The Clear Line

-- By ShefaliSingh - 16 Feb 2012

Eben, I would like comments one my second draft (this draft) if that is possible. Thank you!

"Distinguishing Omission from Acts"

My Criminal Law class was recently assigned to read a series of cases in our casebook under the heading “Distinguishing Omissions from Acts.” The section focuses on the ‘difference’ between letting a person die and killing a person, specifically in the context of people receiving life-sustaining treatment. The main case of the section is Barber v. Superior Court, which concerns two physicians who were charged with murder and conspiracy to commit murder after they terminated life supporting measures being administered to a deeply comatose patient (with the approval of the patient’s family). In order to distinguish the act of ‘pulling the plug’ from unlawful killing, the California District Court of Appeal asserted, “the cessation of “heroic” life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 1016 (Ct. App. 1983). This was so, the court reasoned, because disconnecting the life support devices was analogous to refraining from giving the patient the life sustaining treatment.

The Supreme Court used comparable reasoning when it considered if a New York assisted-suicide ban was unconstitutional in Vacco v. Quill. Respondents argued that because New York allowed people to refuse life-sustaining treatment, but did not permit physician-assisted suicide, the assisted-suicide ban violated the Fourteenth Amendment’s Equal Protection Clause. They further asserted that the prescription of lethal medication to “mentally competent, terminally ill patients” who are suffering great pain and wish to end their lives would be consistent with medical practice standards. However, the ban prevented physicians from doing so. According to the Court, New York’s prohibition on assisted suicide was not unconstitutional because “[everyone], regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause.” Vacco v. Quill, 521 U.S. 793, 800 (1997). The Court then acknowledged that the Court of Appeals had concluded that people on life-support are in fact treated differently from those who are not, because they have the choice to end their life by stopping their treatment, while others do not have the choice to end their lives through assisted suicide. But, the Supreme Court contended, there is a widely recognized “logical” and “rational” difference between terminating life-sustaining treatment and assisted suicide, which is based on the “legal principles” of causation and intent. For,

“when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. . . . A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the patient be made dead.”. . . Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not.” Vacco, 521 U.S. at 801-02.

This supposedly is the clear line between “letting die” and “killing.”

Lengthening the Handle

Rationally analyzing these cases, it is apparent that the courts’ attempts to differentiate assisted suicide and the act of ‘pulling the plug’ are very superficial. How is the intent of a doctor to ease the passing of his patient so significantly different in these situations to justify labeling one action murder, and the other an acceptable act? How is there an omission of action by ‘pulling the plug,’ removing feeding tubes or turning off a respirator? Why does it really matter if it is labeled an omission of action? What makes a fatal disease a better causation of death rather than lethal injection, especially when the latter can cause less suffering? Under a functionalist approach, the two acts are one and the same.

So why do we claim there is a difference between assisted suicide and the termination of life sustaining treatment, a difference so substantial that one act merits acceptance and the other criminal prosecution? Because these distinctions help us distance ourselves from a thought we will never want to confront, a concept we choose to keep at bay with words and legal reasoning. As social creatures, we do not want to believe that people–especially ourselves—are capable of killing a person they love.

“But that’s not it,” people will rationalized. “The person was suffering, he freely made the choice to end his life, she only gave assistance through compassion and mercy, he would have tried another way anyway,” and so on. These are all important considerations, of course, but they are not part of the essence of “the thang.” Helping another—a friend, a spouse, a family member—to end his or her life not only has consequences for the deceased, but also the assistant who is left to live with what she has done. This person may be consoled by that fact that her loved one is no longer suffering, but that does not mean the experience is not traumatic.

Inconceivable Thoughts

The thought of having to confront this despairing scenario is distressing. Trying to imagine a suffering family member asking me to help him end his life, doing the act, and then having to live with the fact that my loved one is gone forever due to my actions is impossible. My mind prevents me from fully exploring the idea because it is too painful to conceive. Therefore we keep such thoughts at a safe distance away, wrap them in legal jargon, and never have to actually consider them.

But what happens when such uncomfortable thoughts are brought to us by a confused client? To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.

Word Count: 990

It might have helped at that point in the conversation if someone had pointed out that this distinction was the one resorted to by the medieval Catholic Church: the so-called "doctrine of double effect" first articulated by Thomas Aquinas to justify homicide in self-defense—as it happens—and subsequently developed by the Church as the central approach to issues involving end-of-life care. That it is permissible to bring about as a side-effect of intentional conduct outcomes it would be morally unacceptable to bring about intentionally no doubt seems an impossibly fine moral distinction to you. Sikhism is a very much more morally straightforward system of thought than Roman Catholicism. At the bottom of the cases you discuss—but not apparently at the bottom of the discussion that occurred in your course—is a cultural and intellectual history of some interest. Understanding it explains phenomena large and small: why thousands of people die every year in the US in unnecessary torment, and how some of the most wrenching decisions in a human life are made.

Your way of reaching this point is analytically sharp and clearly expressed. In that sense, this is a very successful draft. But in the end, all you have been able to do is to show an idea is wrong. What you didn't get at first teaching were the tools to do more with the idea: to show where, right or wrong, it leads.