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When slippery slope arguments miss the mark: a lesson from one against physician-assisted death
  1. Eric Blackstone,
  2. Stuart J Youngner
  1. Bioethics, Case Western Reserve University, Cleveland, Ohio, USA
  1. Correspondence to Dr Stuart J Youngner, Department of Bioethics, School of Medicine, Case Western Reserve University, Cleveland, OH 44106-4976, USA; sxy2{at}case.edu

Abstract

In 1989, Susan Wolf convincingly warned of a troublesome consequence that should discourage any movement in American society towards physician-assisted death—a legal backlash against the gains made for limiting life-sustaining treatment. The authors demonstrate that this dire consequence did not come to pass. As physician-assisted suicide gains a foothold in USA and elsewhere, many other slippery slope arguments are being put forward. Although many of these speculations should be taken seriously, they do not justify halting the new practice. Instead, our courts, regulatory agencies, journalists, professional organisations and researchers should carefully monitor and study it as it unfolds, allowing continuous improvement just as our society has done in implementing the practice of limiting life-sustaining treatment.

  • prolongation of life and euthanasia
  • care of the dying patient
  • end of life care
  • suicide/assisted suicide

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Introduction

When it comes to controversial change in long-standing social policies, warnings of slippery slopes and other dire consequences abound. Witness the recent controversies about gay marriage and lesbian, gay, bisexual and transgender (LGBT) use of bathrooms. Attempts to let go of time honoured traditions understandably generate apprehension and political heat. Arguments against change are of two types. The first involves what some have called protected values, those that are bolstered by emotions so strong that they are impervious to evidence.1 An example of such a protected value is the admonition that physicians should never assist patients in dying regardless of how helpful it might be.

The second type of argument falls under the rubric of slippery slope. Often, slippery slope arguments are used to support protected values. For example, opponents of gay marriage sometimes argue that allowing it will destroy families or the institution of marriage itself. Well-articulated and thoughtful speculation plays an important role in the intellectual and political assessment of proposed change. Whether such apprehension is warranted can only be judged retrospectively when evidence is available. Yet, while such retrospective analysis (like the results of failed scientific experiments) rarely appears in the literature, it can provide perspective and, perhaps, insight into other cries of danger that are greeting the growing legalisation of physician-assisted death (PAD).

This paper analyses in depth one such thoughtful warning about our society’s increasing interest in PAD. In 1989, Susan Wolf cautioned about troublesome consequences that should discourage any movement in American society towards active euthanasia (AE) by physicians.2 In 1989, there was strong and widespread opposition to both physician-assisted suicide (PAS) and AE. Most opponents of AE were and still remain against PAS as well, arguing that both are intrinsically evil, that physicians should never be involved in them and/or that allowing them would inevitably lead down a slippery slope of abuse. These opponents include the Catholic Church, various right-to-life organisations, and most major medical organisations, such as the American Medical Association3 and the American College of Physicians.4 5 PAS and AE fall under the general rubric of PAD.

Wolf did not emphasise the usual slippery slope arguments about a descent into abuse and ‘the muck of predictable human incompetence, and malice’ (p. 13). Nor did she argue that PAD is intrinsically immoral. Rather, she emphasised that by not pursuing PAD as public policy, we had allowed two decades of progress towards the legal, moral and social acceptance of limiting life-sustaining treatment (LST) and that any future attempts to pursue PAD would likely undo that progress. She did, however, briefly raise a set of psychoanalytically oriented concerns attributable primarily to Jay Katz6 and Robert Burt7 that PAD would unleash unconscious anger that physicians always harbour towards patients and that this would make it more likely for physicians to kill their patients. This was not her major thesis, nor is it something we address here.

Wolf also posited that, ‘By refusing euthanasia, we have strengthened our commitment to supporting those who face great discomfort and death. We pay enormous attention now to the proper care of the dying’. Wolf’s opinions here were largely off the mark. First, while it is likely that serious efforts to legalise PAD did, in fact, cause our society to pay more attention to palliative care, the legalisation of PAD in Oregon, for example, did not diminish attention to palliative care as evidenced by the fact that of the 1179 patients who died by PAD in the first 20 years of legalisation, 87.9% (976) were enrolled in hospice.8 Second, Wolf’s evaluation of the attention paid to proper care of the dying was overly sanguine as demonstrated by the 1995 Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT), the largest and most-cited study of end-of-life care (9105 adults hospitalised all of whom had an overall 6 month mortality rate of 47%,)9 SUPPORT found scandalous inattention to pain and massive communication failures in the care of these dying patients.

We focus now on concerns about legal backlash against limiting LST, first examining her arguments in detail. We agree with Wolf that early on, refraining from the pursuit of PAD may well have facilitated widespread societal acceptance of limiting LST. We argue, however, that with increasing discussion and acceptance of PAS beginning in the 1990s, there is little evidence that the right to refuse treatment suffered the regression Wolf predicted. (Nor is there any discernable evidence that it has unleashed physician anger at patients.) We will show that, in fact, experience with limiting life-sustaining treatment inevitably led to a push for PAS, concluding that Wolf’s concerns no longer provide a legitimate reason for opposing PAS in USA. However, as we enter a new phase where PAS is increasingly accepted and practiced, many persons have raised legitimate concerns about the potential downsides.

Like Wolf, today’s dire predictions of PAS’s opponents may turn out to be wrong. Or, they may be right. The critical issue that we should focus our attention on is how best to study and regulate a practice that is likely here to stay so that we can maximise its benefits while, at the same time avoiding or blunting its dangers—just as we have done with limiting LST.

Wolf’s argument: the problem of legal interference and micromanagement

In a section labelled ‘Get thee behind me, lawyer’, Wolf said that by keeping the discussions away from PAD, our society had been able to successfully work out satisfactory parameters for deciding when treatment should be limited. Any future attempts to pursue PAD would undermine that achievement. While she acknowledged that recourse to the courts had been ‘sometimes inescapable’, she noted ‘the courts have properly kept their distance’ (p. 13). She would certainly agree, however, that when they did become involved, the courts helped establish a jurisprudence that set clear legal parameters for decision-making. These parameters include respecting the decisions of competent patients based on their own values (including through the use of advance directives) and the decisions of appropriate surrogates based on substituted judgment and best interest standards. These standards, widely discussed and adopted by professional organisations and healthcare institutions, are generally accepted by prosecutors and the courts and have, for the most part, allowed society to trust patients, families and physicians to make treatment limitation decisions without undue legal or bureaucratic scrutiny.

Wolf goes on to say that the strict prohibition against PAD has allowed this state of affairs to flourish making the bedside ‘a safer context in which to work out the conflict and emotions that attend termination of treatment than were euthanasia allowed’ (p. 13). She did not specify which emotions or what types of conflict, but we imagine she is referring to feelings of guilt, grief, anxiety and anger and to disagreements between key players fuelled by these feelings. Wolf was clearly worried that such feelings would be much less manageable if and when PAD was practiced. Since Wolf’s 1989 paper, there has been a great deal of interest in, discussion about, lobbying for and, finally, legalisation of PAS in USA. Yet, after a careful review of the literature, we could find no evidence of an increase of, as Wolf warned, ‘the law getting in the way’ of limiting LST (p. 13). (We discuss the Schiavo case below.) It is worth noting here that right-to-die advocates have made the political calculus to limit their lobbying to legalising PAS and have ignored AE. In some ways, this is akin to Wolf’s hypothesis in 1989—that is, it is sometimes best to eschew the most politically sensitive policy in favour of securing a lesser but important goal.

Increased discussion of and social and legal acceptance of PAS in USA 

For the past two decades, approximately 65%–75% of US citizens have consistently said that a physician should be allowed to ‘end [a] patient’s life by some painless means.’10 While this more general phrasing leaves room for both PAS and AE, support drops to 50%–58% when the wording is changed to ‘assist the patient to commit suicide’.10 This apparent inconsistency is likely due to the fact that most suicides arise in tragic cases of mental illness11 and has led proponents of what was called PAS to refer to the practice instead as physician aid in dying (PAD). The aversion to the idea of suicide in the context of terminal suffering may itself be fading, with 62% of respondents in 2013 (up from 55% in 1990) supporting the idea that ‘there is a moral right to suicide when a person is suffering great pain with no hope for improvement’.12 A recent poll in May 2015 showed very little difference when suicide was mentioned, with 70% in favour of physicians ‘ending [a] patient’s life by some painless means’ and 68% in favour when the wording was changed to ‘assist the patient to commit suicide’.13

While organised medicine in USA has traditionally and often vehemently opposed PAD, that too is changing. In California, where PAD was recently legislated and signed into law, the California Medical Association dropped its traditional opposition to take a neutral stance.14 So too have the American Academy of Hospice and Palliative Medicine,15 the American Psychological Association16 and the American Society for Health-System Pharmacists.17 The American Public Health Association is in favour of Oregon’s assisted suicide laws unless evidence emerges that vulnerable populations are disproportionately using it.18 The American Medical Women’s Association and American Medical Student Association also support the Oregon model of aid in dying.19 20

Even as the American Medical Association remains opposed to PAS,3 the attitudes of physicians seem to be shifting in its favour. As of 2012, only 20% of all physicians belonged to the AMA21 and 77% of all physicians felt that the AMA does not represent their views.22 As we indicated earlier, physicians-to-be, represented by the American Medical Student Association, support PAS as an appropriate role for physicians. Furthermore, the oaths sworn by new doctors have shifted significantly from the Hippocratic opposition to PAD. A survey of 151 medical schools in USA and Canada in 1993 showed that only 14% of their professional oaths still contain the promise to not perform euthanasia.23 In 2014, a survey showed 54% of physicians supported assisted suicide, with an additional 15% answering ‘it depends’.24

Solidified public opinion on end-of-life decision-making has led to significant changes in the legal climate as well. In 1997, 8 years after Wolf’s article, the US Supreme Court ruled in two cases that although there was not a constitutional right to PAS, individual states could decide whether and how to establish laws allowing it25 26—and they have. PAS is now legal in Oregon, Washington, Montana, Vermont, California and Hawaii27 meaning one in six Americans now lives in a state where it is legally available. PAS has been or is planning to be introduced in many other states. Internationally, the climate has also shifted dramatically. Voluntary AE is now legal in the Netherlands, Belgium, Canada, Colombia and Luxembourg, with assisted suicide legalised in Switzerland.27 Even Spain and Italy have begun to expand the boundaries of end-of-life decision making after several contentious cases brought the right to die into the public eye.28–30 Based on Wolf’s reasoning, one might have extrapolated that the prevalence of physician-aided dying in some European countries would have discouraged the expansion of the right to refuse treatment in others.

Have Wolf’s worries about intrusion of the law into decisions to limit treatment materialised?

As our society has shifted towards acceptance of PAD, we have seen no evidence to suggest that limitation of LST has decreased or that the legal system has become more intrusive. If anything, the evidence points towards a significant increase in the prevalence of decisions to limit LST since Wolf’s paper and legal solidification of the right to refuse it. Prendergast and Luce examined decisions to limit LST in two intensive care units (ICUs) during 1987–1988 and again in 1997–1998. During the first time period, just before Wolf’s paper, 49% of ICU deaths were preceded by a decision to limit LST. Ten years later, decisions to limit LST skyrocketed to 90% of ICU deaths.31 Between 2001 and 2009, Quill et al examined decisions to limit LST in 141 ICUs across 105 hospitals. The results showed that around 85% of ICU deaths involved a decision to limit LST.32 These studies are not exhaustive and, thus, do not in themselves disprove Wolf’s hypothesis, but they certainly suggest that limiting LST is very common and has only increased since 1989. During a time when physician-aided dying was very much in the public eye with: Jack Kevorkian illegally performing PAS throughout the 1990s,33 Timothy Quill’s very public reporting of assisting a patient with suicide,34 Oregon’s Death with Dignity Act passing in 199735 and two Supreme Court cases about PAS in 1997,25 26 we have seen no evidence to suggest that the right to refuse LST was restricted or that end-of-life cases have been overly scrutinised.

Similarly, a survey of prosecutors in 1999 found that they are surprisingly reluctant to take formal action against physicians in decisions to limit LST or participate in PAS.36 Four cases were presented and prosecutors were asked whether they would choose to become involved in the case. The cases consisted of withdrawing mechanical ventilation from an incompetent patient at the request of the family, giving pain medication to a terminal cancer patient at the risk of suppressing respiration, removing the feeding tube from a patient in a persistent vegetative state and giving morphine to assist in a patient’s suicide. Less than one in five prosecutors reported that they would pursue formal action in the first three cases. In the assisted suicide case, 39% said they would take formal action, 36% said they would not and 25% were undecided. This seems quite low for a practice that was illegal in 49 out of 50 states at the time of the study.

The survey also asked whether the prosecutors found the actions of the physicians to be moral, and if they would want the same if they were in the patient’s position. The vast majority of respondents found the first three cases to be morally correct and would want the same if they were the patient. For the assisted suicide case, 67% found it moral and 79% would want the same in the patient’s position.36 These results show how public opinion changes before the law and we have now reached a point where the law is starting to catch up.

Since Wolf’s paper, the social consensus about the right to refuse LST has been reaffirmed by the Supreme Court. In three cases, they have ruled that there is a constitutional right to refuse LST.25 26 37 In his concurring opinion in the Cruzan case, Justice Antonin Scalia articulated the reluctance of courts to involve themselves in end-of-life decisions, saying ‘that the point at which life becomes “worthless”, and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate”, are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory’.37 This attitude seems to address Wolf’s concern that the courts would begin to intrude on private medical decisions.

Based on Wolf’s arguments, we would expect hypervigilance from courts and prosecutors in end-of-life decisions, but what we have seen thus far is a preference to keep these personal decisions within the confines of the doctor-patient relationship. Pockets of fierce resistance remain of course and occasionally rear their heads politically, for example, the Terri Shiavo case and Sarah Palin’s fear mongering about death panels. The Schiavo case arose from a family disagreement about stopping fluids and nutrition, the type of case that is usually handled privately and quietly and for which the courts are there to adjudicate disputes based on evidence. The Schiavo case, however, was exploited by politicians and special interest groups, leading to the issues being sensationalised, distorted and oversimplified.38 Although worrisome, the political frenzy and tabloid excitement abated and the right to limit LST remained unscathed.

Since the Schiavo case, the ‘death panel’ controversy represents the closest we have come to Wolf’s prediction. In 2009, a provision was added to the Affordable Care Act that would allow for physicians to be reimbursed by Medicare for having end-of-life discussions with patients. Despite public support and evidence showing the benefits of advance care planning, the provision met strong resistance from Republicans. A right-wing politician, Sarah Palin, accused the Obama administration of trying to create ‘death panels’ that would refuse to care for elderly patients in order to save money. In the wake of this political frenzy, the administration sidelined the proposal. It would eventually be reintroduced and pass without incident in 2015.39 Politicians who had capitalised on the situations realised that the political winds were blowing in another direction as the public continued its acceptance that sometimes death is the least worst alternative.

Lived experience has solidified our society’s acceptance of limiting life-sustaining treatment and is opening the door to PAD

The consensus about limiting LST is no longer as fragile as Wolf judged it to be in 1989. Nearly everyone in the country, whatever their political or religious inclinations, has experienced a family member, friend, colleague or neighbour who suffered intolerably in the jaws of medical technology. This phenomenon may be comparable to how society has increasingly accepted homosexuality. As more and more gays and lesbians came out, their friends, neighbours and family members realised both the cruelty and absurdity of demonising them.

Our society’s acceptance of limiting LST has remained rock solid despite the growing attention to and increasing legalisation of physician aid in dying. We have gradually come to terms with the reality that a decision to shorten one’s life, ‘actively’ or ‘passively’, although taken under tragic circumstances, can be rational and morally acceptable.10 13

The shifting public attitudes on assisted suicide represent a perfect example of empathy and personal experience trumping long-standing, deeply-rooted traditions and values—especially when those traditions result in palpable suffering and limit freedom of choice. The sanctity of life and wrongfulness of causing death have been and remain powerful boundaries in our culture. Concomitantly, PAS became a symbol for violating those boundaries. However, as Joel Feinberg argued, by rigidly holding a symbol more strongly than the needs of actual people, we are using the symbol to undermine the values that it was originally meant to protect.40

In its successful effort to establish the right to refuse LST, our society has concluded that overgeneralised appeals to the sanctity of life should no longer force patients and families to suffer unduly. Now, we seem to be gradually taking the next step by rejecting the notion that the moral line between allowing to die and intentionally ending life is unconditional. Are there potential dangers in the development? Of course, just as there were for limiting LST. Inadequate mental capacity, depression, family or social coercion, economic pressure, vulnerable populations and inadequate attention to palliative care are all potential dangers for PAD. Although many of these worries should be taken seriously, they do not justify halting PAD. Instead, our courts, regulatory agencies, journalists, professional organisations and researchers should carefully monitor the practice as it unfolds, continuously improving it just as our society has done in implementing the practice of limiting LST. We should treat current arguments about the dire consequences of legalisation of PAD with healthy scepticism.

References

Footnotes

  • Contributors Both authors were responsible for the conceptual aspects of the paper, the research and the writing.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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