Should doctors or others be permitted to euthanize babies born with disabilities or assist the suicides of suffering people who want to die? During the first forty years of the twentieth century, fueled by the eugenics movement, the question was very much on the table. Then the Holocaust, in which euthanasia of the disabled played a central role, demonstrated the acute danger of following such a course.
Unfortunately, people have short memories. About twenty years ago, carried along by the cultural shift in the West that disdains most principled concepts of right and wrong and which views near absolute personal autonomy as the sina qua non of liberty, the euthanasia movement awakened from its hibernation. Since then, euthanasia and assisted suicide have gone¯to borrow one of my favorite Richard John Neuhuas quotations¯from the unthinkable, to the debatable, to the justifiable, on its way to the unexceptional.
In Europe, the Netherlands and Belgium have formally legalized voluntary euthanasia, and the Dutch medical practice of euthanizing disabled babies, which already occurs with little consequence, may soon receive the formal sanction of law. Switzerland openly permits lay groups to facilitate suicides.
Meanwhile, here in the United States, assisted suicide made tremendous strides in the 1990s. Jack Kevorkian spent nearly a decade assisting the suicides of terminally ill, disabled, and depressed people¯to widespread applause. In 1994, Oregon voters made it legal for doctors to write lethal prescriptions for patients diagnosed with a terminal illness. Since then, legislation to legalize assisted suicide has been introduced each year in several states. And the euthanasia agenda has been embraced by some of the foremost members of the medical and bioethics intelligentsia, as well as enjoying strong editorial support in influential newspapers such as the New York Times and Los Angeles Times .
The question thus becomes whether we are merely in mid-passage on our way to a legal system that generally permits doctors to facilitate the suicides of¯or even actively kill¯patients who want to die, or whether the current movement in America reached its zenith with the Oregon victory. Neil M. Gorsuch, a philosopher of law and a federal judge on the U.S. Court of Appeals for the Tenth Circuit, searches for the answer in the thoroughly researched, if somewhat dry, The Future of Assisted Suicide and Euthanasia .
After providing a brief history of euthanasia advocacy, Gorsuch focuses primarily on assisted suicide and the courts, exploring cases that either directly or by analogy bear on the issue. For example, his analysis of two 1997 rulings issued by the Supreme Court of the United States that refused to impose an assisted-suicide Roe v. Wade on the country is sterling and informed. In Washington v. Glucksberg , the Court ruled that Washington did not violate the Fourteenth Amendment’s due-process clause by outlawing assisted suicide. In Vacco v. Quill , the Court ruled similarly that the equal protection clause was not violated by New York when it recognized a right to refuse life-sustaining medical treatment but, at the same time, outlawed assisted suicide.
That would seem to be that as far as the Supreme Court is concerned. But Gorsuch is not so sure. He notes correctly that the lawsuits (which were sponsored by the assisted-suicide activist group now called Compassion and Choices) were facial challenges to the laws prohibiting assisted suicide, meaning that, to be invalided, no application of the prohibitions by the states could pass constitutional muster. This is decidedly distinct from an "as applied" challenge that would require the courts to analyze how the illegality of assisted suicide affected a particular litigant.
Gorsuch believes that the concurring opinions of several justices, particularly those of John Paul Stevens and David Souter, invited an as-applied constitutional challenge against state-assisted suicide prohibitions. Moreover, in Gorsuch’s view Souter all but demanded that the states legalize assisted suicide in some cases. "Justice Souter," he writes, "pointedly commented that he did not want to see ‘legislative foot-dragging’ on the assisted suicide question, and that, if such foot-dragging occurs, ‘[s]ometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims.’"
Gorsuch also digs deeply into the philosophical issues raised in the debate. He points out that the provision in law that a patient be "terminally ill" in order to qualify for assisted suicide has little rational basis in a policy that places such tremendous emphasis on personal autonomy. After all, if "choice" is the issue, and killing is determined to be an acceptable response to the problem of human suffering, what does dying have to do with it? Many people who are not terminally ill suffer more intensely¯and for a far longer period¯than do the terminally ill. This being so, why should they be refused access to "aid in dying"?
Gorsuch provides a distinct service in this section of the book by bringing to the fore less-familiar arguments, noting that requiring a terminal diagnosis as a condition precedent to assisted suicide creates an unacceptable duality with regard to the standard of care that doctors owe their patients. Specifically, he points out the paradox in Oregon, which legally permits a suicidal person to be confined for treatment of suicide ideation against his will but explicitly permits assisted suicide to others: "How can one coherently explain and defend a regulatory regime," he asks, "that affords terminally ill patients less protection against the possibility of a mistaken death due to psychiatric ailment than it affords patients against the possibility of a mistaken five-day confinement from the same cause?"
Moreover, Gorsuch points out, terminally ill patients who request assisted suicide are only owed a duty of "good faith" by their doctors, a much less stringent standard than Oregon requires from doctors treating patients in other contexts. Indeed, he points out a cogent irony: "Oregon courts have expressly considered and rejected" a "good faith" standard of care in medical circumstances that do not involve intentionally hastening death.
The Future of Assisted Suicide concludes with a call for a "consistent end-of-life ethic," which would create a proper balance between "the inviolability of life"¯meaning no assisted suicide¯and the right of patients to refuse unwanted medical interventions, which the author supports. If patients cannot choose for themselves, Gorsuch urges that a high "clear and convincing" evidentiary standard be applied about the best interests of the patient to determine whether treatment be withheld or withdrawn.
Gorsuch is especially successful when exploring the relevant legal cases raised by assisted-suicide and euthanasia advocacy. But he substantially overlooks an important part of the story, and that is politics. When Oregon voters passed Measure 16 (the Oregon Death with Dignity Act) in 1994 by a 51 to 49 percent vote, most informed observers on both sides of this contentious issue (including this writer) expected the assisted-suicide legalization agenda to sweep through much of the country. But it didn’t. And even though the reasons assisted-suicide advocates have not succeeded in moving assisted suicide beyond its Oregon beachhead are relevant to the future of the euthanasia movement, Gorsuch does not substantially explore what didn’t happen and why.
Had he done so, he would have uncovered one of the great political success stories of recent decades. When Measure 16 passed, the most vocal opponents of assisted suicide were pro-lifers in general and the Catholic Church in particular. As the vote in Oregon demonstrated, this political alliance was strong but not strong enough to hold back the tide. This dynamic changed dramatically in the mid-1990s, when disability-rights activists¯who are overwhelmingly liberal in their politics, secular in their beliefs, and pro-choice about abortion¯noticed that Jack Kevorkian was mostly assisting the suicides of depressed disabled people, to the applause of much of society. Convinced that disabled people were the primary targets of the euthanasia agenda, movement activists jumped into the fray like the cavalry riding to the rescue. Their vigorous and often angry advocacy changed the political paradigm profoundly, a blow from which euthanasia advocates have not yet recovered.
Today a diverse, if loose, coalition of politically strange bedfellows¯disability-rights activists, civil-rights organizers, advocates for the poor, medical-professional organizations, the Catholic Church, and the pro-life movement¯stands as an effective bulwark against the spread of assisted-suicide legalization. Illustrating how successful this coalition has been, it defeated voter referenda to legalize assisted suicide in Michigan in 1998 and Maine in 2000. Last year, in a high-profile victory, assisted-suicide legislation in California died unexpectedly in a State Senate subcommittee. Serious efforts to legalize assisted suicide have also been turned back repeatedly in Vermont and (barely) in Hawaii.
But the euthanasia movement is strong, too. Its organizations are well financed, and its leaders and grassroots proponents are determined. Thus the only sure thing about the future of assisted suicide is that there will be political trench warfare over the issue for years to come. A thorough analysis of the "future" of assisted suicide in America will bring the same depth of research and analysis to the political dimension of the issue that Gorsuch so capably brought to his description of the trends in law and philosophy.
Happily, we don’t (yet) live in a country where our most contentious social issues are decided in the ivory tower by courts or regulators imposing the views of academic "experts" on the rest of society. In the end, for better or for worse, the future of assisted suicide and euthanasia will likely be decided via democratic debate in the public square. Indeed, this ongoing political struggle may be the most interesting part of the subject, and the book suffers by omitting it.
Wesley J. Smith is a senior fellow at the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture.