In Western society over the past two decades, the question of legalizing PAS or VAE has been discussed widely by the media, the academy, and the polity. This contemporary public debate represents only the most recent chapter in the history of euthanasia.² Although euthanasia was practiced by Greek and Roman physicians, it was explicitly outlawed by the Hippocratic Oath that forbade physicians from “giving a deadly drug to a patient.” The general opposition of organized medicine to euthanasia has continued to present times. Modern attention to euthanasia began in the late 19th century in England, where it became the topic of speeches at medical societies and was discussed in scholarly articles in medical journals. A bill to legalize euthanasia, introduced in the Ohio legislature in 1906, sparked considerable debate but ultimately was defeated.³

In Germany in 1920, psychiatry professor Alfred Hoche and Chief Justice of the Reich Karl Binding reintroduced the topic in their infamous book The Permission to Destroy Life Unworthy of Life.⁴ They argued that the lives led by certain unfortunate people, such as the institutionalized mentally retarded, mentally ill, and incurably ill, were “lives unworthy of life” (lebensunwerten Lebens) and their “merciful” killing by
physicians constituted “healing treatment.” Further, because these unworthy lives drained the state’s finite resources and contaminated the German gene pool, killing them also represented a social good. Hoche and Binding’s book and earlier works from the Rassenhygiene (racial hygiene) movement, such as the widely read text by Alfred Ploetz,⁵ served as the theoretical basis for the German sterilization plan begun in the early 1930s and followed quickly by the involuntary euthanasia program. As is now well known, within just a few years, these programs evolved into the Nazi death camp mass killings of the Holocaust. Less well appreciated is how the acceptance of the theories of racial hygiene and lives unworthy of life convinced many German physicians practicing in the Third Reich to actively participate in both programs in their deranged belief that “healing by killing” followed medical ethics and represented good citizenship.⁶

Debate on legalizing euthanasia was renewed in England in the 1930s. British physicians formed the Voluntary Euthanasia Legalization Society and unsuccessfully attempted to pass a bill in Parliament legalizing euthanasia.⁷ The discovery shortly thereafter of the horrors of the Holocaust and the willing participation of some German and Austrian physicians in the mass killings quelled interest in legalizing euthanasia for several decades thereafter.

In the United States, aside from a few scholarly works in the 1950s on the pros and cons of legalizing euthanasia,⁸ attention to this subject was not rekindled until the 1980s, when reports from the Netherlands on their program of permissible PAS and VAE were publicized (see later). In 1988, JAMA published the provocative vignette of casual euthanasia of a young woman with cancer in a short piece entitled “It’s over, Debbie” which sparked a tremendous and heated response from physicians on both sides of the debate.⁹ Later, publication of Timothy Quill’s case of PAS performed more cautiously on “Diane,” similarly evoked much reaction from the professional community and culminated in a grand jury investigation that refused to hand down a murder indictment to Quill.¹⁰ Scholarly journals such as the Hastings Center Report, the Journal of Medicine and Philosophy, and the Cambridge Quarterly of Healthcare Ethics featured special issues dedicated to discussions of the theoretical and practical aspects of legalizing PAS and VAE.¹¹ Numerous scholarly books and edited conferences, debating various aspects of PAS and VAE, continue to be published.¹²

The popular press in the United States continues to kindle public fascination with the question of legalizing PAS and VAE. Articles about the activities of assisted suicide advocate Dr. Jack Kevorkian were a staple of news reports throughout the 1990s until his conviction and incarceration for 2nd degree murder in 1999 for performing VAE on Thomas Youk, a man with ALS who requested his assistance.¹³ The Hemlock Society, under the leadership of Derek Humphry and, more recently, Faye Girsh, has conducted a well-funded grass roots national campaign to legalize PAS. Final Exit, the Hemlock Society’s suicide manual for the terminally ill, remains a best-seller.¹⁴ Numerous polls have indicated that an increasing proportion of United States citizens favors the legalization of PAS and VAE.¹⁵ Although Washington state’s Initiative 119, which would have legalized PAS, was narrowly defeated,¹⁶ Oregon voters in 1994 and again in 1997 approved by referendum the legalization of PAS.¹⁷ (See below.)

Several factors are responsible for intense public and scholarly interest in PAS and VAE. Many people fear that they will suffer needlessly during the course of a terminal illness because their physicians will institute inappropriately aggressive life-sustaining treatments they do not want that will prolong their dying process. Yet, despite receiving aggressive life-support, many people also fear they will not receive adequate treatment for pain and suffering while dying.¹⁸ They further fear they will lose control over their lives, making their final days personally degrading. Finally, many people fear that their terminal illnesses will bankrupt them and their families.

Over the past decade, scholarly attention to PAS and VAE shows signs of waning. A year-by-year tabulation of published journal articles on PAS and VAE shows a bell-shaped curve. The output of scholarly articles peaked in the mid-1990s. The number of articles in published in 2003 was only one-fifth the number
published in 1993.¹⁹ As is true in other controversies such as medical futility (chapter 10), this decline in scholarship volume does not reflect a growing consensus so much as the reality that the essential points of the arguments have been made and only reports of new data justify publication. In the case of PAS, it also may reflect a growing sense of its inconsequentiality because the Oregon data (see below) show that PAS is used in only about one in a thousand deaths.²⁰

Some scholars and legislators have concluded that the explicit legalization of PAS or VAE for terminally ill patients would best prevent dying patients’ fears. In the idealized PAS model, a physician would be permitted to write a prescription for a lethal dose of a barbiturate at a patient’s request. The physician would instruct the patient how to take the drug for a successful suicide. The patient later could consume the drug when and where she wished to die. In the idealized VAE model, the dying patient would ask her physician to kill her mercifully. After satisfying appropriate preconditions, the physician would administer a lethal parenteral injection. Both these models carry the theoretical advantage of empowering patients to control the time and mode of their death, thus giving them the option to allay fears of suffering a prolonged, painful, degrading, and expensive death. But, aside from the moral issues, they create a number of serious problems that lead me to conclude that their legalization is undesirable public policy.

First, it is necessary to precisely define the terms used in this debate because some of the disagreement stems from definitional ambiguity.²¹ Physician-assisted suicide (“assisted killing”) refers to the act wherein, at the request of a competent patient, a physician provides the necessary medical means for the patient to commit suicide, and the patient subsequently follows the physician’s instructions to employ these medical means to take her own life. A suicide is physician-assisted if the physician’s participation is a necessary but not a sufficient component of the suicide. For example, a physician becomes a necessary component of a dying patient’s suicide if she complies with a patient’s request to prescribe 100 pentobarbital tablets, for the express purpose of committing suicide. If the patient later swallows the medication to commit suicide, the physician would be considered an assistant to this act for providing the medication and explaining its use for suicide.

The physician who merely notifies a dying patient interested in committing suicide that books have been published on this subject has not committed PAS. Because this information is widely available, the physician’s participation is an unnecessary component of the suicide. Similarly, physicians who warn patients that unadvisedly taking an overdose of a properly prescribed medication may be lethal have not performed PAS because it is customary medical practice to caution patients about the effects of medication overdosage. Providing properly prescribed palliative treatment to alleviate a dying patient’s pain and suffering is not PAS or VAE, even if the patient dies sooner as an unintended consequence, if the intent was to prevent suffering and the medication type and amount were appropriate for the goal of palliation.

Voluntary active euthanasia (“mercy killing”) refers to an act that a physician performs at the request of a competent dying patient, most commonly a lethal injection, to directly kill the patient. Death usually follows immediately after the injection is completed. In VAE, the physician’s act is both necessary and sufficient to produce the patient’s death. The patient’s underlying medical condition does not contribute to causing her death in VAE but only provides the context to make it acceptable. For example, a physician performs VAE if she complies with a dying patient’s request to end the patient’s life mercifully with a lethal intravenous injection of Pentothal.

Voluntary passive euthanasia (“allowing to die”) is an archaic term used to describe the death of a patient following the withdrawing or withholding of life-sustaining therapy (LST). This term arose in the physician-centered era in which physicians determined when and for whom LST would be discontinued. When they decided and stopped LST and the patient
died as a result, a plausible claim could be made that they had committed “passive euthanasia.”

However in today’s patient-centered environment, patients or their lawful surrogates refuse LST and the physician generally must stop LST once it has been refused. (See chapter 8.) Now it is misleading to use the term “passive euthanasia” if the patient dies as a consequence of stopping LST because the patient has a disease that is fatal in the absence of LST and the patient has the right and authority to refuse LST. Take, for example, the case of a physician who complies with the rational refusal of a ventilator-dependent patient with amyotrophic lateral sclerosis (ALS) to continue further positive-pressure ventilatory support and the patient dies from ALS-induced respiratory failure as the result of extubation. Labeling such an act as euthanasia is incorrect. The physician has not euthanized the patient by terminating LST. The patient has died of her underlying disease (ALS) after validly refusing LST that the physician, therefore, was required to withhold. In this situation, unlike in PAS or VAE, the underlying disease is both necessary and sufficient to cause the patient’s death, in the absence of the LST that the patient has validly refused. The term “passive euthanasia” should be abandoned in this context.

Palliative care of the dying patient includes the relief of pain and other causes of suffering, as described in chapter 7. Physicians have the duty to provide palliative care to the best of their ability. If providing adequate palliative care has the unintended secondary effect of accelerating the moment of death (which rarely occurs), such an occurrence is not considered PAS or VAE because the medical treatment is designed and intended to prevent suffering, not to kill the patient. This foreseen but unintended “double effect” is simply the price of providing patients with adequate palliative care.²²

“Physician aid-in-dying” is a term that has been used to refer to any or all of the different activities defined in this section. Although the term was developed as a euphemism for physician-assisted suicide, presumably to make it more publicly acceptable, the term should be abandoned because it is inherently ambiguous and misleading.²³ Other euphemisms such as “assisted dying” and “assisted death” also should be abandoned because they are misleading and can be confused with palliative care of the dying patient.

There are critical differences between the morality and legality of PAS, VAE, withholding therapy, and palliative care. Despite the fact that suicide is not unlawful in any American jurisdiction, PAS is unlawful in most jurisdictions. There is a current controversy about the morality of PAS in certain circumstances. Presently, VAE is classified as homicide and is illegal in every jurisdiction in the United States and in nearly every jurisdiction in the world. ²⁴ Like PAS, the morality of VAE in certain circumstances remains a subject of heated controversy. By contrast, withholding and withdrawing LST are morally acceptable and widely permitted (or required) legally as a consequence of a patient’s valid treatment refusal. Palliative care should always be provided.

Some philosophers and physicians have had difficulty making the conceptual distinction between PAS (or VAE) and withdrawing or withholding of LST because they failed to understand the important moral difference between a patient’s right to refuse therapy and a patient’s right to request therapy or some other act.²⁵ Physicians are morally and legally required to honor a competent patient’s rational refusal of LST, even if the patient’s death results directly from the underlying disease in the absence of LST. This requirement arises from the powerful moral and legal prohibition against depriving a person of freedom and the corollary liberty-based rights of a person to be left alone. In the medical context, this right of freedom requires that a patient provide valid consent before a physician can perform medical tests or treatments. Valid refusal is an implicit component of valid consent (chapter 2).²⁶

The moral and legal requirement to honor a patient’s treatment refusal does not imply a correlative duty to honor a patient’s request
for specific therapy or another act. Rather, a physician can base a decision whether or not to honor a patient’s request on his or her professional judgment about the legal, moral, or medical appropriateness of the request.²⁷ For example, patients commonly request antibiotics for viral respiratory infections, but physicians can refuse to comply with this request if they judge antibiotics to be inappropriate therapy. Physicians do not have the same duty to honor to a request for therapy that they have to honor a valid treatment refusal. A patient may request—or even demand—treatment, but has no right to specific treatment.

Confusion can be created when a patient’s refusal is framed misleadingly in terms that resemble a request. For example, a patient’s “request” for a Do-Not-Resuscitate order is actually a refusal of consent for resuscitation. This inversion occurs because, whereas most therapies can be given only after consent, cardiopulmonary resuscitation is routinely provided on the basis of implied consent unless a person has explicitly refused. Similarly, written advance directives “requesting” that other treatments be stopped or omitted are actually refusals to consent to treatment. Some writers have added to the confusion by referring to a patient’s “choice” to forego therapy as if there were no morally significant distinction between refusing and requesting.²⁸

Whether a patient’s expressed verbal wish or advance directive is a refusal or request can be clarified by paraphrasing it. If the treatment wish, however it is communicated, can be paraphrased to mean “stop doing that to me,” the patient has made a refusal. If her wish cannot be paraphrased in this way, the communication was a request.²⁹

The distinction between requests and refusals is of critical importance in understanding the moral distinction between withdrawal or withholding therapy (letting die) and PAS (assisted killing) or VAE (killing). Competent patients’ rational refusals must be honored even when physicians know death will result from the underlying disease. There is no concomitant moral requirement to honor patient requests at all and particularly when physicians know that death will result from the requested act; there also may be legal prohibitions against doing so.

Some scholars have rejected the important moral distinction between PAS or VAE as “killing” and cessation of LST as “letting die.” They argue that if a malicious person disconnected LST from a patient who wanted to live, the malicious person could not defend himself on the grounds that he did not kill the patient because the patient died from her underlying disease.³⁰ This argument misses the point. The most relevant moral difference between killing and letting die is not the specific act of the physician; it is that the patient has refused LST and the physician, therefore, must comply. The physician has no similar moral requirement to comply with a request for performing PAS or VAE.³¹

PAS and VAE has been debated at both moral and public policy levels. Are acts of assisted suicide or patient killing at a patient’s request morally justified? If so, is the legalization of these acts desirable public policy for society? In this section, I present arguments that have been advanced to defend the morality of PAS and VAE. In the next section, I consider arguments advanced to defend the immorality of these acts. Following these discussions, I highlight the pros and cons of implementing PAS and VAE as public policy.³² I consider both PAS and VAE together in these discussions because, despite their obvious differences, they share many of the same relevant characteristics regarding morality and suitability for public policy.³³

All arguments accept the premise that VAE is deliberate killing and PAS is deliberate assisted killing. Five arguments seek to justify the morality of deliberate killing or assisted killing by showing that: (1) these acts yield fewer net harms than the alternative of letting dying patients suffer; or (2) they fulfill physicians’ duties to suffering patients.³⁴

Respecting the right of patient self-determination is the primary moral argument used to defend PAS and VAE. According to this argument, patients should be granted full control in determining the manner and time of their death; therefore, they should have the
right to request PAS or VAE. Granting them this control parallels the control they are permitted by rights of self-determination in other avenues of life. Only the dying person herself can determine that time when the burdens of her life exceed the benefits and when her life is no longer worth living. Our respect for human dignity requires that persons possess the rights of full self-determination throughout adult life, and those rights include the ability to control the time and mode of their demise.³⁵

Second, physicians have a professional duty to alleviate suffering of their dying patients. When physicians no longer can cure their patients or prevent them from dying of a terminal illness, their duty shifts to that of preventing pain and suffering. Because some dying patients suffer intractably with symptoms so refractory to medical treatment, death may represent the only solution to alleviate suffering. Under these circumstances, physicians have the responsibility to accede to their patients’ requests to end their lives mercifully or help them to do so themselves. Not doing so would violate the physician’s moral and professional duty to prevent suffering.³⁶

Third, PAS and VAE are compassionate and beneficent acts. Physicians should have compassion for patients and for their suffering. They cannot stand by idly and permit patients to suffer when technological attempts fail to provide adequate palliation. In this circumstance, not to accede to the patient’s wish for assisted suicide or mercy killing would be to consign the patients to a death of suffering that could have been prevented. Moreover, we exhibit sufficient compassion to euthanize our dying pet animals to prevent their suffering. Why then can we not apply this same humane and compassionate behavior toward our suffering patients?³⁷

Fourth, PAS and VAE minimize harms to the patient and others. The concept of nonmaleficence and the duty not to cause pain or to disable can be satisfied by acceding to a dying patient’s wish for PAS or VAE. Although a physician violates the moral rule “Do not kill” in acquiescing to these wishes of a patient, there are some experiences that are worse than death. According to this argument, assisting in a suffering patient’s suicide or killing the patient at her request is a morally justified breach of the moral rule not to kill, and it respects the concept of nonmaleficence because it minimize the net harm to the patient.³⁸

Fifth, permitting these acts corresponds to current medical reality and medical responsibility. Life-sustaining and resuscitative technology now permits physicians to prolong the lives of patients, many of whom otherwise would have died earlier. Unfortunately, when rescue therapy fails to restore health, some patients are left in a state of “prolonged dying,” an end-stage of chronic illness accompanied by suffering. Physicians share a responsibility for the patient’s present suffering because, in the most relevant sense, they facilitated it with technology by interrupting the natural progression of illness and prevented the patient’s earlier death. This responsibility imparts a special moral duty for a physician to permit a patient to complete the dying process that the physician interrupted, thereby to escape the suffering for which the physician is partially responsible.³⁹

There are an equal number of arguments that PAS and VAE are immoral acts inimical to the ethical foundation of the practice of medicine.⁴⁰ In a rebuttal of the self-determination argument supporting PAS and VAE, Edmund Pellegrino pointed out its weakness: when a patient opts for VAE or PAS, she uses her freedom to relinquish her freedom and autonomy. By killing herself, the patient loses control over a range of options that she cannot foresee but forever become precluded. Further, if the patient’s suffering is so intense that there is no choice except PAS or VAE, then, ironically, that choice no longer is free and autonomous because there are no alternatives.⁴¹

Second, PAS and VAE distort and corrupt the healing relationship between patient and physician and thereby violate the moral purposes of medicine. By its very nature, medicine is a healing profession. It intends to restore patients’ health. When cure is not possible, the goal of medicine is to help patients cope with disability or death. Medicine is grounded in trust, an essential ingredient for
treating a patient rendered vulnerable by illness. If euthanasia became an option and the healing profession approved of killing, the physician would breach this relationship of trust. Rather than working with patients to help them cope with their disability or reduce their suffering to enable them to live meaningfully, killing them becomes an option for physicians. How can a trusting relationship survive if patients feel uncertain about their physician’s intentions? Will the physician attempt every means to reduce a patient’s suffering when it would be easier simply to promote PAS or VAE? How can the fiduciary relationship between patient and physician survive if the patient fears that the physician no longer pursues her best interests?⁴²

Third, PAS and VAE damage the traditional role of physicians as counselors and healers by misdirecting their emphasis in the care of the dying patient. Rather than physicians directing their attention to their traditional roles of providing palliative treatment for the dying patient, comforting her and her family, and easing her passing, they have the moral right to end the patient’s life or help her to end her own life. The power to kill is an awesome and corrupting responsibility that distorts the traditional role of physicians in a damaging way. Why should physicians bother to pursue the difficult task of learning and practicing optimal palliative care? If PAS or VAE were acceptable options, physicians could influence their patients’ choices by explicitly or implicitly suggesting that patients consider these solutions to the problem of dying.⁴³ Then the profession of medicine would advocate killing rather than healing.

Fourth, the goals of beneficence and compassion are not served only by euthanizing a suffering patient. There is some benefit in suffering to some degree because the human condition can grow even with negative experiences. Patients may see themselves most starkly at the moment of their death. To amputate this experience prematurely may be to deny a patient the opportunity to gain profound final insights about herself and the meaning of her life.⁴⁴

Finally, the goals of nonmaleficence and patient self-determination are bounded by the accuracy of the physician’s clinical determination and the rationality of the patient’s decision to choose PAS or VAE. There is an irreducible degree of uncertainty in determining a terminal prognosis, which is a prerequisite for euthanasia. By the errors intrinsic to the practice of medicine, some patients who may not be terminally ill will be euthanized. Similarly, there is inescapable error in determining a patient’s competency, another prerequisite for PAS or VAE. The effects of concomitant depression on a patient’s “autonomous” decision for PAS or VAE may not be clearly discernable. Thus, potentially treatable conditions may remain untreated and the patient may be euthanized unnecessarily because of the limits of medical diagnosis and prognosis.⁴⁵

Many scholars advocating the morality of PAS and VAE also hold that these practices should be legalized. Advocates claim that decriminalizing these acts in the states in which they are now felonies, and legalizing them by statute in jurisdictions in which they are neither lawful nor unlawful presently, will empower physicians with the ability to offer a new variety of desirable medical services to their dying patients. The numerous legal and constitutional issues involved in drafting laws to permit or prohibit PAS and VAE have been the subject of several reviews.⁴⁶

Polls of public opinion have yielded data showing that the majority of the American population favors legalizing PAS.⁴⁷ However, many of these data are of questionable validity. The confounding effects of improper framing, poor question design, false dichotomies, and leading questions have contaminated the interpretation of many of the surveys. The fact that most people cannot discriminate between VAE or PAS and the refusal of medical treatment confounds the interpretation of an alleged preference to legalize PAS. Further, most people are not aware of the alternatives to VAE; therefore, they incorrectly conceptualize their choice as being between VAE or PAS and prolonged suffering.⁴⁸

Roger Magnusson pointed out that, despite its illegality, covert PAS and VAE are being conducted in the United States. Dying patients are licitly obtaining and hoarding opioid and depressant medications that they later use to commit suicide. Physicians and nurses are conducting clandestine active euthanasia, with and without patients’ permission. He argued that the failure of medical bodies to regulate this covert activity is a “scandal” that would be solved by explicitly legalizing PAS and having it performed properly in the open according to medically accepted standards. He pointed out that scholars opposed to legalizing VAE from a “harm minimization” perspective also should consider the harm produced by permitting the current practice of clandestine PAS and VAE.⁴⁹ Stephen Smith reached a similar conclusion that the problems of explicitly legalizing euthanasia would probably be fewer than those currently resulting from its covert practice by the euthanasia “underground.”⁵⁰

All those advocating legalization of PAS and VAE agree that clinical practice guidelines and procedural safeguards must be carefully drafted and enforced to prevent abuses.⁵¹ In this regard, the seven criteria proposed by Timothy Quill, Christine Cassel, and Diane Meier for the legalization of PAS have received the greatest attention and acceptance.⁵² In their proposed statute, all seven preconditions must be satisfied before the physician can provide PAS.

First, the patient must have an incurable condition that causes profound suffering, but it is not necessary for the patient to be in imminent danger of death. If there is doubt about the diagnosis or prognosis, the patient must seek a second opinion. The patient must understand the prognosis and available alternative options for palliative treatment.

Second, the physician must ascertain that all reasonable attempts to provide palliative care have been tried and have failed or, at least, have been discussed with the patient. The patient’s request for PAS cannot result from inadequate treatment; the request truly must be a last resort. The strict satisfaction of this condition will markedly limit the valid candidates for PAS.

Third, the patient’s request for PAS must be purely voluntary. Family members or others should not induce the request. It must represent the patient’s free and autonomous choice.

Fourth, the physician should ascertain that the patient’s judgment is not impaired and that the decision for PAS is rational. The physician can test its rationality by examining the patient’s reasons for wanting to commit suicide. To wish to die sooner from a terminal illness and thereby avoid days, weeks, or months of suffering generally counts as a rational decision.⁵³ Consistent, repeated requests with full support of the family also help assure the physician that the decision was not merely an impulsive response to the illness. The presence of potentially reversible depression must be ruled out with caution, although this determination is admittedly difficult in patients dying of terminal illnesses.⁵⁴

Fifth, PAS should be performed within the context of a stable and continuous physician-patient relationship. Only the physician caring for the patient can determine the rationality of a request for PAS. In this way, the physician can confirm that she and the patient have fulfilled all preconditions. In this context, the impersonal and mechanical PAS-by-arrangement as practiced by Jack Kevorkian can be censured as immoral.

Sixth, all preconditions should be reviewed by another physician to confirm that they have been fulfilled properly. Seventh, all preconditions and decisions should be documented fully, including the signing of a consent form. The physicians and family members participating must receive adequate assurance that they will not be liable for criminal prosecution if the preceding preconditions are satisfied.⁵⁵

All persons who hold that PAS and VAE are immoral, and many who hold that PAS and VAE may be moral under certain circumstances, believe that the practices should not be legalized. Generally, they fear that explicit legalization of PAS and VAE would impose harmful effects on society, patients, and the practice of medicine that would outweigh the
totality of benefits they offer. Changing public policy to legalize PAS creates a new and troubling set of problems that are different from those that result merely from accepting the moral permissibility of PAS in individual isolated circumstances. Keeping PAS illegal would prevent these problems.

Legalization of a practice that has been strictly forbidden previously by society removes a longstanding taboo. Laws regulating the permissibility of a previously forbidden practice may be drafted carefully and in a highly specific manner, thereby theoretically eliminating the possibility of abuse. However, once the societal taboo has been broken, it is simply a consequence of human nature for people to extend the boundaries of the practice ineluctably beyond those stipulated by law. By doing so, harms are produced that, while not permitted by the law, could have been anticipated as a consequence of the new law, and certainly are the direct result of changing the law.⁵⁶ Any proposal to break a longstanding taboo, even one containing provisions that have been drafted carefully to prevent abuses, is doomed to foster those abuses because of the tendency of people to “push the envelope.” As discussed in the following section, VAE is now permitted under certain circumstances in the Netherlands. Unfortunately, involuntary euthanasia, which is strictly forbidden by Dutch law, also is being practiced on the infirm and elderly because the taboo against medical killing has been broken. (See below.)

A number of harms that otherwise would be avoided could be produced by legalizing PAS and VAE. Legalization could damage public confidence in the medical profession because physicians would be regarded as killers in addition to healers. Could patients continue to trust implicitly that their physician always would try to improve their health if they had the power to kill? Loss of public confidence would reduce the public’s trust in physicians and produce irreparable harm to the patient-physician relationship, subsequently harming all patients.

An example of loss of public confidence in physicians already has occurred in the Netherlands where VAE is lawful under certain circumstances. According to several on-site commentators, some handicapped and elderly patients are frightened to enter Dutch hospitals and nursing homes for fear of becoming subjects of VAE.⁵⁷ Public trust in the medical profession to look out for patients’ best interests is a precious but precarious commodity. It must not be jeopardized by unwisely and unnecessarily altering the role of physicians and the meaning of medicine.

Legalization of PAS or VAE would likely create unintended and harmful social pressures and place high expectations on patients. Many elderly, disabled, or chronically ill patients might feel “the duty to die.” They would request euthanasia not on the basis of a free, personal choice but because they perceived that their families considered them an emotional or financial burden and expected them to agree to die and get out of the way.⁵⁸ In a similar vein, patients might sense subtle pressure from their physicians to consider VAE or PAS as an alternative because the physician was tired of struggling to provide them with adequate palliative care. In the end, they would request it because they believed that the physician must know what was best for them. The meaning of the prerequisite “voluntary” in a euthanasia statute could be corrupted, causing the elderly and chronically ill to become victimized.⁵⁹

Explicit legalization of PAS in a fragmented health system, such as that currently existing in the United States, potentially could victimize members of lower socioeconomic classes. Patients without insurance or access to the full complement of health care may lack access to palliative care. If PAS were legalized and widely available by law, some lower socioeconomic class patients might be steered to choose it over palliative care by this direct availability.⁶⁰

Legalization of PAS or VAE could require the creation of a network of cumbersome legal safeguards to protect patients from abuse and misunderstanding or miscommunication. Safeguards would require the involvement of courts, lawyers, and bureaucrats. New legal requirements could have the effect of delaying the patient’s death and generating unnecessary administrative complexity and expense.⁶¹ Even if the bureaucratic machinery were in place, it might not be able to prevent the
systematic practice of involuntary euthanasia, such as is occurring now in the Netherlands.

The policy issue of quantifying the cost savings resulting from the legalization of PAS was analyzed by Ezekiel Emanuel and Margaret Battin. Using the Netherlands data on PAS utilization and United States data on end-of-life costs, they estimated that the legalization of PAS in the United States would save approximately $627 million in 1998 dollars, or 0.07% of total health-care expenditures. They concluded that these cost savings should not be a major factor in the policy debate about legalizing PAS.⁶²

Scholars and politicians debating the effects on society of legalizing PAS or VAE need only examine the experience over the past few decades in the Netherlands, a country that Edmund Pellegrino called the “great social laboratory for euthanasia.”⁶³ In 1985, the State Commission on Euthanasia endorsed a series of judicial rules that permitted Dutch physicians conducting PAS and VAE to avoid prosecution if they followed them.⁶⁴ Although until 2001, PAS and VAE were not explicitly “legal” in the Netherlands, because of their prohibition under Article 293 of the Dutch Penal Code, they were permissible in the Netherlands and practiced widely by physicians who followed the judicial rules.⁶⁵ In November 2000, the Dutch Parliament voted to explicitly legalize the practices of PAS and VAE that had been conducted widely for the previous 15 years. The bill, incorporating guidelines accepted by the Royal Dutch Medical Association, was signed into a law in 2001 that became effective in February 2002 known as the Euthanasia Act. Although the law explicitly legalizing PAS and VAE was not enacted until 2002, it simply codified what already had become normative medical practice. Raphael Cohen-Almagor analyzed the historical and sociological reasons why this practice began in the Netherlands.⁶⁶ In 2002, Belgium also legalized VAE but there are inadequate data to assess its impact.⁶⁷

The original Dutch euthanasia guidelines mandated that four criteria be satisfied: (1) the patient must be competent; (2) the act must be voluntary and requested repeatedly by the patient; (3) the patient must experience unbearable suffering with no prospect of relief other than death; and (4) the physician must obtain a corroborating consultation that the preconditions have been met and that the patient’s request is appropriate. The cause of death must be reported accurately to state authorities.⁶⁸ The 2001 law provided six criteria granting physicians legal immunity for performing euthanasia: a physician must (1) be convinced that the patient’s request was voluntary, well considered, and lasting; (2) be convinced that the patient’s suffering was prospectless and unbearable; (3) have informed the patient about his situation as well as about his prognosis; (4) be convinced, together with the patient, that there was no reasonable alternative solution for his situation; (5) have consulted at least one other independent physician who has seen the patient and has formed an opinion in writing about the requirements of due care described in (1) through (4); and (6) have terminated the patient’s life with due medical care.⁶⁹

Dr. P.V. Admiraal, one of euthanasia’s most vocal proponents, explained the bedside medical techniques of VAE to Dutch physicians in a monograph in great detail. His euthanasia manual for physicians provides the dosages, routes of administration, and other technical details necessary to perform successful VAE by lethal injection of benzodiazepines, barbiturates, opiates, neuromuscular blocking agents, or insulin.⁷⁰

As a result of the acceptance of this program, data have been generated on the frequency of VAE, who performs it, and the diseases for which it has been used. One figure for 1990 indicated that VAE was responsible for 4,000 to 6,000 deaths annually in the Netherlands—that is, between 3.0% and 4.5% of all deaths.⁷¹ In the official study based on questionnaire and death certificate data, commissioned by Jan Remmelink, VAE by lethal injection was estimated to be responsible for 2,300 deaths or 1.8% of all deaths in the Netherlands in 1990.⁷² In a similarly commissioned subsequent study in
1995, 2.4% of deaths were found to be from VAE and 0.2% from PAS.⁷³ Dutch physicians granted euthanasia in somewhat less than half of requested instances. VAE was performed mostly by family physicians and general practitioners.⁷⁴