Reading Judge Gorsuch’s well researched articles against Medical Aid in Dying, I am struck by his dismissive critique of the Oregon regime as nothing more than unqualified doctors killing unwilling patients. He has reviewed data from the Netherlands where euthanasia is practiced and in fact preferred by patients who have a long standing relationship with their primary medical provider and who are in extremis. He has found in the data instances where Dutch doctors do not have explicit requests for the termination of life, but who nevertheless proceed to euthanize their patients, based on what they believe the patient would want. And he then confounds this practice as proof positive that all Medical Aid in Dying regimes will ultimately degenerate into hurried doctors dispatching their most inconvenient patients with nary a by-your-leave, whether they wish to end their life or not.
Most troubling is Judge Gorsuch’s confounding of Medical Aid in Dying as nothing more than a run-of-the-mill suicide: an irrational, regrettable and unnecessary act motivated by a curable depression or a momentary disappointment. He dismisses the possibility that a rational individual could could ever wish to terminate a life bounded by the hopelessness of an incurable and terminal illness. He ascribes almost an animus to any physician who would treat a patient seeking Medical Aid in Dying.
He writes in the Wisconsin Law Review, Volume 2004, page 1375:
“[In the Oregon law] there is absolutely no recourse for family members when a doctor kills (sic) a patient on the basis of gross negligence by misdiagnosing the patient as terminal or by misassessing the patient as competent.”
Judge Gorsuch has perhaps misread the Oregon statute. Any doctor who kills a patient under the Oregon statute is guilty of murder, full stop. A family member thus absolutely has recourse. The Oregon statute, unlike the Dutch law to which he makes frequent comparisons, prohibits the doctor from administering the lethal dose, on pain of prosecution.
If Judge GOrsuch is merely trying to write flamboyantly and means that it would be tantamount to killing for the doctor to misdiagnose a patient as terminal or to find a patient competent who is in fact not, Judge Gorsuch seems to forget that it is the patient who has sought out the doctor because he is suffering from what he knows to be a terminal illness and wants to end it. It is the patient who has sought the very prescription which the doctor later writes. This is not a case where a patient not knowing what is wrong, seeks the consultation of a doctor whose misdiagnosis causes unwanted troubles.
Let us go back to the rather muscular language which Judge Gorsuch utilizes. For him, Medical Aid in Dying is nothing more than a physician enabling an unnecessary suicide. But language matters and it colors the debate. Shall we talk about a family member, grieving, tearful, disconsolate, who after weeks by the bedside of a comatose grandmother nods to the attending to disconnect the respirator as nothing more than a “murderer” because surely, unplugging the respirator will “kill” Granny? Shall we call it “killing” when a doctor, respecting the wishes of his patient, writes a lethal dose of a prescribed medicine because the patient is in constant excruciating pain, bedridden, incontinent, humiliated and deeply resentful of his compromised and dehumanized state? Shall we call it suicide when a bedridden patient asks for the respirator to be turned off? Is there a difference between an able-bodied, competent, healthy individual who blows out his brains because he has just been fired from work and is deeply humiliated with an 85-year old diagnosed with a metastasised cancer which has spread to his spinal column and is invading his brain?
In point of fact, this is not a mere matter of splitting hairs. When an individual commits suicide, there can be dire unintended legal consequences, besides the grief at the loss of a loved one. Typically life insurance policies, for example, are invalidated by an act of suicide. Some religions will refuse to accord the decedent funeral rites. Accordingly, the Oregon statute specifically sates that ending life with the Act’s parameters is not considered “suicide” or “assisted suicide”; rather the cause of death its he underlying terminal illness.
Judge Gorsuch is promiscuous if not flippant in his use of inflammatory and deeply misleading vocabulary in all his writings on topic. A more dispassionate approach would go a long way to make his arguments far more palatable.