taped evidence seriously, and county prosecutor Raymond Voet convened a grand jury to investigate whether charges should be brought against Kevorkian. [New York Times, 9/21/96, 11/5/96; Detroit Free Press, 11/5/96]

    In addition to Loretta Peabody, there have been four others, all non-Michigan residents, who have recently died under Kevorkian’s supervision. Richard Faw, 71, of Wilson, NC, died on 9/29/96. His death was announced by Fieger as he began an address to a group gathered at Northeastern University. He told the shocked audience that they were the first to know that Faw’s death had occurred “just moments ago.” [Boston Globe, 9/30/96:B3] Fieger also said that Faw, who had colon cancer, was experiencing “unbearable suffering.” “He was said to be in excruciating pain and crying out screaming at times because the pain was so unbearable,” Fieger added. But according to The Detroit News, Faw, a psychiatrist and general practitioner, had continued to see patients in his office up until the week before he died. [AP, 9/30/96; Reuter, 9/29/96; Detroit News, 1/1/96]

    Kevorkian’s next victim, Wallace Joseph Spolar, 69, from Horizon City, TX, had multiple sclerosis. According to Oakland County (MI) Medical Examiner L.J. Dragovic, Spolar’s condition was not terminal. Fieger told reporters that Spolar wanted to die because he was afraid of one day ending up in “one of those rat-infested nursing homes to be warehoused by ‘Nurse Ratched.'” (Fieger was referring to the mean-spirited nurse in “One Flew Over the Cuckoo’s Nest.”) [El Paso Herald-Post, 10/10/96, Oakland Press (MI), 10/11/96] Fieger’s nursing home comment may have been intended to play on the sympathies of Michigan citizens since, at the time of Spolar’s 10/10/96 death, the Detroit Free Press was in the process of running a lengthy 5-part series detailing the appalling conditions and abuses found in many Michigan nursing homes. In fact, on the very morning of Spolar’s death, the Free Press’ special report contained a photograph specifically illustrating the abuse referred to as “warehousing.” [Alison Young, “Who Cares? Inside Michigan’s Nursing Homes,” Part 4, Detroit Free Press, 10/10/96]

    The next person to die was Nancy DeSoto, 55, from Bourbonnais, IL. She had Lou Gehrig’s disease (ALS). On 10/16/96, the night before her death, Kevorkian and his assistant Janet Good were briefly detained by police after they conducted a “consultation” session with DeSoto at her motel. No arrests were made. Fieger pounced on the opportunity to call the police “Gestapo” and claimed that DeSoto had come to Michigan only to talk with Kevorkian, not to die. Yet, on 10/17/96, barely 14 hours after he met her at the motel, Kevorkian dropped off DeSoto’s body at Beaumont Hospital in Royal Oak, MI. One of the so-called “strict” guidelines, which Kevorkian and his Physicians for Mercy group developed last year, was that an assisted suicide must not occur less than 24 hours after the consultation and consent form signing session. The DeSoto case is clearly another example of Kevorkian’s inability to follow even his own rules. [AP, 10/17/96; Detroit Free Press, 10/17/96; Detroit News, 10/17/96; Oakland Press, 10/20/96]

    The most recent Kevorkian death was that of Barbara Ann Collins, 65, of Falmouth, MA. She died on 10/23/96. Collins, who had terminal ovarian cancer, was described by those who knew her as reclusive. She lived alone, had no family nearby, and feared becoming a burden on others. Her only living family member was a sister in Oregon with whom she was reportedly estranged. When Kevorkian delivered Collins’ body to Beaumont Hospital, police stopped him for questioning. According to Fieger, “Four police officers assaulted him, stole his car and held him there for two hours.” Fieger further claimed, “They bruised his elbow and his back…. This is plain and simple harassment… and thuggery.” [Boston Globe, 10/25/96; Oakland Press, 10/25/96:A1] But, once again, Fieger’s version of what happened may have been spun more for effect than anything else. Three hospital employees who witnessed the altercation supported the police account of what transpired. It was Kevorkian, not the police, who became violent, kicking and punching the officers when they told him they were going to impound his car as evidence. He then threw himself down on the ground and screamed, “Arrest me. Arrest me.” Later, Kevorkian picketed in front of the Royal Oak police station, carrying a homemade sign with a swastika and the words, “Royal Oak Gestapo Stole My Car!” [Oakland Press, 10/25/96; Detroit News, 10/25/96]

  • New charges
  • On 10/15/96, when the U.S. Supreme Court denied Kevorkian’s petition asking the Court to overturn a 1991 permanent injunction barring him from assisting in suicides (see Update, 7-9/96:7), speculation began to mount as to the likelihood of new charges being filed by Oakland County Prosecutor Richard Thompson. Thompson, who lost his bid for re-election and will leave office on December 31, made no secret of his intention to bring Kevorkian back to court. [Oakland Press, 10/16/96:A1; Detroit Free Press, 10/16/96] Thompson’s first move was to cite Kevorkian on four counts of violating the injunction and served the death doctor with a notice requiring him to explain why he should not be found in contempt. [AP, 10/29/96; Detroit News, 10/30/96]

    But the real bombshell came a few days later when Thompson charged Kevorkian with 19 criminal counts stemming from 10 assisted deaths since last June. Kevorkian stands charged with felony assisted suicide in the deaths of Bette Lou Hamilton (6/20/96), Shirley Cline (7/4/96), and Rebecca Badger (7/9/96), and with attempted assisted suicide in the death of Isabel Correa (9/7/96). In addition, Kevorkian is charged with conspiracy, presenting himself as a practicing physician while engaging in unlawful conduct, removing dead bodies without the medical examiner’s permission, and possession of a controlled substance. But Thompson did not stop there. Charges were also filed against long-time Kevorkian associate Neal Nicol (who, according to the complaint, actually inserted the lethal IV line in the arms of both Shirley Cline and Rebecca Badger) and Dr. Georges Reding (the psychiatrist who evaluated the victims and told the NY Times [8/11/96], “They have all been more sane than I am.”). Former Michigan Hemlock Society director Janet Good was listed as “an uncharged co-conspirator.” Good has terminal pancreatic cancer. [Complaint, People v. Jack Kevorkian, Neal Nicol, & Georges Reding, Pros. Order No. 96-88968, 10/31/96]

    Kevorkian, Nicol, and Reding have all pled innocent and were released on personal bond. As a condition of their bond, Nicol and Reding have agreed not to participate in any assisted suicides. Kevorkian, however, was released without having to agree to end his death-producing activities after Fieger reminded the judge about Kevorkian’s “hunger strike” during a previous jailing. “This is not going to be the court that will make a martyr out of Dr. Kevorkian,” the judge said. [Reuter, 11/1/96; AP, 11/1/96]

    It is still unclear what will happen when the new prosecutor, Dave Gorcyca, takes over Thompson’s job in January. During his campaign, Gorcyca publicly stated that prosecuting Kevorkian under Michigan’s common law was a waste of taxpayers’ money. But after Thompson charged Kevorkian, Gorcyca indicated that he would have to look at the charges and the evidence before deciding whether to proceed with the prosecution. “What if it’s one of the strongest cases, factually, brought to date?” Gorcyca asked reporters. [Detroit Free Press, 11/1/96]

    But Kevorkian’s legal problems are not just limited to Oakland County. An Ionia County grand jury has indicted Kevorkian and Janet Good on four new felony counts in the assisted death of Loretta Peabody. The charges against Good, however, may be dropped if she can provide proof that she has terminal cancer. While authorities have the video tape with Kevorkian and Good talking to Peabody and her husband prior to her death, Fieger contends that the prosecution has no case. Peabody’s death certificate states that death resulted from natural causes, and her body was cremated. “There’s no body, no cause of death, no evidence,” Fieger told reporters. But Peabody’s family testified before the grand jury once they were granted immunity, and earlier her husband told police that Kevorkian had instructed him on how to mislead the authorities when reporting her death. Kevorkian and Good were arraigned and released on personal bond, but Kevorkian had to agree to stop assisting in suicides while awaiting trial. Good has hinted that she may carry on with the deaths. [Detroit Free Press, 11/13/96, 11/14/96; Detroit News, 11/8/96, 11/13/96]

  • New facts
  • In addition to the previously unknown fact that Kevorkian had been involved in the death of Loretta Peabody, other new facts surrounding the death of Rebecca Badger have also surfaced. Badger was Kevorkian’s 33rd known victim, and he faces felony charges related to her death in Oakland County. Kevorkian thought she had multiple sclerosis. She appeared very disabled, but an autopsy found no physical disease. (See Update, 7-9/96:2)

    According to two revealing investigative reports published in the Detroit Free Press, Badger was a “disturbed and confused woman who vacillated between a desire to die and a fervent wish to live.” On top of that, Badger may have been pushed into committing suicide by her mother. Five months before she kept her 7/9/96 death appointment with Kevorkian, Badger told California police on tape that her mother had given her narcotics on two occasions (the first time was on Christmas Eve) and urged her to kill herself. Both attempts failed, and Badger ended up in the hospital each time. Hospital records verify that. Badger also told police that she was frightened of her mother and, because she (Badger) was so “very, very depressed,” she agreed to go along with her mother’s plan. But after the second suicide attempt, Badger, 39, told police, again on tape, that she really wanted to live. “I’ve got a lot to give,” she explained. “I’m still young.” Badger’s step-father denied her accusations against her mother, saying, “She’s a hypochondriac that twists things and makes them worse than they were.” When Fieger was informed about the police tape of Badger’s comments, he said, “What’s the point? I do not care if she thought Martians were coming after her.” [Detroit Free Press, 10/31/96]

    According to personal accounts, Badger remained ambivalent about ending her life. Three days before she left for Michigan, Badger called her ex-husband. “She said she wanted someone to intervene…,” Fred Riley said. He declined to be that “someone” because he didn’t think she would go through with it. When in Michigan, Badger called her best friend, Cecelia Moody, late on the day she died. “She said, ‘What do you think?’ And I hesitated,” Moody recalled. “There was doubt in her voice. But before I could answer, she said, ‘Dr. Kevorkian just got here. I have to go.'” Badger’s daughter Misty also received a call late that day. “She said there’s no way she can tell until the moment comes if she’s going to do it,” Misty said. “I asked her how she could even be there if she wasn’t sure, if she had doubt. She never answered me. She said she had to go, that Dr. Kevorkian just arrived.”

    Christy Nichols, Badger’s other daughter, was present when her mother died in the Michigan hotel room. Nichols said Kevorkian and an associate arrived, and, never having met Badger before, Kevorkian introduced himself. Paperwork was then signed, and a brief psychological interview conducted. “They put the needle in her arm and handed her a switch,” Nichols recalled. “And they said when you’re ready, just pull on the string.” But when Badger pulled the string, something went wrong. “She was supposed to go to sleep,” Nichols explained. “But she got a burning sensation in her arm and she kept saying, ‘Ow. It hurts. It hurts.'” “They had to fix it. It took a couple minutes, but she finally went to sleep,” Nichols said. “I just watched when she took her last breath.” [Detroit Free Press, 11/4/96]

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A High Quad Answers Kevorkian’s “Quality of Life” Theory



By Mark O’Brien

There’s a killer on the loose. He doesn’t kill boys as did John Wayne Gacy. That would get him into trouble.

He doesn’t kill women as did Ted Bundy. That would get him into trouble. He kills disabled people.

Perhaps it’s appropriate that killers specialize these days. Healers have been specializing for years. And by limiting his killing to disabled people, Dr. Jack Kevorkian stays out of jail.

If he’d chosen another specialty, it is likely he would now reside in one of the less comfortable places in the Michigan correctional system. He might even be dead.

Kevorkian has said, “Let my critics consider the quality of life of a high quad who’s dependent on a ventilator.”

I am such a high quad, that being medical jargon for a person who has suffered an injury high up on the spinal cord. As a high quad, I cannot move my arms or legs, hands or feet. This is so with most high quads. I need a ventilator, that is, a respirator, to help me breathe. I ask you to consider the quality of my life.

I live in a pleasant new apartment in Berkeley, California, one of the most interesting small cities in the world. I write articles for newspapers and magazines, and commentaries for radio. My poetry has been published.

I have tons of books, an alarming collection of cassettes and CDs, a girlfriend, a web site, a documentary film about me and a proclamation from the city of Berkeley declaring Mark O’Brien Day. Who could ask for anything more?

Now I ask you to consider Kevorkian’s quality of life. His main interest, nay, his obsession, is killing disabled people or people who say they are disabled.

This mostly cashes out to mean depressed middle-aged women. They come to Kevorkian seeking release through death. Occasionally, Kevorkian is put on trial for murder. This gives him a chance to pose as the humane martyr to the laws passed by insensitive politicians.

He has never been convicted. The jurors say afterward, Oh yes, they would rather be dead than be, horrible shudder, confined to a wheelchair.

Well, how do they know?

Have they ever been disabled? Have they ever had a serious discussion with a disabled person? Has the prosecution had the sense to call a disabled person to the witness stand to testify that many factors beside medical condition affect a person’s quality of life?

The answers to these questions are no, no and no. The most likely source of the jurors’ wisdom is the memory of their parents’ hushed talk of Uncle Mitch, who was shot up in the war.

Kevorkian’s quality of life doesn’t sound so hot to me. A serial killer who has the intelligence to pick on a despised minority doesn’t sound like he has much to live for.

I would be tempted to help Kevorkian put an end to his existence, but I don’t believe in telling other people what they want. I don’t believe in killing people, not even serial killers. I don’t believe that death is the best solution to the problems of life.

I am part of a national organization called Not Dead Yet. Not Dead Yet opposes the killing of disabled people that is being advocated not only by Kevorkian, but by the slick breed of insurance industry-subsidized thinkers who say some people — usually the poor, elderly and disabled — must be sacrificed to keep medical costs low.

Not Dead Yet says we must all be equal in the eyes of the law, that murder for the sake of lower operating costs is not the American way, that no one can speak for us, the disabled people of America, except ourselves.

Just as we do not presume to know the best interests of those contemplating suicide, Kevorkian should not presume to know ours — let alone to use others’ desperate acts as proof that we would be better off dead than alive.

Mark O’Brien is a quadriplegic who spends all but one or two hours a week in an iron lung. He is a poet and free-lance writer living in Berkeley, California. His commentary was written for the Pacific News Service and appeared in the October 9, 1996, issue of The San Francisco Examiner. It is reprinted here with the permission of the author.

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Hospice poll finds majority would not opt for assisted suicide

A recent Gallup Poll commissioned by the National Hospice Organization found that, while the American public is sharply divided on whether physician-assisted suicide (PAS) should be legalized, the majority of those questioned said that they would not choose PAS for themselves. In fact, seven in 10 adults (70%) indicated that, if terminally ill, they would “seek a hospice program of care until death occurs naturally.” Six out every 10 adults (62%) said that they would pursue “curative treatment.” Only about one-third (35%) indicated that they would ask their physician to end their life. While the respondents were split on the issue of legalizing PAS, the poll found that men were more likely to favor legalization than women. Women, on the other hand, were more likely to say they would seek out a hospice program. When asked about their greatest fears related to dying, respondents listed “being a burden to family and friends” most often, with “pain” being the second most common fear. The findings are based on telephone interviews of 1,007 adults conducted between August 9 and September 4, 1996. Commenting on the poll, National Hospice Organization President Jay Mahoney said, “Though much attention lately has been given to physician-assisted suicide, hospice remains the overwhelming choice for comprehensive, compassionate end-of-life care, last year caring for nearly 390,000 patients across the country.” [National Hospice Organization, Press Release, 10/3/96]

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Most frail elderly oppose physician-assisted suicide and may be at odds with family members

A study on the attitudes of elderly patients and their family members toward physician-assisted suicide (PAS), published in the October 28 issue of Archives of Internal Medicine, found that while the majority of the elderly patients surveyed oppose PAS, the majority of relatives do not.

The study, the first of its kind, surveyed 168 elderly medical and psychiatric outpatients seen at the Duke University Medical Center’s Geriatric Evaluation and Treatment Clinic between July 1993 and March 1995. This clinic provides medical and psychiatric assessments for elderly patients referred from areas throughout the Southeastern United States. The mean age of the elderly study group was 75.8. In addition, 146 family members who accompanied the elderly patients to the clinic were also surveyed. Both groups were systematically questioned regarding attitudes toward PAS in cases of terminal illness, chronic illness, and mental incompetence. Family members were also asked to predict the patients’ answers to the various items on the questionnaire. Patients and family members were interviewed separately and not permitted to see the each others’ responses.

The results showed that only 39.9% of the elderly patients favored PAS in cases of terminal illness, versus 59.3% of relatives favoring the practice. In cases of chronic illness, 18.2% of the patients favored PAS, while 25.3% of relatives approved of the practice. With regard to mental incompetence, there was a far less favorable response in both groups, with 13.5% of patients and 15.4% of relatives approving PAS. On the question of whether PAS should be legalized in their state of residence, relatives again were more likely than patients to respond positively, with only 34.0% of patients versus 55.6% of relatives favoring legalization.

The minority of elderly patients who favored PAS for the terminally ill were more likely to be male, white, not cognitively impaired, have higher incomes, more education, a higher quality of life, and less likely to be a member of a “conservative Protestant denomination.” The most common reason given for favoring PAS was that the practice would “alleviate pain and suffering.” Researchers found only minor differences between the attitudes toward PAS held by the spouses versus the adult children of patients. The adult children, however, were more likely to favor PAS for the chronically ill and less likely to favor PAS for the mentally incompetent. Data also showed little evidence that “overburdened caretaker relatives were more likely to favor PAS.”

The ability of family members to predict patients’ attitudes toward PAS was marginal. According to the study, “Neither spouse nor adult child were consistently better at predicting patient attitudes toward PAS….” Moreover, relatives had difficulty agreeing with each other on what the patient’s actual response would be. “This raises some worry about the effect that different feelings toward PAS by patients and relatives may have on health-care decisions, should PAS be legalized on a widespread basis,” researchers wrote. “Not only were family members often inaccurate in their predictions of how the patient felt about PAS, but they also had difficulty agreeing with each other in this regard,” they added. “These findings are particularly important given the need for substituted judgments concerning PAS, should this practice (though unlikely) be applied to demented patients here as it has in the Netherlands.”

Researchers also noted that elderly patients with health problems are the most likely to be affected by measures which would legalize PAS in the U.S., citing the fact that, in the Netherlands, more than 85% of PAS cases involve medically-ill persons age 50 and over. Researchers further concluded, “Patients opposing PAS represent a particularly vulnerable element of society — the elderly, women, Blacks, the poor, uneducated, demented — and may warrant special protection.” Researchers expressed their concern because “the poorly educated, elderly, demented members of society have little power to influence public policy that may directly affect them.” [Harold G. Koenig et al., “Attitudes of Elderly Patients and Their Families Toward Physician-Assisted Suicide,” Archives of Internal Medicine, 10-28-96:2240-2248]

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A life in peril: Update on the Klooster case

On 9/24/96, Alzheimer’s patient Dr. Gerald Klooster, Sr., 69, was hospitalized and placed in the intensive care unit after ingesting a large amount of whiskey and sleeping pills. He was unconscious and was breathing with the help of a respirator. The police ruled it “an attempted suicide with suspicious circumstances.”

When last reported in the Update, Gerald Klooster, Sr., had been returned to his wife, Ruth, by order of California Superior Court Judge William McKinstry (see Update, 5-6/96:10). Judge McKinstry’s order came after an ugly court battle over the custody of Gerald was waged between family members in California and Michigan.

Last November, one of Klooster’s sons, Dr. Gerald (Chip) Klooster, learned that his mother, Ruth, had made plans to bring his father to Jack Kevorkian. Ruth, a member of the Hemlock Society, planned to take the elder Gerald (who has dementia but has repeatedly said he wants to live) to Kevorkian after the two vacationed in Florida. Instead Chip foiled her plans by going to Florida himself and bringing his father to Chip’s home in Michigan. It was at this point that the legal battle for custody began. (See Updates, 4/96:6; 1-3/96:6; 11-12/95:1.)

But in April 1996 a settlement was struck. Chip agreed to return his father to California on the condition that the California Klooster family abide by certain protective provisions. Included in those provisions were the requirements that Gerald live with Chip’s sister, Kristen Hamstra, and that for a period of six months a third party be present when Ruth visited her husband.

Yet only two months after Chip signed the agreement and returned his father to California, Judge McKinstry essentially nullified those agreed upon provisions at the request of Kristen’s and Ruth’s lawyers, and ruled that Gerald should live with Ruth unsupervised, claiming that it was in Gerald’s best interests. [Oakland Tribune, 6/11/96] By agreeing to send Gerald back to Ruth, Judge McKinstry ignored the ruling of Michigan Probate Judge Frederick Mulhauser who, after a 5-day, fully contested hearing in Michigan, found that Ruth continued to pose a very real threat to the safety of her husband since “[t]here is no evidence that Ruth has changed her mind or plan” to have his life ended. Judge Mulhauser further found that “Kristen is unable to protect her father from her mother,” and, as such, would not be a proper guardian. [Case Summary, 7th Probate Court for the County of Emmet, MI, File No. 95-01060-GD, 3/4/96, pp. 13-14]

A little over three months after returning to Ruth’s care, Gerald became an “attempted suicide” statistic. According to Ruth, she and her husband had planned to have a little whiskey before bed, but instead had fallen asleep. When she awoke a few hours later, she found her husband unconscious on the kitchen floor with the bottle of Jack Daniels whiskey, an empty bottle of expired barbituates, and a coffee cup nearby. She did not immediately call 911. Instead, she made several calls to her children and neighbors. When she finally did call for emergency help, she tried to stop paramedics from assisting her husband, claiming that there was a “do not resuscitate” order on Gerald, but she was unable to produce the appropriate document. Paramedics ignored her protests. [San Francisco Chronicle, 9/25/96:A1; Contra Costa Times, 9/26/96:1A, 9/27/96:12A]

The so-called suicide attempt has caused many to question Ruth’s story. “As far as I know, it is incredibly rare that someone suffering from severe Alzheimer’s can maintain the clarity of thought to plan a suicide,” said sheriff’s Lt. Dave Hoig, who is overseeing an investigation into the matter. [Oakland Tribune, 9/25/96:A1] After a doctor told Chip Klooster that his father had swallowed 60 to 100 pills, Chip said, “My father couldn’t have done this.” “My father’s incapable of physically taking medication,” he explained. “If he had to take medication, we had to put it in his coffee and dissolve it in coffee.” [AP, 9/25/96; San Francisco Chronicle, 9/26/96:A1]

Judge McKinstry, who is responsible for placing Gerald back into Ruth’s care, called a hearing within days of Gerald’s brush with death. “There are a lot of questions that are at present unanswered and cause the court some concern,” he said. The judge revoked Ruth’s custodial rights over her husband and ordered that Gerald live once again with Kristen when he recovered. The judge also reinstated the requirement that Ruth’s visits with her husband be supervised. “I’m not here to pass on accusations, but I have to be responsive,” Judge McKinstry said during the hearing. “I don’t think Mrs. Ruth Klooster’s handling of his situation was appropriate.”

But Judge McKinstry denied a request by Chip’s lawyers to remove his sister as guardian until authorities investigate if Ruth was involved with the suicide attempt. Bette Epstein, one of Chip’s attorneys, said, “[Kristen] Hamstra and the rest of the family are rallying around Mrs. Klooster.” “That may be appropriate in her role as a daughter, but I don’t think that’s appropriate in her role as conservator,” she said. Another Klooster son, Curt, told reporters that he is confident that his mother will be cleared of any wrongdoing, allowing the California Kloosters to once again petition Judge McKinstry to return Gerald to Ruth, his wife of 45 years. [Oakland Tribune, 9/28/96:A1; Contra Costa Times, 9/28/96:1A]

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Medical groups contemplate assisted suicide guidelines

At its annual meeting last September, the Washington State Medical Association’s (WSMA) House of Delegates voted overwhelmingly to become involved in the process of developing physician-assisted suicide (PAS) practice guidelines, in the event that the U.S. Supreme Court does not overturn the Ninth Circuit Court of Appeals ruling, and assisted suicide becomes legal in Washington. Earlier this year, New York State’s health commissioner, Barbara DeBuono, M.D., recommended that NY’s state medical society do the same — just in case the Supreme Court lets the Second Circuit Court of Appeals ruling stand. The Medical Society of the State of New York, however, has not voted on the recommendation.

Many are concerned that, if medical groups engage in PAS guideline development, the wrong message is being conveyed. In the case of the WSMA, the association is already on record opposing PAS. By entering a process aimed at developing PAS standards, WSMA would be sending the opposite message. But the chairman of WSMA’s “end-of-life issues task force,” Peter M. McGough, M.D., said that engaging in the process of guideline development would put WSMA in a strategic position to do “damage control.”

Others, however, disagree. Rep. Charles T. Canady, who issued a report to a U.S. House subcommittee critical of Dutch euthanasia and assisted-suicide practices (see p. 4), said that the situation where medical groups engage in PAS guideline development is “exactly analogous to what occurred in the Netherlands.” There the medical association formulated the guidelines which the courts in turn endorsed. “If our state medical associations promulgate guidelines to regulate physician-assisted suicide, they will point us in the wrong direction,” Canady said. What they should be doing, according to Canady, is saying “to the courts, legislatures and the American people that there is no effective way to regulate physician-assisted suicide and euthanasia.” [Diane Gianelli, “Washington physicians want role in suicide guide-lines,” American Medical News, 10/14/96:4]

The chairman of the AMA’s Council on Ethical and Judicial Affairs, Dr. Charles Plows, has also voiced his concern. “My own opinion is if we produce guidelines, we are indirectly offering some credence to physician-assisted suicide,” he said. “It gives more fuel to the fire.” Plows also said that, at the ethics council’s meeting last summer, the subject of PAS guidelines did come up. “We did talk about it, and decided this was not the proper time,” Plows said. “Most of the action, I think should wait until we get a ruling from the court.”

But some medical providers and philanthropic foundations with right-to-die agendas are actively pushing PAS guideline development. In September, the Stanford University Center for Biomedical Ethics conducted a 2-day “consensus conference,” funded in part by two such foundations, to discuss proper ways of handling patients who want to die. The conference was closed to the public and not announced to the media. It featured 120 invited experts and medical practitioners predominantly from Northern California. “We don’t know what the guidelines ought to look like… but we believe it’s not acceptable to tell people you have no right,” said Tom Layton, executive director of the Gerbode Foundation, which gave $20,000 for the conference and has a track record of funding other projects aimed at promoting right-to-die issues. “Some people will take the position that this should never be done,” commented Dr. Thomas Raffin, the co-director of Stanford’s Center for Biomedical Ethics. “But the main focus of this consensus conference is what is the most reasonable way to approach a practice that, in many cases, already goes on daily,” he added.

Another San Francisco Bay Area group has gone beyond the discussion stage and has already drafted and approved PAS guidelines. On September 18, the group, which calls itself the Bay Area Network of Ethics Committees, approved guidelines which propose to limit assisted suicide to mentally-competent, terminally-ill patients who have been referred to a pain control specialist or a hospice program. The guidelines also indicate that a second medical opinion should be sought and the patient should sign two witnessed consent forms with a 48-hour waiting period between each signing. Before the actual “process of hastening death” occurs, the guidelines say the patient should give some physical indication of consent, like nodding his or her head. According to right-to-die activist Dr. Lonny Shavelson, who helped write the PAS guidelines, “The position we took is we’re not questioning whether it’s right or wrong. We’re saying, if the patient has a right to it, here’s how you respond to that right.”

But most medical organizations who are toying with the idea of PAS guidelines are being more conservative than the San Francisco group. For example, Michigan State Medical Society President Dr. W. Peter McCabe indicated that he has been given authorization to only explore the type of forum which would possibly consider such guidelines. “But considering how things are going with the court decisions,” McCabe explained, “we decided maybe it would at least be a worthy Socratic exercise to see what guidelines might look like.”

Dr. David Spiegel, a Stanford professor of psychiatry who authored a book about depression in breast cancer patients entitled, Living Beyond Limits, is concerned about the direction the so-called academic dialogue regarding PAS guidelines is taking. “Some people are viewing this as a problem of fashion as opposed to a problem of medicine and morality. You know: Double-breasted suits are in, so we’re all going to have to do it,” he said. “I don’t see it that way at all. I think it’s wrong.” [Lori Montgomery, “Doctors ponder suicide guidelines,” Detroit Free Press, 9/26/96]

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Australia sees first euthanasia death as federal government moves to repeal law

  • First euthanasia death under NT lawOn 9/22/96, Bob Dent, a 66-year-old carpenter with prostate cancer, became the first person to die under the Northern Territory’s new euthanasia law. The Rights of the Terminally Ill Act technically took effect on 7/1/95, however, full implementation of the law has been hampered by attempts to overturn it both on the local and federal levels. Northern Territory (NT) doctors have been reluctant to engage in euthanasia, fearing legal repercussions if the law is overturned. But Australia’s Voluntary Euthanasia Society network was able to garner the required three physician signatures needed to end Dent’s live, even paying traveling expenses for Sydney psychiatrist Dr. John Ellard to go to the NT when no local psychiatrist would come forward to sign Dent’s life away. [Sydney Morning Herald, 9/27/96, The Age, 9/26/96]Dent, a NT resident, died using a laptop computer and software developed by euthanasia advocate and NT physician Dr. Philip Nitschke. Nitschke, dubbed Australia’s Dr. Death, inserted IV tubes from a computerized “death machine” which, in turn, supplied the lethal combination of drugs to Dent. Dent’s wife, Judy, was also present. Nitschke later told the press, “My fears about the whole thing was that I was in the executioner’s role.” “I realized what a grisly business it is,” he explained. “I was quite anxious, I was sweating, I was worried that there was sweat on my shirt….I thought, ‘I can’t muck it up.'” Then Nitschke added, “I was half hoping that he [Dent] might change his mind.” [Sydney Morning Herald, 9/27/96]But Nitschke’s self-described anxiety over Dent’s death did not deter him from making his computerized death kit accessible worldwide. His “Self-Deliverance” software is now available on Internet. The IAETF has visited the web site, which contains diagrams showing “the circuitry used in the syringe driver” and “details of how the system works.” The site also provides a simulation of the actual software program as well as the option to download the real software. The program poses three questions, asking if the person understands that by answering “yes” each time he or she will die. But the graphics and instructions on each screen encourage people to select the “yes” option. The first two question screens have two buttons. The one on the right says “YES” in ornate capital letters. The button is even highlighted with a box around the letters. However, the no button on the left is not even labelled “no.” Rather it is an unhighlighted picture of a finger pointing backwards. The accompanying instruction reads, “Press the spacebar twice to answer ‘Yes’ and move to the next screen.” There is no instruction on how to answer “no.” The third screen reads, “In 15 seconds you will be given a lethal injection…..” followed by “Press the spacebar three times to bypass warning and answer yes.” Below that is the instruction, “Press the spacebar now to administer the lethal injection….” Again, there is no written instruction on how to answer “no,” and the “YES” button is highlighted with a box around the letters, while the other button has “NO” in simple print which is not highlighted. The final, deadly screen is all black with only one small box — which reads “EXIT.”
  • Parliament moves closer to repealing NT law
  • A bill, which would repeal the NT euthanasia law by making it impermissible for Australia’s territories to enact laws allowing euthanasia or assisted suicide, appears likely to pass the Australian Parliament’s House of Representative. Speakers in favor of repealing the law have outnumbered those opposed by a two-to-one margin. A formal vote is expected during the later part of November. The bill, entitled “The Euthanasia Laws Bill,” was introduced on 9/9/96 by Kevin Andrews and has been the subject of raucous debate in the lower house chambers. The Senate, Parliament’s upper house, has decided to postpone a vote on Andrew’s bill and referred the measure to a committee to study the bill’s constitutional implications. The committee’s report on the issue is due by 2/24/97, and a Senate vote is expected by the end of March. [AAP, 11/6/96, 11/7/96; AP, 11/7/96]

    Meanwhile, Australia’s High Court, which was scheduled to review the NT Supreme Court ruling that the euthanasia law is constitutionally valid, decided instead to wait until Parliament votes on the matter. [Australia Broadcast Corp., 11/15/96]

  • New South Wales rejects euthanasia
  • In a landmark debate on 10/16/96, the New South Wales (NSW) Parliament overwhelmingly rejected the prospect of legalized euthanasia. The debate was called for by NSW Premier Bob Carr after the euthanasia death of Bob Dent stirred up a national controversy. It was thought that the debate would be an indicative marker on where the NSW Parliament would stand on the euthanasia issue. After a 10-hour debate session, there was no question where Parliament stood. The MPs rejected euthanasia and assisted suicide by almost a four-to-one margin. [Sydney Morning Herald, 10/16/96; The Australian (On-line), 10,17,96; AAP, 10/18/96]