The Future of Assisted Suicide and Euthanasia

The Future of Assisted Suicide and Euthanasia

Neil M. Gorsuch
Series: New Forum Books
Copyright Date: 2006
Pages: 328
https://www.jstor.org/stable/j.ctt7t36c
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  • Book Info
    The Future of Assisted Suicide and Euthanasia
    Book Description:

    The Future of Assisted Suicide and Euthanasiaprovides the most thorough overview of the ethical and legal issues raised by assisted suicide and euthanasia--as well as the most comprehensive argument against their legalization--ever published.

    In clear terms accessible to the general reader, Neil Gorsuch thoroughly assesses the strengths and weaknesses of leading contemporary ethical arguments for assisted suicide and euthanasia. He explores evidence and case histories from the Netherlands and Oregon, where the practices have been legalized. He analyzes libertarian and autonomy-based arguments for legalization as well as the impact of key U.S. Supreme Court decisions on the debate. And he examines the history and evolution of laws and attitudes regarding assisted suicide and euthanasia in American society.

    After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate--the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.

    Those on both sides of the assisted suicide question will find Gorsuch's analysis to be a thoughtful and stimulating contribution to the debate about one of the most controversial public policy issues of our day.

    eISBN: 978-1-4008-3034-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xiv)
  4. 1 Introduction
    (pp. 1-7)

    Whether to permit assistance in suicide and euthanasia is among the most contentious legal and public policy questions in America today. The issue erupted into American public consciousness on June 4, 1990, with the news that Dr. Jack Kevorkian—a slightly built, greying, retired Michigan pathologist—had helped Janet Adkins, a fifty-four-year-old Alzheimer’s patient, kill herself.¹ Dr. Kevorkian later revealed that he had not taken the medical history of Ms. Atkins, conducted a physical or mental examination, or consulted Ms. Adkins’s primary care physician.² Dr. Kevorkian had simply agreed to meet Ms. Adkins in his Volkswagen van, which he had...

  5. 2 The Glucksberg and Quill Controversies: The Judiciary’s (Non)Resolution of the Assisted Suicide Debate
    (pp. 8-18)

    In 1994 a group of Washington State physicians and patients, along with an assisted suicide advocacy organization, filed suit in federal district court seeking a declaratory judgment that the state statute forbidding the assistance of another person in committing suicide¹ was unconstitutional under substantive due process doctrine. The case was assigned to District Judge Barbara Rothstein, who became the first judge to hold assisted suicide to be a right guaranteed by the U.S. Constitution.

    Under the familiar language of the Fourteenth Amendment, no state may “deprive any person of life, liberty, or property, without due process of law.”² Despite the...

  6. 3 The Debate over History
    (pp. 19-47)

    The relevance of history to the constitutional debate over assisted suicide and euthanasia is the subject of much dispute. Some (like former Chief Justice Rehnquist) see an analysis of historical legal rules and rights as critical to any substantive due process analysis. Others (such as Justice Souter) think it bears little or no relevance. Others still have questioned the practice of relying upon the preferences of past majorities to interpret the Fourteenth Amendment, which was added to the Constitution in the aftermath of the Civil War with special concern for promoting the advancement of minority rights.¹ But the history test...

  7. 4 Arguments from Fairness and Equal Protection: If a Right to Refuse, Then a Right to Assisted Suicide?
    (pp. 48-75)

    Over the last thirty years, virtually every American jurisdiction has come to recognize a right to refuse medical treatment grounded in common law principles that bar nonconsensual touchings and require informed consent before the administration of medical treatment.¹ Debate persists over many aspects of this new right, however, including, not insignificantly, whether and how to extend the right to incompetent persons. Increasingly, “living wills” and “advance directives” are used to instruct family members and physicians on a patient’s wishes in the event he or she becomes incompetent. But what about infants or adults who have never been competent, or persons...

  8. 5 Casey and Cruzan: Do They Intimate a Right to Assisted Suicide and Euthanasia?
    (pp. 76-85)

    If history and principles of fairness do not necessarily command a right to receive assistance in suicide or a right to euthanasia, some would invite us to look to principles of moral autonomy and the legal doctrine that has grown up around those principles. Judges Rothstein and Reinhardt found persuasive the argument that all persons have an inherent (substantive due process) right to choose their own destinies. Justices Stevens and Souter appeared sympathetic to this line of argument, and Justice O’Connor seemed to decline to voice any views with respect at least to terminally ill persons. Such voices (and votes)...

  9. 6 Autonomy Theory’s Implications for the Debate over Assisted Suicide and Euthanasia
    (pp. 86-101)

    Because the question whether the Constitution protects an interest in self-definition and autonomy constrained only by the limits of “reasoned judgment” remains (despite the arguments of some dissenters) very much in play, we must necessarily ask the next question: What exactly would respect for such an autonomy interest mean for the debate over assisted suicide and euthanasia? If broad personal autonomy interests are protected by substantive due process doctrine, what kind of right to assistance in suicide or euthanasia follows? Though in a somewhat different posture—one unconstrained by constitutional doctrine—legislators also have to consider moral-political arguments for legalization...

  10. 7 Legalization and the Law of Unintended Consequences: Utilitarian Arguments for Legalization
    (pp. 102-142)

    Unlike advocates of neutralism and the harm principle, utilitarians cannot be said to be bound by adherence to philosophical principle that might lead to an assisted suicide right open to all rational adults regardless of motive or physical condition. Instead, approaching the question of assisted suicide (like any other) by asking the practical question what legal rule would provide the greatest social benefits with the fewest attendant costs, utilitarianism holds out the promise of defending a more appealingly limited right, one open only to the incurably suffering or terminally ill.

    While this approach offers an apparent advantage over arguments from...

  11. 8 Two Test Cases: Posner and Epstein
    (pp. 143-156)

    In recent years, Richard Posner and Richard Epstein have published provocative arguments for the legalization of assisted suicide. Posner introducedAging and Old Agein 1995, and Epstein followed in 1999 withMortal Peril. Posner argued for legalization primarily on practical, or utilitarian, grounds. The benefits associated with legalization, he claimed, outweigh any attendant costs. Legalization would, in this sense, be the “efficient” legal response. Epstein’s argument, meanwhile, was equally characteristic of his body of work: in deference to the harm principle and libertarian ideal, he argued that government should leave people unfettered to make their own decisions. These authors...

  12. 9 An Argument against Legalization
    (pp. 157-180)

    So far, we have considered arguments for assisted suicide and euthanasia based on history, fairness, neutrality, the harm principle, and utilitarianism. I have suggested that, if the harm and neutrality principles support any assisted suicide right, they tend toward (if not require) a right open to all competent adults; that arguments from history and fairness seem not to compel such a right at all; and that arguments from utilitarianism are indecisive.

    In this chapter, I seek to lay the groundwork for a different argument, one that has been largely overlooked in contemporary American debate over assisted suicide and euthanasia. It...

  13. 10 Toward a Consistent End-of-Life Ethic: The “Right to Refuse” Care for Competent and Incompetent Patients
    (pp. 181-218)

    I have suggested that life is a fundamental good, that it should not be intentionally destroyed, and I have suggested, too, how that principle might apply to the assisted suicide and euthanasia debate. Before closing, however, one might reasonably ask what this inviolability-of-life principle might say about still other, far more common, yet often very difficult, end-of-life scenarios. Along the way, for example, we have discussed the decision to withdraw or reject life-sustaining care by competent patients; how, we might ask, does the inviolability-of-life principle apply in these important and everyday cases? Similarly, as I alluded to previously,¹ courts have...

  14. Epilogue
    (pp. 219-226)

    As this book wends its way through the editorial process, the contours of the assisted suicide debate continue to evolve. While it is impossible to elaborate on every significant new fact or issue in such an active international debate, some of the more salient recent developments are worth noting before the opportunity slips away.

    Perhaps foremost among these, at least in the short term, is the Supreme Court’s recent decision inGonzales v. Oregon.¹ By a 6-3 vote, the Court affirmed two lower court decisions and rejected an interpretative regulation issued by former Attorney General John Ashcroft under the Controlled...

  15. Appendix A CERTAIN AMERICAN STATUTORY LAWS BANNING OR DISAPPROVING OF ASSISTED SUICIDE
    (pp. 227-228)
  16. Appendix B STATISTICAL CALCULATIONS
    (pp. 229-230)
  17. Notes
    (pp. 231-284)
  18. Bibliography
    (pp. 285-302)
  19. Index
    (pp. 303-312)
  20. Back Matter
    (pp. 313-313)