Sources: Burt RA. The Supreme Court speaks. Not assisted suicide but a constitutional right to palliative care. N Engl J Med 1997;17:1234-1236; Orentlicher D. The Supreme Court and physician-assisted suicide. Rejecting assisted suicide but embracing euthanasia. N Engl J Med 1997;17:1236-1239; Gostin LO. Deciding life and death in the courtroom. JAMA 1997;278:1523-1528; Portenoy RK, Kanner RM. Pain Management: Theory and Practice. Philadelphia: FA Davis & Co.; 1996; Egan T. Threat from Washington has chilling effect on Oregon law allowing assisted suicide. The New York Times. November 19, 1997:pp A18.
Neurologists have increasingly taken on the sensitive and humane challenge of effectively treating pain, especially the pain and suffering that often precedes death from cancer and a smaller number of other exceptionally painful, irreversible illnesses. The recent Supreme Court decision addresses this issue.
" . . . a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication from qualified physicians, to alleviate that suffering, even (if) causing unconsciousness and hastening death."
Justice O’Connor, in footnote to Vacco Quill. 117 S. Ct. at 2303 (1997)
The top three cited writings deal with the Supreme Court decision on physician-assisted suicide and the previous Court decisions on discontinuing food and water in chronic vegetative patients. The New York Times piece describes a messy U.S. government intrusion on a recently passed state law that appears to be constitutionally acceptable. Neurologists often participate in medical decisions dealing with the above problems but are especially wary of their actions because of the high political-emotional turmoil that continues to surround the questions.
Articles by Burt and Orentlicher interpret the explicit and implicit aspects of the Supreme Court’s decisions. Gostin reviews all past "right to die" cases that have appeared before major courts, starting with Quinlan, 1976. Meanwhile, the immediately current report in the Times indicates the simmering social emotions that precipitated the Federal Drug Enforcement Administration to interfere with a just-passed Oregon law legalizing medically assisted suicide.
The Court moved, without exception, that physician-assisted suicide possessed no innate constitutional right. Nevertheless, according to Burt, existing state laws are constitutionally valid in recognizing a distinction between prohibiting conduct on the part of physicians that intentionally hastens death (the doctor kills the patient) compared to permitting conduct that may foreseeably hasten death but is intended for other important purposes, such as the relief of pain or other suffering. The latter sophistry could be expressed as: The doctor induced strong sedation as the only possible way to overcome the patient’s request to be free of intolerable pain and suffering, thereby permitting the patient’s constitutional privilege of terminating his/her life. As Burt put it, heavy sedation "intended for symptomatic relief is not assisted suicide. The Court has licensed an aggressive proactive of palliative care" (see criteria in Cherny NI, Portenoy RK. J Palliat Care 1994;10:31-38).
Much in the way that the Court’s 1990 decision on the Cruzon case indicated, it is ethically and legally permissible to withdraw life-sustaining food, water, non sedative medications, and ventilators from dying patients undergoing terminal sedation to ameliorate pain and other physical suffering. Presumably, similar rules apply to the giving of narcotics at high-dose levels, even if the reduction of pain induces hypoventilation.
How does Orentlicher differentiate between the Court’s resistance to physician-assisted suicide and its permissive view to the application of major sedation with ensuing withdrawal of food and water? To the lay person, the separation appears to be somewhat hypocritical. In law, however, an intent to relieve irreversible suffering is different from the intent to kill, a dictum that would seem to prevent a physician’s contribution to a patient’s legitimate wish of assisted suicide because of unbearable somatic pain. Any doubt that the latter is constitutionally legal, however, is erased by Justice O’Connor’s above quoted footnote to the Court’s unanimous decision.
This last mentioned issue has already evoked passionate reactions between voters, conservative nationally represented lawmakers, the Federal Drug Enforcement Administration, and Oregon physicians. According to the Times report, Oregon State voters on October 27, 1997, re-endorsed a previously (1994) established law that permitted doctors to prescribe lethal doses of drugs to patients who submit a written form. The form indicated the patients’ wishes to commit suicide in the event that they have a terminal disease giving them six months or less to live. Despite the above Supreme Court rulings, Senator Orrin Hatch of Utah and Representative Henry Hyde of Illinois induced the DEA to warn Oregon doctors that they could receive severe sanctions if they followed the 1994 law, which became legal following the recently lifted Federal appeals court injunction. It will be interesting to see what the Justice Department and the Supreme Court think of this. Although the copy of the Request for Medication published in the Times emphasizes the applicant’s physical symptoms and medical expectation of death in six months, its loose distribution might seem to run a dangerous risk of overkill unless regulated by exacting medical supervision.
Neurology Alert favors physician-assisted terminal sedation and withdrawal of food and water for patients suffering intractable, irreversible pain. This is a constitutional right explicitly expressed within the Supreme Court’s unanimous ruling. Apparently, the Court tacitly smiles on State legislatures that explicitly permit doctor-assisted suicides to directly end well-represented intractable pain and suffering. fp
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