Mar 24, 2012
Hastings constitutional law quarterly
According to conventional wisdom, the U.S. Supreme Court reaffirmed the long-standing distinction between "passive" forms of physician aid-in-dying, like the withdrawal of life-sustaining treatment, and "active" forms of physician aid-in-dying, like assisted suicide and euthanasia in the Glucksberg and Quill cases. In those cases, the Court held that, as a constitutional matter, the distinction between treatment withdrawal and suicide assistance is sufficiently important to justify a right to the former, but not the latter; the states must permit patients to refuse life-sustaining treatment, but they need not permit patients to obtain a prescription for an overdose of barbiturates or other drugs from their physicians.In fact, however, the conventional wisdom is wrong. In its effort to respond to the moral sentiments that drive right-to-die law, the Court preserved the distinction between treatment withdrawal and suicide assistance only by breaking down the distinction between treatment withdrawal and euthanasia. Faced with the argument that assisted suicide is the only way to respond to the severe suffering of some dying patients, members of the Court observed that these patients can turn to the alternative of terminal sedation [now called palliative sedation]. Often, however, terminal sedation is essentially a form of euthanasia.In conceding, even encouraging, the availability of terminal sedation, the Court not only blurred the formal distinction between treatment withdrawal and euthanasia, it also undermined some of the important arguments against legalizing assisted suicide or euthanasia. In particular, by implicitly concluding that terminal sedation can be employed by physicians without significant abuse, the Court undermines the objection to assisted suicide and euthanasia that their legalization would be followed by significant abuse.More importantly, the Court's decision leaves society with a constitutional scheme that is ethically more problematic than if the Court had found a right to physician-assisted suicide. Terminal sedation not only serves fewer of the purposes of right-to-die law, it also poses greater risks for patient welfare than does physician-assisted suicide.