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« Back to Is There a Right to Die? main page   Transcript for: Is There a Right to Die?Think Tank Transcripts: A Right to Die? ANNOUNCER: 'Think Tank' is made possible by Amgen, recipient ofthe Presidential National Medal of Technology. Amgen, helping cancerpatients through cellular and molecular biology, improving livestoday and bringing hope for tomorrow. Additional funding is provided by the John M. Olin Foundation andthe Lynde and Harry Bradley Foundation. MR. WATTENBERG: Hello, I'm Ben Wattenberg. Until recently,assisted suicide was illegal, but court decisions have affirmed theright of terminally ill patients to receive suicide help fromdoctors. Are we making dying more humane or are we entering a bravenew world of state-sanctioned euthanasia? Joining us to sort through the conflict and consensus are scholarsfrom across the country: Leon Kass, professor in the Committee onSocial Thought and the College at the University of Chicago, aphysician and author of 'The Hungry Soul'; Daniel Callahan, directorand co-founder of the Hastings Center in Westchester County, NewYork, and the author of 'The Troubled Dream of Life: In Search of aPeaceful Death'; Stephen Jamison, professor of social and behavioralsciences at the University of California at San Francisco and authorof 'Final Acts of Love: Families, Friends and Assisted Dying'; andJonathan Turley, law professor at George Washington University inWashington, D.C., and founder of the Project for Older Prisoners. The topic before this house: Is there a right to die? This week on'Think Tank.' For thousands of years, doctors have taken the Hippocratic Oath,which says, 'First do no harm.' Now the interpretation of the famousoath seems to be changing. A recent Gallup poll reveals that 64percent of Americans support physician-assisted suicide for somepeople, and it is estimated that as many as 25 percent of practicingdoctors have admitted to quietly helping people die. While advancesin modern medicine make it possible for people to live longer andmore actively, frightening declines in the quality of life are stillcommonplace. Recent court decisions have held that competent terminally illpatients have the right to end their lives with a doctor'sassistance. But critics ask: What defines competence? How terminal orpainful does an illness have to be to sanction doctor-assistedsuicide? And would such a law set society on a slippery slope towardcoerced suicide, euthanasia, and a new medical specialty -- killing? Supporters of assisted suicide say terminally ill people shouldhave control over their lives and their deaths. Such control wouldallow them to die with dignity. Jonathan Turley, where do you stand on the issue ofdoctor-assisted suicide? MR. TURLEY: Well, ultimately, the question of doctor-assistedsuicide depends upon our definition of the right to die. Doctorassistance is a derivative right, if there is a right in theConstitution, to the right to die. Now, restrictions to a constitutional right have to be reasonable.To say that there can be no assistance of a physician in the exerciseof a constitutional right would be analogous to depriving a woman ofthe benefit of a physician in an abortion. MR. WATTENBERG: Okay. Stephen Jamison. MR. JAMISON: I believe that only by legislation or by firmguidelines that are established by the courts can physicians actuallybe able to provide to themselves a moral justification for decidingwhen and how a patient should be helped to die. MR. WATTENBERG: Daniel Callahan. MR. CALLAHAN: I think people are terribly concerned about dying,and rightfully so these days. MR. WATTENBERG: You might say that, right. MR. CALLAHAN: But it seems to me that the solution ofphysician-assisted suicide is worse than the problem it's meant tosolve. It's going to have enormous social impacts, I think mainly ofa harmful kind. I don't believe -- there's certainly a right tocertain kinds of care in dying, but we're all going to die. It seemsto me to make no sense even to talk about a right to die. Thequestion to me is what right ought we give physicians to help us inour dying? And here I don't think physicians should have that kind ofpower. MR. WATTENBERG: Leon Kass. MR. KASS: I also think that, however helpful this might be in anindividual case, as a matter of social policy, this will be adisaster. It will turn the healing profession into a profession thattechnically dispenses death. The relief of suffering will come tomean the elimination of the sufferer, and all kinds of vulnerablepeople who are already marginalized in the health care system willfind themselves eliminated. MR. WATTENBERG: What is the legal situation of a right to die? Isthere such a constitutional right? MR. TURLEY: Well, that's a salient question because we have twocourt of appeal both acknowledging for the first time that there is aconstitutional footing for this right to die. MR. WATTENBERG: Do they cite a provision? MR. TURLEY: Well, that's the rub. Unfortunately, they citedifferent rationales. The 9th Circuit believes that this right isbased upon due process, while the 2nd Circuit vehemently disagreeswith the 9th Circuit. MR. WATTENBERG: Now wait a minute. Explain that. Why would the dueprocess clause provide a rationale? MR. TURLEY: The 9th Circuit believes that this is a traditionalliberty interest that the Constitution protects and the governmentcannot deprive you of. The 2nd Circuit disagrees with that and saysthat actually they don't believe it is such a traditional rightbecause there's no traditional support or recognition of that right.But they feel that it is a constitutional right nonetheless under theequal protection clause. Now, the reason for that is that the 2ndCircuit was bothered that people who were in a vegetative state had aright to have medical assistance removed and thereby death brought onby the act of a physician. And the 2nd Circuit said you can't treatpeople differently. People who are cognitive, who are not in avegetative stage, are being denied that same right, and you can'ttreat two similarly situated people in different ways under the equalprotection clause. MR. WATTENBERG: Leon, is pulling the plug on someone who is in avegetative state, is that the same as doctor-assisted suicide? MR. KASS: Absolutely not. It seems to me medicine always is -- onthe presumption that there's a possibility of saving a person or ofrestoring them to health, we'll try many kinds of therapy. But aftera while, when it becomes clear that the therapy is futile, that thepatient is not going to get any better, these interventions areregarded as useless and burdensome additions to the already sad endof a life, and people desist from a trial of treatment that has notworked. The intent is in fact to no longer interfere with the dyingprocess and to allow a person to live out whatever -- Whereas in the other case, the direct administration of drugs,either by a physician or given to a patient, intends death directlyand it is a decisive difference. There's a bright line between thesetwo things traditionally and I think ethically and legally. MR. WATTENBERG: Are courts the right place to decide this matter? MR. CALLAHAN: I don't think they're necessarily the best forums.Unhappily, they're often the only forums we have in this country fordealing with difficult topics. I wish that these courts had simplyrefused to take on these cases, let the issues be debated more withinthe states and not sort of, so to speak, to an end run on publicopinion and public debate, which I think is still relatively immatureon this topic. MR. TURLEY: Well, I respect the point, but it seems to me that theox is gored the other way as well because the public opinion -- ifleft to public opinion, most states would in fact have these laws.The courts are serving a function, I think, for those against theright to die in putting a brake, essentially, on this movementtowards a right to die and trying to define in that forum what is afair and reasonable sort of procedure. MR. CALLAHAN: I think one of my concerns is that suicide is notagainst the law now, and we treat the person who commits suicide assomebody deserving our pity. We feel sorry about the situation, wework to prevent suicide. But it seems to me that these laws arereally saying suicide is to be an acceptable way of dealing with thedifficulties and suffering of life and death, and it seems to mewe're going to change the status of suicide and legitimate it andelevate it, and I think that would be one of the most disastrousoutcomes. MR. JAMISON: Well, the court in making its decision, one of thethings that it did say is that it is in the state's interest toprotect citizens against harmful acts to themselves. It said theexception here in the case of assisted suicide is that whenindividuals are indeed terminally ill or suffering intolerably, butintolerable suffering was a primary factor in there, that thesuffering itself takes precedence over the state's right to protectits citizens. But I also agree with you that there is a problem here that needsto be addressed. And the problem is, what is the message that's goingout before the people? And that's why I believe that very strictcontrols are necessary that make this an extraordinary decision, thatelevate this to a level of seriousness so that it does not becomejust the expectation that this is the way in which an individualpatient is to end his or her life. MR. KASS: But everybody talks about the desirability and the needfor strict controls, but I think it's -- if you think about it alittle bit, you can see that it's going to be impossible to controlthis. The bright line that we have is clear, but all of the importantterminology -- terminally ill, voluntary, knowledgeable -- thosethings are very ambiguous. MR. TURLEY: Leon, I agree with you that there's a danger there andthere's a slippery slope that we may be on, but the first question Ithink we have to answer is, is there a constitutional right to die?And from that, we then balance that right against what are reasonablerestrictions? I don't think it's necessarily relevant as to the first questionto debate how difficult this constitutional right will be. We don'tdo that with other constitutional rights. MR. KASS: What's the foundation of this constitutional right? MR. TURLEY: Well, there's actually -- I think that it's moreconsistent -- MR. KASS: I've read the documents and the opinions. MR. TURLEY: I think it's more consistent -- moving away from thesetwo cases, it's more consistent to have a right to die given theother rights that we have. We've recognized a right of privacy overyour body. That involves the right of privacy over what will become achild where the state's interest in the third trimester is great.This does not involve a third party in that trimester, it involves asingle party. MR. CALLAHAN: Where did we get the right of physicians to becomeour agents? What kind of a -- where is that constitutional right? MR. TURLEY: Well, it's not -- I think the focus on the physician'sright is misplaced. The question is, if we accept that there is aright to die, the question then becomes whether other restrictionsare depriving the use of that right, in the same way that if yourecognize a right to abortion, the Supreme Court has to then look atwhat a state can do that interferes with that right. Now, that iswhen we do the balancing, and I think that we have to try. MR. KASS: Well, it seems to me that the liberty interest that theConstitution protects is a liberty to -- not to have one's bodyinvaded. What you're talking about is a right to become dead, byassistance if necessary, and that flies in the face of everythingthat liberal politics stands for, which begins with the right -- MR. WATTENBERG: Liberal with a small 'l', classical liberal. MR. KASS: Liberal, small 'l' -- which is the fundamental thing, isthe inalienable right to life. MR. WATTENBERG: Just as a matter of practical thought, if somebodywants to commit suicide, is it that hard to do, I mean without adoctor? MR. TURLEY: Not for 6,000 a people year it's not. I mean, at least6,000 people a year commit suicide, and those are the identifiedones. The actual number is less important, I think, and I think weall agree on that, than the philosophical question. I'm notcomfortable with the fact that we have thousands of people committingsuicide and with probably unnecessary pain every year and possiblyendangering other people. We sort of have this sort of noble lie. MR.CALLAHAN: There are some peculiar ironies here. On the few surveysI've seen of physicians in different specialties, cancer physiciansare the least interested in physician-assisted suicide. It's oftenphysicians who don't directly treat. It's as if the closer they areto patients, the less they're interested in this. And I think also there's the -- the other irony, I suspect, isthat we know that something like close to 90 percent of people who docommit suicide are not doing it because of medical suffering. They'veusually had a history of some kind of mental stress or mental healthproblems. And that doesn't mean they were crazy, but that kind ofhistory is there. And I suppose many of us think, my gosh, we can doa lot better with those people than offering them physician-assistedsuicide. MR. JAMISON: But the question, then, that's not being addressedthere is that those are known suicides and that most of the cases ofassisted suicide that presently go on are dealt with as naturaldeaths. MR. WATTENBERG: Is there an official definition of terminalillness? I mean, is it a day, a week, a year? Or I mean, alas, I hateto disillusion you all, but we are all terminally ill, in effect, isthat right? So how do you -- MR. JAMISON: Well, I think we have the government to blame forthis, in some instances. MR. WATTENBERG: For dying? (Laughter.) Well, there's a good one.Okay, great, yeah. MR. JAMISON: For giving us sometimes a six-month limitation onthis in terms of shifting over to Medicare, Medicaid, and so forth,and hospice payments and so forth. Six months is typically what isused. MR. WATTENBERG: So in other words, if a person is going to die intheory in seven months, you would not make it legal for a doctor toassist in his suicide? MR. JAMISON: Well, I don't have any say in that. MR. WATTENBERG: No, I mean your view; in your opinion. MR. JAMISON: In my view, I think that this should be an action oflast resort, as close to a period of natural death as possible. MR. KASS: Who's to judge now, once you start on this road, whatcounts as unbearable suffering? The thing becomes subjective. Whyshould six months rather than seven or five years? And once you starthere, none of these allegedly firm definitional markers can hold. TheDutch have done an experiment for us in this, in this subject.They've set forth allegedly firm guidelines. The medical professionset it down, the laws looked the other way. And those guidelines areviolated wholesale, enormous numbers of people put to death withouttheir consent. MR. TURLEY: But you know, Leon, one of the benefits of the Dutchsystem is it brings it out into the open. I mean, the people we'remost concerned with are people who are not ill, people who aredepressed, for example. That's a tremendous danger, and I share yourconcern about that. MR. WATTENBERG: There are so many new drugs and drugs coming online all the time dealing with even the -- MR. TURLEY: For depression. MR. WATTENBERG: For depression. I mean -- MR. CALLAHAN: But I don't believe that that situation has broughtit out in the open even there since some 50 percent of thephysicians, by the government's own data, don't report that they doit. They don't report they do the voluntary cases, much less thenon-voluntary -- (inaudible). MR. TURLEY: No, Dan, I accept that. I accept that criticism. But Ithink that -- MR. CALLAHAN: It's not open, in short, in Holland. MR. TURLEY: But I think that -- MR. WATTENBERG: Let me just stop you here for a minute. Are theredocumented instances of non-documented, I guess you'd have call itkilling by physicians? MR. CALLAHAN: The government itself in Holland did a study in theearly '90s called the Remmeling (sp) study, where they found at leasta thousand what they call non-voluntary cases each year, people whodid not -- MR. WATTENBERG: That's what I said, not non-documented, butnon-voluntary. MR. CALLAHAN: -- people who did not request euthanasia. Some mayhave had something earlier in their lives, but there was a largecategory of people who were still competent. MR. WATTENBERG: How many people did they ask -- MR. CALLAHAN: One thousand a year. MR. KASS: A thousand. Compared to 2300 voluntary, there were athousand non-voluntary. MR. CALLAHAN: So in short, something like one-third of the casesin Holland -- MR. TURLEY: But there's a third figure here, and the third figureis there's a lot of people who will have gone to those physicians anddiscussed this possibility. And one of the problems I have is that Ithink that people who are considering this step should talk to peoplelike you. I mean, I would want you to be my doctor, I'd want you tobe my friend. And I would want to talk to you about this. Right now,we have this barrier. So we have incredibly desperate people who aretaking desperate choices, alone. MR. KASS: Look, I think what you say is very good. I think thatvery often a request for assisted suicide is in fact an opportunityto discuss the whole dying process. It's a plea for help, it might bea sign of depression, and the cancer doctors that Dan talks aboutwill tell you this over and over again. Once they reassure thepatient that pain can be dealt with, that they're not going to beabandoned, that there are lots of things that can be done, therequest disappears. And it seems to me that the real -- MR. WATTENBERG: Is pain generally controllable in the -- MR. KASS: Yes, it is. MR. WATTENBERG: -- severe instances? MR. KASS: And the hospice movement has really done us a greatservice by showing how this can be managed. The profession which hasbeen shamefully negligent to this point is now, I think, beginning tocome around. MR. WATTENBERG: The medical profession. MR. KASS: The medical profession is finally beginning to comearound. MR. JAMISON: I share your concerns, but I also share concerns overthe Sloan-Kettering report that was released last December, the studythat showed that even when we supposedly have a system where we cancontrol all but maybe 5 to 10 percent of intractable terminal pain,we still have a vast number of these patients, and many otherpatients as well who are controllable, who are not receiving adequatepalliative care at the end of life, and recent studies that show thatphysicians are not referring their terminally ill patients tohospices, they are not providing them the well-grounded experience of-- MR. CALLAHAN: But physician-assisted suicide is not likely toencourage that kind of referral, I don't believe. MR. JAMISON: Well, I think that -- I will probably be yelled atfor saying this, but I think that the hospices of this country shouldsee assisted death as one very small part of an option of -- of acontinuum of care in this society. MR. KASS: You know, given the immense economic pressures on thehealth care system, given the fact that many people don't have adoctor that they know and talk to, given the fact that all kinds ofpeople are being thrown out of hospital for inadequate coverage, onceyou make assisted suicide a therapeutic option to be offered topeople, palliative care is going to dry up because it's expensive. MR. WATTENBERG: Let me ask something, You guys, with all duerespect, keep saying how you share each other's concern, and youshare this and you share that, and everybody's sharing everything.It's all very cuddly and warm. (Laughter.) What's the disagreement?What are you afraid of, Leon? MR. KASS: Hundreds of thousands of vulnerable people -- the poor,the uneducated, the partly demented, minorities -- who don't haveanybody to speak for them are going to be encouraged to takeadvantage of this option to begin with. MR. WATTENBERG: You mean that the state -- MR. KASS: That the physicians control the information. One canpresent the prognosis in such a way and make suicide appearattractive, and the economic pressures to do so are enormous. MR. WATTENBERG: Because of the cost of the last year or so ofcare? MR. KASS: Yes, because physicians and others get tired of takingcare of people that they can't cure with some kind of technologicalhome run. The medical profession will be profoundly corrupted once itbecomes a death-dealing profession, whether directly or indirectly.It would be like saying, look, there are some people who want todrown themselves, let's turn it over to the lifeguards to do itbecause people trust lifeguards. What would it mean if the medicalprofession becomes a profession known to be a death-dispensingprofession? MR. TURLEY: You can spin this as death delivering or painrelieving. That's rhetorical. But what is practical is that peopleare committing suicide, people are taking this choice. We have todecide whether they have a right to control their own body. Now, thequestion you presented before, which was, where do you find the rightof somebody to commit suicide, that's not the view of the people onthe other side. Their view is, where does the government get theright upon which to control my life? Whether I agree with the constitutional right is not my question.My question is whether individuals have the right to choose here.Then Leon and I can try to make that -- to convince them to take theright choice. But the issue of the constitutional right cannot besubject to our visceral reaction. MR. WATTENBERG: Let me ask a one-word question, or drop a hockeypuck. And it is Kevorkian. MR. CALLAHAN: Well, it seems to me that we see with Kevorkian anawful lot of the problems. I believe if we legalizephysician-assisted suicide, we'll have lots of Kevorkians around.That is to say, we'll see, as we've seen with Kevorkian, very casual,sloppy counseling, looking into patients' backgrounds, people -- henow takes people who are not dying, but are simply suffering -- bytheir account, suffering. It seems to me he is a wonderful model ofwhere things are likely to go. MR. JAMISON: We have him now, and we have many Kevorkians now. MR. CALLAHAN: But we'll have -- I think we'll have many buccaneersin this area. We'll find out, who are the Kevorkian-mindedphysicians? MR. JAMISON: Part of this AIDS study in San Francisco that wasreleased at the Vancouver AIDS symposium, there was one physician whoresponded in terms of the number of assisted suicides that he hadhelped in, and that number was over 100. And I am certain thatalthough that is extremely rare and the Kevorkians are extremely rarehere, without guidelines, without opportunities for second opinions,without opportunities for the intervention of mental healthprofessionals and perhaps without the intervention of bioethicscommittees in local hospitals and at regional levels, these kinds ofactions will continue to occur and will expand because no one isbeing prosecuted in this country for this action now and yet no onehas any guidelines. MR. CALLAHAN: Well, I think the difficulty is -- I don't believeguidelines can work because we have doctor-patient privacy andconfidentiality. There is no way to monitor the transactions thattake place between doctor and patient. You can write wonderfulguidelines, but the question is, short of having a policeman standingat every encounter of doctor and patients, there is no way to breakthrough that privacy to actually make these regulations work. That'sexactly what Holland shows us. MR. JAMISON: Yes, but the guidelines can at least provide medicalassociations with the tools with which they can then educate theirmembers as to the proper physician-patient relationship around theend of life. MR. CALLAHAN: But then don't -- then call them educational toolsand don't call them the regulation and the protection of patients. MR. KASS: Protection. MR. TURLEY: But it's unlikely -- MR. WATTENBERG: What about this -- MR. TURLEY: -- that you're going to get more Kevorkians. I mean,Kevorkian is sort of like the bathtub gin of doctors. I mean, youonly go to a Kevorkian when you've got no choice. MR. CALLAHAN: I use that by meaning the very permissive physicianwho is likely to -- the physician who does a hundred. That's what'slikely to happen. Everyone will find that physician, and there willbe some -- MR. WATTENBERG: What about the idea that I believe is ascribed toformer Governor Lamb of Colorado, the so-called duty to die? It ishis case that the cost of medical expenses in the last, what, sixmonths of life are so enormous that they are bankrupting the wholesocial welfare system, and I believe he has used the phrase 'the dutyto die.' Is that what you're concerned about, Leon? MR. KASS: Well, I do think that the society has not really come toterms with what you said earlier, that we all have a terminal illnessand that mortality is finally no disgrace and that we would do betterif we ceased, in all cases, trying to fight against it, much as welove life and love the lives of our loved ones. And it seems to methat the quest for bodily immortality is the ultimate aim of thecurrent medical project and that it's foolish. But to say that we ought to think about setting limits -- Dan isin fact the opportunity on this subject; he's written beautifully onthis matter -- while we should think about setting limits to thisproject, we don't do it by deciding that certain individuals havelives that are not worth living. The Germans, the Nazi regime showedus what happens when you start thinking in those terms. You protectin a way the sanctity of life while trying to educate the publicabout the limits of trying to live indefinitely. It's a hardbalancing act, but I think it's what we should do. MR. WATTENBERG: So you are in favor of pulling the plug? MR. KASS: I'm in favor of pulling the plug, I'm in favor of givingadequate pain medication, even at the increased risk of death, but Iam firmly opposed to any act that deliberately intends the death ofthe patient. MR. WATTENBERG: Okay. That will have to be the final word. Thankyou, Leon Kass, Jonathan Turley, Daniel Callahan, and StephenJamison. For 'Think Tank,' I'm Ben Wattenberg. ANNOUNCER: This has been a production of BJW, Incorporated, inassociation with New River Media, which are solely responsible forits content. 'Think Tank' is made possible by Amgen, recipient of thePresidential National Medal of Technology. Amgen, helping cancerpatients through cellular and molecular biology, improving livestoday and bringing hope for tomorrow. Additional funding is provided by the John M. Olin Foundation andthe Lynde and Harry Bradley Foundation. Back to top  Think Tank is made possible by generous support from the Smith Richardson Foundation, the Bernard and Irene Schwartz Foundation, the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Donner Canadian Foundation, the Dodge Jones Foundation, and Pfizer, Inc. ©Copyright Think Tank. All rights reserved. 
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