THE RIGHT TO ASSISTED SUICIDE AND EUTHANASIA NEIL M. GORSUCH* I. INTRODUCTION ........................................................ 600 I. THE COURTS ............................................................. 606 A. The Washington Due Process Litigation............ 606 1. The Trial Court ...................... 606 2. The Ninth Circuit Panel Decision ............. 608 3. The En Banc Court ...................................... 609 B. The New York Equal ProtectionLitigation ........ 611 1. The Trial Court ........................................... 611 2. The Second Circuit ..................................... 612 C. The Supreme Court............................................. 613 1. The Majority Opinion ................................. 614 2. The Concurrences ....................................... 616 D. The Consequences ofGlucksberg and Quill .... 619 III. ARGUMENTS FROM HISTORY ................................... 620 A. Which History?................................................... 620 B. The Ancients ....................................................... 623 C. Early Christian Thinkers .................................... 627 D. English Common Law ......................................... 630 E. ColonialAmerican Experience........................... 631 F. The Modern Consensus: Suicide ........................ 633 G. The Modern Consensus: Assisting Suicide and Euthanasia.......................................................... 636 IV. ARGUMENTS FROM FAIRNESS .................................. 641 A . Causation............................................................ 643 B. Act-Omission ...................................................... 645 C . Intention.............................................................. 647 V. ARGUMENTS FROM AUTONOMY ............................. 657 A. Casey and Cruzan ............................................ 658 * Columbia, B.A. 1988; Harvard, J.D. 1991; Marshall Scholar, University College, Oxford, 1992-1995; Partner, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C. I wish to thank John Finnis, Christian Mammen, Bernadette Murphy, Jessica Bartlow, and especially Louise Gorsuch. HarvardJournal of Law & PublicPolicy [Vol. 23 B. Autonomy as a Moral-PoliticalArgument .........661 C. The NeutralityPrinciple ..................................... 663 D. The Harm Principle............................................ 665 E. "'Pure" Perfectionism......................................... 667 F. Autonomy, Assisting Suicide, and Euthanasia?..669 G. The Only "Choice" Left for the Neutrality and Harm Principles.......................................... 675 VI. ARGUMENTS FROM UT Y.................................... 677 A. The Dutch Experience ........................................679 B. American Evidence and Issues ...........................683 C. Threatened Minorities........................................ 687 D. TurningKilling Into a PublicProcess ................ 690 E. The "Benefits" ofAssisting Suicide and Euthanasia.......................................................... 690 F. The UtilitarianMiscalculation ........................... 692 G. A Double-Effect Defense? ...................................695 VII. AN ARGUMENT FOR RESPECTING LIFE AS A SACROSANCr GOOD ...............................................696 A. Life as a Basic Good .........................................697 B. Respecting Human Life as a Basic Good ...........700 C. The Common Law's Respectfor the Sanctity of Life ..................................................................702 D. Toward a ConsistentEnd-of-Life Ethic ..............706 VIII. CONCLUSION ...........................................................709 I. INTRODUCTION Whether to permit assisted suicide and euthanasia is among the most contentious legal and public policy questions in America today. The American public consciousness became galvanized on June 4, 1990, with the news that Dr. Jack Kevorkian had helped Janet Adkins, a fifty-four-year-old Alzheimer's patient, take her life.? It was later disclosed that Dr. Kevorkian had neither taken the medical history nor made an examination of Ms. Adkins, and that he had never consulted Ms. Adkins's primary care physician.2 Dr. Kevorkian had 1. See People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994). 2. See Isabel Wilkerson, ProsecutorsSeek to Ban Doctor's Suicide Device, N.Y. TIMFS, Jan. 5, 1991, at A6. Dr. Murray Raskind, one of the physicians who cared for Ms. Adkins in the early stages of her disease, later stated that she was physically fit and in good spirits at the time of her death. Dr. Raskind added in No. 3] The Right to Assisted Suicide simply agreed to meet Ms. Adkins in a Volkswagen van he had outfitted with a "suicide machine" consisting of three chemical solutions fed into an intravenous line needle. It took Dr. Kevorkian several attempts to insert the needle into Ms. Adkins, but he eventually succeeded.3 Ms. Adkins then pressed a lever releasing lethal drugs into her body. While the media often uses the term "assisted suicide" to describe Dr. Kevorkian's practices, it is a misnomer. Dr. Kevorkian seeks to legalize not only the practice of aiding another in taking his or her life (assisting suicide), but also the practice of intentionally killing another person motivated by feelings of compassion or mercy (euthanasia). Indeed, in 1999 Dr. Kevorkian performed an act of euthanasia for a nationwide television audience on 60 Minutes, with the express desire of provoking debate over legalizing that practice too. (He was later convicted of second-degree murder after a trial in which he chose to act as his own counsel).4 Since Ms. Adkins's death made national headlines, Dr. Kevorkian claims to have assisted more than 130 suicides.' While Dr. Kevorkian is perhaps the most notorious proponent of assisted suicide and euthanasia, he is hardly without allies. Derek Humphry, founder of The Hemlock Society, a group devoted to promoting the legalization of euthanasia, has praised Dr. Kevorkian for "breaking the medical taboo on euthanasia."6 The American Civil Liberties Union has taken up his legal defense.7 In 1984, the Netherlands became the first country in the world to give legal sanction to some forms of assisting suicide and euthanasia. The Dutch Supreme Court declared that although killing a patient remains a criminally punishable offense under the nation's Penal Code, physicians can claim an "emergency defense" under certain circumstances. 8 court testimony that Ms. Adkins was probably not mentally competent at the time of her death. See id. 3. See Pamela Warrick, Suicide's Partner,L.A. TIMES, Dec. 6,1992, at El. 4. See Brian Murphy, Kevorkian Silent, Starts Prison Term, DETRorr FREE PRESS, (Apr. 14,1999) <http://www.freep.com/news/xtra2/qkevol4.htm>. 5. See id. 6. Derek Humphry, Law Reform, 20 OHIo N.U. L. REV. 729,731 (1993). 7. See Charlie Cain, Key Events inthe History of Michigan's Debate Over Abortion and Assisted Suicide, DETROIT NEWS, Mar. 2,1997, at A8. 8. As developed by Dutch courts, the emergency defense applies when (a) a patient requests assistance freely and voluntarily; (b) the request is well- HarvardJournal of Law & PublicPolicy [Vol. 23 In a 1991 issue of The New England Journal of Medicine, Dr. Timothy Quill, a University of Rochester professor, defended his decision to prescribe barbiturates to a cancer patient even though she admitted that she might use them at some indefinite time in the future to kill herself.9 A New York grand jury was convened but declined to bring an indictment for assisting suicide. The State's Board for Professional Medical Misconduct considered pressing disciplinary charges but declined, reasoning that Dr. Quill had written a prescription for drugs that had a legitimate medical use for his patient (as a sleeping aid for her insomnia) and that he could not have definitively known she would use the medication to kill herself. Ruling, in essence, that the evidence was too equivocal to conclude that Dr. Quill intended to cause the death of his patient, charges were dropped. ° In 1992, a gynecology resident submitted an anonymous article to the Journal of the American Medical Association that sparked a long-running debate in the most prominent American medical journals. Entitled It's Over Debbie, the article described how the author administered a lethal injection to a terminal cancer patient (an act of euthanasia, not assisted suicide) that he had never met before after her demand to "get this over with."" After its publication in the early 1990s, The Hemlock Society's book, Final Exit: The Practicalitiesof Self-Deliverance and Assisted Suicide for the Dying,'2 rocketed to the New York Times' best-seller list. The book provides step-by-step instructions (in easy to read large print) on various methods of considered, durable, and persistent; (c) the patient is experiencing intolerable suffering with no prospect of improvement; (d) other alternatives to alleviate the patient's suffering have been considered and found wanting; (e) any act of euthanasia is performed (only) by a physician; and (f) the physician has consulted an independent colleague. See John Keown, Some Reflections on Euthanasia in the Netherlands, in EUTHANASIA, CLINICAL PRACTICE AND THE LAW 197 (Luke Gormally, ed. 1994) [hereinafter Some Reflections]. 9. See Timothy Quill, A Case of IndividualizedDecision Making, 324 NEW ENG. J. MED. 691-94 (1991). 10. See The New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical