Holding the Line on Euthanasia

Holding the Line on Euthanasia Most arguments against easing the legal prohibition of active euthanasia fall into one of two categories. They argue either that active euthanasia is intrinsically immoral or that the consequences of easing the restriction will be unacceptable. I want to focus on this latter concern and suggest an entire set of consequences that has been largely ignored. Usually when people talk about the consequences they fear, they talk of slippery slopes, of abuse, and of error. I want to offer a different argument: Not that we will find ourselves sliding down a slope and mired in the muck of predictable human incompetence and malice, but rather that we will lose the ground we have spent years trying to secure. For over a decade we have labored to shape decent law and medical practice to govern termination of treatment decisions and the care of those dying. It is a struggle not yet complete. In fact right now we face some new and serious setbacks--the O'Connor decision in New York, the Cruzan decision in Missouri, and proposed New Jersey legislation to rob even competent patients of the right to refuse one whole category of invasive treatment.(1) But my argument is that the standing legal prohibition of active euthanasia has been the necessary backdrop for what progress we have made. That prohibition has served as a dam. We have staked out territory on the very edge of life and worked to humanize it. But this is land we have claimed and tilled by restraining the waters. Remove that dam and a flood will surely overwhelm us. The courts and prosecutors will rush in. Our own ambivalence toward the dying will surge forward. Informality in decisionmaking, our commitment to care at the end of life, and the safety of the bedside will be swamped. It is not a matter of keeping the current landscape--the law and practice for the termination of treatment--intact and simply taking another step, as some would have it, in furtherance of established principles of liberty and self-determination. That landscape cannot remain untouched by such a change. Let me make the case: that the progress made has depended in part on this dam, and that the consequences of removing it will be unfortunate. Keeping the Waters Back The legal prohibition of active euthanasia, I wish to argue, has had major benefits for the development of tolerable law and practice for the termination of treatment. First, that prohibition has to a large extent allowed the law to stay out of the way. Judges generally have encouraged those involved in termination of treatment decisions to steer clear of the courts; legal authorities have almost always determined these bedside treatment decisions are not the province of the criminal law; and the states for the most part have avoided requiring a great deal of formality and paperwork. Thus there has been an overall toleration of relatively informal, nonlegalistic processes and a trust in the commitment of physicians to do no harm. Second, maintenance of the prohibition has allowed a properly expansive reading by the courts of the right to refuse life-sustaining treatment. The courts have recognized this right for nonterminal patients, including those whose treatment is relatively simple and unburdensome. Dealing with active euthanasia, the courts might have been far more reluctant to reach the nonterminal, less burdened patient. Even the right of incompetents might have been threatened. Third, the prohibition has demanded unswerving attention to dying patients. Deprived of an easy "out," clinicians have had to pay attention to the symptoms, pain, and distress of these people to the end. Finally, the prohibition has made the bedside a safer context in which to work out the conflict and emotions that attend termination of treatment than were euthanasia allowed. Termination of treatment decisions are particularly emotional and are likely to bring to the fore any differences among those involved. …