Assisted Suicide and the Challenge of Individually Determined Collecive Rationality, in Law at the End of Life: The Supreme Court and Assisted Suicide

Abstract

Assisted suicide is hard to discuss. The subject is simultaneously particular and universal, rife with tensions between the individual and the community and between the personal and policy. While frequently cloaked in a rhetoric of autonomy and individual rights, end-of-life decisions?including assisted suicide?have broader communal implications. The individual makes these decisions as a member of a community, and the community, in turn, is affected by the individual's choices. Given these many concerns, it is useful to discuss assisted suicide in terms of the various conversations at play. The first is a personal conversation in which the individual struggles with her own emotions, beliefs, and needs. The second is a conversation on a societal level which considers collective needs, obligations, and values. The third reflects an interplay between the first two and can be viewed as a conversation between the individual and society (or between our atomistic and social selves) over personal and collective concerns.

In Part II of this chapter I propose a framework in which individuals and society attempt in parallel ways to resolve the tensions between what is good for the individual and what is good for society as a whole. I will suggest that individuals are of two minds. In one mind, they ask what they want for themselves. For simplicity's sake, I call this "I-for-me" thinking. In the other mind, they ask what would be good for society ("I-for-us" thinking). Similarly, society has two minds. In one mind, it asks what is good for it as a collectivity ("we-for-us" thinking). In the other, it asks what is good for its members as individuals ("we-for-me" thinking). Understanding these perspectives and their implications for the development of social norms can help mediate some of the conflicting tensions in the assisted-suicide debate.

Part III frames the arguments in support of and in opposition to assisted suicide in terms of these categories. Arguments for recognizing an individual right to physician assisted suicide emphasize both the importance of individual autonomy and the reasons a terminally ill person might plausibly decide to end her life ? I-for-me reasoning. The arguments most persuasive to the Court in Glucksberg and Quill consisted of various forms of we-for-me reasoning. The Court was concerned about potential deficiencies in the way people make decisions that might undermine their ability to act in their own best interest. The Court was also concerned about numerous slippery-slope possibilities ? that is, arguments examining the adverse effects that recognizing a right to assisted suicide might have on non-competent and non-terminally ill persons. Scanted in the Supreme Court's opinions and much of the surrounding debate, however, are the concerns reflected in we-for-us and I-for-us reasoning. Do concerns over the sanctity of life justify a social norm prohibiting assisted suicide? Does the individual have any collectively based obligation to refrain from assisted suicide, regardless of whether it might be atomistically rational?

To answer these questions, we will step back from the debate over assisted suicide and scrutinize the relationship between individual and state. Part IV outlines a vision of society as an effort to shape a vibrant collective identity while simultaneously cultivating authentic individual efforts at self-definition and self-perfection. Reconciling the apparently contradictory goals of individual and society requires constant mediation between I-for-me and we-for-us reasoning. I will argue that the doctrine of substantive due process and the category of I-for-us rationality are uniquely suited to this mediating role and can help govern the formation of social norms.

Part V returns to the assisted suicide debate and explores how the positions for and against assisted suicide might be made more harmonious as a matter of policy and practice. Alternating consideration of the four perspectives in the matrix can promote the convergence of views at both an individual and a social level. Part V reexamines the reasons terminally ill people consider suicide and uncovers numerous communal as well as individual concerns. It explores the limitations of addressing the problems raised by assisted suicide solely in terms of individual autonomy or in terms of decision defects and slippery slopes. Finally, Part V reevaluates arguments concerning the sanctity of life and asks how norms predicated upon the value of life might be formed without sacrificing the dignity and decency of individual lives. While I cannot resolve all these issues, I hope to suggest a framework and a process that might introduce new approaches to a perduring problem.

Keywords: assisted suicide, medical ethics, social norms, collective rationality, substantive due process