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The Right to Die in the United States, Canada, and China: Legal Fictions and Their Utility in a Comparative Perspective

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The Right to Die in the United States, Canada, and China: Legal Fictions and Their Utility in a Comparative Perspective THE RIGHT TO DIE IN THE UNITED STATES, CANADA, AND CHINA: LEGAL FICTIONS AND THEIR UTILITY IN A COMPARATIVE PERSPECTIVE KONSTANTIN TRETYAKOV* The right to die continues to spark controversies around the world; a lot of debate about it in the United States and worldwide results from disparate treatment of different forms of the right to die. For example, all U.S. states permit withdrawal of life-sustaining medical treatment, while only a handful of them have legalized physician-assisted suicide, and all of them prohibit lethal injection. This article argues that the disparities in how the right to die is regulated in the United States are attributable to legal fictions about intention and causation and that those fictions have outlived their utility and should be abandoned, especially in light of the Obergefell v. Hodges decision of the Supreme Court. The paper also looks into the experience of Canada and China to see how a legal regime of the right to die without legal fictions might look. Finally, the paper proposes a framework for future development of the right to die regulations in the United States. INTRODUCTION ................................................................................................................ 80 I. THE DOCTRINE OF THE RIGHT TO WITHDRAWAL IN THE UNITED STATES .. 83 A. Doctrinal Elements of the Right to Withdrawal ................................................... 83 B. Interaction among the Substantive Elements of the Doctrine............................... 88 II. WITHDRAWAL, PRESCRIPTION, INJECTION, AND SEDATION: DISPARATE TREATMENT AND LEGAL FICTIONS................................................................ 91 A. The Legal Regimes of Prescription, Injection, and Sedation in Comparison to Withdrawal........................................................................................................ 91 B. Causation and Intention in Withdrawal, Prescription, Injection, and Sedation .... 93 1. Causation....................................................................................................... 93 2. Intention ........................................................................................................ 95 Table 1. Legal Fictions of Causation and Intention in the Right to Die .......... 100 C. The Utility of Legal Fictions about Causation and Intention ............................. 101 III. THE PRESENT AND THE FUTURE OF THE RIGHT TO DIE: CANADA, CHINA, AND THE UNITED STATES................................................................................ 104 A. Medical Assistance in Dying in Canada............................................................. 104 B. Withdrawal and Sedation with Intention to Cause Death in China .................... 108 1. Withdrawal .................................................................................................. 108 2. “Euthanasia”................................................................................................ 112 C. Abandoning Legal Fictions: Strategies and Possible Implications..................... 115 1. Withdrawal and Prescription ....................................................................... 116 2. Withdrawal and Injection ............................................................................ 119 *S.J.D., Harvard Law School (2017). Ph.D. in Law, Moscow State Institute of International Relations (2010). Law Clerk, Massachusetts Appeals Court, 2017−2018. I thank William Alford and I. Glenn Cohen who read various drafts of this article, and Haibo He,Thaddeus Pope, and the participants of the Harvard−Edinburgh Legal Theory Colloquium for discussing the central issues of this article with me. Jacob Hanna gave excellent feedback on both the substance and the style of this article. Matt Seccombe and the editors of the Journal of Law and Social Change provided able editorial assistance. All remaining errors are mine. Published by Penn Law: Legal Scholarship Repository, 2018 80 UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE [Vol. 21.2 IV. CONCLUSION............................................................................................................. 120 INTRODUCTION The right to die―the right to choose the time, place, and manner of one’s own premature death―continues to spark controversies in the United States and around the world. In the summer of 2016, the Supreme Court of New Mexico refused to recognize a constitutional right to a physician’s aid in dying for competent, terminal patients.1 At approximately the same time, the Canadian legislature passed a bill legalizing medical assistance in dying through a lethal injection or a prescription of a lethal dose of medication.2 A case involving santhara―a religious practice of fasting to death―is still pending before the Supreme Court of India.3 (In the meantime, the highest court suspended the ban on santhara issued by a lower court.)4 Other examples include the legalization of physician-assisted dying in California,5 the failure to legalize the same measure in the United Kingdom,6 the legalization of pediatric euthanasia in Belgium,7 and the ruling of the European Court of Human Rights on the permissibility of withdrawal of life-saving treatment from a permanently incompetent patient.8 As these examples demonstrate, there are medical (e.g., physician-assisted suicide) and non-medical (e.g., voluntarily refusing to eat and drink) ways to execute the right to die. In this article, I shall focus on the medical forms of the right to die. While there is no universal consensus in the literature on what the right to die implies, many authors agree that it can be executed in the following medical ways:9 (1) voluntary active euthanasia, in which a medical professional, following a request from her patient,10 administers a lethal drug to that patient, resulting in the patient’s death (which I shall call “Injection”); (2) voluntary passive euthanasia, in which a medical 1 Morris v. Brandenburg, 376 P.3d 836, 838-39 (N.M. 2016). 2 An Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying), S.C. 2016, c 3 (Can.). 3 India Top Court Lifts Ban on Jains’ Santhara Death Fast, BBC NEWS (Aug. 31, 2015), http://www.bbc. com/news/world-asia-india-34105602 [https://perma.cc/KKD6-B8EX]. 4 Id. 5 End of Life Option Act, CAL. HEALTH AND SAFETY CODE § 443.2 (2016). 6 James Gallagher & Philippa Roxby, Assisted Dying Bill: MPs Reject ‘Right to Die’ Law, BBC NEWS (Sept. 11, 2015), http://www.bbc.com/news/health-34208624 [https://perma.cc/2LAF-UPTD]. 7 Andrew M. Siegel et al., Pediatric Euthanasia in Belgium: Disturbing Developments, 311 JAMA 1963 (2014). See also Nicola Slawson et al., Terminally Ill Child First to Be Helped to Die in Belgium,THE GUARDIAN (Sept. 17, 2016), https://www.theguardian.com/society/2016/sep/17/terminally-ill-child-first-helped-to-die-belgium [https://perma .cc/8AF3-BKWF] (discussing the first case of pediatric euthanasia in Belgium pursuant to the legislation enacted in 2014). 8 Lambert v. France, EUR.CT. H.R.1, 4, 51 (2015). 9 See, e.g.,NEW YORK STATE TASK FORCE ON LIFE & THE LAW,WHEN DEATH IS SOUGHT:ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT (1994); ROBERT H. BLANK, END-OF-LIFE DECISION MAKING:ACROSS- NATIONAL STUDY 4 (Robert H. Blank & Janna C. Merrick eds., 2005); Timothy E. Quill, Bernard Lo & Dan W. Brock, Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia, 278 JAMA 2099 (1997). 10 If the patient is incompetent, the patient’s representative (a guardian, a health care proxy, or a relative) can make that request on the patient’s behalf. The same is true for voluntary passive euthanasia. https://scholarship.law.upenn.edu/jlasc/vol21/iss2/1 2018] THE RIGHT TO DIE IN THE UNITED STATES,CANADA, AND CHINA 81 professional, following a request from her patient, withdraws and then withholds life-saving treatment from that patient, also resulting in the patient’s death (“Withdrawal”);11 (3) physician- assisted suicide, in which a doctor at her patient’s request prescribes her a lethal dose of medication, which the patient then self-administers in order to end her own life (“Prescription”); and, (4) palliative care hastening death (arguably distinguishable from voluntary active euthanasia), in which a doctor administers large doses of pain control medications to her patient to reduce the patient’s suffering, which may also result in the patient’s death as a side-effect (“Sedation”). The earlier examples also demonstrate that different types of the right to die are treated differently, even within the same country or state. For example, all U.S. states permit Withdrawal,12 whereas only a handful of them legalized Prescription,13 and all of them prohibit Injection.14 Furthermore, as some of the justices of the United States Supreme Court indicated, while there was no right to Prescription under the federal Constitution, there was a constitutionally protected right to Withdrawal and the option of Sedation was also available for patients.15 Internationally, different treatment of the right to die in different countries or states results in so-called “suicide tourism” ― the situation in which a patient travels from her home country or state to a different one where certain types of the right to die are legal and where she can execute her end-of-life decision.16 This different treatment of different methods of the right to die is one of the major reasons
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