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Last Rights

You can have the ‘right to die’—once you surrender all the others

Nov 12, 2012, Vol. 18, No. 09 • By SAM SCHULMAN
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In 1990, as I was nursing a mortally ill magazine, I got a call from a literary agent. “I have a great idea for a book. Your dad [a neurologist at the University of Chicago] could do the medical part, and you could write it. The book is called How We Die. Let me explain it.”

A billboard advertising death

I told him not to bother with the explanation—I got it instantly. I saw the book in my mind and understood why it was such a brilliant idea. I phoned my father with the good news about our new family project. An unworldly man, Dad would surely be puzzled by the notion that a book about the physiology of dying would be a bestseller.

Dad surprised me—he was outraged, not puzzled. “Do you know ‘how we die’? Do you have any idea of ‘how we die’?”

“Of course not,” I said, “but that’s why—”

“Well, let me tell you, you’re lucky,” he interrupted. “It’s just .  .  . awful.” And after a brusque, ironic inquiry about my own health, he got off the phone.

Four years later, How We Die, by Sherwin B. Nuland, M.D., hit the bestseller lists. Dr. Nuland wrote it, he says in the book, for the same reason my father wouldn’t: because he knew dying was awful. But he hoped that by describing exactly the unlovely processes by which disease and euthanasia actually kill us, he would persuade the public that the ideal of “dying with dignity” was an illusion. If readers understood him, they would understand that while “there is often a serenity—even a dignity—in the act of death,” dignity comes “rarely in the process of dying.”

Nuland failed even to slow the frenetic progress of “death with dignity” through our institutions and opinion-makers. As the memory of the Nazi death-experiments wore off, euthanasia became the preoccupation of those understandably gloomy souls who happen to live in a few rain-drenched regions at the northwestern edges of continental land masses (Belgium, the Netherlands, Oregon). Now there is a euthanasia lobby, with distinguished advocates in the great medical journals, departments of bio-ethics, university departments of philosophy, the Department of Health and Human Services, the media. In his Human Exceptionalism blog, Weekly Standard contributor Wesley J. Smith assiduously chronicles the promotion of euthanasia by CBS News, Time magazine, the BBC, and the New York Times. Yes, as an editorial in the New England Journal of Medicine rejoiced this July, “momentum is building for assisted dying.”

The fact that its proponents are selling it in a misleading way to the elderly, the disabled, and the depressed doesn’t prove that physician-assisted suicide is despicable or repugnant. But it is clear that its proponents hope to achieve for euthanasia the status of gay marriage—until recently a novel and provocative idea, with many attractive arguments in its favor, opposition to which has suddenly been transformed into a career-destroying, dinner-party-silencing scandal. Among voters, euthanasia has even more legitimacy than same-sex marriage, which has lost every referendum that put the question to voters. The citizens of Oregon and Washington have made assisted suicide legal in their states, and Massachusetts voters are deciding whether to do so this week.

What is novel about the recent enthusiasts for euthanasia is that they have abandoned the idea of mercy killing: Euthanasia is no longer a humane way to alleviate pain, but a right. They’re prudent in making this change. Euthanasia was once the only alternative to unbearable pain. This is no longer the case, thanks to science and the generosity of taxpayers. Medicine can increasingly deliver mercy without death, with drugs and other therapies. We pay armies of social workers and build armadas of programs to alleviate loneliness and despair. Of course, neither science nor social science is perfect or perfectly deployed, but the tools are there. So it was inevitable that promoters of death-with-dignity would need to find another way to express the nobility of their desire to persuade others (not themselves, usually) to die a few hours, days, weeks, or years sooner than they would in the course of nature.

There is a libertarian case to be argued that free people in a free state should have the freedom to kill themselves—perhaps even to hire others to kill them as a private enterprise. Legislation need be necessary only to protect their “assistants” from liability suits (and good luck getting that one past the trial lawyers). At another frequency of the political spectrum, members of the human rights community might come to promote the right to die as the crowning glory of a whole pyramid of other rights. But the right to die, as it exists today in several states and European countries, has not come about because citizens demanded the right to die, or demanded complete personal autonomy. Citizens of the Benelux countries, Oregon, and Washington have been granted the right to die only within a euthanasia regime which efficiently strips from patients every other right they already possess. Doctors, hospitals, and even family members may euthanize a patient with fewer restrictions than the most modest municipality places on a landlord who wants to evict a nonpaying tenant.

A new book by the political scientist Howard Ball, At Liberty to Die, makes very plain the Pickwickian nature of the “right to die.” For him, any law in the United States that prohibits assisted suicide or euthanasia is unconstitutional. The liberties we have now under the two Due Process amendments extend to every American the right to choose “to die with dignity—with the passive assistance of a physician—rather than live in great pain or live a quality-less life.” But making euthanasia and assisted suicide legal, as they are in Oregon and Washington, involves the complete abrogation of due process for the patient, whether he has given an indication that he wishes to die or is no longer in a position to manifest his objection. There is no impartial authority who will consider whether an elderly patient really wants to die, apart from the assurances of his care-takers and heirs.

In Oregon and Washington, very few are killed by their personal physicians. And even the best doctors are not perhaps good judges of a patient’s desire to die. Consider the testimony of Dr. Joris Slaets, professor of geriatric medicine at the University Medical Center Groningen, who declared in an op-ed in a major Dutch newspaper that he thinks people nowadays die too late in life. Dr. Slaets likes to discuss end-of-life issues with his patients, and he asks them about their “goals” for their remaining years. He estimates his patients’ vitality and life expectancy before he decides whether they are worthy of further therapy. Dr. Slaets and his Dutch colleagues are judge, jury, and often executioner—something short of due process. Aleid Truijens, a columnist for the newspaper de Volkskrant, which published Slaet’s op-ed, noted his aggravation at failing to dissuade an 80-year-old woman from heart surgery (which was successful). “Was the woman in his example not vital enough for him? Did her plans for the rest of her life not satisfy him?”

When it comes to matters like property and money, the law is far more protective of the interests of the elderly than “right to die” laws are of their life. According to Seattle attorney Margaret K. Dore, her state’s probate law frowns when a witness to a will receives a gift from the estate. The statute presumes that the heir has used “duress, menace, fraud, or undue influence,” and requires the heir to rebut this presumption. Yet when someone signs the papers requesting a fatal dose to end his life, Oregon and Washington welcome an heir as one of the two necessary witnesses. An heir may represent the patient throughout the process, pick up the dose from the pharmacy, and, without any requirement for suspervision, administer it at a time of his convenience (sometimes a year later) to his or her loved one. If anyone objects, well, doctors, family members, and others are protected by a good faith clause in the Oregon and Washington euthanasia statutes.

In the Netherlands, the law is written in such a way that 23 percent of Dutch doctors feel they needn’t even report euthanasias they have undertaken, according to a major new study in the Lancet—and of course no Dutch doctor has ever been prosecuted for death without request or consent. In Flemish Belgium, 32 percent of euthanasias take place without request or consent or notice to relatives.  Whether or not it’s true that it’s difficult for a rich man to enter into the kingdom of heaven, the New York Times was horrified to find that those Oregonians richly endowed with worldly goods turn out to be the most attractive candidates for euthanasia. Why do so many people support the “right to die” for rich parents and relatives? Perhaps it’s because that’s where the money is.

What would due process involve? A day in court before an impartial judge in which the evidence on both sides—in this case, life and death—could be examined and weighed. The gold standard is the due process enjoyed by those accused of a capital crime in a death-penalty state. I’m not arguing that the dying patient is entitled to a process as thorough, fair, or lengthy. But the protections accorded to those accused of capital crimes—however imperfect—are completely out of reach for a patient that doctors, health care facility, insurer, and family have decided would be better off dead.

It’s not just in capital cases that due process benefits the party with the most at stake. In investigating and trying criminal cases, we are alert to the testimony of people who may have had a motive to harm or kill the victim. In civil cases, the law refuses to assume good faith by any party. When it comes to the case of an elderly or disabled patient who asserts he wants to die, imposing these safeguards has never been thought necessary. Oregon and Washington have no meaningful precautions against wrongful euthanasia, no procedure for discipline or hearings, no board of review. Doctors are responsible for reporting their own cases, and there is no penalty for not doing so. Should anyone wish to undertake a review of past euthanasias, they are out of luck; the state of Oregon destroys prior years’ records annually. And the enabling laws understate or ignore entirely the prejudice and degree of self-interest of virtually every agent in the process of assisted suicide or euthanasia. The legal protections available to anyone who signs a will or conveys property disappear when it comes to signing end-of-life papers. 

Once the proper document has been signed, the interviews obtained, the patient becomes an unperson. What if she changes her mind? To whom does she protest? How can she recall the document? A testamentary can change a will. But those who promote the right to die have made sure that there is no “safe word” for a patient. There is no process that weighs the interests lined up against the patient’s freedom to die naturally. There is no one to weight the interest of the doctor whose patient he can no longer help; the medical or nursing institution which is piling up actual and opportunity costs in service to a patient who cannot be made to pay; the family and heirs who have very little to gain in terms of company or affection from a relative, difficult or irritatingly saintly, but everything to gain—both financially and personally simply by being relieved of a drain on their emotional lives and their time.


 

But let’s not be gloomy about euthanasia. Do the benefits to the person who has signed out of life outweigh the risks to him? A patient has been told that he has weeks, not months, to live. He is persuaded (on the basis of no evidence at all) that death next week will be more dignified than playing out the string. Let’s grant the patient the advantage of nonexistence for a few weeks more in a universe that has already, let’s face it, been more than generous with his nonexistence during the 14.5 billion years before his birth. But for the patient’s family, the busy hospital staff attending him, the medical specialist who has done what he can to fight off his disease, for Social Security and Medicare, there will be a blessed sense of relief and, for his heirs, a measurable increase in well-being, after probate and attorneys’ fees.

The benefits to everyone else except the patient outweigh any possible gain to the central character in the drama. Moreover, to persuade someone his life isn’t worth living, or that his death will be pleasanter this way than that way, is infectious. When one patient, weak, despairing, worrying that his life is merely a nuisance to everyone else, does away with himself to the evident satisfaction of all who survive him—others follow. Suicide was once the privilege of the rich and wellborn. Goethe made it fashionable among the burgeoning middle class with his 1774 young-adults novel, The Sorrows of Young Werther. Werther’s glamorous death for love inspired a torrent of teen-aged suicides which has never really abated—a century afterwards, Goethe’s home state of Saxony still led the European league tables, with suicides 40 percent more frequent than the runner-up, gloomy Denmark. Durk-heim, suicide’s first great theorizer, noted its contagiousness, and in 1974 an American sociologist invented the term “Werther effect.” Study after study has demonstrated that suicide, enthusiastically publicized and given an altruistic, moral cast, inspires others. In 2008, the World Health Organization published “Preventing Suicide: A Resource to Media Professionals,” which documents the Werther effect, but also an “anti-Werther effect”: When the media refrain from publicizing and glamorizing suicide, the result is double-digit drops in suicide rates—even in Vienna.

The Werther effect may already have taken hold among the elderly, at least in the Netherlands, where euthanasia has become part of everyday gerontological practice and where doctors, not disease, end the lives of some 14 percent of patients (and perhaps as many as 25 percent of all patients who do not die suddenly, from accidents, heart attacks, and the like, according to Wesley Smith’s calculations). Official statistics show over 4,050 Dutch deaths from euthanasia or assisted suicide in 2010, an impressive jump of 73 percent in just eight years. We are asked to believe that virtually every one of these deaths resulted from a verified expression of a sincere desire to die. Why has the desire to end one’s life become so popular among the Dutch Geritol set? Encouraged by the medical establishment, euthanasia has become ever more likely to be a part of the lives of more Dutch families. In a culture that values consensus, asking for euthanasia has become more normal, and resistance to it is increasingly seen as a bit eccentric. Tulipmania lives again, as lily-mania.

One longs for the hypocrites on the other side of the debate. Where is the Bill Clinton proclaiming that he wants to make access to euthanasia safe, legal—and rare? Instead, the advocates for the dying—the friends of those who pay for their treatment and are named in their wills—encourage as many people as possible to try it. In Oregon, if you find yourself turned down for therapeutic cancer treatment, the state offers a consolation prize: It reminds you that a $39 death kit will be made available to you instead of chemotherapy. In Europe, the medical establishment in Belgium and the Netherlands is seeking to extend the right to die to those with curable illnesses or even social problems like loneliness or genuine unlikability—even to their physicians.

The increase of dignity that all this ingenuity affords to the dying is hard to measure. In her unequaled manual on the care of the sick, Notes on Nursing: What It Is, and What It Is Not, Florence Nightingale wrote, “To nurses I say these are the visitors who do your patient harm. .  .  . When you hear him told .  .  . that he ought to be called to a sense of duty, and is flying in the face of Providence—then know that your patient is receiving all the injury that he can receive from a visitor.” Just because a 21st-century visitor is more likely to have a fatal syringe or drip or a paper to sign, not a bad memory of Sunday School, doesn’t make it less harmful.


 

Consider the opposite course. What would happen if we simply said no, not ever, both to the dying who sincerely want to hasten their demise, and to the sincerely inconvenienced who surround the patient? If you are ill, you may not burden a friend, doctor, or relative to help you die without making her into a criminal. Your death will take place at the pleasure of nature, but not because you have a right to die. How cruel would we be to deny the request for death?

It should mitigate whatever guilt we feel to remember this: Wishing for death is a fallback. Everyone who is dying has asked for something he wants much more than he wants death, and has been denied it with far more cruelty. He has asked for health and life. He has asked not to be separated from his children or his parents. He has asked relief from a terrifying, perhaps mutilating disease. To deny a genuine request for death is not nothing, but it is nothing compared with what has already been taken from us.

Certainly more people are killed against their will by euthanasia than are unjustly executed. And yet where are the voices raised against the former injustice? The craze for euthanasia waxes and wanes, and the current wave is not a new development. Perhaps the taste for euthanasia is like anti-Semitism—a built-in defect in modernity that seemed to have been suppressed, but was only temporarily embarrassed, by the flamboyant experiments the Nazi regime indulged among the sick and disabled. The reasons for its current surge in popularity, whatever they are, make no difference to its rights, wrongs, and illusory benefits. But I had an experience recently that affected the way I think about it, which may be of interest to others.

I watched my mother die last year at the age of 86. I was 61, a fact which is unremarkable except when I add the fact that until then I had not seen anyone die. That someone  could live so long without having this experience would be rare in my parents’ generation, and unthinkable before them. Has a widespread unfamiliarity with death made dying more fearsome for the boomer generation of which I am proud to be a member? Despite the advance of scientific knowledge, the declining belief in eternal punishment, and the invention of Lexapro, it might be so. In that spirit, I offer my aged beginner’s encounter with death—which I dreaded for itself, quite apart from dreading the loss of my mother.

“Why does everyone want to tell me how long I have to live? Why do they assume I’d want to know?” This was the first thing my mother told me when I saw her in person after she had received the diagnosis. In one way, my mother would have made a tempting target for the euthanist: She didn’t want to be in the hospital, she didn’t want to be bedridden, she knew her illness was fatal. But throughout the course of her dying, whether she slept, lost consciousness, roused herself, wanted to rest or wanted contact or to be left alone, she lived. In her last three days, she was frighteningly still, or joked, or mimed that yes, her bank checks badly needed to be reordered, struggled to breathe, stopped struggling to breathe—she remained entirely herself. If I could edit what I saw of her death as if it were a film, taking a marker and drawing a line just—there—to there—I wouldn’t know what to cut. I would have destroyed a part of her life. And she? She wouldn’t have been spared anything at all.

Would my experience have been alleviated by taking her life from her? I might have thought so before I watched her die. I certainly feared that dying would transform her into something different—perhaps more sublime, probably more horrible—than herself. I discovered that in dying, she remained completely, almost ordinarily, who she always had been. I also feared that to watch the indignity of the physical process of death would produce in me an impression so strong that it would displace all my other images of her. Again, I was wrong. It didn’t. It was only—and inescapably—still Mom, only dying.

I can’t speak for her, of course—but how much could it have added to my mother’s happiness to have been killed 8 or 24 hours before she died, or 2 weeks or a year? She suffered far more pain from the deaths that affected her life when she was a girl. Three-quarters of a century before her death, mobsters killed her mobster uncle and destroyed her family’s security. Carelessness killed her older sister and destroyed her family’s integrity and her mother’s wits. The impact of these deaths haunted her to the moment she died. Yet until that moment, those injuries—and many more—were healing by being dissolved in more life. 

Perhaps we can’t avoid feeling that there is never enough life without the quality-lessness, to which Howard Ball believes the Constitution entitles us. But as much life as nature can spare you and your aged parents, even without benefit of due process of law, is a pretty good offer. I’d advise you to take it.

Sam Schulman, a frequent contributor to The Weekly Standard, last wrote on the liberal betrayal of Afghanistan.

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