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The Courts and Euthanasia

Published online by Cambridge University Press:  28 April 2021

Joseph Fletcher
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Extract

Most of us, I think, supposed that the debate over euthanasia (doing something to end a life that could otherwise continue) had been pretty well settled. For a long time a minority favored it and a majority opposed it—at least in principle, although not always in practice. Recent court decisions, however, have thrown the whole question open again, while public opinion polls reflect a marked increase in tolerance, if not positive approval. What follows is a lay discussion of the issue—not legally or medically professional but still, it is hoped, acceptable intellectually.

My own role in the ethical defense of euthanasia goes back a long way. I began to expound it in the early 1930s. The British organized a euthanasia society in 1935. The Euthanasia Society of America came three years later. It started out with a petition by 1,776 physicians addressed to the New York State Assembly, which promptly rejected it.

Type
Euthanasia
Information
Law, Medicine and Healthcare , Volume 15 , Issue 4 , Winter 1987 , pp. 223 - 230
Copyright
Copyright © American Society of Law, Medicine and Ethics 1987

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References

About three-quarters of the respondents in recent Gallup and other polls conducted in the U.S., Britain, Holland, France, and Scandinavia favor active euthanasia for irreversibly comatose patients, even when death is not imminent. After the Conroy case in New Jersey (1985), a Gallup poll found that 81 percent of Americans approved of stopping treatment so that the patient could die. There was no significant difference between Catholics (77 percent) and Protestants (80 percent). A Roper poll found 52 percent in favor of doctors being allowed by law to end a patient's life if the patient requests it.Google Scholar
Fletcher, J, Morals and medicine, Princeton: Princeton University Press, 1954, esp. pp. 172–210.Google Scholar
This is the position, in the U.S., of the Society for the Right to Die, Inc., and Concern for Dying (formerly the Euthanasia Education Council). The Hemlock Society, alone among “right to die” societies in America, straightforwardly advocates active euthanasia, although restricted to terminal patients—a dubious category, as we shall see.Google Scholar
For a full account historically, see Humphry, D, Wickett, A, The right to die: Understanding euthanasia, New York: Harper and Row, 1986.Google Scholar
Patricia Brophy v. New England Sinai Hospital, Inc., No. 399, Mass. 417, 497 N.E.2d 626 (1986).Google Scholar
Among other cases, the justices listed In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (1983), overruled in part; In re Guardianship of Hamlin, 102 Wash. 2d 810, 689, 1732 (1984); In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); Bartling v. Sup. Ct., 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (Ct. App. 1984); Bouvia v. Sup. Ct. (Glenshur), 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (Ct. App. 1986), review denied (Cal., June 5, 1986).Google Scholar
In re Rodas, No. 86PR139 (Colo. Dist. Ct. Mesa Co., Jan. 22, 1987) (Buss, J.).Google Scholar
Colyer, supra note 6.Google Scholar
See Brophy, supra note 5.Google Scholar
Rasmussen v. Fleming, No. CA-86-0450-PR, Arizona Supreme Court, en banc (July 23, 1987).Google Scholar
Cantor, NL, Legal frontiers of death and dying, Bloomington: Indiana University Press, 1987, esp. pp. 45–51.Google Scholar
Satz v. Perlmutter (Fla. Dist. Ct. App. 1978), aff'd, 359 (Fla. 1980).Google Scholar
See Cantor, , supra note 11.Google Scholar
A recent symposium came close to a candid statement that forgoing treatment is suicide, but only by implication. In its index (but only there), it uses the term “suicide” to cover foregoing treatment. See Lynn, J, ed., By no extraordinary means, Bloomington: Indiana University Press, 1986: 202–12.Google Scholar
See Fletcher, , supra note 2, at 176.Google Scholar
A physician said to me recently (in a typical instance of simplistic definition): “Euthanasia is directly ending a patient's life by a lethal dose or injection. Stopping treatment is not euthanasia because it doesn't directly cause death.” For a critical examination of such thinking by a philosopher, see Rachels, J, The end of life: Euthanasia and morality, New York: Oxford University Press, 1986, esp. pp. 106–50.Google Scholar
Both the eminent neurologist Ronald Cranford, M.D., and the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (in Deciding to Forego Life-Sustaining Treatment, U.S. Government Printing Office, March 1983) have suggested the use of a more comprehensive term, “permanently unconscious,” for all subgroups of irremedial unawareness.Google Scholar
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See the medical testimony in Rasmussen v. Fleming, supra note 10.Google Scholar
Hazelton [sic] v. Powhatan Nursing Home, Inc., No. CH 98287 (Va. Cir. Ct., Fairfax Co., Aug. 29, 1986), order signed Sept. 2, 1986 (Fortkort, J), appeal denied. Record No. 860814 (Va. Sept. 2, 1986).Google Scholar
See a seminal but provocative discussion of this question in Annas, G, Transferring the hot potato, Hastings Center Report 1987, 17(1): 20–21. The court in In re Jobes, No. C4971 85E (N.J. Super. Ct. Ch. Div., Morris Co., April 23, 1986), for example, held that a nursing home was entitled to refuse to honor a patient's request.Google ScholarPubMed
In re Requena, 213 N.J. Super. 475, 517 A.2d 886 (Super. Ct., Ch. Div.), Morris Co., P. 326 88E, N.J., aff'd, 213 N.J. Super. 443, 517 A.2d 869 (Super Ct. App. Div., 1986), per curiam.Google Scholar
Wolf, SM, At the Center: Reaching judges, Hastings Center Report 1987, 17(3): Inside front cover.Google Scholar