The Future of Assisted Suicide and Euthanasia

Acknowledgments xi

Chapter 1: Introduction 1

Chapter 2: The Glucksberg and Quill Controversies: The Judiciary's (Non)Resolution of the Assisted Suicide Debate 8

2.1 The Washington Due Process Litigation 8

2.2 The New York Equal Protection Litigation 11

2.3 The Final Battle? The Supreme Court Does (and Does Not) Decide 14

2.4 The Aftermath of Glucksberg and Quill 17

Chapter 3: The Debate over History 19

3.1 Which History? 20

3.2 The Project 22

3.3 The Ancients 22

3.4 Early Christian History 25

3.5 English Common Law 28

3.6 Colonial American Experience 29

3.7 The Modern Consensus on Suicide and Its Assistance 30

3.8 The Euthanasia Movement 33

3.9 Prevailing Law Today 43

3.10 Conclusion 46

Chapter 4: Arguments from Fairness and Equal Protection: If a Right to Refuse, Then a Right to Assisted Suicide? 48

4.1 An Act /Omission Distinction? 49

4.2 A Causation-Based Distinction? 51

4.3 Toward an Intent-Based Distinction: The Insight of the Double Effect Principle 53

4.4 Some (Initial) Arguments against Double Effect: Conflating Intent and Foresight 57

4.5 Distinguishing Suicide, Assisted Suicide, and Euthanasia from the Right to Refuse: Intending versus Foreseeing Death 62

4.6 Some (Additional) Criticisms of Double Effect as Applied to the Assisted Suicide Debate 69

4.7 Conclusion 75

Chapter 5: Casey and Cruzan: Do They Intimate a Right to Assisted Suicide and Euthanasia? 76

5.1 The "Reasoned Judgment" Test and Its Critics 76

5.2 Casey-Based Arguments 79

5.3 Cruzan-Based Arguments 82

5.4 Conclusion 84

Chapter 6: Autonomy Theory's Implications for the Debate over Assisted Suicide and Euthanasia 86

6.1 The Autonomy Debate 86

6.2 The Neutralist View of Autonomy 87

6.3 The Harm Principle's Competing View 89

6.4 Perfectionism and Autonomy 90

6.5 The Implications of Autonomy Theory for the Assisted Suicide and Euthanasia Debate 93

Chapter 7: Legalization and the Law of Unintended Consequences: Utilitarian Arguments for Legalization 102

7.1 The Dutch Experience: "Virtually Abuse-Free"? 103

7.2 The Oregon Experience: An "All-Too Conscientious" Statutory Regime? 115

7.3 Legalization and Other Unintended Consequences 125

7.4 Decriminalization as a "Costless" Enterprise? 132

7.5 How to "Balance" the Costs and Benefits of Legalization? 138

7.6 Conclusion 141

Chapter 8: Two Test Cases: Posner and Epstein 143

8.1 Posner's Utilitarian Case for Assisted Suicide 143

8.2 Posner's and Epstein's Libertarian Case for Assisted Suicide 152

Chapter 9: An Argument against Legalization 157

9.1 The Inviolability of Human Life 157

9.2 What Does It Mean to Respect Human Life as a Basic Good? 163

9.3 Some Objections 167

9.4 The Future of the Oregon Experiment? 176

Chapter 10: Toward a Consistent End-of-Life Ethic: The "Right to Refuse" Care for Competent and Incompetent Patients 181

10.1 The Inviolability of Life and the "Right to Refuse" for Competent Persons 182

10.2 The "Right to Refuse" and Infant Patients 191

10.3 The "Right to Refuse" and Incompetent Adult Patients 204

10.4 Conclusions 215

Epilogue 219

Appendix A: Certain American Statutory Laws Banning or Disapproving of Assisted Suicide 227

Appendix B: Statistical Calculations 229

Notes 231

Bibliography 285

Index 303