July 17, 2015
The question of whether Tennessee should lift its ban on physician assisted suicide should be answered by the Legislature, not the courts.
That was the argument of attorneys for the State Attorney General’s office during a hearing before Davidson County Chancellor Carol McCoy on a lawsuit filed by former gubernatorial candidate John Jay Hooker and three Nashville physicians.
The arguments for lifting the ban made by Hooker and the other plaintiffs are policy arguments that a legislative body should consider, said Steven A. Hart, special counsel to State Attorney General Herbert Slatery III.
“This is an issue for the General Assembly,” said Hart, who noted that a bill to lift the ban was introduced during the legislative session earlier this year and has been carried over to when the Legislature will reconvene next January.
Hooker, a prominent Nashville attorney who has been involved in numerous civil rights cases and causes, was the Democratic candidate for governor in the 1970s and was an aide to U.S. Attorney General Robert Kennedy, has terminal cancer. He wants a physician to prescribe for him a lethal dose of a medication that he could take to end his life.
Current state law makes it a crime for a physician to assist a patient to commit suicide by writing such a prescription. Hooker and Drs. W. Barton Campbell, Jeffrey A. Sosman and Robert Ballard filed suit in Davidson County Chancery Court seeking a ruling that the state ban on physician assisted suicide violates the Tennessee Constitution’s protection of an individual’s fundamental right to privacy and is invalid.
According to the suit, the physician plaintiffs would be willing to consider assisted suicide but under the current law they would be subject to prosecution.
After the hearing, held Friday, July 10, Hooker said the case is the most important of his life.
“If I’m in unbearable pain and I decide to die, it should be my business and no one else’s business, especially the state,” Hal Hardin, the attorney for Hooker and the other plaintiffs, told the court.
Hardin argued that public support for physician assisted suicide is growing and will continue to grow as medical technology continues to improve and prolong people’s lives. While terminally ill people are mentally competent they should have a right to choose the time and manner of their death, Hardin said.
“The Constitution is an evolving and growing creature and that’s the way the founders intended it to be,” Hardin said. “Our founders could not possibly have foreseen these new fundamental rights.”
Hart argued that under legal precedents, courts should be reluctant to enumerate new fundamental rights that would short-circuit the legislative process.
The state does have a compelling interest in banning physician assisted suicide, Hart said, namely protecting the integrity of the medical profession and preserving life.
People with a terminal illness could become subject to subtle, undue pressure from family members or others to choose assisted suicide, Hart said. “Once declared a fundamental right, where does it end?” Hart said. “It becomes not just a right to die, but a duty to die. … That is why this is an appropriate question for the legislature to decide.”
Hart also argued that patients and physicians already have the option of palliative care. In such cases, doctors are permitted to prescribe medication to alleviate pain even if that medication hastens death, he explained. The key point is that the doctor’s intent was to alleviate the patient’s pain although death may be a secondary effect, Hart said.
“It’s passively allowing a death to occur as opposed to causing a death quickly,” Hart said. “What you cannot do is to say we’re going to ease your pain by causing your quick death.”
Hardin rejected the state’s characterization of palliative care and said it does not allow patients to die naturally. “This is aid in dying in slow motion,” Hardin said.
With physician assisted suicide, the patient is in control, not the doctor, Hardin said.
Allowing physician assisted suicide would contradict the American Medical Association’s Code of Ethics, which the state Department of Health uses as its own code of ethics, Hart said. “Allowing physicians to participate in assisted suicide would cause more harm than good,” according to the AMA’s code. “Physician assisted suicide is fundamentally incompatible with the physicians’ role as healer, would be difficult or impossible to control, and would pose serious societal risks.”
Where physician assisted suicide is legal, doctors prescribe a lethal dose of a medication that the patient can take when and where they want. About one-third of patients who receive such a prescription don’t use it, Hardin said.
Many patients are comforted “knowing they have this parachute if they need it, even if they don’t intend to use it,” Hardin said.
While state law bans physician assisted suicide, a separate law passed by the Legislature, the Natural Death Act, says every person has the fundamental and inherent right to die with dignity as circumstances allow, said Cynthia Chappell, Hardin’s co-counsel.
Gordon Ball filed an amicus brief on behalf of three anonymous clients in support of Hooker’s position. “We think the issue before the court is a narrow one,” Ball argued. “Is the decision to commit suicide with help of a physician a constitutionally protected fundamental right to privacy, and does the state have an interest in overriding that right? Do we have the ability to determine what shall be done with our own body?”
McCoy didn’t announce her ruling at the hearing but said she hoped to do so soon so that Hooker could receive the answer while he is still living.