Oregon Law Only First Step
Euthanasia Not Just Voluntary

By Burke J. Balch, J.D.

The Oregon statute legalizes physician-assisted suicide for competent adults who voluntarily say they want to be killed. The evidence is growing, however, that this is only the first step--that the slope is well greased to nonvoluntary and then to involuntary killing.

Nonvoluntary and involuntary euthanasia are easily confused, but they are distinct. If someone is incompetent and that person's wishes are unknown, when a surrogate--such as a family member or court--decides that the person ought to die, that is nonvoluntary euthanasia. On the other hand, when it is known that a person wants to live and despite this a health care provider or governmental or some other authority then ensures that the person dies, against that person's express wishes, that is involuntary euthanasia.

Nonvoluntary killing. On December 3, 1997, Faye Girsh, executive director of Hemlock USA (now renamed "Compassion & Choices"), the leading group promoting the legalization of assisting suicide, issued a statement endorsing killing individuals--such as people with Alzheimer's disease and children with disabilities--who are legally incapable of making the decision themselves.

"A judicial determination should be made," Girsh said, "when it is necessary to hasten the death of an individual whether it be a demented parent, a suffering, severely disabled spouse or a child. Consultants should evaluate what other ways might be used to alleviate the suffering and, if none are available or are unsuccessful, a non-violent, gentle means should be available to end the person's life."

Confronted with vigorous protests by disability rights activists, on February 6, 1998, Girsh issued a "clarification statement." She said that her earlier statement described a model developed by Professor Eike Kluge in Victoria, British Columbia, and proposed by the Right to Die Network of Canada.

Girsh said this "model is in no way endorsed by the Hemlock Society USA. It was mentioned as one suggestion about the question of ending suffering. There must be a dialogue about these issues, both from the able-bodied and the disabled communities."

Despite this (highly qualified) backtracking by Hemlock, the route from voluntary to nonvoluntary euthanasia is direct. It has been traveled in the context of passive euthanasia--the withholding of lifesaving medical treatment, food, and fluids.

Numerous state courts have ruled that since competent people have the right to reject them, it would be an unconstitutional denial of equal protection for incompetent people whose wishes are unknown to be "deprived" of this right. These courts have ruled that under their state constitutions another individual, often called a "surrogate," must be allowed to decide "on behalf of" the incompetent person that she or he would want to reject treatment and die.

Once direct killing is established as a statutory right in the context of physician-assisted suicide, then by the same logic these state courts are virtually certain to rule that the right to be killed by lethal prescription or lethal injection cannot constitutionally be withheld from incompetent people who have never asked to die. This "choice" must be exercisable on their behalf by a "surrogate."

Involuntary killing. In a book published in 1998, the founder of the Hemlock Society, Derek Humphry, wrote supportively of the use of assisted suicide as "one measure of cost containment." "[T]he elderly," he said, are "putting a strain on the health care system that will only increase and cannot be sustained."

Speaking of people with disabilities, he wrote, "People with chronic conditions account for a disproportionately large share of health care use, both services and supplies." In light of all this, he asked, "Is there a duty to die--a responsibility within the family unit--that should remain voluntary but expected nevertheless?" He asserted that "economics, not the quest for broadened individual liberties or increased autonomy, will drive assisted suicide to the plateau of acceptable practice."