Physician-Assisted Suicide, Abortion, and Treatment Refusal: Using Gender to Analyze the Difference
PHYSICIAN-ASSISTED SUICIDE, Chapter 8, pp. 167-201, Robert Weir, ed., Indiana University Press, 1997
35 Pages Posted: 26 Jan 2011
Date Written: 1997
This chapter analyzes the claim that abortion rights and rights to terminate life-sustaining treatment ground a constitutional right to be free to obtain assisted suicide. This claim is central to plaintiffs’ case in Washington v. Glucksberg, one of two cases challenging the constitutionality of state bans on assisted suicide. Yet this claim ignores the fact that both abortion and treatment refusal are centrally about the right to be free of unwanted bodily invasion - an unwanted pregnancy and unwanted treatment. The chapter argues that this is a fundamental right, with special importance to women. However, these rights to be free of unwanted bodily invasion fail to ground a right to be free to seek bodily invasion for the purpose of ending your own life.
The chapter pursues a detailed analysis of the relationship among assisted suicide, treatment refusal, and abortion. The fact that abortion and treatment refusal require affirmative acts and may involve some bodily invasion does not alter the point of the activity - removal of something from the body. Cruzan in particular emphasizes at the traditional core of liberty a right to keep the government out of one’s body. A number of scholars have argued that the ability to keep others out of one’s body is fundamental to a sense of self, especially for women, who face heightened and unique threats to their physical boundaries.
By analyzing the structure and central concerns of abortion rights and rights to refuse treatment, the chapter demonstrates flaws in the effort to build a right to physician assistance with suicide on those rights. The chapter also shows the state’s countervailing interests to be far stronger in the case of assisted suicide. The abortion and treatment refusal cases thus fail to ground a constitutional right to assisted suicide. It remains up to the states to consider whether to allow the practice. The chapter suggests why a state that finds rights to refuse unwanted pregnancy and unwanted treatment to be core rights, should hesitate to permit assisted suicide.
Keywords: Physician-assisted suicide, euthanasia, termination of life-sustaining treatment, treatment refusal, end-of-life care, death and dying abortion, constitutional law, health law, gender, women, bioethics
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