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Studies in Law and Medicine

Death with Dignity and the ‘Living Will’: A Commentary on Legislative Developments

Americans United for Life published “Studies in Law and Medicine” in the 1970s and 1980s, spotlighting issues pertaining to the human right to life across the bioethics spectrum. As Americans United for Life celebrates our 50th anniversary, we are making these issues available for the first time since their print publication.

Death with Dignity and the ‘Living Will’: A Commentary on Legislative Developments by Dennis J. Horan and Thomas J. Marzen

By 1977 eight states had enacted legislation to assure “natural death,” “death with dignity” or the “right to die.” At least 59 other bills are pending in 42 states which purport to advance the same interests. The statutes so far enacted in California, Arkansas, North Carolina, New Mexico, Texas, Nevada, Idaho and Oregon do not allow “mercy killing”—they specifically forbid it thus reflecting a social consensus in opposition to any public policy that might, even by inference, demean the value of all born human life, even if senile or infirm. Generally, these statutes provide that the terminally ill patient may execute a legally enforceable directive or “will” which prohibits the patient from initiating or continuing heroic or extraordinary treatment under certain circumstances.  

The extent to which such “right to die” legislation in fact served the end it purports to further—the “dignified” or “natural” death—is open to serious question. The thesis of this article is that such legislation as currently exists in this sensitive area is counterproductive, confusing and inhibitory—that is obscures rather than solves the problem of a human and dignified death.  

“Living Will” legislation presents the attending physician with a welter of procedural guidelines, thresholds, timetables and qualifications before he may terminate extraordinary or useless care for the dying patient and be granted immunity. It does not guarantee that the choice of the patient will be followed, but merely shifts the ground upon which the decision of the attending physician must be made. There is an uncomfortable amount of room for error.  

Death is not ennobled by merely transferring decisions which encompass it to printed paper in a form determined by the state so the person might be dispatched in the matter of a used car. It is apparently imaged imagined that such legislation represents new maturity—heroic confrontation with the mysteries of death which, in the past, we have supposedly shunned in fear and anxiety or shrouded in euphemism, legend, and symbol. In fact, it simply adds a layer of burdensome procedure and legal fiction to the medical gadgetry and jargon which perhaps too often now attend the end of life.