EUTHANASIA, ETHICS AND PUBLIC POLICY BY JOHN KEOWN.

AuthorMyers, Richard S.
PositionBook review

PART I. INTRODUCTION

The publication of the second edition of John Keown's study of euthanasia is an important development. (2) Euthanasia, Ethics and Public Policy: An Argument Against Legalisation was first published in 2002. (3) Much has happened since that time. In the new edition, Keown does an admirable job of updating the earlier work. The second edition provides a wealth of information and critical analysis of the issues involved. The work is marked by a sophisticated analysis of the legal issues and by an acute understanding of the actual practice of assisted suicide and euthanasia in those jurisdictions that have legalized these practices. His analysis should inform the ongoing debate about these practices. In this reviewer's estimation, Keown makes a compelling case against their legalization. This second edition deserves a wide readership.

PART II. LEGAL BACKGROUND

Assisted suicide and euthanasia are increasingly important issues. (4) The movement to legalize PAS and VAE has been met with increasing success in recent years. (5) When the United States Supreme Court first addressed the constitutionality of laws banning assisted suicide in 1997, (6) assisted suicide had not been legalized in any state. (7) PAS is now legal in California, (8) Colorado, (9) Hawaii, (10) Maine, (11) Montana, (12) New Jersey, (13) Oregon, (14) Vermont, (15) Washington, (16) and the District of Columbia. (17) International trends have also moved in favor of PAS and VAE. (18) I should note, however, that these developments have not moved in a straight line. Some states have recently rejected proposals to legalize assisted suicide or have strengthened laws banning assisted suicide. (19) And certain countries have rejected efforts to legalize assisted suicide. (20) There is, though, a slow, discernible trend in favor of legalization. Moreover, public opinion seems to be moving in favor of assisted suicide in the last few years, after a long period of relative stability on the issue. (21)

In the United States, though, this change towards legalization has not been due to court decisions. Unlike other areas of intense social controversy, such as abortion and same-sex marriage, the courts have not been the prime movers in bringing about social change. (22)

In dealing with assisted suicide, the courts in the United States have largely been models of judicial restraint. In the mid-1990s, some lower courts did strike down laws banning assisted suicide. (23) These courts relied on the infamous mystery passage from Planned Parenthood v. Casey (24) in which the joint opinion stated: "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (25) These lower courts ignored the opposition to assisted suicide in our history and tradition and appealed to Casey's abstract rhetoric. These opinions regarded the broad language as "highly instructive" and "almost prescriptive" in resolving the assisted suicide issue. (26) According to this view, "[t]he right to die with dignity accords with the American values of self-determination and privacy regarding personal decisions." (27)

But when the issue reached the United States Supreme Court in 1997, the Court in Washington v. Glucksberg and Vacco v. Quill rejected constitutional challenges to state laws banning assisted suicide. In so doing, the Court rejected the idea that there is a fundamental constitutional right to assisted suicide. The Court refused to rely on the broad, abstract language from Casey and instead asked whether there was any support for the view that a right to assisted suicide was deeply rooted in our Nation's history and tradition. The Court carefully reviewed the relevant history and concluded:

we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. (28) In this context, unlike in Roe v. Wade (29) and Obergefell v. Hodges, (30) the Court was unwilling to take that step. The Court noted that "[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society." (31)

Since Glucksberg, the effort to legalize assisted suicide has moved outside of the federal courts. There have been some efforts made in state courts, but the state courts have largely followed Glucksberg's lead and exercised judicial restraint. This was true in decisions soon after Glucksberg. For example, in Krischer v. McIver, the Florida Supreme Court rejected the argument that there was a fundamental right to assisted suicide under the Florida State Constitution. (32) The Court was greatly influenced by the United States Supreme Court decisions rejecting the federal constitutional arguments against the constitutionality of laws banning assisted suicide. (33) Similarly, in Sampson v. State, the Supreme Court of Alaska rejected state constitutional arguments against Alaska's ban on assisted suicide. (34) Here, too, the United States Supreme Court's opinions had a significant influence on the state court. (35)

More recently, the highest courts in New Mexico and New York rejected constitutional challenges to state laws banning assisted suicide. In 2016, in Morris v. Brandenburg, the New Mexico Supreme Court unanimously upheld New Mexico's ban on assisted suicide. (36) The Court principally relied on Glucksberg. (37) The New Mexico Court seemed influenced by the longstanding and still largely persisting tradition in the law opposing assisted suicide. (38) The Court also emphasized the complexity of the issues involved and took the view that such matters were better left to the legislative and executive branches. (39) In 2017, in Myers v. Schneiderman, the New York Court of Appeals unanimously reached the same result. (40) In Myers, the New York justices were also heavily influenced by Glucksberg and Vacco. (41)

One benefit of this exercise of judicial humility is that the ongoing debate can be informed by the experience in jurisdictions where assisted suicide has been legalized. (42) States are serving as laboratories of experiment. (43) And the experience in other jurisdictions has proven to be extremely important when the legalization of assisted suicide is considered. Yet, there are wildly divergent interpretations of what the evidence demonstrates and what those lessons are. For example, several courts have considered the argument that laws banning assisted suicide are necessary because of the risks of abuse that might result if assisted suicide were legalized in what purported to be a limited form. A number of courts have relied on this concern and rejected constitutional challenges to laws banning assisted suicide. Glucksberg is a good example. There, the Court specifically relied on evidence about the Dutch experience and concluded that "the case for a slippery slope has been made out . ..." (44) The same concern was also expressed by the Supreme Court of Ireland, the United Kingdom Supreme Court, and the European Court of Human Rights. (45)

More recently, an important ruling from the highest court in New York evaluated the empirical evidence in the same way. Judge Fahey's concurring opinion in the New York case was particularly strong on this point. In fact, he wrote "separately to expand on certain risks that would be associated with legalizing PAS in New York and that justify its prohibition." (46) Judge Fahey explained that "[t]he practice of physician-assisted suicide and euthanasia in the Netherlands provides us with a disturbing preview of...

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