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Opposition to Abortion and Physician Assistance-In-Dying: The Claim that Choice Can Evolve Into Coercion


Monday, Jun. 11, 2007

Earlier this month, Jack Kevorkian was released from prison, after serving eight years of his sentence for the murder of Thomas Youk. Kevorkian had injected lethal drugs into Youk, an ALS patient, in 1998, an act that was broadcast on 60 Minutes two months later. For good or ill, Jack Kevorkian's was for many years the face of physician assistance-in-dying in a country in which such assistance violated the criminal law of every state (and continues to violate the law of every state but Oregon).

In April, the U.S. Supreme Court issued its opinion in Gonzales v. Carhart, upholding a ban on so-called "Partial-birth Abortion." The Court there held that because other abortion methods remain legal in the United States, the ban at issue does not impose an undue burden on the exercise of a constitutional right. It also said that the lack of a health-of-the-mother exception does not violate existing precedents (though every statute omitting such an exception had, prior to Carhart, been invalidated).

In some respects, the issues of assistance-in-dying and abortion are quite distinct from one another. Some opponents of one, for example, support access to the other, and vice-versa. Nonetheless, the two issues share common features, and people who mobilize against either one or both practices tend to make a characteristic type of argument that is unusual in other contexts.

The argument goes like this: If the law permits doctors to assist patients in dying/having an abortion, there will follow a disturbing alteration in the way that doctors and others think about and treat those who make a different choice. That is, the freedom to exercise one or the other of these rights will have the effect of making it difficult to opt out. In this column, I will examine and evaluate such arguments.

The Form of the Argument: Setting a "New Normal" Compels Compliance

Though we generally view an expanded array of options as an avenue for broadening societal choice and enhancing freedom, it does not always and necessarily work that way. Sometimes, the very existence of a choice leads people to feel coerced into making it.

Consider a trivial example that is near and dear to those of us in the legal profession: the availability of courses that help law graduates prepare for the bar examination. There was a time when such courses did not exist, and some aspiring attorneys might well have wished that they had a helping hand in studying.

By the time I took the bar, however, I and virtually all of my classmates felt compelled to sign up for a preparation course. Not to do so could easily have generated enough anxiety in any one of us to stunt our performance, even in the unlikely event that we knew enough to pass the examination just from attending law school. Because exams are graded on a curve, the fact that most people took a course would make it more difficult for a person to pass without taking one. Bar preparation courses had become, in that sense, the new normal.

Physician Assistance-In-Dying: How It Might Become the New Normal

How might physician assistance-in-dying become the new normal? It could do so in a number of ways, each of which deserves our attention.

First, the option of terminating one's life with the help of a doctor could, in theory, make one feel selfish for continuing to live and thereby taxing the resources of one's family and the surrounding society. After all, a person could think, my neighbor was in the same shape as I am in now, and she decided to have her doctor help her die peacefully and painlessly. I am old and have lived a reasonably long life already, so why should I waste money that my grandchildren could use to fund their educations? What do I contribute, really, to justify such expenditure? Others are making this choice, so perhaps I should too.

The second way in which dying might come to seem like an obligation, rather than a choice, lies in the increasing acceptance of this option by the patient's family members - the ones who are burdened by the sick, elderly parent and whose inheritances are evaporating. As dying comes to represent a reasonable treatment choice, the ordinary inhibition that people feel about pressuring an aging parent to "drop dead" could dissipate.

Even if no one says anything explicitly, an unenthusiastic "Sure, you can take advantage of every medical intervention; we'll manage the cost, somehow…" could speak volumes. Once the patient in question loses the ability to communicate her wishes, moreover, the budgetary implications of choosing to die versus choosing to live could compromise the judgment of younger relatives speaking on behalf of the patient.

Third and finally, the availability of the death option could potentially alter physicians' thinking about their elderly and infirm patients. If someone will never be restored to a condition in which he can contribute to the communal wellbeing, and the death option is available, a doctor might no longer be biased toward the preservation of a patient's life. Even recommending death might seem appropriate, on occasion.

In the worst case, doctors could come to see some patients as good candidates for euthanasia before the patients themselves (or even, perhaps, the patient's relatives) have contemplated this alternative. If this happens, then doctors - who play a very powerful psychic role in a weak and sick patient's life - could subtly convey the message that "You shouldn't be enduring this life anymore; why not step aside so we can devote scarce medical resources to a more worthy and promising recipient?"

Note that none of these arguments are about the merits of granting an individual who wants to die the legally-sanctioned assistance of a caring physician in carrying out his wishes. They are, instead, arguments about the feared, unintended consequences of living in a legal regime in which the official taboo against doctors treating patients with lethal drugs is lifted.

How Abortion Choice Might Result in Coercion

In some respects, abortion raises a very different set of issues from those raised by assistance-in-dying. For one thing, the individual who chooses to recruit a physician's assistance-in-dying is uncontroversially a full person. For another, that person is, at least ostensibly and ideally, making his own decision about his own life.

Abortion, by contrast, involves the destruction of an entity the status of which is contested - some call it a baby, some a potential life, and many vary their definition depending on the stage of development. The loss involved in abortion is therefore not as uncontroversially grave as that associated with physician assistance-in-dying.

Whatever a fetus is, moreover, it is not the entity that is making the decision to be destroyed. A (different) person, the pregnant woman, is making that decision. In that sense, for those who think of abortion as murder, the risk in physician assistance-in-dying - that relatives and ultimately doctors might decide for patients that it is time to die - is the very essence of abortion.

Despite these differences, however, defenders of both practices rely largely on the importance of individual autonomy and choice in making the most important decisions in life - whether to have a child, and whether to live or die. These are decisions, defenders argue, that should be left up to the individual.

Abortion opponents, like assistance-in-dying opponents, sometimes respond, though, that choice is not always what it seems to be. Let us examine, in turn, the manner in which the abortion option might mutate - as opponents suggest - into an abortion mandate.

First, from the perspective of some pregnant women, it might feel unreasonable to carry their pregnancies to term, given the option of safe and legal abortion. Even if she wants to have her child, a woman might worry that taking a pregnancy to term would lead others to consider her a fool or at least to stigmatize her as a person insufficiently committed to her own education, career, or prospects for the future.

In contrast, the decision to remain pregnant in a world where abortion is a crime could be an easier choice to make - one that would meet with less resistance and hostility than it might have in a regime of legal abortion. Because having a baby is so much more costly (materially and, often, in other ways as well), the availability of abortion might threaten the freedom of some classes of women (such as the young and the poor) not to have one.

Second, in a regime where abortion is safe and legal, a woman's parents, other relatives, and the father of the pregnancy might, on occasion, be inclined to demand that a woman terminate her pregnancy if they are not interested in shouldering the financial and emotional burdens of supporting a child. Like the relatives of the dying patient who is pressured to choose death, family members might make a pregnant woman feel that she has no right to inflict the cost of a child on all of them, against their will, when there is the simpler, safer, legal, and relatively inexpensive alternative of abortion. They could thus push her to exercise her right to choose in a way that, in reality, frustrates her wishes.

Third, and finally, is the potential impact on doctors. When abortion is available, legal, and safe, doctors might think of it as a routine form of medical treatment. In a more direct parallel to the assistance-in-dying context, a doctor might, for example, pressure a woman to have an amniocentesis and to terminate if the child will have Down Syndrome. If termination is an option, the doctor might believe that it makes no sense to bring such a pregnancy to term. The doctor could reason as follows: Medical resources are scarce, so we should make every effort to maximize the health and wellbeing of the population rather than knowingly bringing more sick or medically-compromised people into the world.

Abortion opponents also postulate an even more disturbing consequence of its legality: In the case of late-term abortion, as the majority in Carhart asserts, a doctor involved in delivering part of a baby, only to kill it before it is completely born, has seemingly perverted the birthing process. Mightn't a doctor who regularly performs such procedures come to feel less inhibited about infanticide of the less "fit" babies who are actually born?

Weighing the Costs of Choice: Hyperbole Versus Facts

All of these arguments could be compelling, if they reflected real phenomena. If the consequence of providing an option is truly to eliminate existing options, then such a consequence would make the "freedom" point seem empty. Indeed, anyone who claims that there is a right to die or to terminate a pregnancy, on freedom grounds, also supports the right not to be assisted in dying and not to terminate a pregnancy. If the provision of one choice eliminates the reality of the other, then who is to say that providing it is more appropriate than eliminating it?

The difficulty with such arguments, however, is that although they have a certain surface plausibility, they have yet to be persuasively demonstrated in the field. As fellow columnist Michael Dorf noted in his blog, Dorf On Law, for example, it appears that Oregon's assistance-in-dying option has not led to the enumerated abuses: the numbers of patients utilizing the option has evidently not skyrocketed. Yet we cannot know with certainty how the 292 patients who were assisted in dying in Oregon (by the end of 2006) really felt about the options they had. And there have been some disturbing abuses identified in the Netherlands, where assistance-in-dying is legal, though many fault specific features of the Dutch law for such abuses.

Similarly, in the abortion context, it is hard to determine reliably whether many women who have terminated pregnancies felt coerced into doing so. There are doubtless some such women, though there is not much evidence to support a claim that this is a frequent problem, and the professional medical consensus appears to reject the related phenomenon of "abortion trauma syndrome," in which having an abortion supposedly causes later regret and distress for the woman at issue.

Therefore, we should be skeptical of these slippery slope arguments about the impact of legalized physician assistance-in-dying and abortion on the way we think about life. The reality is that the one sure way to limit the options of a vulnerable group of people is to ban a practice that is now, and historically has been, very much desired by many of their number - specifically, terminal patients and pregnant women, respectively. The existence of a Dr. Kevorkian, and of the back-alley abortion providers who caused so much injury and maternal death in the period prior to Roe v. Wade, speak eloquently to this point.

For a terminal patient who is suffering terribly and does not wish to live, the possibility of having a caring doctor help him die a humane and meaningful death can be quite comforting. Paradoxically, the knowledge that he has this option can sometimes motivate a patient to put off actually exercising it. The substantial number of people in Oregon who obtain a license to terminate their lives but do not go on to do so suggests as much.

For a woman who wants to have an abortion, the legal mandate that she carry her pregnancy to term so that others can feel more comfortable about doing so smacks of a peculiar sort of paternalism - one that seems especially odd as legislators and their pro-life constituents eschew a health-of-the-mother exception to the ban.

Motivating Opponents to Appeal Directly to Pregnant Women and the Terminally Ill

Finally, I would suggest a competing point about the potential impact of legalization. To the extent that there are large numbers of people who believe that abortion and physician assistance-in-dying are wrong, even absent abuse, such people have a greater incentive to work for the provision of "better" alternatives in a world of many options.

For terminal patients, this might result in better access to health insurance and hospice care to provide a competing product for those considering death. And for pregnant women, this could lead to improved childcare options for people who do not want to place their education and careers on hold, but who might still wish to have their babies.

Any pressure that people might feel toward death and abortion, respectively, might - in large part - be a function of the poverty of other options rather than of the legality of physician assistance-in-dying or of abortion.

If those who oppose assistance-in-dying and abortion work to make other alternatives available and attractive - because they must address a holder of legal rights who has the power to choose between alternatives - then that would be a positive outcome for all concerned. To borrow a phrase from Feminists for Life (FFL), if the terminally ill deserve better than death and if "women deserve better than abortion," as opponents declare, then laws that protect the right to physician assistance-in-dying and to abortion might be just the thing to motivate groups like FFL to help make those better alternatives a reality.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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