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At Liberty to Die

At Liberty to Die: The Battle for Death with Dignity in America

Howard Ball
Copyright Date: 2012
Published by: NYU Press
Pages: 224
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  • Book Info
    At Liberty to Die
    Book Description:

    Over the past hundred years, average life expectancy in America has nearly doubled, due largely to scientific and medical advances, but also as a consequence of safer working conditions, a heightened awareness of the importance of diet and health, and other factors. Yet while longevity is celebrated as an achievement in modern civilization, the longer people live, the more likely they are to succumb to chronic, terminal illnesses. In 1900, the average life expectancy was 47 years, with a majority of American deaths attributed to influenza, tuberculosis, pneumonia, or other diseases. In 2000, the average life expectancy was nearly 80 years, and for too many people, these long lifespans included cancer, heart failure, Lou Gehrig's disease, AIDS, or other fatal illnesses, and with them, came debilitating pain and the loss of a once-full and often independent lifestyle. In this compelling and provocative book, noted legal scholar Howard Ball poses the pressing question: is it appropriate, legally and ethically, for a competent individual to have the liberty to decide how and when to die when faced with a terminal illness? At Liberty to Die charts how, the right of a competent, terminally ill person to die on his or her own terms with the help of a doctor has come deeply embroiled in debates about the relationship between religion, civil liberties, politics, and law in American life. Exploring both the legal rulings and the media frenzies that accompanied the Terry Schiavo case and others like it, Howard Ball contends that despite raging battles in all the states where right to die legislation has been proposed, the opposition to the right to die is intractable in its stance. Combining constitutional analysis, legal history, and current events, Ball surveys the constitutional arguments that have driven the right to die debate.

    eISBN: 978-0-8147-6975-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. 1-12)

    Dudley Clendinen is a sixty-six-year-old author and columnist dying of amyotrophic lateral sclerosis (ALS, known as Lou Gehrig’s disease). In a recent essay, he discussed his existential situation.¹ There is no meaningful treatment for ALS nor is there a cure. “Lingering would be a colossal waste of love and money. I’d rather die,” he wrote. Although leaving his daughter “is the one thing I hate. But all I can do is to give her a daddy who was vital to the end, and knew when to leave. . . . When I can’t tie my bow tie, tell a funny...

    (pp. 13-26)

    Except for those who die suddenly, death is a gradual process³ common “to all living organisms in the earth’s biosphere.”⁴ The clinical definition of death, however, has evolved over the centuries because medical science developed new techniques and instruments that doctors used to treat their patients. As these new protocols and technology became available, new insights emerged regarding how humans die and when they are pronounced clinically dead.

    The cell is the basic unit of all living organisms. When cells die (cell necrosis) in humans,⁵ because of physical trauma or biological invasion (hypothermia, oxygen deprivation, immunological attack, or toxin exposure),...

    (pp. 27-50)

    This chapter explores the initial set of questions that arose when one consequence of the medicalization of death—PVS—first appeared in state and federal courts. Because of the intensive media coverage of the cases, public discussions of the questions ensued. The answers are legal and constitutional stepping-stones to the question that is the central focus of the book: Does a competent, dying person have the liberty to choose to die with a physician’s assistance?

    The cases that initiated the right-to-die debates raised the following questions: Who decides when life support is withheld, or discontinued and withdrawn, from a competent...

    (pp. 51-66)

    Nancy Cruzan finally died on December 26, 1990. Months earlier, on February 25, 1990, Theresa Marie (Terri) Schiavo, a happily married twenty-seven-year-old woman suffered a major cardiac arrest as a result of a potassium imbalance. Like others who were felled by a cardiac arrest or other acute trauma, EMTs, using CPR, restored her heart beat—after more than twelve minutes without oxygen to her brain. The rescuers transported her to a local Florida hospital. She never regained consciousness. She was in a PVS.

    The Schiavo story, while very similar toQuinlanandCruzanregarding the horrible impact of PVS on...

  8. 4 WHAT FREEDOM DO WE HAVE TO DIE WITH DIGNITY? The U.S. Supreme Court Decides, 1997
    (pp. 67-104)

    There are two answers to the question of how a competent, terminally ill patient can legally hasten death with the assistance of a physician: (1) Push legislation creating a PAD bill. This path is the more arduous of the two, fraught with political, cultural, and medical pitfalls. Or pro-PAD advocates could (2) go into federal courts to challenge state laws that make it a crime for a physician to provide a terminally ill patient with a prescription that would end that person’s life. In 1990, all states prohibited PAD and provided criminal penalties for doctors who engaged in PAD. The...

    (pp. 105-130)

    Throughout the legal debates and the battles surrounding the controversial right-to-die issue, fromQuinlanin 1976 through the 1997 cases from Washington State and New York State, the opposing forces were known. The large number of briefs filed on behalf of the two states in the 1997 cases represented the political, religious, and medical and nursing “establishments” in America: the United States (two briefs filed by the U.S. Solicitor General), the Roman Catholic Church (five briefs), the American Medical Association, and the American Nurses Association. Arrayed against these powerful forces were politically marginal organizations such as the Hemlock Society, the...

  10. 6 THE PIONEERING PAD STATES: Oregon and Washington
    (pp. 131-162)

    In 1997, the U.S. Supreme Court rejected the constitutional argument that liberty extends to a person’s right to die with the help of a physician. Even now, in 2011, there is little chance of pro-PAD advocates achieving success in the federal courts. However, use of state courts to legitimatize PAD is another matter. For example, in 2009 the Montana Supreme Court concluded that the state Constitution did not prohibit PAD.

    The second path, legalization of PAD in state legislatures failed in more than a dozen states. This chapter focuses on the factors accounting for the two successful efforts to legitimatize...

    (pp. 163-172)

    In 2011, a terminally ill person who wants to choose death over life has a limited number of options available:

    (1) withholding or withdrawing life-sustaining treatment;

    (2) refusing life-support treatment;

    (3) having the physician treating the pain increase the dosage of pain killing morphine, with the probability of the patient dying as a consequence;

    (4) having a medical professional assist in the death of the terminally ill patient by providing a prescription for a fatal dose of medicine.

    The first three options are not problematical. It is the last one, premised on an expansive interpretation of liberty, that has generally...

  12. NOTES
    (pp. 173-204)
    (pp. 205-206)
    (pp. 207-216)
  15. INDEX
    (pp. 217-228)
    (pp. 229-229)