Do We Have the Right to Die?

Stories of two men who wanted to end their lives raise questions about the role of the state

An Episcopal priest and a prison inmate’s shared plan to end their lives entangled them in the state’s promise to “preserve life” and possibly put them at odds with its motto to “Live Free or Die.”

Harold Westover and Joel Bill Caulk’s stories are as different as the two men, but they are central to New Hampshire’s long-running and highly charged debate over citizens’ right to die.

Over the years, several states have adopted so-called Death with Dignity laws, based on the Oregon law, which allows for terminally ill patients to use physician-prescribed lethal injections to die before their time to avoid prolonged pain.

In 2001 Westover, then a 77-year-old, cool-headed, still-active cleric shared his well-thought-out plan to take his own life with his local hospice agency rather than suffering the last stages of pulmonary disease. With the aid of his brother, a national advocate for assisted suicide, he notified his family, proved his mental competency to appropriate mental health officials and informed his local hospice workers. The latter served as a trigger to authorities.

Mere hours later, the Dover police were at his home with an ultimatum for him to go to the Wentworth-Douglass Hospital on his own or by force — with his hands cuffed to his wheelchair. His daughter, Elizabeth Westover Werth, says he was then sent to the State Hospital, a psychiatric facility, where he was held against his will for evaluation. A hearing was scheduled to determine if Westover could be forcibly detained but death came first.

“There was no question that he was going to die,” Werth says. “They put him through great stress and humiliation.”

Werth says her mother, Westover’s widow, was “shattered by the situation” and despite being offered pro-bono, or cost-free, representation, she refused to pursue legal action.

The Westover situation may have raised important questions as to the role of the state to preserve life and prevent suicide while protecting personal liberty. It is important to remember that in New Hampshire the act of suicide is not illegal, but assisting someone in carrying out the act is. Mental competency is a key indicator, as is the person’s diagnosis for determining the state’s power to detain.

The federal constitution provides for basic privacy, informed consent and the notion of personal autonomy. The state’s constitution has an expanded right to privacy that allows even greater expansion of this principle. But this right is so essential that Supreme Court Justice Louis Brandeis declared the “right to be left alone the most comprehensive and valued of rights.”

Historically, these concepts have been considered regarding an individual’s right to refuse medical treatment or to determine who has the authority to “pull the plug” if the individual is incapable or has not properly assigned someone else that authority. But without a law, like the Death with Dignity act, states are without guidance except in common and case law.

Some insight can be gained by the 1984 case of Joel Bill Caulk, then a relatively healthy, 35-year-old inmate at the New Hampshire State Prison. Convicted of multiple rape convictions across several states and with more allegations pending, Caulk could have expected to spend the rest of his life behind bars. He was known as the “Want Ad Rapist” because he found his victims by responding to classified ads. But Caulk was determined to starve himself to death as a way to free himself from his dreary life and to inflict pain “to pay for a lot of [my] debts.”

Prison officials considered Caulk’s fasting as an attempt to commit suicide, and thus disrupt the prison’s institutional discipline and attempt to avoid the punishment and possible future convictions. Caulk countered that he was “allowing himself to die, rather than committing suicide.” He equated the forced taking of nourishment with any other life-sustaining treatment.

A classic legal battle ensued and wound its way to the state Supreme Court. The justices worried about the precedent, the unforeseen cost and care if the starvation attempt failed and left Caulk in a minimally conscious state. By a 4-1 vote, the court instructed the state to forcibly feed Caulk.

Justice Chuck Douglas dissented and set forth several conditions that justified Caulk’s “fundamental liberty right to fast until his natural death without government intervention. Our state motto proudly proclaims the choice to ‘Live Free or Die.’ If he can’t do the former, I would permit the latter.”

Douglas set forth various conditions to address the state’s concerns and avoid state responsibility: The act must be voluntary and be carried out without state assistance in any way by a competent person without a guardian. The act must also not be used to manipulate or gain anything in return.

Douglas, now a lawyer in private practice, says much has changed in the past 30 years. Hospice has become widely available, medical breakthroughs have prolonged life and consequently our population has grown demographically older. His position has remained steadfast. Two years ago it became more personal when his 92-year-old mother decided to end her life rather than battle cancer. “She made her decision,” he says. “She was ready to go and never looked back.” She went to hospice and within 10 days she passed away.

Elizabeth Westover Werth is envious. Her minister father never got the death he planned. “He wanted a spiritual end to life,” she says. Joel Bill Caulk didn’t get the death he planned either; he’s 68 years old and still in prison.

Categories: NH Law