Statement to the Senate Judicial Proceedings Committee

Re: Senate Bill 676 – “Death with Dignity”

Tuesday, March 10, 2015

OPPOSE

Dear Chairman Zirkin:

 

          My name is Stephen L. Mikochik.[1] I am professor emeritus of Constitutional Law at Temple Law School in Philadelphia and visiting professor of Jurisprudence at Ave Maria Law School in Florida. I also am chair emeritus of the National Catholic Partnership on Disability.  NCPD was established to implement the 1978 Pastoral Statement on People with Disabilities of the U.S. Catholic bishops. On behalf of NCPD and the thousands of disabled Maryland Catholics it serves, I testify in opposition to S.B. 676, which, in legalizing assisted suicide, is an open invitation to patient abuse.

 

   For over seven hundred years, Anglo-American law has condemned suicide.[2] Self-murder was a felony at common law; but, since the deceased was beyond penalty, his property was forfeited as a deterrent to others.[3] Recognizing the harm this caused innocent families, English and American law gradually decriminalized suicide.[4] This development, however, did not mark the moral acceptance of suicide, since aiding its commission remained a common law offense.[5] At the close of the Civil War, most states criminalized assisting a suicide.[6] Many states subsequently reaffirmed this ban. By 1997, when the Supreme Court rejected the claim that physician-assisted suicide was a constitutional right,[7] the vast majority of states made it criminal.[8]

 

Nevertheless, assisted suicide has recently become controversial and, spearheaded by Compassion and Choices, the successor to the Hemlock Society, has a foothold in American law. By ballot initiative in 1994, Oregon became the first state to allow physician-assisted suicide.[9] Its so-called “Death with Dignity Act” set the pattern for the successful 2008 ballot initiative in Washington State.[10] The Vermont legislature adopted its own version last May,[11] while the Montana Supreme Court held in 2009 that physician-assisted suicide was not against that state’s public policy.[12] All other attempts to legalize assisted suicide, either by ballot initiative or legislative enactment, have failed. Last March, for example, the New Hampshire House of Representatives defeated H.B. 1325 by a vote of 219 to 66.[13]

 

Before turning to the specifics of S.B. 676, I will address two threshold questions. First, how can laws that require consent constitute government decisions about who should live and who should die? Americans hold as self-evident that all men are “endowed by their Creator with certain unalienable rights; that among these [is the right to] life …; [and] that, to secure these rights, governments are instituted among men[.]”[14] As life is an unalienable right, we can neither destroy our lives nor ask others to assist in their destruction.[15] When government secures such rights for some but not others, when it relaxes laws against aiding the suicide of terminal patients but not the able-bodied, it is saying this class deserves less protection against homicide, its members deserve less safeguards of their unalienable rights, in other words, they deserve less respect because in some way they are less human.

 

Second, why should the disabled community in particular concern itself with laws legalizing assisted suicide that, on their face, are limited to terminal patients? As physical impairments that substantially limit life activities,^[16]  terminal conditions are disabilities. Thus, to provide, as does S.B. 676, that a patient is not qualified for assistance in suicide  “solely” because of a disability^[17] is simply incoherent. Moreover, predictions of death within six months required for aid in dying^[18] are notoriously fallible.[19] Thus, even if terminal and disabling conditions are different, the separating line is porous. Further, the primary reasons terminal patients give for requesting aid in dying—loss of autonomy, loss of dignity, inability to participate in activities that make life enjoyable^[20]—are the same reasons disabled people seek suicide.[21] If people with only six months to live can end such distress, why not those who face it for a lifetime?[22] As the Supreme Court concluded when it rejected a due process right to assisted suicide, “[w]e agree that the case for a slippery slope has been made out, but bearing in mind Justice Cardozo's observation of ‘[t]he tendency of a principle to expand itself to the limit of its logic,’ we also recognize the reasonableness of the widely expressed skepticism about the lack of a principled basis for confining the right.”[23]  

 

Turning to the specifics of S.B. 676, its language tracks the provisions of, and thus shares the major flaws in, the assisted suicide laws enacted by Oregon and Washington State. Though it imposes a waiting period before the prescription is written, patients can have a lethal drug in hand fifteen days after the terminal diagnosis is made,[24] clearly insufficient time to acclimate to a terminal prognosis.[25] A second physician, not excluding a member of the attending physician’s practice, must confirm the initial diagnosis, prognosis, and competence of the patient.[26] Though either attending or consulting physician can refer patients for psychological or psychiatric evaluation if, in their medical opinion, they suspect clinical depression or other psychological or  psychiatric conditions that may impair the patient’s judgment,[27] many physicians lack training to recognize such conditions;[28] and nothing in S.B. 676 requires that they have such training. Not surprisingly, referrals were almost never made in the seventeen-year history of the Oregon Act and, thus far, Washington is following suit. [29]

 

            Given that the Supreme Court has reported that many people, terminal or not, seeking suicide suffer from clinical depression and often lose the urge when the condition is treated,[30] the absence of reported referrals in these states is most troubling for the future of S.B. 676.

 

The Senate Bill allows persons with a financial interest in the patient’s estate, or, for that matter, anyone “entitled to any benefit on the patient’s death,” to be one of the two witnesses to the written request, attesting to the patient’s competency and the lack of coercion.[31] That same person can be the only witness present when the lethal drug is taken since S.B. 676 fails to require an objective observer to the act. This is an open invitation to abuse since no one will know if the patient resisted.[32] Further, S.B. 676 requires that the patient’s death certificate list the underlying condition as the cause of death.[33] Consequently, family members may never know that their loved one died from a lethal prescription.

 

The pre-bellum slave codes equated human beings with items of property, “reduced[ing] … [slaves] to animals, or real estate, or even kitchen utensils[.]”^[34] Reflecting on this shocking phenomenon, Judge Noonan of the Ninth Circuit has observed: “law can operate as a kind of magic. All that is necessary is to permit legal legerdemain to create a mask obliterating the human person being dealt with. Looking at the mask … is not to see the human reality on which the mask is imposed.”^[35]

 

Like the slave codes, S.B. 676 operates as a kind of magic. By offering safeguards that serve instead to place patients at risk of abuse, it employs legal slight-of-hand. By calling “aid in dying” practices that simply help patients make themselves dead, it recites empty incantations. By not affirming patients’ lives but rather abandoning them to their despair, it creates only an illusion of compassion. True compassion, however, “leads to sharing another’s pain; it does not kill the person whose pain we cannot bear.”[36] The plain fact is that S.B. 676 will legalize assisted suicide, and no legal magic can mask that reality. I urge the Committee to reject this dangerous and deceptive bill.

 

 

Stephen L. Mikochik

(610) 930-3550

70 Old Dublin Pike

D-11

Doylestown, Pa. 34119