Rights Discourse and Assisted Suicide

Penney Lewis

doi:10.1017/S0098858800011163

Rights Discourse and Assisted Suicide

Published online by Cambridge University Press: 24 February 2021

Penney Lewis

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Penney Lewis*: Affiliation:
King’s College London, Massachusetts Institute of Technology, 1989, University of Toronto, 1992, King’s College London, 1994, Columbia University, 1995, Supreme Court of Canada, 1992-93

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The debate surrounding the legalization of assisted suicide has been galvanized in recent years by reports of specific cases of assisted suicide, primarily involving physicians such as Kevorkian and Quill, and by impassioned pleas for legalization and assistance in suicide from individuals suffering in the throes of terminal or agonizing diseases, such as Sue Rodriguez. Media attention on criminal trials of individuals accused of assisting in a suicide has heightened public awareness of the issue. The constitutionality of criminal prohibitions on assisted suicide has been tested in various jurisdictions, and has recently been considered by the Supreme Courts of both the United States and Canada. Following two narrowly unsuccessful attempts to enact dignified death provisions by referenda in Washington and California, Oregon voters passed the first of such proposed laws in November 1994, providing for physician-assisted suicide under certain specified conditions. Attempts to introduce legislation to legalize assisted suicide in other jurisdictions have been galvanized by the success in Oregon. A model statute has been drafted by a group of law professors, philosophers and medical professionals.

Type: Articles
Information: American Journal of Law & Medicine , Volume 27 , Issue 1 , 2001 , pp. 45 - 99

DOI: https://doi.org/10.1017/S0098858800011163 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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¹ A majority of American jurisdictions impose criminal penalties on one who assists another in committing suicide. See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 280 (1990) (noting that a majority of states have laws imposing criminal penalties on assisted suicide); Compassion in Dying v. Washington, 850 F. Supp. 1454, 1464 n.9 (W.D. Wash. 1994); People v. Kevorkian, 527 N.W.2d 714, 731 n.51 (Mich. 1994) (listing state statutes criminalizing assisted suicide); see generally Catherine D. Shaffer, Criminal Liability for Assisting Suicide, 86 Colum. L. Rev. 348 (1986) (discussing the history of statutes prohibiting suicide assistance). Two more states have since enacted assisted suicide bans. See Iowa Code Ann. §§ 707A.1-A.3 (West 2000); R. I. Gen. Laws §§ 11-60-1 to 11-60-5 (1999). The Model Penal code contains a prohibition on assisting suicide. See Model Penal Code § 210.5(2) cmt.5 (1980). The United States now also prohibits the use of federal funds in support of physician assisted suicide. See Assisted Suicide Funding Restriction Act of 1997, 42 U.S.C. §§ 14401-14408 (2000). Internationally, the criminalization of assisted suicides is wide spread. See, e.g., The Suicide Act,1961, 9 & 10 Eliz. 2, ch. 60 (Eng.); Criminal Code of Canada § 241 (1915); Austrian Penal Act § 139b StGB (1966); Código Civil art. 409 (Spain); Codice Penale art. 580 (Italy). A minority of jurisdictions restrict the scope of criminalization of assistance in suicide. See, e.g, Code Pénal Suisse art. 115 (Switz.) (criminalizing assistance only where the assister’s motive was selfish rather than compassionate); Das Dänische Strafgesetz art. 240 (Den.) (punishing any person who assists another in committing suicide to fine or simple detention, but subjecting assistance of suicide committed for “reasons of personal interest” to imprisonment). See also Hirsch, Dana Elizabeth, Euthanasia: Is it Murder or Mercy Killing? A Comparison of the Criminal Laws in the United States, the Netherlands and Switzerland, 12 Loy. L.A. Int’l & Comp. L.J. 821, 838 (1990)Google Scholar; Sayid, Mustafa D., Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United States, 6 B.C. Int’l & Comp. L. Rev. 533, 533 (1983)Google Scholar (citing developments in medical technology as increasing the situations in which euthanasia is a seriously considered option); Otlowski, Margaret, Mercy Killing Cases in the Australian Criminal Justice System, 17 Crim. L.J. 10 (1993)Google Scholar (discussing the treatment of euthanasia in the Australian criminal justice system); Rodriguez v. British Columbia (Attorney-General), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342, 401 (observing that no western democracy expressly permits assisted suicide and that most countries impose criminal penalties for such acts of assistance).

² Since 1990, retired pathologist Dr. Jack Kevorkian has assisted in over one hundred suicides in Michigan. He was initially unsuccessfully charged with murder, and Michigan enacted a criminal prohibition on assistance in suicide in response to his actions. See Mich.Comp. Laws § 752.1027 (1993). Kevorkian was charged under the new law and both he and the Michigan chapter of the A.C.L.U. unsuccessfully challenged its constitutionality. See People v. Kevorkian, No. 93-11482, 1993 WL 603212, at *1 (Mich. Cir. Ct. 1993); Hobbins v. Attorney Gen., No. 93-306-178 CZ, 1993 WL 276833, at *7 (Mich. Cir. Ct. 1993). Both lower courts held that the right to commit suicide is guaranteed by the U.S. Constitution, but of the Michigan Court of Appeals reversed on the federal constitutional issue, in Hobbins v. Attorney General, 518 N.W.2d 487 (Mich. Ct. App. 1994) (finding no constitutional right to commit suicide). The Michigan Supreme Court affirmed on this issue in People v. Kevorkian, 527 N.W.2d 714, 732-33 (1994) (holding that the U.S. Constitution does not prohibit a state from imposing criminal penalties for assistance in suicide). The U.S. Supreme Court denied Kevorkian’s certiorari petition seeking to overturn the Michigan Supreme Court’s ruling. See Hobbins v. Kelley, 514 U.S. 1083 (1995). In addition, in 1991 an “Order of Permanent Injunction” enjoining him from assisting in a suicide was entered, and later affirmed by the Michigan Court of Appeals. See People v. Kevorkian, 534 N.W.2d 172 (Mich. Ct. App. 1995) (relying on the Michigan Supreme Court’s 1994 decision in People v. Kevorkian, 527 N.W.2d 714, which affirmed that assisted suicide was a common law crime). The Michigan Supreme Court denied leave to appeal this ruling. See 549 N.W. 2d 566 (Mich. 1996). Kevorkian’s certiorari petition to the U. S. Supreme Court on this matter was also denied. See Kevorkian v. Michigan, 519 U.S. 928 (1996). At the same time, Kevorkian brought an action for injunctive and declaratory relief against the Oakland County Prosecutor preventing him from prosecuting Kevorkian for “his assisted suicide activities.” See Kevorkian v. Thompson, 947 F. Supp. .1152, 1154 (E.D. Mich. 1997). The district court concluded, relying on the abstention rule from Younger v. Harris, 401 U.S. 37 (1971), that it should abstain from adjudicating the plaintiff Kevorkian’s claims, but would adjudicate those of the plaintiff Good, who was not facing a pending state action. See 947 F. Supp. at 1164-66. The court rejected the plaintiffs’ claims based on Due Process and Equal Protection, but held that the Michigan Supreme Court’s interpretation of the common law as prohibiting assisted suicide prior to the statutory prohibition enacted in December 1992 was unconstitutionally vague. See id. at 1167-74, 1179. Kevorkian was later jailed for second-degree murder following the broadcast on 60 Minutes of a videotape depicting Kevorkian giving a lethal injection to Thomas Youk. See Dirk Johnson, Kevorkian Sentenced to 10 to 25 Years in Prison, N.Y. Times, Apr. 14, 1999, at Al.

³ See Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 New Eng. J. Med. 691, 693-94 (1991) (describing his relationship with a patient called ‘Diane,’ diagnosed with terminal leukemia, and his decision to accede to her request to provide her with sufficient pills to enable her to take her own life when she felt the time was right).

⁴ Sue Rodriguez, a 42 year old British Columbia woman suffering from terminal amyotrophic lateral schlerosis (A.L.S. or Lou Gehrig’s Disease) petitioned the Canadian courts for a declaration that the criminal prohibition on assisted suicide violated her constitutional rights to life, liberty and security of the person, to freedom from cruel and unusual treatment, and to equality. Her case was heard by the Supreme Court of Canada in May 1993, and a decision dismissing her appeal was rendered in September 1993 by a 5-4 majority. See Rodriguez v. British Columbia (Attorney-General) [1993] 3 S.C.R. 519, 521-22 (concluding criminal prohibition on assisted suicide does not violate terminally ill patient’s constitutional rights). Rodriguez later committed physician-assisted suicide in the presence of a Member of Parliament with the assistance of an as-yet unnamed physician in February 1994. See Miro Cernetig, Police Suspect Rodriguez Suicide, Globe and Mail, Feb. 14, 1994, at Al ; Wilson, Deborah & Downey, Donn, Patient Fought to Die on Her Terms, Globe and Mail, Feb. 14, 1994Google Scholar, at A4. No charges were brought in connection with the death, although a special prosecutor was appointed to look into the matter. See Lawyer to Probe Rodriguez Suicide, Globe and Mail, Jan. 11, 1995, at Al; Passages, Maclean’s, July 10, 1995, at 9 (stating that a politician was cleared of criminal charges after observing an assisted suicide).

⁵ See, e.g., Bailey, Laurie, Man Accused of Helping Wife Die Won’t Face Trial, Toronto Star, July 29, 2000Google Scholar, at A8 (describing prosecution decision to stay charges against terminally ill Winnipeg man accused of assisting in his wife’s suicide); Belkin, Lisa, There’s No Simple Suicide, N.Y. Times, Nov. 14, 1993Google Scholar (Magazine), at 50 (describing assistance in suicide provided by Compassion in Dying, a Portland-based group formed to provide information, counseling, and legal and emotional support for competent terminally ill individuals, including aid in dying); Harrison, Eric, Man Acquitted of Abetting III Wife’s Suicide, L.A. Times, May 11, 1991Google Scholar, at A1 (recounting Michigan murder trial and acquittal of Bertram Harper, who was prosecuted after helping his terminally ill wife asphyxiate herself, prior to the enactment of Michigan’s ban on assisted suicide); Jacobs, Gerald, Assisted Suicide Cases Difficult to Prosecute; Defendants Have Little Chance of Facing Prison, Hartford Courant, Sept. 29, 1994Google Scholar, at A3 (describing five separate cases of assisted suicide in New England); Carol M. Ostrom, Seattle Group Aids in Suicide, Seattle Times, Aug. 20, 1993, at Al. By far the most extensive media coverage has focused on Dr. Kevorkian. His trials have been carried on the cable network Court TV and he has been the subject of numerous newspaper and television reports, including a Frontline documentary (The Kevorkian File, P.B.S. television broadcast, (first) Apr. 5, 1994). See, e.g., David Margolick, Kevorkian’s Trial Has Come to End But Debate on Assisted Suicide Hasn’t, N.Y. Times, May 4, 1994, at A16; David Margolick, Jury Acquits Dr. Kevorkian of Illegally Aiding a Suicide, N.Y. Times, May 3, 1994, at Al; Edward Walsh, Kevorkian Acquitted in Suicide: Former Pathologist Vows Continued Fight for Assisted Deaths, Wash. Post, May 3, 1994, at Al; James A. McClear & Mark Truby, Judge ‘Stops’Kevorkian with Jail, Detroit News, Apr. 14, 1999, at Al.

Dr. Timothy Quill was subject to a “very public criminal investigation” following the publication of the article describing his assistance in a suicide in the New England Journal of Medicine. See Death and Dignity: A Case of Individualized Decision Making, supra note 3, at 693-94. Quill and other witnesses testified before the grand jury, but no indictment was handed down. Quill v. Koppell, 870 F. Supp. 78, 80 (S.D.N.Y. 1994). The Second Circuit Court of Appeals noted that a Manhattan editor had recently been indicted by a grand jury on manslaughter charges for helping his wife commit suicide. Carey Goldberg, Suicide’s Husband Is Indicted, N.Y. Times, Dec. 15, 1995, at Bl, cited in Quill v. Vacco, 80 F. 3d 716, 723 (2d Cir. 1996). The defendant, George Delury, pleaded guilty to second-degree attempted manslaughter on March 15, 1996. See Pam Belluck, Man Will Get Prison Term for Helping His Wife Kill Herself, N.Y. Times, Mar. 16, 1996, at 23, 26, cited in Quill v. Vacco, 80 F.3d 716, 723 n.l (2d Cir. 1996).

⁶ See Vacco v. Quill, 521 U.S. 793, 799 (1997) (reversing lower court and holding that state statute criminalizing assisted suicide does not violate Equal Protection Clause); Washington v. Glucksberg, 521 U.S. 702, 735 (1997) (reversing lower court and holding that state prohibition of assisted suicide does not violate Due Process Clause); Donaldson v. Van de Kamp, 4 Cal. Rptr. 2d 59, 64 (Ct. App. 2d Dist. 1992) (holding that cancer-afflicted plaintiff, seeking premortem cryogenic preservation, has no constitutional right to state-assisted death); Krischer v. Mclver, 697 So. 2d 97, 100 (Fla. 1997) (following Supreme Court holding that there is no fundamental right to assisted suicide and holding state statute criminalizing assisted suicide constitutional); People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994) (reversing lower court and holding that state statute banning assisited suicide conforms with both state constitution and U.S. Constitution).

In Canada, see Rodriguez v. British Columbia [1993] 3 S.C.R. 519 (Can.) (upholding Criminal Code provision prohibiting assistance in suicide). The constitutionality of the U.K. prohibition on assisting a suicide was considered by the European Commission on Human Rights in R. v. United Kingdom, 6 Eur. H.R. Rep. 140 (1983) (affirming conviction of conspiring to aid and abet suicide where accused had facilitated contact between individuals desiring assistance in suicide and individual willing to provide such assistance). The European Commission upheld the prohibition as necessary in a democratic society to prevent abuses and protect health. R. v. United Kingdom, 6 Eur. H.R. Rep. at 144.

⁷ The Death with Dignity ballot proposal was introduced through the initiative process for the November 1991 elections. Initiative 119 would have legalized physician “aid in dying” for terminallyill competent patients. Despite favorable advance polls, the measure was defeated by fifty four percent to forty six percent. See Jane Gross, The 1991 Election: Euthanasia; Voters Turn Down Mercy Killing Idea, N.Y. Times, Nov. 7, 1991, at B16. Subsequently, Washington’s Natural Death Act was amended to expressly exclude physician assisted suicide. Wash. Laws, ch. 98, § 10 (1992); Wash. Rev. Code §70.122.100(1994).

⁸ California’s Proposition 161 was defeated in November 1992 by a majority of fifty four percent to forty six percent. The law would have allowed terminally ill adults with less than six months to live to request medical assistance in dying. See Ben Macintyre, Voters Hold Sway on Life and Death, The Times, Nov. 3, 1992, at 10; Virginia Ellis & Paul Jacobs, “Tax-the-Rich” Plan Put Hex on Welfare Cutbacks, L.A. Times, Nov. 5, 1992, at A3; Frank Jones, Euthanasia Boosters Aim to Kill Our Compassion, Toronto Star, Nov. 9, 1992, at Dl. A later ballot initiative in Michigan was also unsuccessful. See William Claiborne & Edward Walsh, Mich. Assisted-Suicide Initiative Defeated, Wash. Post, Nov. 4, 1998, at A34.

⁹ See The Oregon Death with Dignity Act, Or. Rev. Stat. §127.800 (1996). Oregon voters passed the ballot measure in November 1994 by a majority of fifty-two percent. The measure allows terminally ill persons with less than six months to live to request a prescription of a lethal dose of drugs to end unbearable suffering. Two doctors must concur in the determination that the patient’s condition is terminal, the request must be made at least three times, and the third time must be in writing before witnesses. The Oregon measure differs from the California and Washington proposals in that the administration of the lethal dose must be by the patient, and not the doctor. Voters in Oregon Allow Doctors To Help the Terminally III Die, N.Y. Times, Nov. 11, 1994, at A28. Immediately prior to the implementation of the Oregon Death with Dignity Act, an injunction was issued enjoining its operation. See Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995) (holding that the statute violates the Equal Protection Clause). This injuction was later vacated. See Lee v. Oregon, 107 F.3d 1382, 1392 (9th Cir. 1997) (concluding that plaintiffs lacked Article III standing). Subsequently the U.S. Supreme Court denied certiorari, sub nom in Lee v. Harcleroad, 522 U.S. 927 (1997). The measure was again placed on the ballot in 1997 and affirmed by a sixty percent majority. The Oregon Health Division has now published three annual reports detailing the first three years of the Death with Dignity Act. See Oregon Health Division, Oregon’s Death with Dignity Act: The First Year’s Experience (1999) (visited Jan. 23, 2001) <http://www.ohd.hr.state.or.us/chs/pas/yearl/ar-index.htm> Oregon Health Division, Oregon’s Death with Dignity Act: The Second Year’s Experience (2000) (visited Feb. 22, 2001) <http://www.ohd.hr.state.or.us/chs/pas/year2/ar-index.htm> Oregon Health Division, Oregon’s Death with Dignity Act: Three years of legalized physician-assisted suicide (2001) (visited Feb. 22, 2001) <http://www.ohd.hr.state.or.us/chs/pas/ar-index.htm>. The Pain Relief Promotion Act of 2000, S. 2607, 106th Cong. (2000) failed to gain passage in the Senate but may be re-introduced in 2001. See August Gribbin, Hill Measure Would OK Illicit Drugs for Palliation, Wash. Times, Jan. 7, 2001, at A7. The Act would amend the federal Controlled Substances Act (21 U.S.C.A. § 801 et seq.) to prevent doctors “intentionally dispensing, distributing or administering a controlled substance for the purpose of causing death or assisting another person in causing death.” S. 2607, 106th Cong. § 201(a)(1) (2000). This measure would prevent Oregon doctors from using federally controlled drugs in assisted suicide cases, but would not prevent alternative methods of assistance with suicide (although only assistance using prescription medication is currently covered under the Oregon statute). See Jim Barnett, Assisted Suicide Has September Showdown, Oregonian, July 28, 2000, at Al.

¹⁰ A referendum on legalization in November, 2000 in Maine was narrowly defeated by 51.5 percent to 48.5 percent. See Wesley Smith, Dead Wrong But Still Kicking: The Physician-Assisted Suicide Movement Loses Again, Weekly Standard, Dec. 18, 2000, at 21. Either legislative action or ballot initiatives have been recently contemplated in Arizona, California, Connecticut, Hawaii, Louisiana, Massachusetts, Minnesota, and New Hampshire. See Assisted Suicide Bill Put On Hold Until Next Year, L.A. Times, May 29, 1999, at Al 8; Mark Gladstone, Assisted-Suicide Debate Shifts to State, L.A. Times, Apr. 20, 1999, at A3; Abraham McLaughlin, No Verdict in Assisted-Suicide Debate, Christian Sci. Monitor, Mar. 29, 1999, at 3; Richard Saltus & Dolores Kong, Medical Ethicists Say They Are Pleased With Verdict, Boston Globe, Mar. 27, 1999, at A6.

In 1995, the Northern Territory of Australia passed legislation legalizing physician-assisted suicide (as well as physician-performed voluntary active euthanasia). See Rights of the Terminally 111 Act, 1995 (as amended) (Austl.). The Act was overturned by the Australian Senate in 1997. See Euthanasia Laws Act, 1997 (Austl.).

¹¹ See Charles H. Baron et al., A Model State Act To Authorize And Regulate Physician-Assisted Suicide, 33 Harv. J. on Legis. 1, 2 (1996).

¹² Daniel Callahan, The Troubled Dream of Life: Living with Mortality 23 (1993) [hereinafter The Troubled Dream of Life]. See also Sherwin B. Nuland, How We Die: Reflections on Life’s Final Chapter xv (1994) (“Modern dying takes place in the modern hospital, where it can be hidden, cleansed of its organic blight, and finally packaged for modern burial.”); Philippe Aries, Western Attitudes Toward Death: From the Middle Ages to the Present (Patricia M. Ranum trans., The Johns Hopkins University Press 1974).

¹³ See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990) (recognizing that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” and extending that principle to incompetent patients in certain circumstances); In re Quinlan, 355 A.2d 647, 664 (N.J. 1976) (holding that a comatose individual has a constitutional privacy right to be free from bodily invasion, that such right is not diminished by the individual’s incompetence and could be exercised by the parent on her behalf).

¹⁴ See Callahan, The Troubled Dream of Life, supra note 12, at 39-40.

¹⁵ Id. at 39.

¹⁶ See id. at 39-40.

¹⁷ See Ronald Dworkin, Taking Rights Seriously xi (1977).

¹⁸ See Minow, Martha, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860, 1899(1987)CrossRef Google Scholar.

¹⁹ Callahan, Daniel, Can We Return Death to Disease?, Hastings Center Rep., Jan.-Feb. 1989, at 4 (Special Supp.)CrossRef Google Scholar.

²⁰ See id.

²¹ See, e.g., Samuel E. Wallace & Albin Eser, The Rights of Personhood, in Suicide and Euthanasia: The Rights of Personhood 99,101 (Samuel E. Wallace & Albin Eser eds., 1981).

²² See, e.g., Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 Harv. L. Rev. 2021, 2023-31 (1992). Interesting, the lead opinion in the Michigan Supreme Court case rejecting the federal constitutional arguments in favor of legalization begins with the assertion that what is at issue is the existence of a fundamental right to commit suicide, from which a right to assistance may be derived. People v. Kevorkian, 527 N.W.2d 714, 724 (Mich. 1994) (Cavanagh, C.J. & Brickley & Griffin, JJ.). “An attempt to find a liberty interest in assisted suicide independent of a liberty interest in suicide itself cannot succeed. If the Due Process Clause does not encompass a fundamental right to end one’s life, it cannot encompass a right to assistance in ending one’s life.” 527 N.W.2d at 726 n.35. Levin J., dissenting, argues that “[b]y framing the question in this manner, the lead opinion foreordains the answer. . . . The real issue is not whether the state can generally prohibit suicide. The real issue is whether the state may deny a competent, terminally ill person, facing imminent, agonizing death, medical assistance to commit suicide.” 527 N.W.2d at 748.

²³ “It is argued that, because suicide is a constitutional right, laws that forbid assisting the commission of suicide can no more be constitutional than could the imposition of criminal penalties for assisting another to reach a voting booth or a place of worship.” Thomas J. Marzen et al., Suicide: A Constitutional Right?, 24 Duq. L. Rev. 1, 8 (1985).

²⁴ See, e.g., Ariens, Michael, Suicidal Rights, 20 Rutgers L.J. 79 (1988)Google Scholar. See also Washington v. Glucksberg, 521 U.S. at 723 (Rehnquist, C.J.) (“[T]he question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”); People v. Kevorkian, 527 N.W.2d 714, 730 n.47 (Mich. 1994).

²⁵ See, e.g., Bopp, James, Jr., Is Assisted Suicide Constitutionally Protected?, 3 Issues in L. & Med. 113, 129 (1987)Google Scholar; Quill v. Vacco, 80 F.3d 716, 724 (2d Cir. 1996) (*’[R]ight to assisted sucide finds no cognizable basis in the Constitution’s language or design.”).

²⁶ See Margaret Pabst Battin, Ethical Issues in Suicide 184-85 (1995). Other typologies are of course possible. See Isaiah Berlin, Two Concepts of liberty, in Four Essays on Liberty 118, 121-22 (1969) (distinguishing between positive and negative liberty); Hart, H.L.A., Are There Any Natural Rights?, 64 hil. Rev. 175 (1955)Google Scholar, reprinted in Rights 14, 20 (David Lyons ed., 1979) (distinguishing between general and special rights); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions 36 (1919) (distinguishing between claim-rights, liberties, powers and immunities). For the purposes of this article, the distinctions between liberty rights, rights to non-interference, and positive rights prove most helpful.

²⁷ The liberty right would be a freedom to commit assisted suicide. The right to noninterference would mean that others have a duty not to interfere with the assisted suicide, that is, with either the individual or the assister. The positive right would involve a duty on the part of others to be the assister. See Battin, supra note 26, at 185.

²⁸ See, e.g., Engelhardt, H. Tristram, Jr. & Malloy, Michele, Suicide and Assisting Suicide: A Critique of Legal Sanctions, 36 Sw. L.J. 1003, 1013 (1982)Google Scholar; de Wachter, Maurice A.M., Euthanasia in the Netherlands, Hastings Center Rep., Mar.-Apr. 1992CrossRef Google Scholar, at 23, 26 (reporting remarks of Professor William J. Winslade); Leon R. Kass, Is There a Right to Die?, Hastings Center Rep., Jan.-Feb. 1993, at 34, 39-42 (examing various perspectives on the liberty interest in the right to die). One commentator writes:

[T]he right to die with assistance would provide only a right against state interference, not a right to force an unwilling physician to assist in a patient’s suicide. . . . Similarly, patients have no right to force unwilling physicians to withdraw life-sustaining treatment. . . . Instead, a physician may make arrangements for the patient’s transfer to another physician or hospital that will withdraw treatment.

Note, Physician-Assisted Suicide and the Right to Die with Assistance, supra note 22, at 2024 & n.29 [citations omitted]; Ronald Dworkin et al., Assisted Suicide: The Philosophers’ Brief, N.Y. Rev. of Books, Mar. 27, 1997, at 41, 45 (reprinting the amid curiae brief filed in the Supreme Court by the authoring moral philosophers prior to the hearing of Vacco v. Quill, 521 U.S. 793 (1997) and Washington v. Glucksberg, 521 U.S. 702 (1997)). On rights to non-interference generally, see John L. Mackie, Can There Be a Right-Based Moral Theory!, 3 Midwest Stud. Phil. 350 (1978), reprinted in Theories Of Rights 168 (Jeremy Waldron ed., 1984); Hart, Are There Any Natural Rights?, supra note 26, at 185.

²⁹ One commentator who does propose a positive right to suicide is Steven Neeley who observes that: “[g]ravely ill, competent patients who wanted to die, even if not ensnared by invasive life-support apparatus, could compel the administration of lethal agency, and arguably, present certain positive claims against others.” G. Steven Neeley, The Constitutional Right to Suicide: A Legal and Philosophical Examination 83 (1994). The possibility of recognizing a positive right to assisted suicide in the United States is even less likely since the passing of a federal law prohibiting the use of federal funds for assisted suicide. See Assisted Suicide Funding Restriction Act of 1997, 42 U.S.C § 14401.

Other commentators are less clear about the type of right they are proposing. Ronald Dworkin, who at least implicitly bases an argument in favor of euthanasia on a right-based analysis of dignity, uses both a negative (liberty or non-interference) formulation, and a positive (welfare) formulation of that analysis. Dworkin first discusses the limited idea “that people have a right not to suffer indignity, not to be treated in ways that in their culture or community are understood as showing disrespect. Every civilized society has standards and conventions defining these indignities, and these differ from place to place and time to time.” Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 233 (1993). Later, a more expansive (positive) formulation is provided: “The right to dignity . . . requires the community to deploy whatever resources are necessary to secure it.” Id. at 233-34.

³⁰ See Battin, Ethical Issues in Suicide, supra note 26, at 181. Such a positive right could be formulated as a right to assistance in suicide. In the context of euthanasia, if one person has a right to be killed, then another has a duty to kill him. See Peter Williams, Rights and the Alleged Right of Innocents to Be Killed, in Bioethics and Human Rights 141(Elsie L. Bandman & Bertram Bandman eds., 1978). Similarly, if a person has a right to assistance in suicide, then another has a duty to provide that assistance. This kind of rights claim faces stiff opposition. For example, Robert Weir argues that patients should not request physician-assisted suicide on the grounds of the distinction between positive and negative rights:

A decision made by a patient to forgo mechanical ventilation, feeding tubes, or some other life-sustaining treatment involves the negative right (or liberty right) of treatment refusal. A correlate of this negative right is the obligation of the patient’s physician not to interfere with or thwart that negative right unless the physician has some overriding obligation of another sort. By contrast, a request by a patient for a physician’s assistance in committing suicide can be interpreted as involving a positive right (or welfare right), or at least a claim to that effect. The difference is important: the patient does not merely request to be left alone by the physician, but tries to impose a moral obligation on the physician to help the patient accomplish the desired end of self-destruction. That claim, whether based on merit or need, is weak, and certainly need not be regarded as imposing an obligation on the physician who receives it.

Robert F. Weir, The Morality of Physician-Assisted Suicide, 20 Law, Med. & Health Care 116, 121 (1992).

³¹ See, e.g., DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195-96 (1989) (holding that Due Process Clause of Fourteenth Amendment does not constitute “a guarantee of certain minimal levels of safety and security . . . [and] confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”).

³² See Laurence H. Tribe, American Constitutional Law §12-25, at 998 (2d ed.1988); J.M. Balkin, Frontiers of Legal Thought II The New First Amendment: Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 402 (discussing that holding a leafletting ban unconstitutional resulted in forcing a state to subsidize such expressive activity by absorbing the cost of extra litter prevention). This negative conception of free expression guarantees has been subject to criticism. Compare Susan H. Bitensky, Theoretical Foundations for a Right to Education under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 602 (1992) (arguing that an implied positive right to education would be consistent with and would go to the very essence of free speech under the First Amendment); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 Geo. Wash. L. Rev. 587, 609-10 (1993) (arguing that limiting the free speech guarantee to negative protection overlooks existing resource inequalities and the silencing effects of subordination on grounds of race, gender and class). See generally Thomas I. Emerson, The Affirmative Side of the First Amendment, 15 GA. L. Rev. 795 (1981) (describing the role of the First Amendment as serving to pevent the government from harassing, or interfering with speech or other forms of communication); Ronald A. Cass, The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory, 34 Ucla L. Rev. 1405 (1987) (describing modern debate in First Amendment theory). The generally ‘negative’ conception of free speech contained in the First Amendment can be contrasted with the positive right to free expression found in some state constitutions. See Evan G.S. Siegel, Closing the Campus Gates to Free Expression: The Regulation of Offensive Speech at Colleges and Universities, 39 Emory L.J. 1351, 1394-95 (1990) (describing positive free speech provisions in 38 state constitutions).

³³ For example, some state constitutions require government to provide certain services to citizens. See Langdon & Kass, Homelessness in America: Looking for the Right to Shelter, 19 Colum. J. L. & Soc. Probs. 305, 332-35 (1985) (“In most states, the poor have no explicit constitutional right to receive aid . . . only six state constitutions contain language which unambiguously obligates the government to provide for the needs of the poor.”) .

³⁴ G.A. Res. 217, U.N. Doc. A/811 at 71, arts. 22-25 (1948) (recognizing rights to work, free education, reasonable limitation of working hours, social security, and adequate standard of living including food, clothing, housing and medical care).

³⁵ See. e.g., Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (W.D. Wash., 1994) (plaintiffs allege that the Fourteenth Amendment grants them a liberty interest in physician-assisted suicide); Quill v. Koppell, 870 F. Supp. 78 (S.D.N.Y. 1994).

³⁶ See, e.g., Compassion in Dying , 850 F. Supp. at 1459; Quill, 870 F. Supp. at 82 (concluding that “if such a constitutional right resides in the patient, then there would be a corresponding constitutional right of the physician not to be prosecuted for assisting in the exercise of the patient’s constitutional right”).

³⁷ See John Stuart Mill, On Liberty 13 (C. Shields ed., 1956) (1859) (“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”). See Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626, 633 (Mass. 1986); In re Caulk, 480 A.2d 93, 100 (N.H. 1984) (Douglas, J., dissenting) (both citing this passage from Mill in support of a ‘right to die’). But see Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting) (rejecting as a constitutional principle the “liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same”). On the question of ‘harm,’ see infra text accompanying notes 200-202.

³⁸ See French Declaration of the Rights of Man and of Citizens IV, found in Thomas Paine, Rights of Man 133 (1976) (1st ed. 1792). An alternative formulation of this argument is that individuals have a (natural) equal right to be free. See Hart, Are There Any Natural Rights?, supra note 26, at 175. In the right to die context, see Robert L. Risley, Legal and Ethical Issues in the Individual’s Right to Die, 20 Ohio N.U.L. Rev. 597, 609-10 (1994) (“Americans must fight to win the right to a humane and dignified death .. . the right to be free to decide our own fate; a fundamental concept of Western civilization.”).

³⁹ Alister Browne, Assisted Suicide and Active Voluntary Euthanasia, 2 Can. J.L. & Jurisprudence 35, 38 (1989). See also Glanville Williams, The Sanctity of Life and the Criminal Law 341, 346 (1957) (“On a question like this there is surely everything to be said for the liberty of the individual.”); Wallace & Eser, The Rights of Personhood, supra note 21, at 101 (“everyone necessarily has th[e] right [to commit suicide] as part of his or her freedom.”).

⁴⁰ See Engelhardt & Malloy, supra note 28, at 1010-11.

⁴¹ Id. at 1010.

⁴² Ronald Dworkin explains:

a true appreciation of dignity argues .. . for individual freedom, not coercion, for a regime of law and attitude that encourages each of us to make mortal decisions for himself. Freedom is the cardinal, absolute requirement of self-respect: no one treats his life as having any intrinsic, objective importance unless he insists on leading that life himself, not being ushered along it by others, no matter how much he loves or respects or fears them.

Dworkin, Life’s Dominion, supra note 29, at 239. Dignity is cited as one possible basis for the right to liberty, from which a right to suicide or assisted suicide could be derived. Such a right may also be derived directly from the right to dignity. See infra text accompanying notes 66-70.

⁴³ Mill writes:

by selling himself for a slave, [a person] abdicates his liberty, he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. . . . The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom.

Mill, On Liberty, supra note 37, at 173. See also Pollack v. Williams, 322 U.S. 4 (1944). For a critique of this conception of negative liberty, see Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1902-03 (1987).

⁴⁴ See New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 88 (1994); Callahan, Can We Return Death to Disease?, supra note 19, at 5; T. Douglas Kinsella, Legalized Active Euthanasia: An Aesculapian Tragedy, Am. College of Surgeons Bull., Dec. 1989, at 6, 7; Richard Doerflinger, Assisted Suicide: Pro-Choice or Anti-Life?, Hastings Center Rep. Jan.-Feb. 1989, at 16, 17:

[S]uicide is not the ultimate exercise of freedom but its ultimate self-contradiction: A free act that by destroying life, destroys all the individual’s future earthly freedom. If life is more basic than freedom, society best serves freedom by discouraging rather than assisting self-destruction. Sometimes one must limit particular choices to safeguard freedom itself, as when American society chose over a century ago to prevent people from selling themselves into slavery even of their own volition.

⁴⁵ Dan Brock, Life and Death 98 (1993). See also David A.J. Richards, Constitutional Privacy, The Right to Die and The Meaning of Life: A Moral Analysis, 22 Wm. & Mary L. Rev. 327, 339-43 (1981). Richards summarizes the neo-Kantian position on human rights, derived from a commitment to autonomy and treating people as equals:

to express equal respect for personal autonomy is to guarantee the minimum conditions requisite for autonomy; ethical principles of obligation and duty rest upon and insure that this is so and correlatively define human rights. Without such rights, human beings would lack, inter alia, the basic opportunity to develop a secure sense of an independent self.

Id. at 343.

⁴⁶ Brock, Life and Death, supra note 45, at 126-27; Dworkin, Life’s Dominion, supra note 29, at 224; see generally Gerald Dworkin, The Theory and Practice of Autonomy (1988).

⁴⁷ Neeley, The Constitutional Right to Suicide, supra note 29, at 80. The concurring opinion of Compton J. in the well-known Bouvia case contains a similarly confident assertion: “The right to die is an integral part of our right to control our own destinies so long as the rights of others are not affected. That right should . . . include the ability to enlist assistance from others, including the medical profession, in making death as painless and quick as possible.” Bouvia v. Superior Court (Glenchur), 179 Cal. App. 3d 1127, 1147 (Cal. Ct. App. 1986) (Compton, J., concurring). See also George C. Garbesi, The Law of Assisted Suicide, 3 Issues In L. & Med. 93, 108 (1987) (arguing that international human rights law protecting individual autonomy encompasses the right to assisted suicide for the terminally ill); Jack Kevorkian, The Last Fearsome Taboo: Medical Aspects of Planned Death, 7 Med. & L. 1, 9 (1988) (“Perhaps the greatest advantage [of the legalization of planned death] would be the further unshackling of the primal human right of what should be absolute personal autonomy within the bounds of reasonable law.”); Hobbins v. Attorney Gen., 518 N.W. 2d 487, 490 (Mich. Cir. Ct. 1993) (finding that Fourteenth Amendment right of self-determination includes right to choose to cease living).

⁴⁸ Wallace & Eser, The Rights of Personhood, supra note 21, at 101.

⁴⁹ Id.

⁵⁰ See, e.g., Margaret A. Somerville, The Song of Death: The Lyrics of Euthanasia, 9 J. Contemp. Health L. & Pol’y 1, 18 (1993); Weir, supra note 30, at 124; Note, Physician-Assisted Suicide and the Right to Die with Assistance, supra note 22, at 2026; Callahan, The Troubled Dream of Life, supra note 12, at 16-17.

⁵¹ Richards, supra note 45, at 359-60. This issue has generated significant debate in legal, bioethical and medical circles. Some opponents of the legalization of assisted suicide argue that autonomous, rational suicide does not exist, and that a desire for death is a sign of mental illness, and not of rational choice. See, e.g., Victor D. Rosenblum & Clarke G. Forsythe, The Right to Assisted Suicide: Protection of Autonomy or an Open Door to Social Killing?, 6 Issues L. & Med. 3, 23 (1990). Dr. Timothy Quill, one of the central players in the debate over the legalization of assisted suicide, disagrees: “it is not idiosyncratic, selfish, or indicative of a psychiatric disorder for people with an incurable illness to want some control over how they die. The idea of a noble, dignified death, with a meaning that is deeply personal and unique, is exalted in great literature, poetry, art, and music.” Timothy E. Quill et al., Care of the Hopelessly III: Proposed Clinical Criteria for Physician-Assisted Suicide, 327 New Eng. J. Med. 1380, 1380 (1992).

⁵² For example, Professor Yale Kamisar, a consequentialist opponent of the legalization of assisted suicide on the grounds of the danger of abuses and slippery slopes, observes that “unless we carry the principle of self-determination or personal autonomy to its logical extreme—assisted suicide by any competent person who clearly and repeatedly requests it for any reason she deems appropriate— we have to find a “stopping point” somewhere along the way.” Yale Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, Hastings Center Rep., May-June 1993, at 32, 39 [emphasis in original].

⁵³ Kass, Is There a Right to Die?, supra note 28, at 39-40. See also John A. Alesandro, Physician-Assisted Suicide and New York Law, 57 Alb. L. Rev. 819, 923 n.559 (1994); Bopp, supra note 25, at 128; Doerflinger, supra note 44, at 17 (“an unqualified ‘pro-choice’ defense of assisted suicide lacks coherence because corpses have no choices. A particular choice, that of death, is given priority over all the other choices it makes impossible, so the value of choice as such is not central to the argument.”).

⁵⁴ Joel Feinberg, The Nature and Value of Rights, 4 J. Value Inquiry 243, 252 (1970), reprinted in Joel Feinberg, Rights, Justice, and the Bounds Of Liberty 143, 151 (1980) (“Having rights . . . makes claiming possible; but it is claiming that gives rights their special moral significance.”).

⁵⁵ Id. See also A. Melden, Rights and Persons 25 (1977) (“to demand our rights, to assert ourselves as the moral agents we are, is to be able to demand that we be dealt with as members of the community of human beings. This is what moral dignity involves . . . .”).

⁵⁶ See Carl Schneider, Rights Discourse and Neonatal Euthanasia, 76 Calif L. Rev. 151, 164 (1988).

⁵⁷ See F.G. Miller & J.C. Fletcher, The Case for Legalized Euthanasia, 36 Perspectives in Biology and Med. 163, 163-64 (1993); Quill et al., Care of the Hopelessly III, supra note 51, at 1382; David T. Watts & Timothy Howell, Assisted Suicide Is Not Euthanasia, 40 J. Am. Geriatrics Soc. 1043, 1044-45 (1992). “The discussion [of assisted suicide] could . . . give the patient a sense of control; an important factor in emotional and physical well-being.” James K. Rogers, Punishing Assisted Suicide: Where Legislators Should Fear to Tread, 20 Ohio N.U. L. Rev. 647, 656 (1994).

⁵⁸ Note that this argument would also apply if the right to assisted suicide for the physically disabled were derived from the right to equality. See infra text accompanying notes 168-171, 116-122, 136-140.

⁵⁹ Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal. App. 2d Dist. 1986) (Compton, J., concurring).

⁶⁰ Alan Sullivan, A Constitutional Right to Suicide, in Suicide: The Philosophical Issues 229, 231 (Margaret Pabst Battin & David J. Mayo eds., 1980).

⁶¹ Id. at 240-41.

⁶² See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). There the Court held that state restrictions on the withdrawal of hydration and nutrition from patients in a persistent vegetative state (requiring clear and convincing evidence of the incompetent patient’s wishes) are not unconstitutional. The Court assumed for the purposes of the case that the Constitution “would grant a competent person a constitutionally protected right to refuse life-saving hydration and nutrition.” Id. at 279. Although Chief Justice Rehnquist was careful to state that the decision centered not on the right to privacy but on a Fourteenth Amendment liberty interest, see id. at 279 n.7, the decision has been widely interpreted as a involving the right to privacy. See infra note 63.

The possible use of Article 8 of the European Convention (the right to respect for one’s private life) in support of a claim to lawful assistance in suicide was acknowledged by the European Commission on Human Rights in Appeal No. 10083/82 v. United Kingdom, 6 Eur. H.R. Rep. 140, 143-44 (1984). The defendant had facilitated contact between individuals desiring assistance in suicide and an individual willing to provide such assistance. The Commission distinguished the case before it from an individual’s claim for assistance with suicide and affirmed the constitutionality of the U.K. Suicide Act prohibition on assisting a suicide and the convictions for aiding and abetting suicide and conspiring to aid and abet suicide. See id.

⁶³ See Steven J. Wolhandler, Voluntary Active Euthanasia for the Terminally III and the Constitutional Right to Privacy, 69 Cornell L. Rev. 363, 375 (1984). Wolhandler argues further that the constitutional right to privacy includes the right to assistance in suicide within the “constitutional penumbra of protection.” Id. See also Richards, supra note 45. The privacy-based argument derived from Cruzan was accepted by the District Court and by Justice Wright, dissenting in the first Ninth Circuit decision in Compassion in Dying v. Washington, 49 F.3d 586, 595-96 (9th Cir. 1995) (Justice Wright held that terminally ill, mentally competent adults have a fundamental privacy right to choose physician-assisted death), rev’g 850 F. Supp. 1454 (W.D. Wash. 1994). The argument that there is no legal distinction between the right to refuse treatment and the right to suicide or assisted suicide is discussed in greater detail below. See infra text accompanying notes 179-180.

⁶⁴ See. e.g., Battin, Ethical Issues in Suicide, supra note 26, at 176-91; William T. Blackstone, Human Rights and Human Dignity, 9 Phil. Forum 3 (1971); Herbert Spiegelberg, Human Dignity: A Challenge to Contemporary Philosophy, 9 Phil. Forum 39 (1971); Arnold S. Kaufman, A Sketch of a Liberal Theory of Fundamental Human Rights, 52 The Monist 595 (1968); Michael S. Pritchard, Human Dignity and Justice, 82 Ethics 299 (1972).

⁶⁵ Justice Stevens has referred to the individual’s interest in dignity as part of the basic concept of freedom. See Washington v. Glucksberg, 521 U.S. 702, 743 (1997); Cruzan v. Director, Mo. Dep’t of Helath, 497 U.S. 261, 344, 356 (1990) (Stevens, J., dissenting). One legal scholar who does emphasize the right to dignity is Ronald Dworkin, although his analysis seems closer to a moral philosopher’s than to a lawyer’s. Dworkin discusses whether indignity is contrary to our experiential (interests in the quality of our future experiences) or critical interests (interests in the “character and value of our lives as whole”). Dworkin, Life’s Dominion, supra note 29, at 235. This distinction will affect how the right to dignity is framed: on the experiential theory it is supposed that “indignity causes its victims distinctive and especially severe mental pain, that people resent and therefore suffer more from indignity than from other forms of deprivation. People denied dignity may lose the self-respect that dignity protects, moreover, and then suffer an even more serious form of distress: sel-contempt or self-loathing.” Id. at 234. Dworkin contends that “this experiential theory of indignity is unpersuasive . . . because it does not explain central features of our convictions about dignity.” Id. at 235. As an example Dworkin cites the fact that we do not think indignity does not exist when its subject is not aware of the indignity; for Dworkin, therefore, the right to dignity is connected to an individual’s critical interests: “A person’s right to be treated with dignity . . . is the right that others acknowledge his genuine critical interests: that they acknowledge that he is the kind of creature, and has the moral standing, such that it is intrinsically, objectively important how his life goes. Dignity is a central aspect of the . . . intrinsic importance of human life.” Id. at 236.

⁶⁶ See, e.g., Margaret Pabst Battin, The Least Worst Death: Essays in Bioethics on the End of Life 280-81 (1994); Battin, Ethical Issues in Suicide, supra note 26, at 187.

⁶⁷ See, e.g., Dworkin, Life’s Dominion, supra note 29, at 233 (“[Pjeople have a right not to suffer indignity, not to be treated in ways that in their culture or community, are understood as showing disrespect.”).

⁶⁸ Battin, The Least Worst Death, supra note 66, at 280-81. Perhaps the most powerful endorsement of rights as connected to human dignity is found in Feinberg, The Nature and Value of Rights, supra note 54. Feinberg writes:

Having rights . . . makes claiming possible; but it is claiming that gives rights their special moral significance. . . . To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons . . . may simply be respect for their rights, so that there cannot be the one without the other; and what is called “human dignity” may simply be the recognizable capacity to assert claims. To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims.

Id. at 151. See also Dworkin, Taking Rights Seriously, supra note 17, at 198 (basing his account of rights on “the vague but powerful idea of human dignity” and the “more familiar idea of political equality”).

⁶⁹ Dignity was also discussed as one possible basis for a general right to liberty, from which a right to suicide or assisted suicide could be derived. See supra text accompanying note 42. It is interesting to note that a liberty-based right to suicide or assisted suicide would arguably be potentially unlimited (in the absence of harm to others) as all suicides could be seen as an exercise of liberty. However, as discussed later in this section, not all suicides can be seen as an exercise of the right to dignity. See infra text accompanying note 70. This apparent inconsistency is discussed below in the context of critiques concerned with the lack of articulation of the basis of personal rights. See infra text accompanying notes 252-257.

⁷⁰ Battin, Ethical Issues in Suicide, supra note 26, at 188. For some commentators, such a limited right would not be worthy of the appellation ‘right’: “A constitutional right that cannot be freely exercised by all persons without state interference lacks the most essential indicia of a ‘right’ in our legal order. .. . A ‘right’ so limited is no right at all.” Marzen et al., supra note 23, at 104.

⁷¹ Margaret Pabst Battin attempts to do this in The Least Worst Death, supra note 66, at 282-85 (discussing different types of suicide and their motivations).

⁷² Ronald Dworkin suggests that “the emphasis we put on dying with “dignity” . . . shows how important it is that life ends appropriately, that death keeps faith with the way we want to have lived.” Life’s Dominion, supra note 29, at 199. My point here is that determinations about whether a life will end “appropriately” may be more difficult to make in advance than after the fact.

⁷³ Joel Feinberg argues that certain interests of persons continue after their death. Feinberg, The Rights of Animals and Unborn Generations, in Rights, Justice and the Bounds of Liberty, supra note 54, at 159; Joel Feinberg, Harm to Others vol. I, ch. II (1984).

⁷⁴ These arguments do not hold true for an individual’s autonomy or liberty. Autonomy and liberty necessarily end at the time of the individual’s death, and therefore death could not possibly increase autonomy or liberty.

⁷⁵ Even disabled-rights advocates who oppose assisted suicide in the current environment of discrimination against the disabled recognize that “[i]t is important to acknowledge the necessity of assistance in the suicides of persons with disabilities.” Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities-Is It A Right Without A Freedom?, 9 Issues L. & Med. 47, 50 (1993). Miller writes:

for many people with disabilities, the “right to commit suicide” can be realized only with assistance due to the individual’s own physical . . . limitations. Unlike able-bodied persons who can quietly end their lives alone, persons with disabilities often require, due to the physical limitations of their bodies, the assistance and intervention of assisters.

Id.

⁷⁶ Suicide is no longer a crime in any American state. See 2 Wayne R. Lafave & Austin W. Scott, Jr., Substantive Criminal Law § 7.8 (1986); Shaffer, supra note 1, at 350. See generally Marzen et al., supra note 23, at 68-104.

⁷⁷ For most people who wish to commit suicide, the effect of the criminal prohibition on assisted suicide is to deny them the option of choosing a method that would require the assistance of another person. However, for persons who because of illness or disability are physically unable to kill themselves unassisted, the effect of such a prohibition is quite different. For this group, the option of lawful suicide has been completely removed. This forms the basis of the argument that such a prohibition has a disparate impact on persons with severe physical disabilities who are unable to commit suicide without assistance, which violates their right to equality. .See generally Rodriguez v. British Columbia [1993] 107 D.L.R. (4th) 342, 345 (Can.) (Lamer, C.J.C. dissenting) (stating that a blanket prohibition on assisted suicide results in disparate treatment of those who cannot physically commit suicide without assistance).

⁷⁸ See Rodriguez v. British Columbia [1993] 107 D.L.R. (4th) 342, 345-46 (Can.) (Lamer, C.J.C., dissenting).

⁷⁹ Quill v. Koppell, 870 F. Supp. 78, 84 (S.D.N.Y. 1994). The District Court did not accept this argument, but it met with success upon appeal to the Second Circuit:

[I]t seems clear that New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs.

Quill v. Vacco, 80 F. 3d 716, 729 (2nd Cir. 1996).

This argument was accepted by the District Court in the Compassion in Dying case:

Washington law, by creating an exception for those patients on life support, yet not permitting competent, terminally ill adult patients such as plaintiffs the equivalent option of exercising their rights to hasten their deaths with medical assistance, creates a situation in which the fundamental rights of one group are burdened while those of a similarly situated group are not. Therefore, this court finds that [the Washington ban on assistance in suicide] violates the equal protection guarantee of the Fourteenth Amendment.

Compassion in Dying v. Washington, 850 F. Supp. 1454, 1467 (W.D. Wash. 1994). Dissenting in the Ninth Circuit, Justice Wright agreed on this point with the District Court. Compassion in Dying v. Washington, 49 F.3d 586, 597 (9th Cir. 1995).

⁸⁰ One example is found in Matthew P. Previn, Assisted Suicide and Religion: Conflicting Conceptions of the Sanctity of Human Life, 84 Geo. L.J. 589, 590 (1996).

⁸¹ See Dworkin, Life’s Dominion, supra note 29, at 160-68. “[A]ny government that prohibits abortion commits itself to a controversial interpretation of the sanctity of life and therefore limits liberty by commanding one essentially religious position over others, which the First Amendment forbids.” Id. at 165. Judicial adoptions of this approach have been rare. In the Canadian context, see R. v. Morgentaler [1988] 1 S.C.R. 30, 175-80 (Wilson, J., concurring). In the U.S., see Webster v. Reproductive Health Services, 492 U.S. 490, 566-72 (1989) (Stevens, J., concurring in part and dissenting in part) (stating that only theological dogma could support the view that life begins at conception). Justice Stevens took a similar position in Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 355-56 (1990) (Stevens, J., dissenting), suggesting that religious dogma underlies opposition to the ‘right to die’. Dworkin also relies on the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (O’Connor, Kennedy & Souter, JJ.) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.”) See also Linda C. McClain, Rights and Irresponsibility, 43 Duke L.J. 989, 1076 (1994) (arguing that this opinion “echoes judicial and scholarly interpretations of constitutional rights that appeal to the idea that a certain realm of freedom with respect to fundamental decisions, which typically implicates ethical or religious convictions, is critical to respect for decisional autonomy or liberty of conscience and to the development of personality and a sense of moral responsibility.”) This idea also appears at the end of the majority decision in Compassion in Dying v. Washington, 79 F. 3d 790, 839 (9th Cir. 1996) (en banc): “Under our constitutional system, neither the state nor the majority of the people in a state can impose its will upon the individual in a matter so highly ‘central to personal dignity and autonomy’“.

Not surprisingly, Justice Stevens wrote in Casey that “a woman’s decision to terminate her pregnancy is nothing less than a matter of conscience.” 505 U.S. 833, 916(1992) (Stevens, J., concurring in part and dissenting in part). For an argument opposing Dworkin’s position that the First Amendment protects abortion decisions, see Gerard V. Bradley, Life’s Dominion: A Review Essay, 69 Notre Dame L. Rev. 329, 369-74 (1993) (relying on Harris v. McRae, 448 U.S. 297, 319-21 (1980) and Oregon v. Smith, 492 U.S. 872 (1990)).

For state court use of state constitutional freedom of conscience guarantees in the abortion context, see for example, Preterm Cleveland v. Voinovich, No. 92CVH01-528, 1992 Ohio Misc. LEXIS 1 at *14, *15 (Franklin Cty. C.P. 1992) (holding that freedom of conscience guarantee protects against state interference in decisions involving “deeply-held moral” and philosophical convictions including the decision to terminate a pregnancy), rev’d 89 Ohio App. 3d 684, 627 N.E. 2d 570 (Ohio Ct. App., 1993). The decisions centered on Section 7 of the Ohio Constitution, which reads:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law to any religious society; nor shall any interference with the rights of conscience be permitted . . .

Ohio Const. Art. I, § 7.

⁸² This argument is taken from Penney Lewis, The Dutch Experience of Euthanasia, 25 J.L. & Soc’y 636, 641-42(1998).

⁸³ See Dworkin, Life’S Dominion, supra note 29, at 214; Williams, The Sanctity of Life and the Criminal Law, supra note 39. For examples of such arguments, see Rosenblum & Forsythe, supra note 51, at 21; Byron L. Sherwin, Jewish Views of Euthanasia, in Beneficent Euthanasia 3, 7 (Marvin Kohl ed., 1975). See infra text accompanying notes 190-202.

⁸⁴ See, e.g., Dworkin, Life’s Dominion, supra note 29, at 81-84, 237-39.

⁸⁵ See, e.g., Joseph V. Sullivan, The Immorality of Euthanasia, in Beneficent Euthanasia, supra note 83, at 12, 19 (describing how Christianity from the beginning opposed self-destruction and homicide); J. Gay-Williams, The Wrongfulness of Euthanasia, in Intervention and Reflection: Basic Issues in Medical Ethics 156, 157 (Ronald Munson ed., 1983) (writing that religion interprets suicide as an act against God). Alexander Capron, a leading bioethicist, describes the sanctity of life argument as one which “smacks of religious dogma.” Alexander Morgan Capron, 77ie Burden of Decision, Hastings Center Rep. May-June 1990, at 36, 37. Ronald Dworkin contends that “a belief in the objective and intrinsic importance of human life has a distinctly religious content.” Dworkin, Life’s Dominion, supra note 29, at 163.

⁸⁶ See Jean-Louis Baudouin, Le droit de refuser d’etre traite, in Justice Beyond Orwell 207, 209 (Rosalie S. Abella & Melvin L. Rothman eds., 1985). Baudouin describes an evolution of thought and law in this area. He acknowledges that during a particular historical period human beings were denied the power to decide their lives and deaths, as life was considered to be loaned by God and not given to the individual, who was required to return the loan, and was not free to dispose of his life as he desired. Baudouin situates the sanctity of life argument as a historical one and argues that modern legal systems have moved away from it towards a recognition of personal autonomy on many levels including constitutional rights protection. See id. See also, Previn, supra note 80 at 604-605.

⁸⁷ R. v. Morgentaler [1988] 1 S.C.R. 30, 179 (Wilson, J., concurring) (Can.). The possibility exists that an individual seeking assistance in suicide in a jurisdiction in which such assistance constitutes a criminal act could be found guilty of the crime of conspiracy or as a party to an offence being committed by those assisting her. In the Rodriguez case, a majority of the British Columbia Court of Appeals found that the appellant Rodriguez could be guilty of an offence if she participated in the planning or attempted execution of her own assisted suicide. Rodriguez v. British Columbia (Attorney-General) [1993] 79 C.C.C. (3d) 1 (Can.).

⁸⁸ Compassion in Dying v. Washington, 79 F.3d 790, 839 (9th Cir. 1996) (en banc) (“Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.”). See also Geoffrey Lee Martin, Australians In Dispute Over Euthanasia, Daily Telegraph, Feb. 3, 1995, at 16 (discussing remarks of Marshall Perron, Chief Minister of Australia’s Northern Territory).

⁸⁹ Cruzan, 497 U.S. at 343 (1990) (Stevens, J. dissenting).

⁹⁰ For a discussion of freedom of conscience as including the autonomy to make such decisions, see James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 253-56, 294-97 (1993). For the argument that freedom of conscience protects only religious obligation and not the autonomy to make ‘moral’ decisions, see Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 172-75 (1992).

⁹¹ Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 852 (1992).

⁹² “According to [the humanist] conception of life’s sanctity, reverence for life derives not from God, but from the ability to exercise the distinctly human qualities of freedom, rationality, and conscience.” Previn, supra note 80, at 598. The humanist view of the sanctity of human life is discussed in depth in Part III of Previn’s article.

⁹³ When those capacities central to the humanist conception of the sanctity of life—freedom, rationality, and conscience—are in serious danger. Id. at 599.

⁹⁴ Id. at 611.

⁹⁵ See, e.g., Friedman, Roger F., It’s My Body and I’ll Die If I Want To: A Property Based-Argument in Support of Assisted Suicide, 12 J. Contemp. Health L. & Pol’y 183 (1995)Google Scholar (arguing that a property-based argument provides suffering people the legal and moral ammunition to exercise their rights to commit suicide and to have others assist them in doing so).

⁹⁶ See, e.g., Battin, Ethical Issues in Suicide, supra note 26, at 178-80; Engelhardt & Malloy, supra note 28, at 1033 n.150.

⁹⁷ See Thornburgh v. American Coll. of Obst. & Gyn., 476 U.S. 747, 777 n.5 (1986) (Stevens, J., concurring) (referring to the “moral fact that a person belongs to himself and not others nor to society as a whole,” quoting Charles Fried, Correspondence, 6 Phil. & Pub. Aff. 288, 288-89 (1977)). See also Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 45 (1993) (discussing claims of property rights and individual freedom in the context of the human body and mandatory seat-belt laws). Leon Kass discusses the philosophical antecedents of this argument, focusing his attention on the writings of John Locke, who contended that “[tjhough the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this nobody has a right to but himself. The labor of his body and the work of his hands we may say are properly his.” John Locke, Second Treatise on Civil Government ¶27 (Thomas P. Peardon ed., Macmillan Publ’g Co. 1952) (1690). Kass argues that this property right “is less a metaphysical statement of self-ownership, more a political statement denying ownership by another.” Kass, Is There a Right to Die?, supra note 28, at 38. According to Kass, the right is limited to prevention of use of the property by others, and does not include the right of the “owner” to “dispose” of the property. Id. at 39. In support of this assertion, Kass relies on a later passage in Locke concerning legislative power: “nobody has an absolute arbitrary power over himself or over any other, to destroy his own life or take away the life or property of another.” LOCKE, id. at f 135.

⁹⁸ BATTIN, ETHICAL ISSUES IN SUICIDE, supra note 26, at 180.

⁹⁹ “[I]n ordinary property-destruction cases the owner of the property continues to exist (and be benefitted or harmed) after destroying his or her property. . . .” Id. at 184.

¹⁰⁰ Id.

¹⁰¹ See Joel Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFF. 93, 119 (1978) [hereinafter Voluntary Euthanasia].

¹⁰² Id.

¹⁰³ Whether such a duty in fact exists depends on a case’s particular facts, and may depend on factors such as the presence or absence of alternative care-giving arrangements for the child and the child’s age. See, e.g., Norwood Hosp. v. Munoz, 564 N.E.2d 1017, 1025 (Mass. 1991) (holding that Jehovah’s Witness mother was entitled to refuse life-saving blood transfusion where her child would not be abandoned upon her death); Public Health Trust v. Wons, 541 So. 2d 96, 97 (Fla. 1989) (holding that refusal of life-saving blood transfusion does not constitute abandonment of teenage children who could be cared for by their father).

¹⁰⁴ “[A H humans are] endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” THE DECLARATION OF INDEPENDENCE \2 (U.S. 1776); Martin v. Commonwealth, 37 S.E.2d 43, 47 (1946) (discussing in a homicide case that the right to life and personal scrutiny is sacred and inalienable). See Leon R. Kass, Neither for Love nor Money: Why Doctors Must Not Kill, THE PUB. INT. Winter 1989, at 25, 27; Maria T. CeloCruz, Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?, 18 AM. J.L. & MED. 369, 387-88 (1992).

¹⁰⁵ See, e.g., Rosenblum & Forsythe, supra note 51, at 21; CeloCruz, supra note 104, at 387. This argument is described under the heading “paternalist” in Feinberg, Voluntary Euthanasia, supra note 101, at 120-21.

¹⁰⁶ For example, the right to privacy or security of the person is frequently waived in the medical context to allow for examinations, treatment, and even surgical interventions. See generally Feinberg, The Nature and Value of Rights, supra note 54; Hart, Are There Any Natural Rights, supra note 26; BROCK, LIFE AND DEATH, supra note 45, at 105 (arguing that waivability is a central characteristic of rights); Browne, supra note 39 (asserting that rights are by definition waivable).

¹⁰⁷ Voluntary Euthanasia, supra note 101, at 93.

¹⁰⁸ Radin, supra note 43, at 1849.

¹⁰⁹ Voluntary Euthanasia, supra note 101, at 105.

¹¹⁰ Id. at 110. Many commentators are critical of the imposition of a duty to live. See, e.g., EIKE-HENNER W. KLUGE, BIOMEDICAL ETHICS IN A CANADIAN CONTEXT 264-65 (1992); BATTIN, THE LEAST WORST DEATH, supra note 66, at 287 n.15.

¹¹¹ “In exercising my own choice in these matters, I am not renouncing, abjuring, forswearing, resigning, or relinquishing my right to life; quite the contrary, I am acting on that right by exercising it one way or the other.” Voluntary Euthanasia, supra note 101, at 121.

¹¹² See id..

¹¹³ BATTIN, ETHICAL ISSUES IN SUICIDE, supra note 26, at 190.

¹¹⁴ See Voluntary Euthanasia, supra note 101, at 114-15.

¹¹⁵ See, e.g., Doerflinger, supra note 44, at 16. On the priority of the right to life, see infra text accompanying notes 155-159.

¹¹⁶ Commentators also suggest legalization could have a disparate impact on the indigent (especially indigent women), people of color, minors and the mentally disabled. See Diane Coleman, Withdrawing Life-Sustaining Treatment from People with Severe Disabilities Who Request It: Equal Protection Considerations, 8 ISSUES IN L. & MED. 55, 78 (1992) (arguing that assisted suicide legislation for people with disabilities would probably not survive a strict scrutiny equal protection analysis); Rosenblum & Forsythe, supra note 51, at 29-31. See also Compassion in Dying v. Washington, 49 F.3d 586, 592 (9th Cir. 1995) (voicing concern regarding the protection of the poor and minorities from exploitation). Marginalized groups such as these may already be at greater risk of suicide prompted by some form of mental illness: “the ranks of those who attempt suicide are disproportionately filled with marginal members of our society—the aged, the poor, the ill or disabled—and with those who are isolated and lacking in personal and social support—the single or recently bereaved, the alienated and unhelped young.” Marzen et al., supra note 23, at 4.

Members of marginalized groups may be more likely to receive inadequate pain treatment, and thus more likely to view assisted death as their only option:

A recent study found that patients treated at centers that serve predominantly minority patients were three times more likely than those treated elsewhere to receive inadequate pain treatment. Elderly individuals and women were also more likely than others to receive poor pain treatment.

NEW YORK STATE TASK FORCE, supra note 44, at 90 n.46, quoting C.S. Cleeland et al., Pain and Its Treatment in Outpatients with Metastatic Cancer, 330 NEW ENG. J. MED. 592 (1994).

¹¹⁷ NEW YORK STATE TASK FORCE, supra note 44, at xiii. See also Herbert Hendin, Seduced by Death: Doctors, Patients, and the Dutch Cure, 10 ISSUES IN L. & MED. 123, 165 (1994) (“without comprehensive [health] care for sickly, poor, and older persons, euthanasia will tend to become their only option.”) The New York State Task Force was relied on in this regard by the three judge panel of the Ninth Circuit in Compassion in Dying v. Washington, 49 F.3d 586, 592 (9th Cir. 1995). The panel’s use of this argument was rejected as “disingenuous”, “fallacious” and “meretricious” by the majority of the Ninth Circuit sitting en banc. See Compassion in Dying v. Washington, 79 F.3d 790, 825 (9th Cir. 1996) (en banc) (“The argument that disadvantaged persons will receive more medical services than the remainder of the population in one, and only one, area - assisted suicide - is ludicrous on its face. So, too, is the argument that the poor and the minorities will rush to volunteer for physician-assisted suicide because of their inability to secure adequate medical treatment.”).

¹¹⁸ See Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 52, at 37; Marzen et al., supra note 23, at 108 (describing the “social legitimacy” that would attach to suicide following the constitutional recognition of suicide as a right).

¹¹⁹ Rosenblum & Forsythe, supra note 51, at 27. See also Compassion in Dying v. Washington, 49 F.3d 586, 592 (9th Cir. 1995) (articulating concern regarding coercion and psychological pressure on the elderly and infirm); Mary Johnson, Voluntary Active Euthanasia: The Next Frontier?, 8 ISSUES IN L. & MED. 343, 344 (1992):

It seems all too likely that the high moral ground of “right to die” has been appropriated as a cover for what appears to be occurring with an increasing number of mentally alert, but physically disabled, people. It is not the protection of a freely chosen right but the encouragement, perhaps by coercion, to exercise that “right” as the only option, (emphasis in original).

¹²⁰ See, e.g., Miller, supra note 75.

¹²¹ See Kolata, Gina, Saying Life Is Not Enough, the Disabled Demand Rights and Choices, N.Y. Times, Jan. 31, 1991Google Scholar, at B7 (describing choice of some severely disabled persons to die rather than to live a “numbing life in a nursing home”). See also Compassion in Dying v. Washington, 49 F.3d 586, 592 (9th Cir. 1995); Marzen et al., supra note 23, at 132 (describing some suicides and suicide attempts by individuals who are physically ill and/or socially disabled as attempts to escape “from the rejection they suffer from others”); Carol J. Gill, Suicide Intervention for Persons with Disabilities: A Lesson in Inequality, 8 ISSUES IN L. & MED. 37, 38-39 (1992).

¹²² See Johnson, supra note 119, at 358. See also Herr, Stanley S. et al., No Place to Go: Refusal of Life-Sustaining Treatment by Competent Persons with Disabilities, 8 Issues In L. & Med. 3, 7 (1992)Google Scholar (“Will the effects of these “right to die” cases undermine the struggle of many persons with severe disabilities to enjoy a right to life with dignity?”).

¹²³ See Susan M. Wolf, Holding the Line on Euthanasia, Hastings Center Rep., Jan.-Feb. 1989, at 13, 14 (Supp.). For examples of such proposals, see Kluge, Biomedical Ethics in a canadian Context, supra note 110, at 264 (restriction of assisted suicide to the terminally ill and those whose life is “qualitatively atrocious, even torturous, by ordinary standards, and . . . quite unacceptable”); Browne, supra note 39, at 55 (advocating only a restriction to the competent).

¹²⁴ See Bopp, supra note 25, at 116; Coleman, supra note 116, at 79 (stating that judicial and legislative actions may be challenged on an equal protection basis); Marcia Pearce Burgdorf & Robert Burgdorf, Jr., A History of Unequal Treatment: The Qualifications of Handicapped Persons as a “Suspect Class “ Under the Equal Protection Clause, 15 Santa Clara Law. 855, 908 (1975) (arguing that individuals with handicaps are a “suspect” class); Robert A. Destro, Quality-of-Life Ethics and Constitutional Jurisprudence: The Demise of Natural Rights and Equal Protection for the Disabled and Incompetent, 2 J. Contemp. Health L. & Pol’y 71, 130 (1986) (arguing that equal protection doctrine should prevent the law from making quality of life judgments); Walter M. Weber, What Right to Die?, 18 Suicide & Life-Threatening Behavior 181, 183-86 (1988) (citing equal protection considerations which would result in such a right being available to any competent adult, mature minors, and possibly even incompetent individuals). Chief Judge Hogan accepted this equal protection argument in lee v. Oregon, 891 F. Supp. 1429, 1438 (D. Or. 1995) (holding that the Oregon Death with Dignity Act violates the Equal Protection Clause because the terminally ill are deprived of a benefit afforded to those who are not terminally ill, namely the protection of the statutory ban on assisted suicide).

¹²⁵ McKay v. Bergstedt, 801 P.2d 617, 635 (Nev. 1990) (Springer, J., dissenting).

¹²⁶ See New York State Task Force, supra note 44, at 90 (discussing the notion of “stewardship”); Helga Kuhse, The Sanctity-Of-Life Doctrine in Medicine: a Critique 18-19 (1987). Another common formulation of this argument is: “God gave life, God takes life away.” Clifford D. May, Doctor Assisted Death: Is Assisted Suicide a Right That Should Be Available to Dying Individuals?, Rocky Mountain News, Jan. 15, 1995, at 91A (quoting Rev. Ed Hoffman).

¹²⁷ See Dworkin, Life’s Dominion, supra note 29, at 214 (describing this argument); Richards, supra note 45, at 373-76 (summarizing and rebutting this argument); Baudouin, supra note 86, at 209 (describing this argument as one found in historical materials, rather than as a present-day contention). However, present-day formulations of this argument still abound. See, e.g., Sullivan, The Immorality of Euthanasia, supra note 85, at 12-33; Gay-Williams, supra note 85, at 157 (“Man as trustee of his body acts against God, its rightful possessor, when he takes his own life.”). The argument can be traced back to Thomas Aquinas. See Thomas Aquinas, Summa Theologiae, II-II, 64 (Fathers of the English Dominican Province trans., R. & T. Washbourne LTD. 1918).

¹²⁸ Although many may see this kind of argument as simply a metaphor, its formulation in terms of property rights, rather than as a ‘sanctity of life’ or ‘duty to live’ argument is significant. See Locke, Second Treatise, supra note 97, at ¶6 on the state of nature:

But though this be a state of liberty, yet it is not a state of license; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself . . . [F]or men being all the workmanship of one omnipotent and infinitely wise Maker . . . they are his property whose workmanship they are . . . Every one .. . is bound to preserve himself and not to quit his station wilfully.

¹²⁹ See Browne, supra note 39, at 41-42. Browne provides the example of the destruction of property in order to prevent the spread of fire. See id. See also Voluntary Euthanasia, supra note 101, at 102.

¹³⁰ See supra text accompanying notes 81-88.

¹³¹ See Richards, supra note 45, at 373-76.

¹³² Engelhardt & Malloy, supra note 28, at 1021.

¹³³ See Richards, supra note 45, at 376-78. The argument stems from the Aristotelian conception of duties to the state. See Aristotle, Nichomachean Ethics 1138a4-l 138bl4, cited in Richards, id. at 376. At common law, suicide constituted a crime against the Crown as it deprived the monarch of a subject. See Hales v. Petit, 75 Eng. Rep. 387, 399-400 (C.B. 1562); 4 William Blackstone, Commentaries 189 (1854).

¹³⁴ See Battin, Ethical Issues in Suicide, supra note 26, at 183-84; Richards, supra note 45, at 376-78.

¹³⁵ One exception is found in Bopp, supra note 25, at 132 (referring to the state’s interest in the preservation of life as a ‘right’).

¹³⁶ See Dworkin, Life’s Dominion, supra note 29, at 190.

¹³⁷ See Johnson, supra note 119, at 344; Browne, supra note 39, at 46 (discussing the problem of coercion and possible regulatory safeguards to avoid it); Bopp, supra note 25, at 138-40.

¹³⁸ “The decision to respond to a request for assistance in suicide can be as much a danger to, as a safeguard of, the patient’s right to self-determination. If it is known to be a viable option at the outset, it cannot fail to influence the patient, the physician, and everyone else involved in the patient’s care.” Edmund D. Pellegrino, Compassion Needs Reason Too, 270 Jama 874, 875 (1993).

Each personal choice [regarding assistance in suicide] will be formed by societal and interpersonal forces that must be acknowledged, even though they cannot be perfectly counterbalanced. The societal context includes financial barriers to the choice of palliative and community-based care and a culture that is saturated with media images of trivialized and superficially justified killings.

Steven H. Miles, Physicians and Their Patients’ Suicides, 271 Jama 1786, 1787 (1994). See also Marzen et al., supra note 23, at 146 (“a climate of societally sanctioned suicide could well lead to pressure on the otherwise nonsuicidal elderly and disabled, who are marginal in our society, to end their lives.”)

¹³⁹ See J. David Velleman, Against the Right to Die, 17 J. Med. & Phil. 665 (1992). See Bopp, supra note 25, at 126, presenting the rather overblown factual scenario of a request for suicide assistance at a hospital emergency room, followed by immediate compliance.

¹⁴⁰ See Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 52, at 37.

¹⁴¹ Marzen et al., supra note 23, at 108. Evidence that suicides have the potential to be “contagious” may exacerbate this problem. See id. at 139-46 (describing phenomena of “cluster” suicides amongst teenagers and suicide epidemics within communities).

¹⁴² Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women ‘s Movement, 61 N.Y.U. L. Rev. 589, 625 (1986).

¹⁴³ Glendon, supra note 97, at 15. Even the major schools of the critique of rights see some value in rights discourse. For example, the Critical Legal Studies scholar Duncan Kennedy argues:

the critique of rights as liberal philosophy does not imply that the left should abandon rights rhetoric as a tool of political organizing or legal argument. Embedded in the rights notion is a liberating accomplishment of our culture: the affirmation of free human subjectivity against the constraints of group life, along with the paradoxical countervision of a group life that creates and nurtures individuals capable of freedom. We need to work at the slow transformation of rights rhetoric, at dereifying it, rather than simply junking it.

Duncan Kennedy, Critical Labor Law Theory: A Comment, 4 Indus. Rel. L.J. 503, 506 (1981). See contra Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1383 (1984). Similarly, some feminist scholars, while critiquing current rights discourse, do not advocate its wholesale abandonment. See, e.g., Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118, 1172 n.208 (1986). Finley rejects the more extreme criticisms of rights. She sees rights as important even as they have been traditionally defined, although she acknowledges that we may need to reconceive or redefine them to fit experience or needs as appropriate. See also Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387, 391 (1984).

¹⁴⁴ That is, in contrast to some future, Utopian ideal, which for some would not include the concept of rights. See Deborah L. Rhode, Feminist Critical Theories, 42 Stan. L. Rev. 617, 631-32 (1990). Rhode discusses the problem associated with a move towards a legal system based on care and empathy, rather than adversarial and hierarchical dispute-resolution. “Norms appropriate to our vision of justice in an ideal state may not be the best way to get us there.” Id. at 632.

¹⁴⁵ The Critical Race Theorist Patricia Williams responds to Critical Legal Studies proposals to abandon rights discourse:

Although rights may not be ends in themselves, rights rhetoric has been and continues to be an effective form of discourse for blacks. The vocabulary of rights speaks to an establishment that values the guise of stability, and from whom social change for the better must come (whether it is given, taken, or smuggled). Change argued for in the sheep’s clothing of stability (“rights”) can be effective, even as it destabilizes certain other establishment values (segregation). The subtlety of rights’ real instability thus does not render unusable their persona of stability.

Patricia J. Williams, The Alchemy of Race and Rights 149(1991).

¹⁴⁶ Id. at 165.

¹⁴⁷ Id. at 149.

¹⁴⁸ See Rhode, supra note 144, at 617 (commenting that attempting to summarize either feminism or CLS “risks homogenizing an extraordinarily broad range of views”).

¹⁴⁹ See generally Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1563 (1984) (characterizing CLS movement as developing a consciousness of how legal institutions and ideas have an effect on society); Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. Rev. L. & Soc. Change 369, 374-75 (1982-83) (outlining how attorneys can apply CLS in practice to achieve social change); Tushnet, supra note 143.

¹⁵⁰ See generally Elizabeth Schneider, The Dialectic of Rights and Politics, supra note 142; Elizabeth Kingdom, What’s Wrong With Rights? (1991) (discussing the relevance of rights discourse to feminist legal theory); Carol Smart, Feminism and the Power of Law (1989); Judy Fudge, The Effect of Entrenching a Bill of Rights Upon Political Discourse: Feminist Demands and Sexual Violence in Canada, 17 Int’l. J. Soc. L. 445, 445 (1989); Olsen, supra note 143, at 389 n.7; Catharine MacKinnon, Feminism, Marxism, Method, and the Stale: Toward a Theory of Law and Patriarchy, 8 Signs: J. of Women in Culture & Soc’y, 635 (1983); Janet Rifkin, Toward a Theory of Law and Patriarchy, 3 Harv. Women’s L.J. 83, 84 (1980) (developing theory on how law contributes to permanence of patriarchal social order); Clare Dalton, Book Review, 6 Harv. Women’S L.J. 229, 229 (1983) (reviewing The Politics of Law (Davis Kairys ed., 1982) as a “manifesto” of CLS).

¹⁵¹ See, e.g., Williams, The Alchemy of Race and Rights, supra note 145; Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401 (1987) (discussing Critical Legal Studies and rights-based theory as applied to the civil rights struggle).

¹⁵² Glendon, supra note 97, at 76.

¹⁵³ See Olsen, supra note 143, at 388-89, citing Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975, 1059 (1982). See also Dalton, supra note 150, at 235; Mark G. Kelman, Trashing, 36 Stan. L. Rev. 293 (1984); Kennedy, Critical Labour Law Theory, supra note 143, at 506; Karl Klare, Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law, 4 Indus. Rel. L.J. 450, 478 (1981); Elizabeth Schneider, The Dialectic of Rights and Politics, supra note 142, at 596; Tushnet, supra note 143, at 1375.

¹⁵⁴ Olsen, supra note 143, at 391. Martha Minow responds to this charge with the interpretevist assertion that “legal rules are applied in specific contexts, and by reference to specific contextual features we can resolve, at least for that instant case, the tension between, say, freedom and security.” Minow, supra note 18, at 1864 n.14. A choice between these competing principles, though, is still required, rather than mandated by the rights claimed.

¹⁵⁵ Doerflinger, supra note 44, at 16. Similarly, James Bopp argues that in the event of a conflict between the rights to life and liberty, the right to life has priority, relying on Justice Brennan’s description of the right to life as “the right to have rights”. Bopp, supra note 25, at 126, citing Furman v. Georgia, 408 U.S. 238, 290 (1971) (Brennan, J., concurring). See also Pope John Paul II, The Prayer Vigil, 23 Origins 182, 184 (1993) (describing the right to life as God’s first gift, and the right on which all other rights are based) .

¹⁵⁶ McKay v. Bergstedt, 801 P.2d 617, 625 (Nev. 1990). On sanctity of life arguments, see supra text accompanying notes 51-54.

¹⁵⁷ See Samuel E. Wallace, The Right to Live and the Right to Die, in Suicide and Euthanasia: The Rights of Personhood, supra note 21, at 86.

¹⁵⁸ See id.

¹⁵⁹ Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 175.

¹⁶⁰ See supra text accompanying notes 116-122.

¹⁶¹ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 172.

¹⁶² Thomas Mayo, Constitutionalizing the “Right to Die”, 49 MD. L. Rev. 103, 105 (1990).

¹⁶³ See, e.g., Wolhandler, supra note 63, at 375 (asserting that the individual’s right to privacy outweighs any state interest that could oppose assisted suicide); People v. Kevorkian, 527 N.W.2d 714, 748 (1994) (Levin J., dissenting).

¹⁶⁴ See, e.g., Somerville, supra note 50, at 26-27 (stating, albeit in the euthanasia context, “[i]t is proposed that euthanasia is not acceptable at the societal level, even if one has no personal moral inhibitions against it at the individual level, and that its unacceptability at the societal level outweighs the acceptability of the best case argument for it at the individual level.”). See generally Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1096-97 (1990) (discussing Justice Scalia’s attempt to engage in such reasoning more generally).

¹⁶⁵ Ariens, supra note 24, at 83. See also Tribe & Dorf, supra note 164, at 1096-97.

¹⁶⁶ See text accompanying supra notes 45-52 and 136-140.

¹⁶⁷ See text accompanying supra notes 76-79 and 116-122. The right to property also appears on both sides of the debate, although its inherent conceptual weaknesses in this context, coupled with the notion of different right-holders (the individual, the state, God) make the indeterminacy argument perhaps less significant for the right to property. See text accompanying supra notes 96-100 and 126— 135.

¹⁶⁸ See Olsen, supra note 143, at 412.

¹⁶⁹ See id.

¹⁷⁰ For example, in the Rodriguez case, the Intervenor British Columbia Coalition of People with Disabilities argued that the criminal prohibition on assisted suicide violated the constitutional guarantee of equality in that it denied equality before the law and under the law to persons who have such severe physical disabilities that they are unable to carry out a decision to terminate their lives without assistance. They argued that the criminal prohibition:

[H]as the effect of imprisoning the appellant and all other mentally competent adult persons with severe physical disabilities who no longer wish to continue living in what for them has become a life of unbearable and unrelenting physical or mental suffering. It converts their “right to life” into a burden, or “duty to live,” and thereby deprives them of equality before and under the law, which allows able-bodied persons the choice of ending their suffering.

Factum of the Intervenor the B.C. Coalition of People with Disabilities at 6, para. 21, Rodriguez v. British Columbia (Attorney-General) [1993] 3 S.C.R. 519 (Can.). Similar arguments were made by the Intervenor Coalition of Provincial Organizations of the Handicapped. See Factum of the Intervenor Coalition of Provincial Organizations of the Handicapped. However, the Intervenor People in Equal Participation Inc. (PEP), an organization for persons with severe disabilities dedicated to enhancing quality of life for the disabled, strongly disagreed with these disability rights organizations. PEP relied on the equal protection argument against legalization canvassed above, namely that legalization would have an adverse impact on vulnerable and already discriminated against groups, particularly the severely physically disabled. Factum of the Intervenor People in Equal Participation, Inc. at 7-19.

¹⁷¹ Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 170.

¹⁷² See supra text accompanying note 70.

¹⁷³ See, e.g., Neeley, The Constitutional Right to Suicide, supra note 29, at 153.

¹⁷⁴ See, e.g., People v. Kevorkian, 527 N.W.2d 714, 752 n.2 (Mich. 1994) (Mallett, J., dissenting) (“Whether physician-assisted suicide is characterized as a liberty right or a privacy right, the proper constitutional analysis is found in Casey and the right to die cases.”).

¹⁷⁵ See, e.g., Neeley, The Constitutional Right to Suicide, supra note 29, at 79-80 (relying on liberty, autonomy and privacy); Compassion in Dying v. Washington, 850 F. Supp. 1454, 1461 (W.D. Wash. 1994) (describing the liberty interest at stake as “the freedom to make choices according to one’s individual conscience about those matters which are essential to personal autonomy and basic human dignity”).

¹⁷⁶ See, e.g., Weir, supra note 30, at 121. On corresponding duties to assist, see supra text accompanying note 30.

¹⁷⁷ Ariens, supra note 24, at 84 n.18. Richard Fenigsen uses a similar tactic, albeit in the context of active euthanasia rather than assisted suicide. He argues that a right to euthanasia could only be formulated as a welfare or positive right:

The right to voluntary euthanasia (were we to recognize such a right) would . . . include not only the right to exert control over one’s own person, but over other persons as well, over their acts and their consciences. The person requesting his own death would also have the right to make killers of other people and accomplices to killing of those who expressed their consent.

Richard Fenigsen, A Case Against Dutch Euthanasia, Hastings Center Rep., Jan.-Feb. 1989, at 22, 29 (Supp.).

¹⁷⁸ See, e.g., Derek Humphry Discusses Death with Dignity with Thomasine Kushner, 2 Cambridge Q. Healthcare Ethics 57, 59 (1993) (noting that after assisted suicide in the terminally ill is legalized, assisted suicide in incompetent patients with advance directives and in the elderly must be examined more fully). See also Kass, Is There a Right to Die?, supra note 28, at 36; Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 52, at 36 (describing tactical use of restrictions of a right to assisted suicide to the terminally ill as “good advocacy” but otherwise unjustifiable).

¹⁷⁹ See Somerville, supra note 50, at 9-11 (detailing ways in which the right to suicide may flow from the right to die).

¹⁸⁰ Wolhandler, supra note 63, at 375. See also Compassion in Dying v. Washington, 79 F.3d 790, 816 (9th Cir. 1996) (en banc) (“Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one’s own death.”); Compassion in Dying v. Washington, 850 F. Supp. 1454, 1461 (W.D. Wash. 1994) (“From a constitutional perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult.”); People v. Kevorkian, 527 N.W.2d 714, 759 (Mich. 1994) (Mallett, J., dissenting) (“There is no adequate distinction between the right of a terminally ill person to refuse unwanted medical treatment and the right to physician-assisted suicide.”).

¹⁸¹ See infra text accompanying note 206. See, e.g., Note, Physician-Assisted Suicide and the Right to Die with Assistance, supra note 22, at 2024-2031 (arguing that current right to die jurisprudence based on the right to self-determination “can be interpreted to protect patients’ interests in receiving suicide assistance from their physicians”). Id. at 2024.

¹⁸² Kass, Is There a Right to Die?, supra note 28, at 37.

¹⁸³ Olsen, supra note 143, at 389.

¹⁸⁴ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 162.

¹⁸⁵ Id. at 162-63.

¹⁸⁶ Id. at 163.

¹⁸⁷ See supra text accompanying notes 168-171.

¹⁸⁸ Robert A. Burt, The Ideal of Community in the Work of the President’s Commission, 6 Cardozo L. Rev. 267, 281 (1984).

¹⁸⁹ Paul Miller, Conference Transcript: Socially-Assisted Dying: Media, Money & Meaning, 1 Cornell J. L. & Pub. Pol’y 267,298 (1998).

¹⁹⁰ In the case of sanctity of life arguments, the transformation into rights rhetoric is partial, rather than total. That is, deontological arguments invoking the sanctity of life are present in the literature surrounding assisted suicide. See, e.g., Rosenblum & Forsythe, supra note 51, at 21 (arguing that the principle of the sanctity of life is paramount, and that respect for that principle—rather than the right to autonomy—promotes individual dignity).

¹⁹¹ “In America, when we want to protect something, we try to get it characterized as a right.” Glendon, supra note 97, at 31. See also Schneider, The Dialectic of Rights and Politics, supra note 142, at 625-26; Olsen, supra note 143, at 391; Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 154.

¹⁹² Vasuki Nesiah, Toward a Feminist Internalionality: A Critique of U.S. Feminist Legal Scholarship, 16 Harv. Women’s L.J. 189, 194 n.17 (1993).

¹⁹³ See Schneider, supra note 56, at 153-54 (noting that “in our intellectual and social life, rights thinking has achieved a currency unmatched in our history” and that rights solution can “greatly simplify the political battles . . . [as] rights are the ‘trumps’ of legal analysis, and . . . can often be easily implemented nationally and not just state by state”).

¹⁹⁴ See, e.g., the response of Engelhardt and Malloy to the sanctity of life argument in the assisted suicide context, supra text accompanying note 132. Whether explicitly religious argumentation is inappropriate in the context of rights formulation in a pluralistic society is a contentious issue beyond the scope of this article. This section is concerned only with the effect on rights discourse of religious argumentation which is hidden for the reasons discussed in the text above.

¹⁹⁵ See Brock, Life and Death, supra note 45, at 125-26 (arguing that the waivability aspect of rights provides a compelling argument in favor of a rights-based account of morality, in that it better promotes people’s actual interest in life which may not always be a strong or present one); Philippa Foot, Euthanasia, 6 Phil. & Pub. Aff. 85, 105 (1977) (assuming that the right to life is waivable).

¹⁹⁶ Samuel Adams, The Rights of Colonists, quoted in B.A. Richards, Inalienable Rights: Recent Criticism and Old Doctrine, 29 Phil. & Phenomenological Research 398, 398 n.33 (1969).

¹⁹⁷ See supra text accompanying notes 81-88 for discussion of such problems.

¹⁹⁸ See supra text accompanying notes 126-128.

¹⁹⁹ Dworkin, Life’s Dominion, supra note 29, at 214 (“In its most straightforward formulation ... the appeal to the sanctity of life uses the image of property: a person’s life belongs not to him but to God.”).

²⁰⁰ See supra text accompanying notes 45-52 & 37-42.

²⁰¹ See, e.g., Bopp, supra note 25, at 126 (“If the Mill formulation is accepted, .. . it is readily apparent that a prohibition of assisted suicide is warranted because a homicidal act (by the assister) directed against another who consents to the homicidal act results in death which is clearly a “harm” to another.”).

²⁰² The contrary argument assumes that whether life is a ‘good’ is individually determined, rather than presumptively the case. See, e.g., Dan Brock, Voluntary Active Euthanasia, Hastings Center Rep., Mar.-Apr. 1992, at 10, 11 (arguing that at some point, for some people, life ceases to be good (for the person) and instead becomes a burden); Richards, supra note 45, at 359-60 (arguing that when the individual has a rational interest in dying, the termination of her life would not constitute a harm).

²⁰³ See Glendon, supra note 97, at x, 15.

²⁰⁴ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 174. The use of simplistic and conclusory rights talk has also contributed to “deadlock” in the abortion debate. See Glendon, supra note 97, at 66 (“Prolife and prochoice advocates have overwhelmingly opted for rights talk, a choice that has forced the debate into a seemingly nonnegotiable deadlock between the fetus’ ‘right to life’ and the pregnant woman’s ‘right to choose.’“).

²⁰⁵ See Cass R. Sunstein, Right Talk, New Republic, Sept. 2, 1991, at 34 (suggesting that discussions about rights “can be conclusions masquerading as reasons”).

²⁰⁶ “The decision to exit life by one’s own decree is more fundamental to the concepts of autonomy, freedom, and liberty than any other, for pivotal to the control of one’s own life is the choice of electing to forego continued life.” Neeley, The Constitutional Right to Suicide, supra note 29, at 80.

²⁰⁷ See supra text accompanying notes 104-115. See also Kass, Neither for Love Nor Money, supra note 104, at 27; CeloCruz, supra note 104, at 388.

²⁰⁸ The use of the term ‘right to die’ “allows and encourages us to believe that when society makes significant and painfully difficult decisions about life and death, we are making no decision at all, but merely deferring to individual autonomy. In short, it allows us to mask decisions as non-decisions.” Donald L. Beschle, Autonomous Decision-Making and Social Choice: Examining the “Right to Die”, 77 K.Y. L.J. 319, 322 (1988-89).

²⁰⁹ See Battin, Ethical Issues in Suicide, supra note 26, at 184-87; Glendon, supra note 97, at 15.

²¹⁰ See Glendon, supra note 97, at 172-73 (asserting that rights discourse “distances itself from moral judgment”).

²¹¹ See Callahan, The Troubled Dream of Life, supra note 12, at 30, 34, 80. As a subject, death does appear to be losing some of its taboo status, particularly as a result of the success of recent books dealing with issues of death and dying. See J. Linn Allen, Going Concern: The Case for Dying with Dignity is Muddied by the Kevorkian Debate, Chicago Tribune, Jan. 20, 1995, at Tempo 1. See, e.g., Nuland, supra note 12 (describing process of dying of various illnesses); Derek Humphry, Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying (1991) (instructions for suicide for the terminally ill); Timothy E. Quill, Death and Dignity: Making Choices and Taking Charge (1993).

²¹² See Beschle, supra note 208, at 343 (describing the existentialist insight regarding “the importance of the ways in which people construct elaborate defenses to enable them to avoid feeling the full force of the presence of mortality”). The regulation of death and dying through the mechanism of rights may be one such defence mechanism. “Instead of discussing openly how to think about death and what we might appropriately choose in our dying—a painful and difficult subject—we too frequently and too easily transform the issue into more distanced, comfortable language of rights and choices: not how or what we ought to choose, but that we have a right to choose.” Callahan, The Troubled Dream of Life, supra note 12, at 36.

²¹³ “‘[Rights’ language misrepresents and distorts this new experience of dying.” Mayo, supra note 162, at 155. On the “modern medical death,” see supra text accompanying notes 12-15.

²¹⁴ Kass, Is There a Right to Die?, supra note 28, at 43. See also Callahan, The Troubled Dream of Life, supra note 12, at 36.

²¹⁵ See, e.g., Glendon, supra note 97, at xi, 44-45. Leon Kass describes rights as “in principle always absolute and unconditional.” Kass, Is There a Right to Die?, supra note 28, at 35. The absolutist critique may be less applicable to constitutional rights discourse, in which balancing of rights and interests is prevalent. See McClain, supra note 81, at 1050.

²¹⁶ Glendon, supra note 97, at xi.

²¹⁷ Kevorkian, The Last Fearsome Taboo, supra note 47, at 9 (emphasis added). See also G. Steven Neeley, Self-Directed Death, Euthanasia and the Termination of Life-Support: Reasonable Decisions to Die, 16 Campbell L. Rev. 205 (1994) (arguing that “the current state of the law often makes it difficult, if not impossible, for the individual to exercise unfettered control over the act of dying.”) (emphasis added); Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297, 307-08 (Cal. Ct. App. 1986) (Compton, J., concurring) (“Elizabeth apparently has made a conscious and informed choice that she prefers death to continued existence in her helpless and, to her, intolerable condition. I believe she has an absolute right to effectuate that decision.”); Risley, supra note 38, at 610 (“As long as we do not infringe upon or endanger the rights of others, we should have the unfettered right to determine our own destiny, especially at life’s end.”).

²¹⁸ Kass, Is There a Right to Die?, supra note 28, at 34. See Marzen et al., supra note 23, at 5 (describing jurisprudential arguments in favor of a right to suicide as based on “an almost absolute respect for individual autonomy”).

²¹⁹ See Bopp, supra note 25, at 138. In an article advocating capital punishment for Dr. Kevorkian, Charles Krauthammer argues that “[i]f suicide is a right, an inalienable expression of personal autonomy, should not every hospital have a Department of Killing where those who have had enough of life can come to have it ended?” Charles Krauthammer, Test Euthanasia on Dr. Kevorkian, The Plain Dealer, Dec. 5,1993, at D4.

²²⁰ See Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 52, at 39 (“unless we carry the principle of self-determination or personal autonomy to its logical extreme— assisted suicide by any competent person who clearly and repeatedly requests it for any reason she deems appropriate—we have to find a “stopping point” somewhere along the way.”); Marzen et al., supra note 23, at 102 (“Any attempt to limit th[e] “right to suicide” to certain persons or circumstances, for example to persons who are terminally ill or elderly, would conflict with the “freedom of choice” or privacy theory that is advanced to assert the existence of such a “right” in the first place.”).

²²¹ Callahan, The Troubled Dream Of Life, supra note 12, at 107-08.

²²² See Alesandro, supra note 53, at WL7; Bopp, supra note 25, at 117, 130-32 (discussing constitutional prohibitions which could prevent the imposition of limits on the right to suicide or assisted suicide); New York State Task Force, supra note 44, at 100; Marzen et al., supra note 23, at 101, 103. Marzen et al. argue that once a constitutional right to suicide were accepted, restricting the right “to a narrow class of persons or set of circumstances would be perverse.” Id. at 104. In the Compassion in Dying case, the majority of the three judge panel of the Ninth Circuit found that proposed limitations to the terminally ill were implausible:

The category created is inherently unstable. The depressed twenty-one year old, the romantically-devastated twenty-eight year old, the alcoholic forty year old who choose suicide are also expressing their views of existence, meaning, the universe, and life; they are also asserting their personal liberty. If at the heart of the liberty protected by the Fourteenth Amendment is this uncurtailable ability to believe and act on one’s deepest beliefs about life, the right to suicide and the right to assistance in suicide are the prerogative of at least every sane adult. The attempt to restrict such rights to the terminally ill is illusory.

Compassion in Dying v. Washington, 49 F.3d 586, 590-91 (9th Cir. 1995). See also Washington v. Glucksberg, 521 U.S. 702, 731-32 n.23 (1997) (Rehnquist, C.J.); Krischer v. Mclver, 697 So. 2d 97, 108 (Fla. Sup. Ct. 1997). For examples of apparently arbitrary limitations of rights to suicide or assisted suicide, see Wolhandler, supra note 63, at 369-70 (simply asserting limitation of privacy-based right to euthanasia to those with less than six months to live without offering a justification for it); People v. Kevorkian, 527 N.W.2d 714, 746 (Mich. 1994) (Levin, J., concurring in part and dissenting in part) (restricting right to assisted suicide to terminally ill competent individuals); People v. Kevorkian, 527 N.W.2d at 756-57 (Mallett, J., concurring in part and dissenting in part) (restricting right to assisted suicide to terminally ill competent individuals who are suffering from great pain).

²²³ Wolf, supra note 123, at 14. See, e.g., sources cited in supra note 123. The Dutch experience provides an example of a euthanasia policy with certain limits. Euthanasia, which remains a criminal offence in the Netherlands, is defined as “behaviour that terminates the life of another at the request of the person concerned.” John Griffiths Et Al., Euthanasia and Law in the Netherlands 92 (Amsterdam Univ. Press 1998). Although the Dutch criminalize euthanasia, it is legally justifiable under a necessity defense known as overmacht. A doctor can rely on the defense of necessity when faced with conflicting duties, namely the criminal law prohibition against murder, and her duty to relieve her patient’s suffering. See id. at 98-100. Certain substantive guidelines have been formulated in various cases and from other legal sources. These guidelines limit euthanasia to individuals whose suffering is unbearable and hopeless, and who have deliberately, voluntarily and repeatedly requested euthanasia. The procedural ‘requirements of careful practice’ include reporting, recording and consultation requirements. See id. See generally The Dutch Penal Code 73 (Louise Rayar & Stafford Wadsworth trans., Universiteit Maastricht 1997) (translating Article 40, the defense of overmacht as “a person who commits an offense as a result of force he could not be expected to resist is not criminally liable”); Schoonheim, HR 27 November 1984, NJ 106 (establishing overmacht defense in euthanasia case and requiring that (1) the patient makes the request, (2) the patient’s suffering be unbearable and hopeless and (3) a doctor perform the euthanasia). On November 28, 2000, the Lower House of the Dutch Parliament passed a Bill entitled Review of Cases of Termination of Life on Request and Assistance with Suicide which exempts from punishment a physician who helps a patient to die providing the requirements of due care and reporting are met. The Bill will not become law until it is passed by the Upper House in 2001. See Bill for the “Review of Cases of Termination of Life on Request and Assistance with Suicide” summarized at Review of cases of termination of life on request and assistance with suicide, (last modified Dec. 2000) <http://www.minjust.nl:8080/a_beleid/fact/suicide.htm>.; Euthanasia Plan Dropped by Dutch, Dallas Morning News, July 14, 2000, at 29A (describing decision by the Dutch Ministry of Justice to drop the provision allowing children to choose euthanasia against their parents’ wishes from the Bill in Dutch parliament).

²²⁴ Wolf, supra note 123, at 14; Daniel Wikler, Not Dead, Not Dying? Ethical Categories and Persistent Vegetative State, Hastings Center Rep., Feb.-Mar. 1988, at 41, 41 (discussing the Quinlan and Conroy cases).

²²⁵ See Benjamin Freedman, The Slippery-Slope Argument Reconstructed: Response to van der Burg, 3 J. Clinical Ethics 293 (1992) (discussing slippery slope arguments in bioethics). See also Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278, 280 (1990) (recognizing that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” and extending that principle to incompetent patients in certain circumstances); In re Quinlan, 355 A.2d 647, 672 (N.J. Sup. Ct. 1976) (holding that comatose individual has a constitutional privacy right to be free from bodily invasion, that such right not diminished by individual’s incompetence and could be exercised by parent on her behalf); Garger v. New Jersey, 429 U.S. 922 (1976); Matter of Conroy, 486 A.2d 1209, 1250 (N.J. 1985) (applying substituted judgment and best interests tests to determine whether life-sustaining treatment should be withheld from an incompetent person who is not terminally ill); Fosmire v. Nicoleau, 75 N.Y. 2d 218, 227 (1990) (rejecting contention that the right to refuse life-sustaining treatment should be limited to the terminally ill). One commentator describes the development of the caselaw:

Since the Quinlan decision, a patient’s right to refuse life-sustaining medical treatment has been upheld by virtually every state appellate court which has been faced with the issue. Each state has followed an almost identical course of development in this area of the law, with the caselaw progressing in three stages. First, the cases established the patient’s right to refuse treatment based on either the constitutional right to privacy or the doctrine of informed consent, or both. The second was judicial recognition of the patient’s or guardian’s right to refuse life-support systems, usually a respirator. Finally, the cases expanded the right to the removal of feeding tubes; a decision made by the patient who is competent or by a surrogate when the patient is incompetent.

Risley, supra note 38, at 599-600. See generally Alan Meisel, The Right to Die (2d. ed. 1997 & Supp. 2000) (outlining the history and legal tenets of the right to die).

²²⁶ “The Bartling, Bouvia, and Bergstedt decisions . . . exemplify the proposition that there are no practical or logical lines of demarcation to be drawn between autonomy rights for the terminal and non-terminal patient.” Neeley, The Constitutional Right to Suicide, supra note 29, at 107, citing Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (Ct. App. 1984); Bouvia v. Superior Court (Glenchur), 179 Cal. App. 3d 1127 (Cal. Ct. App. 1986); McKay v. Bergstedt, 801 P. 2d617(Nev. 1990).

²²⁷ “If suicide were to become a constitutional right, then—under certain circumstances—the doctrine of substituted judgment could conceivably apply to allow a guardian ad litem to assert this right on behalf of comatose or otherwise incompetent patients.” Neeley, The Constitutional Right to Suicide, supra note 29, at 155. Neeley’s conclusion rests on his contention that such a result would protect individuals’ autonomy rights in situations where the ability to exercise the right has been lost. Id., citing Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977). Opponents of the legalization of assisted suicide also foresee this use of the ‘right to die’ cases to exclude competence as a criterion for assisted suicide cases, but are far less sanguine about the consequences of such a possibility:

If individuals have a constitutional “right to die” by withholding of life-support systems that is not diminished when they are incompetent and their wishes are unknown, a right that may be exercised by third parties by way of substituted judgment under such circumstances, then it would logically seem to follow that a recognized “right to die” by suicide would also survive incompetence and that third parties would likewise be empowered to exercise this “right” on their behalf. Put another way, if the “right to die” recognized in present case law were deemed to encompass a “right to suicide,” then suicide by substituted judgment—constitutionally sanctioned active, involuntary euthanasia—of incompetent persons would be a logical consequence.

Marzen et al., supra note 23, at 102.

²²⁸ See, e.g., Bopp, supra note 25, at 117 (“Ostensibly, a broad constitutional right to assisted suicide would encompass the consensual killing of, at a minimum, any competent adult.”); Marzen et al., supra note 23, at 7 (“Under the ‘autonomy’ argument . . . the suicide of an autonomous individual for any reason, and under any circumstances, should never be prevented.”).

²²⁹ Kass, Is There a Right to Die?, supra note 28, at 37-38.

²³⁰ See Glendon, supra note 97, at 44.

²³¹ For examples of this critique, see Glendon, supra note 97, at xi, 15. Carl Schneider writes:

It seems to me a fault of the rights approach that it impedes compromise and even makes it odious. . . . [R]ights discourse masks the nature and complexity of the interests actually at stake; turns the accommodation of interests into the breaching or defining away of a right, and thus a political and moral wrong; and, because of the absence of a hierarchy of rights, makes choices between interests harder.

Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 175.

²³² Hart, Are There Any Natural Rights?, supra note 26, at 19. See also Mackie, supra note 28 (drawing sharp contrast between right and goal-based moral reasoning); Dworkin, Taking Rights Seriously, supra note 17, at 269 (describing strong sense of rights as “anti-utilitarian”).

²³³ “[E]ach person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” John Rawls, a Theory of Justice 3 (1971).

²³⁴ See supra notes 123-125 and accompanying text. This kind of equal protection argument has been used by proponents of the legalization of assisted suicide to expand the scope of the right to assisted suicide. See Frances Graves, Address at the Hemlock Society’s Second National Voluntary Euthanasia Conference (Feb. 8, 1985), cited in Marzen et al., supra note 23, at 8 n.26 (arguing that restricting euthanasia to competent adults would be a form of “age discrimination or discrimination against a type of illness”).

²³⁵ See Glendon, supra note 97, at 154 (describing a tendency towards such justificatory reasoning in United States Supreme Court opinions).

²³⁶ Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 175.

²³⁷ The abortion debate provides a good example of this propensity. See generally Howard Brody, Assisted Death - A Compassionate Response to a Medical Failure, 327 N. Eng. J. Med. 1384 (1992) (citing Hilary Putnam). See also Glendon, supra note 97, at 154 (describing Roe v. Wade, 410 U.S. 113 (1973) as “troubling” with regard to the decision’s unintentional “appearance of leaving developing fetuses . . . outside the community for which we Americans have a common concern”).

²³⁸ See, e.g., Albin Eser, “Sanctity” and “Quality” of Life in a Historical-Comparative View, in Suicide and Euthanasia: The Rights of Personhood, supra note 21, at 103, 114. Eser writes, “[w]ere we to give the sanctity principle absolute priority, a person longing for death would be degraded to an object doomed to live for the exclusive interest of the state. If we do not want to apotheosize the state as a life-giving divinity, we scarcely can deny the power of every person over his or her living and dying.” Id.

²³⁹ See, e.g., Thomas G. Dailey, Choosing Death: Exploring Assisted Suicide, Our Family, Sept. 1992, at 12, 13; Catholic Health Association, Care of the Dying: A Catholic Perspective, Part I, Cultural Context, Health Progress, Mar. 1993, at 34, 37 (criticism of the notion of complete autonomy in the context of religion, society, and sickness); Bopp, supra note 25, at 138. Leon Kass writes:

An examination of the “right to die” . . . reveals the dangers and the limits of the liberal—that is, rights-based—political philosophy and jurisprudence to which we Americans are wedded. As the ultimate new right, grounded neither in nature nor in reason, it demonstrates the nihilistic implication of a new (“postliberal”) doctrine of rights, rooted in the self-creating will.

Kass, Is There a Right to Die?, supra note 28, at 34.

²⁴⁰ “A constitutional right to kill oneself, once unleashed, would have far-reaching impacts. In essence, recognition of such a right would relegate life to a merely optional course legally equivalent to death.” Weber, supra note 124, at 183.

²⁴¹ See, e.g., Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 52, at 38-39.

²⁴² Battin, Ethical Issues in Suicide, supra note 26, at 180.

²⁴³ Brody, supra note 237, at 1384. Brody continues: “This requires more reliance on negotiation, compromise, and practical reasoning, and less on abstract ethical theory.” Id,

²⁴⁴ An example of a personal right would be the right to privacy, while an example of a civil or political right would be the right to vote. See Mayo, supra note 162, at 126-29; Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 158-60.

²⁴⁵ H.L.A. Hart, Utilitarianism and Natural Rights, in Essays in Jurisprudence and Philosophy 181,195 (1983).

²⁴⁶ See Mayo, supra note 162, at 128-29; Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 171-72.

²⁴⁷ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 160-61; Engelhardt & Malloy, supra note 28, at 1004-1005, 1010.

²⁴⁸ See Dworkin, Life’s Dominion, supra note 29, at 233-37; Dworkin, Taking Rights Seriously, supra note 17, at 198; Neeley, The Constitutional Right to Suicide, supra note 29, at 197-98; Joel Feinberg, Harm to Self 354 (1986). In the Canadian context, the most ardent adoption of dignity as a basis for personal rights is found in Kindler v. Canada [1991] 2 S.C.R. 779, 813-14 (Cory, J. dissenting and Lamer, C.J.C. concurring in the dissent) (“It is the dignity and importance of the individual which is the essence and the cornerstone of democratic government.”). See also R. v. Oakes [1986] 1 S.C.R. 103, 136 (Can.) (Dickson, C.J.C); Re s. 94(2) of the Motor Vehicle Act of British Columbia [1985] 2 S.C.R. 486, 512 (Can.) (Lamer, J.); Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, 171 (Can.) (Mclntyre, J.); Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, K51-54 (Can.); R. v. Morgentaler [1988] 1 S.C.R. 30, 166 (Can.) (Wilson, J., concurring):

The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue.

²⁴⁹ Mayo, supra note 162, at 128-30 (examining and accepting the judicial adoption of the standard of “some evolving societal consensus” as a basis for justification of personal rights including the constitutional right to privacy).

²⁵⁰ A full analysis of these difficulties associated with personal rights, and in particular with the right to privacy in U.S. Constitutional law is beyond the scope of this article. See Henry T. Greely, A Footnote to “Penumbra” in Griswold v. Connecticut, 6 Const. Comment. 251, 264-65 (1989) (criticizing Justice Douglas’ finding of the source of the right to privacy in the “penumbras” of the Bill of Rights); Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410 (1974) (discussing constitutional treatment of the confrontation between private rights and public goods); Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 751, 795 (1989) (analyzing how legal prohibitions contrary to the right of privacy dictate an individual’s life); Gary L. Boswick, Comment, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 Calif. L. Rev. 1447 (1976) (arguing that the right of privacy is composed of three subdivisions: repose, sanctuary, and intimate decisions). A further problem may be the refusal to even examine potential bases for a right to suicide or assisted suicide:

The question presented in this case .. . is not whether a person has a constitutional right of self-determination, or a right to define personal existence, or a right to make intimate and personal choices, or a right not to suffer. Rather, the question that we must decide is whether the Constitution encompasses a right to commit suicide, and, if so, whether it includes a right to assistance.

People v. Kevorkian, 527 N.W.2d 714, 730 (Mich. 1994) (Cavanagh, C.J. & Brickley & Griffin, JJ.). This statement is reminiscent of Justice White’s announcement in Bowers v. Hardwick that the issue presented was “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” 478 U.S. 186, 190 (1986).

²⁵¹ Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 171.

²⁵² See supra text accompanying notes 37-42.

²⁵³ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 161.

²⁵⁴ See, e.g., Engelhardt & Malloy, supra note 28, at 1004-05 (arguing that freedom must be the pre-eminent value in a pluralist, secular society, and thus advocating a libertarian approach which protects moral pluralism).

²⁵⁵ See id. at 1012-13.

²⁵⁶ See supra text accompanying notes 37, 46 and 200-202.

²⁵⁷ BATTIN, ETHICAL ISSUES IN SUICIDE, supra note 26, at 183.

²⁵⁸ This section draws on Lewis, The Dutch Experience of Euthanasia, supra note 82, at 645. On slippery slopes generally, see Frederick Shauer, Slippery Slopes, 99 HARV. L. REV. 361 (1985); Wilbren van der Burg, The Slippery-Slope Argument, 102 ETHICS 42, 42-43 (1991) (noting that the slippery slope argument has been invoked against the legalization of abortion, euthanasia, in vitro fertilization, and DNA research); Freedman, supra note 225. See also Bernard Williams, Which Slopes Are Slippery?, in MORAL DILEMMAS IN MODERN MEDICINE 126, 126-27 (Michael Lockwood ed., 1985) (pointing out that slippery slope arguments are often applied to matters of medical practice).

²⁵⁹ For examples of such slippery slope arguments, see Yale Kamisar, Some Non-Religious Views Against Proposed ‘Mercy Killing’ Legislation, 42 MINN. L. REV. 969, 1030-41 (1958) (discussing the “parade of horrors” that could occur following legalization of euthanasia); CANADIAN LAW REFORM COMMISSION, EUTHANASIA, AIDING SUICIDE AND CESSATION OF TREATMENT: WORKING PAPER 28 46 (1982); Gregory Gelfand, Euthanasia and the Terminally III, 63 NEB. L. REV. 741, 764-65 (1984); Gay-Williams, supra note 85, at 156; J.V. Sullivan, Immorality of Euthanasia, supra note 85, at 23-26; Germain Grisez, Suicide and Euthanasia, in DEATH, DYING AND EUTHANASIA 742, 811 (Dennis J. Horan & David Mall eds., 1980) (comparing the possible future legal stance on euthanasia in the United States and other westerm societies to the experience of Nazi Germany).

²⁶⁰ James Rachels explains this important distinction plainly:

The logical form of the argument goes like this. Once a certain practice is accepted, from a logical point of view we are committed to accepting certain other practices as well, since there are no good reasons for not going on to accept the additional practices once we have taken the all-important first step. But, the argument continues, the additional practices are plainly unacceptable, therefore, the first step had better not be taken. . . . Th[e empirical or psychological] form of the argument is very different. It claims that once certain practices are accepted, people shall in fact go on to accept other, more questionable practices. This is simply a claim about what people will do and not a claim about what they are logically committed to.

JAMES RACHELS, THE END OF LIFE: EUTHANASIA AND MORALITY 172-73 (1986) (emphasis in original).

²⁶¹ Lewis, The Dutch Experience of Euthanasia, supra note 82, at 645-48. For critics of euthanasia in the Netherlands, see for example, HERBERT HENDIN, SEDUCED BY DEATH: DOCTORS, PATIENTS AND THE DUTCH CURE 163-165 (1997); Fenigsen, supra note 48, at 24-26; John Keown, The Law and Practice of Euthanasia in the Netherlands, 108 LAW Q. REV. 51, 61-78 (1992); John Keown, Further Reflections on Euthanasia in The Netherlands in the Light of The Remmelink Report and The Van Der Maas Survey, in EUTHANASIA, CLINICAL PRACTICE AND THE LAW 219 (Luke Gormally ed., 1994); John Keown, Euthanasia in The Netherlands: Sliding Down the Slippery Slope?, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 261 (John Keown ed., 1995).

²⁶² According to the 1990 and 1995 Dutch studies of ‘medical behaviour which shortens life’, assisted suicide is “relatively uncommon” in the Netherlands, occurring approximately 400 times a year (0.3% of all deaths), while there were 2300 reported cases of voluntary euthanasia in 1990 and 3200 in 1995 (1.8% and 2.4% of all deaths respectively. See Henk A.M.J, ten Have & Jos V.M. Welie, Euthanasia: Normal Medical Practice?, HASTINGS CENTER REP., Mar .-Apr. 1992, at 34; GRIFFITHS, EUTHANASIA AND LAW IN THE NETHERLANDS, supra note 223, at 210. See generally Marvin E. Newman, Active Euthanasia in the Netherlands, in To DIE OR NOT TO DIE? CROSS-DISCIPLINARY, CULTURAL AND LEGAL PERSPECTIVES ON THE RIGHT TO CHOOSE DEATH 117 (Arthur S. Berger & Joyce Berger, eds., 1990). But see, Herbert Hendin, Scared To Death of Dying, N.Y. Times, Dec. 16, 1994, at A39 (“The Netherlands has moved from assisted suicide to euthanasia, from euthanasia for the terminally ill to euthanasia for the chronically ill, from euthanasia for physical illness to euthanasia for psychological distress and from voluntary euthanasia to involuntary euthanasia.”).

²⁶³ Fenigsen, supra note 177, at 24-26 (“Those who contend that it is possible to accept and practice ‘voluntary’ euthanasia and not allow involuntary [euthanasia] totally disregard the Dutch reality.”); Keown, The Law and Practice of Euthanasia in the Netherlands, supra note 261, at 61-78; Keown, Further Reflections, supra note 261, at 219. See contra Rigter, supra note 208 (arguing that there is no evidence of involuntary euthanasia in the Netherlands); c.f G.M. Aartsen et al., Letter to the Editor, Hastings Center Rep., Nov.-Dec. 1989, at 47, 47 (agreeing with Rigter’s assessment of euthanasia in the Netherlands and describing Fenigsen’s article as “completely misplaced”). The critics’ perspective was accepted unquestioningly by Mr. Justice Sopinka (writing for the majority) in Rodriguez, the 1993 decision of the Supreme Court of Canada holding that the criminal prohibition against assisted suicide was not unconstitutional. Rodriguez v. British Columbia [1993] 3 S.C.R. 519, 603 (Can.). In 1997 in Washington v. Glucksberg and Vacco v. Quill, Chief Justice Rehnquist relied on an almost identical argument as that of Justice Sopinka, although he did buttress his argument with sources, citing those critics whose use of the Dutch experience has been heavily criticized by Griffiths, Bood and Weyers. The Chief Justice simply stated that “regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia.” 521 U.S. at 734. See also 521 U.S. at 785-86 (Souter, J., concurring).

²⁶⁴ See Griffiths, Euthanasia and Law in the Netherlands, supra note 223, at 226.

²⁶⁵ See Edmund D. Pellegrino, The False Promise of Beneficent Killing, in Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide 71, 88 (Linda L. Emanuel ed., 1998); Washington v. Glucksberg, 521 U.S. 702, 734 (1997); Keown, Further Reflections, supra note 261.

²⁶⁶ Griffiths, Euthanasia and Law in the Netherlands, supra note 223, at 226-28.

²⁶⁷ Id. at 226-27.

²⁶⁸ See id.

²⁶⁹ Margaret Otlowski, Voluntary Euthanasia and the Common Law 438 (1997).

²⁷⁰ Griffiths, Euthanasia and Law in the Netherlands, supra note 223, at 228 (“In 65% of the cases only morphine or the like was used, and in only 8% were muscle relaxants used, whereas in the case of euthanasia muscle relaxants are now used 90% of the time.”).

²⁷¹ In fact, the number declined from 1000 (in 1990) to 900 (in 1995) although the decrease is not statistically significant. Id. at 210, 226.

²⁷² Van der Maas & Emanuel, Factual Findings, in Regulating How We Die, supra note 265, at 151, 160.

²⁷³ See Griffiths, Euthanasia And Law in the Netherlands, supra note 223, at 300; Otlowski, supra note 269, at 439.

²⁷⁴ See Griffiths, Euthanasia And Law in the Netherlands, supra note 223, at 300-01.

²⁷⁵ Id. at 301 n.4 (citing evidence from Australia indicating that the rate of termination of life without explicit request is 3.5% of all deaths (while the relevant statistic in the Netherlands is 0.8%)). See Helga Kuhse et al., End-of-Life Decisions in Australian Medical Practice, 166 Med. J. Australia 191, 196 (1997) (noting that their study comparing Australia and the Netherlands weakens the assumption that countries openly practicing euthanasia have higher non-voluntary euthanasia rates than countries not openly practicing euthanasia). For American evidence, see Dworkin et al., The Philosophers’ Brief, supra note 28, at 41-42 and nn. 5-6.

²⁷⁶ See Otlowski, supra note 269, at 134-38.

²⁷⁷ Browne, supra note 39, at 47. See also Feinberg, Harm to Self, supra note 248, at 346.

²⁷⁸ Other examples include the fears that legalization will legitimize the horrors of the Nazi genocide; erode the rights of the disabled; or promote the idea that only some lives are inherently worthwhile. For an example of the latter argument, see Richard Sherlock, Liberalism, Public Policy and the Life Not Worth Living: Abraham Lincoln on Beneficent Euthanasia, 26 Am. J. Juris. 47, 49-50 (1981) (arguing that the decision to allow euthanasia requires an answer to the question of when a life is not worth living; even to discuss such an answer poses a threat to the fundamental principle of equality before the law and the principles derived therefrom). See generally, Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 167-71; Richards, supra note 45, at 398.

²⁷⁹ For rebuttal of slippery slope arguments in this context, see, e.g., Richards, supra note 45, at 398-403; Williams, The Sanctity of Life and the Criminal Law, supra note 39, at 339-46; Glanville Williams, Euthanasia Legislation: A Rejoinder to the Non-Religious Objections, in Euthanasia and the Right to Death 134, 134-47 (A. B. Downing ed., 1969); Browne, supra note 39, at 46-47.

²⁸⁰ See generally Mary Anne Warren, The Ethics of Sex Preselection, in The Ethics of Reproductive Technology 232, 232 (Kenneth D. Alpern ed., 1992). Warren argues:

All slippery slope arguments presuppose that people cannot (learn to) make certain distinctions that the arguer considers vital; if the relevant distinctions can be made, then there is no reason to suppose that acceptance of the one form of behavior will lead to acceptance of the other. Such arguments fail if either (1) people can make such distinctions, or (2) these distinctions do not have the significance that the arguer takes them to have.

Id. at 241.

²⁸¹ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 170-74.

²⁸² Id. at 166-67.

²⁸³ See supra text accompanying notes 123-125.

²⁸⁴ See Schneider, Rights Discourse and Neonatal Euthanasia, supra note 56, at 175 (“[D]efining interests as rights inhibits compromise because the pull of surrounding slippery slopes makes a whole system of rights, and not just [the particular question at issue,] seem to be at stake.”).

²⁸⁵ This kind of critique is not commonly directed at the use of rights discourse against the legalization of assisted suicide, for example invoking the right to life or right to equal protection. See, e.g., Marzen et al., supra note 23, at 135 (describing “the ‘every man for himself philosophy that typifies the right-to-suicide rhetoric”).

²⁸⁶ Occasionally exceptions are made for some type of group or communal rights. See, e.g., the limited protection of group rights in the Canadian Charter of Rights and Freedoms which contains sections protecting Canadians’ multicultural heritage (s.27), language and education rights (ss.16-29), affirmative action programs (s,15(2)), and gender equality (ss.15, 28). See generally Frank Iacobucci, Judicial Review by the Supreme Court of Canada under the Canadian Charter of Rights And Freedoms: The First Ten Years, in Human Rights and Judicial Review: A Comparative Perspective (David Beatty ed., 1994). Group rights for ‘the family’ are found in the United Nations Universal Declaration on Human Rights, G.A. Res. 217, U.N. Doc. A/811, art. 16.3, and in the European Social Charter, opened for signature Oct. 18, 1961, 529 U.N.T.S. 89 (entered into force Feb. 26, 1965), arts. 1-16, 1-17. See David Harris, The European Social Charter (1984). On group rights generally, see Staughton Lynd, Communal Rights, 62 Tex. L. REV. 1417 (1984).

²⁸⁷ See Minow, supra note 18, at 1862 (describing “a charge from the right that rights promote conflict rather than community, and .. . a claim from the left that rights reinforce individualism at the expense of community”).

²⁸⁸ See, e.g., Ed Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 Stan. L. Rev. 509, 516-17 (1984); Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063, 1108 (1981); Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 209, 212-13 (1979).

²⁸⁹ Elizabeth Schneider, The Dialectic of Rights and Politics, supra note 142, at 595.

²⁹⁰ For example, Lucinda Finley writes:

Our legal system has tended to view the person who holds rights . . . as an isolated, self-sufficient, autonomous actor. This conception of the self has little room in it for recognizing and embracing interconnectedness with and responsibility to others. . . . Autonomy, which is held out as the ideal for decontextualized human beings, is defined as the realization of self-fulfillment guided by the ultimate authority of self-judgment without interference from others. This underlying view of human nature has produced a negative, highly individualistic definition of rights.

Finley, supra note 143, at 1159-60. See also Olsen, supra note 143, at 389, 429.

²⁹¹ For examples of this critique, see Robert N. Bellah, Et Al., The Good Society (1991); Robert N. Bellah, Et Al., Habits of the Heart (1985) ; Amitai Etzioni, The Spirit of Community: Rights, Responsibility, and the Communitarian Agenda (1993); William Galston, Liberal Purposes (1991); Glendon, supra note 97; Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 66-73 (1986); Gutmann, Communitarian Critics of Liberalism, 14 Phil. & Pub. Aff. 308, 314 (1985).

²⁹² Michael J. Sandel, Liberalism and the Limits of Justice 48 (1982).

²⁹³ See Glendon, supra note 97, at 47.

²⁹⁴ Id. at 48. See also id. at 191 n.4 (making connection between this critique and Sandel’s concept of the “encumbered self).

²⁹⁵ See Sandel, supra note 292, at 133.

²⁹⁶ That is, individuals rely on others to help determine the composition of their good. According to Sandel, the Rawlsian view of the self standing back from its constitutive attachments in order to decide its good alone is both impoverished and inaccurate. See id. at 175-83. See also Rawls, supra note 233.

²⁹⁷ See generally Finley, supra note 143, at 1177; Daniel R. Ortiz, Categorical Community, 51 Stan. L. Rev. 769 (discussing the problems with communitarianism).

²⁹⁸ See Ortiz, supra note 297.

²⁹⁹ Olsen, supra note 143, at 430.

³⁰⁰ Finley, supra note 143, at 1177.

³⁰¹ Sandel, supra note 292, at 183.

³⁰² Leslie Bender, A Feminist Analysis of Physician-Assisted Dying and Voluntary Active Euthanasia, 59 Tenn. L. Rev. 519, 535 (1992).

³⁰³ See McClain, supra note 81, at 1053-54 (arguing that discussion of which costs to consider in a balancing test will result in substantial disagreement).

³⁰⁴ See, e.g., Callahan, The Troubled Dream of Life, supra note 12, at 103-04; Catholic Health Association, supra note 239, at 37 (arguing that assisted suicide and euthanasia involve relinquishing power over oneself to the community).

³⁰⁵ See Fenigsen, supra note 177, at 29.

³⁰⁶ Callahan, Can We Return Death to Disease?, supra note 19, at 5.

³⁰⁷ See, e.g., Martin E. Marty & Ron P. Hamel, Some Questions and Answers, in Choosing Death: Active Euthanasia, Religion, and the Public Debate 27,46 (Ron P. Hamel ed., 1991):

We are not merely a collection of isolated, self-determining individuals. We are social by nature; we are connected to others in many different ways. Because of that interconnectedness and the impact of individual acts of euthanasia upon those others, euthanasia is also a social issue .. . It is utterly unrealistic to think that individuals can go about choosing euthanasia without its having some impact upon family members and friends, the various communities of which they are a part, and even society as a whole.

³⁰⁸ See Somerville, supra note 50, at 24. Somerville is concerned about “the protection of human networks which . . . establish the web which constitutes society.” Id. at 27.

³⁰⁹ Ariens, supra note 24, at 83.

³¹⁰ See id. at 83, 112-13, 122. Note that Ariens focuses mainly on non-terminal cases especially “insane” suicides, and does not distinguish between suicide prompted by mental illness and suicide in the face of terrible physical and mental suffering caused by severe illness or disability. See id.

³¹¹ See id. at 83.

³¹² See id. at 83.

³¹³ Marzen et al., supra note 23, at 135.

³¹⁴ 521 U.S. 702, 741 (1997).

³¹⁵ Neeley, Self-Directed Death, supra note 217, at 227. See also Feinberg, Harm to Self, supra note 248, at 361 (“Why should a person be permitted to implement a ‘wrong’ or ‘unreasonable’ decision to die? The only answer possible is that it is his decision and his life, and that the choice falls within the domain of his morally inviolate personal sovereignty.”).

³¹⁶ Alan Sullivan, A Constitutional Right to Suicide, supra note 60, at 245.

³¹⁷ Richards, supra note 45, at 387-91.

³¹⁸ Robert Destro warns that “[t]he danger in a rights-based approach lies in its myopic focus on the autonomy of the individual, without regard to the complex web of relationships that give each of our lives shape and meaning.” Robert A. Destro, The Scope of the Fourteenth Amendment Liberty Interest: Does the Constitution Encompass a Right to Define Oneself Out of Existence?, 10 Issues L. & Med. 183, 211 (1994). See also Somerville, supra note 50, at 24; Richards, supra note 45, at 387 (“Decisions to die do not occur in a vacuum: persons who express such wishes reasonably may be embedded in personal relationships which may relevantly alter our moral evaluation of the situation.”).

³¹⁹ “It is by no means obvious that the atomistic, individualist model of the patient on which a strong right to die would be based best reflects the position in which most people find themselves.” Jonathan Montgomery, Power Over Death: The Final Sting, in Death Rites: Law and Ethics at the End of Life 37, 50 (Robert Lee & Derek Morgan eds., 1994).

³²⁰ Marzen et al., supra note 23, at 147.

³²¹ Glendon, supra note 97, at 47.

³²² See Carol Gilligan, In a different Voice: Psychological Theory and Women’s Development 3, 21 (1982) (discussing the Rights and Responsibilities Study the author conducted and reporting that many of the subjects focused on a responsibility to others and a duty to help others rather than their individual rights in living); Nelnoddings, Caring 1-6 (1984) (analyzing what it means to care and be cared for from the feminine view of practical ethics); Joan C. Tronto, Women and Caring: What Can Feminists Learn About Morality from Caring?, in Gender/Body/Knowledge: Feminist Reconstructions of Being and Knowing 172, 173-76, 183-85 (Alison M. Jaggar & Susan R. Bordo eds., 1989) (discussing the types of caring, the approaches to caring by men and women, and the feminist approach to caring).

³²³ Bender, supra note 302, at 535.

³²⁴ Id. at 538.

³²⁵ Stan Sesser, Hidden Death, New Yorker, Nov. 14, 1994, at 62 (discussing attitudes toward those with HIV and AIDS in Japan). The experience does not seem to be generally replicated in the United States. See Nuland, supra note 12, at 196, quoting Dr. Alvin Novick (describing community-based approaches to care-giving for gay AIDS patients, which have been called the “care-giving surround.”)

³²⁶ Quill, Death and Dignity: A Case of Individualized Decision Making, supra note 3, at 693. At the end of his account of Diane’s death, Dr. Quill decries the lonely nature of these kinds of suicides:

I wonder how many severely ill or dying patients secretly take their lives, dying alone in despair. I wonder whether the image of Diane’s final aloneness will persist in the minds of her family, or if they will remember more the intense, meaningful months they had together before she died. .. . I wonder why Diane, who gave so much to so many of us, had to be alone for the last hour of her life.

Id. at 694.

³²⁷ See Cernetig, supra note 4, at Al; Wilson & Downey, supra note 4, at A4.

³²⁸ In his book, Kevorkian proudly displays a photograph of his 1968 Volkswagen camper van in which a number of the deaths in which he has assisted have occurred. Jack Kevorkian, Prescription: Medicide the Goodness of Planned Death 224 (1991).

³²⁹ See Compassion in Dying v. Washington, 79 F. 3d 790, 810-11 (9th Cir. 1996) (en banc).

³³⁰ See supra text accompanying note 12.

³³¹ Bender, supra note 302, at 535.

³³² Nuland, supra note 12, at 246.

³³³ Finley, supra note 143, at 1161. Michael Ignatieff has made this argument in greater depth: In the attempt to defend the principle that needs do make rights, it is possible to forget about the range of needs which cannot be specified as rights and to let them slip out of the language of politics. Rights language offers a rich vernacular for the claims an individual may make on or against the collectivity, but it is relatively impoverished as a means of expressing individuals’ needs/or the collectivity.

Michael Ignatieff, The Needs of Strangers 13 (1985). See also Bender, supra note 302, at 537-38.

³³⁴ Finley, supra note 143, at 1177.

³³⁵ Bender, supra note 302, at 537-38.

³³⁶ “The failure to provide pain relief is a pervasive fault of current clinical practice.” New York State Task Force, supra note 44, at 158. “Pain is terribly real and immediately present for the person in pain, but can be less apparent to observers. This divergence can lead to a sense of isolation on the part of the patient, and to inadequate responses by others in alleviating pain.” Id. at 18. The President of the American Association of Bioethics has stated that “[t]he best friend Dr. Kevorkian has is the undermedication of pain.” Ann Hardie, ‘Morphine Drip’ Has Little Opposition, Atlanta Journal and Constitution, Mar. 8, 1995, at C3 (quoting Arthur Caplan). See also Rachels, supra note 260, at 152-54 (describing horrendous case of the undermedication of pain at the N.I.H, cancer clinic); Weir, supra note 30, at 123-24; John Glasson, Report of the Council on Ethical and Judicial Affairs of the American Medical Association: Physician-Assisted Suicide, 10 Issues L. & Med. 91 (1994); Dworkin et al., Assisted Suicide: The Philosophers’ Brief, supra note 28, at 42.

³³⁷ Moreover, Bender unrealistically assumes that those around the patient will be in (or will be able to reach) some kind of agreement as to the content of the patient’s needs. See Bender, supra note 302.

³³⁸ This phrase is borrowed from Andrew Ashworth, Crime, Community and Creeping Consequentialism, 1996 Crim. L. Rev. 220, 229 (1996).

³³⁹ Glendon, supra note 97, at 15.

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