response essay of roughly 250-500 words

profileMedicalethics2017
bioethics--594-677-1.pdf.pdf_response_4.pdf

m _

.

C h

a p

te r I0

: E u

th a

n a

sla a

rid P

h ysJcla

n o

A sslste

d ÿu

m ld

e 5

9 5

E uthanasia and P

hysician-A ssisted S

uicide

N o one escapes death--or the ethical issues that

co m

e w

ith it A

d va

n ce

s in m

e d

icin e

n o

w ra

ise the old life-and-death questions anew

, force new ones m

ore unsetthng, and provoke answ ers that

a re

d istu

rb in

g e

ve n w

h e n p

la u sib

le . In

e u th

a n a -

sia and physician-assisted suicide, the bioethlcal heart of the m

atter is the m oral rightness of kill-

ing or letting die for the good of the patient. The countless disputes on this terrain are often fierce and elem

ental, for they are the visible signs of deep conflicts am

ong fundam ental m

oral prin- ciples and perspectives. D

octols and nurses have sw

o rn

to p

re se

rve life

a n d re

lie ve

su ffe

rin g --b

u t

how to do this w

hen the only w ay to end suf-

fering is to end life? T hey understand the need

to respect patient autonom y, the right of self-

determ ination--but w

hat should they do w hen

the patient fleely chooses to forgo all their best efforts and to em

brace extinction? O r if the ter-

m in

a l p

a tie

n t, in

ch in

g in

a g o n y to

w a rd

d e stru

c- tion, asks them

to cut short her torm ent by ldll-

ing her w ith a lethal injection? O

r if she begs only for som

e help in dying by her ow n hand?

O r if she has never expressed a choice about such

m a

tte rs a

n d

h a

s slip p

e d

in to

p e

rm a

n e

n t u

n co

n -

sciousness, w ithering in pain to the inevitable?

In such cases, w hat does beneficence or m

ercy or respect for autonom

y or regard lot the sanctity of life dem

and? M

o re

so th

a n

m o

st o th

e r issu

e s in

b io

e th

ics, the m

orality of euthanasia and physician-assisted suicide is tangled w

ith legal and policy debates. T

he ethical questions are, of course, logically distinct from

these concerns. Y ou are not neces-

sarily guilty of inconsistency if you think som e

instances of physician-assisted suicide are m or-

ally perm issible but believe the practice should

never be legalized because legalization m ight

le a

d to

a b

u se

s. O r yo

u m

a y, w

ith o

u t co

n tra

d ict-

ing yourself, favor legalization to protect patient autonom

y but argue that suicide in any form is

alm ost never m

orally acceptable. In the heat of controversy, these distinctions often get blurred, and a m

ajor task of good m oral reasoning is to

keep the focus sharp. N

ow here w

as m oral reasoning and conceptual

clarity needed m ore and used less than in the re-

cent case ofT erri S

chlavo. In 1990, w hen she w

as 26, S

chlavo's heart stopped suddenly for reasons that are still unclear; by the tim

e she w as resusci-

tated, she had suffered catastrophic and irrevers- ible brain dam

age S he w

as left in w hat doctors

ca ll a

p e rsiste

n t ve

g e

ta tive

sta te

--w a ke

fu l b

u t

w ith

o u

t co n

scio u

sn e

ss o r in

te n

tio n

a l b

e h

a vio

r a

n d

a lm

o st n

o ch

a n

ce o

f sig n

ifica n

t im p

ro ve

- m

e n

t. In th

is co n

d itio

n sh

e w

a s su

sta in

e d

fo r

years by food and w ater injected into her body

through tubes. The question arose: W ould Telrl

have w anted to be kept alive like this? W

ould she have chosen death over this perpetual dalkness? S

he could not answ er and had left no w

ritten ie- cord of her pIeferences. H

er husband, M ichael

S chiavo, becam

e her legal guardian and claim ed

that T erri had once told him

that she w ould

rather die than be artificially sustained as she eventually w

as. H e said he w

anted to have Terri's feeding tube rem

oved so she could die w ith dig-

nity. T erri's parents w

ould have none of this and insisted that efforts to keep her alive should con- tIn

u e b

e ca

u se

sh e co

u ld

e ve

n tu

a lly re

g a in

co n -

sciousness. A cross the country people debated

the m oral questions. W

ould rem oving T

erri's feeding tube be m

urder? W ould allow

ing her to die be a perm

issible act of m ercy? A

ll the w hile,

the legal w ar betw

een M ichael S

chiavo and Ter- ri's p

a re

n ts d

ra g g e d o

n , w

ith th

e fo

rm e r se

e kin

g p e rm

issio n to

d isco

n n e ct th

e fe

e d in

g tu

b e a

n d

the latter trying to thw art him

. The essential legal issue w

as w ho had the legal right to decide Terri

S chxavo's fate. The list of people w

ho w eighed in

on both the legal and m oral questions is long and

diverse--P resident G

eorge W . B

ush, state legisla- tors, m

em bers of the U

S . C

ongress, bioethicists, religious leaders, pro-life groups, the governor of Florida, disability rights organizations, and a vast a

sso rtm

e n

t o f m

e d

ia co

m m

e n

ta to

rs T im

e a

fte r

tim e, state and federal courts sided w

ith M ichael

S chiavo, and in the end a judge gave perm

ission to rem

ove Terri's feeding tube. Thirteen days af- ter its rem

oval, on M arch 31, 2005, T

erri S chlavo

w as dead.

In som e w

ays the S chlavo case is unique, but

se ve

ra l o

f its m o re

d istu

rb in

g fe

a tu

re s a

re n

o t.

M a

n y co

m p

e llin

g e

n d

-o f-life

d ra

m a

s a re

b e

- ing played out right now

behind closed hospital d o o rs, a

w a y fro

m n

e w

s ca m

e ra

s, th e p

o stu

rin g

of politicians, and the gaze of unaffected peo- ple T

he need for inform ed m

oral reasoning to com

e to term s w

ith the heart-breaking realities IS

acute--and likely to grow .

594

A lm

ost all of the term s used to discuss the m

o- rahty of killing and letting die are controversial to

so m

e d

e g

re e

. E ve

n th

e m

e a

n in

g o

f d e

a th

--a seem

ingly straightforw ard concept to m

ost peo- ple-has been a point of dispute N

evertheless, som

e helpful distinctions are possible. F or the

sake of clarity (and neutrality), euthanasia can be characterized as directly or indirectly bring- ing about the death of another person for that person's sake ÿ The term

derives from the G

reek w

ords m eaning "good death" and evokes the idea

that causing or contributing to som eone's end

m ay bestow

on that person a good. D eath is usu-

ally considered an evil, perhaps the greatest evil, but m

any think it can be a blessing if it spares so

m e

o n

e fro

m a

slo w

, h o

rrific d yin

g o

r a h

o p

e -

less, vegetative sleep.

D E

C ID

IN G

L IF

E A

N D

D E

A T

H

M any philosophers m

aintain that there are tw

o fo

rm s o

f e u

th a

n a

sia . A

ctive e

u th

a n

a sia

is sa

id to

in vo

lve p

e rfo

rm in

g a

n a

ctio n th

a t d

i- re

ctly ca u se

s so m

e o n e to

d ie

--w h a t m

o st p

e o -

ple think of as "m ercy killing;' G

iving a patient a lethal injection to end his suffering, then, is a case of active euthanasia. P

assive euthanasia is allow

ing som eone to die by not doing som

ething that w

ould prolong life. It includes rem oving a

patient's feeding tube or ventdator, failing to p e rfo

rm n

e ce

ssa ry su

rg e ry, a

n d re

fra in

in g fro

m g

ivin g

h fe

-sa vm

g a

n tib

io tics. T

h e

d istin

ctio n

b e

- tw

een the tw o is thought to be essentially this:

A ctive euthanasia is kdhng, but passive euthana-

sia is letting die. To som

e people, this conceptual border be- tw

e e

n a

ctive a

n d

p a

ssive e

u th

a n

a sia

is cru cia

l for assessing the m

orahty of euthanasia. T hey

point out that w hereas letting a patient die is

som etim

es m orally perm

issible, deliberately and directly kllhng a patient is alw

ays w rong. T

he form

er practice is legal and officially endorsed by the m

edical profession; the latter is illegal and officially condem

ned. T he A

m erican M

edical A

ssociation sanctioned this dichotom y in a 1973

policy statem ent:

2he intentional telm m

atlon of the hfe of one hum

an being by another--m ercy kdllng--lS

contrary to that for w hm

h the m edical professm

n stands and is contrary to the pohcy of the A

m en-

can M edical A

ssocm tlon

, The cessatm n of the em

ploym ent of ex-

haordm ary m

eans to prolong the hfe of the body w

hen there lS Irrefutable ew

dence that blologm al

death lS lm

m m

ent is the declsm n of the patient

and/or m lm

edm te fam

ily.2

F or m

any (including m ost physicians), pas-

sive euthanasia m ay be m

oral, but active eutha- n a sia

is n o t.

B ut not everyone thinks this active-passive

distinction m akes sense. S

om e argue that there is

no m orally significant difference betw

een m erci-

fully killing a patient and m ercifully letting the

p a

tie n

t d ie

. In b

o th

situ a

tio n

s th e

d o

cto r ca

u se

s the patient's death--by eithei intentionally doing

$96 P A

R T

3' liF E

A N

D D

E A

T H

so m

e th

in g in

th e o

n e in

sta n ce

o r in

te n tio

n a lly

re fra

in in

g fro

m d

o in

g so

m e th

in g in

th e o

th e r.

Thus an act of euthanasia m ay be m

orally right o

r w ro

n g

, b u

t th e

rig h

tn e

ss o r w

ro n

g n

e ss d

o e

s not depend purely on this active-passive divide. M

o re

o ve

r In p

ra ctice

, d istin

g u

ish in

g e

xa m

p le

s o f a

ctive a

n d p

a ssive

e u th

a n a sia

m a y n

o t b

e a

s e

a sy a

s so m

e th

in k. T

h e

u su

a l vie

w is th

a t p

a s-

sive euthanasia can som etim

es be perform ed

by disconnecting a dying patient's feeding tube and ventilator. B

ut this event can also be seen as an instance of perform

ing an action that d ire

ctly ca u se

s so m

e o n e to

d ie

--th a t is, a

ctive euthanasia.

If euthanasia in som e form

is m orally per-

m isslble, its perm

issibility m ust be linked to the

patient's consent. T hus bioethtclsts talk about

e u

th a

n a

sia th

a t is vo

lu n

ta ry, n

o n

vo lu

n ta

ry, o r

in vo

lu n

ta ry. V

o lu

n ta

ry e u

th a

n a

sia re

fe rs to

situ -

ations in w hich com

petent patients voluntarily re

q u

e st o

r a g

re e

to e

u th

a n

a sia

, co m

m u

n ica

tin g

their w ishes either w

hile com petent or through

instructions to be follow ed if they becom

e in- com

petent (if they fall into a persistent veg- etative state, for exam

ple). P atients can indicate

w hat is to be done in incom

petence by form ulat-

in g

a n

a d

va n

ce d

ire ctive

--u su

a lly a

livin g

w ill o

r a docum

ent designating a surrogate, or proxy, to act on their behalf. N

onvoluntary euthanasia is perform

ed w hen patients are not com

petent to chose death for them

selves and have not previ- ously disclosed their preferences. (Incom

petent patients include not only incapacitated adults but infants and sm

all children as w ell.) In these

circum stances, the patient's fam

ily, physician, or other officially designated persons decide for the patient. Involuntary euthanasia is bringing about som

eone's death against her w ill or w

ith- out aslÿng for her consent w

hile she is com pe-

tent to decide. It is illegal and considered m orally

im perm

issible by both those w ho approve and

d isa

p p ro

ve o

f e u th

a n a sia

. It is th e re

fo re

g e n e r-

ally left out of m oral debates, except perhaps in

slip p e ry-slo

p e a

rg u m

e n ts w

a rn

in g th

a t vo

lu n -

tary or nonvoluntary euthanasia w ill inevitably

becom e involuntary.

C o m

b in

in g th

e te

rm s a

ctive , p

a ssive

, vo lu

n -

ta ry, a

n d n

o n vo

lu n ta

ry, w e ca

n id

e n tify fo

u r

kinds of euthanasia that have been the m ain fo-

cus in bioethics:

1 A

ctive vo

lu n ta

ry--D ire

ctly.ca u sin

g d

e a th

(m ercy M

lling) w ith the consent of the

patient 2

A ctive

n o

n vo

lu n

ta ry--D

ire ctly ca

u sin

g death (m

ercy killing) w ithout the consent

of the patient 3 . P

a ssive

vo lu

n ta

ry--W ith

h o ld

in g o

r w

ithdraw ing life-sustaining m

easures w ith

the consent of the patient 4 . P

a ssive

n o n vo

lu n ta

ry--W ith

h o ld

xn g o

r w

ith d

ra w

in g

life -su

sta in

in g

m e

a su

re s

w ithout the consent of the patient

Legally and ethically, the starkest contrast am

ong these is betw een active and passive eutha-

nasia. A ctive euthanasia (w

hether voluntary or nonvoluntary) is unlaw

ful, w hile passive eutha-

nasia (both voluntary and nonvoluntary) is legal provided certain conditions are m

et. Judicial rulings have firm

ly established a right of patients to

re fu

s e

tre a

tm e

n t--a

n d

th u

s to

h a

v e

life -

su sta

in in

g tre

a tm

e n t w

ith h e ld

o r w

ith d ra

w n --

even though the patient dies as a result. W ith-

draw ing or w

ithholding treatm ent from

an in- com

petent patient is generally legal if the patient has left Instructions or if an appropriate person can be chosen to m

ake the necessary decisions. C

o n te

m p o ra

ry m o ra

l d e b a te

ce n te

rs m o re

o n

active than on passive euthanasia. T here is con-

slderable agreem ent about the m

oral rightness of allow

ing a patient to die but intense controversy about the perm

lssibihty of deliberately causing a patient's death (by adm

inistering a lethal injec- tion, for exam

ple), w hether the act is considered

vo lu

n ta

ry o r n

o n

vo lu

n ta

ry. R

ecentl5 disputes over euthanasia have raged alongside argum

ents about physician-assisted su- icide, in w

hich a patient takes his ow n life w

ith the aid of a physician. In a typical scenario, a patient asks the physician for help in com

m itting suicide,

the physm ian assists the patient by prescribing

lethal doses of drugs or explaining a m ethod of

C h a p te

r 1 0 : E

u th

a n a sia

a n d P

h ysicia

n -A

ssiste d S

m cld

e $

9 7

LE G

A L B

R R

E F

E u th

a n a sia

a n d A

ssiste d S

u icid

e :

M a

|o r D

e v e

lo p

m e

n ts

1990 In C ruzan v D

irector, M issour# D

epartm ent

of H ealth, the U

.S S

uprem e C

ourt recognizes the right of patm

nts to refuse treatm ent

(essentially a "right to die") and finds constitutional lustificatlon for hying w

dls and surrogates w

ho m ake m

edm al decisions for

in co

m p e te

n t p

a tm

n ts.

1994 O regon passes the D

eath W ith D

Igm ty A

ct, legahzing the use of physician-assisted sure,de under specific conditions It perm

its doctors to prescribe drugs that term

inally ÿ11 patients ca

n u

se to

co m

m it sm

cid e

.

1997 In separate cases--W ashington v G

lucksberg and V

acco v. Q uill--the S

uprem e C

ourt rules that there is no constitutional right to physician-assisted sm

clde but notes that each state m

ay estabbsh its ow n pobcy on the

issue. It exphcJtly acknow ledges a dlstm

cnon betw

een assisted sm cide and the w

ithdraw al

of life-sustaining treatm ent

2001 U .S

A ttorney G

eneral John A shcroft rues

to thw art the O

regon right-to-die law by

authorszing the D rug E

nforcem ent A

gency to, act against physicians prescribing drugs for assisted sum

Jde.

2006 The S uprem

e C ourt rules that the Jum

ce D

epartm ent (headed by Ashcroft and later

A lberto G

onzales) had no authority to interfere w

ÿth physm ÿans acting under the O

regon law .

2008 T hrough a referendum

vote, W ashington

becom es the second state to legahze

physm lan-asslsted sum

ide 2008 A

district court ruhng m the case of B

axter v S

tate of M ontana asserts that M

ontana residents have a right to physm

lan-asslsted sm

cide, thereby legalizing the pracnce m a

thw d state. In 2009 the M

ontana S uprem

e C

ourt affirm ed the earher court ruhng

su icid

e , a

n d th

e p

a tie

n t--n

o t th

e p

h ysicia

n --p

e r-

form s the final act that causes death. In contrast,

in active euthanasia the physician perform s the

final act. M any argue that this difference in the ul-

tim ate cause of death im

plies a difference in m oral

responsibihty. In physician-assisted suicide, the patient is thought to bear ultim

ate m oral respon-

sibihty for the talcing of life. O thers doubt that

any distinction in ultim ate causes can am

ount to a m

oral difference. Thus they contend that physi- cian-assisted suicide and active voluntary eutha- nasia are m

orally equivalent. W hat is the m

oral difference, they ask, betw

een a physician helping a patient die by (1) adm

inistering a lethal injec- tion upon request or (2) prescribing a lethal dose of m

edications upon request? T

he A m

erican M edical A

ssociation has de- nounced physician-assisted suicide as unethical and inconsistent w

ith physicians' duty to prom ote

heahng and preserve life. S urveys suggest, how

- ever, that m

any doctors support the use of physi- cian-assisted suicide, and up to half of adults be- lieve it should be legal in cases of term

inal illness or incurable disease w

ith severe pain. T o date, it is

legal only In O regon, W

ashington, and M ontana.

The U .S

. S uprem

e C ourt has ruled that states m

ay legalize or prohibit it as they see fit.

P art of the difficulty of m

aking everyday m oral

decisions about end-ofqife situations is that death itself is not so easy to define. Traditionally death w

as understood to occur w hen breathing and

h e a rtb

e a t ce

a se

d . A

p e rso

n w

h o w

a sn

't b re

a th

- ang and had no heartbeat w

as dead. But thanks to m

odern m edicine, m

achines can m aintain som

e- one's breathing and heartbeat indefinitely--even though there IS

perm anent loss of all brain func-

tion. H eart and lungs keep going, but the individ-

ual IS irreversibly brain-dead and can rem

ain that

598 P A

R T 3' LIFE

A bed D

FA TH

in 2000 a large survey of oneologlsts revealed that.

• 22.5% supported the use of physician-

assisted suicide for a term inally ill pauent

w ith

"u n re

m ittin

g p

a in

", 6 .5

% fa

vo re

d a

ctive

e u

th a

n a

sia In

th e

se circu

m sta

n ce

s • 56.2%

had recefved requests from patients

fo r p

h ysm

la n -a

sslste d su

icid e , 3

8 .2

% , fo

r a cn

ve

euthanasia. • 10.8%

had perform ed physm

lan-asslsted sm

clde; 3.7% , active euthanasia

E zekiel J E

m anuel, D

iane Fatrclough, B rian C

larndge, et al, "A

ttitudes and P racuces of U

S O

ncologlsts R egarding

E uthanasia and P

hysm lan-A

sslsted S uicide," A

nnals of Internal

M e&cm

e 133 7 (3 O ctober 2000), 527-32

w ay for decades. B

y the traditional standard, the individual is alive, but this seem

s counterintuitive. W

e seem to need a new

concept of death--an im

portant considel ation since any notion w e adopt

w ould dram

atically influence our judgm ents about

m orally perm

issible behavior tow ard the living and

the dead. If w e judge an individual to be dead, then

w e w

ould presum ably think her no longer a person.

If she is no longer a person, then it w ould seem

to be perm

issible to &sconnect all life support, hai vest oigans from

the body foI transplant, or prepare the body for burial. B

ut if, despite appearances, she is still a person, w

oulddt doing any of these things be m

urder? If so, those w ho perform

these acts w ould

be m orally and legally culpable.

In 1

9 6

8 a

co m

m itte

e a

t H a

rva rd

M e

& ca

l S

chool form ulated a new

w ay of conceiving death,

a peispective that has since becom e the standard

in legal and m edical m

atters A ccording to this

w hole bÿain view

of death, an individual should be judged dead w

hen all brain functions perm a-

nently cease B rain death m

eans genuine death. B

ut several experts take issue w ith this view

. They point out that som

e physiological processes such as respiration are partly independent of brain functions, and individuals that m

any w ould re-

gard as dead (those in persistent vegetative states, for exam

ple) m ay have som

e residual brain activ- ity. B

y the w hole brain standard, Tern S

chlavo, being w

akeful but lactnng consciousness, w as

alive until all brain activity stopped. T o som

e, this consequence m

akes sense; to others, it seem s

odd. A better notion of death, som

e aigue, is the [email protected]

er brain vw w

, w hich says that an individual

should be considered dead w hen the higher brain

o p e ra

tio n s re

sp o n sib

le fo

r co n scio

u sn

e ss p

e r-

m anently shut dow

n 2he thought behind this standard is that individuals are dead w

hen they are no longer persons, regardless of w

hat physi- ological activity persists, and individuals are no longer persons w

hen consciousness perm anently

term inates. B

y the higher brain criterion, T erri

S chiavo died w

hen her higher blain functions perm

anently stopped, even though other brain activity continued for years A

gain, som e w

ould find this judgm

ent plausible; others, bizarre

P eople have an interest m

m aM

ng im poltant decl-

stuns about then hves m accordance w

ith then ow n

conceptm n of how

they w ant then lives to go. In

e xe

lclsln g

a u

to n

o m

y o i sd

f-d e

te im

in a

tm n

, p e

o p

le

take J esponslbfilty foi their lives; since dying is a pal t of life, chom

es about the m annel of then dying

and the tim ing of the11 death m

e, fol m aw

people, paIt of w

hat is involved m taM

ng lesponsibfiW for

theu lives. M any people ale concerned about w

hat the last phase of then hves w

ill be hke, not m erely

because of feais that then dying m ight involve

them in great suffeiing, but also because of the

desire to letam dignity and as ranch contIol over

then lives as possible during this phase.. There is no single, objectively corIect answ

er as to w hen,

if at all, life becom es a buiden and unw

anted B ut

that sim ply points up the lm

poI tance of individuals being able to decide autonom

ously foi them selves

w hethei theli ow

n lives ietain sufficient quality and dignity to m

ake hfe w oith hvIng.3

has alw ays been the stiongest agum

ent fo] eutha- nasm

m those cases to w

hm h it applies?

Let us exam m

e the tw o m

ain flashpoints in end- of-life bloethics: active voluntary euthanasia and physician-assisted suicide. W

e can focus m ostly

on the form er since argum

ents for and against it are largely relevant to the latter.

W hat argum

ents m ight be offered to support

active voluntary euthanasia? The strongest one d e rive

s fro m

th e p

rin cip

le o

f a u to

n o m

y--a p

e r-

so n

's in h

e re

n t rig

h t o

f se lf-d

e te

rm in

a tio

n . P

ro -

ponents say that respecting autonom ous persons

m e a n s re

sp e

ctin g

th e ir a

u to

n o m

o u s ch

o ice

s, including the choice to end their lives in their ow

n w ay. Their right is preem

m ent, its only lim

it m

arkang the point w here their choices bring

harm to others. A

s one philosopher explains it,

P ro

p o

n e

n ts b

e lie

ve th

a t th

is rig h

t to d

ie ,

though strong, does not necessarily com pel oth-

e rs. A

lm o st n

o o

n e w

h o se

rio u sly ra

g e s th

e a

u -

tonom y argum

ent thinks that having a right to &

e forces a duty on others (physicm ns, for ex-

am ple) to help in the dying. A

n o th

e r m

a io

r a rg

u m

e n t fo

r a ctive

e u th

a -

nasia appeals to the principle of beneficence, or m

e rcy" If w

e a

re m

a p

o sitio

n to

re h

e ve

th e

se -

ve re

su ffe

rin g

o f a

n o

th e

r w ith

o u

t e xce

ssive co

st to ourselves, w

e have a duty to do so. T o refuse

w ould be cruel, inhum

ane, and w rong. T

he argu- m

ent w ould run som

ething like this. If a com -

petent, hopelessly 111 patient in unrelieved agony requests help to be put out of his m

isery, w e m

ay have a duty to bring about his death. A

s bioethi- cist D

an W . B

rock says,

W hen theie is a hfe-sustam

lng tIeatm ent that, ff

fm gone, w

dl lead i elatlvely quicldy to death [pas- sive euthanasm

], then doing so can bring an end to these patients' suffering w

ithout iecoutse to [active] euthanasia For patients receiving no such treatm

ent, how evei, ÿ[actlve] euthanasia m

ay be the only lelease flora then othei w

ise piolonged suffering and agony. 2hls aigum

ent from m

elcy

A U

TO N

O M

Y ÿ M

E R

C Y

ÿ A N

D H

A R

M

B y these lights, active euthanasia 1s som

etim es

better than passive, for w ithholding or w

ith- d

ra w

in g

tre a

tm e

n t fro

m a

d yin

g p

a tie

n t in

u n

- speakable pain m

ay only dlaw out his agony

The algum ent from

beneficence taps into veiy deep intuitions about the point of m

ercy idling. C

onsider this variation of a tw ice-told tale in blo-

ethics: A truck overtm

ns on the highw ay, pinning

the scream ing driver under the cabin as the w

reck- age bursts into flam

es. H e is burning ahve, and

there is no hope of pulling him out of the fire. To

avoid slow incineration, he begs the lone onlooker

to sm ash him

in the head w ith a rock to kill him

im m

ediately. S hould the onlooker obhge him

? A

com m

on iesponse to such horrlfic suffenng, at least in cases of m

edical euthanasia, is to insist that the torm

ent can alm ost alw

ays be reheved w

ithout resort to lethal m eans. It is likely that m

ost patients w

ho request euthanasia because of un- relem

ing pare and deep depression can get iehef through im

proved pain treatm ent and enlightened

psychiatric care. T herefore euthanasia or physi-

cian-assisted suicide is unnecessary. B ut m

any bio- ethlcists are not convinced They rogue that there w

ill alw ays be som

e patients w hose pain cannot be

eased by any m eans short of death, or w

ho have no access to adequate palliative cae, or w

hose suffer- ing is neither physical nor psychiam

c but social, philosophical, or spiritual. The m

ain cause of the suffering m

ay be loss of dignity oi independence or concern for loved ones w

ho w ill be left behind

Those w ho oppose active voluntary euthanasia

give m oral w

eight to autonom y and beneficence

but argue that other considerations underm ine

the pro-euthanasia argum ents. O

ne such m attel

is the supposed m oral difference betw

een killing and letting die, or betw

een active and passive eu- thanasia. The thought is that lÿalling a person is m

olally w orse than letting that person die. K

illing is w

rong; letting die is perm issible. Thus giving a

patm nt a lethal iN

ection is w rong, but unplugging

his feeding tube oi ventilator m ay be m

orally ac- ceptable. S

om e think that M

lling is m orally w

oise

because It involves a person causing the death of another person (m

urder), w hile letting die is a

m atter of allow

m g nature to do its w

ork. In the first, a person lolls; in the second, a disease lulls.

B ut critics deny that there is a m

orally signifi- cant difference betw

een Idling and letting die. If there is no difference, they can argue that since passive euthanasia is perm

issible, and it is m orally

equivalent to active euthanasia, active euthanasia m

ust be perm issible as w

ell. Jam es R

achels tries to dem

onstrate this no-difference thesis In a fam ous

thought experim ent about parallel cases:

In the first case, S m

tth stands to gain a large Inheritance if anything should happen to his six- year-old cousin O

ne evening w hile the child is

taking his bath, S m

ith sneaks into the bathroom ,

drow ns the child, and arranges things so that it

w ill look like an accident.

In the second, Jones also stands to gain if anything should happen to his six-year-old cousin. Like S

m ith, Jones sneaks In, planning to drow

n the child in his bath H

ow ever, as he enters the bath-

room Jones sees the child slip, hit his head and fall

face dow n in the w

ater. Jones is delighted; he stands by, ready to push the child's head back under if it is necessary, but it is not necessary. W

ith only a little thrashing about, the child drow

ns all by him self,

"accldentally;' as Jones w atches and does nothing.

N ow

Sm ith killed the child, w

hile Jones m erely

let the child die. ÿhat is the only difference be- tw

een them . D

id either m an behave better, from

a m

oral point of w ew

?s

R achels concludes that any dissim

ilarity be- tw

een killing and letting die does not m ake a

m o

ra l &

ffe re

n ce

. W

inston N esbitt rejects R

achels' no-differ- ence view

, arguing that the real reason S m

ith and Jones seem

equally reprehensible is that they are both prepared to kill. If w

e assum ed that Jones is

ready to let his cousin die but is not prepared to kill him

, w e w

ould judge Jones less harshly than S

m ith. If this is correct, N

esbitt says, then R a-

chels fails to m ake his case.6

S om

e argue against active voluntary euthana- sia by advancing another land of distinctm

n--

betw een intending som

eones ueaul m ÿu m

,ÿ tending but foreseeing it. This difference is em

pha- sized in the doctrine of double effect, an essential feature of R

om an C

atholic ethics (see C hapter

2). A pplying the distinction to euthanasia, w

e get this principle: It is w

rong to intentionally harm som

eone (cause her death) to produce a good re- sult (release from

suffering, for exam ple), but it is

perm issible to do som

ething Intended to produce a good result (release from

suffering), even if the action leads to unintended but foreseen harm

(her death). The difference is that in the form

er, a bad thing is directly intended; in the latter, a bad thing is not intended, only foreseen. B

y this form ula, it

w ould be w

rong for a physician to try to rdieve the chronic m

isery of a term inally fll patient by

ddiberately giving her high doses of m orphine to

hasten her death. B ut it w

ould be m orally accept-

able for that physician to give the patient the sam e

am ount of m

orphine w ith the sole intention of

easing her pain, even though the physicm n fore-

sees that she w ill die as a result. (G

iving a dying, suffering patient extrem

ely high does of analgesics to the point of unconsciousness and accelerated death is lonow

n as term inal sedation; provided the

patient consents, it is legal and generally consid- ered m

orally perm issible in m

e& cal practlce.)

M a

n y q

u e

stio n

w h

e th

e r in

p ra

ctice th

is intended/unintended distinction can alw

ays b e d

ra w

n a

s d e a rly a

s p ro

p o n e n ts a

ssu m

e . F

o r

exam ple:

be fulfilled:

U nder O

regon's D eath W

,th D ,gn,ty A

ct (D W

D A

), term

inally dl adults m ay get prescrlpttons from

their physm

lans for lethal drugs and self-adm m

,ster them . In

2006, O regon doctors w

rote 65 such prescriptions, and 35 panents used the m

edm atlons F

rom 1997 to

2006, 292 patients dm d under the law

The law specl-

ties requ,rem ents for both doctor and patm

nt T

o request a prescr,ption for lethal m edm

atlons, the D

W D

A requ,res that a patient m

ust be"

• A n adult (18 years of age or older)

• A resident of O

regon • C

apable (defined as able to m ake and

com m

um cate health care decisions)

• D iagnosed w

ith a term inal dlness that w

dl lead to death w

ithin sÿx m onths

P atm

nts m eeting these requw

em ents are ehgible

to request a prescription for lethal m edm

atlon from a heensed O

regon physioan. T o receive a prescrlp-

In the case of euthanasia, just as in pare and sym

ptom control, critics m

aintain, the physician's end m

aybe the good one of lelieving the patient's suffering. In neither case w

ould death be w anted

by the patm nt or the physician if the suffering

could be avm ded w

ithout it, but both patient and physm

lan m ay be prepared to accept the patm

nt's earher death in order to relieve his or her suffer- lng. A

lthough the patient's death in the case of euthanasia m

ay be the necessary m eans taken

in the causal path to relief of suffering, it is the unavoidable side-effect follow

ing upon the rehef of the patient's suffering in the causal path taken to achieve pain and sym

ptom control 7

• T he patm

nt m ust m

ake tw o oral requests to

his physician, separated by at least 15 days • T

he patm nt m

ust provide a w ritten request to

his or her physm lan, signed m

the presence of tw

o w

itn e

s s e

s .

• The prescribing physioan and a consulting physm

lan m ust confirm

the diagnosis and prognosis

• The prescnb,ng physm lan and a consulung physm

lan m

ust determ ine w

hether the pauent ,s capable • If e,ther physm

ian beheves the patm nt's

ludgm ent is ,m

paw ed by a psych,am

c or psychologm

al disorder, the pat,ent m ust be

referred for a psycholog,cal exam ,nation

• The prescribing physloan m ust reform

the patient of feas,ble alternat,ves to D

W D

A , ,ncludm

g com

fort care, hospice care, and pare control.

• The prescribing physm ,an m

ust request, but m

ay not reqm re, the patm

nt to notify his or her next-of-I<m

of the prescrlpuon request

O regon D

epartm ent of H

um an S

erw ces, "D

eath W ith D

igm ty

A ct," O

regon gov, M arch 2007, http//w

w w

oregon gov/D H

S /

ph/pas (2 February 2008)

O theis are skeptical of the intended/unin-

tended principle itself. T heir view

is that even if it is w

rong to intentionally do harm to bring

about good, directly intending a patient's death m

ay still be perm issible because to her, death

m ay not be a harm

. If her pain is unbearable and untreatable, and she m

akes an autonom ous

request to die, then active euthanasia m ay be a

b le

ssin g --a

n d th

e re

fo re

w ith

in e

th ica

l b o u n d s.

P robably the m

ost straightforw ard argum

ents against active euthanasia and physician-assisted suicide are appeals to bad consequences. They m

ake their case at the policy level, asking us to consider the I am

lfications of legalizing or w idely

accepting these piactices. O ften their logical

shape is the shppeIy slope: A llow

ing active eu- thanasia or physician-assisted suicide w

ill Inevi- tably lead to hem

ous extensions or perversions

o f th

e o

rig in

a l p

ra ctice

s. T h e u

su a l w

o rrie

s a re

that legalization w ill lead quicldy from

active vo

lu n

ta ry e

u th

a n

a sia

to a

ctive n

o n

vo lu

n ta

ry e u

- thanasia to outright involuntary form

s of kilhng O

r that physicians or fam ilies w

ill start pushing unw

illing or unsure patients tow ard assisted sui-

cide or voluntary euthanasia O r that physicians

and nurses w ill becom

e increasingly w illing to

give lethal injections to people w ho a,e elderl);

m entally 111, chronically ill, uninsured, and &

s- able&

A s one philosopher explains it,

[E ]uthanasm

as a pohcy is a slippery slope A pei son apparently hopelessly ill m

ay be allow ed

to take his ow n life T

hen he m ay be perm

itted to deputize othm

s to do it for him should he no

longeI be able to act The judgm ent of othm

s then becom

es the ruhng factor A heady at this point

e l_

lin a n a S

ltl is lID

l_ D

I$ 1 g O

lIIll illlU Y

rO iU

lltÿ :lI)r, 1

u I u

[II-ÿ g ÿ g -Illllll-lb

U ll (1

1 i ÿ

itÿ 'ÿ

o --J

J -

ers are acting <<on behalf of" the patm nt as they

see fit. ÿhls m ay w

ell incline them to act on behalf

of other patients w ho have not authorized them

to exercise then judgm ent It is only a short step,

then, from voluntary euthanasia (self-inflicted or

authorized), to & rected euthanasia adm

inistered to a patient w

ho has given no autholization, to involuntal y euthanasia conducted as part of a social policy 8

recognize the need for better evidence to assess the slipperiness of the slippery slope. B

ut they also know

that the m ereposstbU

ity of abuses ans- lng from

allow ing euthanasia or assisted suicide

is not in itself a good reason to ban the practices. If m

erely possible dangers or abuses justified prohibiting a practice, then w

e w ould have good

reason to disallow advance directives, sulrogate

decision-m aking, and any kind of voluntary pas-

sive euthanasia. F or a slippery-slope aigum

ent to w

ork, there m ust be good evidence that the bad

consequences oftakang the first step are probable and serious.

\4

T he key prem

ise m m

ost shppery-slope argu- m

ents, then, is an em pirical claim

that a policy perm

itting active voluntary euthanasia or assisted- suicide w

ill lead to unjustified ldlhng (involun- tary euthanasia, for exam

ple). M uch of the debate

therefore has centered on w hether any good em

- pirical evidence supports such a prem

ise. U nfor-

tunately, scientific research on the issue has been scant, w

ith m ost of it focused on the N

etherlands, w

h in

e p

h ysicia

n -a

ssiste d su

icid e a

n d a

ctive vo

l- untary euthanasia have been legal since 2002 (There is even less data on O

regon, w here a law

perm itting physician-assisted suicide w

as passed by O

legon voters in 1994 but not green-hghted until the S

uprem e C

ourt decision of 2006.) Thus both those w

ho favor and those w ho oppose eu-

thanasia and assisted suicide have tried to m ake

their case w ith data from

the D utch experience.

O ne question they w

ant the research to answ er is

w hether legahzation of voluntary euthanasia has

expanded the use of nonvoluntary euthanasia, for a significant expansion w

ould seem to support

slippery-slope argum ents. O

pponents of legaliza- tion point to all the instances of D

utch physicians perform

ing active euthanasia w ithout the patient's

consent (approxim ately 1000 per year, or about

0.8 percent of all deaths nationw ide). P

roponents reply that m

ost of those patients w ere already near

death or had becom e incom

petent after initially asM

ng for euthanasia or that the euthanasia w as

p a

ssive , co

n sistin

g o

f w ith

h o

ld in

g o

r w ith

d ra

w -

ing treatm ent. M

ost of all, they em phasize that the

few stu&

es done so far do not dem onstrate that

legalizatton has significantly m ultiplied the cases

of nonvoluntary euthanasia.

tlld L

III ÿfllllllrl!ll I;lo c[o

r-itb lM

:$ l.lÿtl :ÿtllt.ltllÿ i:ÿ IllU

I ÿllly ÿl,,..,-

ceptable or m orally w

rong.

D o you think It should be legal or illegal for doctors

to help term inally Ill panents end their ow

n life by glw

ng them a prescription for fatal drugsÿ

4

M any people prefer to hve a life w

ith less hap- pm

ess ol pleasure in it, and perhaps even m ore

pain and sufferm g, if they can theI eby fulfill other

im portant preferences. For exam

ple, they m ay

ch o o se

to strive

fo i e

xce lle

n ce

in a

rt, o i h

te ra

tu re

,

Legal Illegal U nsure

4 8 %

4 4 %

8 %

If you w ere seriously ill w

ith a term inal disease, w

ould you consider ending your life, or not?

Y e

s N o

P ro

b a

b ly M

a yb

e U

n su

re 35%

55% 3%

2% 5%

Associated Press/Ipsos poll conducted by Ipsos-Pubhc Affairs, M ay

22-24, 2007, 1000 adults nationw ide, m

argin of error = _+

3

W hen a person has a disease that cannot be cured

and is living m severe pain, do you think doctors

sh o u ld

o r sh

o u ld

n o t b

e a

llo w

e d b

y la w

to a

ssist th

e p

a tm

n t to

co m

m it sm

a d

e ff th

e p

a tm

n t re

- quests it?

S hould S

hould N ot U

nsure 5 6 %

3 8 %

6 %

R egardless of w

hether or not you think it should be legal, please tell m

e w hether you personally beheve

U tlhtarlans can consistently adopt different

view s on active euthanasia and assisted suicide

depending on how they define the good to be

m a xim

ize d , w

h e th

e r th

e ir m

o ra

l fo cu

s is a cts

or rules, and how m

uch im portance they give

to se

lf-d e te

rm in

a tio

n . C

la ssic u

tilita ria

n ism

d e -

fines the good as happiness and w ould therefore

judge the issues by how m

uch happiness various a

ctio n

s m ig

h t p

ro d

u ce

fo r e

ve ryo

n e

in vo

lve d

. F

ro m

th is p

e rsp

e ctive

, e u th

a n a sia

o r a

ssiste d

suicide for som eone suffering horrible, inescap-

able pain m ight be perm

issible because ending life w

ould bring about the m ost net happiness.

O f co

u rse

, th e

ca lcu

la tm

n s w

o u

ld h

a ve

to in

- clude other factors such as the psychological, social, and financial im

pact on the patient's fam -

ily, frie n

d s, a

n d

ca re

g lve

rs. W ith

e ve

ryth in

g fa

c- tored in, the utilitarian answ

er could easily com e

out against euthanasia O

n the other hand, m any utilitarians (follow

- ing ]ohn S

tuart M ill) think that there's m

ore to consider in m

aking m oral judgm

ents than just net happiness. A

s utilitarian philosopher P eter

S inger says,

M o ra

lly M o ra

lly A

cce p

ta b

le W

ro n

g D

e p

e n

d s U

n su

re 4

9 %

4 4 %

5 %

2 %

G allup P

oll, M ay 10-13, 2007, 1003 adults natm

nw Jde, m

argin o f e

rro r =

ÿ +

3

D o you think a person has a m

oral right to end his or her ow

n life under any of the follow ing circum

stancesÿ

Y e

s N

o U

n s u

re

W hen this person has a disease that is incurable?

5 3 %

3 9 %

8 %

W hen this person is suffering great pain and has no

hope of im provem

ent?

6 0 %

3 4 %

6 %

W hen this person is an extrem

ely heavy burden on his or her fam

Jlyÿ

2 9 %

6 2 %

9 %

W hen this person ]s ready to dm

because hw ng has

becom e a burden?

3 3 %

5 8 %

9 %

P e w

R e se

a rch

C e n te

r su rve

y co n d u cte

d b

y P rin

ce to

n S

u rve

y

R e se

a rch

A sso

cia te

s In te

rn a

tio n a l, N

o ve

m b

e r 9

-2 7 , 2

0 0 5 ,

1 5 0 0 a

d u lts n

a tio

n w

id e , m

a rg

in o

f e rro

r = +

3

or sport, even though they know that they aie un-

likely to achieve it, and m ay experience pare and

suffering m the attem

pt?

T hose in utlhtarianism

's cam p w

ho take this view

are km ow

n as preference utthtat ians, hold- ing that right actions are those that satisfy m

ore of a person's preferences overall. To them

, killing is bad w

hen it prevents som eone from

satisfying his ow

n preferences, It can be good (as in eutha- n a sia

) w h e n m

o re

o f th

e p

e rso

n 's fu

tu re

p re

fe r-

ences w ill be frustrated than satisfied. A

ccording to S

inger,

[I]fthe goods that life holds are, in genm al,

reasons against kllhng, those Ieasons lose all their force w

hen it is clear that those lralled w ill not

have such goods, m that the goods they have w

ill be outw

eighed by bad things that w ill happen

to them W

hen w e apply this leasoning to the

case of som eone w

ho is capable of judging the m

attm , and w

e add M ill's view

that individuals are the best judges of thm

r ow n interests, w

e can conclude that this reason against killing does not apply to a person w

ho, w ith unim

paned capacities for judgm

ent, com es to the conclusion that his or

her future is so clouded that it w ould be better to

604 P A

}ÿT 3 LIFE A

N D

D E

A TH

die than to continue to hve Indeed, the zeason against kllhng is tinned m

to its opposite, a zeason fm

acceding to that pm son's request2°

R u

le -u

tilita ria

n a

p p

ro a

ch e

s ca n

le a

d to

p o

si- tions both favoring and opposing euthanasia and assisted suicide. M

ost slippery-slope argum ents

a re

e sse

n tia

lly ru le

-u tIh

ta ria

n , a

sse rtin

g th

a t a

general policy of authorized killing w ill, step by

ste p

, ta ke

so cie

ty d o

w n

a p

a th

to a

w fu

l co n

se -

quences. 3-he outcom es to be avoided are m

any, in

clu d

in g

in cre

a se

s in n

o n

vo lu

n ta

ry o r in

vo lu

n -

tazy euthanasia, erosion of respect for the m edical

profession, and a w eakening of society's abhorrence

of hom icide. S

om e also argue on rule-utilitarian

grounds for a general policy, citing relief of suffer- lng as the m

ost obvious benefit. T

he natural law view

in R om

an C atholicism

condem ns active and passive euthanasia, though

the condem nation com

es w ith quahficatlons. D

i- rectly intending to bring about a pelson's death to end sufferm

g is prohibited, but the doctrine of double effect perm

its actions that have unintended but fatal results A

s discussed earlier, the doctrine w

ould not allow doctors to give high-dose an-

algesics to put patients out of their m isery, but it

w ould sanction their dom

g the sam e thing w

ith the intention of easing pain though death is foreseen In addition, under C

atholic principles there is no obligation to use every m

eans possible to prolong a person's life in every case. The Vatican declares:

or perm itted to die B

ut it IS not obvious w

hat K

a n t's o

p in

io n w

o u ld

b e o

f in d ivid

u a ls n

o lo

n -

ger regarded as persons because they have lapsed into a persistent vegetative state. W

ould respect for persons dem

and that they be kept alive at all co

sts--o r th

a t w

e p

e rfo

rm n

o n vo

lu n ta

ry e u th

a -

nasia to allow them

to die w ith dlgm

ty?

W hat 18 dear in K

ant's theory is that suicide is prohibited because It treats persons as m

ere things and obliterates personhood. K

ant asserts that "IT

]he rule of m orality does not adm

it of [suicide] under any condition because it degrades hum

an nature below the level of anim

al nature a

n d

so d

e stro

ys it;' It is a lso

a p

p a

re n

t o n

K a

n t's

view that com

petent persons m ust not be ldlled

N a

n cy

C ru

z a

n ÿÿ

K E

Y T

E R

M S

active euthanasia euthanasia in

vo lu

n ta

ry e u

th a

n a

sia nonvoluntary euthanasia passive euthanasia physician-assisted suicide voluntary euthanasia

S U

M M

A R

Y E

uthanasia is du'ectly or indirectly bringing about the death of another person for that person's sake. A

co m

m o n d

istin ctio

n is th

a t a

ctive e

u th

a n a sia

involves perform ing an action that directly causes

som eone's death, w

hile passive euthanasia is al- low

ing som eone to die by not doing som

ething to prolong life V

oluntary euthanasia is perform ed

w hen com

petent patients request or agree to it; n

o n

vo lu

n ta

ry e u

th a

n a

sia , w

h e

n p

a tie

n ts a

re n

o t

com petent to chose for them

selves and have not prevm

usly disclosed their preferences. Invol- untary euthanasia, both illegal and m

orally im -

perm issible, is bringing about som

eone's death against her w

ill or w ithout askang for her consent.

In physician-assisted suicide a patient takes his ow

n life w ith the help of a physician.

D eath traditionally has been understood as the

cessation of breathing and heartbeat, but m edical

advances have rendered this notion problem atic.

The w hole brain view

is now the standard in legal

and m edical m

atters. It says that an individual should be judged dead w

hen all brain functions perm

anently stop. M any experts object to this

definition because som e physiological processes

such as respiration are partly independent of brain functions, a fact that w

ould suggest on the w

hole blain view that individuals in persistent

vegetative states w ith som

e brain activity m ust

be considered alive. A n alternative notion IS

the

interrupted 11

W hen inevitable death is im

m inent in spite of

the m eans used, it is perm

itted m conscm

nce to take the decision to refuse fozm

s of treatm ent

that w ould only secure a plecarious and burden-

som e plolongation of hfe, so long as the norm

al care due to the sick person in sim

ilar cases is not

In the 1990 case of C ruzan v. D

irector, M issouri D

epart- m

ent of H ealth, the U

.S . S

uprem e C

ourt Issued its first m

om entous ruhng m

volw ng an m

dlw dual's "m

ght to d,e." The question w

as w hether a feeding tube could

be rem oved from

a young w om

an nam ed N

ancy C ru-

zan, w ho had been left m

a persistent vegetative state after a terrible car crash

O n January I I, 1983, N

ancy C ruzan's car over-

turned on an m y road m

M issouri, flinging her into a

ditch and stopping her heart. B y the um

e param edics

restarted It, her brain had been oxygen-deprived for at least 15 m

inutes. The resulting brain dam age w

as profound and perm

anent. S o at age 25 she fell into

a persistent vegetative state, a bem ghted condition

of m inim

al brain acuvlty w ithout consciousness or

purposeful behavior. "T he vegetative state," says an

expert panel, "is a clinm al condiuon of com

plete un- aw

areness of the self and the environm ent .... R

ecov-

ery from a nontraum

auc persistent vegetative state after three m

onths is exceedingly rare.'"2 N ancy lin-

gered m that state for years, her body coiled into

a rigid fetal posiU on, nourished only by a surgically

im planted feeding tube. A

fte r th

re e

ye a

rs o f h

o p

in g

th a

t N a

n cy w

o u

ld som

ehow recover, her parents finally asked that the

feeding tube be rem oved so she could die in peace.

"Y ou try your dam

nedest as long as there's hope," stud N

ancy's father, "and then w hen there is none

a n ym

o re

, yo u m

u st le

t h e r g

o ."

B ut authorm

es m the state of M

issouri saw things

differently. They sought to block the rem oval of N

an- cy's feeding tube. The M

issouri S uprem

e C ourt stud that

the state has an extrem ely strong interest m

preserv- ing hfe and that the C

ruzans m ay not disconnect them

daughter's feeding tube w ithout "clear and convincing

evidence" of w hat N

ancy w ould have w

anted. A t one

tim e she had m

entioned to a friend that she w ould not

w ant to be kept ahve like a "vegetable," but she had left

no hying w ill or other explicit m

strucuons. The C

ruzans appealed to the U .S

. S uprem

e C ourt,

and m June 1990 It delivered ,ts far-reaching decision

in Its first rÿght-to-dle case. The C ourt held that M

ÿs- sourÿ had a legitim

ate interest m dem

anding "clear and convincing evidence" of an incom

petent indlw d-

ual's preferences. B y sanctioning tN

s sm ct standard

of evidence, the C ourt effectively ruled against the

C ruzans. B

ut m m

aking its decision, It also lind out som

e w eighty principles pertaining to a person's end-

of-hfe chom es.

The C ourt found that com

petent indÿw duals have

a constitutionally guaranteed "liberty interest" m re-

fusing m edical treatm

ent, even w hen refusing could

bring about thew death. A

nd for the first tim e, It ac-

know ledged that ff a person becam

e incom petent,

this right could be exem sed through a living w

dl or by a designated surrogate. S

tates could stdl restrict this liberty interest, how

ever, ff a person's refusal of treatm

ent w as not stated clearly or strongly enough.

A s part of ÿts case, the state argued that there w

as a difference betw

een w ithdraw

ing m edm

al treatm ent

and w ithdraw

ing food and fluids. B ut the S

uprem e

C ourt recognized no such distraction.

A few

m onths after the C

ourt's ruhng, M issouri

said it w ould stop opposing the C

ruzans' efforts, and a M

issouri ludge declared that the evidence of N an-

cy's intent w as sufficiently convincing. In D

ecem ber

1990 he ordered her feeding tube rem oved.

O n D

ecem ber 26, 1990, at the age of 33 and

nearly eight years after her accident, N ancy C

ruzan died peacefully.

higher brain standard, w hich asserts that indi-

viduals are dead w hen the higher brain functions

responsible for consciousness perm anently dose

dow n. This view

lm phes that those in persistent

vegetative states w hose higher brain functions

have irreversibly ceased are dead. T

h e

m a

in a

rg u

m e

n t fo

r th e

m o

ra l p

e im

issl- bihty of active voluntary euthanasia is an appeal

to autonom y. It contends that respecting people's

in h e re

n t rig

h t o

f se lf-d

e te

rm in

a tio

n m

e a n s re

- sp

e ctin

g th

e ir a

u to

n o m

o u s ch

o ice

s a b o u t e

n d -

ln g th

e il h

ve s. A

n o th

e r m

a jo

r a rg

u m

e n t a

p p e a ls

to the principle of beneficence, or m ercy: If w

e are in a position to relieve the severe suffering of a n o th

e r w

ith o u t e

xce ssive

co st to

o u rse

lve s, w

e have an obligation to do so.

A n

im p

o rta

n t a

rg u

m e

n t a

g a

in st a

ctive vo

lu n

- tary euthanasia appeals to the supposed m

oral difference betw

een killing and letting die K illing

is thought to be w orse than letting die, so giving

a patient a lethal injection to effect an easy death is w

rong, but disconnecting his feeding tube m

ay be peim isslble. C

ritics algue that there is no m

orally significant dlffelence betw een these tw

o Those opposed to voluntary euthanasia m

ake a related distraction betw

een intending som eone's

death and not intending but foreseeing it T he

form er is said to be w

rong; the lattel, perm issible.

M any are skeptical of this distinction as w

ell. V

ery often cases agam st active euthanasia and

physician-assisted suicide are built on slippery- slope argum

ents, w hich contend that allow

ing these practices w

ould inevitably lead to abuses, m

ost notably unjustified killing T ypically, both

those w ho m

ake these argum ents and those

w ho criticize them

appeal to em pirical data on

the legalized use of euthanasia or physician- assisted suicide in O

regon or the N etherlands

B ut the data are sparse and subject to m

uch de- bate, leaving the key prem

ise in m ost slippery-

slope argum ents w

eak.

C a

s e

s fo

r E v a

lu a

tio n

C ASE m

D octor-A

ided S uicide

a n d "V

u ln

e ra

b le

G ro

u p s"

(S ctenceD

ady)--C ontrary to argum

ents by critics, a U

niversity of U tah-led study found that legahzing

physician-assisted suicide in O tegon and the N

eth- erlands did not result m

a dispropoltionate num ber

of deaths am ong the eldm

ly, pooi, w om

en, m inori-

ties, uninsured, m lnoi s, chronically 111, less educated,

or psychiati ic patients. O

flo "vulnerable groups" exam ined in the study,

only A ID

S patients used doctor-assisted suicide at

elevated rates. "F

eais about the im pact on vulnerable people

have dom inated debate about physician-assisted

suicide W e find no evidence to support those fears

w heIe this practice aheady is legal;' says the study's

lead author, bxoethlclS t M

argaret B attln, a U

m velsity

of U tah distinguished professoI of philosophy and

adjunct professor of lnteinal m edicine.

The study w ill be published in the O

ctober 2007 issue of the Journal of M

e& cal E

thics. B attxn con-

ducted the research w ith public health physician

A gnes van dei H

eide, of E rasm

us M edical C

entex, R

otteidam , psychiatrist Linda G

anzini at O regon

H ealth &

S cience U

niveIslty, P ortland, and physi-

cian G m

rIt van der W al and health scientist B

regje O

nw uteaka-P

hihpsen, of the V U

U niveIsW

M edical

C enter, A

m sterdam

. V an dei W

al cm rently is lnspec-

tol genelal of T he N

etherlands H ealth C

aIe Inspec- torate, w

hich advises that nation's health m lnistei.

lhe lesearch deals w ith the so-called "shppeIy-

slope" argum ent that has been m

ade by cutics of doctor-assisted suicide and has raised concern even am

ong proponents T he argum

ent is that by m abng

it legal foI m edical doctors to help ceitain patients

end their lives, vulnerable people w ill die in dispro-

portionately large num bers.

"W ould these patients be pressured, m

anipulated or forced to request or accept physician-assisted dy- ing by overbuIdened fam

ily m em

bers, callous phy- sicia

n s, o

r in stitu

tio n

s o r in

su re

rs co n

ce rn

e d

a b

o u

t

their ow n pxofits;' the researcheis asked

The A m

erican C ollege of P

hysicians said in 2005 that it w

as "concerned w ith the i lsks that legahzatxon [of

physician-assisted suicide] posed to vulnerable popula- tions, including poor pm

sons, patients w ith dem

entia, disabled persons, those flora nÿinority groups that have experienced dlscrnm

natlon, those conflontm g costly

chronic illnesses, or rely young children;' B

attln's team analyzed data on assisted suicide and

voluntaxy active euthanasia in the N etherlands dur-

ing 1985-2oo5--data taken from foui governm

ent

studies and seveIal sm allei ones T

hey analyzed {S i-

egon D epartm

ent of H um

an S m

vIces annual ieports fol 1998-2oo6, and sm

veys of physicians and hos- pice piofesslonals

T he findings fell into thIee categoues, based on

the strength of the data T he lesealchm

s found'

• D irect evidence that eldeily people, w

om en,

and uninsured people do not die in dispro- portionate num

bei s w here physician-assisted

death is legal, but AID S patients do (The

insurance data is from O

regon only; everyone is insured in the N

etherlands ) , E

vidence that IS partly direct and paitly m

- fel 1 ed show

ing that physician-assisted death does not kill disproportionate num

beI s of people w

ho are poor, uneducated, racial and ethnic m

inorities, m lnoIs, or people w

ith chronic physical O

l m ental disabihtles or

chronic but not term inal illnesses.

° E vidence that is based on infeience or that

is partly contested show ing that people w

ith psychIatuc illness--Including depression and A

lzhelm ei's disease--are not likely to die in

lopsided num bers

"T hose w

ho lecelved physician-assisted dying appeared to enjoy com

parative social, econom ic,

educational, professional and other privileges;' the 1 eseal chers w

rJte.

T he researchers noted that in both O

regon and the N

etherlands, people w ho leceived a doctor's help

in dying averaged 7o years old, and 8o percent w eie

cancer patients *

S uppose &

e data of thts study ate accurate W ould

they show that all shppepy-slope atgum

ents against phystcm

n-asststed suictde are unsuccessful? S uppose

the study proved that legahzatton did hal m vulner-

able populations. W ould that finding suppott the

conclusion that physician-assisted sutcM e should not

be Iegahzed under any C llC

U m

stances? W hat m

ight som

eone w ho is opposed to legahzatton say about this

studyÿ O r som

eone w ho favol s legahzatlon? H

ow does

the new s of this study affect your ow

n view s on legal-

lzatton? G ive reasons for your answ

er.

*"D octor-A

ided S m

clde N o S

hppely S lope, S

tudy Flnds;' S

cience D m

ly, 29 S eptem

bm 2oo7, http//w

w w

scw ncedafly

com /releases/2oo7/og/oTog26191348 htm

(m Febl um

y 2oo8)

C A

S E

2 S

uicide P acts A

m ong Friends

(London T elegraph)--Jennl M

urlay, the piesenter of B

B C

R adio 4's W

om an's H

our, has m ade plans to end

hei life if she becom es a bulden to her fam

ily S

he said. "W hen m

y tim e com

es I w ant to be able

to decide about m y destln)d'

T he last thing she w

anted, she said, w as for hel

children to suffei from her being desperately 111.

She as sealing a pact w ith tw

o filends that they w ill

assist each other to die if any of them is diagnosed w

ith a debihtatlng and incui able Illness. M

ethods they m ight

use include injections or sm othering w

ith a pillow .

T his is despite a law

outlaw m

g assisted suicide, w

hich M urIay says is sustained by a religious m

m ollty

S he speaks of the pact tom

orrow night on a C

han- nel 5 docum

entary, D on't G

et M e S

lat ted!, that pro- duces statistics to back the theory that m

any people in the country shale heI view

s on euthanasia H

ei appearance is part of a "personal iant" series in w

hich noted people are given the chance to sound off about a subject they feel strongly about.

P u

b lio

ty m a

te ria

l fo r th

e sh

o w

sa ys th

a t M

u r-

ray "does not w ant to look after hei sick and aging

m other, and plans to end her ow

n life w hen she be-

com es a burden to those around her"

T he netw

ork said: "Jennl is angry that, having fought so hard to becom

e liberated and indepen- dent, w

om en are now

being happed into caring for dependent parents"

M un ay, 56, flom

B arnsley, S

outh Y orks, has been

pIesenting W om

an's H our since 1987 In 1999 she w

as aw

arded an O B

E for 1 adio bloadcasting

H ei pact is w

ith S ally F

eldm an, a foim

er edxtoI of W

om an's H

our, and Jane W ilton, anothei friend

T hey plan to sign a w

ritten agreem ent

M u

rra y is th

e vice

-p re

sid e

n t o

f a so

cie ty th

a t

concerns itself w ith P

arkanson's disease, w hich hei

m other suffeIs from

H er father is a catei

6 0 8 P

A R

T 3

: L IF

E A

N D

D E

A T

H C

h a p te

l I0 : E

u th

a n a sia

a n d N

'ly,ÿicla n ..A

ssiÿte d S

u ÿcld

e 6

0 9

In the program m

e she em phaslses that, w

hile she supports her friends helping her to die, she w

ould fin

d it h

a td

to d

o th

e sa

m e

if h e

r m o

th e

r to ld

h e

r "L

e t m

e g

o "*

D o you agree w

ith M urray's decm

on? D oes she have

a right to take her life for any reason? Is not w anting

to be a burden to one's fam ily a good reason? Should

assisted-suicide pacts be legalizeda Is it just as m oral

(or im m

oral) to assist m a frm

nd's suicide as tt is to &rectly kdl her ? Explain your answ

ers

*H ugh D

avaes, "Jenm M

urray M akes a S

m cide P

act;' Telegraph co uk, 14 A

ugust 2006, http/A ÿvw

teleglaph co uk/new s/m

am jhtm

lÿxm I,eq/new

s/2oo6/o8h4/nm urray14 xm

l (lO February

2 o

o 8

).

CASE :3 "B

aby E uthanasia"

(T tm

esO nhne)--W

hen F rank and A

nita's daughter C

h a n o u w

a s b

o rn

w ith

a n e

xtre m

e ly ra

re , in

cu r-

able illness in A ugust 2ooo, they lm

ew that her life

w ould be short and battled against the odds to m

ake it happy.

They struggled around the clock against their baby's pain. "W

e tried all sorts of things" said A nita,

a 37-year-old local governm ent w

orker. "S he cried all

the tim e. E

very tim e I touched her it hurt"

C hanou w

as suffering fi'om a inetabohc disorder

that had resulted in abnorm al bone developm

ent. D

octors gave her no m ore than 3o m

onths to live. "W

e felt terrible w atching her suffer" said A

nita at their hom

e near A m

sterdam . "W

e felt w e w

ere let- ting her dow

n" F

ra n k a

n d A

n ita

b e g

a n to

b e lie

ve th

a t th

e ir

daughter w ould be better off dead "She kept throw

- ing up m

ilk that w as fed through a tube in her nose;'

said A nita. "S

he seem ed to be saying, 'M

um m

y, I don't w

ant to live any m ore. Let m

e go'" E

ventuall)ÿ doctors agreed to help the baby die at seven m

onths T he feeding w

as stopped. C hanou

w as given m

orphine "W e w

ere w ith her at that last

m om

ent" said A nita. "S

he w as exhausted S

he took a very deep last breath. It w

as so peaceful. It m ade m

e

feel at peace inside to know that she w

asn't suffering any m

ore:' E

ven so, they felt that the suffering had gone on too long. C

hild euthanasia is illegal in H olland and

doctors w exe afraid of being prosecuted "It w

as a long road to find the hum

ane solution that w e reluctantly

decided w e w

anted;' said Frank, a bank w orker.

E ach year in H

olland at least 15 seriously 111 ba- bies, m

ost of them w

ith severe spina bifida or chro- m

osom al abnorm

ahtles, aie helped to die by doctors acting w

ith the parents' consent. B ut only a fraction

of those cases are reported to the authorities because of the doctors' fears of being charged w

ith m urder.

T hings are about to change, how

ever, m aking it

m uch easier for parents and doctors to end the suf-

fering of an infant A

com m

ittee set up to regulate the practice w ill

begin operating in the next few w

eeks, effectively m

aking H olland, w

here adult euthanasia is legal, the first country in the w

orld to allow "baby euthanasia"

as w ell.

2he developm ent has angeied opponents of eutha-

nasia w ho w

arn of a "sllppei y slope" leading to abuses by doctors and parents, w

ho w ill be m

aking decisions for individuals incapable of expressing a w

ill O

thers w elcom

e m ore openness about a practice

that, according to doctors, goes on secretly any- w

ay-even in B iitaln--regardless of the law

. "It is a giant step forw

ard and w e are very happy about it;'

said E duard V

erhagen, clinical director of paedlat- rlcs at the U

niversity M edical C

entre in G roningen,

northern H olland

A nti-euthanasia cam

paigners have been address- lng hate m

ail to "D r. D

eath;' as they call him , ever

since he adm itted having personally overseen four

"assisted neo-natal term inations" H

e then began draw

ing up gm dehnes for doctors carrying out eu-

thanasia on babies It forced the governm

ent to confront the issue and V

erhagen's so-called "G roningen protocol" has

been adopted as the standard to be upheld by the regulatory com

m ittee.

It em phasises that life can be ended only in cases

involving "unbearable suffering;' w ith parental con-

sent and after consultation w ith other physicians.

"If a child is untreatably 111" V erhagen explained,

"there can be horrendous suffering that m akes the

last few days or w

eeks of this child's life unbealable N

ow the question is. A

ie you going to leave the child hke that or are you going to prevent that suffering?" H

e w ent on. "D

oes the child have to sit it out until the end? W

e think that the answ er IS

no. There can be C

llC U

m stances w

here, under veiy strict conditions, if all the requirem

ents are fulfilled, active ending ofhfe can be an option--but only in cases of untreatable disease and unbearable suffeixng"*

H ow

w ould you respond to V

erhagen's questions in the last paragraph? D

o you beheve that neonatal eutha- nasia pet form

ed undel the strict conditions desctibed by Vethagen ts m

om lly pernusstbleÿ W

hy or w hy not?

Should it be legalized?

*"H o lla

n d to

A llo

w 'B

a b y E

u th

a n a sta

,'" T m

a e sO

n lln

e , 5

M a

lch

2.006, http//w ÿvw

tÿm esonhne co uk/artlcle/o,,2o89-2o69963

,oo htm l (m

Februm y 2oo8)

F U

R T

H E

R R

E A

D IN

G M

argaret P abst B

attm , E

nding D fe E

thics and the W ay

W e D

ie (N ew

Y ork. O

xford U niversity P

less, 2oo5) Tom

L B eaucham

p, ed, Intending D eath. The E

thics of Assisted Sm

ctde and Euthanasm (U

pper Saddle R lveI,

N J P

rentice-H all, 1996).

R B

B iandt, "2he M

orahty and R atlonahty of S

uicide;' in A

H andbook fol the S

tudy of S uiclde, ed S

eym our

P erhn (N

ew Y

ork O xford U

niversity P less, 1975),

61-75 Lonnie R

B rlstow

, P resident of the A

m erican M

edical A

ssociation, "S tatem

ent on P hysician-A

ssisted S ui-

cide B efore the U

nited S tates H

ouse of R epiesenta-

tlves C om

m ittee on the Judiciary, S

ubcom m

ittee on the C

onstitution" C ongtesstonal R

ecord, A pril 29,

1996 D

an W . B

rock, "M edical D

ecisions at the E nd of Life" in

A C om

panion to Btoethtcs, ed H elga Kuhse and Peter

S lngei (M

alden, M A

B lackw

ell, 2O O

l), 231-4a G

erald D w

orkm , "P

hysician-A ssisted D

eath ÿe S tate of

the D ebate,' In The O

xford H andbook ofB

loethtcs, ed B

onnie S tem

bock (O xford: O

xford U nw

ersity P ress,

2oo7), 375-92. G

erald D w

orlon, R . Frey, and S

B ok, E

uthanasia and P

hysician-A ssisted S

uicide (C am

bridge C am

biidge U

niversity Press, 1998) P

hihppa Foot, "E uthanasia" P

hdosophy dÿ P ubhc A

ffans 6.2 (1977), 85-112

W alteI G

lannon, "M edical D

ecisions at the E nd of Life"

in B iom

edical E thics (N

ew Y

olk O xfoid U

niversity P

le ss, 2

o o

5 ), 1

1 9

-4 2

Jonathan G lovel, "The S

anctity of Life" in B toethtcs A

n A

nthology, ed H elga K

uhse and P etel S

inger (O xfold

B lackw

ell, 1999), 193-2o2 L e o n K

iss, "Is T h e re

a R

ig h t to

D le

ÿ" H a stin

g s C

e n te

p R

epot t 23 1 (1993), 34-43 M

aik M urphy, "The N

atm al Law

Tradition in E thics" in

S tanfm

d E ncyclopedia of P

hilosophy, Ii M alch 2008,

http//plato.stanford edu/entrles/natural-law -ethlcs

(9 June 2oo8) N

ew Y

ork S tate Task Force on Life and the Law

, W hen

D eath Is S

ought A ssisted S

uicide and E uthanasia m

the M edical C

ontext (Albany. N ew

York State D epai t-

m ent of H

ealth, A pil11997).

Louis P P

o)m an, "E

uthanasia;' in Life and D eath (B

el- m

ont, C A

. W adsw

orth, 2ooo), 85-94 T

he P resident's C

om m

ission for the S tudy of E

thical P

ro b le

m s in

M e d icin

e a

n d B

io m

e d ica

l a n d B

e h a v-

ioral R esearch, D

efining D eath (W

ashington, D C

. G

oveinm ent P

rinting O ffice, 198I)

P e te

l S in

g e r, "V

o lu

n ta

ry E u th

a n a sia

. A U

tilita ria

n P

e i-

spective," B toethtcs 175-6 (2oo3), 526-41

B onnie S

teinbock and A lastan N

oicxoss, ed, K dhng and

Letting D ie, 2nd ed (N

ew Y

ork Foidham U

nlveaslty Press, 1994)

R obert Y

oung, "V oluntary E

uthanasia;' an 77w S

tanford E

ncyclopedia of P hdosophy (W

lntei 2oo7 ed ), ed. E

dw m

d N . Zalta, http.//plato stanford edu/alchives/

w m

aoo7/entrles/euthanasla-voluntary/ (zoo8)

N O

TE S

1 A definition suggested by P

hdippa Foot (in "E utha-

nasm ;' Phdosophy dÿ Pubhc Affairs 6 2 [1977], 85-112)

and by H elga K

uhse (in "E uthanasia;' in A

C om

pam on to

E thics, ed. P

eter S lngeI [O

xford. B lackw

ell, 1933], 294- 302 ) 2 A

m erican M

edical A ssociation, O

pinions of the Ju- dicial C

ouncil (C hicago. A

m eIican M

edical A ssociation,

1973) 3 R

obert Y oung, "V

oluntary E uthanasia;' in The S

tan- ford Encylopedta of Phdosophy (W

inter 2007 ed.), ed E

dw ard N

Z alta, http//plato stanford.edu/archlves/

w m

2007/entrxes/euthanasia-voluntaI y (28 Januaiy 2008). 4 D

a n W

B lo

ck, "V o lu

n ta

ry A ctive

E u th

a n a sia

" H a st-

rags C entel R

eport 22 2 (M arch/A

pli1 1992), 11-12, 14- 17, 19-21 5 Ja

m e s R

a ch

e ls, 'ÿctxve

a n d P

a ssive

E u th

a n a sia

;' N

ew England Join nil of M

edicine 292 2 (9 January 1975), 79

610 P A

R T ],' L1FE

A N

D D

E A

Th1

6 W inston N

esbltt, "Is K dhng N

o W orse ÿaan Letting

D ieT" ]out hal ofApphed Pht]osoph,v 12 1 (1995), 101-5 7 D

an W . B

rock, "M edical D

ecisions at the E nd of Life;'

in A C

om panion to B

toethtcs, ed H elga K

uhse and P eter

S inger (M

alden, M A

. B lackw

ell, 2001), 240 8 J G

ay-W llham

s, "2he W longfulness of E

uthanasia;' m

InteJventton and R eflection. B

asic Issues tn M e&

cal E

thics, 7th ed., ed R onald M

unson (B elm

ont, C A

. W ads-

w orth, 2004), 710-11

9 P

e te

r S in

g e

r, "V o

lu n

ta ry E

u th

a n

a m

a ' A

U tlh

ta n

a n

Perspective," Bioethics 17 5-6 (2003), 526-41. 10 S

acred C ongregation fm

the D octrine of the Faith,

D eclaration on E

uthanasm (V

atican C ity 21ÿe V

atm an,

1980) 11. T

he M ultl-S

ocm ty T

ask F m

ce on P V

S , "M

edical A s-

pects of the P ersistent V

egetative S tate;' N

ew E

ngland Journal of M

edtctne 330 21 (26 M ay 1994), 1499-1508

D eath and D

ignity: A C

ase of Individualized D ecision

M aking

TIM O

TH Y E Q

U ILL

Q uill recounts the story of D

iane, a patient of his w ith term

inal cancer w ho w

anted to face death w

ith dlgm ty and on her ow

n term s H

e adm its that although he dtd not

dw ectly assist her m

com m

itting sum lde, he "helped m

dw ectly to m

ake it possible, suc-

cessful, and relatw ely painless." Q

udl says that from this experience he learned about,

am ong other things, "the range of help I can provide if I know

people w ell and ff I al-

low them

to say w hat they really w

ant."

D iane w

as feeling tired and had a rash A com

m on

scenario, though there w as som

ething subhm m

ally w

orrisom e that prom

pted m e to check her blood

count. H er hem

atocrit w as zz, and the w

hite-cell count w

as 4 3 w ith som

e m etam

yelocytes and un- u su

a l w

h ite

ce lls. I w

a n te

d it to

b e vira

l, tryin g to

deny w hat w

as staring m e in the face P

erhaps in a repeated count it w

ould disappear I called D iane

and told hei it m ight be m

oie senous than I had in- itially thought--that the test needed to be repeated and that if she felt w

orse, w e m

ight have to m ove

quickly W hen she pressed for the posslbihtles, I re-

luctantly opened the door to leukem ia H

earing the w

ord seem ed to m

ake it exist "O h, shIt!" she said.

F lom

T im

othy E Q

uill, "D eath and D

xgm ty A

C ase of

Indlw duallzed D

ecision M aking," N

ew E

nglaJM Join hal of

M edicine, 324, no 10 (M

axch 7, 1991) 691-694

"D on't tell m

e that" O h, shltI I thought, I w

ish I did-

n't have to. D

iane w as no ordinary person (although no one

I have ever com e to know

has been really ordinary). S

he w as IaIsed in an alcohohc fam

ily and had felt alone for m

uch of her hfe. S he had vaginal cancer as

a young w om

an, Through m uch of her adult hfe, she

had struggled w ith depression and her ow

n alcohol- ism

. I had com e to know

, respect, and adm ire her

over the previous eight years as she confronted these problem

s and gradually overcam e them

S he w

as an in

cle &

b ly cle

a i, a

t tim e

s b ru

ta lly h

o n

e st, th

in ke

r and com

m unicator A

s she took control of her life, she developed a strong sense of independence and confidence In the previous 3V

ÿ years, her haid w ork

had paid off S he w

as com pletely abstinent from

alcohol, she had established m uch deeper connec-

tions w ith her husband, college-age son, and sevelal

friends, and her business and her artistic w ork w

ere

blossom ing S

he felt she w as really hving fully for the

first tim e

N ot surprisingly, the repeated blood count w

as abnorm

al, and detailed exam m

atlon of the periph- elal-blood sm

eai show ed m

yelocytes. I advised hei to com

e into the hospital, explaining that w e needed

to do a bone m arrow

biopsy and m ake som

e deci- sio

n s re

la tive

ly ra p id

ly S h e ca

m e to

th e h

o sp

ita l

know ing w

hat w e w

ould find S he w

as terrified, an- gry, and sad A

lthough w e knew

the odds, w e both

clung to the thIead of possibility that it m ight be

som ething else.

T h

e b

o n

e m

a lIO

W co

n film

e d

th e

w o

rst a cu

te m

yelom onocytic leukem

m . In the face of this trag-

edy, w e looked foI signs of hope. T

his is an area of m

edicine in w hich technological inteIventlon has

been successful, w ith cules 25 percent of the tim

e-- long-term

cuies. A s I probed the costs of these cules,

I heal d about induction chem otherapy (three w

eeks in the hospital, prolonged neutropenla, piobable in- fectious com

plications, and hm r loss; 75 percent of

patients lespond, z5 percent do not) F ol the suIvi-

vors, this is follow ed by consohdatm

n chem othel-

apy (w ith sim

dai side effects, another z5 percent die, for a net suivlval of 50 percent). T

hose stdl alive, to have a leasonable chance of long-telm

survival, then need bone m

arrow transplantation (hospitah-

zatlon for tw o m

onths and w hole-body irradiation,

w ith com

plete kdhng of the bone m arrow

, m fectlous

com plications, and the possibility for graft-veisus-

h o st d

ise a se

--w ith

a su

rviva l o

f a p p ro

xim a te

ly 5 o p

e tce

n t, O

l z5 p

e rce

n t o

f th e o

n g in

a l g

ro u p ).

Though hem atologists m

ay argue ovel the exact per- centages, they don't argue about the outcom

e of no treatm

ent--certain death in days, w eeks, or at m

ost a few

m onths.

B elieving that delay w

as dangerous, our oncol- oglst broke the new

s to D iane and began m

aking plans to m

sert a H lckm

an cathetel and begin induc- tion chem

otherapy that afternoon W hen I saw

hel shortly thereaftel, she w

as enraged at his presum p-

tion that she w ould w

ant tieatm ent, and devastated

by the finality of the diagnosis. All she w anted to do

w as go hom

e and be w ith her fam

ily S he had no fur-

thei questions about tleatm ent and m

fact had de- cided that she w

anted none. T ogether w

e lam ented

hei tragedy and the unfanness of life. B efore she left,

I felt the need to be suie that she and her husband undeistood that theie w

as som e risk in delay, that

the ploblem w

as not going to go aw ay, and that w

e needed to keep considering the options oveI the next several days. W

e agreed to m eet in tw

o days S

he returned in tw o days w

ith her husband and son. T

hey had talked extensively about the prob- lem

and the options S he rem

ained very clear about her w

ish not to undeigo chem otherapy and to live

w hatever tim

e she had left outside the hospital. A s

w e explored her thinking further, it becam

e clear that she w

as convinced she w ould die during the

period of treatm ent and w

ould suffer unspeakably in the process (from

hospitalization, fi'om lack of

control ovei hel body, from the side effects of che-

m otheiapy, and fi'om

pain and anguish). A lthough

I co u

ld o

ffe r su

p p

o rt a

n d

m y b

e st e

ffo rt to

m in

i- m

ize her suffering if she chose treatm ent, there w

as no w

ay I could say any of this w ould not occur. In

fact, the last foul patients w ith acute leukem

ia at our hospital had died very painful deaths In the hospital during various stages of tieatm

ent (a fact I did not share w

ith hel) H er fam

ily w ished she

w ould choose treatm

ent but sadly accepted her de- cision. S

he articulated very cleaily that it w as she

w ho w

ould be experiencing all the side effects of tre

a tm

e n t a

n d th

a t o

d d s o

f 2 5 p

e rce

n t w

e re

n o t

good enough for her to undergo so toxic a course of therapy, given her expectations of chem

other- apy and hospitahzatm

n and the absence of a closely m

atched bone m arrow

donor I had hel Iepeat hm understanding of the tieatm

ent, the odds, and w hat

to e

xp e ct If th

e re

w e re

n o tre

a tm

e n t. I cla

ilfie d a

few m

isunderstandings, but she had a lem arkable

grasp of the options and im plications.

I have been a longtim e advocate of active, in-

form ed patient choice of treatm

ent or nontleatm ent,

and of a patient's right to die w ith as m

uch control and dlgnW

as possible. Y et there w

as som ething

about hm giving up a z5 percent chance of long-term

survival in favoi of alm ost certain death that dis-

turbed m e I had seen D

iane fight and use her con- sidelable innel resources to overcom

e alcoholism and depressm

n, and I half expected her to change her m

ind ovel the next w eek. S

ince the w indow

of tim

e in w hich effective treatm

ent can be m ltm

ted is rather narrow

, w e m

et sevetal tim es that w

eek W e

obtained a second hem atology consultation and

ta lke

d a

t le n

g th

a b

o u

t th e

m e

a n

in g

a n

d im

p lica

- tions of treatm

ent and nontreatm ent. S

he talked to a psychologist she had seen in the past. I gradually undelstood the decision from

her perspective and becam

e convinced that it w as the right decision for

her. W e arranged for hom

e hospice caie (although at that tim

e D iane felt reasonably w

ell, w as active, and

looked healthy), left the door open fol her to change her m

ind, and tried to anticipate how to keep her

com fortable in the tim

e she had left. Just as I w

as adjusting to her decision, she opened up another area that w

ould stretch m e profoundly

It w as extraordinarily im

portant to D iane to m

ain- tam

control of herself and her ow n dignity during

the tim e rem

aining to her. W hen this w

as no longer possible, she clearly w

anted to die. A s a form

er di- rector of a hospice program

, I know how

to use pain m

edicines to keep patients com fortable and lessen

su ffe

lln g

. I e xp

la in

e d

th e

p h

ilo so

p h

y o f co

m fo

rt care, w

hich I strongly believe in. A lthough D

iane understood and appreciated this, she had know

n of people lingering in w

hat w as called relative com

fort, and she w

anted no part of it W hen the tim

e cam e,

she w anted to take her life in the least painful w

ay possible. K

now ing of her desire for independence

and her decision to stay in control, I thought this request m

ade perfect sense. I acknow ledged and ex-

plored this w ish but also thought that it w

as out of the realm

of currently accepted m edical practice and

that it w as m

ore than I could offer or prom ise. In our

discussion, it becam e clear that preoccupation w

ith her fear of a lingering death w

ould interfere w ith D

I- ands getting the m

ost out of the tim e she had left un-

til she found a safe w ay to ensure heI death I feared

the effects of a violent death on her fam ily, the conse-

quences of an ineffective suicide that w ould leave her

lingering in precisely the state she dreaded so m uch,

and the possibility that a fam ily m

em ber w

ould be forced to assist her, w

ith all the legal and personal repercussions that w

ould follow . S

he discussed this at length w

ith her fam ily. They beheved that they

should respect her choice. W ith this in m

ind, I told D

iane that inform ation w

as available from the H

em -

lock Society that m ight be helpful to her.

A w

eek later she phoned m e w

ith a request for barbiturates for sleep. S

ince I knew that this w

as an

essenhal lngledlent in a H em

lock S ociety suicide, I

asked her to com e to the office to talk things over.

S he w

as m ore than w

illing to protect m e by par-

ticlp a tm

g m

a su

p e ificia

l co n ve

rsa tio

n a

b o u t h

e r

Insom nia, but It w

as Im poitant to m

e to know how

she planned to use the drugs and to be sure that she w

as not in despair or overw helm

ed in a w ay that

m ight color her judgm

ent. In our discussion, it w as

apparent that she w as having trouble sleeping, but it

w as also evident that the secunty of having enough

barbiturates available to com m

it suicide w hen and

if the tim e cam

e w ould leave her secure enough to

live fully and concentrate on the present It w as dear

that she w as not despondent and that in fact she w

as m

aking deep, personal connections w ith her fam

ily and close friends. I m

ade sure that she knew how

to use the barbiturates for sleep, and also that she knew the am

ount needed to com m

it suicide. W e agreed to

m eet regularly, and she prom

ised to m eet w

ith m e

before taking her hfe, to ensure that all other avenues had been exhausted. I w

rote the prescription w ith an

uneasy feeling about the boundaries I w as explor-

ing-spiritual, legal, professional, and personal. Y et

I also felt strongly that I w as setting her free to get

the m ost out of the tim

e she had left, and to m ain-

tam dignity and control on her ow

n term s until her

death. T

he next several m onths w

ere very intense and im

p o rta

n t fo

r D ia

n e . H

e r so

n sta

ye d h

o m

e fro

m college, and they w

ere able to be w ith one another

and say m uch that had not been said earlier. H

er husband did his w

ork at hom e so that he and D

i- ane could spend m

ore tim e together S

he spent tim e

w ith her closest friends. I had her com

e into the hos- pital for a conference w

ith our residents, at w hich

she illustrated in a m ost profound and personal w

ay the im

portance of Inform ed decision m

aking, the rig

h t to

re fu

se tre

a tm

e n

t, a n

d th

e e

xtra o

rd in

a rily

personal effects of illness and interaction w ith the

m edical system

. T here w

ere em otional and physical

hardships as w ell. S

he had periods of intense sad- ness and anger. S

everal tim es she becam

e very w eak,

but she received transfusions as an outpatient and responded w

ith m arked im

provem ent of sym

ptom s

S he had tw

o serious infections that responded sur- prisingly w

ell to em pirical courses of oral antibiot-

ics. A fter three tum

ultuous m onths, there w

ere tw o

w eeks of Ielatlve calm

and w ell-being, and fantasies

of a m iracle began to surface.

U n

fo rtu

n a

te ly, w

e h

a d

n o

m ira

cle B

o n

e p

a in

, w

eakness, fatigue, and fevels began to dom inate her

life A lthough the hospice w

orkeIs, fam ily m

em bers,

and I tiIed our best to m inim

ize the suffeIm g and

piom ote com

foit, it w as cleai that the end w

as ap- proaching D

lane's im m

ediate future held w hat she

feared the m ost--lncieasing discom

fort, depend- ence, and hard choices betw

een pain and sedation. S

he called up her closest friends and asked them to com

e over to say goodbye, telling them that she

w ould be leaving soon. A

s w e had agreed, she let

m e know

as w ell. W

hen w e m

et, it w as clear that

she knew w

hat she w as doing, that she w

as sad and frightened to be leaving, but that she w

ould be even m

ore terrified to stay and suffer. In our tearful good- bye, she pIom

lsed a reunion in the future at her fa- vorite spot on the edge of Lake G

eneva, w ith drag-

ons sw im

m ing in the sunset.

Tw o days later her husband called to say that D

1- ane had died She had said her final goodbyes to her husband and son that m

oining, and asked them to

leave her alone for an hour. A fter an hour, w

hich m

ust have seem ed an eternity, they found her on the

couch, lying very still and covered by hei favorite shaw

l. There w as no sign of struggle S

he seem ed to

be at peace. They called m e for advice about how

to proceed W

hen I arrived at their house, D iane in-

deed seem ed peaceful. H

er husband and son w ere

quiet W e talked about w

hat a rem arkable person she

had been. They seem ed to have no doubts about the

course she had chosen or about their cooperation, although the unfairness of her illness and the finality of her death w

ere overw helm

ing to us all. I called the m

edical exam iner to inform

him that

a hospice patient had died. W hen asked about the

cause of death, I said, "acute leukem ia:' H

e said that w

as fine and that w e should call a funeral director

A lthough acute leukem

ia w as the truth, It w

as not the w

hole stoiy Y et any m

ention of suicide w ould

have given rise to a pohce investigation and prob- ably bIought the arrival of an am

bulance crew for

re s u s c ita

tio n D

ia n e w

o u ld

h a v e b

e c o m

e a

"c o ro

-

ner's case;' and the decision to perform an autopsy

w ould have been m

ade at the discretion of the m ed-

lcal exam iner. T

he fam ily or I could have been sub-

ject to cilm inal piosecution, and I to professional

re vie

w , fo

i o u

r io le

s in su

p p

o rt o

f D ia

n e

's ch o

ice s.

A lthough I tiuly believe that the fam

ily and I gave her the best care possible, allow

ing her to define her lim

its and directions as m uch as possible, I am

not sure the law , society, or the m

edical profession w

ould agtee S o I said "acute leukem

ia" to protect all of us, to protect D

iane from an invasion into her

past and her body, and to continue to shield society from

the know ledge of the degree of suffering that

people often undergo in the process of dying. S uf-

fering can be lessened to som e extent, but In no w

ay elim

inated or m ade benign, by the careful interven-

tion of a com petent, caring physician, given current

so cia

l co n

stra in

ts.

D iane taught m

e about the range of help I can provide if I know

people w ell and if I allow

them to say w

hat they really w ant, S

he taught m e about

hfe, death, and honesty and about talcing charge and facing tragedy squarely w

hen it strikes. S he taught

m e that I can take sm

all risks for people that I Ieally know

and care about. A lthough I did not assist in her

suicide directly, I helped indirectly to m ake it pos-

sible, successful, and relatively painless A lthough

I know w

e have m easures to help control pain and

lessen suffering, to think that people do not suffer an the process of dying is an illusion. P

rolonged dying can occasionally be peaceful, but m

oIe often the role of the physician and fam

ily is hm lted to lessening

but not ehm lnating severe suffeiing

I w onder how

m any fam

ilies and physicians se- cretly help patients over the edge into death in the face of such severe suffering. I w

onder how m

any se- veiely 111 or dying patients secretly take their hves, dying alone in despair I w

onder w hether the im

age of D

iane's final aloneness w ill persist in the m

inds of her fam

ily, or if they w all rem

em ber m

ore the in- tense, m

eaningful m onths they had together before

she died I w onder w

hether D iane stIuggled in that

last hour, and w hether the H

em lock S

ociety's w ay of

death by suicide is the m ost benign. I w

onder w hy

D iane, w

ho gave so m uch to so m

any of us, had to be alone for the last hour of her life. I w

onder w hether I

w ill see D

iane again, on the shore of Lake G eneva at

sunset, w ith dI agons sw

im m

ing on the horizon

V o lu

n ta

ry A

c tiv

e E

u th

a n a s ia

D AN

W BR

O C

K

B rock argues that the sam

e tw o basra m

oral prm aples that support a patient's right

to m ake chom

es about hfe-sustam m

g treatm ent also support the perm

lssJblhty of vol-

untary actw e euthanasia T

he first principle Is m dw

ldual self-determ m

auon, the second

Is m dw

Jdual w ell-being Indw

ldual self-determ m

auon apphes to the m anner, circum

-

stances, and tum m

g of one's death and dying A concern for m

dw ldual w

ell-being m ay

lustlfy euthanasia w hen a suffering patient determ

ines that hfe is no longer a benefit

. . T he central ethical argum

ent for euthanasia is fam

lhar It is that the very sam e tw

o fundam ental

ethical values supporting the consensus on patient's u

g h

ts to d

e cid

e a

b o

u t h

fe -su

sta ln

ln g

tre a

tm e

n t

also support the ethical perm issibility of euthana-

sia. T hese values are individual self-determ

ination o r a

u to

n o m

y a n d in

d ivid

u a l w

e ll-b

e in

g . B

y se lf-

deteIm inatlon as it bears on euthanasia, I m

ean peo- ple's interest in m

aking im portant decisions about

their hves for them selves according to their ow

n val- ues or conceptions of a good life, and in being left free to act on those decisions S

elf-determ ination is

valuable because it perm its people to form

and hve in accordance w

ith their ow n conception of a good

life, at least w ithin the bounds of justice and consis-

tent w ith others doing so as w

ell. In exercising self- determ

m ation people take responsibility for their

lives and for the kinds of petsons they becom e A

central aspect of hum an dignity lies in people's ca-

pacity to direct their lives in this w ay. T

he value of exercising self-deteIm

lnatIon presupposes som e

m in

im u m

o f d

e cisio

n m

a kin

g ca

p a citie

s o r co

m -

petence, w hich thus lim

its the scope of euthanasia supported by self-determ

ination, It cannot justifia- bly be adm

inistered, for exam ple, in cases of serious

dem entia or tieatable clinical depiession.

D oes the value of individual self-determ

ination extend to the tim

e and m anner of one's deathÿ M

ost people are very concerned about the natuIe of the last stage of their lives. This reflects not just a fear of ex- periencing substantial suffering w

hen dying, but also

© 'Ihe H

astings C enter R

eprm tedbypeum

ssm n T

his reticle ougm

ally appeared m the H

astings C enter R

epoÿ t, vol 22, no 2 (1992)

a desire to retain dignity and control duung this last period of hfe. D

eath is today increasingly pleceded by a long period of significant physical and m

ental de- dine, due in pait to the technological interventions of m

odern m edicine M

any people adjust to these dlsablhttes and find m

eaning and value in new ac-

tivities and w ays. O

thers find the im pairm

ents and burdens in the last stage of their lives at som

e point sufficiently great to m

ake life no longeI w oIth living.

F or m

any patients near death, m aintaining the qual-

ity of one's hfe, avoiding gieat suffellng, m aintaining

one's dignity, and insuring that others lem em

ber us as w

e w ish them

to becom e of param

ount im portance

and outw eigh m

erely extending one's life B ut there is

no single, objectively correct answ er for everyone as

to w hen, if at all, one's life becom

es all things consid- ered a burden and unw

anted If self-determ ination is

a fundam ental value, then the gÿeat variability am

ong people on this question m

akes it especially im portant

that individuals control the m anner, circum

stances, and tim

ing of their dying and death. T

he other m ain value that suppolts euthanasia

is individual w ell-being It m

ight seem that individual

w ell-being conflicts w

ith a person's self-determ ination

w hen the person requests euthanasia Life itself is

com m

only taken to be a cential good for peisons, often valued for its ow

n sake, as w ell as necessaiy

for pursuit of all other goods w ithin a life. B

ut w hen

a co

m p e te

n t p

a tie

n t d

e cid

e s to

fo rg

o a

ll fu ith

e l

life -su

sta in

in g

tre a

tm e

n t th

e n

th e

p a

tie n

t, ra th

e r

explicitly oI im plicitly, com

m only decides that the

best life possible fol him or hel w

ith treatm ent is of

sufficiently poor quality that it is w orse than no fur-

ther life at all. Life is no longei considered a benefit by the patient, but has now

becom e a buiden. T

he

sam e judgm

ent undeilies a request fm euthanasia:

continued life is seen by the patient as no longer a benefit, but now

a burden E specm

lly in the often se- verely com

piom ised and deblhtated states of m

any cutically ill or dying patients, there is no objective standard, but only the com

petent patient's judgm ent

of w hether continued life is no longer a benefit

O f course, som

etim es theie are conditions, such

as chnical depression, that call into question w hether

the patient has m ade a com

petent choice, either to forgo life-sustaining treatm

ent or to seek euthanasia, and then the patient's choice need not be evidence that continued life is no longei a benefit foi him

or her Just as w

ith decisions about treatm ent, a deter-

m in

a tIo

n o

f in co

m p e te

n ce

ca n w

a rra

n t n

o t h

o n o r-

ing the patient's choice, in the case of treatm ent, w

e then transfer decisional authority to a surrogate, though in the case of voluntary active euthanasia a determ

ination that the patient is incom petent m

eans that choice is not possible.

T he value ox right of self-determ

ination does not entitle patients to com

pel physicians to act contIaiy to their ow

n m oral or professional values P

hysicians are m

oral and professm nal agents w

hose ow n self-de-

term ination or integrity should be respected as w

ell If perform

ing euthanasia becam e legally perm

issible, but conflicted w

ith a particular physician's reasona- ble understanding of his or her m

oral or professional responsiblhhes, the care of a patient w

ho requested euthanasia should be transferied to another.

M ost opponents do not deny that there are som

e cases in w

hich the values of patient self-determ i-

nation and w ell-being support euthanasia. Instead,

they com m

only offer tw o kinds of argum

ents against it that on their view

outw eigh or override this sup-

p o rt. T

h e first M

n d o

f a rg

u m

e n t is th

a t in

a n y in

- dividual case w

here considerations of the patient's self-determ

ination and w ell-being do support eu-

thanasia, it is nevertheless alw ays ethically w

iong or im

perm issible. T

he second kind of argum ent grants

that in som e individual cases euthanasia m

ay not be ethically w

Iong, but m aintains nonetheless that

public and legal policy should never perm it it. The

first kind of argum ent focuses on features of any in-

dividual case of euthanasia, w hile the second ldnd

focuses on social oi legal policy. In the next section I consider the first kind of argum

ent.

E uthanasia Is the D

eliberate K illing

o f a

n In

n o ce

n t P

e rso

n T

he claim that any individual instance of euthanasia

is a case of dellbelate killing of an innocent person is, w

ith o

n ly m

m o

t q u

a lifica

tio n

s, co rre

ct. U n

like foigoing hfe-sustainlng treatm

ent, com m

only un- derstood as allow

ing to die, euthanasia is clearly kill- ing, defined as depriving of life or causing the death of a living being. W

hile providing m orphine for pare

relief at doses w here the risk of respiratory depres-

sion and an eailler death m ay be a foreseen but un-

intended side effect oftieatlng the patient's pain, In a case of euthanasia the patient's death is deliberate or intended even if in both the physlclaffs uklm

ate end m

ay be respecting the patient's w ashes If the deliber-

ate killing of an innocent person is w rong, euthana-

sia w ould be nearly alw

ays im pei m

issible. In the context of m

edicine, the ethical prohibition against deliberately killing the innocent derives som

e of its plausibility from

the belief that nothing in the cutIently accepted practice of m

edicine is dehbeIate idling. T

hus, in com m

enting on the "It's O ver, D

eb- ble" case, four prom

inent physicians and bloethlclsts could entitle their paper "D

octors M ust N

ot K ill:'' T

he belief that doctors do not in fact ldl requires the cor- ollary behef that forgoing life-sustaining treatm

ent, w

hether by not starting or by stopping treatm ent,

IS allow

ing to die, not ldlllng. C om

m on though this

view is, I shall argue that it is confused and m

istaken. W

hy is the com m

on view m

istaken? C onsider the

case of a patient teim m

ally ill w ith ALS disease She

is com pletely respirator dependent w

ith no hope of ever being w

eaned. S he is unquestionably com

petent but finds her condition intolerable and persistently tequests to be rem

oved from the respirator and al-

lo w

e d to

d ie

. M o st p

e o p le

a n d p

h ysicia

n s w

o u ld

agree that the patient's physician should respect the patient's w

ishes and rem ove her from

the respliator, though this w

ill certainly cause the patient's death. T

he com m

on understanding IS that the physician

thereby allow s the patient to die B

ut is that correct? S

uppose the patm nt has a greedy and hostale son

w ho m

istakenly believes that his m other w

ill never decide to stop hei life-sustaining treatm

ent and that even if she did her physician w

ould not rem ove her

from the respirator. A

flaid that his inheritance w ill

be dissipated by a long and expensive hospitalization,

he enters his m othel's room

w hile she is sedated, ex-

tubates heI, and she dies. S hortly thereafter the m

ed- ical staff discovers w

hat he has done and confronts the son. H

e replies, "I didn't kill her, I m erely allow

ed her to die. R

w as her A

LS disease that caused her

death:' I think this w ould rightly be dism

issed as transparent sophistry--the son w

ent into his m oth-

er's room and deliberately l<111ed her. B

ut, of course, the son perform

ed just the sam e physical actions,

did just the sam e thing, that the physician w

ould have done If that is so, then doesn't the physician also lull the patient w

hen he extubates her? I underline im

m ediately that there are im

portant ethical differences betw

een w hat the physician and

the greedy son do. F irst, the physician acts w

ith the patient's consent w

hereas the son does not. S econd,

the physician acts w ith a good m

otive--to respect the patient's w

ishes and self-determ ination--w

hereas the son acts w

ith a bad m otive--to protect his ow

n Inheritance. 2bird, the physician acts in a social role through w

hich he IS legally authorized to carry out

the patient's w ishes regarding treatm

ent w hereas the

son has no such authorization T hese and perhaps

other ethically im portant differences show

that w hat

the physician did w as m

orally justified w hereas w

hat the son did w

as m orally w

rong. W hat they do not

show , how

ever, is that the son lulled w hile the phy-

sician allow ed to die. O

ne can either kill or allow to

die w ith or w

ithout consent, w ith a good or bad m

o- tive, w

ithin or outside of a social role that authorizes o n e to

d o so

.

The difference betw een kilhng and allow

ing to die that I have been im

plicitly appealing to here is roughly that betw

een acts and om issions resulting

in death 2 B oth the physician and the greedy son

act in a m anner intended to cause death, do cause

death, and so both kill O ne reason this conclusion

is resisted is that on a different understanding of the distinction betw

een killing and allow ing to die, w

hat the physician does is allow

to die. In this account, the m

other's A LS

is a lethal disease w hose norm

al progression is being held back or blocked by the life- sustaining respirator treatm

ent. R em

oving this arti- ficial intervention is then view

ed as standing aside and allow

ing the patient to die of her underlying disease. I have argued elsew

here that this alterna- tive account is deeply problem

atic, in part because

it com m

its us to accepting that w hat the gieedy son

does IS to allow

to die, not kill 3 H ere, I w

ant to note tw

o othei Ieasons w hy the conclusion that stopping

life support is killing is i eslsted. The first reason is that lolling is often understood,

especially w ithin m

edicine, as unjustified causing of death; in m

edicine it is thought to be done only accidentally or negligently. It is also Increasingly w

id e

ly a cce

p te

d th

a t a

p h

ysicia n

is e th

ica lly ju

s- tiffed in stopping hfe support in a case like that of the A

LS patient. B

ut if these tw o behefs are correct,

then w hat the physician does cannot be kilhng, and

so m ust be allow

ing to die K llhng patients as not,

to put it flippantly, understood to be part of physi- cians' job description W

hat is m istaken in this line

of reasoning is the assum ption that all killings are

unjustified causlngs of death. Instead, som e !<11hngs

are ethically justified, including m any instances of

stopping life support A

nother reason for resisting the conclusion that stopping hfe support is often kilhng is that it is psy- chologically uncom

fortable S uppose the physician

had stopped the A LS

patient's respirator and had m

ade the son's claim , "I didn't 1<111 her, I m

erely al- low

ed her to die. It w as her A

LS disease that caused

her death" T he clue to the psychological role here is

how naturally the "m

erely" m odifies "allow

ed her to die" T

he characterization as allow ing to die is m

eant to shift felt responsibility aw

ay from the agent--the

physician--and to the lethal disease process O ther

language com m

on in death and dying contexts plays a sim

ila r ro

le ; "le

ttin g n

a tu

re ta

ke its co

u rse

" o r

"stopping prolonging the dying process" both seem to shift responsibility from

the physician w ho stops

life support to the fatal disease process. H ow

ever psy- chologically helpful these conceptualizations m

ay be in m

alting the difficult responsibility of a physician's role in the patient's death bearable, they nevertheless are confusions. B

oth physicians and fam ily m

em bers

can instead be helped to understand that It IS the pa-

tient's decision and consent to stopping treatm ent

that hm Its their responsibility for the patient's death

and that shifts that responslblhty to the patient. M

any w ho accept the difference betw

een !ÿlhng and allow

ing to die as the distinction betw een acts

and om issions resulting in death have gone on to ar-

gue that kllhng is not in itself m orally different fi'om

allow ing to die.4 In this account, vely ioughly, one

M lls w

hen one peiform s an action that causes the

death of a person (w e are in a boat, you cannot sw

im ,

I push you overboatd, and you drow n), and one al-

low s to die w

hen one has the abxhty and opportu- nity to prevent the death of another, lcnow

s this, and om

its doing so, w ith the result that the person dies

(w e are in a boat, you cannot sw

im , you fall ovei-

boaid, I don't thIow you an available life ring, and

you drow n) T

hose w ho see no m

oral difference be- tw

een killing and allow ing to die typically em

ploy the strategy of com

paring cases that differ in these and no other potentially m

oially lm p oi tant respects

T his w

ill allow people to consider w

hether the m eie

dlffei ence that one is a case ofkilhng and the other of allow

ing to die m atters m

orally, or w hether instead

it is other features that m ake m

ost cases of lolling w

oise than m ost Instances of allow

ing to die H ere is

such a pan of cases

C ase I

A very gravely ill patient is brought to a hospital

em ergency room

and sent up to the IC U

T he patient

begins to develop respiratory failure that is likely to requile Intubation very soon. A

t that point the pa- tient's fam

ily m em

bers and long-standing physician arrive at the IC

U and inform

the IC U

staff that there had been extensive discussion about future care w

ith the patient w

hen he w as unquestionably com

petent. G

iven his grave and teim inal illness, as w

ell as his state of debilitation, the patient had firm

ly rejected b e in

g p

la ce

d o

n a

re sp

ira to

r u n d e I a

n y circu

m -

stances, and the fam ily and physician produce the

patient's advance directive to that effect T he IC

U staff do not intubate the patient, w

ho dies of iespi- latory failure.

C ase 2

The sam e as C

ase 1 except that the fam ily and physi-

cian are slightly delayed in traffic and airive shortly after the patient has been intubated and placed on the respirator. T

he IC U

staff extubate the patient, w

ho dies of respiratory fallule. In C

ase 1 the patient is allow ed to die, in C

ase z he is killed, but it is hard to see w

hy w hat is done in

C ase z is significantly different m

orally than w hat is

done in C ase 1. R

m ust be other factors that m

ake

m ost ldlhngs w

orse than m ost allow

ings to die, and if so, euthanasia cannot be w

rong sim ply because It

is killing instead of allow ing to die

S uppose both m

y argum ents are m

istaken. S up-

pose that killing is w orse than allow

ing to die and that w

ithdraw ing hfe suppoIt is not killing, although

euthanasia is. E uthanasia still need not foI that rea-

son be m orally w

rong T o see this, w

e need to deter- m

ine the basic principle for the m oral evaluation of

killing persons. W hat is it that m

akes paradigm cases

of w rongful killing w

rongful? O ne very plausible an-

sw er is that kllhng denies the victim

som ething that

he or she values greatly--continued hfe or a future M

o re

o ve

r, sin ce

co n

tin u

e d

life IS

n e

ce ssa

ry fo r p

u r-

suing any of a person's plans and purposes, l<11hng bnngs the frustration of all of these plans and desires as w

ell. In a nutshell, w rongful killing deprives a per-

son of a valued future, and of all the person w anted

and planned to do m that futuie.

A natural expression of this account of the w

rong- ness of kilhng IS

that people have a m oral right not

to be killed 5 B ut in this account of the w

rongness of killing, the right not to be ldlled, hke other rights, should be w

alvable w hen the person m

akes a com pe-

tent decision that continued hfe is no longer w anted

or a good, but is instead w orse than no furthei life at

all In this view , euthanasia is properly understood

as a case of a person having w aived his oi her right

not to be killed. This rights view

of the w I ongness of killing is not,

of course, universally shared. M any people's m

oral view

s about kllhng have their origins in rehglous view

s that hum an life com

es fiom G

od and cannot be justifiably destroyed or taken aw

ay, elthei by the peison w

hose life it is or by another B ut in a plural-

istic society like our ow n w

ith a strong com m

itm ent

to freedom of rehglon, public policy should not be

grounded in lehgIous beliefs w hich m

any in that so- ciety reject I turn now

to the general evaluation of public policy on euthanasia

W o u ld

th e B

a d C

o n se

q u e n ce

s of E

uthanasia O utw

eigh the G ood?

The argum ent against euthanasia at the pohcy level is

stionger than at the level of individual cases, though even heie I believe the case is ultim

ately unpersua- sive, oi at best Indecisive. The policy level is the place

w here the m

ain issues lie, how evei, and w

here m oral

co n sid

e ra

tio n s th

a t m

ig h t o

ve lrld

e a

rg u m

e n ts in

favor of euthanasia w ill be found, if they are found

anyw here It is im

portant to note tw o kinds of dis-

agreem ent about the consequences fol public policy

of pelm lttIng euthanasia F

nst, theie IS em

pirical or factual disagreem

ent about w hat the consequences

w ould be This dlsagleem

ent is greatly exacerbated by the lack of firm

data on the issue S econd, since on

any reasonable assessm ent there w

ould be both good and bad consequences, there are m

olal disagreem ents

about the relative im portance of dlffelent effects In

addition to these tw o sources of dlsagieem

ent, there IS

also no single, w ell-specified policy proposal foi le-

gahzlng euthanasia on w hich policy assessm

ents can focus B

ut w ithout such specification, and especially

w ithout exphclt procedures for piotectyng against

w ell-m

tentioned m isuse and ill-lntentloned abuse,

the consequences for policy are laIgely speculative D

espite these difficulties, a pl ehnnnary account of the m

ain hkely good and bad consequences is possible T

his should help clarify w here better data or m

ore m

oial analysis and argum ent are needed, as w

ell as w

here policy safeguards m ust be developed

P o te

n tia

l G o o d C

o n se

q u e n ce

s o

f P e

rm ittin

g E

u th

a n

a sm

W hat are the likely good consequences? F

irst, if eu- thanasia w

ere peim itted it w

ould be possible to re- spect the self-deteim

lnatlon of com petent patients

w ho w

ant it, but now cannot get it because of its il-

legality. W e sim

ply do not lnaow how

m any such pa-

tients and people theIe are In the N etherlands, w

ith a population of about 14 5 m

llhon (in 1987), estim ates

in a recent study w ere that about 1,9oo cases of vol-

untary active euthanasia or physician-assisted suicide occur annually N

o stiaightforw ard extrapolation to

the U nited S

tates is possible foi m any reasons, am

ong them

, that w e do not know

how m

any people here w

ho w ant euthanasia now

get it, despite its illegality E

ven w ith better data on the num

bei ofpexsons w ho

w ant euthanasia but cannot get it, significant m

olal disagreem

ent w ould rem

ain about how m

uch w eight

should be given to any instance of falluxe to respect a person's self-determ

ination in this w ay

O ne im

portant factoi substantially affecting the num

bex of persons w ho w

ould seek euthanasia is

the extent to w hich an alternative is available. T

he w

idespread acceptance in the law , social policy, and

m edical pi actice of the i ight of a com

petent patient to folgo life-sustaining tIeatm

ent suggests that the num

ber of com petent peisons in the U

nited S tates

w ho w

ould w ant euthanasia if it w

ere perm itted is

probably relatively sm all.

A second good consequence of m

aking euthana- sia legally perm

issible benefits a m uch laIger group.

P olls have show

n that a m ajoiity of the A

m erican

public believes that people should have a iight to obtain euthanasia if they w

ant it.6 N o doubt the vast

m ajoxlty of those w

ho support this right to eutha- nasia w

ill never in fact com e to w

ant euthanasia foi them

selves. N eveltheless, m

aking it legally peim is-

sine w ould ieassuie m

any people that if they ever do w

ant euthanasia they w ould be able to obtain it ]his

reassurance w ould supplem

ent the bioadei control over the piocess of dying given by the light to decide about life-sustaining treatm

ent. H aving fiIe insur-

ance on one's house benefits all w ho have it, not just

those w hose houses actually burn dow

n, by ieassur- ing them

that in the unlikely event of their house burning dow

n, they w all receive the m

oney needed to rebuild It. Likew

ise, the legalization of euthana- sia can be thought of as a kind of insurance policy against being forced to endure a protracted dying pxocess that one has com

e to find buidensom e and

unw anted, especially w

hen there is no life-sustaining treatm

ent to forgo ÿhe strong concern about losing control of theu caie expressed by m

any people w ho

face serious illness likely to end In death suggests that they give substantial im

portance to the legal- lZ

atlon of euthanasia as a m eans of m

aintaining this co

n tro

l A

th u d g

o o d co

n se

q u e n ce

o f th

e le

g a liza

tio n

of euthanasia concerns patients w hose dying is fil-

led w ith sevexe and unrehevable pain or suffering.

W hen there is a hfe-sustaim

ng treatm ent that, if foi-

gone, w ill lead relatively quickly to death, then doing

so can bring an end to these patients' suffering w ith-

o u

t re co

u rse

to e

u th

a n

a sia

. F o

r p a

tie n

ts re ce

ivin g

n o

such tieatm ent, how

ever, euthanasia m ay be the only

ielease fiom then otherw

ise prolonged suffering and agony. T

his axgum ent flora m

ercy has alw ays been

the sti ongest argum ent for euthanasia in those cases

to w hich it applies 7

2qae Im portance of Ielieving pain and suffellng IS

less controveislal than is the fi'equency w ith w

hich patients are forced to undelgo untleatable agony that only euthanasm

could reheve. If w e focus fiIS

t on suffering caused by physical pain, it is crucial to distinguish pain that could be adequately leheved w

ith m odein m

ethods of pain control, though it in fact is not, fiom

pain that is 1 ehevable only by death 8 F

or a variety of reasons, Including som e physicians'

fear of hastening the patient's death, as w ell as the

lack of a publicly accessible m eans for assessing the

am ount of the patient's pain, m

any patients suffer pain that could be, but is not, ieheved.

S pecialists in pain control, as for exam

ple the p a in

o f te

Im in

a lly Ill ca

n ce

ÿ p a tie

n ts, a

rg u e th

a t

there are very few patients w

hose pare could not be adequately controlled, though som

etim es at the cost

of so sedating them that they are effectively unable

to interact w ith othei people or their environm

ent. T

hus, the argum ent from

m ercy in cases of physical

pain can probably be m et in a large m

a)ority of cases by providing adequate m

easures of pain relief T his

should be a high p11orlty, w hatevei our legal policy

on euthanasia--the relief of pain and suffering has long been, quite properly, one of the cential goals of m

edicine T hose cases in w

hich pain could be effec- tively relieved, but in fact is not, should only count significantly in favor of legalizing euthanasia if all reasonable effoi ts to change pain m

anagem ent tech-

niques have been tried and have failed. D

ying patients often undergo substantial psycho- logical suffering that is not fully or even piincipaily the result of physical pain? The know

ledge about how to relieve this suffering is m

uch m ore lim

ited than in the case ofrehevm

gpaln, and efforts to do so aie prob- ably m

ore often unsuccessful If the argum ent from

m ercy is extended to patients expeiiencing gIeat and

unrehevable psychological suffering, the num bers of

patients to w hich it applies are m

uch greateI; O

ne last good consequence of legahzlng eutha- nasia is that once death has been accepted, It is often m

ore hum ane to end life quIcldy and peacefullÿ w

hen that is w

hat the patient w ants Such a death w

dl often be seen as better than a m

ore prolonged one. P eople

w ho suffer a sudden and unexpected death, for exam

- ple by dying [email protected]

or an their sleep from a heart at-

tack or stroke, are often considered lucky to have died

in this w ay W

e caie about how w

e die in pai t because w

e care about how others Iem

em bei us, and w

e hope they w

ill Iem em

bei us as w e w

eie In "good tim es"

w ith them

and not as w e Inight be w

hen disease has robbed us of our dignity as hum

an beings. A s w

ith m

uch in the tIeatm ent and caie of the dying, people's

conceins differ in this respect, but foi at least som e

people, euthanasia w all be a m

ore hum ane death than

w hat they have often experienced w

ith other loved ones and m

ight othei w ise expect for them

selves S

om e opponents of euthanasia challenge how

m uch Im

poItance should be given to any of these good consequences of perm

itting it, or even w hether

som e w

ould be good consequences at all. B ut m

ore frequentl)ÿ opponents cite a num

ber of bad conse- quences that perm

itting euthanasia w ould or could

ploduce, and it is to their assessm ent that I now

turn

P o

te n

tia l B

a d

C o

n se

q u

e n

ce s

of P erm

itting E uthanasia

S om

e of the argum ents against perm

itting euthana- sia aie aim

ed specifically against physicians, w hile

others are aim ed against anyone being perm

itted to perfoim

it. I shall first consider one argum ent of the

foim ei S

O lt. P

erm itting physicians to peIform

eu- thanasia, it is said, w

ould be Incom patible w

ith then fundam

ental m oral and plofessional com

m itm

ent as healers to caIe for patients and to pIotect life. M

oIeover, if euthanasia by physicians becam e com

- m

on, patients w ould com

e to fear that a m edication

w as Intended not to treat oi care, but instead to kill,

and w ould thus lose tI ust In their physicians. T

his position w

as forcefully stated in a paper by W illaid

G aylin and his colleagues

T he veiy soul ofm

edÿclne is on tllal . T hlS

lS S

U e

touches m edicine at its m

oÿ al centel, ff this m ol al

centel collapses, lfphyslcm ns becom

e killers oi are even licensed to 1<111, the professm

n--and, thelew lth,

each physician--w ill never again be w

oi thy of trust and lespect as healer and com

foi tm and pI otectoi of

hfe in all its fraaky

These authols go on to m ake clear that, w

hile they oppose peim

ltting anyone to perform euthanasia,

then special concern IS w

ith physicians doing so.

W e call on fellow

physxcm ns to say that they w

dl not dehbeIately kill W

e m ust also say to each of ore

IÿIIO W

ÿllyblÿldllÿ U lÿ[ V

Y C

V V

Ill IIU L LU

IC I¢.IL.ÿ lÿlllllÿ U

I

patm nts and that w

e shall take dxsclphnm y action

against doctm s w

ho M I1 A

nd w e m

ust say to the bloadel com

m unity that xf it resists on tolm

atm g m

legahzlng active euthanasia, it w sll have to find non-

physicians to do its kalhng ÿ°

If p e rm

ittin g p

h ysicia

n s to

kill w o u ld

u n d e t-

m ine the very "m

oral center" of m edicine, then al-

m ost certainly physicians should not be perm

itted to perform

euthanasia. B ut how

pelsuaslve is this claim

? P atients should not fear, as a consequence of

perm itting voluntary active euthanasia, that their

physicians w ill substitute a lethal injection for w

hat patients w

ant and believe is part of then care If ac- tive euthanasia IS

restricted to cases in w hich it is

truly voluntary, then no patient should fear getting it unless she or he has voluntarily requested it. (T

he fear that w

e m ight in tim

e also com e to accept non-

voluntary, or even involuntary, active euthanasia is a slippery slope w

oIry I address below .) P

atients' trust of their physicians could be increased, not eroded, by know

ledge that physicians w ill provide aid in dy-

ing w hen patients seek it.

M ight G

ayhn and his colleagues nevertheless be correct In their daim

that the m oral centei of m

edi- cine w

ould collapse if physicians w ere to becom

e lÿllers* This question raises w

hat at the deepest level should be the guiding aim

s of m edicine, a question

that obviously cannot be fully explored here B ut I

do w ant to say enough to indicate the dnectlon that

I believe an appropriate response to this challenge should take. In spelling out above w

hat I called the positive argum

ent for voluntary active euthanasia, I suggested that tw

o principal values--iespecting pa- tients' self-determ

ination and prom oting their w

ell- being--underlie the consensus that com

petent pa- tients, or the surrogates of incom

petent patients, are entitled to refuse anyhfe-sustaining treatm

ent and to choose from

am ong available alternative treatm

ents It is the com

m itm

ent to these tw o values in guiding

physicians' actions as healers, com forters, and pro-

tectors of their patients' lives that should be at the "m

oral center" of m edicine, and these tw

o values support physicians' adm

inistering euthanasia w hen

their patients m ake com

petent requests for it... A

second bad consequence that som e foresee is

that pelm lttlng euthanasia w

ould w ea!ÿen society's

[£ O

llllllltlllÿ llt I.v

[.ÿ v **u

ÿ V

l.,. .............. I"'0 t"

tlents, W e hve at a tim

e m w

hich the contiol of health care costs has becom

e, and is hkely to C O

m lnue to be,

the dom m

ant focus of health caie policy If euthana- sia is seen as a cheaper altelnatsve to adequate care and tteatm

ent, then w e m

ight becom e less scrupulous about

providing som etim

es costly support and other services to dying patients. P

articularly If our society com es to

em brace deeper and m

ore explicit Iattonlng of health care, frail, elderly, and dying patients w

ill need to be strong and effective advocates foi their ow

n health care and other needs, although they are hardly In a positron to do this W

e should do nothing to w ealÿen their ability

to obtain adeqnate care and services T

his second w oriy is difficult to assess because

thele is little firm evidence about the hkehhood

of the feared erosion in the cale of dying patients. T

here are at least tw o reasons, how

ever, for skepti- cism

about this argum ent. T

he first is that the sam e

w oriy could have been directed at recognizing pa-

tients' or surrogates' rights to forgo life-sustaining treatm

ent, yet there is no persuasive evidence that recognizing the right to refuse tieatm

ent has caused a serious erosion in the quality of care of dying pa- tients T

he second reason for skepticism about this

w oriy is that only a veiy sm

all piopoition of deaths w

ould occur from euthanasia if it w

ere perm itted. In

the N etherlands, w

hele euthanasia under specified circum

stances is perm itted by the couits, though

not authorized by statute, the best estim ate of the

p io

p o

rtlo n

o f o

ve ra

ll d e

a th

s th a

t re su

lt flo m

it is about z percent.1ÿ Thus, the vast m

ajority of critically ill and dying patients w

ill not request it, and so w ill

still have to be cared for by physicm ns, fam

ilies, and others. P

erm itting euthanasia should not dim

m lsh

people's com m

itm ent and concein to m

aintain and lm

pIove the care of these patients A

third possible bad consequence of peIm ittm

g euthanasia (or even a pubhc discourse in w

hich stIo

n g su

p p o rt fo

r e u th

a n a sia

is e vid

e n t) is to

threaten the progress m ade in securing the rights

of patients oi thm r suriogates to decide about and

to refuse life-sustaining treatm ent/ÿ T

his progiess has been m

ade against the backdrop of a clear and fiim

legal prohibition of euthanasia, w hich has pro-

vIded a relatively bright line lim iting the donnnlon

of others over patients' lives. It has theiefore been

...... r .....

authority to take steps ending life m ight be m

isused, abused, or w

rongly extended. M

any suppolters of the right of patients or their suriogates to refuse treatm

ent strongly oppose eu- thanasia, and if forced to choose m

ight w ell w

ith- draw

their support of the right to refuse treatm ent

rather than accept euthanasia. P ublic policy in the

la st fifte

e n ye

a rs h

a s g

e n e ia

lly le t life

-su sta

in in

g treatm

ent decisions be m ade in health care settings

betw een physicians and patients or their suirogates,

and w ithout the involvem

ent of the courts. H ow

ever, if euthanasia is m

ade legally perm issible greater in-

volvem ent of the courts is hkely, w

hich could in turn extend to a gIeater court m

volvem ent in life-sustaining

treatm ent decisions. M

ost agree, how ever, that in-

creased involvem ent of the courts in these decisions

w ould be undesirable, as it w

ould m ake sound deci-

slonm akm

g m ole cum

beisom e and difficult w

ithout sufficient com

pensating benefits. A

s w ith the second potential bad consequence of

perm itting euthanasia, this third consideration too

is speculative and difficult to assess T he feared ero-

sion of patients' or surrogates' rights to decide about life-sustaining treatm

ent, together w ith greatei court

involvem ent in those decisions, are both possible.

H ow

ever, I beheve thei e is reason to discount this gen- eral w

orry The legal rights of com petent patients and,

to a lesser degree, surrogates of incom petent patients

to decide about treatm ent are very firm

ly em bedded

in a long line of inform ed consent and hfe-sustam

lng treatm

ent cases, and are not hkely to be eroded by a debate over, or even acceptance of, euthanasia. It w

ill not be accepted w ithout safeguards that reassure

the public about abuse, and if that debate show s the

need for sim ilal safeguards for som

e life-sustaining treatm

ent decisions they should be adopted there as w

ell. In neither case are the only possible safeguards greater court involvem

ent, as the recent gIow th of in-

stitutional ethics com m

ittees show s

]h e fo

u ith

p o te

n tia

l b a d co

n se

q u e n ce

o f p

e r-

m Ittlng euthanasia has been developed by D

avid V

ellem an and turns on the subtle point that m

ak- ing a new

option or choice available to people can som

etim es m

ake them w

orse off, even if once they have the choice they go on to choose w

hat is best for them

.ÿ3 O rdinarily, people's continued existence

w hich they m

ust cope. M aking euthanasia available

to people as an option denies them the alternative

of staying alive by default. If people are offered the option of euthanasia, thesI continued existence is now

a choice for w hich they can be held responsi-

ble and w hich they can be asked by others to justify

W e care, and aie right to care, about being able to

justdy ourselves to others. T o the extent that our

society is unsym pathetic to justifying a severely de-

pendent oi im pa,red existence, a heaW

psychologi- cal burden of proof m

ay be placed on patients w ho

th in

k th e

ir te rm

in a

l Illn e

ss o r ch

ro n

ic In firm

ity is not a sufficient reason for dying E

ven if they oth- erw

ise view their life as w

orth living, the opinion of others around them

that it is not can threaten their reason for living and m

ake euthanasia a iatlonal choice. T

hus the existence of the option becom es a

subtle piessure to request it. T

h is a

rg u m

e n t co

rre ctly id

e n tifie

s th e re

a so

n w

hy offering som e patients the optm

n of euthana- sia w

ould not benefit them V

ellem an takes it not

as a reason for opposing all euthanasia, but for re- stIIctlng it to circum

stances w here there are "un-

m istakable and overpow

ering reasons for persons to w

ant the option of euthanasia" and for denying the option In all other cases. B

ut there are at least three reasons w

hy such restriction m ay not be w

ar- ranted. F

irst, polls and other evidence suppoit that m

ost A m

ericans believe euthanasia should be per- m

itted (though the recent defeat of the referendum to perm

it ÿt in the state of W ashington raises som

e doubt about this support) T

hus, m any m

ore people seem

to w ant the choice than w

ould be m ade w

orse off by getting it. S

econd, if giving people the option of ending their life really m

akes them w

orse off, then w

e should not only prohibit euthanasia, but also take back from

people the right they now have to decide

about hfe-sustainlng treatm ent. T

he feared harm ful

effect should already have occurred from securing

people's right to refuse hfe-sustainm g treatm

ent, yet there is no evidence of any such w

idespread harm or

any broad public desire to rescind that right T hird,

since there is a w ide range of conditions in w

hich i ea- sonable people can and do disagree about w

hether they w

ould w ant continued life, it is not possible to

restrict the perm issibility of euthanasia as narrow

ly

as V ellem

an suggests w ithout theieby denying it to

m ost persons w

ho w ould w

ant it; to pexm It It only

In cases in w hich virtually everyone w

ould w ant it

w ould be to deny it to m

ost w ho w

ould w ant it

A fifth potential bad consequence of m

ak,ng eu- thanasia legally perm

issible is that it m ight w

eaken the general legal prohibition of hom

icide. 31alS plo-

hlbltlO n is so fundam

ental to civilized society, it is argued, that w

e should do nothing that erodes it. If m

ost cases of stopping life suppm t are kflhng, as I

have already argued, then the court cases perm it-

tlng such lolling have already in effect w eakened this

prohibition H ow

ever, neither the courts nor m ost

people have seen these cases as killing and so as challenging the prohibition of hom

icide. T he courts

have usually grounded patients' or their surlogates' rights to refuse hfe-sustalning tteatm

ent in rights to privacy, hbeity, self-determ

ination, or bodily integ- rity, not in exceptions to hom

icide law s.

Legal perm ission for physicians or others to pei-

form euthanasia could not be gl ounded in patients'

rights to decide about m edical treatm

ent P erm

it- ting euthanasia w

ould require qualifying, at least in effect, the legal prohibition against hom

icide, a pro- hlbitlon that in general does not allow

the consent of the victim

to justify or excuse the act. N everthe-

less, the very sam e fundam

ental basis of the ilght to decide about life-sustaining treatm

ent--respect- In

g a

p e rso

n 's se

lf-d e te

im ln

a tio

n --d

o e s su

p p o rt

e u th

a n a sia

a s w

e ll In

d ivid

u a l se

lf-d e te

rm in

a tio

n has long been a w

ell-entrenched and fundam ental

value in the law , and so extendm

g it to euthanasia w

ould not require appeal to novel legal values oi principles T

hat suicide or attem pted suicide is no

longer a crim inal offense in virtually all states indi-

cates an acceptance of individual self-determ ination

in th

e ta

kin g

o f o

n e

's o w

n life

a n

a lo

g o

u s to

th a

t required for voluntary active euthanasia. T

he legal prohibition (in m

ost states) of assisting in suicide and the refusal in the law

to accept the consent of the victim

as a possible justification of hom icide are

both ai guably a iesult of difficulties in the legal pro- cess of establishing the consent of the victim

aftel the fact. If proceduies can be designed that clearly establish the voluntariness of the person's request fo

r e u

th a

n a

sia it w

o u

ld u

n d

e r th

o se

p lo

ce d

u re

s re

p ie

se n

t a ca

ie fu

lly ciicu m

scrib e

d q

u a

lifica tio

n

on the legal prohibition of hom icide. N

evertheless, som

e Iem am

ing w oirIes about this w

eakening can be captuied in the final potential bad consequence, to

w h

ich I w

ill n o

w tu

In T

his final potential bad consequence IS the cen-

tral concern of m any opponents of euthanasia and, I

believe, is the m ost seiious objection to a legal pol-

icy perm itting it. A

ccording to this "slippery slope" w

orry, although active euthanasia m ay be m

orally perm

issible in cases in w hich it is unequivocally vol-

untary and the patient finds his or her condition un- bearable, a legal policy perm

itting euthanasia w ould

inevitably lead to active euthanasia being pelfoim ed

in m any other cases In w

hich it w ould be m

oially w

rong. T o prevent those other w

rongful cases of eu- thanasia w

e should not perm it even m

orally justified pei form

ance of it S

lippery slope argum ents of this foim

are prob- lem

ahc and difficult to evaluate.14 From one peIspec-

tire, they are the last refuge of conservative defendeIs of the status quo. W

hen all the opponent's objections to the w

rongness of euthanasia Itself have been m et,

the opponent then shifts ground and ackm ow

ledges both that It IS

not in Itself w rong and that a legal

policy w hich resulted only m

its being pelform ed

w ould not be bad. N

evertheless, the opponent m ain-

tains, it should still not be perm itted because doing

so w ould result m

its being perfoim ed m

other cases in w

hich it is not voluntary and w ould be w

rong. In this argum

ent's m ost extrem

e form , perm

itting eu- thanasia is the first and fateful step dow

n the slip- pery slope to N

azism O

nce on the slope w e w

ill be unable to get off.

N ow

it cannot be denied that it is possible that perm

itting euthanasia could have these fateful con- sequences, but that cannot be enough to w

arrant p ro

h ib

itin g it if It is o

th e rw

ise ju

stifie d A

sim ila

r possible sllppm

y slope w oriy could have been im

sed to

se cu

rin g co

m p e te

n t p

a tie

n ts' ilg

h ts to

d e cid

e about life support, but Iecent hlstoxy show

s such a w

oriy w ould have been unfounded It m

ust be lele- vant how

hkely it is that w e w

ill end w ith horrendous

consequences and an unjustified practice of eutha- nasia H

ow hkely and w

idespread w ould the abuses

and unw aIranted extensions ofpeim

ittm g it beÿ B

y abuses, I m

ean the perform ance of euthanasia that

fails to satisfy the conditions iequn'ed foI voluntary

vÿ

active euthanasia, for exam ple, if the patient has been

subtly pl essured to accept it. B y unw

arI anted exten- sions of policy, I m

ean later changes m legal policy

to perm it not just voluntary euthanasia, but also eu-

thanasia in cases in w hich, for exam

ple, it need not be fully voluntaiy. O

pponents ofvoluntaIy euthana- sia on shppely slope grounds have not provided the data or evidence necessary to turn thm

r speculative concerns m

to w ell-grounded hkehhoods

It is at least deai, how ever, that both the character

and hkdflaood of abuses of a legal policy perm itting eu-

thanasia depend In significant pair on the plocedures put in place to protect against them

I w ill not tiy to

detail fully w hat such procedures m

ight be, but w ill just

give som e exam

ples of w hat they m

ight include'

1. T he patient should be provided w

ith all lel- evant infoI m

ation about his or he1 m edical

condition, current piognosls, available alter- native treatm

ents, and the prognosis of each 2 P

iocedures should ensuie that the patient's request for euthanasia is stable or enduim

g (a brief w

aiting period could be i equired) and fully voluntary (an advocate for the patient m

ight be appointed to ensure this). 3. A

ll reasonable alternatives m ust have been

explored for im proving the patient's quahty of

life and relieving any pain or suffering 4 A

psychlatnc evaluation should ensule that the patient's request is not the result of a treatable psychological im

panm ent such as depression?5

T hese exam

ples of proceduial safeguards are all designed to ensuie that the patient's choice lS

fully lnfoim

ed, voluntary, and com petent, and so a true

exelcise of self-determ inatm

n. O ther proposals for

euthanasia w ould lestnct its perm

issibility fui thei-- for exam

ple, to the term inally ill--a lestrictlon that

cannot be supported by self-determ ination. S

uch additional restrictions m

ight, how ever, be justified

by concern for lim iting potential harm

s from abuse.

A t the sam

e tim e, it is im

portant not to im pose pio-

ceduial oi substantive safeguaids so lestrictlve as to m

ake euthanasia im perm

issible or practically infea- sible in a w

ide iange ofjushfied cases T

hese exam ples of procedural safeguards m

ake cle

a t th

a t it is p

o ssib

le to

su b sta

n tia

lly ie d u ce

, though not to elim

inate, the potentm l foi abuse of a

policy pelm lttlng voluntaiy active euthanasia A

ny legallzatm

n of the piachce should be accom panied

by a w ell-considered set of procedural safeguards

together w ith an ongoing evaluation of its use. In-

tioducing euthanasm into only a few

states could be a folm

of carefully lim ited and contiolled social

experim ent that w

ould give us evidence about the benefits and harm

s of the pIactlce E ven then firm

and uncontioversial data m ay iem

aln elusive, as the continuing controversy ovei w

hat has taken place in the N

etheilands in recent years indicates ÿ6

T he S

lip into N onvoluntary

A ctive E

uthanasia W

hile I beheve slippery slope w oIrIes can largely

be lim ited by m

aking necessary distinctions both in pi m

clple and in practice, one slippery slope concern is legitim

ate T here IS

reason to expect that legaliza- tion of voluntary active euthanasia m

ight soon be follow

ed by strong piessuie to legalize som e nonvol-

untary euthanasia of incom petent patients unable

to express then ow n w

ishes R especting a peison's

self-determ lnatm

n and recognizing that continued life is not alw

ays of value to a person can support not only voluntaiy active euthanasia, but som

e nonvol- untaly euthanasia as w

ell. These are the sam e values

that ground com petent patients' nght to refuse llfe-

sustam lng treatm

ent. R ecent history heIe is instruc-

tive. In the m edical ethics literature, in the courts

since Q uinlan, and in norm

s of m edical practice,

that right has been extended to incom petent patients

and exercised by a suirogate w ho is to decide as the

patient w ould have decided in the circum

stances if com

petent?7 It has been held unreasonable to con- tm

ue hfe-sustaining treatm ent that the patient w

ould not have w

anted just because the patient now lacks

th e

ca p

a city to

te ll u

s th a

t L ife

-su sta

in in

g tre

a t-

m ent for incom

petent patients is today flequently folgone on the basis ofa suirogate's decision, or less fiequently on the basis of an advance directive exe- cuted by the patient w

hile still com petent. T

he very sam

e logic that has extended the right to iefuse life- sustaining tteatm

ent from a com

petent patient to the surrogate of an incom

petent patient (acting w ith oi

w ithout a form

al advance directive fiom the patient)

m ay w

ell extend the scope of active euthanasia. The

algum ent w

ill be, W hy continue to force unw

anted life on patients just because they have now

lost the capacity to request euthanasia from

us? A

related phenom enon m

ay reinforce this slip- pery slope concern. In the N

etherlands, w hat the

courts have sanctioned has been clearly restricted to voluntary euthanasia. In itself, this serves as som

e ev- idence that perm

itting it need not lead to perm itting

the nonvoluntary variety. T hele is som

e indication, how

ever, that for m any D

utch physicians euthanasia IS

no longer view ed as a special action, set apart from

their usual practice and restricted only to com petent

persons,is Instead, it is seen as one end of a spectrum of caring for dying patients. W

hen view ed in this

w ay it w

ill be difficult to deny euthanasia to a patient foi w

hom it is seen as the best or m

ost appropriate form

of cate sim ply because that patient as now

in- com

petent and cannot request it. E

ven if voluntary active euthanasia should slip in

to n

o n

vo lu

n ta

ry a ctive

e u

th a

n a

sia , w

ith su

rro -

gates acting fol incom petent patients, the ethical

evaluation is m ore com

plex than m any opponents

of euthanasia allow , lust as in the case of surrogates'

decisions to forgo life-sustaining treatm ent for lnÿ

com petent patients, so also surrogates' decisions to

request euthanasia for incom petent persons w

ould often accurately reflect w

hat the incom petent per-

son w ould have w

anted and w ould deny the person

nothing that he or she w ould have considered w

orth having. M

aking nonvoluntary active euthanasia le- gally perm

issible, how ever, w

ould greatly enlarge the num

ber of patients on w hom

it m ight be perform

ed and substantially enlarge the potential for m

isuse and abuse. A

s noted above, flail and debilitated eld- erly people, often dem

ented or otherw ise incom

pe- tent and thereby unable to defend and assert their ow

n interests, m ay be especially vulnerable to un-

w anted euthanasia.

F or som

e people, this nsk is m ore than suffiÿ

cient reason to oppose the legahzation of voluntary euthanasia B

ut w hile w

e should in general be cau- tious about inferring m

uch from the experience in

the N etherlands to w

hat our ow n expeIience in the

U nited S

tates m ight be, there m

ay be one im portant

lesson that w e can learn from

them O

ne com m

en- tator has noted that in the N

etheilands fam ilies of

incom petent patients have less authonty than do

fainihes in the U nited S

tates to act as surrogates for incom

petent patients m m

aM ng decisions to forgo

hfe-sustaining tIeatm ent ,9 F

iom the D

utch perspec- tive, it m

ay be w e In the U

nited S tates w

ho are already o

n th

e slip

p e

ry slo p

e in

h a

vin g

g ive

n su

rIo g

a te

s broad authoiity to forgo life-sustaining treatm

ent fo

r In co

m p e te

n t p

e iso

n s. In

th is w

e w

, th e m

o re

im -

portant m oral divide, and the m

ore im portant w

ith regaid to potential fm

abuse, is not betw een forgoing

life-sustaining treatm ent and euthanasia, but instead

betw een voluntary and nonvoluntary perform

ance of either If this is correct, then the m

ore im portant

issue is ensuring the appropriate principles and plo- cedural safeguards for the exercise of declslonm

ak- lng authority by surrogates for incom

petent peIsons in all decisions at the end of life. T

his m ay be the

correct response to slippery slope w orries about

euthanasia I have cited both good and bad consequences

that have been thought likely from a policy change

perm itting voluntary active euthanasia, and have

trie d

to e

va lu

a te

th e

ir like lih

o o

d a

n d

re la

tive im

- portance. N

evertheless, as I noted eaiher, reasonable disagteem

ent rem ains both about the consequences

of perm itting euthanasia and about w

hich of these consequences are m

ore im portant T

he depth and strength of public and professional debate about w

hether, all things considered, perm itting euthana-

sia w ould be desirable or undesirable reflects these

disagreem ents W

hile m y ow

n view is that the bal-

ance of considerations supports perm itting the prac-

tice, m y principal purpose here has been to clailfy

the m ain issues.

N O

T E

S 1 W

fllard G ayhn, Leon R

K ass, E

dm und D

P ellegrm

o, and M

ark S leglm

, "D octors M

ust N ot K

ill;' ]A LM

A 259 (r988)

2 1

3 9

-4 o

2 B onnie S

tem bock, ed, K

dlm g and A

llow ing to D

ie (E ngle-

w ood C

liffs, N J P

rentice-H all, 198o)

3 D an W

B rock, "Fm

gom g Food and W

ater Is It K flhng?"

in B y N

o E xtraordinary M

eans 7he C hoice to Forgo Life-

S ustaining Food and W

ater, ed Ioanne Lynn (B loom

ington Indiana U

niversity P xess, 1986), pp 117-31

4 Jam es R

achels, '% chve and P

assive E uthanasm

" N E

JM 292 (1975) 78-8o, M

ichael Tooley, A bottton and hÿfanttctde

(O xfm

d O xford U

niversity P ress, 1983) In m

y papm , "Taking

H um

an Life" E thics 95 0985) 851-65, I argue m

m ore detail

that lolling in itself is not m orally dIffeient from

allow ing to

die and defend the strategy of argum ent em

plo};eÿtln [tils iiiia the succeeding tw

o paragraphs in the text 5 D

an W B

rock, "M oral R

ights and pm m

lsslble K illing;' In

E tlucal Issues R

elat,N to Life attd D

eath, ed lohn Ladd (N ew

Y ork O

xfold U niversity P

ress, 1979), P P

94-117 6 P

P a in

to n a

n d E

T a ylo

r, "L o ve

o r L

e t D

le ÿ' T

im e , 1

9 M

m ch

199o, pp 62-71, B oston G

lobe/H al vard U

niversity P oll, B

oston G

lobe, 3 N ovem

ber 1991 7 lam

es R achels, The E

nd of Life (O xford O

xford U niversity

Pless, 1986) 8 M

arcia Angel!, "The Q uality of M

ercy;' N E]M

3o6 (1982) 98-99, M

D onovan, P

D illon, and L M

cgulre, Incidence and C

haracteristics of P ain in a S

am ple of M

edical-S urgical

Inpatientsÿ' P are 3o (1987) 69-78

9 Eric Cassell, The Nature of Suffering and the G oals of M

edt- cm

e (N ew

Y ork O

xford U niversity P

ress, 1991) m

G ayhn et al, "D

octors M ust N

ot K ill"

11 P aul J V

an der M aas et al, "E

uthanasia and O thm

M e&

- cal D

ecisions C oncerning the E

nd of Life;' Lancet 338 (1991)

669-74 12 S

usan M W

olf, "H olding the Line on E

uthanasia;' S pecial

S upplem

ent, H astings C

enterR eportz9, no 1 (1989) 13-z5

13 M y form

ulation of this argum ent derives from

D avid

V e

lle m

a n

's sta te

m e

n t o

f it m h

is co m

m e

n ta

ry o n

a n

e a

rlie r

version of this paper delivered at the A m

erican P hilosoph-

ic a

[ A s s o

c ia

tio n

(s e

n tra

l i.T iv

rs m

a T

m ÿ -ÿ

-,6 o

, .......... v ......

w a

s m a

d e

to m

e b

y E h

sh a

M llg

ia m

in d

iscu ssio

n o

n a

n o

th e

r

o cca

sm n

. F o

r m o

Ie g

e n

e la

l d e

ve lo

p m

e n

t o f th

e p

o in

t se e

Thom as Schelhng, The Strategy of Conflict (Cam

bridge, M

ass H arvard U

niversity P ress, 196o), and G

m ald D

w orkm

, "Is M

ore C hoice B

ettm Than Less?" in The Theory and P

rac- tice of A

utonom y (C

am bridge C

am bridge U

niversity P ress,

988) 14 Frederick S

chauer, "S hppeiyS

lopes;' H arvatdLaw

R evtew

99 (1985) 361-83, W lbren van der B

urg, "The S lippery S

lope A

lgum ent;' E

thtcs lO 2 (O

ctober 1991) 42-65 15 Thele is evidence that physicians com

m only fad to di-

a g n o se

d e p re

ssio n S

e e R

o b e rt I M

isb In

, "P h ysicia

n s A

id in

Dying" NEJiv1325 (1991) 13o4-7 16 R

lchaM Fenlgsen, 'ÿ C

ase against D utch E

uthanasia;' Special Supplem

ent, H astings C

enteÿ R epot t 19, no 1 (1989)

2 2 -3

o 17 A

llen E B

uchanan and D an W

B rock, D

eciding for O thers

The E thics of S

ut t ogate D ecm

onm akm

g (C am

bridge C am

- bridge U

m vm

stty P leS

S , 1989)

18 V an der M

aas et al, "E uthanasia and O

thm M

edical D eci-

sio n s"

1 9

M a

rg a

re t P

B a

ttln , "S

e ve

n C

a ve

a ts C

o n

cm m

n g

th e

D iscu

s-

saon of E uthanasia in H

olland;' A m

erican P hilosophical A

ssocia- tion N

ew sletter on P

hdosoply and M edtcm

e 89, no 2 (199o)

W h

e n

S e

lf-D e

te rm

in a

tio n

R u

n s A

m o

k D

AN IEL C

ALLAH AN

C allahan ,s opposed to the use of voluntary euthanasia and assisted sum

lde H e argues

that a person's r,ght of self-determ m

auon does not m orally lustffy som

eone else kdhng that person, even for m

ercy's sake H e contends that, contrary to com

m on

opm Lon, there is indeed a m

oral difference betw een kJlhng and lem

ng die A pohcy

that lets physm ÿans pracuce euthanas,a w

dl lead to d,re consequences and pervert the profession of m

edicine.

T he euthanasia debate is not just another m

oral de- bate, one in a long list of argum

ents in our pluralistic society. It is profoundly em

blem atic of three im

por- tant tinning points in W

estern thought. T he first is

that of the legitim ate conditions under w

hich one person can kill another T

he acceptance of voluntary active euthanasia w

ould m orally sanction w

hat can

© ÿIhe H

astings C enter R

eprinted by perm ission This article

originally appealed m the H

astings C enter R

epot t, vol 22, no 2 (1992)

only be called "consenting adult M lhng:' By the term

I m ean the kflhng of one person by another in the

nam e of their m

utual right to be killer and killed if they freely aglee to play those roles. T

his turn flies in the face of a long-standing effort to lim

it the cir- cum

stances under w hich one person can take the life

of another, from efforts to control the free flow

of guns and arm

s, to abolish capital punishm ent, and to

m ore tightly control w

arfare E uthanasia w

ould add a w

hole new category oflralllng to a society that already

has too m any excuses to indulge itself in that w

ay.

6 2

6 P

A R

T 3

: L IF

E A

N D

D E

A T

I4 C

h a

p te

r 1 0

: E u

th a

n a

sia a

ÿld P

h ysw

la m

A sslste

d S

u icid

e 6

2 7

• he second turning point hes In the m eaning and

h Im

ts o f se

lf-d e te

rm ln

a h o n . T

h e a

cce p ta

n ce

o f e

u -

thanasia w ould sanction a view

of autonom y hold-

m g that individuals m

ay, in the nam e of then ow

n private, ldlosynclahc view

of the good life, call upon others, Including such restitutions as m

edicine, to help them

pursue that life, even at the risk of harm to

the com m

on good T his w

orks against the idea that the m

eaning and scope of our ow n right to lead our

ow n lives m

ust be condm oned by, and be com

pati- ble w

ith, the good of the com m

unity, w hich is m

ore than an aggregate of self-directing individuals.

T he third turning point is to be found in the claim

being m ade upon m

edicine, it should be prepared to m

ake its skills available to individuals to help them a ch

ie ve

th e n p

riva te

visio n o

f th e g

o o d h

fe T

h is

puts m edicine m

the business ofplom otIng the m

di- viduahstic pursuit of general hum

an happiness and w

ell-being. It w ould overtuin the traditional belief

that m edicine should lim

it its dom ain to prom

oting and preserving hum

an health, rednectlng it instead to the relief of that suffering w

hich steins from life

itself, not m erely fiom

a sick body I believe that, at each of these three turning points,

pioponents of euthanasia push us In the w rong di-

rection. A rgum

ents in favor of euthanasia fall into four general categories, w

hich I w ill take up in turn'

(1) the m olal claim

of individual self-determ ination

and w ell-being; (2) the m

oral irrelevance of the dif- ference betw

een kalling and allow ing to die; (3) the

supposed paucity of evidence to show likely harm

- ful consequences of legalized euthanasia; and (4) the com

patibility of euthanasia and m edical practice

S e

lf-D e

te rm

in a

tio n

C e

n tra

l to m

o st a

lg u

m e

n ts fo

l e u

th a

n a

sia is th

e p rin

cip le

o f se

lf-d e te

rm in

a tio

n P

e o p le

a re

p re

- su

m e

d to

h a

ve a

n in

te re

st in d

e cid

in g

fo r th

e m

- selves, according to their ow

n beliefs about w hat

m akes life good, how

they w ill conduct their lives.

T hat is an im

poltant value, but the question in the euthanasia context is, W

hat does it m ean and how

fa r sh

o u

ld it e

xte n

d ?

If it w e

re a

q u

e stio

n o

f su i-

cide, w here a person takes their ow

n life w ithout

a ssista

n ce

fro m

a n

o th

e l, th

a t p

rin cip

le m

ig h

t b e

pertinent, at least fol debate B ut euthanasia is not

that lim ited a m

attm . T

he self-determ ination m

that

case can only be effected by the m oral and physical

assistance of another. E uthanasia is thus no longer

a m atter only of self-determ

ination, but of a m u-

tual, social decision betw een tw

o people, the one to be killed and the otheI to do the kflhng

H ow

are w e to m

ake the m oxal m

ove from m

y right of self-determ

ination to som e doctor's nght

to hll m e--flom

m y right to his light? W

here does the doctor's m

oral w arrant to kill com

e from ? O

ught doctois to be able to !oll anyone they w

ant as long as perm

ission is gÿven by com petent persons? Is our

right to life just hke a piece of property, to be given aw

ay or alienated if the pnce (happiness, lelief of suffeim

g) is right? A nd then to be destroyed w

ith O

U l perm

ission once alienatedÿ In answ

el to all those queshons, I w ill say this: I

have yet to hear a plausible argum ent w

hy it should be perm

issible for us to put this land of pow er in the

hands of another, w hether a doctor or anyone else.

The idea that w e can w

aive O U

l light to hfe, and then give to another the pow

er to take that life, requires a jum

ficatlon yet to be plovlded by anyone S

laveIy w as long ego outlaw

ed on the glound that one person should not have the light to ow

n another, even w

ith the other's perm ission. W

hy? B e-

cause it is a fundam ental m

olal w rong for one per-

son to give over his life and fate to anothei, w hatever

the good consequences, and no less a w rong for an-

other pelson to have that kand of total, final pow el.

Like slaveiy, dueling w as long ago banned on slrni-

lar grounds even flee, com petent individuals should

not have the pow el to kill each other, w

hatevel their m

otives, w hatever the circum

stances C onsenting

adult lolling, like consenting adult slavery or degra- dation, is a strange route to hum

an dignity T

here is another pioblem as w

ell If doctors, once sanctioned to carry out euthanasia, are to be them

- selves responsible m

oral agents--not sim ply hned

hands w ith lethal rejections at the ready--then they

m ust have then ow

n independent m oral grounds to

kill those w ho request such services W

hat do I m ean?

A s those w

ho favor euthanasia are quick to point out, som

e people w ant it because then hfe has becom

e so bm

densom e it no longer seem

s w oith living

37he doctor w ill have a difficulty at this point The

d e

g le

e a

n d

in te

n sity to

w h

ich p

e o

p le

su ffe

r fio m

their & seases and their dying, and w

hether they find

life m ore of a burden than a benefit, has very httle

& rectly to do w

ith the natm e or extent of their ac-

tual physical condition T hIee people can have the

sam e condition, but only one w

ill find the suffering unbearable P

eople suffer, but suffeiing is as m uch

a function of the values of individuals as it is of the physical causes of that suffering. Inevitably in that circum

stance, the doctor w ill in effect be treating the

pahent's values T o be responsible, the doctor w

ould have to share those values. T

he doctor w ould have

to decide, on her ow n, w

hethel the patient's life w as

"no longer w orth hvlng"

B u t h

o w

co u ld

a d

o cto

I p o ssib

ly kn o w

th a t o

r m

ake such a judgm ent? Just because the patient said

so? I lalse this question because, w hile in H

olland at the euthanasia conference reported by M

aurice de W

achter.., the doctors pi esent agreed that there is no objective w

ay of m easuring or judging the claim

s of patients that their suffering is unbearable A

nd if it is difficult to m

easure suffering, how m

uch m ore

difficult to determ ine the value of a patient's state-

m ent that her life is not w

olth livxngÿ H

ow ever one m

ight w ant to answ

el such ques- tions, the very need to ask them

, to m qm

re into the physlclaffs responsibility and glounds for m

edical and m

oral judgm ent, points out the social nature

of the decision. E uthanasia is not a private m

attei of self-determ

ination It is an act that requires tw o

people to m ake it possible, and a com

pliclt society to m

ake it acceptable

K illing and A

llow ing to D

ie A

gainst com m

on opinion, the argum ent is som

e- tim

es m ade that there is no m

oral difference be- tw

een stopping life-sustaining treatm ent and m

ole active form

s of lralling, such as lethal injection. In- stead I w

ould contend that the notion that there is no m

orally significant difference betw een om

ission and com

m ission is just w

tong. C onsider in its broad

lm phcatlons w

hat the eradication of the distinction lm

phes, that death from disease has been banished,

leaving only the actions of physicians in term inating

treatm ent as the cause of death. B

iology, w hich used

to bring about death, has apparently been displaced by hum

an agency. D octors have finally, I suppose,

thus genuinely becom e gods, now

doing w hat natuie

and the deities once did

W h

a t is th

e m

ista ke

h e

re ?

It lie s in

co n

fu sin

g causality and culpability, and m

failing to note the w

ay m w

hich hum an societies have oveilm

d natuial causes w

ith m oral rules and interpretations. C

ausal- sty (by w

hich I m ean the diiect physical causes of

death) and culpability (by w hich I m

ean our attribu- tion of m

olal responslblhty to hum an actions) are

co n

fu se

d u

n d

e r th

re e

circu m

sta n

ce s.

They aie confused, first, w hen the action of a phy-

sician in stopping treatm ent of a patient w

ith an un- derlym

g lethal disease is construed as causing death O

n the contrary, the physician's om ission can only

bring about death on the condition that the patm nt's

disease w ill kill hun in the absence of treatm

ent W e

m ay hold the physician m

orally responsible foÿ the death, if w

e have m orallyjudged such actions w

Iong- ful om

issions. B ut it confuses reality and m

oral judg- m

ent to see an om itted action as having the sam

e causal status as one that dnectly kalls. A

lethal rejec- tion w

ill lrall both a healthy person and a sick person A

physician's om itted tleatm

ent w ill have no effect

on a healthy person. T urn off the m

achine on m e, a

healthy person, and nothing w ill happen. It w

ill only, in contlast, bring the life of a sick peison to an end because of an underlying fatal disease

C ausality and culpability are confused, second,

w h e n w

e fa

il to n

o te

th a t ju

d g m

e n ts o

f m o ra

l re -

sponslbihty and culpability are hum an constlucts.

B y that I m

ean that w e hum

an beings, after m oral

reflection, have decided tO call som

e actions right or w

rong, and to devise m olal rules to deal w

ith them W

hen physicians could do nothing to stop death, th

e y w

e re

n o

t h e

ld re

sp o

n sib

le fo

r it W h

e n

, w ith

m edical progless, they began to have som

e pow er

over death--but only its tim ing and C

lX C

um stances,

not Its ultim ate m

evitabihty--m oral lules w

ele de- vised to set forth their obligahons N

atural causes of death w

ere not thereby banished. They w ere, instead,

overlaid w ith a m

edical ethics designed to deterlm ne

m oral culpablhty in deploying m

edical pow el

T o confuse the judgm

ents of this ethics w lth the

physical causes of death--w hich is the connotation

of the w oI'd ktll--ls to confuse natm

e and hum an ac-

tion P eople w

ill, one w ay or anothel, die of som

e di- sease; death w

ill have dom inion over all of us. To say

that a doctoi "kills" a patient by allow ing this to hap-

pen should only be understood as a m oi al judgm

ent

6211 P A

R r 3 LI{'L A

N D

IJÿA | H

about the hcltness of his om ission, nothing m

ole. W

e can, as a fashion of speech only, talk about a doc- tor ktlhng a patient by om

itting tieatm ent he should

have ptovided It is a fashion of speech precisely be- cause at is the undellying disease that brings death w

hen treatm ent is om

itted; that is its cause, not the physician's om

ission It is a m isuse of the w

ord kdhng to use it w

hen a doctor stops a treatm ent he believes

w ill no longeI benefit the patient--w

hen, that is, he steps aside to allow

an eventually inevitable death to occur now

lathei than later T he only deaths that hu-

m an beings invented are those that com

e from direct

kllhng--w hen, w

ith a lethal injection, w e both cause

death and are m orally responsible for it In the case

of om issions, w

e do not cause death even if w e m

ay be judged m

orally responsible for it. T

his difference betw een causality and culpability

also helps us see w hy a doctor w

ho has om itted a

treatm ent he should have provided has "killed" that

patient w hile another doctor--perform

ing precisely the sam

e act of om ission on another patient in dif-

fei ent circum stances--does not kill her, but only al-

low s her to die T

he difference is that w e have com

e, by m

oial convention and conviction, to classify un- authorized or illegitim

ate om issions as acts of "kill-

ing" W e call them

"lulhng" in the expanded sense of the term

' a culpable action that perm its the real

cause of death, the underlying disease, to proceed to its lethal conclusion. B

y contxast, the doctoi w ho, at

the patient's request, om its or term

inates unw anted

treatm ent does not kill at all. H

er underlying disease, not his action, is the physical cause of death, and w

e have agreed to consider actions of that kind to be m

orally licit. H e thus can truly be said to have "al-

low ed" her to die. If w

e fail to m aintain the distinction betw

een kill- ing and allow

ing to die, m oreover, there are som

e dlstuibIng possiblhtles. T

he first w ould be to confirm

m any physicians in their already too-pow

erful belief that, w

hen patients die or w hen physicians stop treat-

m ent because of the futility of continuing It, they are

som ehow

both m orally and physically responsible for

the deaths that follow . T

hat notion needs to be abol- ished, not stiengthened It needlessly and w

Iongly buidens the physician, to w

hom should not be attrib-

uted the pow els of the gods. The second posslbdlty

w ould be that, in every case w

here a doctor judges

m edical treatm

ent no longei effective In piolonging life, a quick and direct lolling of the patient w

ould be seen as the next, m

ost reasonable step, on grounds of both hum

aneness and econom ics. I do not see how

that logic could easily be rejected.

C a lcu

la tin

g th

e C

o n se

q u e n

ce s

W hen concerns about the adverse social consequences

of perm itting euthanasia are iaised, its advocates tend

to dism iss them

as unfounded and overly speculative. O

n the contlary, recent data about the D utch expell-

ence suggests that such concerns are right on target. F

rom m

y ow n discussions in H

olland, and from the

articles on that subject in this issue and elsew here, I

believe w e can now

fully see m ost of the hkely conse-

quences of legal euthanasia T

hree consequences seem alm

ost celtaln, in this or any other country, the Inevltabihty of som

e abuse of the law

; the difficulty of precisely w riting, and

then enfoicing, the law ; and the inherent slipperi-

ness of the m oral reasons for legalizing euthanasia

in the first place. W

hy is abuse inevItableÿ O ne reason is that al-

m ost all law

s on delicate, contioversial m atters are

to som e extent abused T

his happens because not everyone w

ill agree w ith the law

as w ritten and w

dl bend it, or Ignore it, if they can get aw

ay w ith it. From

explicit adm issions to m

e by D utch proponents of

euthanasia, and from the corroborating inform

ation provided by the R

em m

ehnk R eport and the outside

studies of C arlos G

om ez and John K

eow n, I am

con- vlnced that in the N

etherlands there are a substantial num

ber of cases of nonvoluntary euthanasia, that is, euthanasia undeItaken w

ithout the explicit perm is-

sion of the peison being lulled. T he other reason

abuse is inevitable is that the law is likely to have a

low enforcem

ent priority In the crim inal justice sys-

tem . Like other law

s of sim ilar status, unless there

is an unrelenting and harsh w llhngness to pursue

a b

u se

, vio la

tio n

s w ill o

rd in

a rily b

e to

le ra

te d

T h

e W

O lS

t thing to m e about m

y experience in H olland

w as the casual, seem

ingly indifferent attitude tow ard

abuse I think that w ould happen everyw

here W

hy w ould it be hard to precisely w

rite, and then enfoIce, the law

? The D utch speak about the require-

m ent of "unbeaiable" suffelIng, but adm

it that such a term

is just about indefinable, a highly subjective

m a

tte r a

d m

ittin g

o f n

o o

b je

ctive sta

n d

a rd

s A Ie

- qulrem

ent for outside opinion is nice, but it is easy to find com

plaisant colleagues A requirem

ent that a m

edical condition be "term inal" w

ill run agIound on the notorious difficulties of lcnow

lng w hen an ill-

ness is actually term inal

A part from

those technical problem s there is a

m o

re p

ro fo

u n

d w

o rry

. I s e

e n

o w

a y , e

v e

n in

p lIn

-

clple, to w lite or enforce a m

eaningful law that can

guarantee effective procedural safeguards. T he rea-

son is obvious yet alm ost alw

ays overlooked The eu- thanasia transaction w

ill ordinarily take place w ithin

the boundaries of the private and confidential doctor- patient relationship N

o one can possibly know w

hat takes place in that context unless the doctor chooses to reveal it. In H

olland, less than lo percent of the physicians report their acts of euthanasia and do so w

ith alm ost com

plete legal im punity. T

here is no reason w

hy the situation should be any better else- w

here. D octors w

ill have their ow n reasons for keep-

lng euthanasia secret, and som e patients w

ill have no less a m

otive for w anting it concealed.

I w ould m

ention, finally, that the m oral logic of

the m otives fol euthanasia contain w

ithin them the

ingredients of abuse T he tw

o standard m otives for

euthanasia and assisted suicide are said to be our right of self-deteim

inatlon, and our claim upon the m

ercy of others, especially doctors, to relieve our suffer- lng These tw

o m otives are typically spliced togethei

and presented as a single justification. Y et if they are

considered independently--and there is no inherent leason w

hy they m ust be linked--they reveal serious

problem s. It is said that a com

petent, adult person should have a right to euthanasia for the relief of suf- fering. B

ut w hy m

ust the person be suffering? D oes

not that stipulation already com prom

ise the principle of self-determ

ination? H ow

can self-determ ination

have any lim its? W

hatever the person's m otives m

ay be, w

hy are they not sufficient? C

onsider next the person w ho is suffering but not

com petent, w

ho is perhaps dem ented oi m

entally re- tarded. The standard argum

ent w ould deny euthana-

sia to that person B ut w

hy? If a peison is suffering but not com

petent, then it w ould seem

grossly unfan to deny relief solely on the grounds of incom

petence. A

re the incom petent less entitled to rehef flom

suf- fering than the com

petent? W ill it only be affluent,

C lltlp

te r |0

: ÿ th

a n

a s ÿ P

h y ÿ iC

la rlÿ

A s s is

te d

ÿ U

i¢ ld

e O

Z Y

m iddle-dass people, m

entally fit and savvy about w ork-

lng the m edical system

, w ho can qualify? D

o the in- com

petent suffei less because of their incom petence?

C onsidered from

these angles, there are no good m

oral reasons to lim it euthanasia once the principle

of taking life for that purpose has been legitim ated

If w e really believe in self-determ

ination, then any com

petent person should have a right to be killed by a doctor for any reason that suits him

. If w e believe

In the Iehef of suffering, then It seem s cruel and ca-

pricious to deny it to the Incom petent. T

here is, in short, no reasonable or logical stopping point once the turn has been m

ade dow n the road to euthana-

sia, w hich could soon turn into a convenient and

com m

odious expressw ay

E uthanasia and M

edical P ractice

A fourth lund of argum

ent one often hears both in the N

etherlands and in this country is that euthanasia and assisted suicide are perfectly com

patible w ith the

aim s of m

edicine. I w ould note at the very outset that

a physician w ho participates in another person's sui-

cide already abuses m edicine A

part fiom depression

(the m ain statistical cause of suicide), people com

m it

suicide because they find life em pty, oppressive, or

m eaningless Their judgm

ent is a judgm ent about the

value of continued life, not only about health (even if they are sick). A

re doctors now to be given the right

to m ake judgm

ents about the lrands of life w orth hy-

ing and to give their blessing to suicide for those they judge w

antingÿ W hat conceivable com

petence, tech- nical or m

oral, could doctors claim to play such a

iole? A ie w

e to m edicahze suicide, turning judgm

ents about its w

orth and value into one m ore chm

cal issue? Y

es, those are rhetorical questions Y

et they bring us to the core of the problem of

euthanasia and m edicine T

he great tem ptation of

m odern m

edicine, not alw ays resisted, is to m

ove beyond the prom

otion and pieservatlon of health into the boundless realm

of geneIal hum an hap-

piness and w ell-being T

he root problem of illness

and m ortality is both m

edical and philosophical or rehgious "W

hy m ust I dieÿ" can be asked as a tech-

nical, biological question oi as a question about the m

eaning of life. W hen m

edicine tries to respond to the latter, w

hich it is alw ays under pressure to do, it

m oves beyond its proper role

It IS not m

edicine's place to lift from us the bur-

den of that suffering w hich turns on the m

eaning w

e assign to the decay of the body and its eventual death. It is not m

edicine's place to determ ine w

hen lives ate not w

orth living oi w hen the burden ofhfe

is too gzeat to be borne D octors have no conceivable

w ay of evaluating such claim

s on the part of patients, and they should have no right to act in response to them

. M edicine should tly to relieve hum

an suffer- ing, but only that suffering w

hich is brought on by illness and dying as biological phenom

ena, not that suffering w

hich com es flom

anguish or despair at the hum

an condition D

octors ought to relieve those form s of suffer-

lng that m edically accom

pany serious illness and the threat of death They should relieve pain, do w

hat they can to allay anxiety and uncertainty, and be a com

forting presence A s sensitive hum

an beings, doctors should be prepared to respond to patients

w ho ask w

hy they m ust die, or die in pain. B

ut heie the doctor and the patient are at the sam

e level 3he doctor m

ay have no better an answ er to those old

questions than anyone else; and certainly no special insight flora his training as a physician It w

ould be te

rrib le

fo r p

h ysicia

n s to

fo rg

e t th

is, a n

d to

th in

k that in a sw

ift, lethal injection, m edicine has found

its ow n answ

er to the riddle ofhfe It w ouldbe a false

answ er, given by the w

rong people. It w ould be no

less a false answ el for patients. T

hey should neither ask m

edicine to put its ow n vocation at risk to seIve

their private interests, nor think that the answ er to

suffering is to be killed by another The pIoblem is p

re cise

ly th a

t, to o

o fte

n in

h u

m a

n h

isto ry, kill-

Ing has seem ed the quick, efficient w

ay to put aside that w

hich buIdens us It rarely helps, and too of- ten sim

ply adds to one evd still another T hat is w

hat I believe euthanasia w

ould accom plish. It is self-

detm m

lnatlon run am ok

W h e n A

b stra

ct M o ra

lizin g R

u n s A

m o k

JO H

N LAC

H S

In tN s response to D

arnel C allahan's condem

nauon of voluntary euthanasia, Lachs ar-

gues that C allahan m

ÿsunderstands the suffer,ng and m ot,vauons of those w

ho ask to die M

oreover, Lachs says, It Is im plausible to clm

m as C

allahan does that a r,ght to kill ourselves cannot be transferred to som

eone else. C allahan m

a,nta,ns that there are

no good m oral reasons to hm

Jt euthanas,a once the pracuce has been legm m

ated, but

Lachs contends that good m oral reasons can com

e from our cons,derat,on of ÿm

por-

tant d,st,ncuons and spec,fic circum stances C

allahan suggests that self-determ ,nauon

w ,II have us "run am

ok" m tak,ng hves w

,thout restraint; Lachs declares, how ever,

"N o ser,ous m

orahst has ever argued that self-determ ,nat,on m

ust be absolute"

M oral leasonlng is m

ore objectionable w hen it is ab-

stract than w hen it is m

erely w rong F

or abstractness all but guarantees error by nnssIng the hum

an predica- m

ent that needs to be addressed, and w orse, it is a sign

that thought has faded to keep faith w ith its m

ission. The function of m

oral reflection IS to shed light on the

difficult problem s w

e face, it cannot perfolm its job

From 7he Jot. hal of C

hntcal E thics 1994, vol 5, no 1, pp

10-13 C opyright ©

T he Journal of C

hm cal E

thm s, Inc A

ll zlghts zesm

ved R epnnted w

zth perm ission

to contiIbute to a sound assessm ent of it T

hus, C al-

lahan inform s us that suffeiing "blought on by ill-

ness and dying as biological phenoInena"= is to be contiasted w

ith suffeilng that com es fiom

"anguish oi despair at the hum

an condition" T he folm

er con- stItutes the proper concern of m

edicine (so m uch

foi psychlatryW ), the lattel of iehglon and phIloso-

play M edication is the answ

er to physical pain; eu- thanasia can, therefoIe, be only a m

isconceived ie- sponse to w

olries about the m eaning of existence.

T hose w

ho believe in it offer a "sw ift lethal injection"

as "the answ er to the nddle of life"

This w ay of putting the m

attei w ill com

e as a S U

l- prise to those w

ho suffei fiom terrible diseases and

w ho no longei find life w

orth living. It is glotesque to suppose that such individuals are looking foI the m

eaning of existence and find it, absurdly, in a lethal injection. T

heir piedicam ent is not intellectual but

existential T hey ale not interested in the m

eaning of life but in acting on their belief that then ow

n con- tinued existence is, on balance, of no fuithei benefit to them

T hose w

ho advocate the legalization of euthana- sia and the pi actlce of assisted sm

cide pa opose them as answ

ers to a serious and glow ing social problem

W e now

have the pow er to sustain the biological ex-

istence of laIge num beis of vel y sick people, and w

e use this pow

el freely A ccoidingly, individuals suf-

fering fiom painful telm

lnal dlseasÿ,s, A lzhelm

m 's

patients, and those in a persistent vegetative state ate i outm

ely kept alive long past the point w here they can

function as hum an beings They m

ust beaz the pain of existence w

ithout the ability to pei fol m the activities

that give life m eaning. S

om e of these people feel in-

tensely that they are a buiden to others, as w ell as to

them selves, and that then speedy and relatively dig-

nlfied depaztuie w ould be a relief to all concm

ned. M

any obsezveis of no m ole than average sensitiv-

ity agree that the plight of these patients is sevele enough to justify such desires

S om

e of these sufferers aie physically not in a posi- tion to end theu lives O

thels could do so if they had th

e n

e ce

ssa ry in

stru m

e n

ts. In o

u I cu

ltu re

, h o

w e

ve z,

few have a taste foi blow

ing out their brains or jum p-

lng fl om high places. That leaves di ugs, w

hich alm ost

evei yone is accustom ed to taM

ng, and w hich every-

one lm ow

s can ease one peacefully to the other side.

w ithout a dear undm

standm g of how

and w hy certain

of our practices com e to seem

no longer satlsfactorÿ It is just this grasp of the problem

that IS conspicuously lacking in D

aniel C allahan's assault

on euthanasia in "S elf-D

eterm ination R

un A m

ok"1 T

he rhetoric C allahan unleashes gives not even a

hint of the grave contem porary m

oral problem s that

euthanasia and assisted suicide, a grow ing num

ber of people now

think, prom ise to resolve.

Instead, w e are offeied a set of abstract pnnca-

pies, calculated to dlscledit euthanasia lathm than

T he m

edical profession has, how ever, acquired

m onopolypow

ei ovei diugs A nd the danger of legal

entanglem ent has m

ade physicians w aiy of helping

patients hasten then deaths in the dlscieet, hum ane

w ay that has been custoinaly for centuiies. T

he ie- suit is that people w

ho w ant to die and for w

hom death has long ceased to be an evil can find no w

ay out of then m

isery C urient and grow

ing pIessuies on the m

edical piofession to help such suffeIers ate, theIefore, due at least partly to m

edicine Itself. P eo-

ple w ant physicians to aid in their suicides because,

w ithout such help, they cannot end then lives. T

his lestiictlon of hum

an autonom y is due to the social

pow er of m

edicine; it IS neither suIpH

sing noi m oi-

ally w Iong, therefore, to ask those responsible foz

th is lim

ÿta u

o n

to u

n d

o so

m e

o f its m

o st n

o xio

u s

e ffe

cts If th e

m e

d ica

l p ro

fe ssio

n re

lin q

u ish

e d

its hold on dtugs, people could m

ake effective choices about their futuIe w

ithout the assistance of physi- cians. E

ven lim ,ted access to deadly drugs, iestricted

to single doses for those w ho desire them

and w ho

are celtlfied to be of sound m ind and neai the end

of hfe, w ould keep physicians aw

ay flom dealing in

deathUnfortunately, how ever, throe is little sensible

public discussion of such policy altelnatlves A nd

these policy alternatives m ay, in any case, not sat-

isfy C allahan, w

ho appears to believe that there is som

ething radically w rong w

ith anyone term inating

a hum an life. B

ecause he plays coy, his actual beliefs are difficult to m

ake out. H e says the notion that self-

deteim lnation extends to suicide "m

ight be pel tlnent, at least fot debate''3 B

ut his argum ent against euthana-

sia sidesteps this issue, he m am

talns that even if thele is a right to kill oneself, it is not one that can be tlans- ferred The reason for this is that doing so w

ould lead to "a fundam

ental m oi al w

rong"--that of one peI son giving over "his life and fate to another"

O ne m

ight w ondei how

w e know

that transfei ring pow

eI ovel oneself is "a fundam ental m

ot al w rong?'

C allahan appeai s to entel tam

the idea w ith intuitive

cei tainty, w hich gives him

the m oral and the logical

high gIound and entitles him to dem

and a justifica- tion flom

w hoevel disagrees B

ut such intuitions are pioblem

atlc them selves, is fezvent em

biace of them enough to guaiantee their ttuth? M

m allty w

ould be veI y distant fl om

the concerns of life if It depended

on such guideposts placed here and there in the des- ert of facts, unrelated to each other or to anything else. Their m

essage, m oreover, m

akes the guideposts suspect' it com

es closer to being an echo of tradition or an expression of current view

s than a revelation of eternal m

oral truths. M

ost im portant, the very idea of a right that in-

trinsically cannot be handed on is difficult to grasp. U

nder norm al circum

stances, to have a right is to be free or to be entitled to have or to do som

ething I have a right, for exam

ple, to dean m y teeth. N

o one else has the right to do that w

ithout m y consent.

B ut I can authorize another, say m

y sw eetheart or

m y dental hygienist, to do ,t for m

e. S im

ilarly, I can assign m

y right to m y house, m

y left kidney, to rais- ing m

y children, to deciding w hen I rise, w

hen I go to sleep, and w

hat I do in betw een (by joining the

A rm

y), and by a pow er of attorney even to pursuing

m y ow

n interest. T

o be sure, the transfer of rights is not w ithout

hm lts M

y w ife and I can, for exam

ple, give over oui right to our children, though w

e cannot do so for m

oney I can contract to slave aw ay for ten hours a

day cooM ng ham

burgers, but I cannot sell m yself

to be, once and for all, a slave. T his does not m

ean, how

ever, that som e rights are intrinsically nontrans-

ferable If m y right to m

y left ladney w ere nontrans-

ferable, I could neither sell it nor give it aw ay. B

ut I can give it aw

ay, and the only reason I cannot sell it is because sales of this sort w

ere declared, at som e

point, to be against public policy. W e cannot sell

ourselves into slavery for the sam e reason hum

an societies set lim

its to the transfer of rights on ac- count of its unacceptable costs.

T he case is no different w

ith respect to authoriz- ing another to end m

y life. If I have a right to one of m

y lodneys, I have a right to both. A nd if I can

tell a needy person to take one of them , I can tell

tw o needy people to take one each. T

here is noth- m

g m tt m

szcally im m

oral about this, even though w

hen the second helps him self I die. Y

et, by dying too soon, I m

ay leave opportunities unexplored and obligations unm

et. U nscrupulous operators m

ay take advantage of m

y goodw ill or naivete T

he very possibility of such acts invites abuse. F

or these and sim

ilar reasons, w e m

ay decide that giving the first kidney IS

m orally acceptable, but giving the second

is not. The diffeience betw een the tw

o acts, how ever,

is not that the first is generous w hile the second is

"a fundam ental m

oial w rong" but that the second

o ccu

rs in a

co n

te xt a

n d

h a

s co n

se q

u e

n ce

s a n

d co

sts

that the first does not. O

nly in term s of contest and cost, therefore, can

w e sensibly consider the issue of the m

oiahty of eu- thanasia. M

oving on the level of abstract m axim

s, C

allahan m isses this point altogether. H

e declares: "T

here are no good m oral reasons to lim

it euthana- sia once the principle of taM

ng hfe.., has been le- gitim

ated.''4 S erious m

oral reflection, though it takes principles into account, is little interested in legiti- m

ating them . Its focus is on determ

ining the m oral

acceptablhty of certain sorts of actions perform ed in

com plex contexts of life C

onsldeiatlon of the cir- cum

stances is alw ays essential, it is fatuous, there-

fore, to argue that if euthanasia is ever perm issible,

then "any com petent person should have a right to

be lcalled by a doctor for any reason that suits him ''5

W e can achieve little progress in m

oral philosophy w

ithout the ability and readiness to m ake ielevant dis-

tinctions W hy, then, does C

allahan refuse to aclm ow

l- edge that there are im

portant differences betw een the

situation of a term inally ill patient in grave pain w

ho w

ants to die and that of a young father in the dental chair w

ho w ishes, for a m

om ent, that he w

ere dead? C

allahan's reason is that he thinks all judgm ents about

the unbearabihty of suffering and the w orthlessness

of one's existence are subjective and, as such, parts of a "private, idiosyncratic view

of the good life:'6 T he

am ount of suffering "has very little directly to do"

w ith our physical condition, and so the desire to end

life is capricious and unreliable If m edicine honored

such desires, it w ould "put its ow

n vocation at risk" by serw

ng "the private interests" of m dlvlduals.

I cannot im agine w

hat the vocation of m edicine

m ight be if it is not to serve the private m

tm ests of

indiw duals. It is, after all, m

y vision of the good life that accounts foI m

y w ish not to perish In a &

abe- tic com

a. A nd surgeons certainly pursue the private

m terests of their patients m

rem oving cancm

ous grow

ths and in providing face-lifts M edicine does

n o

t su rre

n d

e r its vo

ca tio

n in

se rvin

g th

e d

e sire

s of individuals, since health and continued life are am

ong oui prlm ai y w

ishes, Its career consists in just this service

N evertheless, C

allahan is right that ourjudginents about the quality of our lives and about the level of out suffeung have a subjective com

ponent. B nt so

do the oplm ons of patients about then health and

illness, yet physicians have httle difficulty in placing these perceptions in a broader, objective context S

im ilarly, it is both possible and plopel to take into

account the objective circum stances that surlound

desires to term inate life P

hysicians have developed consIdm

able skill in ielating subjective com plaints

to objective conditions, only by absurd exaggeration can w

e say that the doctor m ust accept either all oi

none of the patient's claim s The context of the young

father in the dental chair m akes it clear that only a

m adm

an w ould think of sw

itching from novocaine

to cyanide w hen he m

oans that he w ants to be dead

E ven people of ordinary sensitivity understand that

the situation of an older person w hose fiIends have

all died and w ho now

suffm s the excruciating pain of

term inal cancer is m

orally different T

he question of the justifiability of euthanasm , as

all difficult m m

al questions, cannot be asked w ith-

out specifying the details of context. D ire w

arnings of shppeiy slopes and of future large-scale, quietly conducted exterm

inations trade on ovellooklng dif- ferences of circum

stance T hey insult our sensitiv-

ity by the suggestion that a socm ty of individuals of

good w ill cannot recognize situations in w

hich their fellow

s w ant and need help and cannot distinguish

such S ltU

atm ns from

those in w hich the desire fox

death IS rhetorical, m

isguided, tem porary, or idiotic

It w ould indeed be tragic if m

edicine w ere to leap to

the aid of lovelorn teenagers w henevel they feel hfe

is too m uch to bear B

ut It is just as lam entable to

stand idly by and w atch unw

anted hves fill up w ith

unproductive pain C

allahan is coirect in pom ting out that, in eutha-

nasia and in assisted sm clde, the physician and the

patient m ust have separate justifications foI action.

T he patient's w

ish is defensible if it is the outcom e

of a sound reflective judgm ent. S

uch judgm ents take

into account the cui rent condition, pending projects, and long-teim

prospects of the Individual and relate them

to his O l her perm

anent lntm ests and estab-

hshed values. A s all assessm

ents, these can be in ei- for. F

or this ieason, persons soliciting help in dying m

ust be ready to dem onstrate that they are of sound

m ind and thus capable of m

aM ng such chom

es, that then desire is enduIing, and that both then subjec- tive and their objective condition m

akes then w ish

sensible P

hysicm ns m

ust first decide w hethel their per-

sonal values perm it them

to participate in such ac- tivities If they do, they m

ust diligently exam ine the

justifiability of the patient's desire to die. D iagnosis

and prognosis are often relatively easy to ascertain B

ut w e are not w

ithout resoulces foi a sound de- teim

ination of the internal condition of Individuals either extensive questioning on m

ultiple occasions, inteivlew

s w ith friends and loved ones, and explo-

ration of life history and values of people contnb- ute m

ightily to understanding then state of m ind

P hysicians w

ho are pIepared to aid Individuals w ith

this last need of then lives are not, therefoie, in a position w

here they have to believe everything they hear and act on every request They m

ust m ake inde-

pendent judgm ents instead of subordm

ating them -

selves as unthlnhng tools to the passing desires of those they w

ish to help. T his does not attribute to

doctors "the pow ers of the gods" It only lequnes that

they be flexible in how they aid their patients and

that they do so w ith due caution and on the basis of

sound evaluation C

allahan is once again right to be concerned that, if allow

ed, euthanasia w ill "take place w

ithin the bound- aries of the private and confidential doctor-patient relationship.''7 T

his does, indeed, invite abuse and perm

it callous physicians to take a casual attitude to

a m

o m

e n to

u s d

e cisio

n . C

a lla

h a n is w

ro n g , h

o w

-

eve1, in supposing that this constitutes an argum ent

against euthanasia It is only a reason not to keep eu- thanasia secret, but to shed on it the w

holesom e light

of publicity. T hough the decision to term

inate life IS m

tensely private, no m oral consideration dem

ands that it be kept the confidential possession of tw

o individuals T

o the contrary, the only w ay w

e can m

inim ize w

Iong decisions and abuse is to require scrutiny of the decision, prior to action on it, by a suitable social body. S

uch exam ination, including at

least one personal interview w

ith the patient, should go a long distance tow

aid relieving C allahan's con-

cern that any law governing euthanasm

w ould have

"a low enfolcem

ent priority In the crim inal justice

system "8 W

ith folm al social controls in place, theie

should be vex y little need fox the Involvem ent of

C O

U ltS

and piosecutors

T o suppose, as C

allahan does, that the pIlnciple of autonom

y calls for us to stand idly by, or even to assist, w

henever and for w hatever reason people

w ant to end their lives is calculated to discredit both

euthanasia and autonom y. N

o serious m oralist has

ever argued that self-determ ination m

ust be abso- lute It cannot hold unlim

ited sw ay, as M

ill and other advocates of the principle readily adm

it, if hum ans

ale to live in a society A nd m

olally, at w ould cut no

ice if m urderers and rapists argued for the legitim

acy of their actions by claim

ing that they flow naturally

and solely flora w ho they are

3he function of the principle of autonom y is to

affirm a value and to shift the bulden of justifying

in frin

g e m

e n ts o

f in d ivid

u a l lib

e rty to

e sta

b lish

e d

social and govm nm

ental pow ers T

he value it af- firm

s IS that of individual agency expressed in the

belief that, through action and suffering and death, the life of each person enjoys a sort of private in- tegrity. T

his m eans that, in the end, our lives belong

to n

o o

n e b

u t o

u rse

lve s T

h e lim

its to su

ch se

lf-

determ ination oi self-possession aIe set by the de-

m a

n d

s o f so

cia l life

. T h

e y ca

n b

e d

isco ve

re d

o r

decided upon in the process of m oial reflection. A

sensible approach to euthanasia can disclose how m

uch w eight autonom

y carries in that context and how

it can be balanced against other, equally legiti- m

ate but com peting values.

In the hands of its friends, the principle of self- determ

ination does not run am ok W

hat runs am ok

in C allahan's version of autonom

y and euthanasia is the sort of abstract m

orahzlng that forgets the prob- lem

it sets out to address and shuts its eye to need and suffering

N O

T E

S 1

D C

a lla

h a

n , "S

e lf-D

e te

lm m

a tm

n R

u n

A m

o k," H

a stin

g s

C entel R

epot t 22 (M m

ch-A prd 1992) 52-55

2 IbM , 55

3 IbM , 52

4 IbM , 54

5 IbM 6 IbM

, 52 7 IbM

, 54 8 IbM

P hysician-A

ssisted S uicide: A

T ragic V

iew JO

H N

D AR

R AS

A rras is a firm

behever m autonom

y and finds him self "deeply sym

pathetm to the cen-

tral values m otw

atm g the case for [physm

lan-asslsted sulcade] and euthanasia" N ever-

theless, he argues that legahzm g the practices poses "too great a threat to the [email protected]

ts and w

elfare of too m any people."

For m any decades now

, the calls for P A

S and eutha-

nasia have been perennial lost causes in A m

erican society E

ach generation has throw n up an assort-

m ent of earnest reform

ers and cranks w ho, after

attracting their fifteen m inutes of fam

e, inevitably have been defeated by the com

bined w eight of tra-

d itio

n a l la

w a

n d m

o ra

lity. In cre

d ib

ly, tw o re

ce n t

federal appellate court decisions suddenly changed the legal landscape in this area, m

aking the various states w

ithin their respective junsdlctlons the first governm

ents in w orld history, excepting perhaps the

N azi regim

e in G erm

any, to officially sanction P A

S .

W ithin the space of a m

onth, both an eight-to-three m

ajority of the U nited S

tates C ourt of A

ppeals for the N

inth C lIcU

ltÿ on the W est C

oast, and a three- judge panel in the U

nited States C ourt of Appeals for

the S econd C

ircuit,ÿ in the N ortheast, struck dow

n long-standing state law

s forbidding physicians to aid or abet their patients in acts of suicide W

ithin

a virtual bhnk of an eye, the unthinkable had com e

to pass' P A

S and euthanasia had em

erged from their

exile beyond the pale of law to occupy centel stage in

a dram atic public debate that eventually culm

inated in the U

nited S tates S

uprem e C

ouit's unanim ous re-

versal of both low er court decisions in June 1997'3

Judge R elnhaidt, w

riting for a m ajority of an en

banc decision of the N inth C

ircuit,4 held that com -

petent, term inally 111 patients have a pow

erful "lib- erty interest" w

hat used to be called a C onstitutional

right, to enlist the aid of their physlcm ns In hastening

death via prescriptions f01 lethal drugs 5 H e argued

that, just as the right to privacy guarantees w om

en the right to choose an abortion, this llbeity interest piotects a right to choose the tim

e and m anner of

one's death? In response to w

arnings against the expansion of this right to broader categories of patients (e g, to the m

em ally incapacitated) and against the great

hkehhood of m istake and abuse, Judge R

einhardt perm

itted the regulation of P A

S in order to avoid

such evils, how ever, he pointedly ruled out any and

all blanket prohibitions.7 In response to the tradi- tional objections that allow

ing P A

S w

ould subvert the state's interests in preventing suicide and m

ain- taining the integrity of the m

edical profession, Judge R

elnhardt contended that our society already has effectively eiased the distinction betw

een m eiely al-

low ing pahents to die and kllhng them

.s R einhardt

cla im

e d

th a

t b y a

llo w

in g

p a

tie n

ts o r th

e ir su

rro -

gates to forgo hfe-sustalnlng m edical treatm

ents, in

clu d

in g

a rtificia

lly a d

m in

iste re

d n

u tritio

n a

n d

hydration, and by sanctioning the adm lnistiation of

paln-lralhng drugs that m ight also hasten death, our

society already perm its a variety of"death inducing"

practices T hus, the social risks of allow

ing P A

S are

only different in degree, not in kind, from risks that

w e ah eady countenance

W riting for the S

econd C ircuit in strllong dow

n a sim

ilar N ew

Y ork statute, Judge M

iner explicitly re- jected the claim

of the S econd C

ircuit m ajority that

a "substantive due pi o cess" Iight of P A

S exists in the

C onstitution. W

hile presciently conceding that the S

uprem e C

oult w as unlikely to extend the bound-

aries of the so-called right to privacy, Judge M iner

found nevertheless that the statute violated the equal protection clause of the C

onstitution ÿ E choing Judge

From P

hysician A ssisted S

uicide E xpanding the D

ebate by M

argaret P B

attm , R

osam ond R

hodes, and A m

ta S ilvers

N ew

Y m

k and London R outledge 1998, pp 279-300

R eprinted w

ith pelm lssm

n

R einhai dt's assertion that only a dlffelence of degree

separates P A

S from

the foIegoIng of life-sustaining tie

a tm

e n

ts --c

la im

ln g

in e

ffe c t th

a t th

e a

d m

in is

tra -

tion of potentially death hastening analgesics consti- tutes a kind of suicide--Judge M

inm observed that

N ew

Y ork's law

allow ed som

e people relief from the

ravages of term inal illness (i.e, those connected to

som e form

of rem ovable life-support) w

hile denying relief to those not so connected, fol w

hom P

A S

w as

the only rem aining exit 1o C

oncurring w ith Judge

R elnhardt that the social llsks of P

A S

are Identical to those of our m

m e socially approved "death induc-

Ing" practices, Judge M lnel concluded that this kind

of differential treatm ent serves no legitim

ate state purpose. T

hus, he held that the law w

as unconsti- tutional even in the absence of a new

fundam ental

light to PAS ÿ' W

hat to think of these starthng decisions? W ere

th e y h

a rb

in g e rs o

f a n

e w

w o ild

b ra

ve e

n o u g h to

o ve

rco m

e ce

n tu

rie s o

f re lig

io u s ce

n su

re a

n d fe

a r-

m ongerIng, a w

orld that w ill no longer perm

it hu- m

an beings to suffer unw illingly the torm

ents of ter- m

inal illness? O r w

ele they dangm ous aberrations,

decisions that sim ultaneously affirm

ed the auton- om

y of som e, w

hile endangering the lives of society's m

ost vulnerable citizens? The S

uprem e C

ourt has finally left little doubt about w

here it stands on these questions. In a set of m

a jo

n ty a

n d

co n

cu rrin

g o

p in

io n

s re m

a lka

b le

fo r

their ideological restraint, com passion, and thought-

fulness, the various Justices have concluded that ex- tant state law

s bai ring P A

S and euthanasia violate

neither the F ourteenth A

m endm

ent protection of hbelty nor the F

ifth A m

endm ent's due process pro-

vision?= W hile thus issuing a painful rebuke to the

partisans of hbeiallzatlon, each of the Justices ten> pered his or her final judgm

ent w ith the recognition

that their collective decision w ould by no m

eans end public debate, but w

ould rathel & splace it onto the

agendas of the fifty state legislatures. A

s a firm believer in patient autonom

y, I find m y-

self to be deeply sym pathetm

to the central values m

otivating the case for P A

S and euthanasia, I have

concluded, how ever, that these practices pose too

great a threat to the rights and w elfare of too m

any people to be legalized in this country at the present tim

e. C entlal to m

y atgum ent in this essay w

ill be

6 3

6 P

A P

, T $

: L IF

E A

N D

D E

A T

H C

h a

p te

r 1 0

: E u

th a

n a

sia a

n d

P h

ysicm n

-A sslste

d S

tu cld

e 6

3 7

the claim that the recently overturned decisions of

the circuit courts em ploy a form

of case-based lea- sonlng that is ill-suited to the developm

ent of sound social pohcy in this area I shall aigue that in order to do justice to the very real thleats posed by the w

idespread social placttces of P A

S and euthanasia,

w e need to adopt precisely the kind of policy per-

spective that the C llC

U lt courts rejected on principle

Thus, this essay presents the case for a foiw ard-look-

ing, legislative apploach to P A

S and euthanasia, as

opposed to an essentially backw ard-looking, judicial

or constitutional approach.13 A lthough I suggest be-

low that the soundest legislative policy at the piesent

tim e w

ould be to extend the legal prohibition of PAS into the near future, I rem

ain open to the possibility that a given legislature, presented w

ith sufficient ev- idence of the l ehablhty of valious safeguaids, m

ight com

e to a different conclusion.

A rg

u m

e n ts a

n d M

o tiva

tio n s

in F avor of P

A S

/E uthanasia

Let us begin, then, w ith the philosophical case for

P A

S and euthanasia, w

hich consists of tw o distinct

piongs, both of w hich speak sim

ply, dnectly, and pow

erfully to our com m

onsenslcal Intm tlons. F

irst, there is the claim

of autonom y, that all of us possess

a right to self-determ ination in m

atters profoundly touching on such religious them

es as life, death, and the m

eaning of suffering. Just as w e should each be

free to m ake im

portant choices beanng on how w

e shall live oui ow

n lives, so w e should be equally free

in choosing the tim e and m

anner of our deaths F or

som e, m

ore life w ill alw

ays be w elcom

e as a gift or peihaps even as a test of faith, but for others, con- tlnued life signifies only disfiguring suffering and the unrelenting loss of everything that invested theu hves w

ith m eaning and dignity. A

s philosopher R on-

aid D w

olkln has eloquently argued, it is a foim of

tyranny to force som eone to enduie terrible suffer-

Ing at the end-of-life m erely for the sake of som

eone else's values.14 E

ach of us should be free to live or die as w

e see fit according to our ow n conceptions of the

m eaning of life and death. S

econd, P A

S and/or euthanasia ate m

eiciful acts that dehver teim

inally 111 patients from a painful and

protracted death. A ccording to the utilitarian, acts

are m orally right insofar as they prom

ote happiness

and alleviate unhappiness, and w rong insofar as they

cause oi allow others to suffer needlessly E

ven ac- coIding to the tiaditIonal ethic of the m

edical pro- fession, physicians have a solenm

duty not m eiely

to extend life w henevel possible (and desnable), but

also to alleviate pain and suffering w henevei possi-

ble. F or patients suffelxng from

the final ravages of end-stage A

ID S

oi cancei, a doctor's lethal plescrip- tion or Injection can be, and often IS

, w elcom

ed as a blessed relief. A

ccordingly, w e should treat hum

an beings at least as w

ell as w e treat grievously ill or in-

jured anim als by putting them

, at then ow n request,

out of their m iseiy

T hese philosophical reflections can be supple-

m ented w

ith a m ore clinical perspective addressed to

the m otivational factors lying behind m

any Iequests to die. M

any people advocate legalization because they feai a loss of contiol at the end-of-life. T

hey feat falling victim

to the technological lm pelative;

they feai dym g in chIonlc and uncontiolled pain; they

fear the psychological suffeiing attendant upon the re

le n tle

ss d isin

te g ra

tio n o

f th e se

lf, th e y fe

a r, m

short, a bad death A ll of these fears, it so happens,

aie em inently justified. P

hysicians ioutinely ignore the docum

ented w ishes of patients and all too often

allow patients to die w

ith uncontiolled pain is S tudies

of cancer patients have show n that over 5o percent

suffer from unrelieved pain,16 and m

any Ieseaich- ers have found that uncontrolled pain, particularly w

hen accom panied by feelings of hopelessness and

untreated depression, is a significant contnbuting fact01 foi suicide and suicidal ideation?7

C linical depression is another m

ajor factor Influ- e n cin

g p

a tie

n ts' ch

o ice

o f su

icid e 1

8 D

e p re

ssio n , a

c-

com panied by feelings of hopelessness, is the S

tlong- est predlctol of suicide for both Individuals w

ho are term

inally 111 and those w ho aie not.'9 Y

et m ost doc-

tois are not trained to notice depression, especially in com

plex cases such as the elderly suffering from term

inal illnesses E ven w

hen doctors succeed in di- agnosing depression, they often do not successfully treat it w

ith sufficient am ounts of leadily available

m edications 2o

S ignificantly, the N

ew Y

ork S tate T

ask F orce on

L ife

a n d L

a w

fo u n d th

a t th

e va

st m a jo

rity o f p

a -

tients w ho request P

A S

or euthanasia can be treated su

cce ssfu

lly b o

th fm

th e

n d

e p

re ssio

n a

n d

th e

ir

pain, and that w hen they receive adequate psychi-

atIiC and palliative care, then requests to die usu-

ally are w ithdraw

n 2, In other w ords, patients given

the requisite control over their lives and i ellef from depiession and pain usually lose interest in P

A S

a n d e

u th

a n a sia

.=

W ith

a ll d

u e re

sp e ct fo

r th e p

o w

e r o

f m o d e rn

m ethods of pain control, It m

ust be aclcnow ledged

that a sm all percentage of patients suffer from

con- ditions, both physical and psychological, that cur- rently lie beyond the reach of the best m

edical and hum

ane care. S om

e pain cannot be alleviated short of inducing a perm

anent state of unconsciousness in the patient, and som

e depression is unconquerable F

or such unfortunate patients, the present law on

P A

S /euthanasia can represent an insuperable barrier

to a dignified and decent death?3

O bjections to P

A S

/E uthanasia

O pponents of P

A S

and euthanasia can be grouped into three m

ain factions O ne stiongly condem

ns both practices as inherently im

m oral, as violations of the

m oral rule against ldllxng the innocent M

ost m em

- bers of this group tend to harbor distinctly religious objections to suicide and euthanasia, view

ing them as

violations of G od's dom

inion over hum an life?4 T

hey argue that kilhng is sim

ply w rong in itself, w

hether or not it is done out of respect for the patient's autonom

y or out of concern for her suffering. W

hether ol not this position ultim

ately is justifiable from a theologi-

cal point of view , its im

position on believels and non- beheveI s alflÿe is incom

patible w ith the basic prem

ises of a secular, plm

ahstic political order'2 A

second faction prim arily objects to the fact that

physicians are being called upon to do the killing W

hile conceding that killing the term inally ill or as-

sisting in their suicides m ight not alw

ays be m orally

w rong for others to do, this group m

aintains that the participation of physicians in such practices under- m

ines their role as healers and fatally com prom

ises the physician-patient relationship 26

F inally, a third faction" readily grants that nei-

ther P A

S nol active euthanasia, practiced by ordi-

nary citizens or by physicians, are alw ays m

orally w

rong O n the contrary, this faction believes that

in certain rare instances early release flom a painful

or lntolexably degrading existence m ight constitute

both a positive good and an im portant exercise of

personal autonom y for the individual. Indeed, m

any m

em bers of this faction concede that should such a

terrible fate befall them , they w

ould hope to find a thoughtful, com

passionate, and courageous physi- cian to release them

from their m

isery. B ut in spite

of these im portant concessions, the m

em bers of this

faction shrink from endorsing or iegulatxng P

A S

and active euthanasia due to fears bearing on the social consequences of hberahzation. This view

is based on tw

o distinct kinds of so-called "slippery slope" ar- gum

ents. O ne bears on the inablhty to cabin P

A S

/ euthanasia w

ithin the confines envisioned by ItS proponents, the other focuses on the likelihood of abuse, neglect, and m

istake.

A n

O p

tio n

W ith

o u

t L im

its T

he first version of the slippery slope argum ent con-

tends that a socially sanctioned practice of P A

S w

ould in all llkelkhood prove difficult, if not im

possible, to cabin w

ithin its originally anticipated boundar- ies. P

roponents of legalization usually begin w ith a

w holesom

ely m odest policy agenda, lim

iting their suggested reform

s to a narrow and highly specified

range of potential candidates and practices 28 "G ive

us P A

S " they ask, "not the m

oie contioversial prac- tice of active euthanasia, for presently com

petent pa- tients w

ho are term inally ill and sufferm

g unbearable pain:' B

ut the logic of the case for P A

S , based as It is

upon the tw in pillars of patient autonom

y and m ercy,

m akes it highly unlllÿely that society could stop w

ith this m

odest proposal once it had ventured out on the slope A

s num erous other critics have pointed out, if

autonom y is the prim

e consideration, then additional constiaints based upon term

inal illness or unbearable pain, or both, w

ould appear hard to justify2ÿ Indeed, if autonom

y is crucial, the requirem ent of unbeaiable

suffering w ould appear to be entirely subjective W

ho is to say, other than the patient herself, how

m uch

suffering is too m uchÿ Likew

ise, the requirem ent of

term inal illness seem

s an arbitrary standard against w

hich to judge patients' ow n subjective evaluation of

their quality of life Ifm ylife is no longer w

orth living, w

hy should a term inally 111 cancer patient be granted

P A

S but not m

e, m erely because m

y suffering is due to m

y "nonterm inal" arterlo-lateral sclerosis ('ÿA

LS ")

ol intractable psychiatric disorder?3°

A lternatively, if pain and suffering ale deem

ed crucial to the justification of legalization, it is hard to see how

the proposed barlier of contem potane-

ous consent of com petent patients could w

ithstand serious erosion. If the logic of P

A S

is at all sim ilar

to that of forgoing life-sustaining treatm ents, and

w e have evely reason to think it so, then it w

ould seem

alm ost inevitable that a case soon w

ould be m

ade to perm it P

A S

for incom petent patients w

ho had left advance dnectlves. T

hat w ould then be fol-

low ed by a "substituted judgm

ent" test for patients w

ho "w ould have w

anted" P A

S , and finally an "ob-

jective" test w ould be developed for patients (includ-

Ing new bolns) w

hose best lntelests w ould be served

by P A

S or active euthanasia even in the absence of

any subjective intent 3i In the sam

e w aÿ4 the joint justifications of auton-

om y and m

eicy com bine to undelm

lne the plausibil- ity of a line draw

n betw een P

A S

and active euthana- sia A

s the authors of one highly publicized pioposal have com

e to see, the logic of justification foi active euthanasia is identical to that of P

A S

?* Legalizing P

A S

, w h ile

co n tin

u in

g to

b a n a

ctive e

u th

a n a sia

, w

ould sei ve only to discrim inate unfairly against pa-

tients w ho aie suffering and w

ish to end then lives, but cannot do so because of som

e physical im pair-

m ent. S

uiely these patients, it w ill be said, are "the

w orst off gloup;' and theiefore they aie the m

ost in need of the assistance of others w

ho w ill do for them

w hat they can no longer accom

plish on their ow n.

N one of these initial sllppeI y slope considerations

am ount to knock-dow

n objections to fulther hber- allzation of our law

s and practices. A fter all, it IS

not obvious that each of these highly pledictable shifts (e.g., fiom

term inal to "m

erely" incurable, from con-

tem poraneous consent to best Intm

ests, and fiom P

A S

to active euthanasia), are patently im m

oral and u

n ju

stifia b

le . S

till, in p

o in

tin g

o u

t th is lllce

ly slip -

page, the consequentlahst opponents of P A

S /eutha-

nasia are calling on society to think about the likely consequences of taking the frst tentative step onto the slope. If all of the extended practices predicted above pose substantially greatm

risks for vulnerable patients than the m

ore highly clrcum scnbed initial

hbelahzation proposals, then w e need to factor in

these additional risks even as w e ponder the m

ore m

odest proposals 33

T he Likelihood of A

buse T

he second plong of the slippeiy slope algum ent

aigues that w hatevm

cnteIla for justifiable P A

S and

active euthanasia ultim ately are chosen, abuse of

the system IS

highly likely to follow In other w

ords, patients w

ho fall outside the am blt of our justifiable

criteria w ill soon be candidates foi death. T

his piong lesem

bles w hat I have elsew

here called an "em piri-

cal slope" argum ent, as it IS

based not on the close logical resem

blance of concepts 01 justifications, but rather on an em

pirical prediction of w hat is likely to

happen w hen w

e insert a particular social practice Into out existing social system

34 In oider to reassure skeptics, the ploponents of

P A

S /euthanasla concui that any potentially justifi-

able social policy in this area m ust m

eet at least the follow

m g thtee requirem

ents/5 The policy w ould have

to insist' fiist, that all requests for death be truly vol- untary, second, that all reasonable alteinatlves to P

A S

and active euthanasia m ust be explored befoie

acceding to a patient's w ishes; and, third, that a reli-

able system ofieporting all cases m

ust be established m

order to effectively m onitor these pIachces and

respond to abuses A s a social pessim

ist on these m

atters, I believe, given social reality as w e know

it, that all three assum

ptions are problem atic

W ith regard to the voluntariness iequllem

ent, w e

pessim ists contend that m

any Iequests w ould not be

sufficiently voluntary. In addition to the subtly co- ercive influences of physicians and faintly m

em bers,

perhaps the m ost slippery aspect of this slope is the

highly predictable failure of m ost physm

lans to diag- nose rehably and treat ieveislble clinical depression, particularly in the eldeily population A

s one geriatric psychlatiist testified before the N

ew Y

ork Task Force, w

e now hve in the "golden age" of treating depres-

sion, but the "lead age" of diagnosing it.36 W e have the

tools, but physicians are not adequately trained and m

otivated to use them . U

nless diam atm

changes are effected in the practice of m

edicine, w e can predict

w ith confidence that m

any Instances of P A

S and ac-

tive euthanasia w ill fall the test ofvoluntanness

S econd, there is the lingering fear that any leg-

islahve pioposal or judicial m andate w

ould have to be im

plem ented w

ithin the present social system ,

one m arked by deep and pervasive discrim

ination against the poor and m

em bers of m

inority groups 37

W e have every reason to expect that a policy that

w oiked tolerably w

ell in an affluent com nm

nxty like S

carsdale oi B everly H

ills m ight not w

ork so w ell in a

com m

unity like B edford-S

tuyvesant or W atts, w

here your average citizen has little or no access to basic pl im

ary care, let alone sophisticated care for chronic pain at hom

e oi in the hospital T here is also reason

to w ori y about any policy of P

A S

initiated w ithin

our glow ing system

of m anaged caie, capltahon, and

physician m centlves foi delivering less care.38 E

xpeit palliative care no doubt IS

an expensive and tim e-

consum ing proposition, requiring m

ore, Iather than less, tim

e spent just talking w ith patients and provid-

ing them w

ith hum ane com

fort It is highly doubtful that the context of physician-patient conversation w

ithin this new dispensation of"turnstlle m

edicine" w

ill be at all conducive to hum ane decisions un-

tainted by subtle econom ic coercion

In addition, given the abysm al and sham

eful track record of physicians in responding adequately to pain and suffering, w

e also can confidently predict that in m

any cases all reasonable alternatives w ill not have

been exhausted39 Instead of vigorously addressing the pharm

acological and psychosoclal needs of such patients, physicians no doubt w

ill continue to ignore, undertreat, or tleat m

any of their patients in an im per-

sonal m anner The result is hi<ely to be m

ore deples- slon, desperation, and requests for physician-assisted death from

patients w ho could have been successfully

treated.4° T he root causes of this predictable failure

are m anifold, but high on the list is the inaccessibil-

ity of decent prim ary care to over thirty-seven m

illion A

m ericans. O

ther notable causes include an appalling lack of training in palliative care am

ong pnm ary care

physicians and cancer specialists ahke;v discrim ina-

tion in the delivery of pain contIol and other m edical

treatm ents on the basis of race and econom

ic status; various m

yths shared by both physicians and patients about the supposed ill effects ofpam

m edications, and

restrictive state law s on access to opioids 4ÿ

F inally, w

ith regard to the third requirem ent, pes-

sim ists doubt that any reporting system

w ould ade-

quately m onitor these practices A

gleat deal depends here on the extent to w

hich patients and practitioners w

ill regard these practices as essentially private m at-

ters to be discussed and acted upon w ithin the privacy

of the doctor-patient relationship. A s the D

utch expe-

hence has conclusively dem onstrated, physicians w

ill be extrem

ely loath to repm t instances of P

A S

and ac- tive euthanasia to public authorities, laigely for fear of bringing the harsh glare ofpubhclty upon the patients' fam

ilies at a tim e w

hen privacy is m ost needed.43 The

hkely result of this predictable lack of oversight w ill be

society's lnablhty to lespond appropI lately to disturb- ing incidents and long-teim

trends In other w oids,

the practice m ost likely w

ill not be as am enable to reg-

ulation as the pioponents contend. T

he m oral of this story is that deeply seated In-

adequacies in physicians' tIalnlng, com bined w

ith structutal flaw

s in our healthcale system , can be

reliably predicted to secure the prem ature deaths

of m any people w

ho w ould in theory be excluded

by the cntena of m ost leading ploposals to legal-

ize P A

S If this characterization of the status quo is

at all accurate, then the pIoblem w

ill not be solved by w

ell-m eaning assm

ances that abuses w ill not be

tolerated, or that patients w ill, of course, be offered

the full range of palhatlve care options before any decision for P

A S

IS ratified.44 W

hile such regula- tory solutions are possible in theoly, and m

ay w ell

ju stly p

le va

ll in th

e fu

tu re

, w e

sh o

u ld

b e

w a

ry o f

legally sanctioning any negative right to be let alone by the state w

hen the just and hum ane exercise of

that right w ill depend upon the provision of cm

1 ently nonexistent services. T

he operative analogy heie, I fear, is our failed and sham

eful policy of "delnstl- tutionallzation;' w

hich left thousands of vulnelable and defenseless form

er residents of state psychiatric hospitals to fend for them

selves on the stleets, htei- ally "rotting w

ith their rights on''45 It is now gener-

ally agreed that the crucial flaw in this w

ell-intended but catastrophic policy w

as our society's w illingness

to honor such patients' negative nght to be flee of in- stitutional fetters w

ithout having first m ade available

reliable local alternatives to instltU tlonahzatIon, T

he opeÿatw

e lesson for us here is that judges and courts ale m

uch better at enunciating negative rights than they are at providing the services required fm

their successful im

plem entation.

T w

o A pproaches to S

ocial P olicy

W e com

e now to the difficult task of assessing the ca-

pacity of various social policy approaches to address adequately all of the conflicting values im

plicated in

t.1 1

1 0

I..tÿ..L /l:X

tÿ, llllo o

ÿ'ÿtlU ll ÿII(IIJL

ÿllL lÿtÿL

ÿ lO l Y

Y cl.l.u

.-

looking, pohcy-orlented legislative approach to the backw

ard-looking, case-oriented judicial apploach taken in the C

om passw

n m D

ying and V acco cases.

B e fo

re co

m in

g to

th a t co

m p a riso

n , h

o w

e ve

r, a cru

-

cial prelim inary point m

ust be noted. C entral to any

serious evaluation of com peting policy approaches

to P A

S and euthanasia is the distinction betw

een the m

orality of individual acts and the w isdom

of social policy. M

uch of the debate in the popular m edia is

driven by the depiction of especially dram atic and

poignant instances of suffenng hum anity, desperate

fo r re

le a

se fro

m th

e p

a in

fu l th

ra ll o

f te rm

in a

l ill- ness.46 U

nderstandably; m any of us are prom

pted to respond. "S

hould such a teIrible fate ever befall m e,

I certainly w ould not w

ant to suffer interm inably; I

w ould w

ant the option of an early exit and the help of m

y trusted physician in securing it" T he problem

, how

evel, hes in getting from such com

pelling indi- vidual cases to social policy T

he issue is not sim ply;

"W hat w

ould I w ant?" but rather, w

hat is the best social policy, all things considered. S

ocial pessim ists

w arn that w

e cannot m ake this jum

p from indlw

d- ual case to pohcy w

ithout endangering the auton- om

y and the very lives of others, m any of w

hom are

num bered am

ong our m ost vulnerable citizens

A Judge-M

ade P ohcy B

ased o

n C

o n

stitu tm

n a

l L a

w A

ppellate judges in the N inth and S

econd C ircuits

a u th

o re

d p

o w

e ifu

l o p in

io n s g

ivin g co

n stitu

tio n a l

protection to P A

S for com

petent patients facing ter- m

inal illness. W hile these opinions fully vindicated

patients' lm poitant stake in having a freely chosen

and pain-free death, they seriously and fatally dis- counted the states' im

portant interests in preventing the ldnds of slippage and abuse catalogued above

D ism

issal of S oaal C

onsequences The opinion of the N

inth C ircuit, C

om passion m

D ying, authored by

Judge R einhardt, is particularly troubling w

ith re- gaM

to the dism issal of social consequences.47 In

response to the objection that legahzing P A

S inev-

itably w ill plove "infinitely expansive" the court ac-

know ledged the difficulty that it m

ay be hard to dis- tinguish the m

oI al logic of P A

S from

that anim ating

the call for dnect physician-adm inistered euthana-

sla. l-le £url.Ile[ ÿU llL.gtlt;Lt LIIO

_I. Ill ÿU IIIÿ. ÿ.€IO

ÿO ÿ D

tltLIC lILb

w ill need the help of a physician in carrying out their

choice of an autonom ous and painless death.48 In-

stead of carefully w eighing this sobering possibility

in the balance, or asM ng w

hether this likelihood of slippage should m

ake us hesitate in taking the fixst step onto the slope, the court im

m ediately dism

issed it as a problem

foi future cases, not this one, noting that, "here w

e decide only the Issue before us"4ÿ For those w

ho w orry that direct euthanasia carried out

by physicians m ight im

pose too great a risk in the current social clim

ate,s° the dictum w

ill prove less than com

forting, especially in view of the judge's

confession that "It [is] less Im portant w

ho adm in-

isters the m edication than w

ho determ ines w

hether the term

inally 111 person's life shall end:'51 Thus, although w

e have argued that this M nd

of forw atd-looking, policy-oriented perspective is

crucial fol adequately assessing the individual ben- e

fits a n

d so

cia l risks in

vo lve

d in

th e

p ro

p o

sa l to

legalize P A

S , the judicial approach to the problem

operates fully equipped w ith social blinders, and

w illfully dism

isses the very real dangers lurking fu

rth e r d

o w

n th

e slo

p e , a

ll in th

e n

a m

e o

f in d i-

vidual rights. Indeed, at one point Judge R einhardt

lm phed that a refusal to contem

plate such dangers is dem

anded by the judicial role itself.5ÿ T o put It

m ild

ly a n d m

o st ch

a rita

b ly, th

is rig h ts-o

rie n ta

te d

m ind-set does not put us in a learning m

ode. W hen

hfe and death are at stake, w e need to base our so-

cial policy on a m ore com

prehensive picture of the likely benefits and risks.

Judge R einhardt's grasp of the clinical realities of

depression and the ubiquitous absence of adequate pain control w

as no m ore im

pressive than the scope of his social vision In response to the objection that the legalization of PAS eventually w

ould lead physi- cians to treat requests to die in a routine and im

per- sonal m

anner, Judge R em

hardt reassured us, in the face of m

assive evidence to the contrary, that "doctors w

ould not assist a term inally ill patient to hasten his

death as long as there w ere any reasonable chance of

alleviating the patient's suffering or enabling him to

live under tolerable conditions:'53 Judge R em

hardt's faith In professional and governm

ental regulations to ensure that all requests truly ale voluntary (i.e., not due to depression), and free from

the taint of

U III.II;d

I.I:Y L

I }]t'IlIl - - -O ÿ - 6

ÿ ÿ

-

in the age of governm ental regulation-bashing, but

it is a naive and dangerous faith all the sam e

Equal Protect2on and the Fate of R esponsible R

egulation T

he ablhty of a constitutional right to assisted sui- cide to provide adequately for safegualds against abuse, neglect, and m

istake is especially problem -

atic w ithin the context of the S

econd C ncuit's equal

protection analysis In gacco T hat couit's asseltlon

of the m oral and legal equivalence of w

ithholding hfe-sustam

lng tteatm ents, the provision of poten-

tially death-hastening analgesics, and assisted sui- cide raised extrem

ely troubhng questions about the constltutlonahty of a w

ide variety of possibly effec- tive regulations.54 T

he basic question is: If w e have

a constitutionally protected liberty interest in detex- m

ining the tim e and m

anner of our deaths, then to w

hat extent w ill various legulatory schem

es cut too deeply into our personal choices?

W e actually have seen this script played out be-

fore in the context of abortion law P

rior to R oe v

W ade, m

any states already had begun liberalizing their statutes to allow

w om

en to opt for aboltion un- der specifed conditions?5 O

ne regulatory constraint that had been placed on w

om en's choice in som

e jurisdictions w

as m andatory review

by a hospital- based com

m ittee.56 N

ow , w

hether or not w e think

that such com m

ittee review w

as a good idea in the context of abortlon--I do not think it w

as--it is still interesting to note that this regulatory m

echanism ,

along w ith a host of others, w

as discarded uncere- m

oniously by the S uprem

e C ourt in D

oe v B olton,57

the com pam

on case to R oe v W

ade 58 In sum , the

C ourt held that such m

echanism s only serve to en-

cum ber the w

om an's choice, w

hich really belongs to her (and perhaps also her doctor) alone 59

N o

w , if th

e S

e co

n d

C ircu

it's e q

u a

l p ro

te ctio

n analysis had prevailed, and had the S

uprem e C

ourt com

e to see no cognizable legal or m olal differences

betw een "allow

ing to die" and assisted suicide, then presum

ably the Iegulatory m echanism

s surround- ing the tw

o sets of practices w ould have been sub-

jected to identical standards of m oral analysis and

judicial review 60 T

his land of legally m andated par-

ity w ould have had tw

o likely consequences. F irst,

all the palaphernaha of surrogate decision-m aking

m ent w

ould have been extended to P A

S 6, Just as

m ost states piesently allow

fam ily or close friends

to m ake life-and-death decisions foi loved ones on

the basis of so-called "substituted judgm ent" ("W

hat w

ould the patient have w anted?") or best-lntei ests or

1 easonable-person determ inations, so w

e w ould have

to allow fam

ily m em

bers the sam e iole in those cases

in w hich suicide "w

ould have been chosen" by the patient or "w

ould have been" in his best interest.6ÿ O

bviously, this im plication of the equal pIotectlon

appioach w ould have Iequlred proponents of P

A S

to bite a very laige bullet indeed regarding the chalge of indefinite expansion

T he second im

plication of the equal pIotectlon analysis is that a broad range of possibly helpful xegulatory m

echanism s, m

cludlng w aiting periods,

co m

m itte

e re

vie w

, se co

n d o

p in

io n s, m

a n d a to

ry re -

porting, and perhaps even the requirem ent of tetm

l- nal illness, m

ight w ell have been sw

ept aside in the nam

e of individual libei ty 63 C urI ently, w

e do not le- qulle these kinds of substantive and plocedutal con- straints for m

ost decisions to forgo hfe-sustam m

g treatm

ents by com petent, term

inally ill patients.64 If, how

ever, thexe is leally no m oral O

l legal dxffeience b e tw

e e n "a

llo w

in g to

d ie

" a n d "a

ssistin g S

U lC

ld e "--lf,

as Judge M iner opines, adding P

A S

to our repertoire of choices w

ould not add one iota of additional risk to individuals or society ovei and above those w

e al- ready countenance--then encum

bering the choice fo

r P A

S w

ith a

ll so rts o

f e xtia

p ro

te ctive

d e

vice s

w o

u ld

se e

m in

g ly la

ck co n

stitu tio

n a

l va lid

ity6 5

In sum

, then, the equal protection analysis cham pioned

in the S econd C

ircuit threatened precisely those braking m

echanism s that arguably m

ight m ake the

slippery slope a fax safer place on w hich to practice

physician-assisted death

The C onflatlon of Kdhng and AIIow

m g to D

ie PIoceed- Ing directly to the fulcrum

of Judge M iner's analysis,

w e now

consider the denial of a slgm ficant m

ox al or legal difference betw

een allow ing a patient to die by

m eans of foxgom

g life-sustaining treatm ents and as-

sisting a patient in com m

itting suicide A ccording to

both circuit court opinions, there is no significant difference betw

een w ithdi aw

ing a ventilatoi, discon- tm

uing a feeding tube, adm lnlstel lng paxn-kllhng but

lng a lethal dose of barbiturates 66 In all these cases, the judges alleged, the intention is the sam

e (i.e., to hasten death), the cause of death is the sam

e (an act attributable to hum

an agency), and the social risks of m

istake and abuse are the sam e (e g, m

lsdlag- nosls, undue pressure, etc) C

onsequently, Judge R

elnhardt conduded that P A

S poses no gl eater thl eat

to the state's interests in preventing suicide and in safeguarding the lntegtIty of the m

edical profession than the already accepted practice of forgoing life- sustaining treatm

ent.67 F or identical reasons Judge

M iner saw

no point in a m ore restrictive public pol-

Icy tow ards P

A S

and based his entire C onstitutional

argum ent upon the purported identity of the inten-

tions and effects of these tw o social pl actlces.6a

A long w

ith a m ajority of the S

uprem e C

ouzt, I w

ash to uphold, for purposes of social policy analy- sis, the distinction betw

een forgoing treatm ent and

assisting suicide A lthough the boundaries betw

een these tw

o plactlces at tim es are adm

ittedly quite fu

zzy, o ve

ilo o kin

g le

le va

n t d

iffe re

n ce

s b e tw

e e n

them leads proponents of legalization to ignore the

ve ry xe

a l so

cia l risks in

h e re

n t in

th e ju

d icia

l a p -

pioach to policy69 W

hatever the outcom e of our long-standing con-

ceptual skirm ishes beanng on the "Intrinsic" dis-

tinctions betw een P

A S

, direct euthanasia, and forgo- ing hfe-sustam

lng treatm ents, the crucial question

iem ains w

hether any of the purpoited distinctions betw

een these activities constitute im portant differ-

ences for purposes of social policy.7° A s a slippery

slope opponent of P A

S and euthanasia, I have already

conceded that individual acts involving either P A

S or active euthanasia can be m

olally justified under cextain circum

stances. H aving thus conceded that

certain individual actions can be m orally appropriate

even w hen the intent is sim

ply and unam biguously

to end the patient's life, and even w hen "the cause"

of death is sim ply and unam

biguously attributable to the action of the physician, the crucial question is w

hethei thete are any rem aining distinctions be-

tw een allow

ing to die and actively kalhng (or assist- m

g in a suicide) that m ight illum

inate the negative policy lm

phcatlons of P A

S and euthanasia

T w

o points can be m ade in this connection. F

irst, as the N

ew Y

ork T ask F

orce pointed out, the social

g U

llÿg q llÿllÿ.t:8

U I tlu

t llu *lu

, z,x}5 t ÿ'--IU

ÿO to

ÿu tu

x 1 5 u tt t.a

t-

inent aIe very different from the consequences of

failing to honor Iequests foi P A

S and euthanasia.7,

W hen society fails to honoi iequests to prescribe

or dehver a lethal dose, the results can adm ittedly

be very onerous foi individual patients T he patient

m ay face a prolonged period of deterioration before

death, w ith increased pain and decreased dignity,

contraiy to w hat they otherw

ise w ould have w

ished It is im

portant to note, how ever, that in m

any such cases there are alternatives to pxolonged and pain- ful deaths U

nder the present legal regim e it IS

still perm

issible for a patient to seek out effective and com

passionate hospice care, to refuse further ad- m

inistration of life-sustaining treatm ents, to request

"term inal sedation" (inducing a loss of consciousness

until death), and even to starve to death w ith the aid

of a physician 7ÿ It is also legal for an Individual truly to take m

atters into his ow n hands and to hll him

- self, perhaps w

ith the guidance of a popular "self- help" book 73 Finally, it is possible fox m

any patients w

ith good and trusting relationships w ith com

pas- sionate physicians to achieve their objectives w

ithin the bounds of private and discreet relationships, but w

ithout the cover and consolations of law z4

B y contrast, w

ere society, system atically and as a

m atter ofpohcy, to refuse to honor requests to forgo

life-sustaining tieatm ents in ordei to curb possible

abuses, then everyone w ould have to subm

it to the im

position of unw anted and often invasive m

easures. W

hereas the refusal to honor a request for P A

S or di-

rect euthanasia am ounts to a refusal of a positive ben-

efit or assistance, the im position of m

edical treatm ent

against one's w ill represents a violation of personal

autonom y and physical integrity totally incom

patible w

ith the deepest m eaning of O

U l traditional respect

for liberty. S uch a refusal w

ould entail the virtual im -

prisonm ent of the entire population of term

inally ill and dying patients. W

hile the falhue to offer a deadly drug to a dying patient represents a failure of m

ercy requiting m

oral justification, the forced im position

of m edical treatm

ent against a patient's w ill arguably

constitutes a trespass, or technically a legal battery, so profound that it sim

ply cannot be justified, especially at the level of broad gauged social policy 75

W ithout trying to sound especially hyperbohcal,

w e can say that the practice of forgoing treatm

ent is

lcal practices that a reversal of policy on this point w

ould throw m

ost of our m ajoI m

edical inm tutions

into a state appioaching chaos T he sam

e cannot be said of a refusal to honor requests foi P

A S

and eu- thanasia. T

hus, w hile there m

ay w ell be m

any ovei- lapping slm

ilanties betw een w

ithholding tieatm ent

and participating in P A

S or euthanasia, their respec-

tive denial at the level of social pohcy w ould entail

vastly different individual and social consequences. If oux goal IS

to ieduce the level of social risk sui- lounding all practices involving the treatm

ent of in- curable and/ox dying patients, a blanket prohibition of PAS can aiguably advance this goal w

ithout totally unacceptable m

oral, legal, and social consequences. lae sam

e cannot be said of a blanket prohibition of foIgoing life-sustaining tl eatm

ents. he second point in this connection is that the

practice of P A

S and/oI active euthanasia w

ould be bound to im

phcate m any m

ore peisons than the practice of forgoing tieatm

ent 76 W hile w

e should d e fin

ite ly w

o rIy a

b o u t th

e p

o ssib

ility o f e

ilo r, n

e -

glect, and abuse in the context of allow ing patients

to die, it is at least som ew

hat com forting to realize

that just about evely patient in this category m ust

be very badly offm deed By the tune that physicians

discuss forgoing treatm ent w

ith a patient 01 fam ily,

the patient is usually w ell into the plocess of dying

W ith regard to P

A S

and euthanasia, how ever, w

e can expect that m

any candidates w ill be perfectly

am bulatoiy and far flora the dreaded scene of pain-

ful term inal Illness depicted by advocates D

epend- ing on bow

gieat the social slippage, this categoxy m

ay w ell com

e to encom pass those w

ith an incura- ble condition but w

ho are not presently "term inal"

such as persons in the eally stages of H IV

Infection or A

lzhexm er's disease 77 It also m

ay com e to encom

- pass patients suffering from

prolonged and intzac- table depression w

ho exhibit no other sym ptom

s of physical illness A

lthough one im portant legislative

ptoposal specifically excludes patients w hose only

sym ptom

s are psychiatric in nature, this ieluctance w

as likely m otivated in no sm

all m easure by polit-

IC al considerations 78 O

nce P A

S oi active euthana-

sia, or both, ate firm ly in place, how

ever, It w ill be

extiem ely difficult to w

ithhold them from

pezsons w

hose suffering is evexy bit as real but w hose source

Judge M iner'and m

any otheis w ould surely object,

w ould constitute an invidious distinction and thus a

form of unconstitutional discrim

ination against the m

entally ill

If th e S

ta te

s A re

th e

L a b o ra

to ry,

W h

a t's th

e E

xp e

rim e

n t?

A lthough the N

inth C ncuxt w

as pzepared to grant that states have a legitim

ate interest in avoiding the possibly adveise social consequences of P

A S

, the court insisted that regulation, iather than pIohibl- txon, is the only constitutionally perm

issible m eans

of so doing 79 T ow

ard that end, it w ould have as-

signed the challenging task of crafting appropriate regulations to the "laboiatory of the states:' In view of the very zeal possibility that the social and Indi- vidual harm

s attendant upon the legahzatIon of P A

S e ve

n tu

a lly w

o u ld

p io

ve d

lsp ro

p o ltlo

n a te

to th

e ir

benefits, this division oflaboi betw een the judiciary

and the state legislatures is highly problem atic. H

ad the S

uprem e C

ourt affiIm ed the N

inth C ircuit's iea-

soning in granting constitutional protectm n to the

liberty inteiest in choosing death, states w ould have

been deprived of then ability to put a stop to the w

idespread practice of P A

S even If ciedlble studies

w ere to dem

onstrate that abuses w ere ram

pant and highly lesistant to proceduial safeguards S

hott of a C

onstitutional am endm

ent, there w ould have been

no tulnIng back had the right to P A

S been guaran-

teed by either the due piocess or equal protection clauses.

Instead of putting ouiselves into this precarious position, w

e should assign a diffeient and m ole fun-

dam ental task to the laboratory of the states G

iven the rely leal possibilities for extension and abuse of this liberty lntelest, state legislatures should be en- trusted w

ith the basic questions of w hether, w

hen, and under w

hat circum stances such a nsky social

experim ent should be attem

pted in the first place S

tate legislatures ai e in a better position than fedei al judges to study the social and clinical facts and com

e to a ieasonable conclusion on the lll;ely balance of individual benefit and social risks 8o G

iven the so- cia

l a n d m

e d ica

l re a litie

s o f th

is co u n tiy, I w

o u ld

hope that m ost states w

ould follow the lead of the

N ew

Y oik T

ask F oIce in refusing to countenance the

legahzatlon and routanlzataon of P A

S at this tam

e. H

ow ever, even af som

e states do decide to run these ra

sks a s a

so cia

l e xp

e ixm

e n

t, i.e ., to

d e

te rm

in e

fo r

them selves on the basis of em

pirical evidence and m

oral judgm ent w

hether m ore good than harm

w ill

com e fiom

legahzing P A

S , they w

ould have the flex- ib

ility, a b se

n t rig

id ly d

e fin

e d co

n stitu

tio n a l m

a n -

dates, both to im pose rely strict legulatxons and, if

necessary, to stop the experim ent cold in the face of

disconcerting evidence of serious m oral slippage

S uch an approach is, I believe, m

uch better suited to asking the relevant pohcy questions and taM

ng ap- propriate and prudent action 81

In addatlon to beang safer, the leglslatave approach is also, at least potentaally, m

uch m ore dem

ocratic than the judicial, rights-based orientation. T

he leg- islature is the traditional sate in this country for the resolution of m

ost difficult and dlvlsave questions of social policy, especially those m

arked by deep m oral

questions and haghly troubling em pirical uncertain-

taes involving the laves and w elfare of m

any catazens. A

court-m andated solution to the questaon of P

A S

w ould, I belaeve, have seculed a decisive and irrevo-

cable victory for one side of thas controversy before a thorough and robust public debate had taken place. O

ne significant m elat of a legislative approach is that,

w hile it w

ould not guarantee such a debate, it w ould at

least be com patible w

ith large-scale efforts at the state and local levels to foster a m

ole dem ocratically de-

hberatave pubhc dialogue on thas m atter S

uch efforts could gave citizens a chance to w

eigh the nature and value of the liberties at stake against the extent and probability of the social dangers posed by PAS. They could thus serve as a valuable via m

edia betw een the

judicaal approach, w hich can often short circuit public

debate, and declsaon-m aking by public referendum

, w

hach is m ore dem

ocratic in theory but often lacks an explicitly deliberative dim

ension that w ould allow

citizens a deeper understanding of the assues anvolved before their legislatures took action.8ÿ

T ow

ard a P olicy of P

rudent (Legal) R estraint

and A ggressw

e (M edical) Intervention

In contrast to the judicial approach, w hich totally

vindicates the value of patient autonom y at the ex-

pense of protecting the vulnerable, m y ow

n preferred approach to a social policy of P

A S

and euthanasia

co n

ce ive

s o f th

is d e

b a

te a

s p o

sin g

e sse

n tia

lly a "tragic choace"8ÿ It franldy acknow

ledges that w hat-

ever choice w e m

ake, w hether w

e opt for a reaffia- m

ation of the current legal restraants or for a policy oflegm

m ation and legulatlon, theie are bound to be

vactam s The vactam

s of the current pohcy are easy to identify. T

hey are on the new s, the talk show

s, the docum

entaries, and often on D r K

evorklaffs roster of so-called "pataents." T

he victim s of legalazation,

by contrast, w all be lalgely hidden from

view ; they

w ill Include the chnacally depressed eighty-year-old

m an w

ho could have hved for another year of good quality if only he had been adequately treated, and the fifty-year-old w

om an w

ho asks for death because doctors in her financially stretched H

M O

cannot, or w

ill not, effectively treat her unrelenting, but m ys-

terious, pelw c pain P

erhaps eventually, if w e slade

far enough dow n the slope, the uncom

m unicative

stroke victim , w

hose distant children deem an ear-

her death to be a better death, w all fall victim

. T here

w all be others besides these, m

any com ing from

the ranks of the uninsured and the poor. T

o the extent that m

inorities and the poor already suffer fiom the

effects of dlscx lm lnataon an oui healthcare system

, it is reasonable to expect that any system

of P A

S and

euthanasia w all exhibit sim

ilar effects, such as failure to access adequate prim

ary care, pain m anagem

ent, and psychlatrac diagnosis and treatm

ent U nhke D

r. K

evorkian's "patients;' these victim s w

ill not get their pictures in the papers, but they all w

ill have faces and they w

all all be cheated of good m onths or perhaps

even years ]has "tragac choice" approach to social policy on

P A

S /euthanasia takes the form

of the follow ing ar-

gum ent form

ulated at the legaslatlve level. F irst, the

num ber of "genuine cases" justifying P

A S

, actave euthanasia, or both, w

ill be relatively sm all P

atients w

ho receive good personal care, good paan relief, treatm

ent for depressaon, and adequate psychosocaal supports tend not to persast an their desire to die.

S econd, the social risks oflegahzation are serious

and highly predictable. They include the expansion of these practices to nonvoluntary cases, the advent of active euthanasia, and the w

idespread failure to pursue readily avaalable alternatives to suicide m

oti- vated by pain, deplessxon, hopelessness, and lack of access to good pram

ary m edical care.

T h ird

, ia th

e r th

a n p

ro p o se

a m

o m

e n to

u s a

n d

dangeaous polacy shaft foi a ielatively sm all num

bea o

f"g e

n u

ln e

ca se

s"--a sh

ift th a

t w o

u ld

su re

ly a n

vo lve

a great deal of peisastent social davlslon and strife analogous to that involved an the abortaon contro- ve

rsy-w e sh

o u ld

in ste

a d a

tte m

p t to

re d ire

ct th e

public debate tow ard a goal on w

hach w e can and

should all agree, nam ely the m

anifest and urgent need to reform

the w ayw

e dae in A m

erica Instead of pursuing a highly dw

lsive and dangm ous cam

paign for P

A S

, w e should attack the problem

at its root w

ith an am bitious program

of reform m

the areas of access to prim

ary care and the educataon of physi- cians m

palllatw e care A

t least as far as the "slappery slope" opponents of P

A S

are concerned, w e should

thus first see to it that the vast m ajority of people

in this country have access to adequate, affordable, and nondiscrim

inatory prim ary and palliative care

A t the end of thas long and arduous process, w

hen w

e finally have an equatable, effectave, and com pas-

sionate healthcare system in place, one that m

aght be com

pared favorably w ith that in the N

etherlands, then w

e m ight w

ell w ant to reopen the discussion of

P A

S and active euthanasaa

F inally, there are those few

unfortunate pataents w

ho truly are beyond the pale of good palliative, hospice, and psychiatric care. T

he opponents of le- gahzataon m

ust face up to this suffering aem nant

and attem pt to offer creative and hum

ane solutaons O

ne posslblhty as fol such patients to be rendered perm

anently unconscious by drugs until such tim e,

presum ably not a long tim

e, as death finally claam s

them . A

lthough som e w

ill find such an option to be aesthetically unappealing, m

any w ould find it a w

el- com

e relief.84 O ther patients beyond the reach of the

best pallaatave and hospice care could take their ow n

hves, either by w ell-know

n tradataonal m eans, or w

ith the help of a physician w

ho could sedate them w

hile they refused further food and (hfe-extending) fluads Those w

ho find the latter option to be unacceptable m

ight stall be able to find a com passionate physlcaan

w ho, hke D

r. T im

othy Q uill, w

ill ultam ately be w

ill- ing, albeit in fear and trem

blang, to "take sm all nsks

for people [they] really know and care about ,,85 S

uch actions w

all continue to take place w ithin the pnvacy

of the pataent-physlclan relationship, how evel, and

thus w all not threaten vulnerable patients and the

social fabric to the sam e extent as w

ould result flom full legalization and regulataon.86 A

s the partisans of legahzed P

A S

coi a ectly point out, the covert practice of P

A S

w all not be subject to regulatory oversight,

and is thus capable of generating its ow n abuses and

shppery slope. S till, I beheve that the ever-present

threat of possible cnnnnal sanctions and revoca- tion of licensuie w

ill continue to serve, for the vast m

ajority of physicians, as pow erful disincentives to

abuse the system M

oreover, as suggested earlaer, it is highly unhkely that the proposals for legalization w

ould result In truly effectave oversight

C o

n clu

sio n

Instead of conceiving this m om

entous debate as a choice betw

een, on the one hand, legalization and regulation w

ith all of then attendant rasks, and on the other hand, the callous abandonm

ent of pataents to their paan and suffeiing,87 enhghtened opponents m

ust recom m

end a positive program of chnlcal and

social leform s O

n the clanlcal level, physicians m ust

le a

rn h

o w

to re

a lly h

ste n

to th

e ir p

a tie

n ts, to

u n

- flanchangly engage them

in sensltave discussions of their needs and the m

eaning of their requests for as- sisted death, to deliver appropriate palliative care, to distinguish fact from

fiction in the ethics and law of

pain relief, to diagnose and treat chnlcal depaession, and finally, to ascertain and respect then patients' w

ish e

s fo r co

n tlo

l re g

a rd

in g

th e

fo rg

o in

g o

f life -

sustam lng treatm

ents. O n the social level, opponents

of P A

S m

ust aggressively prom ote m

ajor anataatw es

in m edical and publac education regardm

g pain con- trol, in the sensitization ofm

surance com panies and

licensing agencies to issues of the quality of dying, and in the reform

of state law s that currently hinder

access to pain rehevlng m edications€8

In the absence of an am bitious effort in the direc-

taon of aggressive m edical and social refolm

, I fear that the m

edacal and nursing professions w ill have

lo st w

h a

te ve

r m o

ra l w

a rra

n t a

n d

cre d

ib ila

ty th e

y m

ight still have in continuing to oppose physician- assisted suacade and active euthanasia. A

s soon as these leform

s are in place, how ever, w

e m ight then

w ash to proceed slow

ly and cautaously w ith expera-

m ents in various states to test the overall benefits of

a policy oflegahzatlon. U ntil that tim

e, how ever, w

e are not w

ell staved as a society by court decasions

allow ing for legahzatlon ofP

A S

, qhe S uplem

e C ourt

has thus reached a sound decision in ruling out a constitutional right to P

A S

. A s the justices acknow

l- edged, how

ever, this m om

entous decision w ill not

end the m oral debate ovel P

A S

and euthanasia In- deed, it should and hopefully w

ill intensify it

N O

T E

S The author w

ould hke to thank C arl C

olem an, D

avid D

e G

la zla

, Y a

le K

a m

lsa r, T

o m

M u

rra y, D

a vid

O re

n th

ch e

i,

and B onnie S

tem bock for helpful discussions and exchanges

on the issues dealt w ith in this papei Longer veisions of this

article, published befole the S uplem

e C ourt's decisions,

appeared in B lolaw

(July/A ugust 1996), S

pecial S ection

171-88 and 7he Joutnal of C ontem

porary H ealth Law

and Pohcy 13 (1997) 361-89

1 C om

passion it1 D ytngv W

ashington, 79 F 3d 790, 838 (9th C

ir 1996) 2 Q

utllv V acco, 8o F 3d716, 731 (2nd C

n 1996) 3 V

aeco, A ttotney G

eneral of N ew

Y ork, et al v Q

uill et al, certiorari to the U

nited S tates C

ouit of A ppeals for the sec-

ond circuit, N o 95-1858 A

lgued January 8, 1997--D ecided

June 26,1997 W ashington et al v G

lucksbelg et al , ceitiolari to the U

nited S tates C

ourt of A ppeals for the ninth circuit,

N o 96-11o A

rgued Januaiy 8, 1997--D ecIded June 26,1997

4 S ee C

om passion m

D yulg, 79 F 3d at 79o

5 Ibid, 816 6 Ibid, 813-14 7 Ib

ld , 8

1 6 -3

2 , 8

3 6 -3

7 (re

vie w

in g sta

te ln

te ie

sts a n d illu

s-

trating the application of the balancing test and holding) 8 Ib

ld , 8

2 2 -2

3

9 V acco v Q

uill, 8o F 3d 716, 724-25 (2nd C Ir 1996)

lo Ib

ld , 7

2 7 -2

9

11 Ibxd, 727 12 W

ashington v G lucksbetg, 117 S

up C t 2258 (1997) V

acco v Q

uill, 117 Sup Ct 2293 (1997) 13 M

y stance on these issues has been profoundly influenced by m

y recent w orlc w

ith the N ew

Y olk S

tate Task Force on Life and the Law

(heiem aftel "the Task Force") to com

e to giips w

ith this issue F ollow

ing a thm ough review

of the m

oral, legal, and social argum ents, this highly plulalistlc ad-

visory com m

ittee unanim ously conchided against the legah-

zation of either P A

S or dnect l¢A

ling by physicians A reading

of the S uprem

e C ourt opinions in these cases suggests that

the Task Force's analysis of the social policy of P A

S w

as accepted by m

ost, if not all, of the Justices S ee Task Folce,

W hen D

eath Is S ought A

ssisted S uicide and E

uthanasta ui the M

edical Context (M ay 1994)

14 R onald D

w orkin, Life's D

om tm

on A n A

tglnnent A bottt

A bortion, E

uthanasia, and Individual Freedom (N

ew Y

ork K

nopf, 1993), 217 W hile I agree w

ith P t ofessol D

w orkin

on the inadm lsslbihty of rehglous latlonales foÿ the legal

p to

h ib

itIo n

o f P

A S

, w e

d lsa

g I e

e o

n th

e a

va lla

b ih

ty o f co

n vIn

c-

m g

se cu

la i ju

stifica tio

n s

15 '9, C ontrolled T

im l to Im

piove C aie for S

eriously Ill H

ospitalized P atients, The S

tudy to U ndelstand P

rognoses a n d P

re fe

ie n ce

s fo i O

u tco

m e s a

n d R

isks o f T

ie a tm

e n ts

(S U

P P

O R

T);' Joul Jlal of tile A nlet tcan M

edical A ssociation 274

(N ov 22, 1995) 1591-92

16 Task Folce, W hen D

eath Is S ought, x-xl

1 7

Ib id

, x iv

1 8

E ze

kie l J E

m a

n u

e l e

t a l, "E

u th

a n

a sia

a n

d P

h ysicia

n -

A ssisted S

uicide A ttitudes and E

xperiences of O ncology

P atients, O

ncologists, and the P ublic" Lancet 347 (1996) 18o5

S ee also D

S altzburg et al, "The R

elationship of P ain and D

e- plession to S

uicidal Ideation in C ancer P

atients" P m

c A S

C O

8 (1989) 312 (abstiact) 19 W

B ieitbart, "C

ancer P ain and S

uicide" in K M

F oley;

ed, Advances 111 Pan1R esealch and Thelap), 16 (1990) 399-412

(show ing that studies indicate that depiesslon "is present in

5o peicent of all suicides, and those suffer lng flora depression are at 25 tim

es gieatel risk for suicide than the general population") 2o N

ew Y

ork S tate Task Force, W

hen D eath Is S

ought, 127-28 (docum

enting the claim that doctors fall to diagnose and

tieat depression) S ee also Y

C onw

ell and E D

C am

e, "R

aU onal S

uicide and the R ight to D

ie;' N ew

E ngland lout naI

of M edicine 325 (1991) 1101

21 N ew

Y olk S

tate Task Force, W hen D

eath Is S ought, xiv

2 2 A

s w e sh

a ll se

e la

te I, th

is fa ct is o

f e n o lm

o u s im

p m

ta n ce

fo r o

u r e

va lu

a tio

n o

f P A

S a

n d e

u th

a n a sia

a s so

cia l p

o licie

s,

fo i if th

e 1

o 0 1 ca

u se

s o r m

o tiva

tio n s fo

r a ssiste

d d

e a th

ca n b

e

addressed successfully f01 m ost patients thl ough the delivery

of technically com petent and com

passionate m edicine, the

case for changing the law loses m

uch of its uigency 23 The above section thus slgnats tw

o im portant points of

agieem ent w

ith the so-called P hilosophels' B

rief subm itted

to the S uplem

e C ourt in C

onlpasslon Ii1 D ynlg and V

acco by R

onald D w

orkln, Thom as N

agel, R obert N

ozlck, John R aw

ls, 2hom

as S canton, and Judith Jarvls Thom

son I agree that individuals in the throes of a painful oi degrading term

inal illness m

ay w ell have a veiy stiong m

oral and even legal inter- est in securing P

A S

I also agiee that the pain and suffenng of a sm

all pel centage of dying patients cannot be adequately contiolled by cunently available m

edical intelventions (N ew

Yolk Revlelv of Books 44 (5) [M arch 27,1997] 41-47 See

also appendix B of this volum

e ) A s w

e shall see, how evei, I

disagiee w ith the phllosophels' conclusion that this interest

IS sufficiently stI ong In the face of cuirent m

e& cal and social

inadequacies as to justify a legal right that w ould void the xea-

sonably cautious plohlbitions of P A

S and euthanasia in effect

in eveiy S tate

24. F oa lehgious objections to suicide and euthanasia, see S

t

Thom as A

quinas, "W hether R

Is Law ful to K

ill O neself:' in

Tom L B

eauchainp and R obeit V

eatch, eds, E thtcalIssues

111 D eath andD

ynlg, 2nd ed (1996), pp 119-21 S ee also

÷2 c ÿ

D w

oilcna, Life's D om

inion, 193. S ee also R

lchaid John N euiÿaus,

"The R etuin of E

ugem cs7 C

om m

entary 22 (1988) (a, gulng that life Is a good of the pei son, not sim

ply foi the person) 25 H

ere too I aglee w ith the P

hilosophets' B rief

26 W illard G

aylm et al, "D

octols M ust N

ot K ill;' Journal of

theA m

etlcan M edlcalA

ssoctatlon 259 (1988) 2139-4o S ee

a lso

D a

vid O

re n

tlich e

r, "P h

ysicia n

P a

iticip a

tlo n

in A

ssiste d

S uicide;' Join hal of the A

m et w

an M edical A

ssociation 262 (1989) 1844-45 27 The authoi w

as a pait of this faction duiing his tenure w

ith the N ew

Y ork S

tate Task Force 28 S

ee C hustm

e C assel et al, "C

aie of the H opelessly Ill P

lo- posed C

hm cal C

iitelIa foI P hysician-A

ssisted S uicide;' N

ew E

ngland Journal of M edlcm

e 327 (1992) 138o-84 (approving of P

A S

but not of active euthanasia because it poses excessive

social lisks) 29 S

ee D aniel C

altahan, The Troubled D leam

of Life Living W

tth M ot tahty (N

ew Y

olk S im

on and S chuster, 1993) S

ee a lso

Y a le

K a m

lsa l, 'ÿg

a in

st A ssiste

d S

u icid

e --E

ve n a

V e iy

Lim ited Folm

;' U m

vetstty of D ettott-M

elcy Law R

eview 72

(1995) 735 30 A

LS also is know

n as Lou G ehiig's disease

31 In te C om

oy, 486 A 2d 1209 (1985) (sum

m arizing the logic

of foregoing hfe-sustainm g treatm

ents) 32 C

assel et al, "C aie of the H

opelessly Ill;' 138o-84 S ee

also F lanklin G

M lllei et al, "R

egulating P hysician-A

ssisted D

eath," N ew

E ngland lout nal of M

edicine 331 (1994) 199-23 (conceding the untenability of the plew

ous distinction) 33 P

aofessors D w

olkan, et al consistently fail to m ention

the possibility, let alone the high likelihood, of this fix st sort of slippage, I take this to be a serious om

ission both m then

joint brief and in P lofessor D

w olktn's individually authored

aitlcles on this subject "Ihese authors sim ply assum

e (w ith

the plaintiffs and cucult C O

U lt m

ajority opinions) that this right w

ill be restiicted by m eans of procedural safegualds to

presently com petent, incurably ill individuals m

anifesting gieat pain and suffelm

g due to physical illness (For evidence of P

rofessor D w

orkm 's continuing failure to acknow

ledge this p

io b

le m

, se e

h is a

sse ssm

e n

t o f th

e S

u p

le m

e C

o u

it o p

in io

n s

in 'ÿ4ssisted S uicide W

hat the C ourt R

eally S aid;' N

ew Y

ork R

eview of B

ooks 44 (14) (S ept 25,1997) 4o-44 ) Failuie to no-

tice this sort of dynam ic m

ight be due eithei to the philoso- phexs' lack of fam

ihauty w ith the recent hlstoxy ofbioethics

oi to theu belief that the social ilsks of P A

S are equivalent to

the risks inherent in the w idely accepted plactice of forgoing

life-sustaining treatm ents, and thus that such slippage w

ould not present any additional nsk qhe lattel assum

ption is, of course, vigolously contested by the opponents of P

A S

and e

u th

a n

a sia

34 John A u as, "The R

ight to D ie on the S

llppei y S lope;' S

o- cial Theory and P

ractice 8 0982) 285 (describing the "slippery slope" aigum

ent in favor of P A

S )

35 S ee, e g, C

assel et al, "C ale of the H

opelessly Ill", M ille1 et

al, "R egulating P

hysician-A ssisted D

eath", C harles H

B aron

et al, "S tatute, A

M odel S

tate A ct to A

uthorize and R egulate

P hysician-A

ssisted S uicide;' H

at vat d ]out hal of Legislation 33 (1996): 1 3 6 D

! G a iy K

e n n e d y, D

lvlS lO

li o fG

e iia

tiIC S

, M o n te

fio re

M edical C

entei, A lbert E

instein C ollege of M

e& cm

e, Testi- m

ony befoie the N ew

Y ork Task Folce on Life and the Law

37 Task Force, W hen D

eath Is S ought, 143 (illustrating dis-

ciim ination aganlst m

m oiItygioups) S

ee also C S

C leeland

e t a

l, "P a in

a n d Its T

ie a tm

e n t in

O u tp

a tie

n ts w

ith M

e ta

stic

C ancer;' N

ew E

ngland ;out nil of M edicine 320 (1994) 592-96

(illust, ating a study that found that patients treated foi cancer at centels that care predom

inantly for m inority individuals

w e

ie th

le e

tim e

s in o

le like

ly to ie

ce ive

in a

d e

q u

a te

th e

ra p

y to

relieve pain) 38 S

usan M W

olf, "P hysician-A

ssisted S uicide in the C

ontext of M

anaged C are" D

uquesne Law R

eview 35 (1996) 455

39 Task Force, W hen D

eath Is S ought, 43-47 "D

espite dra- m

a tic a

d va

n ce

s in p

a in

m a

n a

g e

m e

n t, th

e d

e live

ry o f p

a in

lehef IS gIossly inadequate in clinical pxactIce S

tudies h

a ve

sh o

w n

th a

t o n

ly 2 to

6 o

p e

ice n

t o f ca

n ce

l p a

in , is tie

a te

d

adequately" Ibld, 43 4 o W

o lf, "P

h ysicia

n -A

ssiste d S

u icid

e in

th e C

o n te

xt o f M

a n -

aged C are"

41 Task Foice, W hen D

eath ls S ought, 44 "In genelal,

Ie se

a rch

e ts re

p o

it th a

t m a

n y d

o cto

rs a n

d n

u rse

s a le

p o

o rly

in fo

a m

e d

a b

o u

t, a n

d h

a ve

lim ite

d e

xp e

rie n

ce w

ith , p

a in

a n d ÿym

p to

m m

a n a g e m

e n t H

e a lth

ca ie

p io

fe ssio

n a ls a

p -

peal to have a hm ited undeistanding of the physiology of

pare and the phaim acology of narcotic analgesics A

ccord- ingly, m

any lack the understanding, skills, and confidence n e ce

ssa ry fo

i e ffe

ctive p

a re

a n d sym

p to

m m

a n a g e m

e n t"

S ee also K

M F

oley, "T he R

elationship of P ain and S

ym p-

to m

M a

n a

g e

m e

n t to

P a

tie n

t R e

q u

e sts fo

r P h

ysicia n

-A s-

sisted S uicide" ]out hal of P

ain and S ym

ptom M

anagem ent 6

(1991) 290 42 Task Force, W

hen D eath Is S

ought, 17 4

3 O

n e

so u

rce e

stim a

te s th

a t in

th e

e a

rly 1 9

9 o

s, n o

m o

re th

a n

3o percent of cases of P A

S w

ere reported D uring 1994, the

late of reporting increased to roughly 5o percent of cases S ee

John K eow

n, "Fuither R eflections on E

uthanasia in the N eth-

erlands in the Light of the R em

m ehnk R

epol t and the V an

D er M

aas S urvey;' In Luke G

orm ally, ed, E

uthanasia C hntcal

P laetlce and theLaw

(1994) 219 S ee also D

aniel C allahan

and M algot W

hite, "The Legalization of P hysician-A

ssisted S

uicide C reating a R

egulatory P oteinkm

V illage," U

nn,erslty of R

tchnlond Law R

eview 3o (1996) 17

44 S ee, e g, R

onald D w

orlnn, "Introduction to the P hlloso-

p h

e is' B

rie f," N

e w

Y o

rk R e

vie w

o f B

o o

ks, 4 1

-4 2

, a n

d D

w o

rlo n

,

'ÿssIsted S uicide W

hat the C ourt R

eally S aid," 44

45 N ancyR

hoden, "T he LIm

R s of Liberty D

elnstltuhonal- iza

tlo n

, H o

m e

le ssn

e ss, a

n d

L ib

e rta

u a

n q

h e

o iy" E

m o

ty L a

w

]oulna132 (2) (Spiing 1982) 375-440 46 Tom

K untz, "H

elping a M an K

ill H nnself, A

s S how

n on D

utch TK ',' N

eIV Y

ork TInles (N ov 13,1994), at E

-7 (describing

the first national broadcast of an actual m ercy killing in the

N etherlands)

47 C om

passion ni D ym

gv W ashington, 79 F 3d 790, 83o-32

(9th C lr 1996)

48 Ibld, 831 49 Ibid, 832, 50 This group once included such distinguished physicians and advocates of P

A S

as D r Tim

othy Q uill, C

hrlstm e C

assel, and D

iane M eier S

ee C assel et al., "C

are of the H opelessly Ill"

51 C om

passion m D

ying, 79 F 3d at 832 52 Ibld, 831 ("In fact, the C

ourt has never refused to recog- nize a substantive due process hberty right or interest m

erely because there w

ere difficulties in deteim lnm

g w hen and how

to lim it its exercise or because others m

ight som eday attem

pt to use it im

properly") 53 Ibid, 827 Judge R

einhardt's optim ism

is contradicted by evidence am

assed in the S U

P P

O R

T study S ee note 15 above

54 Q uill v Vacco, 80 F 3d 716, 729 (2nd Clr 1996)

55 41oUS 113 (1973) 56 D

oe v B olton, 41o U

S . 179, 184 (1973)

57 41o US 179 (1973) 58 Ibid, 198 59 Ibld 6o S

ee Frank G M

iller, "Legalizing P hysician-A

ssisted S ui-

cide by Judicial D ecision A

C ritical A

ppraisal;' B tolaw

(Jul - Aug 1996) 61 Ibld, S

-143 6

2 F

o r a

co m

p re

h e

n sive

a cco

u n

t o f p

ra ctice

s a n

d la

w s g

o v-

erning the forgoing of hfe-sustaining tieatm ent and surrogate

decision m aM

ng, see A lan M

eisel, The R ight to D

ie, 2d ed (N

ew Y

ork W iley Law

P ubhcations, 1995)

63 M lllei, "Legalizing P

hysician-A ssisted S

uicide by Judicial D

e c is

io n "

64 M eisel, The Right to Dm

65 M iller, "Legalizing P

hysician-A ssisted S

uicide by Judicial D

e cisio

n ÿ'

66 Q udlv V

acco, 80 F 3d 716, 729 (2nd C n 1996), see also

C om

passw n m

D ym

gv W ashington, 79 F 3d 790, 822-24 (9th

C n 1996)

67 M iller, "Legalizing P

hysician-A ssisted S

uicide by Judicial D

e cisio

n ;' S

-1 3 9

68 Q uill v Vacco, 8o F 3d 716, 729 (2nd Cir 1996)

6 9

D a

n B

ro ck, "V

o lu

n ta

l y A ctive

E u

th a

n a

sia ;' H

a stin

g s C

e n

-

ter R eport 22 (1992) 10 S

ee also B rock, "B

orderline C ases of

M orally Justified Taking Life in M

edicine;' in Tom B

eau- cham

p, ed , Intendm g D

eath The E thlcs of A

sslsted S ulctde

and E uthanasia (U

pper S addle R

iver, N J P

rentice H all, 1996)

131-49

7o For a helpful ieview of the argum

ents surrounding the distinction betw

een "letting die" and P A

S /euthanasia, see

K a

m isa

r, 'ÿA g

a in

st A ssiste

d S

u icid

e --E

ve n

a V

e ry L

im ite

d

Form ;' 753-6o For those w

ishing to go deeper into these tloubled w

aters, see B S

teinbock & A

lastalr N orcioss, eds,

K llhng and Letting D

ie (N ew

Y ork, Fordham

U niversity P

iess,

1995) S ee also B

eaucham p, ed, hltendm

gD eath The E

thics of A

ssisted S uicide and E

ttthatlasta 71 Task Foice, W

hen D eath Is S

ought, 146-47 72 D

avid M E

ddy, 'ÿ C onversation w

ith M y M

other" ]outnaloftheA

m etlcanM

edtcalA ssoctatton 272 (1994) 179

(illustrating the possibility of death by starvation) 73 D

erek H um

phrey, Final E xit 7he P

lacttcahtles of S elf-

dehverance and A ssisted S

uicide for the D ying, 2nd ed, (N

ew Y

ork B antam

D oubleday, 1997)

74 D ick Lehi, "D

eath and the D octoi's H

and Incieasingly, S

ecretly, D octors A

re H elping the Incuiably Ill to D

ie" B oston

G lobe (A

pi 25, 1993), p 1 (featuring the experience ofphys> clans w

ho have helped patients to com m

it suicide) 75 Restatem

ent (second) of Torts, sec 13 (1965) (defining battei y) 7

6 S

e e

a lso

S e

th K

re im

e r, "D

o e

s P ro

-C h

o ice

M e

a n

P ro

-

K evoikianÿ A

n E ssay on R

oe, C asey, and the R

ight to D ie"

A m

erican U niversity Law

R eview

44 (1995) 8o3, 841 77 ÿlhe prospects for slippage here are excellent The step from

a requirem ent of term

inal illness, view ed by these

co u rts a

s ca n o n ica

l, to o

n e o

f m e re

ly "u n tre

a ta

b le

" o r "in

cu r-

able" illness, already has been recom m

ended by a panel of d,stingulshed ploponents of P

A S

S ee M

iller et al, "R egulat-

ing P hysician-A

ssisted D eath" It is interesting to note in this

co n

n e

ctio n

th a

t o n

e o

f Ja ck K

e vo

rkia n

's e a

rlie st "p

a tie

n ts"

Janet A tkins, reportedly w

as playing tennis a w eek or tw

o befole her assisted suicide 78 B

aron et al, 'ÿ M odel S

tate A ct to A

uthorize and R egulate

P hysician-A

ssisted S uicide," 11 A

t an A m

erican P hilosophical

A sso

cia tio

n sym

p o

siu m

o n

P A

S in

D e

ce m

b e

r, 1 9

9 5

, P io

fe sso

r

B rock conceded that political-strategic considelations played

a significant role in his group's decision not to sanction P A

S for the chronically m

entally ill 79 C

om passion tn D

ym gv, W

ashington, 79 F 3d 79o, 832-33, 836-37 (gth Cir, 1996) 80 C

all E S

chneider, "M aking S

ausage The N inth C

ircuit's O

pinion;' H astings C

enter R eport27 (1997) 27-28 (ievlew

- ing the shortcom

ings of judges in com ing to term

s w ith the

com plexities of highly contextuahzed social problem

s such as PAS), 81 For sim

ilar leasons, I am highly skeptical of state ballot

in itia

tive s, su

ch a

s th e

1 9

9 4

in itia

tive in

O re

g o

n , w

h ich

d o

n o

t

m ake use of the legislatures' superior fact-finding capabilities

o r, fo

r th a

t m a

tte r, o

f th e

citize n

s' ca p

a city fo

r m o

re d

e h

b e

ra -

tire approaches to dem ocratic problem

solving 82 It does not speak w

ell for the level ofpubhc understanding of this issue, as gauged by polls and referenda, that I, a m

id- dhng public speaker at best, am

unfailingly able to convert (O l

at least shake the confidence of) largely pro-P A

S audiences

by the end of a half-hour exploration of the social risks and available altexnatives For an excellent discussion of the plom

lse of a m ole dehberatlve m

ode of dem ocracy, see A

m y

G u tn

la n n a

n d D

e n n is T

h o m

p so

n , D

e m

o cra

cy a n d D

isa g re

e -

m ent (C

am biidge H

arvaid U niveisity P

ress, 1996)

8 3 F

o i a

n e

xp lica

tio n o

f th e n

o tio

n o

fa "tia

g ic ch

o ice

" in th

e

sense that I em ploy hele, see G

uido C alabresi &

P hihp B

ob- bit, Ttagtc C

hoices (N ew

Y ork W

W N

oiton, 1978) 84 F

oi a good exam ple of how

such "term inal sedation" can fit

into an ovea all plan of palllahve caie, bringing relief to patients

and fam ilies ahke, see Ira B

yock's com passionate and instructive

account in Dym g W

ell The Piospect fot G iowth at the End of Life

(N ew

Y olk R

aveihead B ooks, 1997), ch lO

85 Tim othy Q

m ll, "D

eath and D igm

ty A C

ase ofhx& vtduahzed

D ecision M

alone' N ew

England Jout nal of M edlcm

e 324 (1991) 694 86 A

llow ing foi the occasional coveit practice of P

A S

w o

u ld

, it is tru e

, fa vo

i w e

ll-e d

u ca

te d

, m id

d le

-cla ss in

d i-

viduals w ith access to w

illing physicm ns and w

ould thus perpetuate an undesirable double standaid that excludes the poor and unconnected from

the benefit of a bettei death

(F o

r a p

o w

e rfu

l lo t m

u la

tlo n

o f th

is ciltiC lS

m , se

e D

w o

rkin ,

"lntioduction T he P

hilosophers' B ilefÿ' 41 ) I take this

double standaid to be a defim te habihty of m

y appioach, but one iequned by the m

oral necessity of avoiding othei hainas to other people D

eS cilbing m

y approach as inform ed

by a "tiagic" vision acknow ledges the unhappy fact that

no solution to the pioblem of dying in our society w

ill be acceptable, fau, oi hum

ane to all The m ost w

e can hope fox h

e re

is "th e

le a

st w o

rst" p o

licy

87 In fram ing the question in just this w

ay, R onald D

w orkin

IS guilty of posing a false dilem

m a in his otheiw

ise adm n able

book S ee D

w orkin, Life's D

om inion, p 198

88 This brief sketch of suggested reform s m

erely sum m

arizes the careful w

ork of the N ew

Y ork S

tate Task Foice S ee W

hen D

eath Is S ought, pp 153-184

A ctive and P

assive E uthanasia

JAM ES RACHELS

In this fam ous essay, R

achels argues that the tradm onal distinction betw

een Iolhng and letting die is untenable, that "kllhng is not m

itself any w orse than letting die." If so,

then actw e euthanasm

ÿs no w orse than passw

e euthanasia. T hus doctors m

ay have to

distinguish betw een active and passive euthanasia for legal reasons, but "they should

not gw e the dÿstm

ctJon any added authorW and w

eight by w rm

ng ÿt into offloal state- m

ents of m edical ethics."

The distinction betw een active and passive euthana-

sia is thought to be crucial for m edical ethics T

he idea is that It is perm

issible, at least an som e cases, to

w ithhold treatm

ent and allow a patient to &

e, but it is nevm

perm issible to take any &

rect action designed to hll the patient T

his doctrine seem s to be accepted

by m ost doctors, and at IS

endorsed in a statem ent

adopted by the H ouse of D

elegates of the Am erican

M edical A

ssociation on D ecem

ber 4, 1973

The intentional tei m inatlon of the life of one hum

an bexng by another--m

ercy M lhng--IS

c ontraly to that for w

hich the m edical profession stands and

is contrai y to the policy of the A m

eiican M edical

A sso

cia tio

n T

he cessation of the em ploym

ent of extraoi di- nm

y m eans to plolong the life of the body w

hen

From The N

ew E

ngland ]out nal of M edicine, vol 292, no 2

C opyright ©

1975 by the M assachusetts M

edical Society All rights reseived R

epi rated w ith perm

ission

there is lrlefutahle evidence that biological death is im

m inent is the decision of the patient and/or his

im m

ediate fam ily. The advice and)udgm

ent of the physician should be fieely available to the patient and/or his im

m ediate fam

ily

H ow

ever, a strong case can be m ade against this doc-

trine In w hat follow

s I w ill set out som

e of the rele- vant argum

ents, and urge doctors to reconsider their view

s on this m atter

T o begin w

ith a fam iliar type of situation, a pa-

tient w ho is dying of incurable cancer of the thioat

is m terrible pain, w

hich can no longer be satisfacto- rily alleviated H

e is certain to die w ÿthan a few

days, even if present treatm

ent is continued, but he does not w

ant to go on living fol those days since the pain as unbearable. S

o he asks the doctor for an end to it, and his fam

ily joins in the request. S

uppose the doctor agrees to w ÿthhold treatm

ent, as the conventional doctrine says he m

ay The justlfi- citron for his doing so is that the patient is in terrible

agony, and since he is going to die anyw ay, It w

ould be w

rong to plolong his suffering needlessly B ut now

notice this If one sim ply w

ithholds tleatm ent, it m

ay take the patient longer to die, and so he m

ay suffel m

ore than he w ould if m

ore dnect action w ere taken

and a lethal rejection given T his fact plovldes strong

reason for thlnlong that, once the initial decision not to plolong his agony has been m

ade, active euthanasia is actually preferable to passive euthanasia, rather than the leverse To say otherw

ise is to endorse the option that leads to m

ore suffering rather than less, and is contialy to the hum

anitarian im pulse that prom

pts the decision not to prolong his life in the filS

t place. P

art of m y point is that the piocess of being "al-

lo w

e d

to d

ie " ca

n b

e re

la tive

ly slo w

a n

d p

a in

fu l,

w hereas being given a lethal injection is lelatlvely

quick and painless. Let m e give a dlffeient solt of ex-

am ple In the U

nited S tates about one in 6oo babies is

born w ith D

ow N

s syndrom e M

ost of these babies are otherw

ise healthy--that is, w ith only the usual pedi-

atric caie, they w ill pIoceed to an otherw

ise norm al

infancy. S om

e, how ever, are born w

ith congenital de- fects such as intestinal obstructions that requne op- erations if they are to hve S

om etim

es, the parents and the doctoi w

ill decide not to operate, and let the infant die. A

nthony S haw

describes w hat happens then:

W hen suigeiy is denied [the doctoi] m

ust tiy to keep the infant from

suffering w hile natural foices

sap the baby's hfe aw ay A

s a suigeon w hose natu-

ral inclination is to use the scalpel to fight off death, standing by and w

atching a salvageable baby die is the m

ost em otionally exhausting expenence I lm

ow .

It is easy at a confeience, in a theoletlcal discussion, to decide that such infants should be allow

ed to die. It is altogetheI dlffeient to stand by in the nui sery and w

atch as dehy& ation and infection w

ither a tiny being ovei horns and days This is a tenlble oIdeal fol m

e and the hospital staff--m uch m

oIe so than for the parents w

ho never set foot in the nuisery*

I can understand w hy som

e people aie opposed to all euthanasia, and insist that such infants m

ust be a llo

w e d to

live I th

in k I ca

n a

lso u

n d e ista

n d w

h y

other people favor destioying these babies quickly a n d p

a in

le ssly B

u t w

h y sh

o u ld

a n yo

n e fa

vo l le

t-

*S haw

A D

octor, D o w

e have a cholceÿ The N ew

Y oÿk Trow

s M

agazine, Janum y 30, 1972, p 54

ting "dehydiation and infection w ithei a tiny being

over hours and days"? ÿIhe doctiine that says that a baby m

ay be allow ed to dehydiate and w

ither, but m

ay not be given an injection that w ould end its hfe

w ithout suffenng, seem

s so patently cruel as to re- quire no further refutation. T

he strong language is not intended to offend, but only to put the point in the clearest possible w

ay. M

y se co

n d a

ig u m

e n t is th

a t th

e co

n ve

n tio

n a l

doctrine leads to decisions concerning life and death m

ade on irrelevant grounds. C

onsider again the case of the infants w ith D

ow N

s syndrom

e w ho need operations foi congenital defects

unlelated to the syndiom e to live. S

om etim

es, theie is no operation, and the baby dies, but w

hen there is no such defect, the baby lives on N

ow , an operation

such as that to rem ove an intestinal obstruction is

not prohibitively difficult 7he reason w hy such op-

eiatlons are not pelform ed in these cases is, clearly,

that the child has D ow

ns syndrom e and the parents

and doctor judge that because of that fact it is better foi the child to die

B ut notice that this situation is absurd, no m

at- ter w

hat view one takes of the lives and potentials

of such babies. If the life of such an infant is w orth

preselvlng, w hat does it m

atte1 if it needs a sim -

ple operation? O r, if one thinks it better that such

a baby should not live on, w hat difference does it

m ake that it happens to have an unobstructed in-

testinal tiact? In either case, the m attel of life and

death is being decided on nielevant grounds It IS the D

ow ns syndiom

e, and not the intestines, that is the issue. T

he m atter should be decided, if at all,

on that basis, and not be allow ed to depend on the

essentially irrelevant question of w hether the intes-

tinal tract is blocked. W

hat m akes this situation possible, of course, is

the idea that w hen theie is an intestinal blockage, one

can "let the baby die;' but w hen there is no such defect

there is nothing that can be done, for one m ust not

"kill" it. The fact that this idea leads to such results as deciding life or death on 11relevant gl ounds is another good ieason w

hy the doctnne should be lejected O

ne reason w hy so m

any people think that theIe is an im

poitant m oial difference betw

een active and passive euthanasia is that they think killing som

eone is m

orally w orse than letting som

eone die B ut is it?

Is ldlling, in Itself, w orse than letting dieÿ T

o investi- gate this issue, tw

o cases m ay be considered that aIe

exactly alike except that one involves hlling w heieas

the other Involves letting som eone die. T

hen, It can be asked w

hethel this dlffeience m akes any dlffel-

ence to the m oral assessm

ents It is im portant that

the cases be exactly alike, except foI this one differ- ence, since otherw

ise one cannot be confident that it is this difference and not som

e other that accounts for any vat iation in the assessm

ents of the tw o cases

S o, let us consider this pair of cases.

In the first, S m

ith stands to gain a large lnhent- ance ff anything should happen to his S

Lx-year-old cousin. O

ne evening w hile the child is taking his

bath, S m

ith sneaks into the bathroom and drow

ns th

e ch

ild , a

n d

th e

n a

rra n

g e

s th in

g s so

th a

t it w ill

look hke an accident. In the second, Jones also stands to gain if any-

thing should happen to his slx-yeaI-old cousin Like S

m ith, Jones sneaks in planning to drow

n the child in his bath H

ow ever, just as he enters the bathloom

Jones sees the child slip and hit his head, and fall face dow

n in the w ater Jones is dehghted; he stands

by, ieady to push the child's head back under if it is necessary, but it IS

not necessary. W ith only a lit-

tle thrashing about, the child drow ns all by him

self, "accidentally;' as Jones w

atches and does nothing N

ow S

m ith killed the child, w

hereas Jones "m

erely" let the child die That is the only difference betw

een them D

id either m an behave better, from

a m

oral point of w ew

? If the difference betw een kill-

ing and letting die w ere in itself a m

orally im portant

m atter, one should say that Jones's behavlol w

as less reprehensible than S

m ith's. B

ut does one leally w ant

to say thatÿ I think not. In the first place, both m en

acted from the sam

e m otive, personal gain, and both

had exactly the sam e end in view

w hen they acted.

It m ay be inferred from

S m

ith's conduct that he is a bad m

an, although that judgm ent m

ay be w ithdraw

n or m

odified if certain fui ther facts are learned about him

--for exam ple, that he is m

entally deranged B ut

w o

u ld

n o

t th e

ve ry sa

m e

th in

g b

e in

fe rre

d a

b o

u t

Jones from his conductÿ A

nd w ould not the sam

e further consldm

atlons also be lelevant to any m od-

ification of this judgm ent? M

oreover, suppose Jones pleaded, in his ow

n defense, A fter all, I didn't do an-

ything except just stand there and w atch the child

drow n. I didN

t M I1 him

; I only let him die" A

gain, if letting &

e w ere in itself less bad than lÿalllng, this

defense should have at least som e w

eight. B ut it

does not S uch a "defense" can only be iegalded as

a grotesque perversion of m oral ieasoning. M

orally speaking, it is no defense at all

N ow

, it m ay be pointed out, quite propeily, that

the cases of euthanasia w ith w

hich doctors ale con- cerned are not like this at all T

hey do not Involve peisonal gain or the destruction of noIm

al healthy children. D

octors are concerned only w ith cases in

w hich the patient's life is of no further use to him

, oi in w

hich the patient's life has becom e or w

ill soon becom

e a terrible buiden. H ow

eveI, the point is the sam

e in these cases, the bare diffelence betw een kill-

Ing and letting die does not, in Itself, m ake a m

oral difference. If a doctor lets a patient die, for hum

ane reasons, he is in the sam

e m oial position as if he

had given the patient a lethal injection for hum ane

re a so

n s If h

is d e cisio

n w

a s w

lo n g --lf, fo

r e xa

m p le

,

the patient's illness w as in fact curable--the deci-

sion w ould be equally regiettable no m

atter w hich

m ethod w

as used to cariy it out A nd if the doctor's

decision w as the right one, the m

ethod used IS not in

itself lm pol tant.

T he A

M A

policy statem ent isolates the crucial is-

sue very w ell, the crucial issue is "the intentional ter-

m ination of the life of one hum

an being by another." B

ut aftei identifying this issue, and forbidding "m ercy

lolhng" the statem ent goes on to deny that the cessa-

tion of treatm ent is the intentional term

ination of a life. T

his is w here the m

istake com es in, for w

hat is the cessation of treatm

ent, in these circum stances, if

it is not "the intentional term ination of the life of one

hum an being by another"ÿ O

f course it is exactly that, and if it w

ere not, there w ould be no point to it

M any people w

ill find this judgm ent hard to ac-

cept. O ne reason, I think, is that it is very easy to

conflate the question of w hethei lolling is, In itself,

w orse than letting die, w

ith the very dlffeient ques- tion ofw

hethel m ost actual cases of lolling ale m

ore ieprehenslble than m

ost actual cases of letting die M

ost actual cases ofkllhng are clearly terrible (think, fol exam

ple, of all the m urders repoited in the new

s- papeis), and one heaIs of such cases eveiy day. O

n the other hand, one hardly ever heais of a case of letting die, except for the actions of doctols w

ho aie

m otivated by hum

anitarian reasons S o one learns

to th

in k o

f killin g

in a

m u

ch W

O lS

e lig

h t th

a n

o f

letting die. B ut this does not m

ean that thele is som e-

thing about killing that m akes it in itself w

orse than letting die, for it is not the bare difference betw

een kalhng and letting die that m

akes the diffelence in these cases. R

ather, the other factors--the m urder-

er's m otive of personal gain, for exam

ple, contrasted w

ith the doctor's hum anitarian m

otivation--account for different reachons to the different cases

I have argued that kA hng is not m

itself any w orse

than letting die. if m y contention is right, it follow

s that actw

e euthanasia is not any w orse than passive

euthanasia. W hat argum

ents can be given on the other side? The m

ost com m

on, I believe, is the follow ing:

"T he im

portant difference betw een active and

passive euthanasia is that, in passive euthanasia, the doctor does not do anything to bring about the patient's death. T

he doctor does nothing, and the patient dies of w

hatever ills already afflict him . In

active euthanasia, how ever, the doctor does som

e- thing to bring about the patient's death: he lolls him

. T

he doctor w ho gives the patient w

ith cancer a le- thal injection has him

self caused his patient's death. w

hereas if he m erely ceases treatm

ent, the cancer is the cause of the death."

A num

ber of points need to be m ade here. The first

is that it is not exactly correct to say that in passive eu- thanasia the doctor does nothing, foi he does do one thing that is very im

portant: he lets the patient die "Letting som

eone die" is certainly different, in som e

respects, from other types of action--m

ainly in that it is a lrand of action that one m

ay perform by w

ay of not perform

ing certain other actions F or exam

ple, one m

ay let a patient die by w ay of not giving m

edication, just as one m

ay insult som eone by w

ay of not shakang his hand. B

ut for any purpose of m oral assessm

ent, it is a type of action nonetheless. T

he decision to let a patient die is subject to m

oral appraisal in the sam e

w ay that a decision to kdl him

w ould be subject to

m oral appialsal: it m

ay be assessed as w ise or unw

ise, com

passionate or sadistic, right or w rong. If a doctor

dehbeI ately let a patient die w ho w

as suffering from a

routinely curable illness, the doctor w ould certainly

be to N am

e for w hat he had done, just as he w

ould be to blam

e if he had needlessly ldlled the patient. C

harges against him w

ould then be appropriate. If so,

it w ould be no defense at all foi him

to insist that he didn't "do anything" H

e w ould have done som

ething vely serious indeed, for he let his patient die.

F ixing the cause of death m

ay be very Im por-

tant fiom a legal point of view

, for it m ay determ

ine w

hethei crm ainal chaiges ale brought against the

d o cto

r. B u t I d

o n

o t th

in k th

a t th

is n o tio

n ca

n b

e used to show

a m oral dlffelence betw

een active and passive euthanasia T

he ieason w hy it IS

considered bad to be the cause of som

eone's death is that death is regarded as a great evil--and so ÿt is H

ow ever, if

It has been decided that euthanasia--even passive euthanasia--is desnable in a gw

en case, it has also been decided that in this Instance death is no gieater an evil than the patient's continued existence A

nd if this is true, the usual reason for not w

anting to be the cause of som

eone's death sim ply does not apply.

Finally, doctors m ay think that all of this is only of

academ ic interest--the sort of thing that philosophers

m ay w

orry about but that has no practical bearing on their ow

n w ork A

fter all, doctors m ust be concerned

about the legal consequences of w hat they do, and ac-

tive euthanasia is dearly forbidden by the law . B

ut even so, doctors should also be concerned w

ith the fact that the law

is forcm g upon them

a m oral doctnne that m

ay w

ell be Indefensible, and has a considelable effect on their piachces. O

f course, m ost doctors are not now

in the position of being coeiced in this m

atter, foi they do not legard them

selves as m eiely going along w

ith w hat

the law requlres R

ather, in statem ents such as the A

M A

policy statem ent that I have quoted, they are endolslng

this doctrine as a centralpolnt of m edical ethics In that

statem ent, active euthanasia is condem

ned not m eIely

as illegal but as "contraly to that for w hich the m

ed- ical profession stands;' w

hereas passive euthanasia is approved. H

ow eveI; the preceding considerations sug-

gest that theie is ieally no m oral diffel ence betw

een the tw

o, considered m them

selves (there m ay be im

portant m

oral differences in som e cases in then consequences,

but, as I pointed out, these differences m ay m

al;e active euthanasia, and not passive euthanasia, the m

orally prefeiable option) S

o, w hereas doctoIs m

ay have to discrim

inate betw een active and passive euthanasia to

satisfy the law , they should not do any m

ore than that In particulal; they should not give the dlstm

chon any added authority and w

eight by w riting It into official

statem ents of m

edical ethics

T he D

istinction B etw

een R efusing M

edical T

re a tm

e n t a

n d S

u ic

id e

NEW YO

RK STATE TASK FO RCE O

N LIFE AND THE LAW

In this report, the Task Force rejects the w ew

that there Is no slgm ficant difference

betw een forgoing m

ed)cal treatm ent and asststed sum

)de or euthanasia. It argues that

equating the tw o w

ould underm ine patient autonom

y and "m ake It im

possible to hm lt

physm lan-assLsted sum

lde to com petent, term

inally ill patients, or to legahze physm lan-

assisted suicide w ithout also legahzm

g euthanasia"

T he distinction betw

een the refusal of life-sustaining m

edical treatm ent and suicide has been a critical

com ponent of all of our recom

m endations on end-

o f-life

ca re

. In o

u r re

p o

rt o n

d o

-n o

t-re su

scita te

o r-

ders, w e grounded our legal analysis on the prem

ise that suicide relates only to self-inflicted deaths and "not to a decision to refuse hfe-sustam

Ing treat- m

ent." W e reaffirm

ed this position In our report on the health care proxy, w

hich found that "as a m at-

ter of public policy the talrang of hum an life m

ust not be granted legal sanction" B

ased on that con- dusion, the health care proxy law

, as enacted by the N

ew Y

oik S tate Legislature, provides that "It]his ar-

ticle is not intended to perm it or prom

ote suicide, assisted suicide, or euthanasia." O

ur proposed leg- Islation on surrogate decision-m

alting for incapac- itated patients w

ithout advance directives contains a sim

ilar statem ent, the report accom

panying the proposed legislation expressly states that surrogate decision-m

aking is "not intended either as a step on the road to assisted suicide or as a vehicle to extend the authority of fam

ily m em

bers beyond the tradi- tional boundaries established by consent to provide treatm

ent or not to treat" M ost recently, our report

on assisted suicide and euthanasia proposed "a clear line for public policies and m

edical practice betw een

forgoing m edm

al interventions and assistance to com

m it suicide oi euthanasia;' and outlined the le-

gal, ethical, and policy consideI atlons dlstm gm

shlng the tw

o practices

From The N

ew Y

ork S tate Task Force on Life and the Law

, W

hen D eath Is S

[email protected] t A

ssisted S tuclde and E

uthanasia m the

M edical C

ontext, S upplem

ent to R eport, A

pld 1997

W e re

co g n ize

th a t "th

e m

o ra

l d istra

ctio n b

e -

tw een assisting to die and w

lthdraw m

g treatm ent

is h a

rd to

d iscm

n in

ce rta

in ca

se s." T

h e

a lle

g e

d d

istin ctio

n b

e tw

e e

n "a

cts" a n

d "o

m issio

n s" fo

r e x-

am ple, is "particularly nebulous;' given that phy-

sicians w ho com

ply w ith requests to refuse treat-

m ent are often required to undertake affirm

atw e

acts, such as disconnecting Iesplrators or feeding tu

b e s R

e stin

g th

e d

istin ctio

n o

n a

d iffe

re n ce

in intent is also not alw

ays persuasive, because "[i]n the act of disconnecting a life-sustaining ventilator .. som

e physicians actually intend, not lust to rid the patient of unw

elcom e technology, but to help

the patient end her suffering by dying sooner.ÿ F i-

nally, as an em pirical m

atter, it is undeniable that w

ith d

ra w

in g

o r w

ith h

o ld

in g

life -su

sta in

in g

tre a

t- m

ent, at least in som e cases, can play a causal role

in any death that ensues. "W hen a doctor detaches

a feeding tube from a patient w

ho could have lived for an additional decade, albeit in a profoundly di- m

inished state, she is certainly 'the cause' of death insofar as she determ

ines w hen and how

the pa- tie

n t d

ie s.''ÿ

N o n e th

e le

ss, th e fa

ct th a t th

e re

fu sa

l o f h

fe -

sustaining treatm ent and assisted suicide are sim

i- lar in certain aspects does not m

ean that the practices im

plicate ÿdentlcal legal, clinical, ethical, and pub- lic policy concerns. T

he follow ing factors, taken to-

gether, present com pelhng reasons to distlngm

sh betw

een the refusal of hfe-sustalnm g treatm

ent and assisted suicide for law

and public pohcy, despite the sim

ilaIlties that m ight exist in individual cases A

l- though these distinctions m

ay not, In them selves,

com pel the conduslon that assisted suicide should

rem ain illegal, they underm

m e the claim

that the le- gal iecognxtlon of a bioad iight to refuse treatm

ent requires recognition of a i Ight to assisted suicide as a m

atter of constitutional law .

T he R

ight to R efuse M

edical T reatm

ent Is B

ased on the Long-S tanding R

ight to R

esist U nw

anted P hysical Invasions, N

ot o

n a

R ig

h t to

"H a

ste n

" D e

a th

. C

ritics of the distinction betw een the refusal of life-

sustaining treatm ent and assisted suicide contend

that both practices ale based on the position that dy- ing patients have a right to "hasten death" For exam

- ple, in G

lucksberg, Judge R elnhardt chaxacterlzed

th e ju

d icia

l re co

g n itio

n o

f th e rig

h t to

re fu

se h

fe -

sustaining treatm ent as a "drastic change legardlng

acceptable m edical practices;' reflecting the courts'

belief "that term inally 111 persons are entitled., to

hasten their deaths, and that .. physicians m ay as-

sist in the process:'3 This description of the develop- m

ent of the light to refuse treatm ent sim

ply cannot be reconciled w

ith the cases originally recognizing that right

C o

u rts th

a t a

ffirm e

d th

e rig

h t to

re fu

se h

e a

t- m

e n

t, in clu

d in

g h

fe -su

sta in

m g

m e

a su

re s, co

n sist-

ently grounded that right in the long-standing doc- trine of inform

ed consent, w hich forbids physicians

from perform

ing invaslve m edical procedures w

ith- out the patient's know

ing and voluntary agreem ent

T hat doctrine is based on the com

m on-law

concept of battery, under w

hich any nonconsensual "touch- in

g " is

a "to

rt"--a le

g a

l w ro

n g

--p ro

v id

in g

g ro

u n

d s

fo r th

e victim

to su

e W

h ile

p a tie

n ts w

h o re

fu se

treatm ent m

ay becom e szc!¢er, and som

etim es w

dl die, that result has alw

ays been regarded as an una- voidable consequence of applying the docti m

e of in- fol m

ed consent consistently and w ithout exception,

not as a Ieason to recognize individuals' right to Ief- use tieatm

ent capable of pIolonglng life, C ontraiy

to Judge R em

hardt's asseltion, the fact that couzts did not explicitly recognize the right to refuse life- sustaining treatm

ent until relatively i ecently does not m

ean that the right iepresented a "drastic change" R

ather, the courts' iecognition of the Iight to refuse hfe-sustalning treatm

ent w as sim

ply an application of the long-standing prohibition of battery to "the advance of m

edical technology capable of sustaining

life w ell past the pom

t w here natural foices w

ould have biought cm

tain death in earlier tim es" U

ntil the w

idespi ead use of devices such as respll ators, di- alysis m

achines, and feeding tubes, there w as sim

ply no occasion for courts to consider the right to refuse life-sustaining treatm

ent, outside the narrow context

of "patients w ho refused m

edical treatm ent foIbid-

den by then iehglous beliefs:' T

he fact that couzts grounded the right to refuse tre

a tm

e n t in

th e lo

n g -sta

n d in

g lig

h t to

re sist u

n -

w anted physical invasions, rather than in a broader

"right" to "hasten death;' strongly undeim ines the

claim that the refusal of treatm

ent and assisted su- icide are legally and ethically the sam

e P rohibiting

individuals from lefusm

g m edical treatm

ent w ould

represent "a violation of personal autonom y and

physm al Integrity totally incom

patible w ith the deep-

est m eaning of our traditional iespect for hbeIty.

In so

m e

ca se

s, su ch

p ro

h ib

itio n

s w o

u ld

vio la

te sin

ce re

ly-h e ld

re lig

io u s b

e lie

fs o p p o sin

g ce

ita ln

m edical interventions, such as the belief am

ong Je- hovah's W

itnesses against Ieceivm g transfusions of

blood. D ecisions about assisted suicide do not lm

- phcate these m

teiests. For this reason alone, assisted sm

cide is fundam entally different from

the nght to refuse treatm

ent; m oieover, the difference is not

sim ply in degree but in lind.

C haracterizing the R

efusal of M edical

T re

a tm

e n

t a s "T

h e

C a

u se

" o f A

n y D

e a

th s

T hat R

esult W ould U

nderm ine S

ociety's C

o m

m itm

e n

t to R

e sp

e ctin

g P

a tie

n ts'

D e cisio

n s A

b o u t M

e d ica

l C a re

. In case after case, courts have concluded that deaths follow

ing the refusal of tleatm ent are caused prim

a- rily by the patient's underlying disease, not the pa- tient's decision or act. A

s the N ew

Jersey S uprem

e C

ourt has held, "a patient does not die because of the w

lthdlaw al of a lddney dialysis m

achine, but because his underlying disease has destroyed the proper functioning of his lodney" Likew

ise, a patient does not die "fiom

the w ithdraw

al of a nasogastric tube, but because of hei underlying m

edical piob- lem

, i.e., an inability to sw allow

''4 If these statem ents

w ere m

eant to suggest that the refusal of treatm ent

plays absolutely no causal role In the patient's death, they w

ould obviously be untlue F ol exam

ple, w hen

a physician w ithdraw

s a zesplrator or disconnects a feeding tube from

a seriously ill patient, it is unde- niable that these actions causally contnbute to the patient's death but fol the w

ithdraw al of tleatm

ent, the patient w

ould plobably have continued to live. T

h is e

m p

irica l q

u e

stio n

o f"b

u t-fo

r" ca u

sa tio

n , h

o w

-

ever, is cleaily not w hat the couits had in m

ind In- stead, the law

's traditional analysis of the cause of deaths follow

ing the refusal of life-sustaining treat- m

ent reflects im portant judgm

ents about the natuie and goals of m

edicine, w hich society should be ex-

trem ely hesitant to Ievise, partlculaily in the guise of

constitutm nal interpretation

X he law

has long distinguished betw een the de-

te rm

in a tio

n o

f ca u sa

tio n a

s a fa

ctu a l m

a tte

r a n d

the detelm m

ation of causation for the purpose of assessing legal and ethical accountablhty W

hen a variety of factual causes are necessaiy, but not lndl- w

dually sufficient, to bring about a particulai iesult, the determ

ination of w hich am

ong them are prop-

erly cited as causative for legal purposes becom es

a policy judgm ent, reflecting undeilying assum

p- tions about nghts, duties, and m

oral blam e. T

his is precisely the case w

hen patients die follow ing the

refusal of hfe-sustalning treatm ent In contrast to

patients w ho tal¢e lethal drugs, patients w

ho refuse life-sustaining treatm

ent w ill not die unless they ai e

suffering flom a condition that m

akes it Im possible

to live w ithout lnvaslve m

edical support (such as an inability to bieath, or an inablhty to sw

allow or as-

sim ilate food taken orally). A

s D aniel C

allahan has put it, "there m

ust be an underlying fatal pathology if allow

ing to die is even possible''5 In light of the m

ultiple causes of death follow ing the iefusal of

hfe-sustam ing treatm

ent, the detetim nation of legal

causation cannot be based on sim ple em

pnical ob- servation, but iequnes a dehberate judgm

ent about legal and ethical accountability. T

he traditional view that the disease, not the refusal of tieatm

ent, IS the

prim ary cause of death affirm

s w idely-shared beliefs

about the nature of m edical care--in particular, that

consent to m edical tzeatm

ent is not obhgatoIy, but a m

atter of individual choice. B ecause the technology

is optional, patients w ho refuse it aie not considered

to be accountable for causing then ow n deaths

B y cla

im in

g th

a t p

a tie

n ts w

h o

re fu

se life

- su

sta in

in g

tre a

tm e

n t a

ie th

e p

n m

a iy ca

u se

o f

any deaths that result, the S econd and N

inth C ii-

C U

ltS unfairly stigm

atize patients w ho choose not

to su

b lm

t to e

vm y a

va ila

b le

te ch

n o

lo g

y ca p

a b

le o

f p lo

lo n

g in

g life

T h

e Im

p lica

tio n

o f a

ssig n

in g

ca u

sa l a

cco u

n ta

b ility to

th e

p a

tie n

t, ra th

e r th

a n

th e

u n

d e

rlyin g

in ju

Iy o I d

ise a

se , is th

a t co

n se

n t

to life-sustaining treatm ent is expected, and that

those w ho refuse treatm

ent are therefore respon- sible foi bringing about their ow

n deaths. In Q uill,

Judge M iner actually states that deaths follow

ing the refusal ofhfe-sustaining treatm

ent are unnat- ux al. "[b]y ordering the discontinuance of artifi- cial life-sustaining processes or refusing to accept them

in the fllst place, a patient hastens his death by m

eans that are not natural in any sense ,,6 T his

s ta

te m

e n

t ie fle

c ts

a c

u rio

u s --a

n d

, w e

b e

lie v e

,

dangerous--view of the relationship betw

een na- tu

re a

n d te

ch n o lo

g y. U

n til th

e d

e ve

lo p m

e n t o

f re

sp ira

to rs a

n d

fe e

d in

g tu

b e

s, p a

tie n

ts w h

o lo

st the ability to breathe oi sw

allow w

ould inevitably d ie

, a n d n

o o

n e w

o u ld

th in

k to a

rg u e th

a t su

ch d e a th

s w e le

se lf-in

flicte d o

r a n yth

in g b

u t n

a tu

- ial consequences of injury or disease. If, as Judge M

iner claim s, it is now

"unnatural" to die from an

lnabihty to bIeathe or sw allow

, it IS only because

technologies have been developed that can fore- stall m

any of these deaths T he nw

entIon of new technology, how

ever, does not m ake the choice to

a llo

w e

ve n ts to

p ro

ce e d w

ith o u t th

e te

ch n o lo

g y

"u n

n a

tu ra

l" T o

cla im

o th

e rw

ise is to

e sta

b lish

a "te

ch n o lo

g ica

l im p e ra

tive " in

w h ich

th e ve

ry e x-

istence of technology becom es a m

andate for its u se

S u ch

re a so

n in

g is a

ctu a lly m

o re

co n siste

n t

w ith the claim

that the use of life-sustaining treat- m

ent should be obligatory, and should be disturb- lng to those w

ho support patients' right to control their ow

n m edical care.

In d e e d , if p

a tie

n ts w

h o re

fu se

life -su

sta in

in g

treatm ent are responsible for "causing" the deaths

that result, few deaths could be attributed to natu-

ral causes. D eath often follow

s a decision to foigo an available m

edical treatm ent that could poten-

tially piolong the patient's life. F oi exam

ple, death is typically preceded by the cessation of bieathing and heartbeat, and only som

etim es are efforts m

ade to resuscitate dying patients by perform

ing C P

R If

deaths lesulting from the failure to piovide m

edical

tieatm ent ale "nothing m

ore noi less than assisted suicide" the consensual failure to perform

C P

R is a

form of assisted suicide, and the doctor w

ho does n o th

in g w

h e n a

p a tie

n t's h

e a rt h

a s sto

p p e d h

a s

"caused" the patient's death? Likew ise, patients w

ho refuse chem

otherapy because they are unw illing

to endure the painful and debahtating side effects, w

ould no longer be victim s of cancer, but of then

ow n "unnatural" acts W

hile som e m

ight distinguish these exam

ples of w ithholding hfe-sustalnlng treat-

m ent from

m ore active instances of turning off res-

pirators or disconnecting feeding tubes, it is w idely

a cce

p te

d th

a t "w

ith d

ra w

in g

" a n

d "w

ith h

o ld

in g

" m

edical treatm ent im

plicate identical legal and eth- ical concerns T

hus, if turning off a respnator is S U

l- ode, so too is refusing to be connected to the respi- rator in the first place. A

nd if refusing a respirator is suicide, the sam

e m ust be tlue for refusing an organ

transplant, or refusing any other grueling procedure w

ith an uncertain outcom e. S

uch characterizations defy com

m on sense. T

here is an obvious difference betw

een refusing invasive technologies that have the potential to prolong life long after the body is able to survive on its ow

n, and deciding to com m

it suicide by causing the body to stop functioning before death w

ould otherw ise occur.

F inally, as a practical m

atter, telling physicians that they are the prim

ary cause of death w hen pa-

tients refuse m edical treatm

ent is likely to bacldire, by leading physicians, especially those opposed to assisted sm

cide, to question their participation in th

e w

ith d

ra w

a l a

n d

w ith

h o

ld in

g o

f m e

d ica

l ca re

. D

e sp

ite p

a tie

n ts' cle

a r le

g a l rig

h t to

re fu

se life

- su

sta in

in g tre

a tm

e n t, m

a n y d

o cto

rs--p a rticu

la rly

those w ho are opposed to any participation in efforts

to "hasten death"--m ust still be persuaded to com

ply w

ith patients' requests to forgo aggressive m easures.

B y assuring doctors that they are not the legal cause

of death w hen patients refuse treatm

ent--m othm

w ords, by affirm

ing that w ithholding and w

ithdraw -

m g

tre a

tm e

n t a

le n

o t a

ssiste d

su icid

e --e

xistin g

le -

gal and ethical standards allow physicians to honor

patients' w ishes about treatm

ent w ithout having to

feel responsible for causing the patient's death If physicians are told that deaths follow

ing the refusal of tIeatm

ent are "unnatural;' and that the iefusal of treatm

ent is the prim ary legal and ethical "cause of

death;' m any physicians aie hkely to rethink their

participation in the w ithholding and w

ithdraw al of

treatm ent. T

he lesult w ould be a disastrous setback

for patient autonom y.

E quating the R

efusal of T reatm

ent w

ith S uicide W

ould M aize It Im

possible to Lim

it P hysician-A

ssisted S uicide

to C om

petent, T erm

inally III P atients,

or to Legalize P hysician-A

ssisted S uicide

W ithout A

lso Legalizing E uthanasia.

E quating the refusal of treatm

ent w ith assisted suicide

IS also inconsistent w

ith the dalm that assisted suicide

could be lim ited to com

petent, term inally ill patients,

or that assisted suicide could be legalized w hile phy-

sician-adm inistered lethal inlections rem

ain illegal. These practical consequences of abandoning the dis- traction betw

een the refusal of treatm ent and suicide

should not be ignored In contrast to the broad right to refuse m

edical treatm ent, few

proponents of legal- izing assisted suicide algue that the plactice should be available to anyone on dem

and Instead, advo- cates of legalization have argued that assisted suicide should be treated as a "nonstandard m

edical practice re

se rve

d fo

r e xtra

o rd

in a ry circu

m sta

n ce

s2 '8

o r a

s a

"response to m edical failure;' for those "few

patients" w

ho "w ill face a bad death despite all m

edm al efforts?

In fact, m ost advocates of legalization acknow

ledge that law

s prohibiting assisted suicide serve valuable societal interests, especially w

hen applied to healthy individuals suffering from

reversible physical or psy- chological problem

s. A s Judge R

em haI dt observed in

G lucksberg, "the state has a dear interest in prevent-

lng anyone, no m atter w

hat age, from taking his ow

n life in a fit of desperation, depression, ol loneliness oi as a result of any other problem

, physical or psy- chological, w

hich can be significantly am eliorated"

In such cases, he w rote, "the healtache of suicide is

the senseless loss of a life ended plem aturely;' and the

state can legitim ately take steps to prevent these sui-

cides from taking place 1o

R ecognizing the need for lim

its, the plaintiffs in G

lucksberg and Q udl propose a right to physician-

assisted suicide only for com petent patients w

ho a re

te rm

in a lly ill In

a d d itio

n , th

e y a

rg u e th

a t re

c- o

g n

izin g

a rig

h t to

a p

re scrip

tio n

fo r le

th a

l d lu

g s

does not m ean that patients should be perm

itted to

dnect theii physicians to adm inister a leflih-I rejec-

tion, even if they are unable to com m

it suicide by any other m

eans. Legislative proposals to legalize as- sisted suicide now

pending m m

any states contain S

lm llai hm

ltatIons. In fact, these distlnctm ns w

ere critical to the success of the iefeiendum

to legalize p

h ysicia

n -a

ssiste d

su icid

e in

O re

g o

n .

C haracterizing the refusal ofhfe-sustainm

g treat- m

ent as a form of assisted suicide, how

ever, w ould

m ake it im

possible (and probably unconstitutional) to hm

it assisted S m

clde to these narrow categories

of cases F irst, the clann that assisted suicide could

be lim ited to term

inally 111 patients ignores the fact that the right to refuse treatm

ent has not been hm -

ited to patients w ho are term

inally 111 F or exam

ple, in B

ouvia v. S uper tor C

orn tÿ11 the C alifornia C

ourt of A

ppeals authorized the rem oval of a feeding tube

from a young w

om an afflicted w

ith severe cerebral palsy, w

ho had years of life ahead of her, rejecting ef- forts to lim

it the right to refuse treatm ent to patients

w ho are term

inally ill. A s the B

ouvta court observed, "if [the] right to choose m

ay not be exercised be- cause theie rem

ains to [the patient], in the opinion o f a

co u rt, a

p h ysicia

n o

r so m

e co

m m

itte e , a

ce rta

in

arbitrary num ber of years, m

onths, or days, [the] rig

h t w

ill h a

ve lo

st its va lu

e a

n d

m e

a n

in g

" O th

e r

state com ts have also rejected term

inal illness as a constitutional benchm

ark, and the oplm ons of the

S upiem

e C ourt justices in C

t uzan--a case involving a patient w

ho w as not term

inally ill--suggest that the U

nited S tates S

uplem e C

ourt w ould do the sam

e thing lilt w

ere directly confronted w ith the question.

ff term inal illness IS

not an appropriate prerequisite fox the refusal of hfe-sustaanm

g treatm ent, and the

refusal of treatm ent "is nothing m

ore nor less than assisted suiode;'1ÿ how

can othm fm

m s of assisted

suicide be lim ited to patients w

ho aie term inally illÿ

The sam e is true for the claim

that assisted suicide could be lim

ited to com petent patients w

ho m ake a

contem poraneous request for physician-assisted

death. A s the N

ew Jersey S

uplem e C

ourt observed in the case of K

aren A nn Q

ulnlan, if a patient's decision to forgo life-sustainm

g treatm ent is deserving of le-

gal recognition, "it should not be discaided solely on the basis that her condition prevents her conscious exercise of the choice:'ÿ3 To protect individuals' right to refuse unw

anted hfe-sustalnlng treatm ent after

a loss of capacity, tile laW has cY

e-are-cr-m ecnum

am ÿ

like living w ills, health caie pioxles, and suriogate

decision-m alting, all of w

hich Iely on a good-faith assessm

ent of the incapacitated patient's w ishes

and/oi best interests by health cate professionals, fam

ily m em

bers, and close friends. If the lefusal of treatm

ent is a form of suicide, and it is peim

lt- ted for patients w

ithout decision-m aking capacity,

othei foim s of suicide w

ould have to be perm itted

for incapacitated patients as w ell. A

t a m im

m um

, it w

ould be im possible to deny the right to incapac-

Itated patients w ho have specifically iequested as-

sisted suicide as part of an advance directive, or w ho

have given a relative or friend explicit decision-m ak-

ing authority over treatm ent decisions by signing a

health care proxy In fact, a footnote in Judge R ein-

hardt's opinion in G lu&

sberg & rectly opens the door

to such plactlces, by stating that "a decision of a duly appointed surrogate decision m

aker is for all legal purposes the decision of the patient him

self''4 W hat

this m eans is that, even if the law

is never changed to legalize euthanasia for the incapacitated, surrogate decision-m

akers could authorize the provision of le- thal drugs to incapacitated patients by consenting to assisted suicide on the patient's behalf.

M o re

o ve

r, ch a ra

cte rizin

g th

e re

fu sa

l o f life

- sustaining treatm

ent as a form of suicide is incon-

sistent w ith the claim

that physicians could be al- low

ed to help patients com m

it suicide by prescribing lethal drugs, but not by piovlding lethal injections at a patient's request If it is unfan to &

stm gulsh be-

tw een "hastening death" by refusing hfe-sustam

m g

treatm ent and "hastening death" by sdf-adm

im stering

le th

a l d

ru g s, h

o w

ca n it b

e a

cce p ta

b le

to d

Istln -

gm sh betw

een self-adm inistering lethal drugs and

instructing a physician to adm inister those sam

e drugs directly? A

llow ing physlcm

ns to prescribe le- thal drugs but not to provide lethal injections w

ould discrim

inate against patients w ho w

ant to com m

it suicide but are physically unable to pick up or sw

al- low

a pill. T hese pahents m

ay in fact be suffering m

ore than their able-bodied counterpal ts, and their claim

s for assistance m ay therefore appear m

ore de- serving of societal 1 espect.

F inally, even w

hat are characterized as "proce- dural" lim

itations on the right to physician-assisted suicide appioved by the S

econd and N inth C

ircuits

and endolsed by virtually all supporters of legali- zation, w

ould be difficult to defend if the lefusal of hfe-sustalnlng treatm

ent IS seen as a form

of assisted suicide as a m

atter of law . If, as Judge M

iner claim s,

any distinctions betw een the lefusal of tleatm

ent and other form

s of "hastening death" are arbitrary and unconstitutional, there w

ould be no basis for requiring candidates for assisted suicide to subm

it to w

aiting periods, second opinions, and com m

ittee review

S uch requirem

ents aIe not im posed on indi-

viduals w ho seek to refuse hfe-sustaining treatm

ent, and any effort to introduce them

w ould undoubtedly

be seen as burdensom e and intrusive "[I]f there is

really no m olal or legal diffelence betw

een 'allow -

lng to die' and 'assisting suicide'--lf, as Judge M iner

opines, adding [physician-assisted suicide] to our lepeltolre of choices w

ould not add one iota of ad- ditional lisk to individuals or society over and above those w

e already countenance--then it w ould seem

that encum bering the choice for [physician-assisted

su icid

e ] w

ith a

ll so rts o

f e xtra

p ro

te ctive

d e

vice s

w ould lack constitutional validity:''5

T he B

alance B etw

een the B enefits

and R isks Likely to R

esult from the

Legalization of P hysician-A

ssisted S uicide

Is E xtrem

ely D ifferent from

a S im

ilar B

alancing in the C ontext of D

ecisions to

R e

fu se

M e

d ica

l T re

a tm

e n

t. In W

hen D eath ts S

ought, w e concluded that the legal-

lzation of assisted suicide w ould cieate insurm

ountable risks of m

istake and abuse. To the extent the S econd

and N inth C

ircuit recognized these rlslcs, they dis- m

issed them as irrelevant, on the theory that sim

ilar risks apply w

hen patients refuse hfe-sustaanm g m

edical treatm

ent. The fact that sim ilar risks exist in both situ-

ations, how ever, does not m

ean that the nsks have the sam

e im plications for law

and dm ical practice. T

he clxtlcal question is w

hether the lIsks can be m itigated

through careful legulatlon, and, if not, w hether they

outw eigh the leasons advanced for changing the law

. O

n both of these giounds, the risks associated w ith

legalizing assisted suicide are fundam entally dlffexent

fiom those involved in respecting patients' iefusals of

hfe-sustalning m edical treatm

ent. F

irst, the nsks associated w ith legalizing assisted

suicide w ould be far m

ole difficult to legulate than

the risks Involved in refusing life-sustaining treat- m

e n t. M

a n y d

e cisio

n s to

re fu

se h

fe -su

sta m

in g

tre a tm

e n t--p

a rtic

u la

rly d

e c is

io n s to

w ith

d ra

w re

s -

pirators and feeding tubes--take place in hospitals and nursing hom

es. B y contrast, decisions about

assisted suicide are likely to take place at hom e or

in a physician's office It is com paratively easy to re-

quire second opinions, com m

ittee oversights, and le

tro sp

e ctlve

m o

n ito

rin g

in in

stitu tio

n a

l se ttin

g s

O u

tsid e

o f h

o sp

ita ls a

n d

n u

rsin g

h o

m e

s, "e ffe

c- tive oversight to m

inim ize error oI abuse w

ould be m

ore difficult, if not unrealizable ,,16 S

econd, w ith the refusal of treatm

ent, the balance b e tw

e e n th

e risks a

n d th

e u

n d e rlyin

g In

d ivid

u a l

right at stake yields different results flom a sim

ilar balancing in the context of assisted suicide. O

n the risk side of the ledgex, any harm

s that m ight result

from the inappropriate refusal of treatm

ent extend o

n ly to

in d

ivid u

a ls w

h o

a ie

su ffe

n n

g flo

m a

n u

n -

derlying condition that m akes it im

possible to live w

ithout invaslve m edical suppoit. T

he size of this group, although not negligible, is inherently lim

ited, and just about everyone in this category m

ust be very bad off indeed W

ith assisted suicide, by con- trast, the risk of m

istake and abuse is considerably larger because anyone w

ho takes lethal drugs w ill

die, regardless of any undeilying pathology. A s S

eth K

relm ex has argued, "[t]he quantitative distinction

betw een som

e and all can be a legitim ate piedlcate

for the qualitative distinction betw een perm

ission and plohlbltlon:''7

A t the sam

e tim e, the individual and societal need

for a broad light to refuse tleatm ent is far gieater

than the need for changing the law to allow

physi- cia

n s to

h e

lp p

a tie

n ts co

m m

it su icid

e w

ith le

th a

l d

ru g

s If th e

la w

d id

n o

t p e

rm it p

a tie

n ts to

re fu

se life-sustaining treatm

ent, dying patients w ould be

folced to subm it to any procedure that m

ight poten- tially extend then lives, no m

atter how burdensom

e, T

he result--strapping patients dow n, pum

ping them w

ith drugs, stickang tubes into them , and cutting

th e m

o p e n to

p e rfo

im su

rg e iy--w

o u ld

b e a

b ru

- tal assault on individual rights and, in m

any cases, sincerely-held religious beliefs. B

y contrast, the le- gal prohibition of assisted suicide pievents patients from

obtaining a physician's assistance in escaping a situation im

posed by natm e, but does not im

pose

any additional harm not caused by the patient's ow

n injm

y or disease M oieover, "to the extent that law

s prohibiting assisted suicide and euthanasia im

pose a burden, they do so only fol individuals w

ho m ake an

inform ed, com

petent choice to have their lives artifi- cially shortened, and w

ho cannot do so w ithout an-

other person's aid A s studies have confirm

ed, very fe

w in

d ivid

u a

ls fa ll in

to th

is g ro

u p

, p a

iticu la

ily If applopriate pain relief and supportive care are pro- vided:' T

he refusal of treatm ent, by contlast, is an

integral part of everyday m edical practice P

rohibit- ing such decisions w

ould therefore constitute a bur- den to individual autonom

y in a significantly larger n u

m b m

o f ca

se s.

T he D

istinction B etw

een A dm

inistering H

igh D oses of O

pioids to R elieve P

ain a n d "P

h ysicia

n -A

ssiste d D

e a th

." S

om e proponents oflegahzlng assisted suicide argue

that the practice is indistinguishable from another

w idely-accepted, aspect of m

edical care the use of m

o rp

h in

e a

n d

o th

e r o

p io

ld s to

re lie

ve p

a in

. In a

1994 article In The N ew

Y ork Tim

es, Thom as P

reston, a cardiologist, stated that the use of m

orphine drips "is undeniably euthanasia, hidden by the cosm

etics of professional tiadltlon and language" A

ccording to

D r P

re sto

n , th

e co

n tin

u o

u s in

je ctio

n o

f m o

r- phine into a patient's vein w

ill inevitably lead to the patient's death by "curtailing hel bieathing:' A

ccept- ance of the practice, he w

rote, IS "society's w

ink to euthanasia;' and dem

onstrates that, despite existing legal prohibitions, "euthanasia is w

idespread now ''8

Judge R einhardt relied heavily on this argfim

ent in his opinion in G

lucksberg. 'N s part of the" tl adition of

adm lnlstel xng com

foI t care;' he w rote, "doctors have

been supplying the causal agent of patients' deaths for decades:' W

hen physicians adm inister m

orphine drips for the relief of pain, "the actual cause of the patient's death is the drug adm

lnlsteled by the phy- sician ol by a person acting under his supelvlslon or direction. B

ecause physicians are already causing patients' deaths by adm

inistenng m orphine drips,

Judge R elnhardt concluded, the S

tate cannot assert an interest in preventing physicians from

causing death by prescribing lethal drugs for patients to self- adm

inister.1ÿ T he court dism

issed the S tate's reli-

ance on differences in intention, because "one of the

lcnow n effects in each case is to hasten the end of the

patient's life"2° T

he effort to chaiacterlze m orphine drips as a

foim of covert euthanasia is extrem

ely m isguided

F ust, as a factual m

atter, the causal relationship be- tw

een m orphine drips and patients' deaths is far less

clear than D r P

reston or Judge R einhardt contend

W hile high doses of m

orphine can depless respira- tion w

hen adm inistered to patients w

ho have not de- veloped toleiance to the drug, physicians w

ho treat patients w

ith m orphine for the rehefofpaln m

ciease the doses gradually, so that tolerance can develop D

1. K

athleen Foley, chief of the pain service at M em

oi ial S

loan-K etterlng C

ancel C enter, has concluded that

"[t]he Iapld developm ent of tolerance to the lespl-

ratory depressant effects allow s for escalation of the

oplold dose in sonic patients to vely high doses;' and that "[t]here appears to be no lim

it to toleiance" w

hen the drug is adm nnstered propelly 2, T

he claim that the use of m

orphine at propelly tltrated levels "hastens" patients' deaths, based on the effects of high doses of m

orphine on patients w ho have not

developed tolelance, is entnely unfounded It iep- resents one of m

any m yths about the consequences

of using narcotics in the clinical setting, w hich have

them selves contributed to the underm

edlcatlon of patients expei iencing treatable pain.

S econd, and m

ore im portantly, the fact that m

ol- phine drips m

ay accelerate patients' deaths in som e

cases does not m ake their use equivalent to assisted

suicide or euthanasia "Just as a surgeon m ight un-

dertake risky heart surgery know ing that the patient

m ay die on the table, so the conscientious physician

can risk suppressing the patient's respiratory drive and thus hastening death so long as she is puIsulng a valid m

edical objective and there are no better (less risky) options at hand .... A

s the P resident's C

om -

m ission observed, "the m

oral issue is w hethei or not

the decisionm akers have considered the full lange of

foreseeable effects, have know ingly accepted w

hat- ever lisk of death is entailed, and have found the 1 lsk to be justified in light of the paucity and undesn- ability of other options "23 T

hese obseivations aie consistent w

ith the legal concept of iecldessness, w

hich is defined as the conscious disregard of a substantial and "unjustifiable" risk "T

his definition necessanly excludes situations w

here the benefit of

6 6 0 P

A R

T 3

: L IF

E A

N D

D E

A T

H

taM ng achon outw

eighs the hkehhood that the ac- tion cause harm

" X hus, physicians are not pei m

atted to prescribe m

orphine for m inor headaches, w

hen or&

nat y aspirin w ould w

ork as w ell, but they can

(and, indeed, should) fol the pain associated w ith

term inal illness, assum

ing that no other less risky options exist. X

hls does not m ean that the physician

can adm inister oplolds indiscrim

inately, the doc- trine of recklessness requires the physician to un- dertake a good-faith balancing of the benefits and risks. Instead, it recognizes that m

edical treatm ent

som ehm

es iequlres significant trade-offs, and that acceptance of negative consequences for legitim

ate m

edical purposes is not equivalent to causing those consequences for their ow

n salve. Just as conflatlng the refusal of treatm

ent w ith as-

sisted suicide is likely to underm ine patients' ablll-

tlty to control their m edical treatm

ent, telling physi- cians that an unintended death resulting from

the provision of necessary palhatlve treatm

ent is a form of covert euthanasia is hkely to result in m

any m ore

patients experiencing unrelieved pain A s John A

r- ras has pointed out, "m

any physicians w ould sooner

give up then allegiance to adequate pain control than their opposition to assisted suicide and eutha- nasia''24 C

haracterizing the provision of pain relief as a form

of euthanasia m ay w

ell lead to an increase in needless suffering at the end of life. A

dvocates of legalizing assisted suicide should think carefully about the consequences of this argum

ent for com -

passionate end-of-life care

N O

T E

S I J A

lia s, "P

h yslcm

n -A

sslste d

S m

cld e

A T

ra g

ic V m

w ,'

J C ontem

p H ealth Law

& Pol 13 361-389 (1997) In this vol- u m

e , p

p 2

7 4 -2

8 o

2 Id 3 79 F3d at 821-22 4 In te P

ete1, lo8 N J 365-529 A

2d 419 (1987) 5 D Callahan, The Ttoubled Dream

of Ltfe In Search of a Peaceful Death (New Ym

k Snnon & Schuster 1993) 77

6 80 F3d at 729 7

G J A

n n

a s, "'Ih

e P

lo m

lse d

E n

d --C

o n

sh tu

tm n

a l A

sp e

cts

ofP hysm

m n-A

ssxsted S m

clde" N E

ng ] M ed 335 (1996)

6 8 3 -8

7 ("S

in ce

th e fa

d u re

to p

re fo

rm ca

rd m

p u lm

o n a z y re

-

su so

ta tm

n a

lw a ys 'h

a ste

n s d

e a th

, p a tie

n ts w

h o re

fu se

cm d m

p u lm

o n a ly le

su sclta

tm n w

o u ld

a lw

a ys b

e co

m m

ittin g

sm ca

d e (a

n d d

o ctm

s w h o w

llte d

o -n

o t-re

su so

ta te

o rd

e rs

w ould alw

ays be assisting sm ctde)")

8 F G

M iller, T

E Q

uill, H B

rody, l C F

letcher, L O G

os- tin

, a n

d D

E M

e a

e l, "R

e g

u la

tin g

P h

ysm m

n -A

sslste d

D e

a th

"

N E

ng J M ed 331(1994) 119-23, at 119

9 H B

rody, '% _S

S lS

ted D eath--A

C om

passm nate R

esponse to

a M edical Failure" N

E ng J M

ed 327 (1992) 1384-88, at 1385. lO

79 F3d at 82o 11 225 C

al R ptr 297 (C

al, C t App 1986)

12 Q udl, 8o F3d at 729

13 7o N J at 41, 335 A 2d at 664 14 79 F3d at 832, n 12o 15 A

rras "P hysm

m n-A

sslsted S m

ode A T

laglc V iew

" 16 C

H C

olem an &

T E

M dler "S

tem m

ing the T ide A

s- sisted S

m ode and the C

onm tutlon" J. Law

, M ed (ÿ E

thlcs 23 (1995) 389-97, at 394 1

7 S

K rm

m e

r, "D o

e s P

ro -C

h m

ce M

e a

n P

ro K

e vo

rkla n

ÿ A n

E ssay on R

oe, C asey, and the R

ight to D in" A

m U

L R ev 44

(1995) 803, 841 18 T

A P

reston "K illing P

are E nding Life," T

he N ew

Y ork

T unes, N

ov 1, 1994, at A 27

19 79 F3d at 823 2o Id at 824 (em

phasis added) z l K

M F

o le

y , "C

o n tro

v e rs

m s In

C a n c m

P a re

M e d ic

a l

P e rsp

e ch

ve s;' C

a n ce

r 6 3 (1

9 8 9 ) z2

5 7 -6

5 , a

t 2 2 6 1 -6

2 , se

e

also W C

W ilson, N

G S

m edlra, &

C F

m k, "O

rdering and A

dm inistering of S

edahves and A nalgesics D

uring the W

ithholding and W ithdraw

al of Life Suppm t From

C rltlca!ly Ill Patients;' lAM

A 267 (1992) 949 53 (finding "no evidence that death actually w

as hastened by the adm m

as- tratm

n of drugs" and that "if anything;' the data "suggests that death occuned eailler in the patients w

ho & d not

recm ve drugs")

2 2 A

rra s, "P

h ysm

,a n -A

sslste d S

m o d e A

T ra

g ic V

ie w

"

23 P reszdent's C

om m

lssm n for the S

tudyofE thlcal P

roblem s

m M

edicine and B lom

e& cal and B

ehavm ral R

esearch D e-

cM m

g to Forgo Life-S ustaining Treatm

ent (W ashington U

S G

ovm m

nent P rinting O

ffice 1983) 82 z4

A rra

s, "P h ysm

m n -A

sslste d S

u icid

e A

T ra

g m

V ie

w "

C h a p te

r i0 : E

u th

a n a s ia

a n d P

h y s ic

m n -A

s s ls

te d s

ÿ 1 7 6 -6

ÿ --

T h e P

h ilo

so p h e rs' B

rie f

RO NALD DW

O RKIN, THO

M AS NAG

EL, RO BERT NO

ZlCK, JO HN RAW

LS, THO

M AS SCANLO

N, AND JUDITH JARVIS THO M

SO N

In the 1997 Suprem e C

ourt cases Vacco v Q u#l and W

ashington v. G lucksberg, six

prom inent phdosophers presented this am

icus brief, urging that states should rec- ogm

ze a right to assisted sm ode T

hey argued that "m dlw

duals have a conm tuuon-

ally protected interest m m

aking those grave decisions [about thew ow

n deaths] for them

selves, free from the im

posm on of any rehglous or phdosophm

al orthodoxy by court or legislature." T

hey conceded that states have a legm m

ate interest in protect-

m g people from

irrational or unstable decisions about thew dying but asserted that

states cannot deny people w ÿshm

g to die a chance to dem onstrate that thew

deosÿons are reform

ed, stable, and free They m aintained that there ÿs no m

orally sÿgm ficant

difference betw een a physm

Jan dehberately w ithdraw

ing m edm

al treatm ent to let a

patm nt dÿe from

a natural process and a physm ÿan hastening the pauent's death by

m ore active m

eans

A m

lci are six m oral and political philosophers w

ho differ on m

any issues of public m orality and policy

T hey are united, how

ever, in their conviction that re

sp e ct fo

r fu n d a m

e n ta

l p rin

cip le

s o f lib

e rty a

n d

justice, as w ell as for the A

m erican constitutional

tradition, requires that the decisions of the C ourts of

Appeals be affirm ed.

Introduction and S um

m ary of A

rgum ent

These cases do not invite or require the C ourt to m

al(e m

oral, ethical, or religious judgm ents about how

people should approach or confront their death or about w

hen it is ethically appioprlate to hasten one's ow

n death or to ask others for help in doing so. O n

the contrary, they ask the C ourt to lecognize that m

- dlw

duals have a constitutionally protected interest in m

along those grave judgm ents for them

selves, free from

the im position of any religious or phdosophical

oithodoxy by court or legislature. S tates have a consti-

tutionally legitim ate interest in protecting individuals

from irrational, all-inform

ed, pressured, or unstable

B rief for R

onald D w

orkln, ÿhom as N

agel, R obert N

O zlck,

John R aw

ls, X hom

as S canlon, and Ju&

th larw s Thom

son as A

tm ct C

urtae m S

upport of R espondents at 2, W

ashington v G

lucksberg, 117 S C t 2258 (1997) (N

o 96-110) and Vacco v Q

uill, 117 S C t 2293 (1997) (N

o 95-1858)

decisions to hasten theu ow n death. To that end, states

m ay regulate and lim

it the assistance that doctoi s m ay

give individuals w ho express a w

ish to die B ut states

m ay not deny people m

the position of the patient- plalnhffs in these cases the opportum

ty to dem on-

strate, through w hatever reasonable procedures the

state m ight institute--even plocedures that erl on the

side of caution--that their decision to die is indeed in- form

ed, stable, and fully free. D enying that opportu-

nity to term inally 111patients w

ho are in agonizing pare or otherw

ise doom ed to an existence they regard as

intolerable could only be justified on the basis of a reli- gious or ethical convictm

n about the value or m eaning

of life itself. O ur C

onstitution forbids governm ent to

im p

o se

su ch

co n

victio n

s o n

its citize n

s.

P etitioners [1. e., the state authorities of W

ashing- ton and N

ew Y

ork] and the am lcI w

ho support them offer tw

o contradictory argum ents S

om e deny that

the patient-plaintiffs have any constitutionally pro- tected liberty Interest in hastening their ow

n deaths B

ut that liberty interest flow s directly from

this C

ouit's previous decisions It flow s from

the right of people to m

ake their ow n decisions about m

atters "m

volvlng the m ost intim

ate and personal choices a person m

ay m ake in a lifetim

e, choices cential to personal dignity and autonom

y" P lanned P

atent- hood v. C

ase v, 505 U .S 833, 851(1992).

6 6 2 P

A R

T 3

: L IF

E A

N D

D E

A T

H C

h a p te

r I O : E

u th

a n a sia

a n d P

h yÿiÿa

n ÿsslste

a ÿu

lt lÿ'l-ÿ--ÿlÿr --

T he S

ohcltor G eneral, urging reversal in support

of P etitioners, lecognizes that the patient-plaintiffs

do have a constitutional liberty interest at stake in these cases. S

ee B rief for the U

nited S tates as A

m icus

C uriae S

upporting P etitioners at 12, W

ashington v. Vacco (hereinafter Brief for the U

nited States) ("The term

'hbelty' in the D ue P

rocess C lause.. is broad

enough to encom pass an interest on the part of ter-

m inally 111, m

entally com petent adults in obtaining

tellef from the km

d of suffering experienced by the plaintiffs in this case, w

hich Includes not only severe physical pain, but also the despair and distress that com

es from physical deterioration and the inability

to control basic boddy functions"); see also td at 13 ("C

t uzan. supports the conclusion that a liberty interest is at stake in this case")

T he S

ohcitor G eneral nevertheless argues that

W ashington and N

ew Y

ork properly ignored this plofound interest w

hen they required the patlent- plalnhffs to live on in C

ilC um

stances they found In- tolerable H

e algues that a state m ay sim

ply declare that it is unable to devise a regulatory schem

e that w

ould adequately plotect patients w hose desire to

die m ight be ill lnfoim

ed or unstable or foolish or not fully free, and that a state m

ay therefore fall back on a blanket prohibition. T

his C ourt has never ac-

cepted that patently dangei ous rationale for denying protection altogethel to a conceded fundam

ental constitutional interest. It w

ould be a serious m istake

to do so now If that rationale w

ere accepted, an ln- telest acknow

ledged to be constitutionally pi otected w

ould be lendeled em pty.

conscience, and convictions. This C ourt has Insisted,

in a variety of contexts and circum stances, that this

great freedom is am

ong those protected by the D ue

P rocess C

lause as essential to a com m

unity of "or- dered liberty" P

alko v C onnecticut, 3o2 U

.S . 319, 325

(1937) In its recent decision In P lanned P

arenthood v C

asey, 5o5 U .S

833, 851(1992), the C ourt offered a

paladxgm atlc statem

ent of that principle:

m atters involving the m

ost intim ate and personal

choices a person m ay m

ake in a lxfehm e, choices

central to a persods & gnity and autonom

y; are centlal to the hbelty protected by the Fourteenth A

m e

n d

m e

n t.

That declaration reflects an idea underlying m any

of our basic constitutional protections A s the C

ourt explained in W

est V tt gm

ta S tate B

oard of E ducation

v B arnette, 319 U

S 624, 642 (1943).

If thele lS any fixed stai in our constltutm

nal con- stellation, it is that no official can prescribe w

hat shall be orthodox m

politics, natm nahsm

, rehgm n,

or other m atters of oplm

on or folce cxhzens to con- fess by w

ord or act thm r faith thereto

A rg

u m

e n

t I. T

h e

L ib

e rty In

te re

st A sse

rte d

H e

re Is P

ro te

cte d

b y th

e D

u e

P ro

ce ss C

la u

se T

he D ue P

rocess C lause of the F

ourteenth A m

end- m

ent protects the liberty interest asserted by the patient-plaintiffs here.

C eltam

decisions ale m om

entous in their im pact

on the character of a person's life decisions about religious faith, political and m

oral allegiance, m ar-

rlage, plocreation, and death, for exam ple. S

uch deeply pelsonal decisions pose controversial ques- tions about how

and w hy hum

an life has value. In a free society, individuals m

ust be allow ed to m

ake those decisions fol them

selves, out of their ow n faith,

lives w hen they think that livm

g on, m the only w

ay they can, w

ould dlsfiguie lathei than enhance the lives they had created. S

om e people m

ake the lattel choice not just to escape pare E

ven if It w ele pos-

sible to elim inate all pain for a dying patient--and

flequently that is not possible--that w ould not end

O l even m

uch alleviate the anguish som e w

ould feel at rem

aining alive, but intubated, helpless, and often sedated near oblivion

N o

n e

o f th

e se

d ra

m a

tica lly d

iffe re

n t a

ttitu d

e s

about the m eaning of death can be dism

issed as lilatlonal. N

one shonld be linposed, elthel by the pressure of doctors or lelatIves O

l by the fiat of gov- ernm

ent, on people w ho lelect it. lust as it w

ould be ln

to le

la b le

fm g

o ve

tn in

e n t to

d icta

te th

a t d

o cto

is never be perm

itted to tIy to keep som eone alive as

long as possible, w hen that is w

hat the patient w ishes,

so it is in

to le

la b

le fo

r g o

ve in

ln e

n t to

d icta

te th

a t

doctors m ay never, undel any circum

stances, help som

eone to die w ho believes that fulthel life m

eans only degladahon T

he C onstitution insists that peo-

ple nm st be flee to m

aize these deeply peisonal dec> slons fol them

selves and nm st not be forced to end

theu hves in a w ay that appalls them

, just because that is w

hat som e m

ajolity thinks propel A

p e

rso n

's in te

re st in

fo llo

w in

g h

is o w

n co

n -

victions at the end of life is so central a part of the m

ore general right to m ake "intim

ate and personal choices" for him

self that a failure to plotect that par- ticular interest w

ould underm ine the general right

altogether D eath is, for each of us, am

ong the m ost

significant events of life A s the C

hief Justice said in C

ruzan v. M issouri, 497 U

S 261, 281 (199o), "[t]he

choice betw een life and death is a deeply personal

d e

cisio n

o f o

b vio

u s a

n d

o ve

rw h

e lm

in g

fin a

lity." M

ost of us see death--w hatever w

e think w ill follow

at--as the final act of hfe's dram a, and w

e w ant that

last act to reflect our ow n convictions, those w

e have tried to hve by, not the convictions of others forced on us in our m

ost vulnerable m om

ent D

ifferent people, of different rehgxous and eth- ica

l b e

lie fs, e

m b

ra ce

ve ry d

iffe re

n t co

n victio

n s

about w hich w

ay of dying confilm s and w

hich con- tradlcts the value of their lives S

om e fight against

death w ith evely w

eapon their doctors can devise. O

thers w ill do nothing to hasten death even if they

p la

y it w ill co

m e

so o

n S

till o th

e rs, in

clu d

in g

th e

patient-plaintiffs in these cases, w ant to end their

II. T his C

ourt's D ecm

sions m C

asey a

n d

C ru

za n

C o

m p

e l R

e co

g n

m o

n o f a

L ÿb

e rty In

te re

st H e

re A C

asey Supports the bberty InterestAsserted H ere In

C asey, this C

ourt, in holding that a state cannot con- stitU

tlonally proscl ibe abol tlon in all cases, leIterated that the C

onshtutlon plotects a sphere of autonom y

in w hich individuals m

ust be perm itted to m

ake cer- tain decisions fol them

selves T he C

oult began its analysis by pointing out that "lilt the heart ofhberty is the right to define one's ow

n concept of existence, of m

eaning, of the universe, and of the m ystery of

hum an life" 5o5 U

S at 851 C

hoices flow ing out of

these concephons, on m attm

s "involving the m ost

intim ate and pelsonal choices a person m

ay m ake

in a lifetim e, chm

ces central to pelsonal dignity and autonom

y, ale centlal to the libel ty plotected by the F

ourteenth A m

endm ent." Id "B

eliefs about these m

attels;' the C ourt continued, "could not define the

attributes of personhood w ere they form

ed under com

pulsion of the S tate"Id

In language pertinent to the hbelty lntm est as-

se rte

d h

e re

, th e C

o u rt e

xp la

in e d w

h y d

e cisio

n s

about aboIhon fall w ithin this category of"personal

and Intnnate" decisions. A decision w

hethei or not to have an abortm

n, "onglnat[ing] w ithin the zone

of conscience and belief;' involves conduct in w hich

"the liberty of the w om

an is at stake in a sense unique to the hum

an condition and so um que to the law

" Id at 852 A

s such, the decision necessarily revolves the very "destiny of the w

om an" and IS

inevitably "shaped to a laxge extent on her ow

n conception of her spiritual im

peratives and her place in society" Id P

ieclsely because of these characteristics of the d e cisio

n , "th

e S

ta te

is [n o t] e

n title

d to

p lO

S cllb

e [a

b o

rtio n

] in a

ll in sta

n ce

s" Id . R

a th

e i, to

a llo

w a

total plohlbltion on abolhon w ould be to pelm

lt a state to im

pose one conception of the m eaning and

value of hum an existence on all individuals T

his the C

onstitution fol bids. T

he S olicitor G

enelal nevertheless argues that the right to aboltlon could be supported on grounds o

th e

l th a

n th

is a u

to n

o m

y p lin

cip le

, g ro

u n

d s th

a t

w ould not apply hele. H

e argues, fol exam ple, that

the aboihon nght m ight flow

flom the great burden

an unw anted child im

poses on its m other's life. B

llef fol the U

nited S tates at 14-15. B

ut w hethel or not

aboltion rights could be defended on such grounds, they w

ele not the glounds on w hich this C

ourt in fact relied. T

o the contIaiy, the C ourt explained at

length that the right flow s flom

the constitutional protection accolded all indw

lduals to "define one's ow

n concept of existence, of m eaning, of the unl-

veise, and of the m ystery of hum

an life" C asev, 5o5

U .S

. at 851.

The analysis in C asey com

pels the conclusion that the patient-plaintiffs have a hbeity interest in this case that a state cannot bm

den w ith a blanket pro-

hibition. Lake a w om

an's decision w hethei to have

an aboitaon, a decision to die involves one's veIy "destiny" and inevitably w

ill be "shaped to a large extent on (one's] ow

n conception of [one's] spnitual im

pelatlves and [one's] place in society" ld at 852. Just as a blanket plohibltlon on aboitlon w

ould in- volve the im

proper im position of one conception of

the m eaning and value of hum

an existence on all individuals, so too w

ould a blanket piohlbitlon on assisted suicide. T

he liberty lntelest asseited here

cannot be rejected w ithout underm

ining the ration- ale of C

asey. Indeed, the low er court opinions in the

W ashington case expressly recognized the parallel

betw een the liberty Interest in C

asey and the Interest asserted heIe. S

ee C om

passion m D

ying v W ashm

g- ton, 79 E

3d 79o, 8o1 (9th C ir. 1996) (en banc) ("In

deciding right-to-die cases, w e are guided by the

C ourt's approach to the abortion cases C

asey in particular provides a pow

erful precedent, for in that case the C

ourt had the opportunity to evaluate its past decisions and to determ

ine w hether to adhere

to its original judgm ent"), aff'g. 850 E

S upp 1454,

1459 (W . D

. W ash. 1994) ("[T]he reasoning in C

asey [is] highly instructive and alm

ost prescriptive . ."). T

his C ourt should do the sam

e.

B . C

ruzan S upports the Liberty Interest A

sserted H ere

W e agree w

ith the S ohcltor G

eneral that this C ourt's

decision in "C ruzan... supports the conclusion that

a liberty interest is at stake in this case" B rief for the

U nited S

tates at 8 P etitioners, how

ever, insist that the present cases can be distinguished because the right at issue in C

ruzan w as lim

ited to a right to re- ject an unw

anted invasion of one's body? B ut this

C ourt repeatedly has held that in appropriate cir-

cum stances a state m

ay require individuals to accept unw

anted invasions of the body. S ee, e g., S

chm erber

v. C alifornia, 384 U

S 757 (1966) (extraction of blood sam

ple from individual suspected of driving w

hile intoxicated, notw

ithstanding defendant's objection, does not violate privilege against self-incrim

ination or other constitutional rights), Jacobson v. M

assa- chusetts, 197 U

.S. 11(19o5) (upholding com pulsory

vaccination for sm allpox as reasonable regulation

for protection of public health). The liberty interest at stake in C

ruzan w as a m

ore profound one. If a com

petent patient has a consti- tu

tio n

a l rig

h t to

re fu

se h

fe -su

sta ln

in g

tre a

tm e

n t,

then, the C ourt im

phed, the state could not over- nde that right The regulations upheld in C

ruzan w

ere designed only to ensure that the individual's w

ishes w ere ascertm

ned correctly. T hus, if C

ruzan im

plies a right of com petent patients to refuse life-

sustaining treatm ent, that im

plication m ust be un-

derstood as resting not sim ply on a right to refuse

bodily invasions but on the m ore profound right to

refuse m edical intervention w

hen w hat is at stake is

a m om

entous peIsonal decision, such as the tim ing

a n

d m

a n

n e

i o f o

n e

's d e

a th

. In h

e r co

n cu

rle n

ce , Ju

s-

tice O 'C

onnor expressly lecognlzed that the nght at issue involved a "deeply personal decision" that is "In

e xtrica

b ly in

te itw

ln e

d " w

ith o

u i n

o tio

n o

f "se lf-

determ ination:' 497 U

.S at 287-89.

C ruzan also supports the proposition that a state

m ay not burden a teim

inally ill patient's liberty in- terest in determ

ining the tim e and m

anner of his death by prohibiting doctors from

term inating life

support. S eeking to distinguish C

t uzan, P etitioners

insist that a state m ay nevertheless burden that right

in a different w ay by forbidding doctors to assist in

the suicide of patients w ho are not on life-support

m achinery. T

hey argue that doctors w ho rem

ove life support are only allow

ing a natural piocess to end in death w

hereas doctois w ho prescribe lethal dl ugs

are intervening to cause death. S o, according to this

argum ent, a state has an Independent justification

for forbidding doctoIs to assist in suicide that It does not have for forbidding them

to rem ove life suppoit.

In the form er case though not the latter, it is said, the

state forbids an act of lralllng that is m orally m

uch m

ore problem atic than m

erely letting a patient die. T

h is a

rg u

m e

n t is b

a se

d o

n a

m isu

n d

e rsta

n d

- ing of the pertinent m

oral principles. It is cm talnly

true that w hen a patient does not w

ish to die, dif- ferent acts, each of w

hich foreseeably results in his death, nevertheless have very different m

oral status. W

hen several patients need organ transplants and organs are scarce, for exam

ple, it is m orally perm

is- sible for a doctor to deny an organ to one patient, even though he w

ill die w ithout it, in order to give

it to another. B ut it is certainly not perm

issible for a doctor to kill one patient in order to use his organs to save another. T

he m orally significant difference

betw een those tw

o acts is not, how ever, that kill-

ing is a positive act and not providing an organ is a m

ere om ission, or that killing som

eone is w orse

than m erely allow

ing a "natural" piocess to result in

d e

a th

. It w o

u ld

b e

e q

u a

lly im p

e rm

issib le

fo r a

doctor to let an injured patient bleed to death, or to refuse antibiotics to a patient w

ith pneum onia--in

each case the doctor w ould have allow

ed death to re- sult from

a "natuIal" process--an oIder to m ake his

organs available for tlansplant to others A doctor

violates his patient's rights w hether the doctor acts

or leflalns flora acting, against the patiei{t's W ishes,

In a w ay that is designed to cause death

W hen a com

petent patient does w ant to die, the

m oIal situation is obviously different, because then it

m akes no sense to appeal to the patient's right not to

be killed as a reason w hy an act designed to cause his

death is lm penm

ssible. F lom

the patient's point of view

, there is no m oi ally pertinent difference betw

een a doctor's term

inating treatm ent that keeps him

alive, if that is w

hat he w ishes, and a doctor's helping him

to end his ow

n life by pIovldIng lethal pills he m ay take

him self, w

hen ready, if that is w hat he w

ishes--ex- cept that the lattel m

aybe quicker and m ore hum

ane N

or is that a pertinent diffeience fiom the doctor's

point of view . If and w

hen it is perm issible fol him

to act w ith death in view

, it does not m attel w

hich of those tw

o m eans he and his patient choose If it

is perm issible foi a doctol deliberately to w

ithdraw m

edical tieatm ent in older to allow

death to result fi'om

a natural process, then it is equally perm issible

for him to help his patient hasten his ow

n death m ore

actively, if that is the patient's express w ish

It is true that som e do ctols asked to tei m

lnate life suppoit are reluctant and do so only in deference to a patient's right to com

pel them to rem

ove unw anted

invasions of his body B ut other doctols, w

ho believe that their m

ost fundam ental piofessional duty is to

act in the patient's inteiests and that, in certain C lI-

cum stances, it is in then patient's best interests to

die, participate w llhngly in such decisions, they ter-

m inate hfe support to cause death because they kalO

W that IS

w hat then patient w

ants. C t uzan llnphed that

a state m ay not absolutely piohiblt a doctor fiom

de- hberately causing death, at the patient's reqnest, in that w

ay and for that ÿeason. If so, then a state m ay

not piohiblt doctois fi'om dehbeiately using m

oIe diIect and often m

ole hum ane m

eans to the sam e

end w hen that is w

hat a patient piefers T he fact that

falhng to plovide life-sustaining treatm ent m

ay be regaided as "only letting natuie take its course" is no m

ore m orally significant in this context, w

hen the patient w

ishes to die, than In the other, w hen he

w ashes to live W

hether a doctor turns offa Iespnator in accordance w

ith the patient's request or prescribes pills that a patient m

ay take w hen he is ready to kill

him self, the doctor acts w

ith the sam e intention" to

help the patient die.

T h

e tw

o s

itu a

tio n

s d

o d

ire r ln

--o -n

-ff-irllp o

ttk tn

t

respect. S ince patients have a light not to have life-

support m achinery attached to their bodies, they

have, in piinciple, a ilght to com pel its ieInoval B

ut that is not true in the case of assisted suicide pa- tients in certain cncum

stances have a right that the state not foibid doctors to assist in their deaths, but they have no right to com

pel a doctor to assist them T

he right in question, that is, IS only a right to the

help of a w illing doctor

III S tate Interests D

o N ot Justify

a C

a te

g o m

ca l P

ro h lb

m o n o

n A

ll A

ssiste d S

u icid

e T

he S ohcltoi G

eneral concedes that "a com petent,

teim lnally 111 adult has a constitutionally cogniza-

ble liberty lntelest in avoiding the kind of suffeling experienced by the plaintiffs in this case." B

ilef fol the U

nited S tates at 8. H

e agrees that this interest ex- tends not only to avoiding pain, but to avoiding an existence the patient believes to be one of intolei able indignity or incapacity as w

ell. Id at 12 T he S

olici- toi G

eneral aigues, how ever, that states nevertheless

have the right to "oveltide" this liberty interest al- togethei, because a state could reasonably conclude that allow

ing doctors to assist in sm cide, even un-

der the m ost stringent regulations and procedures

that could be devised, w ould unreasonably endangei

the lives of a num ber of patients w

ho m ight ask fol

death in ciicuinstances w hen it is plainly not in then

inteiests to die or w hen their consent has been iIn-

propeily obtained. T

his argum ent is unpelsuasive, how

ever, for at least thiee reasons. F11st, m

C ruzan, this C

ouit noted that its various decisions supported the recognition of a genelal libei ty intei est in refusing m

edical ti eat- m

ent, even w hen such refusal could result in death.

497 U .S

at z78-79. The various I lsks described by the S

olicitoi G eneIal apply equally to those situations.

F or instance, a patient kept alive only by an elabo-

rate and dlsabhng hfe-support system m

ight w ell

becom e deplessed, and doctors m

ight be equally uncertain w

hether the depression is curable, such a patient m

ight decide for death only because he has been advised that he w

ill die soon anyw ay or that

he w ill never live free of the burdensom

e apparatus, a n d e

lth e i d

ia g n o sis m

ig h t co

n ce

iva b ly b

e ln

lS -

taken R elatives or doctols m

ight subtly or crudely influence that decision, and state provision foi the decision m

ay (to the sam e degree in this case as if it

allow ed assisted suicide) be thought to encourage it

Y et there has been no suggestion that states are

incapable of addlessm g such dangers through reg-

u la

tio n . In

fa ct, q

u ite

th e o

p p o site

is tIu e In

M c-

K ay v B

etgstedt, lO 6 N

ev 808, 8O l P

2d 617 (199o), for exam

ple, the N evada S

uprem e C

ourt held that "com

petent adult patients desiring to refuse or dis- continue m

edical treatm ent" m

ust be exam ined by

tw o nonattendIng physicians to determ

ine w hether

the patient as m entally com

petent, understands his prognosis and treatm

ent options, and appeals free of coercion or pressure in lnakang his decision Id at 827-28, 8O

l P zd at 630 S

ee also. ld. (in the case of term

inally 111 patients w ith natural life expectancy of

less than six m onths, [a] patient's right of self-deter-

m m

ation shall be deem ed to plevai1 ovel state inter-

ests, w hereas [a] non-term

inal patient's decision to term

inate hfe-suppol t system s m

ust first be w eighed

against relevant state interests by trial judge), [and] In le FaJ t'ell, lo8 N

J. 335, 354, 529 A.zd 404, 413 (1987) ([w

hich held that a] term inally-ill patient request-

m g term

ination ofhfe-support m ust be determ

ined to be com

petent and properly inform ed about [hls]

prognosis, available treatm ent options and risks, and

to have m ade decision voluntarily and w

ithout coer- cion). T

hose protocols served to guard against pre- cisely the dangeis that the S

olicitor G eneral raises.

The case law contains no suggestion that such proto-

cols are inevitably insufficient to prevent deaths that should have been prevented.

Indeed, the risks of m istake are oveiall greater an

the case of term inating life suppm

t. C ruzan im

plied that a state m

ust allow individuals to m

ake such de- cisions through an advance directive stipulating ei- ther that hfe suppolt be term

inated (or not initiated) in desciibed circum

stances w hen the individual w

as no longel com

petent to m ake such a decism

n him -

self, or that a designated proxy be allow ed to m

ake that decision A

ll the risks just described are present w

hen the decision is m ade thlough or pm

suant to such an advance directive, and a grave further risk is a

d d

e d

, th a

t th e

d ire

ctive , th

o u

g h

still in fo

rce ,

no longer leplesents the w ishes of the patient T

he patient m

ight have changed his m ind before he be-

cam e incom

petent, though he did not change the dnective, ot his ploxy m

ay m ake a decision that the

patient w ould not have m

ade him self if still com

pe- tent. In C

ÿ uzan, this C ourt held that a state m

ay lim it

these risks through reasonable iegulatlon It did not hold--ol even suggest--that a state m

ay avoid them through a blanket prohibition that, m

effect, denies the liberty inteiest altogethei.

S econd, nothing In the record suppoits the [S

o- licitor G

eneral's] conclusion that no system of rules

and legulations could adequately reduce the nsk of m

istake. A s discussed above, the expellence of states

in adjudicating requests to have hfe-sustaim ng treat-

m ent xem

oved indicates the opposite 2he S ohcItor

G eneral has provided no pelsuasive reason w

hy the sam

e sort of procedures could not be applied effec- tively in the case of a com

petent individual's lequest for physician-assisted suicide

Indeed, several very detailed schem es foi regulat-

ing physician-assisted suicide have been subm itted to

the voters of som e states and one has been enacted.

In addition, concerned groups, including a group of distinguished plofessors of law

and othel plofes- slonals, have drafted and defended such schem

es. S

ee, e.g , C harles H

B alon, et. al, A

M odel S

tate A ct

to A uthorize and R

egulate P hysician-A

ssisted S ui-

cide, 33 H arv. ] Legis. 1 (1996) S

uch draft statutes propose a variety of protections and review

proce- dules designed to insure against m

istakes, and nei- ther W

ashington nor N ew

Y ork attem

pted to show that such schem

es w ould be porous ol ineffective

N or does the S

olicitor G eneral's brief: it relies in-

stead m ainly on flat and conclusory statem

ents. It cites a N

ew Y

ork T ask F

orce leport, w ritten before

the proposals just desciibed w ere drafted, w

hose findings have been w

idely disputed and w ere lm

- phcltly rejected In the opinion of the S

econd C u-

cult below S

ee generally Q uill v V

acco, 8o E 3d 716

(zd C ir 1996) T

he w eakness of the S

ohcltol G en-

eral's aigum ent is signaled by his stiong reliance

on the expeuence in the N etherlands w

hich, in ef- fect, allow

s assisted sm cide pursuant to published

guIdehnes B rief for the U

nited S tates at 23-24 T

he D

u tch

g u

id e

lin e

s a re

m o

re p

e im

lssive th

a n

th e

proposed and m odel A

m ellcan statutes, how

ever. T

he S olicitor G

eneral deem s the D

utch practice of ending the lives of people like neonates w

ho cannot

consent particularly notew oithy, foi exam

ple, but that plactice could easily and effectively be m

ade illegal by any state iegulatoly schem

e w ithout vio-

lating the C onstitution

T he S

olicitor G eneral's aIgum

ent w ould pelhaps

have m ore force if the question before the C

ourt w

ele sim ply w

hether a state has any latlonal basis foi an absolute prohibition; If that w

ere the ques- tio

n , th

e n it m

ig h t b

e e

n o u g h to

ca ll a

tte n tio

n to

risks a sta

te m

ig h t w

e ll d

e e m

n o t w

o rth

ru n n in

g B

ut as the S olicitor G

eneral concedes, the ques- tio

n h

e le

is a ve

ry d iffe

re n t o

n e . w

h e th

e r a

sta te

has interests sufficiently com pelling to allow

it to take the extlaordlnary step of altogether refusing the exercise of a hbeIty interest of constitutional dim

ension In those circum stances, the burden is

plainly on the state to dem onstrate that the H

sk of m

ista ke

s is ve ry h

ig h , a

n d th

a t n

o a

lte rn

a tive

to com

plete piohlbm on w

ould adequately and effec- tively reduce those risks. N

either of the P etitioners

has m ade such a show

ing N

or could they. T he burden of proof on any state

attem pting to show

this w ould be very high. C

on- sider, for exam

ple, the burden a state w ould have to

m eet to show

that it w as entitled altogether to ban

public speeches in favol of unpopular causes be- cause it could not guarantee, either by regulations sholt of an outright ban oI by increased police pro- tection, that such speeches w

ould not provoke alIO t

that w ould result in serious Injury or death to an in-

nocent party O r that xt w

as entitled to deny those accused of clim

e the procedural rights that the C on-

stItutIon guarantees, such as the right to a jury trial, because the security risk those rights w

ould im pose

on the com m

tlnity w ould be too great. O

ne can posit e xtre

m e circu

m sta

n ce

s in w

h ich

so m

e su

ch a

ÿg u -

m e n t w

o u ld

su cce

e d S

e e , e

.g ., K

o re

m a tsu

v. U n tie

d

S tates, 323 U

S ., 214 (1944) (perm

itting U nited S

tates to detain individuals of Japanese ancestry during w

artim e). B

ut these cucum stances w

ould be ex- tIem

e indeed, and the K orem

atsu iuhng has been w

idely and severely criticized. T

hird, it is doubtful w hether the risks the S

ohcltoI G

eneral cites are even of the right character to serve as justification fox an absolute prohibition on the exercise of an im

portant hbelty interest. T he risks

fall into tw o groups T

he first is the risk of m edical

m istake, including a m

isdlagnosIs of com petence or

term inal illness. T

o be suIe, no schem e of regula-

tio n , n

o m

a tte

1 h

o w

rig o l o

u s, ca

n a

lto g e th

e r g

u a I a

n -

tee that m edica! m

istakes w ill not be m

ade B ut the

C onstitution does not allow

a state to deny patients a great vailety of lm

poltant choices, for w hich in-

form ed consent is propeily deem

ed necessary, just because the inform

ation on w hich the consent is

given m ay, in spite of the m

ost strenuous efforts to avoid m

istake, be w rong A

gain, these identical risks are present in decisions to term

inate life suppolt, yet they do not justify an absolute prohibition on the ex- ei clse of the right

T he second gioup consists of iisks that a patient

w ill b

e u

n d u ly in

flu e n ce

d b

y co n sid

e ra

tio n s th

a t

the state m ight deem

it not in his best lnteiests to be sw

ayed by, for exam ple, the feelings and view

s of close fam

ily m em

bers. B rief for the U

nited S tates at

2o B ut w

hat a patient regaids as pioper grounds foi such a decision norm

ally reflects exactly the judg- m

ents of personal ethics--of w hy his life is im

poi- tant and w

hat affects its value--that patients have a ciucial hberty interest in deciding for them

selves E

ven people w ho ale dying have a right to hear and,

if they w ish, act on w

hat others m ight w

ash to tell o l su

g g e st o

r e ve

n h

in t to

th e m

, a n d it w

o u ld

b e

dangerous to suppose that a state m ay prevent this

on the glound that it know s better than its citizens

w hen they should be m

oved by or yleld to partlculal advice or suggestion in the exercise of their right to m

ake fateful personal decisions for them selves It is

not a good reply that som e people m

ay not decide as they really w

ish--as they w ould decide, for exam

ple, if free from

the "pressule" of others T hat possibil-

ity could hardly justify the m ost serious piessuie of

all--the ci im m

al law w

hich tells them that they m

ay not decide for death if they need the help of a doctor in dying, no m

atte1 how fiim

ly they w ish it.

T h e re

is a fu

n d a m

e n ta

l in firm

ity in th

e S

o lici-

tor G eneral's algum

ent H e asserts that a state m

ay reasonably judge that the risk of "m

istake" to som e

persons justifies a prohibition that not only risks but insures and even alm

s at w hat w

ould undoubtedly be a vastly greater num

ber of "m istakes" of the op-

posite kind--preventing m any thousands of com

pe- tent people w

ho think that it disfiguIes their lives to continue living, in the only w

ay left to them , fiO

ln

668 P A

R T

3, LIF [: A

N D

D E

A [ |--I

e s c a

p in

g th

a t--to

th e

m --te

rn b

le in

ju ly

A s

ta te

guevously and lrieverslbly harm s such people w

hen It plohlbits that escape 3he S

ollcltol G eneral's argu-

m ent m

ay seem plausible to those w

ho do not agree that individuals aie harm

ed bybelng forced to live on In pain and w

hat they legard as indignity B ut m

any other people plainly do think that such individuals ale halm

ed, and a state m ay not take one side in that

essentially ethical or religious controveisy as its jus- tification for denying a crucial liberty.

O f course, a state has im

portant interests that justify iegulatlng physician-assisted suicide. It m

ay be legitim

ate for a state to deny an opportunity fol assisted suicide w

hen it acts in w hat it leasonably

judges to be the best interests of the potential sui- cide, and w

hen ItS judgm

ent on that issue does not iest on contested N

dgm ents about "m

atters involv- ing the m

ost intim ate and personal choices a person

m ay m

ake in a lifetim e, choices cential to pelsonal

dignity and autonom y" C

ase),, 5o5 U S

at 851. A state

m ight assert, foi exam

ple, that people w ho are not

telm inally ill, but w

ho have form ed a desire to die,

are, as a group, very likely later to be grateful if they are prevented from

taM ng their ow

n lives. It m ight

th e

n cla

im th

a t it is le

g itim

a te

, o u

t o f co

n ce

in fo

r such people, to deny any of them

a doctor's assis- tance [in taking their ow

n lives]. T

his C ourt need not decide now

the extent to w

hich such paternahstlc interests m ight override

an individual's liberty interest N o one can plausibly

claim , how

ever--and it is notew orthy that neither

P etm

oners nor the S olicitor G

eneral does claim --

that any such prohibition could serve the interests of any significant num

ber of term inally ill patients

O n the contrary, any paternalistic justification for an

absolute prohibition of assistance to such patients w

ould of necessity appeal to a w idely contested reh-

glous or ethical conviction m any of them

, including the patient-plaintiffs, reject A

llow ing that justifica-

tion to prevail w ould vitiate the liberty interest

E ven in the case of term

inally Ill patients, a state has a right to take all reasonable m

easutes to insure that a patient lequestlng such assistance has m

ade an inform

ed, com petent, stable and uncoerced de-

cisio n

It is p la

in ly le

g itim

a te

fo r a

sta te

to e

sta b

- h

sh p

io ce

d u

re s th

ro u

g h

w h

ich p

ro fe

ssio n

a l a

n d

adm lnisttative judgm

ents can be m ade about these

m atters, and to forbid doctols to assist in suicide

w hen its ieasonable pioceduies have not been sat-

isfied. S tates m

ay be peiinitted considetable leew ay

in designing such proceduies T hey m

ay be peim lt-

ted, w ithin reason, to err on w

hat they take to be the side of caution. B

ut they m ay not use the bare

p o ssib

lh ty o

f e iio

r a s ju

stifica tio

n fo

i re fu

sin g to

establish any proceduies at all and relying instead on a flat prohibition

C o

n clu

sio n

E ach individual has a light to m

ake the "m ost inti-

m ate and pelsonal choices centi al to personal dignity

and autonom y:' T

hat right encom passes the right to

exercise som e control over the tim

e and m anner of

one's death 2he patient-plaintiffs in these cases w

ere all m en-

tally com petent individuals in the final phase of ter-

m inal illness and died w

ithin m onths of filing then

claim s

lane D oe described how

her advanced cancer m

ade even the m ost basic bodily functions such as

sw allow

ing, coughing, and yaw ning extrem

ely pain- ful and that it w

as "not possible for [her] to reduce [her] pain to an acceptable level of com

foI t and to retain an alert state" Faced w

ith such circum stances,

she sought to be able to "discuss fieely w ith [her]

treating physician [her] intention of hastening [her] death through the consum

ption of drugs prescnbed for that puipose" Q

m ll v V

acco, 80 E 2d 716, 720 (ad

C ir. 1996) (quoting declaration of Jane D

oe) G

eorge A . K

ingsley, in advanced stages of A ID

S w

hich Included, am ong other hardships, the attach-

m ent of a tube to an altery an his chest w

hich m ade

even routine functions burdensom e and the devel-

opm ent of lesions on his brain, sought advice from

his doctors iegardlng prescriptions w hich could has-

ten his im pending death. !d.

lane R oe, suffering from

cancei since 1988, had been alm

ost com pletely bedridden since 1993 and

expm lenced constant pare w

hich could not be alle- vm

ted by m edication. A

fter undergoing counseling for herself and her fam

ily, she desired to hasten hei death by taking prescllptlon drugs. C

om passion m

D yingv. W

ashington, 85o F S upp. 1454, 1456 (1994).

John D oe, w

ho had experienced num erous A

ID S

- related ailm

ents since 1991, w as "especially cognizant

o f th

e su

ffe iin

g im

p o

se d

b y a

lin g

e rin

g te

rm in

a l

illness because he w as the prim

ary caregw er for

his long-term com

panion w ho died of A

ID S

" and sought piescrlption drugs fi-om

his physician to has- ten his ow

n death after entering the term inal phase

of A ID

S Id at 1456-57

Ja m

e s P

o e su

ffe ie

d fro

m e

m p h yse

m a w

h ich

caused him "a constant sensation of suffocating" as

w ell as a cardiac condition w

hich caused severe leg pain. C

onnected to an oxygen tank at all tim es but

unable to calm the panic reaction associated w

ith his feeling of suffocation even w

ith regular doses of m

orphine, M r. P

oe sought physician-assisted sui- cide. Id. at 1457.

A state m

ay not deny the liberty claim ed by the

patient-plaintiffs in these cases w ithout providing

them an opportunity to dem

onstrate, in w hatever

w ay the state m

ight reasonably think w ise and neces-

sary, that the conviction they expressed for an early death is com

petent, rational, inform ed, stable, and

uncoerced Affirm

ing the decisions by the C ourts of Appeals

w ould establish nothing m

ore than that there is such a co

n stitu

tio n a lly p

ro te

cte d rig

h t in

p rin

cip le

. It w

ould establish only that som e individuals, w

hose decisions for suicide plainly cannot be dism

issed as

irrational or foolish or piem ature, m

ust be accorded a reasonable oppoi tunity to show

that their decision for death is inform

ed and free. It is not necessary to decide precisely w

hich patients are entitled to that o

p p

o rtu

n ity. If, o

n th

e o

th e

r h a

n d

, th is C

o u

rt re -

verses the decisions below , its decision could only be

justified by the m om

entous proposltion--a propo- sitio

n fla

tly In co

n flict w

ith th

e sp

irit a n d le

tte r o

f the C

ourt's past decisions--that an A m

erican citizen does not, after all, have the right, even in principle, to live and die in the light of his ow

n religious and ethical beliefs, his ow

n convictions about w hy his life

is valuable and w here its value lies.

N O

T E

S z In

th a

t ca se

, th e

p a

re n

ts o f N

a n

cy C ru

za n

, a w

o m

a n

w h

o

w as in a persistent vegetative state follow

m g an autom

obde a ccM

e n t, a

ske d th

e M

isso u ri co

u rts to

a u th

o rize

d o cto

rs to

end hfe support and therefore he1 life The S uprem

e C ourt

held that M issouri w

as entitled to dem and exphclt evM

ence that M

s C ruzan had m

ade a declsm n that she w

ould not w

ish to be kept ahve in those circum stances, and to reject the

evM ence the fam

ily had offered as inadequate B ut a m

ajority o

fju stm

e s a

ssu m

e d

, fo r th

e sa

ke o

f th e

a rg

u m

e n

t, th a

t a co

m -

petent patient has a right to reject hfe-preservm g treatm

ent, and it is now

w M

ely assum ed that the C

ourt w ould so rule m

an appropriate case

V acco v. Q

uill UNITED STATES SUPREM

E CO URT

A t Issue m

thÿs case ,s w hether a ban on ass,sted suicide enacted ,n N

ew Y

ork state

,s consutut,onal--specÿfically w hether the proN

bm on violates the E

qual P rotecuon

C lause of the Fourteenth A

m endm

ent. The C ourt finds that tt does not, that m

fact there Is no const,tuuonal right to a physm

,an's help ,n dying B ut each state m

ay estab-

hsh ÿts ow n pohcy on the ÿssue

In N ew

Y ork, as in m

ost S tates, it is a crim

e to aid anothm

to com m

it or attem pt suicide, but patients

m ay refuse even lifesaving m

edical treatm ent. T

he question presented by this case is w

hether N ew

Y ork's prohibition on assisting suicide therefore vio-

Um ted States Suprem

e Court 521 U.S 793 (1997)

lates the E qual P

rotection C lause of the F

ourteenth A

m endm

ent. W e hold that it does not

P etitioners are various N

ew Y

olk public officials R

espondents T im

othy E Q

uill, S am

uel C . K

lags- brun, and H

ow ard A

. G rossm

an are physicians w ho

practice in N ew

Y ork. T

hey assert that although it w

ould be "consistent w ith the standards of [their]

m edical practice[s]" to prescribe lethal m

edication

for "m entally com

petent, term inally ill patients" w

ho are suffering great pare and desite a doctor's help in taM

ng their ow n lives, they ale deteiled fiom

doing so by N

ew Y

olk's ban on assisting suicide. R espon-

dents, and thlee gravely ill patients w ho have since

died, sued the S tate's A

ttorney G eneral in the U

nited S

tates D istiict C

ourt. T hey urged that because N

ew Y

o lk p

e lm

lts a co

m p

e te

n t p

e rso

n to

le fu

se life

- sustaining m

edical treatm ent, and because the re-

fusal of such treatm ent is "essentially the sam

e thing" as physician-assisted suicide, N

ew Y

oik's assisted- suicide ban violates the E

qual P rotection C

lause. T

he D isttact C

ourt & sagIeed. "[I]t is hardly un-

reasonable or lrlatlonal for the S tate to tecognlze a

dlffelence betw een allow

ing nature to take it course, e ve

n in

th e m

o st se

ve re

situ a tio

n s, a

n d in

te n tio

n -

ally using an artificial death-producing device" T he

court noted N ew

Y ork's "obvious legltnnate interests

in pteservlng life, and in protecting vulnerable per- sons;' and concluded that "[u] nder the U

nited S tates

C onstitution and the federal system

it establishes, the resolution of this ÿssue is left to the norm

al dem -

ocratic processes w ithin the S

tate" T

he C ourt of A

ppeals for the S econd C

ircuit re

ve ise

d T

h e co

u it d

e te

rm in

e d th

a t, d

e sp

ite th

e assisted-suicide ban's apparent general apphcability, "N

ew Y

ork law does not tieat equally all com

petent persons w

ho are in the final stages of fatal illness and w

ish to hasten their deaths;' because "those in the fi- nal stages of teim

lnal illness w ho aIe on hfe-support

system s are allow

ed to hasten their deaths by & rect-

ing the rem oval of such system

s, but those sam ilaIly

situated except for the previous attachm ent of life-

sustam m

g equipm ent, are not allow

ed to hasten death by self-adm

inistering presci ibed drugs,' In the court's view

, "[t]he ending of hfe by [the w ithdraw

al ofhfe-support system

s] is nothm g m

ote not less than assisted suicide" (em

phasis added) The C ourt of

A ppeals then exam

ined w hether this supposed un-

equal treatm ent w

as iatm nally related to any legiti-

m ate state inteiest, and concluded that "to the extent

that [N ew

York's statutes] pxohibit a physm ian from

prescribing m edications to be self-adm

inistered by a m

entally com petent, term

inally-ill person in the final stages of his tm

m m

al illness, they are not ra- tionally related to any legitim

ate state lnteiest" W e

granted celtiorari and now reverse.

T he E

qual P iotectm

n C lause com

m ands that no

S tate shall "deW

to aW peison w

ithin its jU ilsdic-

tion the equal protection of the law s,' 2his plovislon

creates no substantive rights Instead, it em bodies

a general rule that S tates m

ust treat hke cases ahke but m

ay treat unhke cases accordingly. If a legisla- tive classification O

l distraction "nelthei buidens a fundam

ental right nor taigets a suspect class, w e w

ill uphold [it] so long as It bears a rational ielatm

n to som

e legitim ate end"

N ew

Y ork's statutes outlaw

ing assisting suicide affect and address m

atteIs of pIofound slgm ficance

to all N ew

Y oikeis alike T

hey neither infIm ge fund-

m ental rights nor involve suspect classifications.

T hese law

s are therefore entitled to a "stiong pre- sum

ption of vahdlty" O

n their faces, neither N ew

Y ork's ban on assist-

ln g

su icid

e n

o r its sta

tu te

s p e

im ittln

g p

a tie

n ts to

re fu

se m

e d ica

l tie a tm

e n t tre

a t a

w o n e d

iffe re

n tly

than anyone else or draw any distinctions betw

een persons. E

veryone, iegardless of physical condition, is entitled, if com

petent, to refuse unw anted hfesav-

ing m edical tieatm

ent; no one is perm itted to assist

a suicide. G enerally speaking, law

s that apply even- handedly to all "unquestionably com

ply" w ith the

E qual P

rotectm n C

lause. T

he C ourt of A

ppeals, how ever, concluded that

som e term

inally ill people--those w ho are on hfe-

support system s--aie treated dlffeiently than those

w ho are not, m

that the form er m

ay "hasten death" by ending treatm

ent, but the latteI m ay not "hasten

death" through physician-assisted suicide T his con-

clusion depends on the subm ission that ending or re-

fusing lifesaving m edical treatm

ent "is nothing m ore

noi less than assisted suicide:' U nlike the C

ourt of A

ppeals, w e think the distinction betw

een assisting suicide and w

ithdraw ing hfe-sustalnang ti eatm

ent, a distinction w

idely recognized and endorsed in the m

e d

ica l p

ro fe

ssio n

a n

d in

o u

r le g

a l tra

d itio

n s, is

both Im portant and logical' it IS

ceitalnly rational ("W

hen the basic classificatm n is latlonally based,

uneven effects upon paI tlcular groups w ithin a class

are ordlnanly of no constitutional concern") T

he distinction com ports w

ith fundam ental le-

gal pIinciples of causation and intent. F irst, w

hen a patient refuses life-sustaining m

edical tieatm ent, he

dies from an underlying fatal disease or pathology,

but If a patient ingests lethal m edicatm

n prescribed by a physm

lan, he is killed by that m e&

cation. F

urtherm oie, a physician w

ho w ithdiaw

s, or hon- ors a patient's refusal to begin, hfe-sustam

Ing m edi-

cal treatm ent purposefully intends, or m

ay so Intend, only to respect his patient's w

ishes and "to cease dom

g useless and futile oi degrading things to the patm

nt w hen [the patient] no longer stands to bene-

fit from them

" A ssisted S

uicide in the U nited S

tates, H

earing before the S ubcom

m ittee on the C

onstitu- tion of the H

ouse C om

m ittee on the Ju&

ciary, lo4th C

ong, zd S ess, 368 (1996) (testim

ony of D r. Leon

R . K

ass), T he sam

e is true w hen a doctor provides

aggressive palliative care; in som e cases, painkllllng

drugs m ay hasten a patient's death, but the physician's

purpose and intent is, or m ay be, only to ease his pa-

tient's pain. A doctor w

ho assists a suicide, how ever,

"m ust, necessarily and indubitably, intend prim

arily that the patient be m

ade dead?' ld., at 367. S im

ilarly, a patient w

ho com m

its suicide w ith a doctor's aid nec-

essarily has the specific intent to end hls or her ow n

hfe, w hile a patient w

ho refuses or discontinues treat- m

ent m ight not.

T he law

has long used actors' intent or purpose to &

stingulsh betw een tw

o acts that m ay have the

sam e result. P

ut dxffetently, the lard distinguishes ac- tions taken "because of" a given end from

actm ns

taken "in spite of" their um htended but foreseen

consequences. ("W hen G

eneial E lsenhow

er ordered A

m erican soldiers onto the beaches of N

orm andy,

he knew that he w

as sending m any A

m erican sol-

diers to certain death... H is purpose, though, w

as to... liberate E

urope from the N

azis") G

iven these general principles, it is not surprising that m

any courts, Including N ew

Y ork courts, have

cal efully distinguished refusing hfe -sustaining tre at- m

ent from S

m clde. In fact, the first state court de-

cision explicitly to authoI ÿze w ith&

aw ing hfesavm

g treatm

ent noted the "real & stinctlon betw

een the self-infliction of deadly harm

and a self-determ ination

against artificial life support" S

im ila

rly, th e o

ve rw

h e h m

n g m

a jo

rity o f sta

te legislatures have draw

n a cleai hne betw een as-

sisting suicide and w ithdraw

ing or perm itting the

refusal of unw anted hfesaw

ng m edical treatm

ent b

y p ro

h ib

itin g

th e

fo rm

e r a

n d

p e

rm ittin

g th

e la

t- ter A

nd "nearly all states expressly disapprove of

suicide and assisted suicide rather m statutes deal-

ing w ith durable pow

ers of attm ney in health-care

situations, or in 'living w ill' statutes?' T

hus, even as the S

tates m ove to piotect and prom

ote patients' dignity at the end of hfe, they lem

aIn opposed to physician-assisted suicide

N ew

Y oIk is a case in point. T

he S tate enacted

ItS current assisted-suicide statutes m

1965 ÿ S ince

then, N ew

Y ork has acted several hines to piotect

patients com m

on-law right to refuse treatm

ent. In so doing, how

ever, the S tate has neIthei endorsed

a g

e n e ra

l rig h t to

"h a ste

n d

e a th

" n o t a

p p lo

ve d

physician-assisted suicide Q uite the opposite. ÿhe

S tate has reaffirm

ed the line betw een "kilhng" and

"le ttin

g d

ie ? ' M

o re

re ce

n tly th

e N

e w

Y o rk S

ta te

T ask F

orce on Life and the Law studied assisted

suicide and euthanasm and, in 1994, unanim

ously re

co m

m e n d e d a

g a in

st le g a liza

tio n W

h e n D

e a th

is S ought' A

ssisted S uicide and E

uthanasia m the

M edical C

ontext vii (1994). In the T ask F

orce's view "allow

ing decisions to forego hfe-sustam ing treat-

m ent and allow

ing assisted suicide or euthanasia have radically diffm

ent consequences and m ean-

ings for public policy?' Id., at 146 T

his C ourt has also recogm

zed, at least im phc-

lily, th e &

stin ctlo

n b

e tw

e e n le

ttin g a

p a tm

n t d

ie and m

aking that patm nt die. In C

t uzan v. D irector,

M o D

ept of H ealth (199o), w

e concluded that "It] he principle that a com

petent pm son has a consti-

tutionally protected liberty interest in refusing un- w

a n

te d

m e

d ica

l tre a

tm e

n t m

a y b

e in

fe rre

d fro

m o

u r p

rio r d

e clsm

n s" a

n d

w e

a ssu

m e

d th

e e

xist- ence of such a right foi purposes of that case. B

ut our assum

ption of a right to refuse treatm ent w

as grounded not, as the C

ourt of A ppeals supposed,

on the proposition that patients have a geneI al and abstract "right to hasten death;' but on w

ell estab- hshed, traditional rights to bodily integrity and freedom

from unw

anted touching. In fact, w e ob-

seived that "the m a)ority of S

tates in this countiy have law

s im posing crim

inal penalties on one w ho

assists another to com m

it suicide" 0 uzan there- fore provides no support for the notion that refus- ing hfe-sustam

m g m

edical treatm ent is "nothing

m ore nor less than suicide" F

or all these reasons w e disaglee w

ith respon- dents' claim

that the distraction betw een iefusing

lifesaving m edical treatm

ent and assisted sm cide

is "a

rb itra

ry " a

n d

"irra tio

n a

l"ÿ G

ra n

te d

, in s

o m

e

cases, the line betw een the tw

o m ay not be clear,

but certainty as not Iequired, even w ere it possi-

ble Logic and contem porary practice support N

ew Y

ork's judgm ent that the tw

o acts are different, and N

ew Y

ork m ay therefore, consistent w

ith the C on-

stltU tlon, treat them

differently. B y perm

itting eve- ryone to refuse unw

anted m edical treatm

ent w hile

prohibiting anyone from assisting a suicide, N

ew Y

ork law follow

s a longstanding and rational dis- tin

c tio

n .

N e w

Y o rk's re

a so

n s fo

r re co

g n izin

g a

n d a

ct- a n d o

n th

is d istin

ctio n --in

clu d in

g p

ro h ib

itin g

in te

n tio

n a

l killin g

a n

d p

re se

rvin g

life ; p

re ve

n tin

g suicide; m

aintaining physicians' role as their pa- tients' healels; protecting vulnerable people from lndxffeience, prejudice, and psychological and fi- nancial pressure to end their lives; and avoiding a possible slide tow

ards euthanasia--are discussed in

g re

a te

r d e ta

il in o

u r o

p in

io n in

G lu

cksb e rg

, a n te

T h e se

va h d a

n d im

p o rta

n t p

u b lic in

te re

sts easily satisfy the constitutional requirem

ent that a legislative classification bear a rational relation to som

e legitim ate end.

T h e ju

d g m

e n t o

f th e C

o u rt o

f A p p e a ls is re

- ve

rse d .

N O

T E

S 1 It has alw

ays been a crim e, elthex by statute or under the

co m

m o

n la

w , to

a ssist a

su icid

e m

N e

w Y

o rk

z R espondents also argue that the S

tate xrrauonally & stm

- g

m sh

e s b

e tw

e e

n p

h yslcm

n -a

sslste d

su m

1 &

a n

d "te

rm in

a l

sedatm n;' a process respondents characterize as "m

duc[m g]

barbiturate com a and then starv[m

g] the person to death" P

etltm ners resist, how

ever, that '"[a]lthough proponents o

fp h

yslcm n

-a sslste

d S

m cld

e a

n d

e u

th a

n a

sm co

n te

n d

th a

t te r-

m in

a l se

d a

tm n

is co ve

rt p h

ysicia n

-a ssiste

d sm

cld e

or euthanasm , the concept of sedat, ng pharm

acotherapy as based on m

form ed consent and the prm

[email protected] e of double

effect" R eply B

rief for P etltm

ners 12 (quoting P R

ousseau, Telm

m al S

edatm n in the C

are of D ying P

atients, 156 A rchives

Internal M ed 1785, 1785-1786 ([1996]) Just as a S

tate m ay

prohibit assisting sm clde w

hile perm itting patm

nts to refuse unw

anted hfesaw ng tleatm

ent, it m ay perm

it palhatlve care related to that refusal, w

hich m ay have the foreseen but

unm tended "double effect" of hastening the patient's death

S ee N

ew Y

ork Task Force, "W hen D

eath is S ought" at i63

("It is w idely recogm

zed that the provlsm n of pain m

e& ca-

tm n is ethm

ally and professionally acceptable even w hen the

heatm ent m

ay hasten the patient's death, ff the m edlcatm

n is in

te n d e d to

a lle

via te

p a re

a n d se

ve re

d isco

m fo

rt, n o t to

ca u se

death")

W ashington v. G

lucksberg UNITED STATES SUPREM

E CO URT

In tN s com

pam on case to V

acco v Q uill, the question )s w

hether W ashington state's

prohlbm on against causing or aiding a sm

clde offends the D ue P

rocess C lause of the

Fourteenth A m

endm ent. The C

ourt determ ines that )t does not and upholds W

ash- m

gton's law forbidding assisted sum

lde.

The question presented in this case is w hether W

ash- ington's prohibition against "caus[lng]" or "ald[m

g]" a suicide offends the F

ourteenth A m

endm ent to the

U nited S

tates C onstitution W

e hold that it does not It has alw

ays been a cilm e to assist a suicide in

the S tate of W

ashington. In 1854, W ashlngtoffs first

T erritorial Legislature outlaw

ed "assisting another in the com

m ission of self-m

urder? T oday, W

ashington

U m

ted States Suprem e C

ourt 521 U S 702 (1997)

law provides: 'A

person IS guilty of piom

otm g a su-

icide attem pt w

hen he know ingly causes or aids an-

other person to attem pt suicide." W

ash. R ev. C

ode 9A

.36.o6o(1) (1994). "P rom

oting a suicide attem pt"

is a felony, punishable by up to five yeais' im pris-

onm ent and up to a $1o,ooo fine A

t the sam e tim

e, W

ashington's N atural D

eath A ct, enacted in 1979,

sta te

s th a

t th e

"w ith

h o

ld in

g o

r w ith

d ra

w a

l o f life

- sustaining treatm

ent" at a patient's direction "shall not, for any purpose, constitute a suicide:'

P ehtloners in this case are the S

tate of W ashing-

ton and its A ttorney G

eneral R espondents H

arold G

lucksberg, M .D

., A bigail H

alperln, M D

, ÿIhom as A

. P

ieston, M D

., and P eter S

haht, M .D

., are physicians w

ho practice in W ashington. These doctoIs occasion-

ally treat teim lnally ill, suffenng patients, and declaie

that they w ould assist these patm

nts in ending their lives If not for W

ashlngton's assisted-suicide ban In January 1994, respondents, along w

ith three giavely dl, pseudonym

ous plaintiffs w ho have since died and

C om

passion in D ying, a nonprofit oIganlzatlon that

counsels people considering physician-assisted sui- ode, sued in the U

nited S tates D

istrict C ourt, seek-

m ga declaration that W

ash R ev. C

ode 9A 36 o6o(1) (1994) is, on its face, unconstitutional, C

om passion tn

D ying v. W

ashington (W D

W ash. 1994)

T he plaintiffs assei ted "the existence of a hbeity

interest protected by the F ourteenth A

m endm

ent w

hich extends to a pelsonal choice by a m entally

com petent, term

inally 111 adult to com m

it physician- a

ssiste d

su icid

e " R

e lyin

g p

rim a

rily o n

P la

n n

e d

P w

enthood v. C asey (1992) and C

t uzan' v D irector;

M issouri D

ept. of H ealth (199o), the D

istrict C ourt

agreed and concluded that W ashm

gton's assisted- suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitution- ally protected liberty interest?' T

he D istract C

ourt also decided that the W

ashington statute violated the E

qual P rotection C

lauses requirem ent that "'all

persons sim ilarly situated.., be treated alike:"

A panel of the C ourt of Appeals for the N

inth C ir-

cuit reversed, em phasizing that "[tin the tw

o hun- dred and five years of our existence no constitutional right to aid in killing oneself has ever been asseated and upheld by a court of final jurisdiction." C

om pas-

sion m D

ying v. W ashington (1995) The N

inth C ir-

cuit reheard the case en banc, reversed the panel's decision, and affirm

ed the D istrict C

ourt C om

pas- sion m

D ym

g v. W ashington (1996). Like the D

istrict C

ourt, the en banc C ourt of A

ppeals em phasized

our C asey and C

ruzan decisions. ÿhe court also dis- cussed w

hat is described as "historical" and "current societal attitudes" tow

ard suicide and assisted sui- cide, and concluded that "the C

onstitution encom -

passes a due process liberty interest in controlling the tim

e and m annel of one's death--that there is,

in short, a constitutionally-recognized 'right to die.'"

A fter "[w

]elghtng and then balancing" this inteiest against W

ashm gton's varm

us interests, the court held that the S

tate's assisted-sm clde ban w

as unconstitu- tional "as applied to term

inally 111 com petent adults

w ho w

ish to hasten their deaths w ith m

edication prescribed by their physicians" T

he couIt did not reach the D

istrict C ouit's equal-protection holding

W e g

ra n te

d ce

rtio ra

ri a n d n

o w

Ie vm

se .

!W e b

e g in

, a s w

e d

o in

a ll d

u e -p

ro ce

ss ca se

s, b y e

x-

am ining our N

atioffs hlstoiy, legal traditions, and practices. In alm

ost every S tate--indeed, in alm

ost e ve

ry w e ste

rn d

e m

o cra

cy--it is a crim

e to

a ssist a

suicide T he S

tates' assisted-suicide bans aie not in- novations. R

ather, they are longstanding expressions o

f th e

S ta

te s' co

m m

itm e

n t to

th e

p ro

te ctio

n a

n d

preservation of all hum an life Indeed, oppositm

n to a

n d

co n

d e

m n

a tio

n o

f su icid

e --a

n d

, th e

i e fo

I e , o

f a s-

sisting suicide--are consistent and enduilng them es

of ouI philosophical, legal, and cultui al hei ltages. M

ore specifically, for over 7oo yeais, the A nglo-

A m

erican com m

on-law tradition has pum

shed oÿ otherw

ise disapproved of both sm cide and assisting

s u ic

id e ...

O ver tim

e, how ever, the A

m erican colonies abol-

ished these harsh com m

on-law penalties . [B

ut] the m

ovem ent aw

ay from the com

m on law

's harsh sanctions did not represent an acceptance of suicide; rather, as C

hief Justice S w

ift observed this change re- flected the grow

ing consensus that it w as unfair to

punish the suicides fam ily for his w

rongdoing T

hat suicide rem ained a grievous, though nonfe-

lonlous, w rong is confirm

ed by the fact that colonial and early state legislatures and courts did not retreat from

prohibiting assisting suicide .. A nd the pro-

hibitlons against assisting suicide never contained exceptions for those w

ho w ere near death ...

T he earliest A

m erican statute explicitly to outlaw

assisting suicide w as enacted in N

ew Y

ork in 1828, and m

any of the new S

tates and Territories follow ed N

ew Y

ork's exam ple B

etw een 1857 and 1865, a N

ew Y

olk com

m ission led by D

udley F ield drafted a crim

inal code that prohibited "aiding" a suicide and, specifically, "furnish[lng] another person w

ith any deadly w eapon

or poisonous drug, know ing that such person intends

to use such w eapon or drug in taking his ow

n life" B y

the tim e the F

ourteenth A m

endm ent w

as rail fled, it w

a s a

ciim e m

m o st S

ta te

s to a

ssist a su

icid e ..

Though deeply rooted, the S tates' assisted-suicide

bans have an recent years been leexam aned and, gen-

erally, reaffilm ed B

ecause of advances In m edicine

and technology, A m

ericans today are increasingly lakely to die an Institutions, from

chronic illnesses. P

ublic concern and dem ocratic action are therefore

sharply focused on how best to piotect dignity and

independence at the end of life, w ith the result that

there have been m any significant changes an state

law s and in the attitudes these law

s reflect M any

S ta

te s, fo

l e xa

m p

le , n

o w

p e

rm it "la

vin g

w ills" su

rro -

gate health-care declslonm akang, and the w

ithdraw al

or refusal of life-sustaining m edical treatm

ent. A t

the sam e tam

e, how ever, voters and legislators con-

tanue for the m ost part to reaffirm

their S tates' pro-

habltlons on assisting suicide A

ttitudes tow ai d suicide itself have changed since

B racton, but our law

s have consistently condem ned,

and continue to prohibit, assisting suicide. D espite

changes in m edical technology and notw

ithstanding an increased em

phasis on the im portance of end-of-

life decIslonm aking, w

e have not retreated flora this prohibition A

gainst this backdrop of history, tradi- tio

n , a

n d

p t a

ctIce , w

e n

o w

tu rn

to re

sp o

n d

e n

ts' co n

- stltutional claim

.

IIThe D ue P

rocess C lause guaiantees m

ore than fair piocess, and the "liberty" It protects includes m

ore than the absence of physical restraint The C

lause also provides heightened protection against governm

ent interference w

ith cei tam fundam

ental lights and lib- eity interests In a long line of cases, w

e have held that, in addition to the specific freedom

s plotected by the Bill of R

ights, the "liberty" specially protected by the D

ue P locess C

lause includes the lights to m any,

to h

a ve

ch ild

ie n

, to d

ire ct th

e e

d u

ca tio

n a

n d

u p

- bIlnging of one's children, to m

arital privacy, to use contIaceptlon, to bodily integrity, and to abortion W

e have also assum ed, and strongly suggested, that

the D ue P

rocess C lause protects the traditional right

to refuse unw anted lafesaving m

edical treatm ent.

B nt w

e "halve] alw ays been reluctant to expand

the concept of substantive due process because guideposts for responsible decislonm

akm g in this

unchartered area ale scarce and open-ended" B y

extending constitutional protection to an asserted right or laberty interest, w

e, to a great extent, place the m

atter outside the arena of public debate and legaslatlve action W

e m ust theIefore "exercise the

utm ost care w

henever w e are asked to break new

ground in this field" lest the liberty protected by the D

ue P rocess C

lause be subtly transfoIm ed into the

policy preferences of the m em

bers of this C ourt.

O u r e

sta b lish

e d m

e th

o d o

f su b sta

n tive

-d u e -

process analysis has tw o prim

ary features. F nst, w

e have regularly obseIved that the D

ue P rocess C

lause specially plotects those fundam

ental ilghts and lib- erties w

hach are, objectively, "deeply rooted in this N

ataon's hlstoiy and tIadition" and "lm phcit in the

concept of ordered liberty" such that "nelthel, liberty nor justice w

ould exist iftheyw ere sacrificed" S

econd, w

e h

a ve

le q u ire

d m

su b sta

n ta

ve -d

u e -p

ro ce

ss ca se

s

a "careful descraptaon" of the asserted fundam ental

liberty interest. O ur N

ation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decision-m

aking" that direct and re- strain our exposition of the D

ue P rocess C

lause A s

w e stated recently the F

ourteenth A m

endm ent

"forbids the governm ent to infringe... 'fundam

ental'

liberty lnteiests at all, no m atter w

hat process is pro- vIded, unless the infringem

ent is narrow ly talloled to

selve a com pelling state interest.,'.

Turning to the dalm at issue here, the C

ourt of A p-

peals stated that "[p]roperly analyzed, the fiist issue to be resolved is w

hether there is a liberty interest in determ

ining the tam e and m

anner of one's death," or, in other w

ords, "[i]s there a right to dleÿ" S im

ilarly, re- spondents assert a "liberty to choose how

to die" and a right to ''control of one's final days" and describe the asserted liberty as "the right to choose a hum

ane, dig- nified death" and "the hberty to shape death.,' As noted above, w

e have a tradition of carefully form ulating the

interest at stake in substantive-due-process cases For exam

ple, although C 1 uzan is often described as a "right

to die" case, w e w

ere, in fact, m oxe precise' w

e assum ed

that the C onstitution granted com

petent pelsons a "constitutionally protected right to refuse hfesavang hydration and nutritaon" T

he W ashington statute at

issue in this case prohibits "aid[lng] another person to attem

pt suicide" W ash. R

ev C ode ÿ9A

.36.o6o (1) (1994), and, thus, the question before us is w

hether the

"laberty" specially protected by the D ue P

I ocess C lause

includes a right to com m

it suicade w hach itself includes

a iaght to assistance in doing so W

e now inquire w

hether this asserted right has anyplace in oux N

ation's tladitaons H ere, as discussed

above, w e are confionted w

ith a consistent and alm ost

universal tiadition that has long rejected the asseited right, and continues explicitly to reject it today, even for texm

anally ill, m entally com

petent adults. To hold for respondents, w

e w ould have to ieverse centuxles of

legal doctrine and practice, and strike dow n the con-

sidered policy choice of alm ost every S

tate. R

espondents contend, how ever, that the liberty

lntelest they asseIt IS consistent w

ith this C ourt's

substantive-due-process line of cases, if not w ith

this N ation's history and practice P

ointing to C asey

and C tuzan, respondents read our jurisprudence

in this area as reflecting a general tiadition of "self- sovereignty" and as teaching that the "liberty" pro- tected by the D

ue P Iocess C

lause includes "basic and intim

ate exercises of personal autonom y" A

ccording to respondents, oui hbelty jurlspiudence, and the broad, individualistic plm

clples it reflects, protects the "liberty of com

petent, term inally ill adults to m

ake end-of-hfe decisions free of undue governm

ent inter- ference.,' The questaon presented In this case, how

ever, IS

w hethei the protections of the D

ue P iocess C

lause include a right to com

m it suicide w

ith another's assis- tance. W

ith this ''careful description" of iespondents' dalm

in m and, w

e turn to C asey and C

ruzan. In C

ruzan, w e considered w

hether N ancy B

eth C

xuzan, w ho had been severely anjured in an auto-

m obile accident and w

as in a pexslstlve vegetative state, "ha[d] a iight under the U

nited S tates C

oristl- tntIon w

hich w ould require the hospital to w

athdraw lafe-sustaining treatm

ent" at her parents' request W e

began w ith the observation that "[a]t c6m

m on law

, even the touching of one peison by another w

athout consent and w

ithout legal justification w as a battery"

W e then discussed the related rule that "inform

ed consent is genei ally lequired for m

edical treatm ent"

A fter ievIew

ing a long line of relevant state cases, w

e concluded that "the com m

on-law doctrine of in-

form ed consent is view

ed as generally encom passing

the right of a com petent individual to iefuse m

edical treatm

ent.,' N ext, w

e review ed our ow

n cases on the subject, and stated that "[t]he pim

clple that acom -

petent person base constatutionally protected liberty Interest in refnsang unw

anted lnedlcal treatm ent

m ay be inferred from

our prlox decisions" T herefore,

"foi purposes, of [that] case, w e assum

e[d] that the U

nited S tates C

onstitution w ould giant a com

petent pelson a constitutionally piotected right to Iefuse lifesaving hydration and nutrition" W

e concluded that, notw

ithstanding thas right, the C onstatutaon

perm itted M

issouri to require clear and convincing e vid

e n ce

o f a

n in

co m

p e te

n t p

a tie

n t's w

ish e s co

n -

cei nang the w ithdraw

al of life-sustaining treatm ent.

R e

sp o

n d

e n

ts co n

te n

d th

a t in

C tu

za n

w e

"a c-

know ledged that com

petent, dying persons have the right to direct the rem

oval of life-sustaining m edi-

cal treatm ent and thus hasten death" and that "the

constitutional principle behind recognizing the pa- tient's liberty to direct the w

ithdraw al of artificial life

support applies at least as strongly to the choice to hasten im

pending death by consum ing lethal m

edi- cation,,' S

lm llaily, the C

ourt of A ppeals concluded

that "C ruzan, by recognizing a liberty inteiest that

in clu

d e

s th e

re fu

sa l o

f a itlficla

l p ro

visio n

o f life

- sustaining food and w

ater, necessarily recognize[d] a laberty interest in hastenang one's ow

n death:' T

he right assum ed in C

t uzan, how ever, w

as not sim

ply deduced fiom abstract concepts of personal

autonom y. G

iven the com m

on-law rule that folced

m edication w

as a battery, and the long legal tiaditaon protectang the decision to refuse unw

anted m edical

treatm ent, our assum

ption w as entnely consistent

w ith this N

ation's hlstoi y and constitutional traditions. The decision to com

m it suicide w

ith the assistance of anothei m

ay be just as peisonal and profound as the decasion to refuse unw

anted m edical treatm

ent, but it has nevei enjoyed sim

ilar legal protection. Indeed, the tw

o acts are w idely and leasonably regaIded as

quite distinct. S ee Q

uill v V acco (1997) In C

1 uzan it- self, w

e lecognlzed that m ost S

tates outlaw ed assisted

su icid

e --a

n d e

ve n m

o re

d o to

d a y--a

n d w

e ce

rta in

ly

gave no lntam ation that the right to refuse unw

anted m

edical treatm ent could be som

ehow tlansm

uted into a light to assistance in com

m itting suicide

R e

sp o

n d

e n

ts a lso

re ly o

n C

a se

y T h

e ie

, th e

C ourt's opinion concluded that "the essential hold-

ing of R oe v W

ade should be retained and once again leaffirm

ed" W e held, first, that a w

om an has

a right, before her fetus IS viable, to an abortaon

"w ith

o u

t u n

d u

e in

te rfe

re n

ce fro

m th

e S

ta te

''; se co

n d

,

that S tates m

ay restuct post-viabihty abortions, so long as exceptions are m

ade to protect a w om

an's life and health, and third, that the S

tate has legitim ate

interests throughout a plegnancy in protecting the health of the w

om an and the life of the unborn child.

In reaching this conclusion, the opinion discussed in som

e detail this C ourt's substantive-due-process

tradition of interpreting the D ue P

rocess C lause to

protect certain fundam ental rights and "personal

d e

c is

io n

s re

la tin

g to

m a

rria g

e , p

ro c re

a tio

n , c

o n

-

traception, fam ily relationships, child rearing, and

education;' and noted that m any of those rights and

liberties "lnvolv[e] the m ost intim

ate and personal choices a person m

ay m ake an a lifetim

e." T

h e

C o

u rt o

f A p

p e

a ls, like

th e

D istrict C

o u

rt, fo

u n d C

a se

y "'h ig

h ly In

stru ctive

'" a n d "'a

lm o st

p re

scrip tive

'" fo r d

e te

rm in

in g

"'w h

a t lib

e rty in

te r-

est m ay inhere in a term

inally ill person's choice to co

m m

it su icid

e '".

Like the decision ofw hethei or not to have an abor-

tion, the decision how and w

hen to die is one of "the m

ost intim ate and personal choices a peIson

m ay m

ake in a lifetim e" a choice "central to peIsonal

dignity and autonom y"

reflects and advances its com m

itm ent to this Inter-

est. T his intelest is sym

bolic and aspiiational as w ell

a s p

ra ctica

l.

W hile suicide is no longer piohiblted or penahzed,

the ban against assisted suicide and euthanasia shores up the notm

n of lim its in hum

an relation- ships It ieflects the gravity w

ith w hich w

e view the

decision to take one's ow n life or the hfe of another,

and our reluctance to encoui age oI plom ote these

decisions. N ew

YoIk State Task Force on Life and the Law

, W hen D

eath is S ought A

ssisted S uicide

and E uthanasia in the M

edical C ontext 131-13z (M

ay 1994) (hm

em aftei N

ew Y

ork Task Force)

... T hat m

any of the rights and hbertles protected by the D

ue P rocess C

lause sound in personal auton- om

y does not w arrant the sw

eeping conclusion that any and all im

portant, intim ate, and personal deci-

sions are so protected, and C asey did not suggest

otherw ise.

T he history of the law

s treatm ent of assisted sui-

cide an this country has been and continues to be one of the rejection of nearly all efforts to perm

it it. T hat

being the case, oui decisions lead us to conclude that the asserted "right" to assistance in com

m itting sui-

cide is not a fundam ental liberty interest protected

by the D ue P

rocess C lause T

he C onstitution also

requires, how ever, that W

ashington's assisted-suicide ban be rationally related to legitim

ate govelnm ent in-

terests. This requirem ent is unquestionably m

et here. A

s the court below recognized, W

ashlngton's assisted- suicide ban im

plicates a num ber of state interests.

F irst, W

ashington has an "unqualified interest in the preservation of hum

an life." T he S

tate's prohibi- tion on assisted suicide, hke all hom

icide law s, both

R espondents adm

it that "[t]he S tate has a real in-

terest in preserving the hves of those w ho can still

contribute to society and enjoy life;' T he C

ourt of A

ppeals also recognized W ashington's interest in

protecting hfe, but held that the "w eight" of this in-

terest depends on the "m e&

ca[ condition and the w

ishes of the person w hose life is at stake" W

ash- m

gton, how ever, has rejected this sliding-scale ap-

proach and, through its assisted-suicide ban, insists that all persons' lives, from

beginning to end, re- gardless of physical or m

ental condition, are under the full protection of the law

A s w

e have previously affirm

ed, the S tates "m

ay properly dechne to m ake

judgm ents about the 'quality' of life that a particular

individual m ay enjoy." T

his rem ains tiue, as C

ruzan m

akes clear, even fol those w ho are near death.

R elatedly, all adm

it that suicide is a serious pub- hc-health problem

, especially am ong persons in oth-

erw ise vulnerable groups. The S

tate has an interest in preventing suicide, and in studying, identifying, and treating its causes.

T h

o se

w h

o a

tte m

p t su

icid e

--te rm

in a

lly ill o r

not--often suffer from depression or other m

ental disorders S

ee N ew

Y ork T

ask F orce 13-az, 126-1z8

(m ore than 95%

of those w ho com

m it suicide had

a m

a jo

r p sych

ia tric illn

e ss a

t th e tim

e o

f d e a th

; a m

o n g th

e te

rm in

a lly ill, u

n co

n tro

lle d p

a re

is a "risk factor" because it contributes to depression). R

esearchm dlcates . thatm

anypeoplew horequest

physician-assisted suicide w ithdraw

that request if their depression and pain are treated T

he N ew

Y ork T

ask F orce, how

ever, expressed ItS concern

that, because depression is difficult to diagnose, physicians and m

edical professionals often fail to

>><

respond adequately to seriously 111 patients' needs. T

hus, legal physician-assisted suicide could m ake

it m ore difficult for the S

tate to piotect depiessed or m

entally ill persons, oI those w ho are suffering

from untreated pain, flom

suicidal Im pulses

The S tate also has an interest in protecting the in-

tegrity and ethics of the m edical profession. In con-

trast to the C ourt of A

ppeals' conclusion that "the integrity of the m

edical profession w ould [not] be

threatened in any w ay by [physician-assisted sm

- clde]" the A

m erican M

edical A ssociation, like m

any other m

edical and physicians' gloups, has concluded that "[p]hysicm

n-asslsted suicide is fundam entally

incom patible w

ith the physician's role as healer,' A

m e

rica n

M e

d ica

l A sso

cia tio

n , C

o d

e o

f E th

ics §2.211(1994) A

nd physician-assisted suicide could, it is argued, undelm

lne the trust that is essentm l to

the doctor-patient relationship by blurring the hm e-

honoi ed line betw een healing and harm

ing N

ext, the S tate has an interest m

protecting vul- nerable groups--including the poor, the elderly, and disabled persons--flom

abuse, neglect, and m is-

takes T he C

ourt of A ppeals dism

issed the S tate's

concern that disadvantaged persons m ight be pres-

sured into physician-assisted suicide as "ludicrous on its face" W

e have lecognized, how ever, the real

risk of subtle coercion and undue influence in end- of-life situations. S

im ilarly, the N

ew Y

ork T ask F

orce w

arned that "[1]egahzlng physician-assisted sui- cide w

ould pose profound risks to m any individu-

als w ho are 111 and vulnerable T

he risk of harm is greatest for the m

any individuals in our society w

hose autonom y and w

ell-bem g are already com

- prom

ised by poverty, lack of access to good m edical

care, advanced age, or m em

bership in a stigm atized

social group,' N ew

Y ork Task Force lZO

. If physician- assisted suicide w

ere perm itted, m

any m ight resort

to it to spare their fam ilies the substantial financial

burden of end-of-life health-care costs T

he S tate's interest here goes beyond protecting

the vulnelable flom coercion; it extends to protect-

lng &sabled and term inally ill people from

prejudice, negative and inaccurate stereotypes, and "societal in- difference" T

he S tate's assisted-suicide ban reflects

and reinfolces its policy that the lives of term inally 111,

& sabled, and elderly people m

ust be no less valued than the lives of the young and healthy, and that a se-

rlously disabled pm son's suicidal im

pulses should be Inteipreted and treated the sam

e w ay as anyone else's.

Finally, the S tate m

ay fear that perm itting assisted

suicide w ill start it dow

n the path to voluntary and perhaps even involuntary euthanasia. T

he C ourt of

A ppeals struck dow

n W ashington's assisted-suicide

b a

n o

n ly "a

s a p

p lie

d to

co m

p e

te n

t, te rm

in a

lly ill adults w

ho w ish to hasten their deaths by obtaining

m edication prescribed by their doctors,' W

ashington insists, how

ever, that the im pact of the court's de-

cision w ill not and cannot be so lim

ited. If suicide is protected as a m

atter of constitutional right, it is argued, "every m

an and w om

an in the U nited S

tates m

ust enjoy It" The C ourt of A

ppeals' decision, and its expansive reasoning, provide am

ple support for the S

tate's concelns. T he court noted, for exam

ple, that the "decision of a duly appointed surrogate decision m

aker is for all legal purposes the decision of the pa- tient him

self;' that "in som e instances, the patient

m ay be unable to self-adm

inister the dlugs and . . adm

inistration by the physician m ay be the only

w ay the patient m

ay be able to receive them " and that

not only physicians, but also fam ily m

em bers and

loved ones, w all inevitably participate in assisting sui-

cide. Thus, it turns out that w hat is couched as a lim

- ited right to "physician-assisted suicide" is likely, in effect, a m

uch broader license, w hich could prove ex-

trem ely &

fficult to police and contain W ashington's

b a n o

n a

ssistin g sm

cid e p

re ve

n ts su

ch e

ro sio

n ....

W e

n e

e d

n o

t w e

ig h

e xa

ctin g

ly th e

re la

tive strengths of these vinous interests. T

hey are un- questionably im

portant and legitim ate, and W

ash- lngton's ban on assisted suicide is at least leasonably related to their prom

otion and protection W e there-

fore hold that W ash. R

ev. C ode §9A.36.o6o(1) (1994)

does not violate the F ourteenth A

m endm

ent, either on its face or "as applied to com

petent, term inally 111

adults w ho w

ish to hasten their deaths by obtaining m

edication prescribed by their doctors" T

hroughout the N ation, A

m ericans are engaged

in an earnest and plofound debate about the m oral-

ity, legality, and practicality of physician-assisted su- icide. O

ur holding pelm lts this debate to continue,

as it should in a dem ocratic society T

he decision of the en banc C

ourt of A ppeals is reversed, and the

case is rem anded for fuithei proceedings consistent

w ith this opinion.