Of Dying
Photo by Ankhesenamun on Unsplash Content warning: This article includes specific details about an act of suicide that may be difficult for some readers.
For L.E. Would that we were still riding across the Plains of Abraham
For the last couple of years, I have found myself, now and again, thinking about a single large question: Should the law limit our ability to show mercy to those we love?
Let me tell you two stories. You will understand then why this question is on my mind.
My father died in June of 2020. He was in his mid-eighties. His heart was weak, his lungs cancerous, his body septic. As a general practitioner and pulmonologist for nearly sixty years, he knew what lay ahead. What the next weeks or months would bring. He could wait for it, increasingly struggle to breathe, to walk, perhaps ultimately enter hospice, or he could forgo those joys and end his life. Dad preferred death to a grimly attenuated existence. So, in a foster care home, he self-administered the provided elixir, then quietly shared pleasant memories with my sisters until he fell asleep.1
A month later, my elder sister killed herself. She may have been inspired by my father. She was fifty-one years old, had been diagnosed with breast cancer at the age of forty-four, had had chemotherapy, a mastectomy, reconstructive surgery, and could no longer tolerate the pain she was in due to the side effects of the drug prescribed by her oncologist to reduce the chance of remission.
Years had already passed since she had been able to enjoy the pleasures she found in living. Skiing. Mountain biking. Kite surfing. Often with her two young daughters. Flirting. Laughing. Reading history. Dancing. For the last two years, she had been barely able to sit. She could go for gentle walks or lie down. Going out with friends felt impossible. How would she answer the obvious, “How are you?” without becoming a black cloud at the party? Sex was out of the question. She was on disability. She felt that she could barely parent. Barely work. America’s top pain specialists could not help her. Nor could practitioners of more esoteric methods. An unrelenting, stabbing, violent pain engulfed her, had taken over her identity, and she had no reason to believe that her life would change.
Late one evening, while her elder daughter slept down the hall, she placed a note outside the door of her master bedroom, went inside, locked the door, sat down in a chair in the middle of the room, put a plastic bag over her head, inserted a tube, taped the bag around her neck, and then released the valve to a tank of helium.2 My mother tried to reach her the next day. Sent her texts. Called. Time passed. Then more time with no response. She called again, finally rousing the daughter, who found the note outside the master bedroom, which told her to stay in her room and to call her dad. He drove over, kicked in the master bedroom door. I got a call from my still-living sister. She was sobbing and could barely speak.
Please note how these stories differ. My father died peacefully. My sister, violently. He died in familiar company. She, alone. In his final hours, he could be reminded of the best moments in his life. Before she closed her eyes, she saw the familiar walls of her bedroom through the film of a plastic bag. Perhaps she could hear the gas.
For me, these differences raise troubling questions: Is it right that my father could legally enjoy the privilege of death with dignity, of comfort and companionship in his final moments, but not my sister? Why should the law treat those who would support my father’s wishes as innocent, those who would my sister’s as criminal? Again and most saliently, should the law limit our ability to show mercy to those we love?
The intuition is straightforward. Imagine the circumstances under which you would prefer to die than to live. Most of us have our menu, our list of conditions. Our notion of what makes life worth living.
Now, imagine that those circumstances have overtaken you. You are no longer conjecturing. You are in the very circumstances you imagined. You can no longer put sentences together. You do not know the names of your own children. Your insides are collapsing from disease. You are simultaneously multiple people. You have no limbs. The bones in your body feel like they are being crushed. You cannot live except as a toddler, depending on others to shower, wipe, and feed you.
Under these circumstances, should you not have the right to die? Should something external to yourself – a local, state, or national government – be able to deprive you of that right?
Were I in my father’s shoes, near the end of my thread, and in a State that prohibits death with dignity, I would have five options from which to choose:
1. Accept the State’s laws and endure the suffering.
2. Kill myself in secret.
3. Defy the State’s laws and thus expose friends and family to punishment for the crime of facilitating my death.
4. Travel with family and friends to a State where this privilege is protected.
5. Or, if money allowed, retreat with family and friends to a country that offers the privilege of death with dignity without prejudice to national origin.
Were I in my sister’s shoes, the list would be shorter.
There is no State in the United States that would have recognized my sister’s desire to die with dignity. Consequently, none where she could have died peacefully among family and friends without making them outlaws.
In death, no light burned in her native home. No door welcomed her.
I find it helpful to put my sister’s circumstances in context, to see the decision-path that was closed to her as a product of America’s intellectual history, of its “culture wars,” if you like. From the arrival of our first antecedents to these shores, we have been embroiled by questions of rights and of quality of life. On occasion, we have struck a fair balance between the two; on others we have fidgeted, placed our thumb on the scale, protected rights at the expense of other people’s quality of life.
Consider slavery. In 1865, the United States abolished it. That action curtailed the rights of some (those who had previously owned slaves) while improving the quality of life of others (those who had previously been slaves). Or women’s suffrage. In 1920, women were granted the right to vote. Again, that action curtailed the rights of some (men no longer possessed the right to a political monopoly) while improving the quality of life of others (women gained influence over the policies by which they would be impacted).
It is not difficult to find other examples in America’s legislative history that similarly display a successful balancing between the rights of one party and the quality of life of another.3 Yet these two, I believe, adequately illustrate the underlying principle: That, as a country, we have made moral progress whenever we have adjusted our legislation to strike a fair balance between the rights of some and the quality of life of others.4
For me, this then is the question: Do my sister’s circumstances reflect a fair balance? Should she have felt compelled to die as she did?
The desire to die with dignity may shock those who have enjoyed a theologically-sheltered life. Or a life without disease. Unshattered by war. Rape. Or dementia. A life unpruned, unamputated by loss. For me, it is as natural as waves breaking on the beach.
My father and elder sister are now buried side-by-side in the same Jewish cemetery. Philosophically speaking, I am indifferent to the divine blessings that have filled its forested air since the first body was buried there in 1854. But, as I look down on their graves, it does trouble me that my father was able to die as he did, but not her. That he had the right to choose; that she did not. That as a community we could show him mercy. But not her.
Ask yourself: What would you do if your sister told you that she wanted to die and did not want to be alone when she killed herself?
I would like to think that, if we, as members of her immediate family, had come to agree with her, through medical consultations and trying of treatment options, that there were no conditions under which her life would improve, that we would have had the courage to support her desire to die. That we would have agreed to a timeline and used the days in between to celebrate her life. That we would have arranged for a place where we could bring her many friends and family members together to eat, to drink, to laugh and to dance, and to cry. To tell stories. Reminisce. I would like to think that we would have provided her with the opportunity to appropriately bid farewell to all of us, including her two daughters, and for us to appropriately bid farewell to her. That we would have provided her with a peaceful and joyous denouement to her life, embraced as a beloved member of a loving community.5
It can be heartbreaking to show mercy. Especially when we must put mercy before attachment and let go. But it would have been better that way. I take it as a sign of how far we still have to go as a country that showing my sister mercy would have made criminals of us all.6
1. I should perhaps explain why I was not also in the room. A few intervals aside, my father and I had been estranged for nearly thirty years. My elder sister had asked my father whether he would like to speak with me before he died. He said “No.” This is not the place to discuss why we became estranged and what sustained our distance for so long.
2. The procedure is described in Final Exit: The Practicality of Self-Deliverance and Assisted Suicide for the Dying (2002), of which she possessed a copy.
3. Unsurprisingly, there are many areas where we have been less than successful. Consider the debates regarding vaccines, gun ownership, women’s reproductive rights, and capital punishment. In these and other areas, rights and quality of life arguably remain imbalanced and in need of a legislative corrective.
4. To avoid confusion, I should offer a brief explanation of the theory of rights which animates this essay, which may strike some readers as idiosyncratic, perhaps even mistaken. They may say that rights should be viewed as something that reside in each person, and that it is the job of the law to protect those rights. Indeed, we can think about rights in this way, but we will soon run into problems down this path. Consider: How do we know that rights reside in all people? Is it because the notion is self-evidently true? Is it because so much historical precedent has accumulated in support of this view that it can no longer reasonably be challenged? Neither argument handles scrutiny well. For one, how could such a sophisticated concept be self-evidently true? “Sugar tastes sweet,” yes. “Everyone possesses the same rights”? That seems unlikely. Moreover, it was not until the 17th-century that this concept began to make inroads, in no small part due to the revolutionary thinking and influence of British philosopher John Locke. In other words, most of human history appears to have had no interest in this concept, which scuttles the historical accumulation of precedent (true-by-virtue-of-tradition) argument. Robert Kagan, in his excellent Rebellion: How Antiliberalism is Tearing America Apart – Again (2024), strikes me as spot on to characterize this notion of rights as “a choice…at root, a faith.” It is a bit like saying that everyone will know that everyone has rights once we are all bound by a common faith. That sounds more like a religion than a theory. A more compelling theory of rights may be available if we pair it with the notion of quality of life. Arguably, the goal of society from this perspective would be to achieve a Pareto equilibrium between rights and quality of life because this would do most to advance human flourishing. I cannot comment further here without turning this endnote into an essay.
5. For a consummately eloquent, heartrending illustration of what this might look like, see Les invasions barbares (2003), directed by Denys Arcand.
6. Strictly speaking, it is not illegal to watch another person kill themselves. It is only illegal to facilitate another person’s killing of themselves. Had my family and I organized this kind of farewell for my sister, as I wish we would have done if we had collectively determined that there was no other tolerable path forward, then we would have faced two very serious risks: first, of being charged with facilitation; second, of being persecuted by the public if our participation became common knowledge. In other situations, there is a third challenge: What if the only way to bring about what the person desires is to facilitate their death. Think of a beloved, paralyzed from the neck down, who says, “Please, do this for me.” Should you go to prison for that action?