Mbilike M. Mwafulirwa
Throughout humanity’s unfolding story, death has been one of the few constants. “Death comes for all of us.”[1]But despite humanity’s long history and familiarity with death, the end-of-life experience is still laden with complexity. How death happens and why are questions that invite more questions than answers. The law does provide some answers. An unjustified killing, for example, is unlawful. Death imposed as part of the death penalty or as the result of justified deadly force is lawful. A competent adult can choose (in real time or through advance directives) to refuse lifesaving medical care. And a surrogate can, in limited circumstances, make end-of-life choices on behalf of an incapacitated patient. This is a non-exhaustive list. Outside those limited situations, there are few hard and fast rules. Few questions that intertwine law, morality and ethics have fixed rules: Death stands as no exception.
No other setting best encapsulates those end-of-life complexities as the medical field, the subject of this article. In that setting, as in countless other end-of-life situations, the penultimate question is this: at what point does a single life lose its intrinsic value or worth to warrant being ended or not being preserved? That kind of analysis, as will become apparent, puts personal liberty interests on a head-on collision with criminal laws, ethics vs. morals, law vs. religion, the interests of the few vs. those of the many, the promise of healing vs. destroying life.
This article highlights those end-of-life complexities that are part of the tapestry of life from the delivery room to the grave, while outlining the basic guiding legal principles.
I. A Hobson’s Choice[2] of a Lifetime
Consider the true-life plight of two loving parents and their newly born twin girls, Jodie and Mary (fictitious names).[3] Although the twins each had a separate brain, heart, arms, legs and several other vital organs, they were born conjoined at the lower abdomen.[4] Mary’s heart and lungs were weak and could not adequately oxygenate her body. If Mary had been born separate from her sister, her respiratory system would have failed. Fortunately for Mary, she could rely on her sister’s heart and lungs to oxygenate her body.[5] But the problem for the children was that the stronger twin’s respiratory system could not bear this heightened load forever; unless the doctors alleviated the additional pressure, both children would die. The only good news for the twins was that the doctors could have separated the children, but at a grave cost. The act of separation guaranteed with virtual certainty that the weaker twin would die.[6] The distraught parents were devout Catholics who believed in the inviolate sanctity of human life and could not agree to sacrifice any of their children.[7] The twins’ doctors turned to the courts. From this and several end-of-life fact-patterns, difficult legal questions abound. What guiding legal principles inform the decision-making process? Was the withdrawal of treatment to the weaker twin in this context legitimate medical care or was it affirmative, purposeful destruction of life? Put differently, was this intentional conduct that would, with virtual certainty, lead to death which is normally the domain of the criminal law? If it is the latter, is it justifiable? If yes, how? But if it is legitimate medical care, as opposed to criminal conduct, how is the distinction drawn in this specific context of the conjoined twins. This article addresses those difficult questions.
II. Self-Demises—the Governing Principles
When a person takes her own life, the criminal law is not offended: suicide is not a crime.[8] The reasons for this are both moral and practical. In a practical sense, there is real difficulty in punishing a dead person.[9] After all, when a person dies, she is no longer available to face the consequences of her criminal actions—the axe of retribution tends to fall on the remaining innocents, the decedent’s family.[10] On the moral front, the law appreciates that those who take their lives generally do so because “of medical and psychological anguish.”[11] But with attempted and failed suicides, the law imposes punishment.[12] The U.S. Supreme Court has upheld government regulation in this area to preserve the sanctity of human life because the U.S. Constitution does not afford us the right to commit suicide alone or with help from others.[13]
III. To Die or not to Die, That is the Question
End-of-life situations are most complex when a person other than the putative decedent (1) plays a central role in the end-of-life decision; or (2) is involved in accelerating a demise.
A. Governing considerations in the end-of-life decisional making process
1. The competent adult—an informed decision to die. When a competent adult ends her life, unless a suicide note (or the like) is left behind, both the decision-making process and the decedent’s motivations are uniquely subjective to the patient. Likewise, as noted, a self-demise (or suicide) is not a crime.[14] Beyond the suicide context, the law allows a competent adult to pre-fix an end-of-life decision through devices like do not resuscitate (“DNR”) forms, advanced directives, health proxies and living wills. These pre-arranged devices allow medical providers and chosen surrogates to discern and honor a patient’s prior expressed desires.[15] As long as the patient was competent when she executed the pre-arranged end-of-life instrument, the law considers it valid.[16] The assumption in this analysis is that the medical providers would have no moral or religious objection to carrying out a patient’s real-time or advanced end-of-life directives. But if there were any such concerns, the law, including a respected body of professional guidance, requires that a willing provider should assume care from the objecting medical provider.[17]
2. The vicarious decision to die—death with help from others. The end-of-life complexities become more pronounced in the vicarious stage—when someone other than the patient has to make an end-of-life decision.[18] This scenario tends to arise when (a) the patient has, at the time, a perceivable lack of mental capacity because of illness, injury or infancy, to direct treatment; or (b) when an instrument designates a proxy without providing clear guidance on how she should make the end of life decision. It is in this vicarious stage that the decisional process is most complicated because, as the U.S. Supreme Court has recognized, end of life decisions require value-based assessments that implicate societal norms and morals and invite deep-seated policy considerations.[19] In similar vein, Justice Scalia noted,
[T]he point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate’ are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.[20]
Again, questions abound. Whose interests are best advanced by an end-of-life decision? The patient? The patient’s family? The affected community?[21] Some other consideration?[22]
If a court or governmental actor is involved in the decision, the First Amendment requires that sincerely held religious convictions not be dismissed out of hostility or convenience.[23] The moral and religious convictions that the state actor must contemplate are generally those of the patient, not so much of the substitute decision-makers (as it is the patient’s best interests, not of those of the surrogate, at issue). And, of course, the medical providers’ moral convictions are also important.[24] Thus, if a hospital (or doctor or nurse) involved in the end-of-life process harbors deep-seated religious or moral objections, a court cannot sidestep those.[25] These are some of the weighty questions that need addressing. The U.S. Supreme Court engaged in a some-what similar multi-factor analysis in Cruzan, the case of a Missouri woman in a permanent vegetative state. In Cruzan, the Court held no federal constitutional right to die and states could impose heightened procedures—an evidentiary hearing subject to clear and convincing evidence requirements—among others, to determine an incapacitated patient’s wishes about withdrawal of treatment.[26] Oklahoma has comprehensive laws that address a surrogate’s right to direct an incapacitated person’s medical treatment. In its present form, Oklahoma law allows surrogates (delineated in the statute to include a spouse or family members) to give informed consent with regard to all manner of medical treatment decisions for an incapacitated patient.[27]
Oklahoma law allows parents and legal guardians to make all manner of medical treatment decisions for their children, including end-of-life decisions.[28] This tracks what the U.S. Supreme Court has generally long recognized about the parent-child relationship: “that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”[29] It is against that background that the law’s preference that “[p]arents can and must make those [difficult] judgments” is best understood.[30] The U.S. Supreme Court has, however, recognized that the government may disregard a parent’s wishes “when (a child’s) physical or mental health is jeopardized.”[31] The Supreme Court has emphasized that those instances are rare and usually only come into play when there are colorable claims of abuse or neglect, not simply because the government disagrees with a parent’s otherwise rational decision.[32] In other words, according to the Supreme Court, state interference with parental authority is defensible, for example, when a parent deprives her child adequate medical care or significantly impedes the exercise of a constitutional right.[33] In the end-of-life context involving children, courts generally get involved when there is a conflict between family members, or with medical providers or any other person with standing to assert the best interests of the child (e.g., guardian ad litem or the Oklahoma Department of Human Services).[34] As the Oklahoma Supreme Court’s decision in the Baby F case generally guides, the child’s best interests should guide an Oklahoma court’s decision in an end-of-life situation.[35]
B. The Problems of Accelerated Demises
1. Accelerated demises generally. The law remains unwavering in its commitment to punish and hold accountable those who accelerate or assist, even remotely, the intended death of another person without basis. To begin with, as noted, assisting someone else to commit suicide is a crime.[36] Similarly, a person’s purposeful or active curtailment of another’s life is generally punished by the homicide laws; even then, the law admits a few exceptions. The law excuses, for example, clear instances of self-defense or defense of another; or when one person kills another while imposing lawful criminal punishment; or death as the result of justified use of deadly force.[37] The decedent’s consent is not a defense to the criminal or civil consequences of an intentional accelerated death; that is why mercy killings, for example, are punishable.[38] Likewise, generally the killing of another person done out of necessity, rage, or while acting outside the scope of legal privilege, or as part of a cruel and usual punishment, are all unlawful.[39]
2. Accelerated demises in the medical context. When a putative decedent is born alive, her life and personal integrity receive the protection of the law.[40] Moreover, and as noted, under the personal autonomy principle, every competent adult can refuse any form of medical treatment.[41] In fact, the right to refuse lifesaving treatment and hydration has a constitutional dimension, which effectively stands as a barrier against arbitrary governmental interference.[42] Here, it is also important to distinguish, on the one hand, a medical doctor’s decision to withdraw lifesaving treatment or give legitimate medical treatment that poses a risk of death and may incidentally cause an early demise. That form of treatment is generally not a crime. On the other hand, the act of purposeful administration of excessive amounts of medication to bring about an expedited death or assisting a suicide are both crimes.[43] Specific to medical providers, the U.S. Supreme Court has stated that the latter acts conflict with a physician’s duties as a healer.[44]
The criminal law’s tolerance for treatment that has the known incidental effect of accelerating a patient’s death warrants more analysis. This issue often arises with terminal patients who receive palliative care and treatment which, when the dosage increases, may invariably lead to death.[45] What is the difference between palliative care of that kind and euthanasia or doctor-assisted suicide, which are both generally crimes? After all, each leads to an accelerated demise. The difference is that in the lawful context (e.g., palliative care), the primary purpose for the treatment is not to take the patient’s life, but it is to alleviate pain and death is merely an incidental consequence.[46] That differs from euthanasia of which purposeful administration of lethal medication, for example, is the primary purpose and intended consequence, rather than bona fide medical treatment.[47] As Justice Holmes famously observed, “a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed.”[48] In recent times, Justice Gorsuch has argued in his seminal book on assisted suicide and euthanasia that doctor-assisted suicide differs from euthanasia in that in the former, the patient generally takes the last act causing death, while in the latter the medical provider does.[49]
3. The problem of the conjoined twins. The problem of the conjoined twins is unlike most end-of-life medical decisions because in that situation the doctors had to take affirmatively the life of A so that B may live, instead of only dealing with a single patient.[50] As noted, generally the criminal law permits doctors to withdraw or provide legitimate medical treatment even if it has the incidental consequence of hastening death without penalty. But generally those who affirmatively end the life of another face homicide-related sanctions.[51] If the law does not excuse intentional mercy killings by loving and caring relatives,[52] one possible view holds that there might be little difference in principle why similarly destroying human life (albeit in the medical context) should be treated differently. After all, the U.S. Supreme Court has made clear that “in the law what is sauce for the goose is normally sauce for the gander.”[53] If that logic were applied to its ends, there would appear to be no permissible medical treatment that mirrors what the doctors had to do for the conjoined twins.[54] On that view, the doctors would violate the law.
In the specific context of the conjoined twins, the doctors performed the separation operation. The courts found legal justification in a defense of another/self-defense rationale; that is, the stronger twin herself or medical providers needed to preserve the stronger twin’s life from her “aggressor” sister.[55] Ordinarily, the criminal law permits A to take the life of B in order to save her own life or that of another.[56] But upon closer inspection, the self-defense and defense of another rationales would appear irreconcilable with Oklahoma law. As an elementary matter, since the stronger twin could not have acted herself against her so-called “aggressor” because of infancy, the medical providers had to act on her behalf.[57] As a result, self-defense logically appears not to fit (clear absence of “self”). Likewise, the defense of another or fatal-force-to-prevent-a-felony rationales appear unavailing for three reasons. First, unlike family members and the like, medical professionals are not within the class of persons able to exercise fatal force under a defense of another rationale in Oklahoma. Second, the fiction that the weaker twin was committing a felony against her sister is simply untenable and illogical; and finally, an infant of that size could not possibly form the necessary mens rea to support that kind of a crime.[58] As a result, under Oklahoma law, those homicide concepts appear ill-suited to the situation at hand.
Another plausible view is that the separation was legitimate medical treatment. To quote Justice Holmes again, “a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed.”[59] The twins’ medical providers’ intentions for performing the operation were clear: they wanted to save the life of a patient, the stronger twin. Viewed through those lens, the conclusion that this was legitimate treatment appears inescapable. The stronger twin needed urgent medical care. Because the twins were conjoined, whatever lifesaving treatment was given to the stronger twin would also affect her sister, with varying consequences. As a result, any death to the weaker twin from the operation would be an incidental consequence of rendering legitimate medical care to the stronger twin. The law does not generally criminalize legitimate medical care that has the incidental consequence of hastening a patient’s death.[60]
Finally, a word about the “best interests” analysis. In vicarious end-of-life decisions, there are vexing questions about the best interests of the patient; the determination is fact-specific with no easy answers.[61] For the stronger twin, her best interests were in being alive, while for her sister an impending death was inevitable with or without medical intervention: against that backdrop, at most, the weaker-twin could only hope for a dignified end.[62]
IV. Conclusion
Death is a sophisticated subject with few and fast hard rules. If there is semblance of a principled approach in this area, it is best seen in cases of competent adults who choose to refuse lifesaving treatment. Beyond that, complexity exists. No one size solution fits all cases.
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[1]Paul Kalanithi, When Breathe Becomes Air 114 (Random House 2016).
[2] In “literary usage, a Hobson’s choice…denote[s] no choice at all.” Bryan A. Garner, Garner’s Modern English Usage466 (4th ed. 2016) (italics in original).
[3]See J.F.O. McAllister, Kill Mary to Save Jodie? Time.com (Sept. 10, 2000), http://content.time.com/time/magazine/article/0,9171,54436,00.html (last seen April 27, 2019).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] See Washington v. Glucksberg, 521 U.S. 702, 774 (1997) (Souter, J., concurring).
[9] See U.S. v. Parsons, 367 F.3d 409, 411-417 (5th Cir. 2004) (en banc); U.S. v. Dudley, 739 F.2d 175, 177 (4th Cir. 1984).
[10] Glucksberg, 521 U.S. at 713; see also Boyd v. State, 1910 OK CR 87, 108 P.431, 431.
[11] Glucksberg, 521 U.S. at 730 (citations omitted).
[12] See, e.g., 63 O.S. § 3141.3 (an attempt to commit suicide is a crime).
[13] See Glucksberg, 521 U.S. at 716.
[14] Id. at 774 (Souter, J., concurring).
[15] See Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S. 261, 289-290 (1990)(O’Connor, J., concurring); The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions vol. 1, 155-166 (Oct. 1982) (noting importance of advance directives); 15 O.S. §§1001-1020 power of attorney); 58 O.S. §§1071-1077(power of attorney); 63 O.S.§§3101-3102A (advanced directives law); id. §§3131.1-3131.14 (DNR statute); 63 O.S. §§3080.1-3080.5 (hydration and nutrition laws).
[16] See, e.g., Hold v. Bentley, 2018 OK CIV APP 62, ¶¶7,13-16, 439 P.3d 426, 428-429.
[17] See 63 O.S. §3080.5(A); §3101.9; §3131.8(C); see also Making Healthcare Decisions at 3 (“Patients are not entitled to insist that health care practitioners furnish them services when to do so would violate either the bounds of acceptable practice or a professional’s own deeply held moral beliefs.’) (emphasis added).
[18] See Cruzan, 497 U.S. at 280.
[19] Id. at 277 (end-of-life decisions implicate “perplexing question[s] with unusually strong moral and ethical overtone.”).
[20] See Cruzan, 497 U.S. at 294 (Scalia, J., concurring).
[21] See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013) (Gorsuch, J., concurring)(“All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”).
[22] Cf. id. (Gorsuch, J., concurring) (“For some, religion provides an essential guidance . . . about what constitutes wrongful conduct . . . .”).
[23] See Citizens United v. Fed Elect. Comm’n, 558 U.S. 310, 326 (2010) (“Courts, too, are bound by the First Amendment”); Masterpiece Cakeshop, Ltd v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719, 1732 (2018) (“The official expressions of hostility to religion” by a decisionmaker “at any point in the proceedings” is “inconsistent with what the Free Exercise Clause requires.”).
[24] In Matter of Jobes, 529 A.2d 434, 444-445 (N.J. 1987); see also Making Health Care Decisions at 3-5, supra note 15.
[25] See generally 63 O.S. §3080.5(A) (allowing physicians to refuse to participate in end-of-life care); accord §3101.9; §3131.8(C); Making Health Care Decisions at 3-4, supra note 15; see, also e.g., generally Burwell v. Hobby-Lobby Stores, Inc.,134 S.Ct. 2751, 2768-2769 (2014) (corporations and their owners can make religious objections on behalf of their owners).
[26] Cruzan, 497 U.S. at 267-286.
[27] See 63 O.S. §§3102.4- 3102A.
[28] Id.; In re Barry, 445 So.2d 365, 371 (Fla. App. 1984) (In granting petition, court held that parents could make end of life decision for minor child, even without prior court order).
[29] Parham v. J.R., 442 U.S. 584, 602 (1990).
[30] Id. at 603.
[31] Id.
[32] Id. at 602-603.
[33] Id. at 603 (citations omitted).
[34] See, e.g., In re Drabick, 200 Cal. App. 3d 185, 198 (1988) (“Patients make their own treatment decisions with the advice of their physicians. Family members, and sometimes other persons, participate when the patients cannot. Courts, on the other hand, become involved only when . . . there are disagreements.”), cert. denied, 488 U.S. 958 (1988); accord In re Jobes, 529 A.2d at 451; see also 10A O.S. §1-3-102(C)(2) (court can make end of life decision for child in DHS custody).
[35] See, e.g., Baby F v. Okla. Cnty. Dist. Ct., 2015 OK 24, ¶21, 348 P.3d 1080, 1088.
[36] Glucksberg 521 U.S. at 710; accord 21 O.S. §§817-818; 63 O.S. §3141.3 (assisting a suicide or an attempt to do so is a crime); 12 O.S. § 1051, et seq. (civil remedy for wrongful death).
[37] See Mullaney v. Wilbur, 421 U.S. 684, 692 (1975) (generally only death in the course of enforcing the law, self-defense or defense of another, or accidental death are justified).
[38] See Edinburgh v. State, 1995 OK CR 16, ¶¶13-16, 896 P.2d 1176, 1179-1180.
[39] See United States v. Holmes, 26 F.Cas. 360 (E.D. Pa. 1842) (necessity of possibly dying of hunger did not excuse murder of fellow crew member); Wood v. State, 1971 OK CR 232, ¶9, 486 P.2d 750, 752 (heat of passion defense does not justify homicide; it only reduces murder to manslaughter); People v. Mehserle, 206 Cal. App. 4th 1125, 1155, 142 Cal. Rptr. 3d 423, 448 (2012) (police officer convicted for unlawful homicide due to excessive force); Valdes v. Crosby, 450 F.3d 1231, 1244 (11th Cir. 2006) (excessive use of force resulting in death is unlawful).
[40] See Glucksberg, 521 U.S. at 710-714; Cruzan, 497 U.S. at 296 (Scalia, J., concurring).
[41] See 63 O.S. §3101.8(A); see also Scott v. Bradford, 1979 OK 165, ¶9, 606 P.2d 554, 556.
[42] Cruzan, 496 U.S. at 279; Glucksberg, 521 U.S. at 723.
[43] See Cruzan, 496 U.S. at 273-274; 63 O.S. §3141.4 (A)&(B) (neither the withdrawal of lifesaving treatment nor dispensing medication to alleviate pain are crimes).
[44] See Glucksberg, 521 U.S. at 732-733 (citing various leading medical bodies’ ethical codes).
[45] See Compassion in Dying v. Wash., 79 F.3d 790, 840 (9th Cir. 1996) (Beezer, J., dissenting), overruled on other grounds, Glucksberg, 521 U.S. 702.
[46] Id at 858 (Kleinfield, J., dissenting).
[47] See id. at 840 (Beezer, J., dissenting); id. at 858 (Kleinfield, J., dissenting).
[48] Id. (Kleinfield, J., dissenting) (quoting Abrams v. U.S., 250 U.S. 616, 627 (Holmes, J., dissenting)).
[49] Neil Gorsuch, The Future of Assisted Suicide and Euthanasia 6 (Princeton Univ. Press 2006).
[50]See Siamese twins: the judgment, Sept. 22, 2000, BBC, http://news.bbc.co.uk/2/hi/health/937586.stm (last accessed July 23, 2019).
[51] See text accompanying note 36.
[52] See Edinburgh, 1995 OK CR 16, ¶¶13-16, 896 P.2d at 1179-1180.
[53] Heffernan v. City of Patterson, 136 S.Ct. 1412, 1418 (2016).
[54] See Glucksberg, 521 U.S. at 732-733 (various medical bodies’ ethical codes condemn affirmative and active steps to end a life as being inconsistent with the medical role of healer).
[55] Siamese twins: the judgment, supra at note 50.
[56] See 21 O.S. §§ 31-33; accord O.W.M. v. State, 1997 OK CR 49, ¶¶13-15, 946 P.3d 257, 261.
[57] See Kill May to Save Jodie?, supra at note 3.
[58] See 21 O.S. §§31-33; see also O.W.M., 1997 OK CR 49, ¶¶13-15, 946 P.3d at 261.
[59] Abrams, 250 U.S. at 627 (Holmes, J., dissenting) (emphasis added).
[60] 63 O.S. §§3141.4 (A)&(B).
[61] See 63 O.S. §§3102.4-3102A; see, e.g., Baby F, 2015 OK 24, ¶¶17-20, 348 P.3d at 1087-88.
[62] See, e.g., Siamese twins: the judgment, supra at note 50.
