The End of Life Options Act

The End-of-Life Options Act was filed in the House (HB 404) and in the Senate (SB 418), and is slowing going through the legislative process.  The essence of the bill is that a person, in prescribed circumstances, may request help to end his or her own life.  

Predictably, a firestorm has erupted pitting those who wish to keep the government out of the decision-making process when it comes to making fateful decisions regarding their own lives, and those who believe that suicide is immoral, illegal or just plain wrong under any circumstance.

What does the End-of-Life Option Act really do?  It provides that: (i) an adult resident of Maryland, (ii) who is terminally ill, (iii) who has mental capacity, (iv) who has the capacity to make an informed decision, and (v) who can self-administer medication, may request aid-in-dying from his or her physician.  There are many safeguards included in the bill that insure that the patient is making a purely voluntary request, that the patient has a terminal illness, and that no one else is making the decision on behalf of the patient.

This Act merely allows a person to have something that everyone wants – a good death.  Is the goal of a good death by relieving pain and suffering misguided? Or the right thing to do?  The humane thing to do?

One of the key issues raised in the Joint House Committees of Judiciary and Health and Government Operations last week was that no matter how one dresses it up, suicide is suicide.  That is not the case.  Suicide is where one has a choice of life over death, and chooses death.  However, when one is given a prognosis by two independent doctors that to a reasonable certainty that one is going to die within 6 months, one does not have a choice of life. Rather, it is a choice is between death one way or death another way.  This is not really a choice, is it?  That’s why it’s not suicide.

In Catholic theology, going back to Thomas Aquinas, the doctrine of “double effect” has been used to explain that an action that is taken for good effect, but has an evil second effect, can nonetheless be justified in the circumstances.  For example, if in war one targets a base that is military in nature, and innocent citizens are inadvertently killed, that is often considered a justified action because the purpose was good - the protection of legitimate goals.

Likewise, in this debate, the goal is to end pain and suffering, to give people hope, and, perhaps most importantly, give individuals the ability to control the end of their lives.  This is a very good effect.  If the double effect is the death of the person, that does not change the original legitimacy of the act.

Sometimes just knowing that you can control your own death is enough.  Without that control there is first uncertainty, and then fear.  Using the “double effect” analysis, while government may be trying to provide a well-intentioned end, that is, the preservation of life, it is really creating fear and uncertainty in the process.  Is this an appropriate role of government?  

The answer to this question must be “no.”  Indeed, current laws that prohibit aid in dying condemn persons to pain and suffering without their consent.  This is one of the most heinous acts by a government against its people that can be imagined.  Dealing with one’s own death is one of the most intimate and private of all discussions we have during our lifetimes, a discussion in which government should have no part.  The U.S. Supreme Court, in determining there was a Constitutional right to privacy, reviewed a case involving consensual activities in the bedroom, and determined that government did not have a place in our bedroom; now it’s time to take government away from our deathbed as well.

In conclusion, Sir Terry Pratchett, the famous fantasy writer, wrote a speech about his own personal struggle with Alzheimer’s.   In that speech, Pratchett said “Observation, conversation and some careful deduction lead me to believe that the majority of doctors who support the right to die are those who are most closely involved with patients, while support seems to tail off as you reach those heights where politics and medicine merge.”

Pratchett got it right.  After all, as has been said, this bill will not result in more people dying, but in fewer people suffering.

Michael Davis is an attorney with the Estate Planning practice group at Davis, Agnor, Rapaport & Skalny, LLC. For questions about this article, please do not hesitate to contact Michael.

Following the published date of this article, The Baltimore Sun ran an update regarding this bill on Thursday, March 3, 2016.