The Conservative Assault on the Constitution by Erwin Chemerinsky

Author:Erwin Chemerinsky
Language: eng
Format: epub
Publisher: Simon & Schuster
Published: 2010-07-15T00:00:00+00:00

5.

The Erosion of Individual Liberties

Seventeen years ago, in the spring of 1993, my father was dying of terminal lung cancer. Near the end of his life, he was in the hospital, far too weak to get out of bed or even to shave. Except when sedated, he was fully conscious and completely rational. He understood that he was in the last days of his life and that he would never get out of that hospital bed.

I stood next to him as he asked a doctor to administer drugs to end his life. He cogently explained to the doctor that either he was awake and in great pain or he was drugged into unconsciousness. He told the doctor that it was his time to go and there was no point in prolonging his life a few more days. No one in my family objected to his choice.

The doctor brusquely said, “I can’t do that,” and quickly changed the subject. My father, though, was persistent and again asked the doctor to give him enough morphine to stop his breathing and end his suffering. The doctor said that the law did not allow that and that he would not discuss it further. The doctor then abruptly left the hospital room.

My father died four days after making that request. I will never understand what interest the state of Indiana, where he was hospitalized, had in keeping him alive for those few additional days. He was awake for ever shorter intervals and while awake he complained of great pain. The tumor had blocked blood circulation to his arm and the arm was grotesquely swollen. The doctor had suggesting amputating the arm, but my dad did not see any point in having an amputation since he was about to die. He told the doctor that at that stage it did not matter to him whether he died of gangrene spreading from the dead tissue in his arm or from the lung cancer.

I cannot approach the topic of assisted death without confronting the vivid image of my father pleading with a doctor to help end his suffering. Of all the topics of constitutional law, the issue of physician-assisted death is the hardest for me to teach. The prohibition of physician-assisted death affects those like my father who are not on life support and are physically too weak to commit suicide. Those on artificial life support can order it ended; the law is clear that competent adults have the right to refuse medical care, even lifesaving medical care. Those with the physical ability to do so can commit suicide, albeit with far greater trauma to their family and loved ones than ending life support. But a person like my father was left with no alternatives. Thankfully, he lingered for only a few days after his request; but there are many terminally ill patients who suffer for months because of the lack of a right to death with dignity.

Ironically, something so deeply personal came down to a matter of constitutional law.

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