Balancing Autonomy And Beneficence: The Legal, Sociopolitical, and Philosophical History of and Support for Legalizing Assisted Suicide (original) (raw)
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JAMA: The Journal of the American Medical Association, 1997
This article analyzes judicial determinations on the "right to die" from Quinlan to Cruzan, Glucksberg, and Vacco. The body of law known as right-to-die cases extends ordinary treatment refusal doctrine to end-of-life decisions. The courts, having affirmed a right to refuse life-sustaining treatment, held that certain categorical distinctions that had been drawn lacked a rational basis. No rational distinction could be made between competent vs incompetent patients, withholding vs withdrawing treatment, and ordinary vs extraordinary treatment. The courts, however, had persistently affirmed one categorical distinction: between withdrawing life-sustaining treament on the one hand and active euthanasia or physician-assisted dying on the other. In Washington v Glucksberg and Vacco v Quill, the Supreme Court unanimously held that physician-assisted suicide is not a fundamental liberty interest protected by the Constitution. Notably, five members of the Court wrote or joined in concurring opinions that took a more liberal view. The Court powerfully approved aggressive palliation of pain. The Supreme Court, hinting that it would find state legalization of physician-assisted suicide constitutional, invited the nation to pursue an earnest debate on physician assistance in the dying process.
Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications
This paper takes a general approach by examining foundational issues, and the primary focus is on a single jurisdiction: Canada. It outlines the current legal criteria for euthanasia and assisted suicide in Canada, identifying differences in criteria for the procedures set by the Supreme Court of Canada, Quebec’s unique provincial euthanasia law, and the Criminal Code. Commentary drawing from anecdotal reports from eight dissenting physicians offers some insight into their experience since legalization of the procedures. Material from the public record provides additional context, and the commentary is informed by difficulties that have arisen in relation to morally contested procedures. The experience of dissenting physicians is affected by a number of variables, including cultural and social dynamics, differing beliefs, differing moral and social sensitivity and individual personalities. Four sources of stress are identified: the demand for collaboration in killing, the prospect of punishment, the continuing need to distinguish between cooperation and collaboration, and concern for their patients. Particular concerns of palliative care physicians are discussed, as well as concerns shared by other dissenting physicians. A detailed review of the moral underpinnings of the trial court decision in Carter v. Canada demonstrates that morality precedes and drives law. From this it is argued that a judge will either assume or construct a moral justification that supports a decision, even if this is not explicitly articulated in legal reasoning. These assertions are tested against the ruling of the Irish High Court in Fleming v. Ireland &Ors, which came to radically different conclusions about the risks presented by legalization of assisted suicide and euthanasia. An extensive discussion distinguishes the obligation to kill from the more familiar authorization or justification of killing. An obligation to kill can be based upon a contract model of obligation, a social contract (professional) model, and a fiduciary model, each with increasingly serious consequences. To allow the state to enforce an obligation to kill under any of the three models is subversive of life, liberty and security of the person, even before issues of freedom of conscience and religion are considered. In addition, the implications of an obligation to kill suggest that, in the long term, assisted-suicide only regimes are likely to be unstable. Legislative developments demonstrate that the government of Canada supports totalitarian claims seeking total domination of will and intellect in moral decision-making, even in matters of life and death. The ground for this was prepared by demands that dissenting physicians should be forced to refer for abortion and contraception, which established popular support for the erroneous and incoherent principle that there can be a moral duty to do what one believes to be wrong. The Carter ruling formally ratified a new establishment orthodoxy, according to which refusing to at least collaborate in killing in circumstances defined by Carter is unacceptable. This new orthodoxy can be expected to operate at a foundational level, exerting a significant influence that may not be immediately obvious. A defense of freedom of conscience and religion must take this into account. In particular, the medico-legal establishment sees the exercise of freedom of conscience and religion through the dogmatic lens of the new orthodoxy. Dissenting physicians are viewed as heretics threatening an establishment theory of social contract. This is dogmatic moral imperialism, and not less so because the dogmatists are not ecclesiastical theorists and functionaries. It should be identified as such. Again, foundational moral beliefs shape jurisprudence. Judges should be challenged to candidly acknowledge and precisely articulate the philosophical or moral premises underpinning their positions. Similarly, what lies at the root of current controversies about freedom of conscience and religion is fundamental disagreement about the nature of the human person. Thus, judges should clearly acknowledge the credal concept of the human person that informs the evaluation of evidence and legal reasoning.