Colorado Capitol

Why I’m Ambivalent about Right-to-Die Laws

I agree that people facing a very painful end of life have a moral right to choose whether or not to take their own lives. (This is an emotionally difficult topic, obviously.)

However, recently I came out against a Colorado ballot measure, the End-of-Life Options Act (Proposition 106), because some of its secondary language violates rights of property, contract, and association.

What about right-to-die laws more generally? If the language of the Colorado ballot measure were cleaned up, would I support it then? At one point I would have said yes without hesitation. See my first, second, and third articles for the Objective Standard on the matter.

Now I think there are very good arguments against typical right-to-die laws. Such laws do not properly solve the problems they seek to address, and they create new problems.

Let’s first review the major provisions of Proposition 106 (not counting the troublesome language I critiqued previously), which was modeled on the end-of-life law in Oregon. For additional information, see the proposed statutory language, the state’s Blue Book analysis of the measure, and a supportive group’s summary of it.

  • It applies only to adults diagnosed by two doctors to have a terminal illness likely to result in death within six months.
  • Explicit language grants that doctors “may choose whether to participate” in the process.
  • To obtain a prescription for drugs that would cause death, a person must make three requests, one after a fifteen day waiting period and one in writing.
  • Either doctor can order a psychiatric evaluation to ensure informed consent.
  • Two additional people must sign a statement to the effect that the person making the request is of sound mind; at least one of those people must not be related to the person making the request or have any financial stake in that person’s passing.
  • Those who participate in the proceedings defined by the statute are absolved of civil and criminal liability.
  • Anyone who “knowingly or intentionally coerces or exerts undue influence on an individual” to request “aid-in-dying medication” (or who commits similar offenses) is subject to felony penalties.
  • Importantly, the person making the request must self-administer the drugs.

For the most part these provisions are thoughtfully drafted (again, not counting language that I critiqued in my previous article). The only additional issue with the language that I see is that “undue influence” is a subjective term, but I think the measure builds in ample precautions to prevent (actual) undue influence.

Why am I ambivalent about right-to-die legislation generally rather than highly supportive of it? I am not convinced that it is proper or necessarily to permit doctors to prescribe drugs specifically for suicide or to formalize witnesses’ role in signing end-of-life documentation.

Here are the specific problems that I see:

1. Permission: If I wish to end my own life in the relevant circumstances, I should not have to ask anyone’s permission to do so. Practically speaking, under current law, suicide is already legal. And for most people, it is not too difficult to carry out in any of a variety of ways. It’s not like government threatens criminal penalties against people who attempt suicide. If I decided to kill myself (if I were unfortunate enough to contract a dreadful and terminal disease), I would just do it. The idea of having to ask someone’s permission for this is frankly offensive, and I probably wouldn’t do it even if the ballot measure passes.

2. Sanction: Right-to-die laws needlessly involve doctors and witnesses in the decision to end one’s life. I just wouldn’t want to lay that decision on anyone else. It’s not appropriate for anyone else to formally sanction my decision to commit suicide (if ever I made it). Properly, it’s my decision, and mine alone.

3. Drug Availability: The problem of drug availability should be solved by removing existing barriers. The basic problem is that, although I am a rational adult capable of making my own decisions, government forcibly prohibits me from seeking to purchase the drugs I might want. If someone wants to sell me drugs that in a large enough dose will kill me, I have a moral right to buy those drugs—just as I have a moral right to buy a rope at a hardware store, a super-sized bottle of Vodka at a liquor store, or a box of ammunition at a gun store (any of which can be lethal).

Notably, drugs that can be used for suicide generally also can also be used for other things. For example, Wikipedia notes that pentobarbital is also used as a sedative, to control convulsions, and for veterinary anesthetics.

4. Involuntary Commitment: Any problem of involuntary commitment to a mental health facility (if any exists) should be solved by tweaking existing law. Generally, government is right to sanction the involuntary commitment of a person who is suicidal because of depression or mental illness. That’s not the context at issue here. Practically speaking, I don’t think government agents would try to commit someone who contemplates suicide because of a terminal illness. But, if that is a problem, an exception could be written into existing law.

5. Liability: Any problems involving criminal or civil liability for third parties also should be solved by tweaking existing law. The main concern is for providers of drugs and health care. Legislators could absolve such actors of liability in the relevant cases without asking them to positively sanction a person’s suicide. For example, a doctor could be absolved of liability if he diagnoses a terminal illness with a likely survival period, if the person diagnosed then commits suicide.

What about friends and family members who witness a suicide? I had a lengthy discussion about this with attorney and former state legislator Shawn Mitchell, and in his view (please note that this is not legal advice to readers), a person’s family cannot be legally charged for watching a person with a terminal illness take life-ending drugs or even for handing those drugs to the person. (Physically administering the drugs is a different story.)

“That doesn’t mean a crazy prosecutor wouldn’t overreach and charge you with something,” Mitchell added—that’s a much wider issue—but current law provides no grounds for prosecution. Assuming Mitchell is right, then that alleviates most or all of the liability concerns regarding friends and family. (By the way, Mitchell opposes the Colorado ballot measure.)

I think the sensible thing to do if a person decides to commit suicide (again, in no way should any of my remarks be taken as legal advice) is to make sure that intentions are very clearly stated in writing. In my view, it would be sensible to have three sorts of documentation: medical records clearly indicating the medical condition, a clear statement of intent to commit suicide, and witness statements affirming soundness of mind. Note that nothing about this asks witnesses to sign specifically end-of-life paperwork, only to attest to a person’s soundness of mind. (A notary public could witness a person’s signature to a document of intent to commit suicide, but such a mark verifies identity and is not a formal sanction of the contents of the document.)

With the sort of documentation outlined, I can’t imagine that any prosecutor would try to pursue charges. Of course, individual prosecutors do things that I regard as idiotic and unjust on practically a daily basis, so I would like to see some explicit statutory relief from liability in the relevant cases. (Note that this is relevant only if the person who wants to commit suicide wants to have family and friends around at the end.)

What I would really like to see, then, is a package of legislation that addressed the problems discussed above without doing the other things that typical end-of-life proposals do. Of course, we can include my proposal within the family of end-of-life measures, with the understanding that my proposal varies substantially from others.

Unfortunately, as is often the case in politics, the ideal solution is not practically an option at this time. Given that the choices immediately before us (in Colorado) are between the status quo and Proposition 106, is it better to vote for or against the measure?

As I’ve argued above and in my earlier piece, I think there’s enough wrong with Proposition 106 to warrant opposition to it. If the offending secondary language were cleaned up, I’m not sure whether the measure would then merit support. I think a reasonable case could be made either way. At least Proposition 106 is a proposed change to statutes, not the state constitution, so the legislature could easily intervene if it wished to do so.

There is one very thorny issue that I have not yet addressed and that is not addressed by Proposition 106: cases of near-total paralysis. At least such cases are rare. Obviously a paralyzed person who wanted to could not easily self-administer life-ending drugs. What should the law say about such cases?

My tentative view is that a paralyzed person should be able to request that a health care professional set up a system to administer life-ending drugs, triggered by an action by the paralyzed person, even if just something like a movement of the head. The obvious difficulty is ensuring that the process follows the patient’s deliberative wishes and is not abused. But it seems possible to meet those burdens.

It seems obvious that the law never should allow someone other than the patient to administer life-ending drugs (or any other life-ending measure), even if the patient requests that. Such a practice—technically euthanasia—would make it too hard to verify consent and to prevent potential abuses.

I think that actually taking the final deliberative act (of taking the drugs or whatever) is the final element demonstrating consent, without which consent cannot fully be ascertained. Killing yourself is far different from saying you want to kill yourself. Hence, as I understand the case, I do think Jack Kevorkian stepped over a moral line when he administered a lethal injection to a man in 1998.

Let me emphasize, though, that cases of paralysis do not bear upon the more numerous cases of people with terminal illness who want to self-administer, and are readily capable of self-administering, drugs to end their own lives.

People suffering from a terminal illness have a moral right to decide whether to bear it until the natural end or to intentionally end their lives first. But typical end-of-life laws treat this right as a state permission, inappropriately involve third parties in the choice, and miss more straightforward ways to address the real problems at hand. I appreciate the goals of those who advocate such laws, but I question their legal means of accomplishing those goals.

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