Euthanasia and the terminally ill - 5 April 1996

By a singular coincidence or rather by a double coincidence, a doctor went on trial in the Midwestern state of Michigan on a charge of assisted suicide, the day that a federal appeals court in New York upheld a doctor's right to do just that. And these two events happened exactly 20 years to the day, since the first American court ruled, and unanimously at that, that there is a constitutional right to forego treatment to sustain life, which would otherwise naturally end.

Well already in this rough summary of an issue that has harried the country for all those 20 years and longer, we have to watch our language. Not only because it's an issue that vitally may mortally affect every human being, but as you know, it will, like all profound social questions, go to the Supreme Court of the United states.

Now let me remind you that the Supreme Court does not arbitrate between state law and federal law, city law and county law. It considers only charges that the rights of an individual as defined in the Constitution have been violated. No institution on earth - whoa Dobbin – let's say no institution in the English speaking world, spends as much time as the Supreme Court of the United states examining words, analysing them, squeezing them, spending them, refining them, distilling them and in the end usually disagreeing on how a word is to be defined.

I better prepare you for the argument to come, which is nothing less than when does life end and when should it end? Every one of the court's decisions turns on the meaning of some phrase or even a single word in the Constitution. Am I telling you that in a Constitution written over 200 years ago, you will find the answer to such questions as do seven-year-old children have the right to work 14 hours a day? Yes indeed, at one time the court upheld such a right.

And does it say that you can't hold stock in an insurance company and also run an undertakers? It does! And did those same founding fathers also decide that a company that produces films, movies, can't also form a company that exhibits them? Absolutely! Is it proper, is it constitutional for a public bus to play music on route? At the last hearing, no, the sitting citizen has a right in such a circumstance to silence. The Constitution once said that blacks and whites had no right to sit together in a restaurant or school or theatre and then 42 years ago, the court said that one phrase: "the equal protection of the laws," was enough to demand that in all social public occasions, blacks and whites had a right to mingle together. Equal protection of the laws is a standby godsend that solves many questions or maybe doesn't solve them in life, but resolves them in law.

No court even the majestical supreme one has ever decided to unanimous satisfaction what is meant in the First Amendment to the Constitution, by the right "peaceably to assemble." And how about freedom of speech? Now that, for a 100 more years, was taken literally to mean, if you'll excuse the expression, freedom of speech, but it was invoked years ago to justify the prancing of naked men and women on a stage shouting out the well known infantile four letter words. The court said fair enough.

I suppose in the age of infantilism, infantile definitions will be permitted, so I just thought back to the first few sentences I spoke today – a doctor being charged with assisted suicide. In the 20 year old New Jersey case, the big argument was over the word terminal. When is a disease terminal? Well every Tom, Dick and Nancy, every ordinary commonsensical person says of course I know what terminal means, when the person is going to die soon. How soon? Very soon. And what pray, a famous doctor once asked, what is death?

Now this, you could say absolutely elementarily if not elemental question – when does life end – is something we don't have to have spelled out for us. Is that so? Well consider first that the definition of death in the laws of the 50 states, differs from state to state. In some states it's the existence of a pulse. In others a defined heartbeat, in others total irreversible seizing of the circulatory system. End of the respiratory system? Yes but do you mean with or without mechanical help, a ventilator say? In New York state, death is defined as loss of brain stem and spinal reflexes.

These accepted definitions are comparatively new. Even 50 years ago you could spend a fruitless week in any medical library trying to find a definition of death that most doctors agreed on. In my youth, I well remember a famous doctor from Cleveland, a Dr Crile, announced after very careful research that death was nothing more or less than acidosis, the failure of the organism to maintain normal alkaline production. Or as his friend Mr HL Mencken, the sage of Baltimore put it: "The abominable acidosis of Dr Crile sneaks upon us gradually paralysing the adrenals, flabbergasting the thyroid, crippling the poor old liver, finally throwing its fog up on the brain".

Whatever the process, we on the outside, the onlookers don't know when it begins or what's more to the point, when it ends when it's complete. But in looking back to this whole argument about the so-called right to die, it's most relevant to consider the case, which I mentioned at the beginning, the ruling by a unanimous appeals court in the case of Karen Ann Quinlan. It can be told simply and sadly.

In the middle of April 1975, Miss Quinlan, 21 years of age went into a coma after mixing an alcoholic drink with a tranquiliser. Her father being told that she had no possibility of a sentient life – and what is that – requested permission of the hospital to turn off the respirator that was keeping her alive. There was a court battle and then in June 1976 a year or more later, the New Jersey Supreme Court ruled that her father could speak for her in deciding to end her life. The court cited a constitutional right of privacy – which by the way is nowhere to be found in the Constitution of the United states – so her respirator was turned off. The humane act of easing Karen Ann Quinlan into death was legally sanctioned and she was allowed to die. But she didn't. Without the respirator and no more electronic aids, she lived on. I should say that she was fed through a nasal tube and was given antibiotics to ward off any bacterial infection she might pick up. She went on living by the minimal definition of a barely breathing vegetable for more than eight years, she died in June 1985.

The Quinlan case was of course the best known of similar cases, which began to agitate the Republic, so long ago as the 1950s. And when the topic comes up, people who are against any such right to die, recalled the case of a small six year old girl who had her appendix taken out and lived on in a coma for 37 years. But now the focus has sharpened onto one doctor and onto the New York federal court that handed down that judgement last week, which one medico said has liberated the vast underground of doctors who have in the past helped terminally ill people end their lives.

Nobody in or out of this country is more identified with this procedure than the upright, craggy faced Dr. Jack Kevorkian, the Michigan Doctor who has helped 27 dying people put an end to their lives. Twice under Michigan law he's been tried by a jury for assisted suicide, twice he's been acquitted. Incidentally, I think I should add that whatever the evidence in those cases or the confines of the law, surely a jury, 12 of the ordinary people looking on in the classic definition, surely they are bound to be influenced by public opinion outside the courtroom. And at present, over 70 per cent of Americans approve of doctors helping people into death, they differ only on whether he does so at the patient request or if the patient is incompetent, at the say so of a relative.

Dr. Kevorkian is a serious man dedicated to what he regards as the necessarily humane practice of medicine. But this third charge comes up against a newer narrower Michigan law, which takes no account of motive or purpose only of the bare fact: did he assist a suicide? To us, it appears he certainly did, but whether he's found guilty or not it's bound to go up to the United States Supreme Court, and so is the similar decision of a California court, a federal court, which speaks for a constituency of nine western states. And so I suppose is that latest decision, the dramatic decision of the federal appeals court here in Manhattan, which in effect overturned New York's traditional law banning any form of assisted suicide.

The judgement of this tribunal of judges ended. What business is it of the state to require the continuation of agony when the result is imminent and inevitable. So say 70 per cent of Americans. This great question while of interest to everybody has not excited anything remotely like the passionate parades of angry factions that on and on for a quarter century have degraded the public consciousness over abortion. The politicians keep their hands off assisted suicide probably I guess because everybody sooner or later knows a relative or a loved friend who is living out what we call a living death. It remains in the coming year to see if there could possibly be on the United States Supreme Court a majority of word teasers who can find an unconstitutional act in the simple removal of a respirator.

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