THE RIGHT TO DIE WITH DIGNITY
By: Lenore S. Davis, Esq., LLM
Thirty years ago, as I commuted on the LIRR, I was a daily Wall Street Journal reader. I remember long ao, an op-ed on euthanasia, the right to determine when and how one wants to die. The premise was that a horse that is in pain has greater rights to die, than humans who do not have the right to die when they are in pain. Clearly, the article stuck with me.
I’ve been an tax/estate/elder law attorney for almost thirty years, and I have seen clients endure much. I’ve become an elder law professor teaching the legal history of the right to die in America. The punchline is, that there Is no legal right to die in America.
The U.S. Constitution discusses each person’s fundamental rights. Those rights have changed, some say evolved, over centuries. For instance, there was no fundamental right for women and slaves to vote…until it did become a fundamental right. On one foot, this evolution of fundamental rights starts on the local level until it builds momentum. The local municipalities are pushed by their residents for rights, those rights then kicked up to the States, which determine whether their residents push for certain fundamental rights, until the majority of States in the United States have determined that these are rights which are fundamental to their residents, and then comes pressure via the United States Supreme Court to determine whether it is a fundamental right guaranteed to all citizens of the United States, e.g., recent decisions granting homosexuals the right to marry.
Why am I thinking about this issue at the moment? I want to share a story with you it comes from a new client of mine who lost his mother recently. His mother was 87 years old and living on her own in the five towns. Every day that it was sunny, she would set up chairs on her porch and her neighbors would join her in the afternoon for an hour and a half drinking tea and sharing their day. Every morning one of the neighbors on his way to work would pick up her newspaper from her lawn and put it through her mail slot and that same neighbor every Saturday would do her grocery shopping for her. Then one day last week it was a beautiful afternoon and this woman wasn’t outside and she hadn’t set up the chairs. Her neighbors worried. One of them had a key and they walked into her home and found her dead in her bed having never woken up that morning They said she looked peaceful and happy. The neighbors called her family to let them know and this is probably the first time in 30 years that I am practicing law and I’ve had clients come to me during the first week after a loss and really be at peace. She died after recently celebrating Mother’s Day and her birth day. A peaceful death.
As I update my class for the coming semester, I am always interested in new stories about people who make the news, who want to end their lives on their own terms. Just a few days ago, a 104 year old Australian scientist, David Goodall, was forced to fly to Basel Switzerland, to end his life. He had determined that his quality of life is not what he wanted anymore. He does not have terminal illness, nor is he in pain, he has just determined that since he can no longer work, nor enjoy life in meaningful ways, he wanted to end it. Why does end of life have to contain so much drama.
Six states permit physician assisted suicide: California, Colorado, Oregon, Washington State, Vermont and Hawaii. Their legislation has in place safeguards such as screening by psychiatrists to ensure that it is voluntary and not as a result of mental illness, counseling and some waiting periods.
Clearly, this article does not consider religious considerations. It is the legal history of the right to informed consent and control over one’s life/health/death decisions.
Lenore has been practicing Wills/Probate, Trust and Estate/Elder law for 25 years. She has her LLM masters in Taxation, and has offices in New York and New Jersey. You can contact her via telephone at (516)569-4671 or by email at Ldavis@lenoredavis.com.