Abstract

http://ssrn.com/abstract=2021589
 


 



The Legalization of Physician-Assisted Suicide: A Very Modest Revolution


David Orentlicher


Indiana University - Robert H. McKinney School of Law

March, 13 2012

Boston College Law Review, Vol. 38, p. 443, 1997

Abstract:     
In recent years, right-to-die law has apparently undergone a dramatic shift. At one time, the law drew a clear distinction between the withdrawal of life-sustaining treatment and physician assisted suicide. Treatment withdrawal was permitted, indeed required, upon the patient's request, while suicide assistance was widely prohibited. Over the past decade, the distinction has begun to erode.

Voters in Oregon enacted the first statute in the United States authorizing assisted suicide in 1994, and voters in Washington followed suit in 2008. While later overridden by the Supreme Court, the U.S. Courts of Appeals for the Ninth and Second Circuits recognized a constitutional right to assisted suicide for the first time in March and April 1996, respectively. As the law abandons the distinction between withdrawing lifesustaining treatment and assisting suicide, it seems that the law is undergoing a profound change.

This reading of the law is mistaken, however. Rather than a shift in the law, we are seeing the further development of the principles that have driven right-to-die law since the Quinlan case in 1976. For the same reasons that the law drew a distinction between treatment withdrawal and suicide assistance in the past, the law is now eliminating that distinction.

I will argue that physician assisted suicide has been prohibited not because it is meaningfully different from withdrawal of life-sustaining treatment, but because the distinction between suicide assistance and treatment withdrawal served as a useful proxy for distinguishing between morally acceptable and morally unacceptable decisions by patients to end their lives. Society commonly implements its principles through generally valid rules rather than through case-by-case determinations, recognizing that the rules will not fit every case perfectly but also recognizing the infeasibility of case-by-case determinations. The distinction between suicide assistance and treatment withdrawal is an example of rule-based decisionmaking that, in the view of the public and the courts, was an effective way to ensure that patients could end their lives only when they were morally justified in doing so.

Now, however, the distinction between physician assisted suicide and withdrawal of life-sustaining treatment has lost its utility as a moral proxy. With recent advances in medical treatment, there are many patients desiring assisted suicide whose wishes to end their lives are morally justified — in society's view. The distinction between assisted suicide and withdrawal of treatment no longer does a good job of sorting morally valid from morally invalid requests by patients to end their lives. Accordingly, the distinction is being replaced — and may continue to be replaced — by new proxy distinctions that allow for physician assisted suicide in limited situations.

Number of Pages in PDF File: 34

Keywords: assisted suicide, physician aid in dying, withdrawal of life-sustaining treatment

JEL Classification: I18, K19

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Date posted: March 14, 2012  

Suggested Citation

Orentlicher, David, The Legalization of Physician-Assisted Suicide: A Very Modest Revolution (March, 13 2012). Boston College Law Review, Vol. 38, p. 443, 1997. Available at SSRN: http://ssrn.com/abstract=2021589

Contact Information

David Orentlicher (Contact Author)
Indiana University - Robert H. McKinney School of Law ( email )
530 West New York Street
Indianapolis, IN 46202
United States
317-274-4993 (Phone)
317-274-0455 (Fax)

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