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Wednesday, Jan. 17, 2001

On November 28th, 2000, the Netherlands became the first country in recent history to legalize physician-assisted suicide. (Though the Dutch Senate must vote on the law before it goes into effect, this step is viewed as a formality.)

Long before the passage of this statute, moreover, the Netherlands had adopted a tolerant, "look the other way" attitude toward the practice at issue. The country hads thus already been a llightning rod for debates about "mercy killing" for many years.

The new legislation has only further provoked critics of all stripes, including the "pro-life" contingent, to condemn the Netherlands. Nat Hentoff, among others, has drawn provocative parallels to the notorious "euthanasia" practiced in Nazi Germany.

Euthanasia Even for Those Who Are Not Terminally Ill?

One feature of the groundbreaking law that is especially controversial is the inclusion of non-terminally ill patients among those who qualify for physician assistance in dying. The main criterion for eligibility under the new law is a patient's experience of continuous and unremitting suffering that cannot be remedied; the suffering patient, however, need not be terminally ill.

Many others others who have advocated legalization or decriminalization would, by contrast, would limit this option to those already diagnosed with a terminal illness and experiencing the end stages of that illness. For example, those who argued (unsuccessfully) for a right to physician-assistance in dying four years ago before the United States Supreme Court urged this limitation on the Court.

From whence comes the popularity of the terminal illness requirement? People feel an understandable ambivalence about a doctor intentionally ending the life of a patient — and that ambivalence is magnified when the patient's ultimate eventual death is not already a certainty.

Doctors, too, are professionally trained to help extend life by curing and controlling illness and disease. "First do no harm" is the central command of the Hippocratic oathOath, and it would appear, on its face, to prohibit the killing of patients.

And even if one believes that expediting the death of a terminal patient does not count as killing, one might still feel that causing the death of a patient who is not terminal crosses the line.

Because the capacity of medicine to restore health has not kept pace with its technology for prolonging life, however, there are very sick people who would prefer to die rather than endure more pain. The demand for physician assistance in dying has accordingly grown and, notwithstanding the laws that bar the practice, large numbers of doctors around the globe have felt moved by their patients' pleas.

A conflict between the desire to honor a suffering patient's sincere wishes and the desire to large numbers of doctors have felt moved by their patients' pleas.

A conflict between the desire to honor a suffering patient's sincere wishes and the desire to large numbers of doctors have felt moved by their patients' pleas.

A conflict between the desire to honor a suffering patient's sincere wishes and the desire to extend rather than shorten lives makes the "terminally ill only" rule appealing. We can tell ourselves that doctors are not so much ending a life as they are hastening an inevitable death. A patient in the end stages of terminal illness will die soon anyway, the logic goes. Therefore, the logic goes, ending his life early is a less momentous act and does not fully "count" as killing.

The Problem with a "Terminally-Ill Only" Restriction on Euthanasia

This implicit compromise between competing impulses, however, rests on a distinction that is neither sound as a matter of logic nor faithful to the principles that ought to underlie any right to physician assistance in dying.

First, the distinction between the terminally ill and everyone else is flawed. When a doctor ends the life of her terminally ill patient, even one who would otherwise die very soon, she kills him no less than if the patient were healthy.

To understand why this is the case, consider the scenario in which the terminally ill person wants very much to live. There are people in the end stages of terminal illness, for example, who might wish to spend their remaining days or weeks among their loved ones. One might treasure the limited time available for saying goodbye and making peace with close family and friends. A doctor (or anyone else) who decided to cut short the life of a person who felt this way, on the theory that he would have died soon anyway, would be guilty of cold-blooded murder.

Second, the distinction between the terminally ill and everyone else does not keep faith with the ethical foundation for the right to die. The moral principle that distinguishes physician-assisted suicide from murder is a respect for the autonomy of the individual. According to this principle, if a person who is of sound mind and who has carefully considered her decision is suffering so much pain that she wishes to die, we should honor that wish regardless of whether she is terminally ill — out of compassion and respect for the individual. who finds her suffering too great to bear. It is essential in this context that we do not substitute our own judgment about which lives are and are not worth living for that of the individual whose own life is at stake.

Euthanasia Criteria Should Not Import Judgments as to of Individual Lives' Value

Ending the lives of just the terminally ill who request assistance only seems less extreme than ending the life of any patient plagued with unremitting suffering who makes the request. The limitation in fact imports into the decision a value judgment about which lives are worth prolonging.

If a sufferingsick person has very little time left, some think, it is reasonable for that person to yearn for death, and we should therefore honor that person's wishes. If, on the other hand, a sick person could live for years, some believe, it is unreasonable for that person to want to die, and, some believe, we ought accordingly to refuse that person's request. We cannot avoid ranking the value of different people's lives, once we decide that doctors may assist some but not all individuals suffering terribly and without hope of improvement.

Once we have made such a ranking, moreover, those people who fall into the category of "eligible for death" can now read a normative message into our willingness to honor their wishes alone — the message that their lives, in particular, are not considered by society to be worth living. Such a message exemplifies some of the very euthanasia concerns that drive opponents of physician-assisted suicide to compare it to the eugenics programs of Nazi Germany.

If the only criteria for assistance in dying are relentless suffering and the expressed desire to die, we need no longer make such judgments, and that is a positive feature of the new legislation in the Netherlands.

If a person wants to die because of a temporary condition, we can deny the person his request for a neutral reason: he must try a less restrictive alternative (a medical cure) before resorting to death. If we can do nothing for his condition, however, and it will persist and cause a degree of suffering that makes him want to die, our neutral principle — and that wisely embraced by the Netherlands — tells us that we may, through a doctor, assist him in ending his life as painlessly as possible.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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