Twenty-five Years After Quinlan: A Review of the Jurisprudence of Death and Dying

Abstract:     
Two and a half decades have passed since the New Jersey Supreme Court made its hesitant but monumental contribution to end-of-life jurisprudence by ruling that a conscientious surrogate could seek removal of life support from a permanently unconscious patient. Since then, judges, legislators, and commentators have struggled with the issue of human control of the time and manner of dying. This article traces the successes and failures of their efforts to assure dying persons a modicum of dignity in the dying process.

Under the banners of self-determination and bodily integrity, American law has accorded considerable leeway to competent patients seeking to control their own dying processes. This article sketches the established prerogative to reject life-sustaining medical intervention, as well as the emerging prerogatives to stop eating and drinking and to obtain necessary pain relief even in dosage posing risk to life. At the same time, the article challenges the conventional wisdom regarding aggressive palliative care that seeks to transpose the doctrine of double effect from moral philosophy to the context of end-of-life care. And it asks whether public policy should continue the prevailing bans on assistance to suicide and voluntary active euthanasia in light of various means of hastening death that are now accepted.

The picture of end of life jurisprudence is bleakest as to dying patients who have lost capacity to make their own medical decisions. While law has established a sound theoretical framework recognizing prospective autonomy -- the prerogative of patients to use advance directives to try and shape their post-competence medical handling -- significant defects and obstacles have emerged in administration of the advance directive mechanism. The article also sketches the confusing patchwork of decision-making standards that are supposed to govern when people have not left clear indicia of their end-of-life treatment wishes. Besides underlining the weaknesses in several of the prevailing standards, the article suggests a solution in the form of a new standard called constructive preference. That standard seeks to implement the objective underlying most decision-making standards in the end-of-life context -- medical handling consistent with the vision of dignified death shared by most people.

Accepted Paper Series