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5. The Second Path to PAD: Passing Legislation Allowing Death with Dignity
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• 105 5 The Second Path to PAD: Passing Legislation Allowing Death with Dignity The Court should stay its hand to allow reasonable legislative consideration. —Associate Justice David H. Souter1 The debate over the legalization of assisted-suicide will continue in the political process. —Mark Chopko, U.S. Catholic Conference2 [Should] a religious group seek to impose its beliefs on the general public? —Carol M. Ostrom3 Throughout the legal debates and the battles surrounding the controversial right-to-die issue, from Quinlan in 1976 through the 1997 cases from Washington State and New York State, the opposing forces were known. The large number of briefs filed on behalf of the two states in the 1997 cases represented the political, religious, and medical and nursing “establishments” in America: the United States (two briefs filed by the U.S. Solicitor General), the Roman Catholic Church (five briefs), the American Medical Association, and the American Nurses Association. Arrayed against these powerful forces were politically marginal organizations such as the Hemlock Society, the Grey Panthers, Compassion in Dying, and the American Medical Student Association. 106 • chapter 5 I. The Opposition to PAD Legislation The greatest concern of all opponents of legalizing PAD remains the slippery slope argument presented in numerous forums: in amicus briefs filed in the courts, in legislative chambers, in the press, in association meetings , in churches. Critics contend that PAD legislation will take civilized society down a slippery slope, leading to extensive abuses against the elderly, the infirm, minorities, the disabled, and other vulnerable groups, in the name of politics, ideology, finance, morality, and a host of other disingenuous reasons. Beyond the slippery slope argument and the consequences it would bequeath to Americans, the men and women opposed to legalization of PAD argue that the signal alternatives to PAD are hospice and enhanced palliative care. Palliative care optimally reduces the severity of pain caused by illness. It relieves suffering; it does not cure the patient. Hospice is palliative care for the terminally ill patient provided at the last stage of the illness. Increasingly in the United States, palliative care providers begin treatment earlier in a patient’s illness, especially those with congestive heart failure, chronic obstructive lung disease, and cancer.4 An August 2010 editorial in the NEJM encouraged the profession to shift its “long held paradigm that limits access to palliative care to patients who were predictably and clearly dying” to a new one: a “simultaneous care model that provides both palliative care and disease-specific therapies beginning at the time of diagnosis.” The editorial concluded: “Perhaps unsurprisingly, reducing patients’ misery may help them live longer.”5 There are many organizations and groups opposed to PAD. However, the American Medical Association (AMA), the professional organization closest to the issue, has consistently been its strongest secular opponent. Representing less than a majority of physicians in the nation (about 40 percent of physicians are members), it has consistently rejected PAD6 and euthanasia.7 Its Code of Medical Ethics states that “both of these practices are ‘fundamentally incompatible with the physician’s role as a healer;’ that they are ‘difficult or impossible to control,’ and possess serious societal risks.”8 While there have been efforts at the twice-yearly AMA national meetings to pass resolutions reversing the AMA position on PAD, all have failed. The retention of the AMA policy “is in significant part attributable to the repeated [18.226.222.12] Project MUSE (2024-04-17 22:16 GMT) Passing Legislation Allowing Death with Dignity • 107 mobilization of grassroots pro-lifers, and especially pro-life physicians, who have urged delegates not to betray the medical profession’s long history of protecting vulnerable life.”9 Some physicians opposed to PAD believe that “one cannot regulate the unregulatable.”10 Because PAD is an unregulatable protocol, the slippery slope argument inevitably presents itself in their criticism. After PAD is legalized, and if there is no practical way to regulate physician behavior, they believe there will be legitimatization of euthanasia, then PAD will be requested by surrogates for an unconscious but not a medically diagnosed incompetent dying patient, and so on down the hill. Some of the most passionate critics of PAD are organizations that represent persons with disabilities, vulnerable individuals, the elderly, the uninsured, and members of minority groups.11 Those above sixty years of age and minorities , according to critics of PAD, are especially wary and fearful of PAD as a public policy. “It is no accident that while polls show younger people favoring legalization...