FROM: BRIEF OF AMICUS CURIAE
PHYSICIANS FOR COMPASSIONATE CARE
IN SUPPORT OF APPELLEE, STATE OF ALASKA
Kevin Sampson and Jane Doe, Appellants, v. State
of Alaska, Appellee
SUMMARY OF ARGUMENT
Experience with doctor-assisted suicide in the state of Oregon,
as in the Netherlands, reveals that assisted suicide allowed in the
medical setting is not a private act. Doctor-assisted suicide takes
place in a complex medical, social, and economic system, making the
individual patient vulnerable to adverse influence. It creates conditions
allowing family members and others to pressure the patient to commit
assisted suicide, as has already happened in Oregon. Institutionalization
of assisted suicide unfairly discriminates against vulnerable individuals
and puts seriously ill individuals contemplating suicide at dangerous
and unequal risk of death by failing to provide equal protection
of their lives. If Alaska were to relinquish its right to prohibit
physician-assisted suicide, one vulnerable class of individuals,
those labeled "terminally ill," would thereby be devalued and would
no longer be afforded the same protection against assisted suicide
which other Alaskans enjoy. This failure to assure equal protection
would result in some of the depressed and mentally infirm who are
labeled terminally ill receiving assisted suicide instead of medical
care, which has already happened in Oregon, and as is common in the
Netherlands, even among those who are not labeled "terminally ill."
Institutionalization of assisted suicide not only has an adverse
effect on a particular individual who may feel like giving up on
life; it also has a harmful effect on society and its general welfare
and puts other individuals at risk. The harmful effect on society
derives from the fact that physician-assisted suicide is not a private
act, but takes place in a complex medical, social, and economic system.
Within this delicate, interactional context, as observed in the Code
of Medical Ethics, Sec. 2.211, overthrowing laws protecting the public
against doctor-assisted suicide is destructive to the doctor patient
relationship, proves impossible to control, and poses serious societal
risks. It creates an economic environment with institutional incentives
favoring suicide over medical care. It is impossible to adequately
monitor, as demonstrated by failed attempts to monitor the experience
in Oregon. Lacking adequate monitoring, it is impossible to regulate
Any illusion that assisted suicide could be confined to self-administered
oral overdose quickly dissipates once the practice is allowed. Lethal
injection must necessarily also be allowed for those who cannot quickly
swallow the contents of 90 or so capsules it takes to commit assisted
suicide or who have failed in their assisted-suicide attempt, as
has been demonstrated in the case of Patrick Matheny in Oregon and
previously in the Netherlands. The inevitability of the introduction
of lethal injection or infusion, once the protection against assisted
suicide is overridden for one class of patients, makes it even more
clear that institutionalized assisted suicide gives power and control
to the doctor and to a complex medical, economic, and social system,
not to an individual in an hypothetically "private" and "autonomous" act.
Arguments supporting overthrow of Alaskan law protecting the lives
of vulnerable individuals from assisted suicide are to some extent
based on a verbal blurring of the clear and rational boundary between "suicide" with "assisted
suicide." The interchangeable use of these words and concepts fails
to make clear the central issue of what is being done to who by whom.
This usage obfuscates the fact that assisted suicide is a complex
interaction taking place in a medical, economic and social system
and is not an action carried out in a hypothetical "private" setting
solely by an "autonomous" individual.
Arguments supporting overthrow of the protections provided by Alaskan
law against assisted suicide also rely heavily on the spurious contention
that the refusal of an unwanted medical treatment by a patient is
somehow equivalent to a doctor carrying out an action clearly intended,
not to provide medical care, but to make the patient dead. These
arguments again are based on the failure to recognize the social
nature of the doctor-patient relationship and to distinguish who
is doing what to whom. In one case, a patient is declining to do
something, that is, to accept an offer of medical treatment from
a different person, the doctor. In the other case, an entirely different
person, the doctor, is actively doing something, that is, writing
a lethal prescription intended to actively kill the patient. The
clear and rational distinction between a patient refusing unwanted
medical treatment and a doctor actively and intentionally taking
steps to make a patient dead has been upheld by the United States
Supreme Court, which stated "we think the distinction between assisting
suicide and withdrawing life sustaining treatment, a distinction
widely recognized and endorsed in the medical profession (n. 6) and
in our legal traditions, is both important and logical; it is certainly
Once a patient involves a physician in assisted suicide, it becomes
abundantly clear that the assisted suicide is not a "private" and
fully "autonomous" action. Doctor-assisted suicide takes place in
a complex medical, social and economic setting and opens discouraged
or anxious patients to adverse influence and coercion. It discriminates
against a vulnerable class of individuals, those labeled "terminally
ill." It further endangers the mentally ill and infirm and/or alcoholics
and other groups with a differentially high suicide rate. And, it
endangers not only the individual contemplating assisted suicide,
but also proves harmful to society. It is destructive to the doctor-patient
relationship, is impossible to control and poses serious societal
risks. Clearly, Alaska has the right and the responsibility to uphold
its laws protecting its citizens against the danger doctor-assisted
suicide poses to vulnerable individuals and to the general welfare
N. Gregory Hamilton, M.D.
President, Physicians for Compassionate Care
May 14, 2000
Erin Hoover Barnett, Is Mom Capable of Choosing to Die? Oregonian,
October 17, 1999 at G1&2.
Wesley J. Smith, Suicide Unlimited in Oregon. WEEKLY STANDARD,
November 8, 1999, at 11-14.
Catherine Hamilton, The Oregon Report: What's Hiding Behind
the Numbers, BRAINSTORM, March 2000 at 36-38 (appended).
Washington v. Glucksberg, 117 S.Ct. 2258 (1997). United States v.
Rutherford, 442 U.S. 544, 558 (1979) "...Congress could reasonably
have determined to protect the terminally ill, no less than other
patients, from the vast range of self styled panaceas that inventive
minds can devise"; N. Gregory Hamilton, MD, The Doctor-Patient
Relationship and Assisted Suicide: A Contribution from Dynamic Psychiatry,
19 AM. J. FORENSIC PSYCHIATRY (1998) 59, (appended).
Hamilton, supra note 2 at 70.
Glucksberg, supra note 2, "Those who attempt suicide--terminally
ill or not--often suffer from depression or other mental disorders."
Herbert Hendin, MD et al., Physician-Assisted Suicide: Reflections
on Oregon's First Case, 14 ISSUES IN LAW &MED. 243-269
N. Gregory Hamilton, MD et al., Therapeutic Response to Assisted
Suicide Request, 63 BULL. MENNINGER CLIN. 191-201 (1999).
Kathleen Foley et al. The Oregon Report: Don't Ask, Don't Tell,
HASTINGS CENTER REPORT, May-June, 1999 at 37;
Wesley J. Smith, J.D., Storm Warning over Oregon 171 WESTERN
J MED. 220 (1999).
New York State Task Force on Life and the Law, When Death Is
Sought: Assisted Suicide and Euthanasia in the Medical Context (1994)
13-22, 126-128. Herbert Hendin, SEDUCED BY DEATH: DOCTORS, PATIENTS,
AND ASSISTED SUICIDE (1998).
Washington v. Glucksberg, supra note 2.
Ravin, 537 P.2d at 504. ("Indeed, one aspect of a private matter
is that it is private, that is, that it does not adversely affect
persons beyond the actor..." State v. Erickson, 574, p.2d 1 (Alaska
American Medical Association, Code of Medical Ethics (1997) at 56-57.
N. Gregory Hamilton, MD, Testimony of Dr. N. Gregory Hamilton
to the Subcommittee on the Constitution of the House Committee
on the Judiciary, 106th Cong., (June 24, 1999). See also Joe
Rojas-Burke, Oregon's Poor Slip from Safety Net of Health Coverage:
Although More Money Went to the Oregon Health Plan, the Percentage
of Uninsured Poverty-Level Residents Climbed Last Year to 23 Percent,
OREGONIAN, March 29, 1999, A1; Joe Rojas-Burke, Insurers Still
Unfair with Mentally Ill, Study Says: Despite a Law Meant to Curb
Coverage Bias, the Share of Plans Limiting Office Visits and Hospital
Stays for Mind Disorders Jumps, OREGONIAN, April 30, 1999,
D1; Joe Rojas-Burke, Senate Bill Proposes Increase in Mental
Health Benefits, OREGONIAN, June, 19, 1999, D1; Theodore C.
Falk, What Price Dying? The Debate over How to Die Now Can
Shift to How Much Money We Think It's Worth, OREGONIAN, December
31, 1997; Kathleen Foley, A 44-Year-Old Woman with Severe Pain
at the End of Life, 281 JAMA 1937 (1999); Jeanette Hamby, The
Enemy Within: State Bureaucratic Rules Threaten the Spirit of Oregon
Health Plan's Founding Principles, OREGONIAN, January 21,
Hamilton, supra note 1; Foley, supra note 5. See
also Glucksberg supra, note 2. ""Thus, it turns out that
what is couched as a limited right to 'physician assisted suicide'
is likely, in effect, a much broader license, which could prove extremely
difficult to police and contain." See also Charles T. Canady, Physician
Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman
Charles T. Canady to the Subcommittee on the Constitution of the
House Committee on the Judiciary, 104th Cong., 2d, 10-11 (Comm.
Print 1996); Hendin supra note 6; New York State Task Force supra note
7; American Medical Association supra note 10.
See appended letter of Oregon Deputy Attorney General David Schuman
to Oregon state Senator Bryant, claiming that "persons who are unable
to self-medicate will be denied access to a 'death with dignity," therefore
making Oregon's "Death with Dignity Act" vulnerable to challenge
under "title II of the Americans with Disabilities Act..." -- a challenge
which would allow for lethal injection for those who cannot swallow.
See also Catherine Hamilton, supra note 1; N. Gregory Hamilton, supra note
Canady, supra note 13.
Opening Brief of Appellants (fn4) states "Alaska criminalizes suicide in
two separate statutory provisions: AS 11.41.100 and AS 11.41.120.
The ban against physician assisted dying is codified in AS 11.41.120
(a) provides that any person who 'intentionally aids another
person to commit suicide'" and also later states "the challenged
statute outlawed suicide for all Alaskans. Exc.
11, pp. 26-27. The court found the primary reason for the categorical
prohibition against assisted suicide ..." (emphasis
Vacco v. Quill, 117 S.Ct. 2293 (1997). See also American Medical
Association Council on Ethical and Judicial Affairs, Decisions
Near the End of Life, 267 JAMA 2229 (1992).
See supra note 2. See also, Hendin supra note
7, at 199-202.
See supra notes 5-7.
See Eve K. Moscicki, Identification of Suicide Risk Factors
Using Epidemiologic Studies, 20 PSYCHIATRIC CLIN. N. AM. 499
See supra note 10.