The Clear Line

-- By ShefaliSingh - 16 Feb 2012

"Distinguishing Omission from Acts"

My Criminal Law class was recently assigned to read a series of cases in our casebook under the heading “Distinguishing Omissions from Acts.” The section focuses on the ‘difference’ between letting a person die and killing a person, specifically in the context of people receiving life-sustaining treatment. The main case of the section is Barber v. Superior Court, which concerns two physicians who were charged with murder and conspiracy to commit murder after they terminated life supporting measures being administered to a deeply comatose patient (with the approval of the patient’s family). In order to distinguish the act of ‘pulling the plug’ from unlawful killing, the California District Court of Appeal asserted, “the cessation of “heroic” life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 1016 (Ct. App. 1983). This was so, the court reasoned, because disconnecting the life support devices was analogous to refraining from giving the patient the life sustaining treatment.

The Supreme Court used comparable reasoning when it considered if a New York assisted-suicide ban was unconstitutional in Vacco v. Quill. Respondents argued that because New York allowed people to refuse life-sustaining treatment, but did not permit physician-assisted suicide, the assisted-suicide ban violated the Fourteenth Amendment’s Equal Protection Clause. They further asserted that the prescription of lethal medication to “mentally competent, terminally ill patients” who are suffering great pain and wish to end their lives would be consistent with medical practice standards. However, the ban prevented physicians from doing so. According to the Court, New York’s prohibition on assisted suicide was not unconstitutional because “[everyone], regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause.” Vacco v. Quill, 521 U.S. 793, 800 (1997). The Court then acknowledged that the Court of Appeals had concluded that people on life-support are in fact treated differently from those who are not, because they have the choice to end their life by stopping their treatment, while others do not have the choice to end their lives through assisted suicide. But, the Supreme Court contended, there is a widely recognized “logical” and “rational” difference between terminating life-sustaining treatment and assisted suicide, which is based on the “legal principles” of causation and intent. For,

“when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. . . . A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the patient be made dead.”. . . Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not.” Vacco, 521 U.S. at 801-02.

This supposedly is the clear line between “letting die” and “killing.”

Lengthening the Handle

Rationally analyzing these cases, it is apparent that the courts’ attempts to differentiate assisted suicide and the act of ‘pulling the plug’ are very superficial. How is the intent of a doctor to ease the passing of his patient so significantly different in these situations to justify labeling one action murder, and the other an acceptable act? How is there an omission of action by ‘pulling the plug,’ removing feeding tubes or turning off a respirator? Why does it really matter if it is labeled an omission of action? What makes a fatal disease a better causation of death rather than lethal injection, especially when the latter can cause less suffering? Under a functionalist approach, the two acts are one and the same.

So why do we claim there is a difference between assisted suicide and the termination of life sustaining treatment, a difference so substantial that one act merits acceptance and the other criminal prosecution? Because these distinctions help us distance ourselves from a thought we will never want to confront, a concept we choose to keep at bay with words and legal reasoning. As social creatures, we do not want to believe that people–especially ourselves—are capable of killing a person they love.

“But that’s not it,” people will rationalize. “The person was suffering, he freely made the choice to end his life, she only gave assistance through compassion and mercy, he would have tried another way anyway,” and so on. These are all important considerations, of course, but they are not part of the essence of “the thang.” Helping another—a friend, a spouse, a family member—to end his or her life not only has consequences for the deceased, but also the assistant who is left to live with what she has done. This person may be consoled by that fact that her loved one is no longer suffering, but that does not mean the experience is not traumatic.

But that the experience is traumatic doesn't otherwise tell us how we should think about it from any legal perspective. We are capable of killing people we love, out of love and mercy as well as out of anger, jealousy, avarice, shame, and all sorts of other emotions that accompany killings. Mostly, we try to imagine that people who kill people they love aren't like us, most often by believing that their love isn't like our love, that there's something wrong with it, or that there's something else wrong with the people, something that separates us from them. But when the emotions that accompany killing are emotions that we want to have, that we consider noble, brave, loving, transcendent, we can no longer separate ourselves in this way from people who have killed. We are compelled to recognize that our humanity ties us equally to those who kill and those who are killed. We lose our power of "splitting," and we must deal with ourselves as we are.

Of course, that does not necessarily mean that we will tolerate the killing. The ideological fabric of Christianity, for example, agrees that we are tied equally to those who kill and those who are killed, but understands "Thou Shalt Not Kill" with sufficient strictness to require the dodgy logic you run up against in Barber and Quill in order to mediate between dogma and ethical reality.

Inconceivable Thoughts

The thought of having to confront this despairing scenario is distressing. Trying to imagine a suffering family member asking me to help him end his life, doing the act, and then having to live with the fact that my loved one is gone forever due to my actions is impossible. My mind prevents me from fully exploring the idea because it is too painful to conceive. Therefore we keep such thoughts at a safe distance away, wrap them in legal jargon, and never have to actually consider them.

Until we do. Which may not be the way we expect. Imagination is a powerful realm of human learning, along with experience. It is the unique power of the human mind that it can bring us into the complexity of human experience through imagination. We use literature, music, painting, and other arts to learn more about ourselves, and the deepest conundrums of our nature, before the lessons of experience are etched forever on us.

But what happens when such uncomfortable thoughts are brought to us by a confused client?

Why necessarily confused? Perhaps not at all confused.

To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.

I would not be so sure that the subject won't be taught in a law school classroom. We should find a moment to discuss it further ourselves, in the fall or when we next meet.

In the meantime, though you have found the complexity, the involvements of the unconscious, in the tissue of unconvincing logic-chopping that is our law at its highest-flown about this subject, you have yourself turned away at the last minute from formulating an approach to the issues. Given that the distinctions in the judicial opinions are too flimsy to believe, what other than looking the other way can or should society do?