November 29, 2014
By H. John Witman III
Some problems we face in society have proven to be so complex that even if we can find a solution, it is unworkable or too difficult to administer. Racketeering statutes tend to fall into this category. The death penalty fell into this category. And assisted suicide falls into this category.
Recently, the suicide of Brittany Maynard in Oregon renewed an intense national conversation about assisted suicide. And Nov. 13, the New Jersey Assembly approved A2270, “Aid in Dying for the Terminally Ill,” a bill that would make New Jersey only the sixth state to authorize assisted suicide.
The unlikely alliance in opposition to the New Jersey bill — disability rights advocates, faith-based organizations and medical professionals — itself signals that something is fundamentally wrong with assisted suicide laws. I offer a practical assessment that, whether or not assisted suicide is ethically or morally right, whether or not its intentions are good, assisted suicide cannot work. It cannot work, just as the death penalty could not work.
Abortion, among other life-and-death issues, is not relevant in this analysis. The legal issues raised by abortion are not the issues raised by assisted suicide. In abortion, the issues generally center on the life of the mother and her privacy rights and her right to choose. The life of the fetus typically is not addressed, but rather its “viability.” And as an issue of constitutional law, abortion is not seen as killing the fetus, but as saving the life or preserving the health of the mother or simply as her choice.
Nor is patient autonomy, as we know it, relevant in this analysis. A patient’s decision regarding treatment is a privacy right of self-determination. A patient’s decision not to receive treatment, for example, even though the decision may lead to death, is in no way based on a so-called right to die, but on the right to be free of unwanted bodily intrusions. There is no right to die, except, possibly, in New Mexico, where its supreme court appears to have found one.
The death penalty is a relevant analogy. Assisted suicide is like the death penalty, because the state would prescribe a scheme by which a life can be intentionally and lawfully taken. New Jersey’s death penalty statute provided many layers of protection and review to assure that life would be taken fairly. As a result, in the years between enactment of the death penalty in 1982 and the report of the Death Penalty Study Commission in 2007, the New Jersey Supreme Court had overturned 57 of 60 death sentences and the remaining three were under appeal. The Legislature abolished the death penalty in 2007, on recommendation of the commission.
Protections offered by the New Jersey Assembly’s assisted suicide bill would require a physician to file reports and, under some circumstances, to refer the patient to counseling. The bill also would require the Division of Consumer Affairs, the Board of Medical Examiners, the Board of Pharmacy and the Board of Psychological Examiners all to establish standards. The bill, too, would create procedural steps culminating in the issuance of a lethal prescription.
The bill would be improved, made fairer, by establishing greater protections. A third-party representative who advocates for the patient alone would be an improvement. Independent review of the lethal prescription, when sought by the third-party representative, likewise would be an improvement. A process that at each step ensures the patient’s capacity and consent, the voluntariness of the patient’s decisions and, once the prescription is issued, self-administration of the lethal prescription, would improve the bill even further.
But, ultimately, as with the death penalty, there is a paradox, because the better the protections afforded the patient, the more unworkable the scheme that allows the patient’s life to be taken. In New Jersey, amendments made both by the Assembly Health and Senior Services Committee and on the Assembly floor suggest that the assisted suicide bill will be amended further and that, if not unworkable now, it would be unworkable by the time it became law.
Beyond the burdens of fair and workable administration, there is a feature that no protection, no procedure, indeed, no statute, can touch. Judges who gave statements to the Death Penalty Study Commission implied that, ultimately, even some of the death penalty decisions were arbitrary or subjective. The decision to take one’s own life is as private and, perhaps, as subjective a decision as can be made.
The state can never know what subtle coercions make one choose to take one’s own life, or worse, cause one to decide that another’s life is not worth living. The state, therefore, can never be certain that sufficient protections have been established. It can only be certain that the protections it has established are unworkable.
H. John Witman III is a retired attorney who practiced for nearly 20 years in the New Jersey Division of Criminal Justice. He is a member of the board of directors of the Progressive Center for Independent Living, a regional nonprofit agency, an advocate for people with disabilities, serving Mercer and Hunterdon counties. It is opposed to assisted suicide laws.
Source: Times of Trenton