Robin Marantz Henig


"Death With Dignity" in the Courtroom

When a bioethicist testifies in such cases, her personal story becomes relevant

Posted Sep 27, 2013

In the past few years, terminally ill patients in Canada and Europe have gone to court seeking help with dying. Peggy Battin, the bioethicist I wrote about last summer in an article about end-of-life decision-making, testified at a few of these trials. She went to Vancouver in late 2011 to testify on behalf of Gloria Taylor, a woman with ALS who wanted help ending her life. She presented testimony by Skype in 2012 in the case of Marie Fleming, an Irish woman with multiple sclerosis who was making the same request. The plaintiffs both looked a lot like Peggy's husband Brooke Hopkins, who was paralyzed from the neck down in a bicycle accident in 2008: they were, like Brooke, cognitively intact with progressively more useless bodies. But there was a crucial difference between the plaintiffs and Brooke: they expressed the conviction that they wanted to die, whereas Brooke, during his nearly five years of quadriplegia, generally expressed the conviction that he wanted to live.

Opponents in such right-to-die cases often make a "slippery slope" argument, saying that helping the terminally ill end their lives today will lead eventually to pressure on vulnerable people—the elderly, the poor, the chronically disabled, the mentally ill—to end their lives just to ease the burden on the rest of us. Peggy doesn't buy it. The scholarly work she's proudest of is a study she conducted in 2007, one of the first to look empirically at whether people were being coerced into choosing physician-assisted suicide against their will. Peggy was reassured when she and her colleagues found that in Oregon and the Netherlands, the two places they studied, the vulnerable groups everyone was worried about were actually less likely to die by assisted suicide.

During Peggy's cross-examination in the Vancouver trial, the Canadian government's attorney tried to argue that Brooke's choice to keep living weakened Peggy's argument in favor of assisted suicide. Isn't it true, the attorney asked, that "this accident presented some pretty profoundly serious challenges to your thinking on the subject?"

Yes, Peggy said, but only by provoking the "concerted re-re-rethinking" that any self-respecting philosopher engages in. She said she remained committed to two moral constructs in end-of-life decision-making: autonomy and mercy. "Only where both are operating—that is, where the patient wants to die and dying is the only acceptable way to the patient to avoid pain and suffering—is there a basis for physician-assisted dying," she told the court. "Neither principle is sufficient in and of itself and, in tandem, the two principles operate as safeguards against abuse."

Peggy still discounted the slippery slope, she said, but Brooke's quadriplegia made her more aware than ever of the possibility of a different kind of coercion—not from a greedy relative or a cost-conscious state, but from a much-loved wife or husband whose very presence undercuts notion of true autonomy. We are social beings, and only the unluckiest of us live in a vacuum; for most, there are always at least a few people who count on us, adore us, and have a stake in what we decide. No one's interest is pure self-interest; everyone's autonomy butts up against someone else's.

Gloria Taylor won her case but later died of an infection, and a decision that was upheld last summer after the Canadian government filed an appeal. Marie Fleming lost her case early this year and brought her own appeal to the Irish Supreme Court, which ruled against her at the end of April. And in the U.S., the governor of Vermont signed a law last spring making it the third state, after Oregon and Washington, to legalize physician-assisted suicide.

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