Ezekiel Emanuel, "Whose Right to Die?" The Atlantic Monthly (March 1997): 73-79.

In condeming the opinions that the Second and Ninth Circuit Court of Appeals issued supporting a constitutional right to physician-assisted suicide — decisions recently overturned by the U. S. Supreme Court — Dr. Ezekiel Emanuel argues that the courts misread history, misinterpreted survey data, engaged in mistaken reasoning, and were simply misinformed.

Emanuel, an ethicist at Harvard Medical School, concludes that physician-assisted suicide and voluntary euthanasia ought to remain illegal for reasons that range from the dangers of the slippery-slope — that legalization might lead to unintended abuses — to fears that patients would be blamed for their own suffering if they did not opt for assisted death. He also cites grievous predictions that terminally ill patients would not receive the care they need if death were an option. His position, however, allows for exceptional cases where "acts of desperation" are permissable — where "all other elements of treatment . . . have failed" (p. 79).

Emanuel, in contrast to the appelate court opinions, says most people do not ask for help in dying because of unrelenting pain — the condition for which most Americans seem to support physician-assisted death — but rather because they fear the loss of dignity or control and worry about dependency. Using the Dutch experience with assisted death, Emanuel suggests that legalization of assisted death for competent, terminally ill patients can easily be transformed into comparable policies for incompetent, non-consenting, and even non-terminally ill patients.

The article raises important questions. For instance, will physicians and other health professionals, as Emanuel suggests, opt for the easier course — providing a lethal injection — rather than doing the hard work of compassionate caring? But other questions that he does not raise are equally important.

What is the signficance of polling data that show the groups most opposed to legalization are African-Americans, those with low incomes, women, and those over 75 years old? What arguments will count as good arguments for deciding that in certain specific cases, an exception to the rule against physician-assisted death is justified? Who is to say that the fears he discounted — the loss of meaning, fears of dependency and being a burden — are not in the category of good justifications? Who will decide?

How would different religious traditions, which may oppose legalization, respond to the argument that in certain cases, the rule against assistance with dying can be waived? What does his argument say about the medical profession if the legal option to hasten a patient's death shifted blame for suffering onto the patient and reduced efforts to provide excellent end-of-life care?

At a minimum, Emanuel's article is a useful starting place for the discussions that must now take place at the state legislative level. Even the Supreme Court has left open the possibility of having future cases brought by individual patients. So the issue will not disappear. But as the medical care system becomes more competitive and more cost-constrained, attention needs to be put on providing the terminally ill with compassionate end-of-life care. If such care is now lacking for large numbers of people and is unlikely to be offered in the near future, society needs to respond either through traditional means — faith and voluntary communities or with legislative remedies. Emanuel's "exceptional case" scenario still haunts the debate because no one knows if such "acts of desperation" will include an individual's deeply held wish to close his or her life in a certain way at a certain time.