CHAPTER 111 THE LIVING WILL: PASSPORT TO FATAL ABUSE
American Life League

We have 'Baby Does' now. It won't be long before we have 'Granny Does.'

                                                                Former Surgeon General C. Everett Koop.

Anti-Life Philosophy.

It is every person's right to control his or her own body. A natural and logical extension of this "right to choose" is the right to determine how one will be treated if one is incapable of voicing an opinion regarding one's own medical care.

Most people do not want to go on living as hopeless vegetables after they lose the capacity to make decisions. This prospect fills us with dread and is an unconscionable invasion of privacy. The "Living Will" fills the vital need of allowing individuals to specify what medical care is and is not desired after he or she is rendered incompetent.

What is a "Living Will?"

"Living Will" legislation goes by many names. It may be called "Death With Dignity," "Rights of the Terminally Ill," or "Patient's Rights" legislation. All of these names emphasize understanding and compassion.

The "Living Will" is defined by pro-euthanasia groups as a document by which a person can assert, in writing, a desire not to be kept alive by life-sustaining medical equipment and procedures when his or her condition has been diagnosed as terminal, or under certain other well-defined conditions.

Most "Living Wills" signed in this country today are form-type wills, but, as with any legal document, they can be custom-tailored to meet any actual or perceived need or wish, including;

• requesting or refusing artificial feeding tubes, antibiotics, dialysis,
   respirators, cardiopulmonary resuscitation, and other specified treatments;
• requesting pain medication;
• stating the desired place of death, including at home;
• designating a proxy to make health care decisions when the individual is
   incapable of doing so; and
• requesting designation as an organ donor.

Is A "Living Will" Necessary?

Some persons believe that the "Living Will" is necessary in order to clarify a patient's legitimate right to refuse extraordinary medical treatment. However, this is a right that all patients already possess. Public support for such pro-"Living Will" legislation is primarily due to the fact that a very small minority of doctors resist even morally appropriate requests for the withdrawal of treatment.

"Living Wills" are generally unnecessary under present law, because there is nothing to prevent doctors from withholding or withdrawing life-sustaining medical treatment when all reasonable hope for recovery is gone. Patients already have the right to give their doctors and family instructions on how they want to be treated in the event of a terminal illness or grave injury, particularly when they are in no condition to decide for themselves.

Who Backs the "Living Wills?"

Most "Living Will" proposals have been written and promoted by the following organizations. The membership of this list alone should sound alarm bells for those dedicated to protecting human life;

• The Society for the Right to Die, which shed its non-progressive title
   "Euthanasia Society of America" in 1975;
• Americans Against Human Suffering (AAHS);
• Concern for Dying (formerly the Euthanasia Educational Council), which
   split from the Society for the Right to Die in 1979;
• the National Hemlock Society, which lobbies for direct euthanasia, and
   which publishes a "cookbook," or "how-to" manual on suicide; and, not
   surprisingly,
• the American Civil Liberties Union (ACLU).

In fact, the original concept of the "Living Will" originated with these pro-euthanasia groups. The "Living Will" is seen as a publicly-acceptable way to introduce the agenda of legalized active euthanasia, suicide, and assisted suicide.

Notice that none of these organizations uses the term "euthanasia" in their titles (they prefer the euphemisms "right to die," "death with dignity," and "mercy killing"). Note also that all of these groups operate primarily in California, Arizona, and Florida, all states with large elderly and retired populations.

Just the First Step ...

The Three-Step Strategy.

Pro-euthanasia activists consider the "Living Will" just the first step on the road to active, involuntary euthanasia of those considered to be useless to society. They know full well that if they can get society to make this first critical step, all of the other steps no matter how many there are will be much easier.

Subsequent steps are always easier. The first step down the slippery slope is the hardest, but, once a society's downward plunge gathers momentum, it will find itself moving so quickly that it is difficult to stop or turn back.

As Derek Humphry, the Director of the Hemlock Society, said in a December 18, 1986 interview; "We have to go stage by stage, with the living will, with the power of attorney, with the withdrawal of this; we have to go stage by stage. Your side would call that the 'slippery slope'... We would say, proceed with caution; learning as we go along how to handle this very sensitive situation."[1] The headline of an August 16, 1985 USA Today article which was a compendium of interviews with pro-euthanasiasts said it all: "Living Wills 1st Step, Euthanasia Group Says."

The "Living Will" is only the first of three major steps in the pro-euthanasia strategy. The second is passive euthanasia (assisted suicide). In such an action, the doctor prescribes a lethal dose of medication at the request of the patient, or he discusses how a hypothetical patient, using hypothetical means (of course) can kill himself.

Dr. Jack ("The Dripper") Kevorkian is now making this second step a reality. As of March 1993, the retired Michigan pathologist had assisted in the suicides of fifteen people, and had made it perfectly clear that he wanted to set up a chain of euthanasia clinics across the country, as described in Chapter 109, "History of Euthanasia."

The third and final step in the strategy is direct euthanasia, where the patient or his "attorney-in-fact" requests that the patient be injected with a combination of barbiturates and paralyzing drugs. This type of direct killing was proposed in the "Oregon Death With Dignity Act" and Washington State's Initiative 119, which failed by popular vote in November of 1990.

Example Expansion.

This three-step strategy for direct euthanasia was demonstrated vividly after California passed its "Natural Death Act" in 1983. Within just the first year after its passage, seven amendments were made to this Act, each of which substantially expanded its original intent. The Hemlock Society supported a proposed bill that would have allowed doctors to give their patients lethal injections in other words, direct euthanasia.

The Future of the "Living Will."

As with the other aspects of euthanasia, we need only to look to Holland for a vivid picture of the future of the "Living Will" and its natural successors.

Dutch cardiologist Dr. Richard Fenigsen recently described the ultimate evolution of the "Living Will" in Holland.

More than 40 percent of all Dutch physicians have admitted to killing one or more of their patients against their wills. In light of this fact, most Dutch, especially the elderly, are extremely afraid of doctors and, even more so, of hospitals.[2]

The number of nursing homes in Holland has decreased by more than 80 percent in the last 20 years, and the life expectancy of the few elderly who remain in such homes is becoming shorter all the time. In some cases, the life span of healthy elderly who enter Dutch nursing homes can be measures in hours.

Many Dutch citizens, therefore, are now carrying a defensive document entitled the "Declaration of a Will To Live," which states that they do not want to be euthanized without their knowledge. This document was originated by the appropriately-named Sanctuary Society.

Predictably, these Declarations carry very little weight with the same doctors who introduced the equivalent of the so-called "Living Wills" in Holland. As always, what matters is not what the patient desires, but what the physicians see as beneficial to the medical profession and to society at large.

As Dr. Fenigsen noted, "The burden of justifying his existence is now placed upon the patient."[2]

What Are the Dangers of the "Living Will?"

No Reliable Oracles.

The primary danger of the "Living Will" lies in the fact that it is usually signed long before the person knows when he or she will be incapacitated or what the circumstances of that incapacitation will be. This means that the specific treatment (or lack thereof) for the future condition cannot be specified.

Presumably, one can revoke a "Living Will" at any time by making a verbal or written statement to a physician, nurse, or other health care worker. This, of course, is contingent upon the individual's condition at the time he wishes to change his mind. If he should experience a change of heart after he is incapable of communicating, he is out of luck. Also, if the presiding health care professional feels that the patient's wishes are the result of trauma or some other cause, they can be totally disregarded.

If a "Living Will" has been signed, it is probably legally binding under the current conditions in the American judicial system. It would therefore be difficult or impossible for a family doctor to make the decisions which could be in the patient's best interests.

This set of conditions makes it virtually impossible for the signer of a "Living Will" to define precisely that treatment that he wants or does not want.

Specific Problems.

An example "Living Will" is shown below in bold type. The [bracketed and italicized sections] highly the extreme vagueness of the so-called "Model Living Will" that is being proposed for general usage in every state by pro-euthanasia groups.

INTRODUCTORY TEXT OF A TYPICAL 'LIVING WILL'

If I should have an incurable or irreversible condition [does this include asthma, diabetes, cerebral palsy, heart conditions, AIDS?] that will cause my death within a relatively short time, [this could be hours or weeks or even months] and if I am no longer able to make decisions [what if the person is affected by medication or allergies? What if he is temporarily disoriented or depressed? Or senile?] regarding any medical treatment, I direct my attending physician [family doctor? Friend? Attorney-in-fact? What about a doctor in a strange city who knows nothing about you?] to withhold or withdraw treatment [what about respirators or chemotherapy? How about insulin, nitroglycerin, blood pressure medicine, oxygen, antibiotics, even food and water?] that only prolongs the dying process and is not necessary to my comfort or to alleviate pain [if you are transitorily comatose or drugged, what degree of pain is being specified here?].

Reference. "Living Wills." Pamphlet by Mary C. Senander, Human Life Alliance of Minnesota, Inc., Post Office Box 293, Minneapolis, Minnesota 55440. 1986.

A person may feel justified and secure in signing a "Living Will," but, even if the document were medically and legally secure in every way at the time of its signing, there is no way of knowing how the definitions and rules will change as the pro-euthanasia groups lobby and push for more favorable (for them) conditions.

Take as an example the most common "form" "Living Will," which has been signed by millions; "If I am permanently unconscious or there is no reasonable expectation of my recovery from a seriously incapacitating or lethal illness or condition, I do not wish to be kept alive by artificial means."

Ten years ago, "artificial means" would have meant truly extraordinary or "heroic" medical or surgical procedures. Now, in some states, respirators, codes, kidney dialysis, and even food and water are defined as "artificial!" In other words, a person might sign a 'Living Will' in a state where food and water are standard treatment, and then travel to a state where they are defined as "extraordinary treatment," and become incapacitated. Or else, the courts or legislator in his home state may quietly define food and water as "extraordinary treatment," and he will not be aware of the fact.

What happens then?

Terms whose definitions are constantly shifting or are difficult to define are the heart of the "Living Will's" problems. Figure 111-1 lists the ten primary objections to current "Living Wills."

FIGURE 111-1
THE TEN BASIC LOGICAL OBJECTIONS TO THE "LIVING WILL"

(1) The "Living Will" is unnecessary because everyone already has the right to make informed consent decisions about their own medical treatment.

(2) The "Living Will" is unnecessary because doctors are already free to withhold or withdraw useless procedures that provide no comfort or profit to terminal patients.

(3) The "Living Will" is unworkable because it is theoretically impossible to make well-informed and logical decisions regarding health care before illness or accidents happen. Nobody even knows how they will react if they are incapacitated.

(4) "Living Will" language appears to be precise, but in reality it is extremely vague, and can be interpreted in an almost unlimited number of ways, many contrary to the actual intent of the signer.

(5) The "Living Will" is counterproductive because doctors are currently protected from malpractice suits to a certain degree when dealing with terminal cases. However, the addition of a relatively random legal element such as the "Living Will" greatly increases the possibility of malpractice claims by surviving relatives due to the extremely vague language of the "Living Will." Physicians are in the midst of an acute malpractice crisis. A doctor may take the safest course of action for himself and withhold treatment that would preserve the life of the patient in cases where there is some question brought on by the vagueness of the "Living Will" language. In other words dead patients don't sue!

(6) The "Living Will" is counterproductive because it may restrict physicians and relatives from making health care decisions that are truly in the best interests of the incapacitated signer.

(7) The definitions contained in a "Living Will" are constantly changing. For example, the term "heroic treatment" may soon evolve to include food and water. Therefore, a person signing a "Living Will" now may have unintentionally signed his own death warrant by starvation and thirst if he does not carefully keep up with legislation in the area of health care decisions. And it is a safe bet to say that 99 percent of "Living Will" signers do not do this.

(8) Legally binding fill-in-the-blank "Living Wills" do not make age distinctions. A person who might refuse a certain life-sustaining measure if he were dying of brain cancer at age 85 may not refuse the same treatment if he were the victim of a car accident at age 25. The "Living Will" makes no distinctions in this matter.

(9) The "Living Will" is dangerous because it does not completely define the complex term "competency." Therefore, a person who decides to contradict one or more of the specifications in his own "Living Will" might be refused because he is ruled technically "incompetent."

(10) The "Living Will" is dangerous because there is a heavy push on for cost containment and socialized or nationalized health care. The widespread use of "Living Wills" will insure that the balance tips towards undertreating patients, which has killed a thousand times as many people as overtreating them.

Emergency Room Intruder.

If "Living Wills" become popular, their existence will vastly complicate hospital decisionmaking. How would a doctor treat a patient who has not signed a "Living Will?" Would he expend every effort possible to save the patient? Or no effort at all, in the belief that the person wanted no treatment whatever? If a significant percentage of the population had signed "Living Wills," would it be assumed that every possible effort should be expended to save all emergency room patients? How can the physician be certain that a person has or has not signed a "Living Will?"

Perhaps uppermost in the physician's mind is the fact that failure to comply with a legally binding "Living Will" would make him liable for damages. What would he do if confronted with an emergency situation where the status of the patient's "Living Will" were unknown? Would he proceed with treatment that might be against the patient's wishes? What would he do if the "Living Will" specified some action or lack of action that conflicted with his religious beliefs, or with hospital regulations? What if a custom-written "Living Will" featured particularly bizarre or dangerous specifications based on personal beliefs?

The personal beliefs of doctors, of course, carry little weight in the legal system. This will inevitably lead to physicians being forced to choose between their consciences and their jobs and security. Doctors will be forced to choose death over life.

In fact, some states now require that a doctor not only try, but actually find another physician willing to kill the patient, under pain of severe penalties in some cases, even jail terms.

The Current Status of "Living Will" Legislation.

As of the end of 1990, 38 states and the District of Columbia have "Living Will" statutes. The status of this legislation, and the protections offered or withheld, is summarized in Figure 111-2.

FIGURE 111-2
STATUS OF THE 'LIVING WILL' AS OF DECEMBER 1990

Alabama (1981) [3]                       Mississippi (1984) [3]
Alaska (1986) [4]                          Missouri (1985) [1]
Arkansas (1987) [3]                      Montana (1985) [1]
Arizona (1985) [1,5]                      Nevada (1977) [3]
California (1976) [2]                      New Hampshire (1985) [1]
Colorado (1985) [1,5]                   New Mexico (1977) [2,5]
Connecticut (1985) [1]                   North Carolina (1983) [3,5]
Delaware (1982) [3]                      Oklahoma (1985) [1]
District of Columbia (1982) [2,5]   Oregon (1977) [1,5]
Florida (1984) [1]                          South Carolina (1987) [1]
Georgia (1984) [1]                         Tennessee (1985) [1,5]
Hawaii (1986) [1]                          Texas (1977) [2]
Idaho (1977) [1]                            Utah (1985) [1]
Illinois (1983) [1]                           Vermont (1982) [2,5]
Indiana (1985) [1]                         Virginia (1983) [2,5]
Iowa (1985) [1]                            Washington (1979) [2]
Kansas (1979) [2]                         West Virginia (1984) [2,5]
Louisiana (1984) [2,5]                   Wisconsin (1984) [1]
Maine (1985) [1,5]                        Wyoming (1984) [1]
Maryland (1985) [1]

Notes.

[1] These states exclude nutrition and hydration from the definition of "life-sustaining procedures" that may be included or excluded by the patient's "Living Will."

[2] These states do not specifically mention the status of nutrition and hydration in their "Living Wills," because most of their laws were enacted before 1984, when nutrition and hydration were considered separate from medical treatment. Eleven of these states and the District of Columbia, although silent on the matter of nutrition and hydration, offer some protection due to rigid definitions of the terms "imminent death," "terminal condition," and "life-sustaining procedures."

[3] States that have passed "Living Will" legislation that is silent on the status of nutrition and hydration and offer no real protection due to their loose definitions of "imminent death," "terminal condition," and "life-sustaining procedures."

[4] In 1986, Alaska passed legislation which includes nutrition and hydration in its definition of life-sustaining treatment that may be withdrawn. This is the most liberal and frightening "Living Will" statute on the books. Significantly, it is considered the most ideal existing "Living Will" by "Right to Die" groups.

[5] In accordance with the Supreme Court abortion decision Roe v. Wade, these states allow "Living Wills" for pregnant women. This means that a woman may be euthanized even if her baby is full-term. Even those states that do not allow the killing of a pregnant woman have endured strong challenges from those who believe that she should be allowed to not only commit suicide, but murder-suicide.

References. "Living Wills." Human Life News (publication of the Washington State National Right to Life affiliate), November/December 1988, page 2. Also see "Guide to the Living Will." Hippocrates Magazine, May/June 1988, page 60. Also see Society for the Right to Die. Handbook of Living Will Laws, 1981-1984, Handbook of 1985 Living Will Laws, and annual updates.


References: The "Living Will."

[1] Derek Humphry, quoted in Leslie Bond. "Hemlock Society Forms New Organization to Push Assisted Suicide Initiative." National Right to Life News, December 18, 1986, pages 1 and 10.

[2] Presentation by Dutch cardiologist Richard Fenigsen, M.D., Ph.D., at Seattle University on November 2, 1990. Described in "Holland Euthanasia Experience Described." Human Life News (Washington State). November/December 1990, page 6.


Further Reading: The "Living Will."

Paul A. Bryne, M.D. Understanding Brain Death.
Order from American Life League, Post Office Box 2250, Stafford, Virginia 22554. Is "brain death" really the death of the person? This booklet examines this critical question.

Father Robert Barry, O.P. Protecting the Medically Dependent: Social Challenge and Ethical Imperative.
Order from American Life League, Post Office Box 2250, Stafford, Virginia 22554. How to construct, ethically and legislatively, a proper plan of protection for the seriously ill.

A.R. Saqueton, M.D. In Defense of Life.
ARS Publishing Company, Post Office Box 6444, Stockton, California 95206. 232 pages, 1981. Reviewed by Felicia Goeken on page 9 of the May 10, 1982 issue of National Right to Life News and page 11 of the July 8, 1982 issue of the same publication. Also reviewed by Robert L. Sassone on page 20 of the May 1982 issue of ALL About Issues. One of the most valuable references available on "right to die" legislation. The 'Right to Die,' Living Wills, terminal conditions, and many other aspects of euthanasia are covered in this primer-type work.

Society for the Right to Die. Refusal of Treatment Legislation: A State By State Compilation of Enacted and Model Statutes.
Society for the Right to Die, 250 West 57th Street, New York, New York 10107, telephone: (212) 246-6973. This ring binder includes the full text of every living will and durable power of attorney statute in the United States, the model statute entitled the Uniform Rights of the Terminally Ill Act, and summaries and highlights of the significant features of all of these documents.


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This is a chapter of the Pro-Life Activist’s Encyclopedia published by American Life League.


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