Cover

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Title Page, Copyright, Dedication

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Contents

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pp. vii-ix

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Acknowledgments

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p. xi

THERE ARE many people to whom I am indebted. John Finnis provided thoughtful comments on, and kind support through, draft after draft. John Keown, Dan Callahan, and Timothy Endicott offered valuable input in many areas and support in seeing this project through to completion. Richard Posner, Richard Epstein, Daniel Klerman, Christian Mammen, and Todd Zubler also took the time to review and offer insightful suggestions on portions of what eventually came to form...

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1. Introduction

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pp. 1-7

WHETHER to permit assistance in suicide and euthanasia is among the most contentious legal and public policy questions in America today. The issue erupted into American public consciousness on June 4, 1990,with the news that Dr. Jack Kevorkian—a slightly built, greying, retired Michigan pathologist—had helped Janet Adkins, a fifty-four-year-old Alzheimer’s patient, kill herself.1 Dr. Kevorkian later revealed that he had not taken the medical history of Ms.Atkins, conducted a physical or mental examination, or consulted Ms. Adkins’s primary...

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2. The Glucksberg and Quill Controversies: The Judiciary's (Non)Resolution of the Assisted Suicide Debate

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pp. 8-18

IN 1994 a group of Washington State physicians and patients, along with an assisted suicide advocacy organization, filed suit in federal district court seeking a declaratory judgment that the state statute forbidding the assistance of another person in committing suicide1 was unconstitutional under substantive due process doctrine. The case was assigned to District Judge Barbara Rothstein, who became the first...

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3. The Debate over History

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pp. 19-47

THE RELEVANCE of history to the constitutional debate over assisted suicide and euthanasia is the subject of much dispute. Some (like former Chief Justice Rehnquist) see an analysis of historical legal rules and rights as critical to any substantive due process analysis. Others (such as Justice Souter) think it bears little or no relevance. Others still have questioned the practice of relying upon the preferences of past majorities to interpret the Fourteenth Amendment, which was added...

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4. Arguments from Fairness and Equal Protection: If a Right to Refuse, Then a Right to Assisted Suicide?

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pp. 48-75

OVER the last thirty years, virtually every American jurisdiction has come to recognize a right to refuse medical treatment grounded in common law principles that bar nonconsensual touchings and require informed consent before the administration of medical treatment.1 Debate persists over many aspects of this new right, however, including, not insignificantly,whether and how to extend the right to incompetent persons. Increasingly, “living wills” and “advance directives” are...

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5. Casey and Cruzan: Do They Intimate a Right to Assisted Suicide and Euthanasia?

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pp. 76-85

IF HISTORY and principles of fairness do not necessarily command a right to receive assistance in suicide or a right to euthanasia, some would invite us to look to principles of moral autonomy and the legal doctrine that has grown up around those principles. Judges Rothstein and Reinhardt found persuasive the argument that all persons have an inherent (substantive due process) right to choose their...

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6. Autonomy Theory's Implications for the Debate over Assisted Suicide and Euthanasia

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pp. 86-101

BECAUSE THE question whether the Constitution protects an interest in self-definition and autonomy constrained only by the limits of “reasoned judgment” remains (despite the arguments of some dissenters) very much in play,we must necessarily ask the next question:What exactly would respect for such an autonomy interest mean for the debate over assisted suicide and euthanasia? If broad...

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7. Legalization and the Law of Unintended Consequences: Utilitarian Arguments for Legalization

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pp. 102-142

UNLIKE advocates of neutralism and the harm principle, utilitarians cannot be said to be bound by adherence to philosophical principle that might lead to an assisted suicide right open to all rational adults regardless of motive or physical condition. Instead, approaching the question of assisted suicide (like any other) by asking the practical question what legal rule would provide the greatest social benefits with the fewest attendant costs, utilitarianism holds out the...

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8. Two Test Cases: Posner and Epstein

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pp. 143-156

IN RECENT years, Richard Posner and Richard Epstein have published provocative arguments for the legalization of assisted suicide. Posner introduced Aging and Old Age in 1995, and Epstein followed in 1999 with Mortal Peril. Posner argued for legalization primarily on practical, or utilitarian, grounds. The benefits associated with legalization, he claimed, outweigh any attendant costs. Legalization would...

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9. An Argument against Legalization

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pp. 157-180

SO FAR,we have considered arguments for assisted suicide and euthanasia based on history, fairness, neutrality, the harm principle, and utilitarianism. I have suggested that, if the harm and neutrality principles support any assisted suicide right, they tend toward (if not require) a right open to all competent adults; that arguments from history and fairness seem not to compel such a right at all; and that...

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10. Toward a Consistent End-of-Life Ethic: The "Right to Refuse" Care for Competent and Incompetent Patients

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pp. 181-218

IHAVE SUGGESTED that life is a fundamental good, that it should not be intentionally destroyed, and I have suggested, too, how that principle might apply to the assisted suicide and euthanasia debate. Before closing, however, one might reasonably ask what this inviolability-of-life principle might say about still other, far more common, yet often very difficult, end-of-life scenarios. Along the way, for example, we have discussed the decision to withdraw or reject life-sustaining care...

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Epilogue

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pp. 219-226

AS THIS book wends its way through the editorial process, the contours of the assisted suicide debate continue to evolve.While it is impossible to elaborate on every significant new fact or issue in such an active international debate, some of the more salient recent developments are worth noting before the opportunity slips away. Perhaps foremost among these, at least in the short term, is the Supreme Court’s recent decision in Gonzales v. Oregon.1 By a 6-3 vote, the Court affirmed two lower court...

Appendix A: Certain American Statutory Laws Banning or Disapprovingof Assisted Suicide

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pp. 227-228

Appendix B: Statistical Calculations

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pp. 229-230

Notes

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pp. 231-284

Bibliography

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pp. 285-302

Index

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pp. 303-312

Series Page

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pp. 313-313