Aging population raises euthanasia concerns
Charles Rice
Right or Wrong?
You should tell your grandmother about PRPA. It may keep her from being killed someday. Let me explain.
The Controlled Substances Act (CSA) makes it a federal crime for "any person" to dispense a "controlled substance" without authorization. The CSA also provides for registration of physicians to authorize them to dispense controlled substances for medical purposes. The 1997 Oregon Death with Dignity Act allows a physician to prescribe drugs to enable a patient to end his own life. Such action by a physician could violate federal law. But Attorney General Janet Reno has ruled that the federal government will not take action against any Oregon physician who prescribes drugs for assisted suicide pursuant to that Act.
PRPA, the Pain Relief Promotion Act, passed by the House of Representatives and pending in the Senate, would overrule Reno. It would forbid "intentionally dispensing ... a controlled substance for the purpose of causing death or assisting another person in causing death." The American Medical Association and others object that PRPA will cause physicians to undertreat pain for fear of prosecution. PRPA's prohibition of intentional killing adds nothing beyond existing laws prohibiting homicide in general. But it might cause some physicians to be cautious in using sedation.
PRPA also affirms that "alleviating pain or discomfort ... is a legitimate medical purpose for ... dispensing ... a controlled substance ...even if [it] may increase the risk of death." This reflects the approach taken by the Supreme Court in 1997 in upholding state laws that prohibit assisted suicide. The Court, in Vacco v. Quill, said: "Just as a State may prohibit assisting suicide ... it may permit palliative care ... which may have the foreseen but unintended `double effect' of hastening the patient's death." "[P]ainkilling drugs," said the Court, "may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain."
It can be very difficult, however, for the law to determine whether the sedating physician's intent was to relieve pain or to cause death, unless there is exceptional proof of intent to kill. Moreover, in the 1990 Cruzan case, the Court allowed the states, in effect, to permit intentional killing by physicians. In Cruzan the Court allowed Missouri to permit the removal of a feeding tube, pursuant to the patient's inferred desire, from an incompetent patient who was not dying, was not in significant distress and had a life expectancy of 30 years. The removal was intended to cause Nancy Cruzan's death to relieve her of a life considered burdensome or useless.
In Cruzan the Court invited the states to turn a blind eye toward intentional killing through withdrawal of food and water. It is fair to expect the law to be tolerant also of intentional killing by sedation and ultimately by lethal injection. Through legalized abortion, euthanasia and popular support for the death penalty, our culture accepts the intentional infliction of death as a problem-solving technique. Three of the 27 patients who died under Oregon's assisted suicide law in 1999 took over 11 hours to die from the orally ingested drugs and one took 26 hours. A lethal injection is more efficient. We use it on convicted murderers to spare them pain. Why not in these cases?
Cultural and demographic trends make the ultimate legalization of active and even nonvoluntary euthanasia predictable. Contraception and abortion have reduced the number of working people available to support the elderly and disabled. The fertility rate in the United States has been below the replacement level for more than two decades. In 1900, there were 10 times as many persons under 18 in the United States as there were persons over 65. By 2030, there will be more people over 65 than under 18. Between 2010 and 2030, the number of persons over 65 in the U.S. will rise from 40.4 million to 70.3 million, but the working-age population between 20 and 59 will remain stationary at 160 million. Who will pay the bills for all those old folks? The aging of the population will generate pressure on the old and infirm to recognize what former Colorado Governor Richard Lamm called their "duty to die and get out of the way." We are paying the price for being on the wrong side of what social historian Allan Carlson calls "the contest between a vital faith that welcomes children and a secular individualism that does not want them."
PRPA is a worthy effort to affirm that physicians should try to heal, and not intentionally kill, their patients. If PRPA causes a single physician to think twice about giving his patient — who could be your grandmother — a "mercy death," it will be worth the effort. The real solution, however, requires more than law. It requires the building of what John Paul II calls "a new culture of life," especially through prayer.
Professor Rice is on the Law School faculty. His column appears every other Tuesday.
The views expressed in this column are those of the author and not necessarily those of The Obesrver.
All Viewpoint Stories for Friday, March 31, 2000
