2. But say the government says that it has a compelling government interest in preventing people from being pressured into giving up their lives, and that a total ban on assisted suicide is the least restrictive means of preventing such pressure. The unfortunate fact, the government argues, is that assisted suicide can often be in the interest of the dying person’s relatives. A person’s terminal illness can take a tremendous emotional toll on his loved ones, who have the grief of watching their relative die added to the inevitable grief that would follow his death. It can take up a lot of their time. It can take up their money, if they are paying for the person’s care (which is especially common for spouses). And even if the dying person is paying for his health care out of his own pocket, this expense depletes the estate that the person will leave to his relatives.
Of course, for many relatives all this will be outweighed by the value of having the dying person around as long as possible, even if the dying person is incapacitated or even unable to communicate. But it’s quite clear that some fraction of the relatives — and even if it’s a small fraction, it can number in the millions — would prefer that the dying person die quickly and cheaply. And this is especially so given the human capacity to rationalize: People who find that a relative’s assisted suicide will be in their interests can quickly persuade themselves that it would be in the relative’s interest, too.
Once assisted suicide stops being a crime and becomes a choice, some family members may start pressuring their dying relatives to commit assisted suicide; and this pressure is made easier by the fact that for many dying people, the constant support and affection of their relatives — and the assurance that their relatives want them to live as long as possible — is their only reason to keep living. Pressuring a healthy person to commit suicide is very hard, and usually requires physical coercion, since healthy people generally have a lot to live for. Pressuring a dying person can be much easier, especially if the family can put on a relatively united front.
Sometimes the pressure can be overt: nagging the dying person, telling him how selfish he is for not choosing assisted suicide, and threatening to cut off contact if he doesn’t make plans for committing suicide some time in the near future. Presumably only the cruelest people will do this, but there are some such. But it can also be subtler: suggesting assisted suicide as a means of avoiding pain or indignity, occasionally talking about how hard a lingering death can be on the family (especially on, say, young grandchildren, rather than the complainer himself), hinting about the financial problems that the disease is causing the family, and becoming more and more reluctant to spend time with the dying person.
What’s worse, this subtle pressure can happen even while the relatives are denying to themselves that they actually want the person to die. Even some otherwise decent people, suffering from the strain of a loved one’s terminal illness, can find themselves doing this, especially if they are resentful of what they start to see as the dying person’s selfishness.
If assisted suicide were not a legal option, the dying person might have continued living, and might even have enjoyed his family’s affections: When people know that they have no choice but to endure emotional or financial problems, such as those caused by a relative’s death, they often do the best they can. But once assisted suicide becomes just another choice, those same families might subtly or overtly threaten to withdraw their affections, and the ill person may find life no longer worth living.
One possible response is that there can always be safeguards that verify that the choice to commit assisted suicide is really voluntary and without pressure. But what would the safeguards be? Medical examinations are unhelpful: Doctors can tell whether a person is terminally ill or in serious pain, but not whether his family is nagging him into killing himself. Examinations by psychiatrists and social workers may also not work: Presumably if a person has decided on assisted suicide, even as a result of family pressure, he won’t frustrate this plan by admitting everything to the psychiatrist.
Moreover, it’s not even clear exactly what the psychiatrist would be looking for. The line between impermissible pressure and mere insensitivity, nagging, selfishness, frustration, despair, or grief is very hard to draw. Maybe a psychiatrist may catch the cases where the family overtly said “Promise to commit assisted suicide within a month, or else we will just completely stop talking to you,” but even this is hard to do, and subtler pressure may be even harder to clearly identify.
Finally, outlawing the pressure is, for a similar reason, just not an option. It’s hard to see how one can criminalize withholding one’s affection, berating a dying person for his perceived selfishness, or trying to persuade someone (even for the most selfish of reasons) to exercise their constitutional right. Perhaps there might be less restrictive means, the government would argue, of preventing undue pressure from doctors or from health-care funders, because that pressure is more likely to manifest itself in tangible demands (though maybe not). But there aren’t any means, short of a total ban on assisted suicide, for effectively preventing family members’ subtle psychological and emotional pressure that would lead people who would rather live (if assisted suicide weren’t an option) into choosing death.
What are courts to make of that argument? Is there a compelling interest in preventing such emotionally or psychologically pressured choices (even if not forcibly coerced choices) in favor of suicide? Does this interest, and the government’s theory about how there are no less restrictive means of serving the interest, justify the intrusion on religious objectors’ religious freedom (assuming, again, that we’re in a state that protects the presumptive freedom to act according to one’s religion, unless the government’s banning the action is the least restrictive means of serving a compelling government interest)?
A complicated question, which I expect that courts might well be turning to soon, especially given the extra publicity and credibility given to religious objection claims by recent cases such as Hobby Lobby.
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