The Incoherent Right to Die
The Incoherent Right to Die
Jonathan Lasken, 4 NAELA J. 167 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
Much ink has been spilled on the need for better palliative care in America. However, the interplay of under-treated pain and end-of-life autonomous decisionmaking remains underdeveloped in the literature. Moreover, this debate is systematically overlooked by judges and legislators engaged in the debate over the right to die. At least four United States Supreme Court Justices in the famous companion cases Washington v. Glucksberg and Vacco v. Quill noted in separate concurrences that the decisions would have to be reconsidered if they were presented with a plaintiff who was experiencing pain. None of the Justices, however, noted that patients in pain may lack the autonomy requisite to exercise the right under consideration. Perhaps even more disturbing than the United States Supreme Court decisions are the actions taken by state legislatures in this area. Oregon currently has a Death with Dignity Act on the books, and California narrowly defeated a ballot initiative with the same question in 1992 with a vote of 54% to 46%. Underlying these actions is a desire to respect patient autonomy at the end of life, justified in part by allowing terminally-ill patients to avoid unnecessary pain. It is ironic then that the very thing (i.e., right to die) being respected may be undermined by the justification (pain) for respecting it. Indeed, for those in pain there is no autonomy to protect because their pain destroys it. These statutes fail when confronted with patients in pain. Rather than achieving their desired ends, these statutes create a situation in which patients, unable to think rationally through their pain, strike a self-inflicted death blow. That can hardly be considered the “death with dignity” that the Act strives to provide.
This article will first examine what is meant by autonomy and pain. It will then look to the current constitutional and statutory law to paint the modern picture of the right to die. Next, it will note the discussion that is missing from the current legal sources. After that, it will consider the interplay between autonomy and pain, initiating the missing dialogue in the current debate. Finally, it will consider how this interplay should be reflected when an appropriate endeavor is made to define the right to die.