Following in Europe's Footsteps: The Chilling Endgame of the Right-to-Die Movement

Daniel Davis
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Posted: Aug 15, 2015 2:35 PM
Following in Europe's Footsteps: The Chilling Endgame of the Right-to-Die Movement

“Assassins!” a lone voice cried out, breaking the silence in an otherwise hushed parliamentary chamber. Belgian leaders were beginning to cast their votes, and the electronic seating chart lit up as the yeas and nays began to accumulate. As the last votes trickled in, the final tally appeared on the screen: 86 yeas, 46 nays, and 12 present. Belgium had just voted to legalize assisted suicide…for children.

This legislative move came in February of 2014 and currently represents the high water mark of the assisted suicide movement. Many American observers will no doubt find this development unnerving. Indeed, many Europeans and even a minority of Belgians find the practice morally objectionable. Yet in only a matter of years, the “right to die” movement, as proponents call it, has gained political legs in several western countries, including the United States, and it is looking to gain more ground.

The “Right to Die”—In America

Assisted suicide first reached American soil in 1997, when Oregon legalized the practice. Earlier that year, the Supreme Court had addressed the issue in Washington v. Glucksberg, ruling unanimously that the 14th amendment does not guarantee a right to assisted suicide. With that decision, the assisted suicide debate was kicked back to the state level, and Oregon passed its law. Four states would eventually follow Oregon, though only two of them -- Washington and Vermont -- would do it by the democratic process. Washington legalized assisted suicide in 2008 through a ballot initiative, and Vermont legalized it in 2013 through its state legislature. In 2009, a federal judge in Montana established grounds for doctor excusal after having assisted a patient to commit suicide, which effectively decriminalized the practice in the state. And in 2014, another federal judge legalized assisted suicide in one jurisdiction in New Mexico. That decision is pending further litigation.

This year has seen an unprecedented legislative push to legalize assisted suicide at the state level. Assisted suicide advocates in America essentially consist of one well-funded organization called Compassion & Choices. The group is run out of Colorado and is backed by liberal billionaire George Soros and some Hollywood celebrities. Compassion & Choices launched initiatives in 27 state legislatures just this year, and its most recent and high profile contest came in the state of California. It lost the battle there, but it surely won’t be the last.

While legislators in the California state Senate introduced the End of Life Option Act in January, a number of obstacles stood in its way from the start. Disability rights groups opposed the bill, as did some Latino Democrats and nearly all Republicans. The bill got a key lift, however, when the California Medical Association removed its formal opposition to physician-assisted suicide in June, opting for a “neutral” position on the issue instead. The CMA, which represents California’s medical establishment, had long been opposed to physician-assisted suicide, and that opposition had kept the suicide movement from gaining credibility in the political arena. With the CMA no longer opposing it, the California Senate gathered enough votes to pass the bill, 23-13.

Diverse Opposition

Controversy quickly heated up over the legislation once it reached the House, however. A diverse coalition of Republicans, Latino Democrats, and disability rights activists ended up blocking it, ultimately slowing any momentum the bill could have going into the next legislative session.

Disability rights groups, which tend to be left-leaning, have an obvious interest in preventing this kind of legislation. Euthanasia has historically been used to exterminate the disabled -- those whom the Nazis chillingly referred to as “life unworthy of life” – and legitimate fears abound as to whether this bill might open the door to euthanasia. Latino opposition to the bill may, in part, be rooted in religious views – particularly the religious views of constituents. Some of the constituencies represented by Latino Democrats are heavily Roman Catholic, and the Catholic Church has been clear and vocal in its opposition to assisted suicide. In addition, studies show that religiosity is one of the strongest predictors of opposition to assisted suicide, further supporting the possibility that religious views may be playing a significant role in public opposition to this bill.

Dr. Aaron Kheriaty, a California psychiatrist and medical ethicist who has written publicly on this issue, described the base of support for the California bill as a “homogenous elite,” a group of “progressive liberals who are not that concerned about the poor and the marginalized.” This sentiment was echoed by human rights activist Wesley J. Smith, who wrote in National Review Online: “Suicide is not driven by public demand, but rather, is a top-down ideological movement mostly pushed by the privileged who never have to worry about poor care or abandonment.”

In an interview with Townhall, Kheriaty noted that the issue of assisted suicide does not conform to the standard political lines.

“The typical political divisions as they are currently configured -- they don’t fit on this issue. It’s not easy to peg it as a conservative-liberal issue,” he said. Far-left progressives and hard libertarians may be for it, but most conservatives as well as mainstream Democrats -- particularly minorities -- are generally united in opposing it.”

The Case For And Against Assisted Suicide

So, what arguments are actually being advanced on each side of this contentious issue? Clearly, the U.S. debate has not advanced nearly as far as the European debate. Fortunately, no U.S. state is currently debating whether children should have access to assisted suicide – though if our debate follows the overall trajectory of the European debate, that prospect may not be so far off.

Proponents of assisted suicide argue that the practice should be a legal option for people who are both terminally ill and experiencing unbearable suffering. One might think of Brittany Maynard, the 29-year-old California brain cancer patient who famously moved to Oregon in order to make use of its assisted suicide law. She died last November after taking a doctor-prescribed suicide pill. Those pushing for the “right to die” point to Maynard’s case as a textbook example of someone who should have access to assisted suicide.

But opponents of assisted suicide point out a key flaw in the right-to-die argument: its criteria for access are essentially arbitrary. If unbearable suffering and terminal illness are the standard for getting access to suicide, why shouldn’t terminal illness alone be a sufficient criterion? Imagine that instead of having six months to live, you have three to five years. You’re not “terminally ill,” but your suffering is still very great, and it sees no end at all. If anything, don’t you have more of a right to assisted suicide than the terminally ill patient? What if your suffering is psychological rather than physical? Who can be the judge of whether your pain is “unbearable” or not? One can easily see that the restrictions placed upon assisted suicide are arbitrary and flimsy; they will only erode over time as courts find them logically invalid.

A Slippery Slope

Kheriaty mounted this very criticism against Compassion & Choices, which has blanketed its policy goal (assisted suicide) with a heap of restrictions. He believes death-on-demand is the ultimate goal of groups like Compassion & Choices, though they would publicly deny it for political expediency.

“Once you introduce the principle into law that doctor-assisted suicide is a reasonable response to difficult life circumstances—based on either the pain and suffering argument, or the autonomy argument—then, the fences that legislators try to enact around it are inevitably arbitrary,” he explained. “They’re not resting on any principled ground.”

Lest Americans dismiss Kheriaty’s critique as a phony “slippery slope fallacy,” we need look no further than Europe to see this logic unfolding. Belgium and the Netherlands began with voluntary assisted suicide for mentally competent adults, and step by step, the restrictions were eroded because they were clearly arbitrary. Now, more than 1,000 people per year are euthanized in Belgium involuntarily. These are mentally incompetent people whose lives are simply deemed unworthy of sustenance. As Kheriaty said, “The logic unfolds inexorably.”

It is all the more disconcerting that Americans tend not to be swayed by the slippery slope argument – or more fairly put, the argument from logic. Dr. Jennifer Popik, a legal expert on end-of-life issues at the National Right to Life Committee told Townhall that when Americans are confronted with the slippery slope argument, both in its logical form, and in terms of evidence from Europe, they tend to dismiss it, saying, ‘Well, we’re not Europe.’ Many Europeans may have reacted similarly when they first adopted the heavily restricted suicide laws: ‘We’re not crazy. We won’t let suicide get out of hand.’

Popik is particularly concerned that if assisted suicide becomes law in more states, the restrictions that legislators place upon it may not hold up in court. A number of state constitutions adhere to the legal principle of “substituted judgment,” which allows the family members of incompetent or incapacitated patients to make medical decisions on their behalf. Popik sees this principle of substituted judgment as potentially breaching the “consent” gap with regard to assisted suicide. If assisted suicide becomes a right in states that adhere to substituted judgment, then that personal right to assisted suicide could end up in the hands of the family members. That would bring full blown euthanasia through the back door. Popik says we are one court case away from this happening, and she expects Compassion & Choices to lead the charge in expanding assisted suicide and euthanasia this way.

In Washington v. Glucksberg, for example, the Supreme Court left the door open for a sweeping ruling that could legalize assisted suicide nationwide and knock down its restrictions. Even though the court ruled unanimously that the Due Process clause doesn’t protect assisted suicide, it suggested in one footnote that it may in the future consider whether the Equal Protection clause secures a right to assisted suicide. If enough states legalize assisted suicide, the court may well take up a case.

Breaking the Hippocratic Oath

In so many ways, the crisis in medical ethics -- and more broadly, the crisis between the nation’s competing worldviews -- lies at the heart of this political and legal fight. The very philosophical foundation of medical care -- our basic understanding of what medical care is for -- is now in question, and indeed is being transformed. The idea of physician-assisted suicide contradicts the very presupposition of all medical care: that medicine should be used only to improve the patient’s condition. Yet now, many are pushing a highly subjective notion of medical care in which the patient alone dictates his or her own standards of well-being. For millennia—going back to Hippocrates, who founded the famous Hippocratic oath – well-being has been defined objectively. Nature, not subjective feeling, has provided the agreed upon standard of personal health. Because there was an objective standard of what constituted well-being, doctors recognized that their patients’ wishes could in fact be morally wrong. Doctors could measure their patients’ wishes against an objective standard of well-being, and the patient’s will was not absolutely inviolable. This provided grounds for treating the mentally ill, even in ways they would object to. The common assumption was, ‘They don’t know any better. They’re not mentally well.’

“Illness is a biological reality. It’s not something that is socially constructed by the patient,” Kheriaty said. “So, in medical ethics, respect for the patient’s autonomy does not mean, and has never meant, giving the patient whatever it is that they demand or ask for.”

Kheriaty gave the helpful example of a patient who cannot get a prescription for painkillers simply based on their personal autonomy. There must be a medical basis for the prescription that serves the patient’s biological well-being. The doctor has a duty not only to help the patient medically, but to avoid harming the patient. This is a common practice today, and it assumes an objective standard of well-being.

When Subjectivity Trumps Objectivity

Yet today, that objective standard is quickly being eroded. The common understanding of “well-being” is growing more and more subjective, as is the notion of “suffering.” The individual’s own conception of “health” is beginning to trump the old objective standards. Hence, when it comes to assisted suicide, the requirement that patients be enduring “unbearable suffering” is more or less meaningless, subject to the patient’s own whim. “It’s completely subjective,” Popik said. “It’s suffering to you. It’s an unbelievably wide and meaningless standard.”

Kheriaty said that if this subjectivization of human well-being takes root, the implications for medical ethics will be far-reaching. It “turns a philosophy of medicine and a traditional medical ethic upside down,” he noted. This, in turn, could cause the public to lose trust in the medical community. He gave one ominous example of this already happening in Oregon, where one doctor -- a palliative care provider who is opposed to assisted suicide -- was visited by a patient who was admittedly reluctant in coming to him. The patient said he was reluctant because, given his medical issues, he feared the doctor may recommend suicide for him.

This doctor went on to tell Kheriaty that for every patient who mustered the courage to approach him for palliative care, there were probably several others who opted not to visit him out of the same fear. That constitutes a massive erosion in the doctor-patient relationship. Kheriaty said assisted suicide laws only foster the conditions for that erosion of trust.

“The [assisted suicide] law itself created a situation in Oregon in which now, there’s a cloud of suspicion cast over my specialty, over the practice of medicine,” he explained. “Those are effects that are hard to measure.”

The Beaver State also offers proof that the restrictions placed upon suicide laws are unsustainable. It is already debating a measure that would expand the definition of “terminally ill” from six months to a full year – a preliminary tweak that mirrors the early erosion of suicide restrictions in Europe. In addition, state-reported statistics show that the people who opt for assisted suicide in Oregon are not all people who would typically qualify as having terminal illnesses. People with HIV, diabetes, gastrointestinal diseases, and other typically non-terminal diseases have received suicide under Oregon’s Death with Dignity Act – and they are people of all adult ages. Perhaps most sadly, only 3 percent of suicide recipients last year were referred for psychiatric evaluation.

Fortunately We’re Not Europe…Yet

Thankfully, assisted suicide law in America lags far behind those in Europe’s liberal bastions -- Switzerland, Belgium, and the Netherlands. But given the activist proclivities of many American justices, and given the radical logic contained within existing state suicide laws, things could indeed change overnight. They have before.

The potential seeds for such a sweeping legal change have already been planted in the California courts. Earlier this year, two new lawsuits were filed in California, arguing that the state constitution protects the right to assisted suicide for terminally ill patients. Thankfully, one of the two cases was thrown out last month, though the plaintiffs have vowed to appeal the judge’s decision. The other case arrived in court on Friday. It is being co-litigated by Kathryn Tucker, the same lawyer who successfully argued for the decriminalization of assisted suicide in Montana. Tucker argued on Friday that the judge should permit physician-assisted suicide immediately, since the legislative effort to legalize it has effectively stalled. In other words, she wants the judge to protect a non-existent law because the California legislature has been too slow in creating it.

The absurdity of Tucker’s argument is rather painfully obvious, and it suggests that assisted suicide in California has, at least for the moment, gone on political life support. Yet hopeful observers should remain chastened, as activist judges have been ever eager to legislate their views from the bench. Even if this case loses at the lower level, Kheriaty expects it to reach the California Supreme Court. A victory for assisted suicide at that level would have nationwide ramifications and would likely expedite the next Supreme Court case on the issue.

Polls show that the American public narrowly supports assisted suicide in certain cases, though the disapproval tends to grow depending on how bluntly and honestly the practice is described. Despite this support in the polls, American voters and legislators have rejected assisted suicide laws in almost every case – including in deep-blue Massachusetts, where voters rejected an assisted suicide law by ballot measure with 51 percent against it. This reveals a sizeable gap between what Americans tell to pollsters, and what they’re actually willing to vote into law when faced with the opportunity. This aversion to suicide, for whatever reason, is something to be thankful for – yet it is also something that could vanish if voters begin to warm up to the false promises of heavily restricted suicide.

Americans need to know about the legal efforts now being pushed by Compassion & Choices. The group’s arguments may seem benign at first glance -- even compelling. But if Americans begin to learn that the most highly restricted suicide laws contain the seeds of death on demand, they may be catalyzed against these laws. The logic of assisted suicide is that far-reaching. It would create an America that we do not want to live in, an America we would have trouble even recognizing.

If Americans recoil at the vote in Belgium that legalized child suicide, they have every reason in the world to fight the bills that currently sit on their state doorsteps. Belgium could be a world closer than they think.