ALS and the 8th Amendment

Death Valley - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

8th Amendment United States Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The 8th Amendment to the Constitution is based on the English Bill of Rights of 1689. The United States Supreme Court ruled that the “cruel and unusual punishment” provision applies to state as well as federal jurisdictions and includes both official and non official punishments. Of all the Bill of Rights, the “cruel and unusual” section of the 8th Amendment has changed the most since its inception as societal norms regarding punishment have evolved.

There is a raging legal controversy whether any form of execution constitutes cruel and usual punishment. Opponents of the death penalty contend the most benign method, lethal injection, is cruel and unusual even though thousands of patients undergo similar techniques when experiencing general anesthesia daily. This method of execution is unusual only by the degree of painlessness in which it can be given. The condemned is rendered unconscious by an enormous dose of intravenous anesthesia, followed by a lethal dose of paralyzing agent, and finally potassium to stop the heart.

Cruel and unusual punishment is administering only the paralyzing medication through the intravenous line. The mixture is given slowly in small doses, so the fully conscious victim can breath but just barely. It is impossible to move the arms or legs or even swallow. Imagine the agony of suffocating while being completely aware of the situation. The most ardent proponent of the death penalty could not morally support this degree of sadism. No one in society must involuntarily bear this degree of torture except, of course, patients in the terminal stages of Amyotrophic Lateral Sclerosis (ALS).

Last year my friend was diagnosed with ALS or Lou Gerhig’s Disease. There is no known cause or cure, and patients are faced with declining neuromuscular function throughout the course of the disease. In the final stages they are unable to swallow or breath and cannot survive without a feeding tube and ventilator. Those who resist aggressive medical intervention face the prospect of suffocating shortness of breath and starvation while being fully awake and aware.

Considering the nature of this terrible disease, patients are compelled to devise end of life care plans to cope with deteriorating muscle function. Those who elect not to prolong life by artificial means must let the disease relentlessly progress or resort to measures which hasten the process. For patients and their families these complex decisions are best made when physicians and end of life specialists present all the options. If the stress was not enough, ALS patients who live in states whose laws do not sanction assisted suicide are treated as criminals if they elect to prematurely terminate life by this method.

Contrast this scenario with the prisoner sentenced to death. Death penalty opponents interpret the 8th Amendment so strictly that no method of execution satisfies the constitutional requirement. This munificence is extended to the most vicious, pathologic criminals, but what about the innocent victims of ALS? Is it not cruel and unusual punishment that they are denied legal medical care to ease their torment and allow them to pass in a dignified and gentle manner?

In states with assisted suicide laws most patients who register in the program do not commit suicide. The solace of having a choice of when and how to end one's life often is enough to let matters take the natural course. Patient choice under these dreadful circumstances is the only humane alternative. Are not the victims of ALS entitled to the same rigorous protections under the Constitution as the criminal?