When is the Suffering too Much?

​At his 2017 Senate hearing to become a Supreme Court Justice, Neil Gorsuch was questioned by Sen. Dianne Feinstein (D-California) regarding physician assisted death (PAD). Feinstein and Gorsuch each articulated their position on this contentious issue, serving as a microcosm for our nation’s larger debate. Should doctors be allowed to prescribe end-of-life medication to terminally ill patients to ease their suffering?

In 1994, Oregon became the first state in our country to legalize PAD by passing the Death with Dignity Act. Since then, eight states and the District of Columbia have similar laws. Generally speaking, states require patients to have a terminal illness and have less than six months to live to be prescribed end-of-life medication.

Given the sensitive nature of this topic, people have strong feelings on either side. Opponents contend that a doctor’s prognosis is not a certainty and that these laws could lead to insurance companies weighing in on end of life matters. Additionally, the patients in question might be suffering from psychological distress.

Proponents of PAD advocate that people shouldn’t be forced to physically suffer and should have the right to choose to end terminal pain on their terms. Advocates say that with only a few months left to live nobody should be forced to needlessly suffer.

Data from around the country suggests that states which allow PAD have not been used in great numbers because this practice contributes to significantly less than a percentage point of deaths. Furthermore, Hawaii’s PAD law and a proposed PAD law in Massachusetts have a mental health consultation component. Plus, patients requesting PAD must be able to understand the nature of their decision to be given end-of-life medication.

Kaiser Health News reported about Charlie and Francie Emerick, married for 66 years, who each had terminal illness and availed themselves of Oregon’s Death with Dignity law. Charlie suffered from prostate cancer and Parkinson’s disease and Francie from a weakened heart after numerous heart attacks and cancer. “You keep going, Charlie, you’re going to get worse and worse and worse,” Charlie explained about his decision, “The other can’t be worse than this.” Before being prescribed end-of-life medication, Charlie and Francie both attested to their intentions and were examined by two different doctors who concluded they had less than six months to live. Ultimately, they decided they wanted to say goodbye on their own terms. Their story was recorded as a documentary to show how the process is carried out so people would understand more about PAD.

Traditionally, there is a widely held belief that PAD breaks with Jewish law, though there is a debate in the Jewish community about whether the issue should be revisited. Last year New Jersey legalized PAD, causing a debate among rabbis about whether to support the legislation. Rabbi Mark Mallach argued that the prevailing view in the conservative Jewish movement surrounding PAD should be reconsidered and told the New Jersey Jewish News (NJJN), “Jewish law has always been organic, responding to the needs of society in every generation,” and said, “Jewish law is not frozen.” However, Rabbi Elie Mischel took a different approach telling the NJJN, “Actively speeding one’s death is clearly forbidden under Jewish law (for both Jews and gentiles), and it is a rejection of the sanctity of every moment of life.” He also said, “Though we are not obligated to do everything humanly possible to prolong someone’s life (e.g., a very ill patient has the right to forgo a risky and painful surgery that has little chance to succeed), actively taking one’s own life is never permissible.”

As more states in our country debate PAD legislation, I expect these discussions to continue as people examine where they stand on this issue. Whichever side people come down on, I suspect this matter will generate intense debate in our national discourse.

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Evan Carmen, Esq. is the Legislative Director for Aging Policy at the B’nai B’rith International Center for Senior Services. He holds a B.A. from American University in political science and a J.D. from New York Law School.  Prior to joining B’nai B’rith International he worked in the Office of Presidential Correspondence for the Obama White House, practiced as an attorney at Covington and Burling, LLP, worked as an aide for New York City Council Member Tony Avella and interned for Congressman Gary Ackerman’s office. Click here to read more from Evan Carmen.

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