Part 1 reviewed the truly compassionate Saikewics (1977) and tragically dangerous Brophy (1986) decisions that Justice Elspeth Cypher cites in her concurring opinion. She agrees that providing a lethal dose of a medication to a patient so he or she can commit suicide would open the physician to criminal prosecution for manslaughter, but disagrees that the Commonwealth’s interests outweigh the interests of patient seeking assisted suicide.
The Kligler decision identified five State interests in considering its decision against assisted suicide:
- Preserving life
- Preventing suicide
- Protecting the integrigty of the medical profession
- Ensuring that all end-of-life decisions are informed, voluntary, and rational
- “[P]rotecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives” (quoting SCOTUS opinion in Vacco)
The bit about ensuring end-of-life decisions is the MA SJC adding its nod towards assisted suicide. Washington v. Glucksberg dealt with five more detailed interests:
- Prohibiting intentional killing and preserving human life
- Preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders
- Protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers
- Protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives
- Avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia
Recall that in Saikewicz the court decided his court-appointed guardian could refuse treatment that would be highly traumatic and would only extend his life by some months. One can easily see that upholding the State’s interests under these circumstances would have done far more harm than good.
Justice Cypher makes the following observation about Brophy:
“If a constitutionally cognizable liberty interest outweighing the respective interests of the State were found for a patient who was neither terminally ill nor in obvious pain, then logic dictates that that same interest should be able to be invoked by patients suffering through late-stage palliative care — patients straddling the periphery between life and death.”
Paul Brophy was neither terminally ill nor in obvious pain; he was disabled.
The court decided that his life could be prematurely ended at the request of his wife. His treatment was not considered burdensome when it was proposed, nor when it was initiated, nor when he lived comfortably in the care of the staff at Mt. Sinai. The clinicians strongly opposed, on ethical grounds, removing his feeding tube in that situation because, since he was not otherwise ill, it would intentionally hastening his death. This is strikingly different from the clinicians in Saikewicz who strongly opposed subjecting a disabled man to treatment that was very burdensome – in even more ways than for someone who could comprehend its purpose – for a proportionately small benefit.
Cypher reasons that since the Brophy case ruled that patient autonomy (“cognizable liberty”) outweighed preserving his life (interests of the State) when he “was neither terminally ill nor in obvious pain”, then the same should hold true for those terminally ill and “suffering”. If that is the case, her logic would dictate that anyone’s “liberty interest” to die outweighs any State interest. In essences, it would void all the State’s interest listed above.
What she fails to distinguish is the striking different between someone’s “liberty interest” to have clinicians stop (or not start) unwanted care, even though death will likely occur (it didn’t for Quinlan), and the ability to ask clinicians to provide (in assisted suicide) or administer (in euthanasia) a drug causing death to happen. That would be manslaughter, and she concurs with that decision. Only in a footnote does she admit that the “consequences” for the clinician are different, though she sees no ethical distinction.
She supports her thinking by discussing the improper use of palliative (terminal) sedation. In her opinion,
“For this subgroup of terminally ill patients, the State recognizes palliative sedation to unconsciousness as a lawful means to end life.”
In a footnote, she provides the definition of palliative sedation from the American Medical Association:
“Pursuant to the code, terminal sedation should be practiced only in those rare instances ‘[w]hen a terminally ill patient experiences severe pain or other distressing clinical symptoms that do not respond to aggressive, symptom-specific palliation.'”
However, in her statement, she instead quotes another concurring decision of a New York case, not the actual decision. She thinks the purpose of palliative sedation,
“is to expedite the dying process and avoid the severe pain, suffering, and indignity associated with the last stage of a terminal illness.”
The difference in those definitions represent the difference between clinicians who do not seek to hasted the death of their patients and those who do. It demonstrates the way assisted suicide disrupts the integrity of the medical profession.
In Part 3 is discussed how the legal precedence and Justice Cypher’s reasoning impacts the current bill when looking carefully at what they changed from the last one.