The Magazine

Dr. Death Rides Again

Jack Kevorkian's movement has done better -without him.

Jun 4, 2007, Vol. 12, No. 36 • By RITA L. MARKER and WESLEY J. SMITH
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What do cicadas have in common with Jack Kevorkian? They share a cacophonous anniversary. In June, after 17 years, cicadas are expected to crawl from underground across the Midwest. These grim insects produce such a din that just one can overpower other sounds. Also in June, exactly 17 years after he first made international headlines for assisting the suicide of 54-year-old Janet Adkins, Jack Kevorkian is scheduled to emerge from prison. Already, his release has become a media circus, likely soon to produce a din of its own.

Kevorkian's release may actually be bad news for assisted-suicide advocacy. Since his imprisonment for the 1998 murder of Thomas Youk, advocates for assisted-suicide legalization have strived mightily to put a benign, professional veneer on the hard business of authorizing doctors to intentionally participate in the termination of their patients' lives. With Kevorkian in prison, his gaunt visage was no longer the public face of the movement. Today's activists are far more likely to be impeccably dressed, upper middle class women who spout focus-group-vetted sound bites. (Hence the effort by the former Hemlock Society--renamed Compassion & Choices--to convince the media to drop the descriptive term "assisted suicide" for the pabulum phrase "aid in dying.")

Contemporary advocates also have worked hard to make assisted suicide appear bland. The so-called "medical model" permitted by Oregon's Death with Dignity law has been ubiquitously touted in recent years by assisted-suicide promoters as an approach to mercy killing that can avoid a Kevorkian-style slippery slope. Legalization bills have been repeatedly filed in Hawaii, Vermont (where legislators killed them), and California, which is in the midst of its fourth political battle in eight years over assisted-suicide legalization.

But with Kevorkian soon to appear on 60 Minutes and in other high-profile media venues, the assisted-suicide movement will find it much harder to conceal the many similarities between Dr. Death's approach during the 1990s and the legalized Kevorkianism being carried out in Oregon today.

Take, for example, one of the primary "protective" guidelines or safeguards for permitting death-doctoring in Oregon. In 1990, when Kevorkian began conducting post-mortem press conferences, he assured the nation his "patients" had to be terminally ill, and his attorney maintained that Kevorkian required proof of a terminal condition. As the body count mounted, the press maintained the myth. Even today, Kevorkian is often described as the doctor who assisted the suicides of the terminally ill.

Because assisted suicide is illegal in Michigan, however, authorities couldn't take Kevorkian's word for it, and had autopsies performed revealing that more than half of Kevorkian's 130 known victims were not terminally ill. Most were disabled with conditions such as multiple sclerosis. In fact, several had no serious physical illnesses that could be determined upon autopsy.

Under Oregon's assisted-suicide law, to qualify for assisted suicide, a patient is supposed to have a terminal condition, defined as a life expectancy of six months or less. As of the last official report, there have been 292 reported deaths under the law that transformed the crime of assisted suicide into a medical treatment. And how many of those who died actually had a terminal condition? Nobody knows. Oregon does not require autopsies of people who die there by legalized assisted suicide, so we don't know their actual underlying conditions.

Yet the words of one Oregon physician who regularly assists suicides indicate a cavalier attitude towards the law. Dr. Peter Rasmussen, an advisory board member of the Oregon chapter of Compassion & Choices, acknowledges his involvement in deaths numbering in the double digits. He said that predicting life expectancy is rife with inaccuracy but dismissed that as unimportant. He explained,

[W]e can easily be 100 percent off, but I do not think that is a problem. If we say a patient has six months to live and we are off by 100 percent and it is really three months or even twelve months, I do not think the patient is harmed in any way.

Being far off the mark in predicting life expectancy certainly occurred in the case of cancer patient Michael Freeland, who was provided with a prescription for assisted suicide nearly two years before he died naturally. This apparent abuse was not reported by the state but in an article in the American Journal of Psychiatry. Perhaps the state's failure is due to the fact, as Dr. Katrina Hedberg and others responsible for issuing Oregon's official reports have acknowledged, that the assisted-suicide law does not authorize investigations into how physicians determine their patients' prognoses.

Kevorkian also raised eyebrows in some quarters for having extremely brief relationships with his "patients" before helping them commit suicides. For example, Good Morning America noted that many of the people over whose deaths Kevorkian presided died within 24 hours of meeting him for the first time.

Similar all-but-nonexistent doctor-patient relationships have been reported in Oregon. Although a patient's requests for assisted suicide purportedly must span a 15-day period, official Oregon reports indicate that, over the last seven years, some patients have died by suicide having known their assisting doctors for a week or less.

What about that 15-day waiting period? Simple political expediency, as Kathryn Tucker, Compassion & Choices director of legal affairs, acknowledged. Speaking at a 1997 forum in Seattle, Tucker said:

In my view, the Oregon measure, in some sense, became overly restrictive. It has a fifteen-day waiting period. And my own view of the federal constitutional claim is that a fifteen-day waiting period would be struck down immediately as unduly burdensome. As we've seen in the reproductive rights context, you can't have a waiting period of that kind of duration. But in the legislative forum, to pass, you need to have measures that convince people that it's suitably protective so you see a fifteen-day waiting period.

There are some who claim that, if he had lived in Oregon, Kevorkian would not have been able to carry out his style of assisted suicide in the state. They point to the fact that in many of his cases the deadly overdose was not provided orally but by infusion, and that Kevorkian was a pathologist who had not had a full-time position in the medical field for years. However, neither Kevorkian's method of assisted suicide nor his spotty credentials would have precluded his acting legally in Oregon.

Contrary to general perception, Oregon's law does not require that the lethal drugs be taken orally, only that someone else not administer a lethal injection. But only Youk's death--Kevorkian's last--was by lethal injection. The suicide contraptions that he used for earlier assisted suicides required the soon-to-be dead victims to self-administer, generally by pushing a lever triggering the flow of deadly drugs or carbon monoxide gas.

Once again, we see the possibility of this Kevorkian approach in Oregon. Tucker, in a 1996 interview with American Medical News, described a similar procedure and deemed it permissible under Oregon's law. Noting that self-administration is not limited to consuming drugs orally, she said:

I think that technology can make self-administration possible for a broad range of patients who would not have the wherewithal to self-administer otherwise. For example, there are certainly technologies that permit patients to do things by voice activation of a computer that could generate an infusion of medication. That can be self-administration.

Thus, according to one of the Oregon statute's most fervent supporters, Kevorkian's method of assisted suicide would apparently not violate state law.

But what about Kevorkian's lack of medical experience in examining and treating patients? Kevorkian was a pathologist who did not treat patients after his medical school and residency days in the 1950s. If he had held an Oregon medical license (rather than Michigan and California licenses which were revoked because he was engaging in illegal assisted suicides), Kevorkian would have been within his rights under the law to act as an "attending physician" who could legally carry out assisted suicide. You see, in Oregon, any licensed physician--including any dermatologist, ophthalmologist, or pathologist--can write lethal prescriptions. It doesn't really take a lot of medical savvy to prescribe a deadly dose. To paraphrase the Geico commercial, "It's so easy even an unemployed pathologist can do it."

There are some differences, however, between Jack Kevorkian and Oregon doctors who carry out assisted suicide. In upcoming months, the Oregon docs will go ahead assisting suicides. Jack Kevorkian can't do that and stay out of jail. But he has other plans. According to reports, he's scheduled to hit the speaking circuit where he'll be commanding fees of $50,000 to $100,000. Who says crime doesn't pay?

Rita L. Marker is an attorney and executive director of the International Task Force on Euthanasia and Assisted Suicide. Wesley J. Smith is an attorney for the International Task Force on Euthanasia and Assisted Suicide and a senior fellow at the Discovery Institute.