Physician-Assisted Suicide: A Common Law Roadmap for State Courts

Abstract

Given the Supreme Court's rulings that there is no federal constitutional right to physician-assisted suicide, the locus of legal debate will move to state forums. Courts have more than twenty years' experience in legalizing the practice of "passively hastening death" by physicians. In so doing, they have had to confront state statutes criminalizing not only assisted suicide but homicide. They have done so by concluding that passively hastening death does not meet the requirements of these offenses and thus is not criminal conduct.

This article reexamines this approach to the legalization of passively hastening death and concludes that most of the arguments accepted by courts for its noncriminality are spurious. A more honest approach is to admit that passively hastening death meets the definition of a crime but to hold that liability should not be imposed because of the existence of consent. The author applies this analysis to actively hastening death and concludes that because there are no significant reasons to distinguish actively hastening death from passively hastening death, the two should be treated the same by state courts, that is, actively hastening death (including physician-assisted suicide) should also be legal.

Keywords: physician-assisted suicide, legalization, criminality, termination of life support