The recent emergence of substantial empirical research in bioethics reveals gaps between “reality” and the normative principles that largely instruct American bioethics and the legal framework of health care. This Article examines how the debate over the appropriate source of legal and ethical norms in medicine has been played out in judicial decisions regarding the legalization of physician-assisted suicide.
The article begins with an analysis of the Ninth Circuit’s 1996 majority opinion in Compassion in Dying v. Washington, later reversed by the Supreme Court. In support of the legalization of physician-assisted suicide, the Ninth Circuit emphasized the role of empirical research and public opinion polls. The article also examines the results of SUPPORT, a large empirical study of the principles of bioethics in practice.
SUPPORT revealed a gap between physician behavior and the normative expectations of physicians, with researchers responding to the study with a call for increased empirical evidence to test the workability of patient choice in end-of-life care.
In response to this wave of “empiricalism” in bioethics, the article points out that what is not known is often made up. The Ninth Circuit’s perception of assisted suicide as beneficial is a value judgment and is unlikely to be resolved empirically. While empirical research could measure physicians’ behavior pre- and post-legalization, it cannot answer whether the behavior is more or less ethical. Further, empirical studies such as SUPPORT are unlikely to ever provide conclusive enough results to predict the direction and impact of change in bioethics.
The article also cautions not to ignore what is known. It is possible that, as the Ninth Circuit predicts, physicians will be able to better protect patients if assisted suicide is legalized. However, currently available evidence in the medical treatment of pain reveals a high incidence of pain neglect and non-compliance with patients’ treatment choices. It seems foolhardy to legalize assisted death on the basis of a fantasy of physician commitment to patient choice in health care.
Johnson, Sandra H., End-of-Life Decision Making: What We Don’t Know, We Make Up; What We Do Know, We Ignore (1998). Indiana Law Review, Vol. 31, p. 12, 1998.