The right to assisted suicide and euthanasia.

• Author: Gorsuch, Neil M.

1. INTRODUCTION

   Whether to permit assisted suicide and euthanasia is among the most contentious legal and public policy questions in America today. The American public consciousness became galvanized on June 4, 1990, with the news that Dr. Jack Kevorkian had helped Janet Adkins, a fifty-four-year-old Alzheimer's patient, take her life.(1) It was later disclosed that Dr. Kevorkian had neither taken the medical history nor made an examination of Ms. Adkins, and that he had never consulted Ms. Adkins's primary care physician.(2) Dr. Kevorkian had simply agreed to meet Ms. Adkins in a Volkswagen van he had outfitted with a "suicide machine" consisting of three chemical solutions fed into an intravenous line needle. It took Dr. Kevorkian several attempts to insert the needle into Ms. Adkins, but he eventually succeeded.(3) Ms. Adkins then pressed a lever releasing lethal drugs into her body.

   While the media often uses the term "assisted suicide" to describe Dr. Kevorkian's practices, it is a misnomer. Dr. Kevorkian seeks to legalize not only the practice of aiding another in taking his or her life (assisting suicide), but also the practice of intentionally killing another person motivated by feelings of compassion or mercy (euthanasia). Indeed, in 1999 Dr. Kevorkian performed an act of euthanasia for a nationwide television audience on 60 Minutes, with the express desire of provoking debate over legalizing that practice too. (He was later convicted of second-degree murder after a trial in which he chose to act as his own counsel).(4)

   Since Ms. Adkins's death made national headlines, Dr. Kevorkian claims to have assisted more than 130 suicides.(5) While Dr. Kevorkian is perhaps the most notorious proponent of assisted suicide and euthanasia, he is hardly without allies. Derek Humphry, founder of The Hemlock Society, a group devoted to promoting the legalization of euthanasia, has praised Dr. Kevorkian for "breaking the medical taboo on euthanasia."(6) The American Civil Liberties Union has taken up his legal defense.(7)

   In 1984, the Netherlands became the first country in the world to give legal sanction to some forms of assisting suicide and euthanasia. The Dutch Supreme Court declared that although killing a patient remains a criminally punishable offense under the nation's Penal Code, physicians can claim an "emergency defense" under certain circumstances.(8)

   In a 1991 issue of The New England Journal of Medicine, Dr. Timothy Quill, a University of Rochester professor, defended his decision to prescribe barbiturates to a cancer patient even though she admitted that she might use them at some indefinite time in the future to kill herself.(9) A New York grand jury was convened but declined to bring an indictment for assisting suicide. The State's Board for Professional Medical Misconduct considered pressing disciplinary charges but declined, reasoning that Dr. Quill had written a prescription for drugs that had a legitimate medical use for his patient (as a sleeping aid for her insomnia) and that he could not have definitively known she would use the medication to kill herself. Ruling, in essence, that the evidence was too equivocal to conclude that Dr. Quill intended to cause the death of his patient, charges were dropped.(10)

   In 1992, a gynecology resident submitted an anonymous article to the Journal of the American Medical Association that sparked a long-running debate in the most prominent American medical journals. Entitled It's Over Debbie, the article described how the author administered a lethal injection to a terminal cancer patient (an act of euthanasia, not assisted suicide) that he had never met before after her demand to "get this over with."(11)

   After its publication in the early 1990s, The Hemlock Society's book, Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying,(12) rocketed to the New York Times' best-seller list. The book provides step-by-step instructions (in easy to read large print) on various methods of "self-deliverance."(13) On January 18, 2000, its sales on Amazon.com ranked 4,347 among all titles (very high indeed).(14) Chapter titles range from "Self-Deliverance by Plastic Bag" (a recommended method) to "Bizarre Ways to Die" (discussing the relative merits of guns, ropes, and firecrackers) and "Going Together" (ideas for double suicides).(15) A New England Journal of Medicine study found that instances of asphyxiation by plastic bag, a method highly touted in Final Exit, measurably increased after the book's publication.(16)

   The growing debate over assisted suicide and euthanasia has produced increasing political and legal activism. In 1988, an early voter referendum campaign in California aimed at toppling the State's law banning assisted suicide failed to secure a spot on the ballot after collecting "only 129,776 valid signatures of the required 372,178."(17) Another effort four years later not only secured a spot on the ballot, but also garnered 48 percent of the vote. A similar 1991 effort in Washington State obtained 46.4 percent of the vote.(18) By 1994, the referendum campaigns bore their first fruit when Oregon voters narrowly approved the legalization of assisted suicide, 51 percent to 49 percent, though subsequent legal challenges delayed implementation for three years.(19)

   Since 1992, bills have been introduced to legalize assisted suicide or euthanasia in various state legislatures, including Alaska, Arizona, Colorado, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, Rhode Island, Vermont, and Washington.(20) All have failed -- so far. Some states have actually strengthened or reaffirmed their laws prohibiting assisted suicide. Dr. Kevorkian's home State of Michigan is an example.(21) In New York, a blue-ribbon panel was convened to consider revamping or repealing its laws banning assisting suicide, but the panel ultimately rejected any change by a unanimous vote.(22) Maryland passed a statute for the first time codifying that state's common law ban on assisted suicide.(23) In the last four years, Iowa, Oklahoma, and Virginia also strengthened their laws against the practice.(24) Congress has gotten into the net, too; it is currently considering legislation that would effectively overrule Oregon's referendum permitting assistance in suicide.(25)

   Perhaps frustrated by the results of their early referendum and legislative efforts, in the mid-1990s euthanasia proponents turned to the courts in Washington and New York, seeking to have laws against assisting suicide declared unconstitutional.(26) Wildly disparate lower court rulings resulted. One federal district court found a constitutional right to assisted suicide; another found that no such right exists.(27) The appellate courts reviewing these decisions produced even more fractured opinions.(28) Eventually the cases culminated in argument before the United States Supreme Court. The Court's 9-0 decisions upheld the Washington and New York laws banning assisted suicide and were hailed as a major victory for assisted suicide opponents.(29) Few noticed at the time, however, that critical concurring Justices viewed the cases as raising only facial challenges to laws against assisting suicide and reserved the right to consider in later cases whether those laws are unconstitutional as applied to terminally ill adults who wish to die.(30) Thus, far from definitively resolving the issue, the Court's decisions only assure that the coming decade will witness even more debate over assisted suicide and euthanasia than the last.

   Part II of this Article discusses the Washington and New York cases. These cases identify the turf where scholars, courts, and legislatures will fight future battles over assisted suicide and euthanasia. Specifically, they suggest that debate will focus on four issues: history, fairness, autonomy, and utility. The central questions will likely be whether historical precedent supports legalization; whether concerns of equal protection or fairness dictate that, if we permit patients to refuse life-sustaining care like food and water, we must also allow assisted suicide and euthanasia; whether respect for personal autonomy and self-determination compels legalization of these other practices; and whether legalization represents the solution that would provide the greatest good for the greatest number, even if some people might be harmed or offended.

   With that background, the Article then discusses in turn each of these questions. Part III reviews the legal history of assisted suicide and euthanasia and concludes that little historical antecedent supports treating them as "rights." Part IV argues that many efforts to distinguish assisted suicide and euthanasia from the refusal of life-sustaining care are unsound but that at least one rational distinction does exist. As a result, principles of fairness and equal treatment do not require legalization of one practice merely because we allow the other. Part V addresses the claim that principles of autonomy compel legalization. As developed by many moral-legal philosophers, faithful adherence to principles of personal autonomy would compel legalization but also would result in an overbroad euthanasia right few would sanction. Part VI confronts utilitarian arguments for assisted suicide and euthanasia and concludes that they are both practically and analytically flawed.

   Having addressed the major moral-legal arguments raised in the assisted suicide and euthanasia debate to date, the Article then argues in Part VII that a basic moral and common law principle has been largely overlooked. Whatever the claims of fairness or autonomy or utility may be, this principle holds that the intentional taking of human life by private persons is always wrong. Part VII also examines the roots of the principle and its application. It argues that the principle explains and makes sense...