Assisted Suicide and Equal Protection: In Defense of the Distinction between Killing and Letting Die

Issues in Law and Medicine

Volumn 13, Issue 2, 1997, Pages 145-171

  Quinn, Kevin P ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASSISTED SUICIDE; BEHAVIOR; COMPASSION IN DYING V. STATE OF WASHINGTON; CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH; DEATH AND EUTHANASIA; ETHICS; FOURTEENTH AMENDMENT; GOVERNMENT REGULATION; HUMAN; JURISPRUDENCE; LEGAL APPROACH; LEGAL ASPECT; LONG TERM CARE; MEDICAL ETHICS; MORALITY; PASSIVE EUTHANASIA; QUILL V. VACCO; REVIEW; TREATMENT WITHDRAWAL; UNITED STATES; VACCO V. QUILL; WASHINGTON V. GLUCKSBERG;

COMPASSION IN DYING V. STATE OF WASHINGTON; CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH; DEATH AND EUTHANASIA; FOURTEENTH AMENDMENT; LEGAL APPROACH; QUILL V. VACCO; VACCO V. QUILL; WASHINGTON V. GLUCKSBERG;

DOUBLE EFFECT; ETHICS; ETHICS, MEDICAL; EUTHANASIA, PASSIVE; GOVERNMENT REGULATION; HUMANS; INTENTION; LIFE SUPPORT CARE; MORALS; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; UNITED STATES; WITHHOLDING TREATMENT;

EID: 0031227096     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (155)

1. Lucette Lagnado, Welcome to the Era of Euthanasia Chic, WALL ST. J. EUR., May 6, 1996, at 10.
2. Andrew Solomon, A Death of Own's Own, NEW YORKER, May 22, 1995, at 54; Lisa Belkin, There's No Simple Suicide, N.Y. TIMES, Nov. 14, 1993, § 6 (Magazine), at 50; see also Timothy Quill, Death and Dignity: A Case of Individual Decision Making, 324 NEW ENG. J. MED. 691 (1991); Anonymous, It's Over Debbie, 259 JAMA 272 (1988). Similarly, given society's current preoccupation with these personal accounts of assisted death, it is not surprising that interested Internet users may now search the "DeathNET on the Internet" home page for more information on euthanasia and assisted suicide.
3. Andrew Solomon, A Death of Own's Own, NEW YORKER, May 22, 1995, at 54; Lisa Belkin, There's No Simple Suicide, N.Y. TIMES, Nov. 14, 1993, § 6 (Magazine), at 50; see also Timothy Quill, Death and Dignity: A Case of Individual Decision Making, 324 NEW ENG. J. MED. 691 (1991); Anonymous, It's Over Debbie, 259 JAMA 272 (1988). Similarly, given society's current preoccupation with these personal accounts of assisted death, it is not surprising that interested Internet users may now search the "DeathNET on the Internet" home page for more information on euthanasia and assisted suicide.
4. Andrew Solomon, A Death of Own's Own, NEW YORKER, May 22, 1995, at 54; Lisa Belkin, There's No Simple Suicide, N.Y. TIMES, Nov. 14, 1993, § 6 (Magazine), at 50; see also Timothy Quill, Death and Dignity: A Case of Individual Decision Making, 324 NEW ENG. J. MED. 691 (1991); Anonymous, It's Over Debbie, 259 JAMA 272 (1988). Similarly, given society's current preoccupation with these personal accounts of assisted death, it is not surprising that interested Internet users may now search the "DeathNET on the Internet" home page for more information on euthanasia and assisted suicide.
5. Andrew Solomon, A Death of Own's Own, NEW YORKER, May 22, 1995, at 54; Lisa Belkin, There's No Simple Suicide, N.Y. TIMES, Nov. 14, 1993, § 6 (Magazine), at 50; see also Timothy Quill, Death and Dignity: A Case of Individual Decision Making, 324 NEW ENG. J. MED. 691 (1991); Anonymous, It's Over Debbie, 259 JAMA 272 (1988). Similarly, given society's current preoccupation with these personal accounts of assisted death, it is not surprising that interested Internet users may now search the "DeathNET on the Internet" home page for more information on euthanasia and assisted suicide.
6. In 1994 the Michigan Supreme Court, the first highest court in any United States jurisdiction to rule on the issue, held that "the Due Process Clause of the federal constitution does not encompass a fundamental right to commit suicide, with or without assistance, and regardless of whether the would-be assistant is a physician." People v. Kevorkian, 527 N.W.2d 714, 733 (Mich. 1994), cert. denied, 115 S. Ct. 1795 (1995). A year earlier, the Canadian Supreme Court, by a 5-4 majority, had held that "though persons have a 'security interest' under the Canadian Charter of Right and Freedoms against psychological distress occasioned by knowledge of governmental prohibition of assisted suicide, prohibition is justified by the governmental interest in protecting life and preventing abuse even as applied to a terminally ill individual with demonstrated capacity and will to choose death." Daniel Avila Rodriguez v. Attorney General of Canada, 9 ISSUES IN LAW & MED. 389, 389 (1994); see Rodriguez v. Attorney General of Canada, 3 S.C.R. 519 (Can. 1993) (on appeal from British Columbia Court of Appeal, Rodriguez v. British Columbia (Attorney General), B.C.J. No. 641 (Q.L.) (B.C.C.A.) (1993)). Also in 1994, Oregon voters approved a ballot initiative that allows a competent terminally ill adult Oregon resident to obtain a physician's prescription "for medication for the purpose of ending his or her life in a humane and dignified manner." The Oregon Death With Dignity Act, Oregon Ballot Measure 16, § 2.01 (approved Nov. 8, 1994). A federal district court permanently enjoined enforcement of the Act, holding that it violated the Equal Protection Clause of the federal Constitution. The court found that the Act provided insufficient safeguards to prevent an incompetent terminally-ill adult from committing suicide thereby irrationally depriving terminally-ill adults of safeguards against suicide provided to adults who are not terminally ill. Lee v. Oregon, 891 F. Supp. 1429, 1438 (D. Or 1995) (equal protection opinion), 891 F. Supp. 1439 (D. Or. 1995) (declaratory judgment and permanent injunction), 869 F. Supp. 1491 (D. Or. 1994) (opinion and preliminary injunction), vacated, 107 F.3d 1382 (9th Cir. 1997) (vacating and remanding with instructions to dismiss plaintiffs' complaint for lack of Article III jurisdiction).
7. 79 F.3d 790 (9th Cir.) (en banc), reh'g en banc by full court denied, 85 F.3d 1440, reversed sub nom. Washington v. Glucksberg, 117 S. Ct. 2258 (1997) [hereinafter Compassion in Dying II]. 5 79 F.3d at 816.
8. Id.
9. Id. at 837. The Compassion in Dying II court also volunteered that Lee's "reasoning [in enjoining enforcement of Oregon's Death with Dignity Act] is directly contrary to our holding" and "clearly erroneous." 79 F.3d at 838 & n.138. See Lee v. Oregon, No. 94-6467, at 8 n.7 (D. Or. May 9, 1996) (unpublished order denying motion to lift or stay injunction) ("the state defendants agree with plaintiffs that the Ninth Circuit's comments about Lee in Compassion in Dying decision were dicta and 'could be considered gratuitous and inappropriate'"), quoted in Compassion in Dying v. Washington, 85 F.3d 1440, 1442 (9th Cir. 1996) (opinion of O'Scannlain, J., joined by Trott and Kleinfeld, J.J., dissenting from order rejecting request made sua sponte by an active judge for rehearing en banc by the full court).
10. 80 F.3d 716 (2d Cir.), reversed, sub nom. Vacco v. Quill, 117 S. Ct. 2293 (1997) [hereinafter Quill II].
11. Id. at 725 ("We therefore decline the plaintiffs' invitation to identify a new fundamental right, in the absence of a clear direction from the Court whose precedents we are bound to follow.").
12. Id. at 729, 731.
13. Compassion in Dying II, 79 F.3d at 824; see also Compassion in Dying v. Washington, 850 F. Supp. 1454, 1461 (W.D. Wash. 1994) ("From a constitutional perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult.") [hereinafter Compassion in Dying I], aff'd, 79 F.3d 790 (9th Cir. 1996) (en banc). But see Compassion in Dying II, 79 F.3d at 840 (Beezer, J., dissenting): The proper place to draw the line is between withdrawing life-sustaining treatment (which is based on the right to be free from unwanted intrusion) and physician-assisted suicide and euthanasia (which implicate the assistance of others in controlling the timing and manner of death). The former is constitutionally protected (under Cruzan); the latter are not.
14. Id. at 824.
15. Quill II, 80 F.3d at 729. While the Quill II court was willing to call both withdrawal of treatment and assisted death "suicide," the Compassion in Dying II court went out of its way to question whether "deaths resulting from terminally ill patients taking medication prescribed by their doctors should be classified as 'suicide.'" 79 F.3d at 824. In fact, the court seriously doubted that "the state's interest in preventing suicide is even implicated in this case." Id. The two courts, therefore, differ diametrically in their views of the relevant legal category in which to place these actions. According to the author's thesis, in defining "suicide," both courts erred in disregarding the intention of a patient and her physician in hastening the patient's death, whether in the context of treatment withdrawal or assisted death. See infra notes 81-93 and accompanying text. 14 Quill II, 80 F.3d at 743 (Calabresi, J., concurring).
16. Id. at 741.
17. While often treated as equivalent phrases in legal and moral reflections on end of life decision making, the putative distinction between killing and letting die ought not be confused with the distinction between action and inaction or act and omission. Throughout this article, the killing/letting die distinction should be read as using an actor's intent or purpose to distinguish between two acts that result in death. The action/inaction or act/omission distinction rather attempts, as I read it, to distinguish the two acts in terms of causation.
18. Margaret A. Somerville, The Song of Death: The Lyrics of Euthanasia, 9 J. CONTEMP. HEALTH L. & POL'Y 1, 43 (1993).
19. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
20. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
21. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
22. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
23. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
24. See, e.g., Tom L. Beauchamp, The Justification of Physician-Assisted Deaths, 29 IND. L. REV. 1173, 1178-85 (criticizing killing/letting die distinction, accounted for either in terms of intention or causation, and proposing alternative "patient-refusal" hypothesis); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CAL. L. REV. 857, 866-67 (1992) (rejecting specific intent argument); Martha Alys Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 735-43 (1987) (criticizing distinction between specific intent to die and to be free of unwanted medical treatment); Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021, 2030 (1992) (arguing "claims that a patient is not committing suicide because he wants only a natural death, not self-destruction, assume [erroneously] that the discontinuation of life-sustaining treatment does not 'cause' a patient's death"); see also articles in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE & EUTHANASIA pt. I (Tom L. Beauchamp ed., 1996), and in KILLING AND LETTING DIE (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
25. Kadish, supra note 18, at 865-66. In this essay, I endorse Professor Kadish's viewpoint that legal and moral distinctions concerning end of life decisionmaking defended os a matter of principle are inherently more valuable than those made on pragmatic or prudential grounds. Id. at 864-68.
26. 870 F. Supp. 78 (S.D.N.Y. 1994), rev'd in part, 80 F.3d 716 (2d Cir. 1996) [hereinafter Quill I].
27. Id. at 80. The original complaint named three physicians and three patients as plaintiffs. None of the patients survived to the date of the district court's opinion. Id.
28. Id. at 83.
29. Id. at 84. Plaintiffs argued that forgoing life-sustaining medical treatment "is essentially the same thing as committing suicide with the advice of a physician." So to "sanction one course of conduct and criminalize the other involves discrimination which violates the Equal Protection Clause." In light of the state's "obvious legitimate interests in preserving life, and in protecting vulnerable persons," the court found it "hardly unreasonable or irrational for the State to recognize a difference." Id.
30. Quill II, 80 F.3d at 718.
31. Id. at 724.
32. Id. at 725. See id. at 724-25 ("The right to assisted suicide finds no cognizable basis in the Constitution's language or design, even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death.").
33. The Fourteenth Amendment states in pertinent part: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV.
34. See, e.g., 3 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW & 18.2, at 8 (2d ed. 1992) ("Equal protection is the guarantee that similar people will be dealt with in a similar manner and that people of different circumstances will not be treated as if they were the same.") (citing Joseph Tussman and Jacobus tenBroek, The Equal Protects of the Laws, 37 CAL. L. REV. 341 (1949); Plyer v. Doe, 457 U.S. 202, 216 (1982) (the Equal Protection Clause requires that "all persons similarly circumstanced shall be treated alike.") The hornbook definition of equal protection is that those who are similarly situated be similarly treated and many courts, following the Supreme Court's lead, have held that absent a showing of similarity, similar treatment as a constitutional mandate is simply inapplicable. See, e.g., Klinger v. Dept. of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) (equal protection analysis not triggered when dissimilar individuals are treated differently); U.S. v. Woods, 888 F.2d 653, 656 (10th Cir. 1989) (same), cert. denied, 494 U.S. 1006 (1990); Christie v. Coors Transp. Co., 919 P.2d 857 (Colo.App. 1995) (same), cert. granted (July 1, 1996). But see Shepherd v. Dept. of Fish & Game, 897 P.2d 33, 47 (Alaska 1995) (Rabinowitz, J., concurring) (arguing that under federal equal protection analysis, a court may nonetheless consider the reasonableness of the legislative classification even after a finding that two groups are not similarly situated).
35. To determine whether groups are similarly situated, a court may look to the purpose for which the legislation was enacted. ROTUNDA & NOWAK, supra note 28, § 18.2, at 9 (citing Tussman and tenBroek, supra note 28, at 367). Compare Klinger, 31 F.3d at 731 (comparing purposes behind prison programs and finding female prisoners not similarly situated to male prisoners in nearby institution); Woods, 888 F.2d at 656 (comparing purpose behind statutes and finding pre-sentence and post-sentence prisoners not similarly situated) with People v. Gibson, 204 Cal.App.3d 1425, 1436 (1989) (comparing purpose behind involuntary commitment schemes and finding mentally disordered offenders and other involuntarily committed adults similarly situated).
36. To survive equal protection attack, the government classification must have a rational basis for treating "similarly situated" individuals differently. E.g., Pyler v. Doe, 457 U.S. 202, 216 (1982) ("In applying the equal protection clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose."); New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979) ("legislative classifications are valid unless they bear no rational relationship to the State's objectives"). The Supreme Court has developed a three-tiered approach for determining reasonableness of government classifications. As a general rule, rational basis scrutiny governs judicial review of social welfare and economic legislation, intermediate scrutiny governs judicial review of legislative classifications based on gender or illegitimacy, and strict scrutiny governs judicial review of legislation regulating fundamental constitutional rights and "suspect classes." See, e.g., Quill II, 80 F.3d at 726; see also ROTUNDA & NOWAK, supra note 28, § 18.3.
37. Quill II, 80 F.3d at 726-27. Upon a finding that there exists no fundamental right to assisted suicide, the Second Circuit in Quill II went on to find that rational basis was the appropriate standard of review governing the statutes at issue. Id. at 727. Significantly, history has taught us great judicial deference generally accompanies rational basis review, a deference which invariably results in validating state action. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) (upholding statute prohibiting sale of milk in plastic containers; state means to accomplish purpose must only be rational means, not the best means); New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979) (upholding transit regulation prohibiting employment of methadone users, "no matter how unwise [such a regulation] may be"; "legislative classifications are valid unless they bear no rational relationship to the State's objective"); Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) (upholding state restrictions on opticians but exempting sellers of ready-to-wear glasses; legislature is permitted to act "one step at a time"). Nonetheless, the Second Circuit found a violation of the Equal Protection Clause after purporting to apply rational basis review. See Quill II, 80 F.3d at 726-27; cf. Ronald Dworkin, Sex, Death, and the Courts, N.Y. REV. BOOKS, Aug. 8, 1996, at 44, 47 (arguing that the Quill II court "offered a bad [equal protection] argument first, and then, in thin disguise, the same [due process] argument the Ninth Circuit had offered openly."). Conversely, in Compassion in Dying I, the district court first concluded that "a competent, terminally ill adult has a constitutionally guaranteed right under the Fourteenth Amendment to commit physician-assisted suicide," 850 F. Supp. at 1462, and thus subjected Washington's statute prohibiting assisted suicide to strict scrutiny under its equal protection review Id. at 1466. Not surprisingly, the court found an equal protection violation. 850 F. Supp. at 1467. Because the Ninth Circuit agreed with the district court's due process analysis in declaring Washington's statute unconstitutional, it did not consider the lower court's equal protection argument. Compassion in Dying II, 79 F.3d at 838.
38. Quill II, 80 F.3d at 727.
39. Id. at 727-29 (reviewing scope of competent adult's right to forgo life-sustaining medical treatment under New York State constitutional and statutory law, and federal constitutional law).
40. Id. at 727.
41. Id. at 729 (emphasis added).
42. 497 U.S. 261 (1990).
43. Justice Scalia is not alone. The action/inaction distinction has been widely criticized and is now widely rejected in both legal and philosophical literature. E.g., In re Conroy, 486 A.2d 1209, 1233-34 (N.J. 1985) (rejecting "the distinction that some have made between actively hastening death by terminating treatment and passively allowing a person to die of a disease as one of limited use in a legal analysis of such a decision-making situation."); see PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVORIAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING MEDICAL TREATMENT 4, 65-72 (discussing problem of overreliance on act/omission distinction and difficulty of evaluating moral signficance of acts and omissions causing death) [hereinafter PRESIDENT'S COMM'N]; see also various articles in INTENDING DEATH, supra note 18; in KILLING AND LETTING DIE, supra note 18; and in PHYSICIAN-ASSISTED DEATH (James M. Humber et al. eds., 1994).
44. Cruzan, 497 U.S. at 296-97 (Scalia, J., concurring), quoted in part in Quill II, 80 F.3d at 729, 736-37. His critique of the effort to distinguish refusal of treatment from suicide enables Justice Scalia to claim, not surprisingly, that neither practice merits constitutional protection under the Due Process Clause. But this critique is "more powerful than Justice Scalia imagines." Louis Michael Seidman, Confusion at the Border: Cruzan, "The Right to Die," and the Public/Private Distinction, 1991 SUP. CT. REV. 47, 67. As Seidman observes, "[j]ust as there is no difference between an individual who kills herself and an individual who allows herself to die, so too, it would seem, there is no distinction between passive state acquiescence in the suicide of its citizens and active state assistance." Id. at 68. That reading of the Scalia concurrence echoes throughout Quill II's equal protection analysis. Both the court and Judge Calabresi, in a separate concurring opinion, justify expanding constitutional protection under the Equal Protection Clause to include "terminally-ill persons who seek to hasten death but whose treatment does not include life support," Quill II, 80 F.3d at 729, by endorsing Justice Scalia's view that refusing medical treatment is suicide. In effect, Quill II turns Scalia's view on its head.
45. At oral argument in Glucksberg Justice Scalia can be heard repudiating the view that forgoing treatment is suicide. In his own words: Declining medical treatment is something quite different from suicide. In saying you have a right not to have your body invaded, if you choose not to receive it, you're following a common-law tradition that goes all the way back. You're opposing a common-law tradition when you say there is a right to kill yourself. Why can't a society simply determine as a matter of public morality that it is wrong to kill yourself just as it is wrong to kill someone else. What in the Constitution prevents that moral judgment from being made in this society's laws? Washington v. Glucksberg, No. 96-110, 1997 WL 13671, at *48-49 (U.S.Oral.Arg., Jan. 8, 1997).
46. Quill II, 80 F.3d at 729, quoting Quill I, 870 F. Supp. at 84 (quotations omitted).
47. Quill II, 80 F.3d at 729.
48. Id. "Starvation" in the context of withdrawing artificial nutrition is not unambiguous. To suggest that starvation here is akin to starvation in other more familiar contexts may assume too much. On the question of providing or forgoing artificial nutrition and hydration, see BY NO EXTRAORDINARY MEANS: THE CHOICE TO FORGO LIFE-SUSTAINING FOOD AND WATER (Joanne Lynn ed., 1986).
49. Quill II, 80 F.3d at 729. 44 Id.
50. Of course, Justice Scalia's retreat from his expansive notion of suicide (outlined in Cruzan), on which Judge Miner relies, see supra note 39, does not strengthen the Second Circuit's equal protection analysis.
51. 850 F. Supp. at 1461 ("From a constitutional perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult.")
52. 355 A.2d 647 (N.J.), cert. denied, 429 U.S. 922 (1976).
53. Carl H. Coleman & Tracy E. Miller, Stemming the Tide: Assisted Suicide and the Constitution, 23 J. L. MED. & ETHICS 389, 390 (1995). See, e.g., Donaldson v. Van De Kamp, 4 Cal. Rptr. 2d 59, 63 (Cal. Ct. App. 1992) ("Here there are no life-prolonging measures to be discontinued. Instead, a third person will simply kill [the plaintiff] . . . ."); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (Cal. Ct. App. 1986) ("[A] decision to allow nature to take its course is not equivalent to an election to commit suicide with real parties aiding and abetting therein."); Brophy v. New England Sinai Hosp., 497 N.E.2d 626, 635 n.29 (Mass. 1986) ("[T]he law does not permit suicide," which is distinguishable from the decision to withdraw life-sustaining medical treatment from a patient who is in a persistent vegetative state and unlikely to regain cognitive functioning); Kervorfeian, 527 N.W.2d at 728 ("whereas suicide involves an affirmative act to end a life, the refusal or cessation of life-sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention"); McKay v. Bergstedt, 801 P.2d 617, 626-27 (Nev. 1990) ("There is a significant distinction between an individual faced with artificial survival resulting from heroic medical intervention and an individual, . . . capable of sustaining life without artificial support who simply desires to end his or her life. . . . [The former does] not wish to commit suicide."); Conroy, 486 A.2d at 1224 (N.J. 1985) (deciding life-sustaining treatment is distinguishable from suicide because it "merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury."); Quinlan, 355 A.2d at 665 ("We would see . . . a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support . . . in the face of irreversible, painful and certain imminent death."); In re Storar, 420 N.E.2d 64, 71 n.6 (N.Y. 1981) (distinguishing natural death from self-inflicted killing). But see Bouvia, 225 Cal. Rptr. at 307 (Compton, J., concurring) (endorsing right of twenty-eight-year-old patient with severe cerebral palsy "to enlist assistance from others, including the medical profession, in making death as painless and quick as possible."). See generally ALAN MEISEL, THE RIGHT TO DIE (2d ed. 1995); Alan Meisel, The Legal Consensus about Forgoing Life-Sustaining Treatment: Its Status and Its Prospects, 2 KENNEDY INST. ETHICS J. 309, 326 (1992) ("A bedrock assumption on which the consensus is grounded is that there is a fundamental distinction between a patient's death from forgoing life-sustaining treatment and active intervention to end life."). Compare N.Y. TASK FORCE ON LIFE AND THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT 71 (May 1994) [hereinafter N.Y. TASK FORCE]: [T]he fact that the refusal of treatment and suicide may both lead to death does not mean that they implicate identical constitutional concerns. The imposition of life-sustaining medical treatment against a patient's will requires a direct invasion of bodily integrity and, in some cases, the use of physical restraints, both of which are flatly inconsistent with society's basic conception of personal dignity. . . . It is this right against intrusion - not a general right to control the timing and manner of death - that forms the basis of the constitutional right to refuse life-sustaining treatment. Restrictions on suicide, by contrast, entail no such intrusions, but simply prevent individuals from intervening in the natural process of dying.
54. Carl H. Coleman & Tracy E. Miller, Stemming the Tide: Assisted Suicide and the Constitution, 23 J. L. MED. & ETHICS 389, 390 (1995). See, e.g., Donaldson v. Van De Kamp, 4 Cal. Rptr. 2d 59, 63 (Cal. Ct. App. 1992) ("Here there are no life-prolonging measures to be discontinued. Instead, a third person will simply kill [the plaintiff] . . . ."); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (Cal. Ct. App. 1986) ("[A] decision to allow nature to take its course is not equivalent to an election to commit suicide with real parties aiding and abetting therein."); Brophy v. New England Sinai Hosp., 497 N.E.2d 626, 635 n.29 (Mass. 1986) ("[T]he law does not permit suicide," which is distinguishable from the decision to withdraw life-sustaining medical treatment from a patient who is in a persistent vegetative state and unlikely to regain cognitive functioning); Kervorfeian, 527 N.W.2d at 728 ("whereas suicide involves an affirmative act to end a life, the refusal or cessation of life- sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention"); McKay v. Bergstedt, 801 P.2d 617, 626-27 (Nev. 1990) ("There is a significant distinction between an individual faced with artificial survival resulting from heroic medical intervention and an individual, . . . capable of sustaining life without artificial support who simply desires to end his or her life. . . . [The former does] not wish to commit suicide."); Conroy, 486 A.2d at 1224 (N.J. 1985) (deciding life-sustaining treatment is distinguishable from suicide because it "merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury."); Quinlan, 355 A.2d at 665 ("We would see . . . a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support . . . in the face of irreversible, painful and certain imminent death."); In re Storar, 420 N.E.2d 64, 71 n.6 (N.Y. 1981) (distinguishing natural death from self-inflicted killing). But see Bouvia, 225 Cal. Rptr. at 307 (Compton, J., concurring) (endorsing right of twenty-eight-year-old patient with severe cerebral palsy "to enlist assistance from others, including the medical profession, in making death as painless and quick as possible."). See generally ALAN MEISEL, THE RIGHT TO DIE (2d ed. 1995); Alan Meisel, The Legal Consensus about Forgoing Life-Sustaining Treatment: Its Status and Its Prospects, 2 KENNEDY INST. ETHICS J. 309, 326 (1992) ("A bedrock assumption on which the consensus is grounded is that there is a fundamental distinction between a patient's death from forgoing life-sustaining treatment and active intervention to end life."). Compare N.Y. TASK FORCE ON LIFE AND THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT 71 (May 1994) [hereinafter N.Y. TASK FORCE]: [T]he fact that the refusal of treatment and suicide may both lead to death does not mean that they implicate identical constitutional concerns. The imposition of life-sustaining medical treatment against a patient's will requires a direct invasion of bodily integrity and, in some cases, the use of physical restraints, both of which are flatly inconsistent with society's basic conception of personal dignity. . . . It is this right against intrusion - not a general right to control the timing and manner of death - that forms the basis of the constitutional right to refuse life-sustaining treatment. Restrictions on suicide, by contrast, entail no such intrusions, but simply prevent individuals from intervening in the natural process of dying.
55. Carl H. Coleman & Tracy E. Miller, Stemming the Tide: Assisted Suicide and the Constitution, 23 J. L. MED. & ETHICS 389, 390 (1995). See, e.g., Donaldson v. Van De Kamp, 4 Cal. Rptr. 2d 59, 63 (Cal. Ct. App. 1992) ("Here there are no life-prolonging measures to be discontinued. Instead, a third person will simply kill [the plaintiff] . . . ."); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (Cal. Ct. App. 1986) ("[A] decision to allow nature to take its course is not equivalent to an election to commit suicide with real parties aiding and abetting therein."); Brophy v. New England Sinai Hosp., 497 N.E.2d 626, 635 n.29 (Mass. 1986) ("[T]he law does not permit suicide," which is distinguishable from the decision to withdraw life-sustaining medical treatment from a patient who is in a persistent vegetative state and unlikely to regain cognitive functioning); Kervorfeian, 527 N.W.2d at 728 ("whereas suicide involves an affirmative act to end a life, the refusal or cessation of life- sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention"); McKay v. Bergstedt, 801 P.2d 617, 626-27 (Nev. 1990) ("There is a significant distinction between an individual faced with artificial survival resulting from heroic medical intervention and an individual, . . . capable of sustaining life without artificial support who simply desires to end his or her life. . . . [The former does] not wish to commit suicide."); Conroy, 486 A.2d at 1224 (N.J. 1985) (deciding life-sustaining treatment is distinguishable from suicide because it "merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury."); Quinlan, 355 A.2d at 665 ("We would see . . . a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support . . . in the face of irreversible, painful and certain imminent death."); In re Storar, 420 N.E.2d 64, 71 n.6 (N.Y. 1981) (distinguishing natural death from self-inflicted killing). But see Bouvia, 225 Cal. Rptr. at 307 (Compton, J., concurring) (endorsing right of twenty-eight-year-old patient with severe cerebral palsy "to enlist assistance from others, including the medical profession, in making death as painless and quick as possible."). See generally ALAN MEISEL, THE RIGHT TO DIE (2d ed. 1995); Alan Meisel, The Legal Consensus about Forgoing Life-Sustaining Treatment: Its Status and Its Prospects, 2 KENNEDY INST. ETHICS J. 309, 326 (1992) ("A bedrock assumption on which the consensus is grounded is that there is a fundamental distinction between a patient's death from forgoing life-sustaining treatment and active intervention to end life."). Compare N.Y. TASK FORCE ON LIFE AND THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT 71 (May 1994) [hereinafter N.Y. TASK FORCE]: [T]he fact that the refusal of treatment and suicide may both lead to death does not mean that they implicate identical constitutional concerns. The imposition of life-sustaining medical treatment against a patient's will requires a direct invasion of bodily integrity and, in some cases, the use of physical restraints, both of which are flatly inconsistent with society's basic conception of personal dignity. . . . It is this right against intrusion - not a general right to control the timing and manner of death - that forms the basis of the constitutional right to refuse life-sustaining treatment. Restrictions on suicide, by contrast, entail no such intrusions, but simply prevent individuals from intervening in the natural process of dying.
56. See Coleman & Miller, supra note 48, at 390.
57. In re Colyer, 660 P.2d 738, 743 (Wash. 1983). See also, e.g., Conroy, 486 A.2d at 1226 ("[R]ejecting her artificial means of feeding would not constitute attempted suicide, as the decision would probably be based on a wish to be free of medical intervention rather than a specific intent to die, and her death would result, if at all, from her underlying medical condition . . . .").
58. Both Justice Scalia and the Quill II court underscore "the irrelevance of the action-inaction distinction." Cruzan, 497 U.S. at 296, quoted in Quill II, 80 F.3d at 729. Aside from the (potential) suicidal intent of a patient intentionally forgoing life-sustaining medical treatment, Justice Scalia is silent on other possible intentions, such as the intention to relieve pain. Cf. Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1177. Ronald Dworkin has criticized this narrow focus. Ronald Dworkin, The Right to Die, N.Y. REV. BOOKS, Jan. 31, 1991, at 14 (it is "bizarre to classify as suicide someone's decision to reject treatment that would keep him alive but at a cost he and many other people think too great").
59. James Rachels, Active and Passive Euthanasia, 292 NEW ENG. J. MED. 78 (1975), reprinted in KILLING AND LETTING DIE, supra note 18, at 112; see also JAMES RACHELS, THE END OF LIFE: EUTHANASIA AND MORALITY (1986). Rachels' pair of cases is classic: In the first, Smith stands to gain a large inheritance if anything should happen to his six-year-old cousin. One evening while the child is taking his bath, Smith sneaks into the bathroom and drowns the child, and then arranges things so that it will look like an accident. In the second, Jones also stands to gain if anything should happen to his six- year-old cousin. Like Smith, Jones sneaks in planning to drown the child in his bath. However, just as he enters the bathroom Jones sees the child slip and hit his head, and fall face down in the water. Jones is delighted; he stands by, ready to push the child's head back under if it is necessary, but it is not necessary. With only a little thrashing about, the child drowns all by himself, 'accidentally,' as Jones watches and does nothing. Now Smith killed the child, whereas Jones 'merely' let the child die. That is the only difference between them. Did either man behave better, from a moral point of view? If the difference between killing and letting die were in itself a morally important matter, one should say that Jones's behavior was less represensible than Smith's. But does one really want to say that? I think not. Rachels, Active and Passive Euthanasia, supra, at 115-16. As with Quill II H and Justice Scalia in Cruzan, Rachels can be accused of mistakenly equating the act/omission distinction with the killing/letting distinction, and thus erroneously assuming that persuasive attacks on the former refute the importance of the latter. Once the matter is put in this light, we are able to assess his attack on the killing/letting die distinction. Rachels, it might seem, is not one to grapple with the hard moral question: he simply ducks the point of intention. There is no difference between Jones's behavior and Smith's because both men plainly intend for the child to die. Rachels' scenario is the easy case. The more difficult case - where intentions are different - is left to another critic, and thus Rachels cannot claim to have trivialized the moral significance of the killing/letting die distinction in all cases.
60. James Rachels, Active and Passive Euthanasia, 292 NEW ENG. J. MED. 78 (1975), reprinted in KILLING AND LETTING DIE, supra note 18, at 112; see also JAMES RACHELS, THE END OF LIFE: EUTHANASIA AND MORALITY (1986). Rachels' pair of cases is classic: In the first, Smith stands to gain a large inheritance if anything should happen to his six-year-old cousin. One evening while the child is taking his bath, Smith sneaks into the bathroom and drowns the child, and then arranges things so that it will look like an accident. In the second, Jones also stands to gain if anything should happen to his six-year-old cousin. Like Smith, Jones sneaks in planning to drown the child in his bath. However, just as he enters the bathroom Jones sees the child slip and hit his head, and fall face down in the water. Jones is delighted; he stands by, ready to push the child's head back under if it is necessary, but it is not necessary. With only a little thrashing about, the child drowns all by himself, 'accidentally,' as Jones watches and does nothing. Now Smith killed the child, whereas Jones 'merely' let the child die. That is the only difference between them. Did either man behave better, from a moral point of view? If the difference between killing and letting die were in itself a morally important matter, one should say that Jones's behavior was less represensible than Smith's. But does one really want to say that? I think not. Rachels, Active and Passive Euthanasia, supra, at 115-16. As with Quill II H and Justice Scalia in Cruzan, Rachels can be accused of mistakenly equating the act/omission distinction with the killing/letting distinction, and thus erroneously assuming that persuasive attacks on the former refute the importance of the latter. Once the matter is put in this light, we are able to assess his attack on the killing/letting die distinction. Rachels, it might seem, is not one to grapple with the hard moral question: he simply ducks the point of intention. There is no difference between Jones's behavior and Smith's because both men plainly intend for the child to die. Rachels' scenario is the easy case. The more difficult case - where intentions are different - is left to another critic, and thus Rachels cannot claim to have trivialized the moral significance of the killing/letting die distinction in all cases.
61. See, e.g., Kadish, supra note 18, at 864-68; Matthews, supra note 18, at 735-38; Note, supra note 18, at 2028-31; see also Quill II, 80 F.3d at 729 ("The ending of life by [withdrawal of life support] is nothing more nor less than assisted suicide."); Compassion in Dying II, 79 F.3d at 824 ("[W]e see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and his prescribing drugs which will permit a terminally ill patient to end his own life."); Compassion in Dying I, 850 F. Supp. at 1461 ("From a constitutional perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult.").
62. Tom L. Beauchamp, Introduction, in INTENDING DEATH, supra note 18, at 5.
63. Note, supra note 18, at 2029.
64. Whether a physician's act, for instance, in forgoing "nutrition and hydration so that a patient starves to death is both a necessary and a sufficient condition of death by starvation at the time and in the way it occurs," Beauchamp, Introduction, supra note 54, at 5, is disputed among some commentators. Compare, e.g., id. at 5-6 (physician's act is necessary and sufficient) with Daniel Patrick Sulmasy, Killing and Allowing to Die 256-57 (1995) (unpublished Ph.D. dissertation, Georgetown University) (physician's act is usually necessary but never sufficient; absent the patient's underlying disease, forgoing treatment would be not sufficient to cause the patient's death by starvation).
65. Whether a physician's act, for instance, in forgoing "nutrition and hydration so that a patient starves to death is both a necessary and a sufficient condition of death by starvation at the time and in the way it occurs," Beauchamp, Introduction, supra note 54, at 5, is disputed among some commentators. Compare, e.g., id. at 5-6 (physician's act is necessary and sufficient) with Daniel Patrick Sulmasy, Killing and Allowing to Die 256-57 (1995) (unpublished Ph.D. dissertation, Georgetown University) (physician's act is usually necessary but never sufficient; absent the patient's underlying disease, forgoing treatment would be not sufficient to cause the patient's death by starvation).
66. See Note, supra note 18, at 2028-31.
67. Id. at 2030.
68. Kadish, supra note 18, at 869.
69. "Consequentialism is a label affixed to theories holding that actions are right or wrong according to the balance of their good or bad consequences." TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 47 (4th ed. 1994). For a consequentialist, only consequences matter in the moral evaluation of human actions.
70. See Mathews, supra note 18, at 735-38 (discussing cases). See, e.g., Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (Cal. Ct. App. 1986) ("decision to allow nature to take its course is not equivalent to an election to commit suicide with . . . parties aiding and abetting therein"); McKay v. Bergstedt, 801 P.2d 617, 626-27 (Nev. 1990) ("There is a significant difference between an individual faced with artificial survival resulting from heroic medical intervention and an individual, . . . capable of sustaining life without artificial support who simply desires to end his or her life. . . . [The former does] not wish to commit suicide."); In re Conroy, 486 A.2d 1209, 1226 (N.J. 1985) ("[R]ejecting her artificial means of feeding would not constitute attempted suicide, as the decision would probably be based on a wish to be free of medical intervention rather than a specific intent to die, and her death would result, if at all, from her underlying medical condition . . . ."); In re Quinlan, 355 A.2d 647, 655 (N.J.) ("We would see . . . a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support . . . in the fact of irreversible, painful and certain imminent death."), cert. denied, 429 U.S. 922 (1976); In re Storar, 420 N.E.2d 64, 71 n.6 (N.Y. 1981) (distinguishing natural death from self-inflicted killing).
71. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 216 (2d ed. 1986).
72. "Action theory" or the "philosophy of action" is an analytical exploration of the presuppositions about human actions made in writings on morality. See, e.g., ALAN DONAGAN, CHOICE: THE ESSENTIAL ELEMENT IN HUMAN ACTION xiii (1987).
73. See, e.g., DAN BLOCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 172-175 (1993); JOHN HARRIS, VIOLENCE AND RESPONSIBILITY 48-65 (1980).
74. See, e.g., DAN BLOCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 172- 175 (1993); JOHN HARRIS, VIOLENCE AND RESPONSIBILITY 48-65 (1980).
75. MODEL PENAL CODE § 2.02(2) (1985) (defining four separately recognizable states of mind: purposeful, knowing, reckless, and negligent). A defendant acts purposely when she consciously desires her conduct to cause a particular result, see id. § 2.02(2)(a)(i), and knowingly when she is aware that her conduct is practically certain to cause a particular result. See id. § 2.02(2)(b)(ii).
76. RESTATEMENT (SECOND) OF TORTS § 8A (1965) (defining "intent" to mean either that defendant desires the results or knows to a substantial certainty that it will occur).
77. See, e.g., Edmund D. Pellegrino, Intending to Kill and the Principle of Double Effect, in ETHICAL ISSUES IN DEATH AND DYING 240 (Tom L. Beauchamp & Robert M. Veatch eds., 2d. 1996); PHILIP E. DEVINE, THE ETHICS OF HOMICIDE 117 (1978)("It is sometimes permissible to perform an act having as a consequence (e.g.), that someone dies, where it would be forbidden to kill."); see also BENEDICT M. ASHLEY & KEVIN D. O'ROURKE, HEALTHCARE ETHICS: A THEOLOGICAL ANALYSIS 380 (1989) (in making a decision to let someone die, one is applying the DDE).
78. See, e.g., Edmund D. Pellegrino, Intending to Kill and the Principle of Double Effect, in ETHICAL ISSUES IN DEATH AND DYING 240 (Tom L. Beauchamp & Robert M. Veatch eds., 2d. 1996); PHILIP E. DEVINE, THE ETHICS OF HOMICIDE 117 (1978)("It is sometimes permissible to perform an act having as a consequence (e.g.), that someone dies, where it would be forbidden to kill."); see also BENEDICT M. ASHLEY & KEVIN D. O'ROURKE, HEALTHCARE ETHICS: A THEOLOGICAL ANALYSIS 380 (1989) (in making a decision to let someone die, one is applying the DDE).
79. See, e.g., Edmund D. Pellegrino, Intending to Kill and the Principle of Double Effect, in ETHICAL ISSUES IN DEATH AND DYING 240 (Tom L. Beauchamp & Robert M. Veatch eds., 2d. 1996); PHILIP E. DEVINE, THE ETHICS OF HOMICIDE 117 (1978)("It is sometimes permissible to perform an act having as a consequence (e.g.), that someone dies, where it would be forbidden to kill."); see also BENEDICT M. ASHLEY & KEVIN D. O'ROURKE, HEALTHCARE ETHICS: A THEOLOGICAL ANALYSIS 380 (1989) (in making a decision to let someone die, one is applying the DDE).
80. Beauchamp, Introduction, supra note 54, at 11. The DDE defines four conditions which must be met if an act resulting in both good and bad effects is to be morally permissible: (1) the act itself, apart from its effects, is not morally evil; (2) the evil effect is not intended but can be foreseen; (3) the evil effect is not produced by means of the good effect; and (4) a proportionate reason supports the act in spite of the evil consequences. See, e.g., Joseph M. Boyle, Towards Understanding the Principle of Double Effect, 4 ETHICS 527 (1980); Germain Grisez Towards a Consistent Natural-Law Ethics of Killing, 15 AM. J. JURIS. 64 (1970). See generally, Richard A. McCormick, The Principle of Double Effect, in How BRAVE A NEW WORLD? 413 (1981) (analyzing the DDE and reviewing its recent evaluation).
81. Beauchamp, Introduction, supra note 54, at 11. The DDE defines four conditions which must be met if an act resulting in both good and bad effects is to be morally permissible: (1) the act itself, apart from its effects, is not morally evil; (2) the evil effect is not intended but can be foreseen; (3) the evil effect is not produced by means of the good effect; and (4) a proportionate reason supports the act in spite of the evil consequences. See, e.g., Joseph M. Boyle, Towards Understanding the Principle of Double Effect, 4 ETHICS 527 (1980); Germain Grisez Towards a Consistent Natural-Law Ethics of Killing, 15 AM. J. JURIS. 64 (1970). See generally, Richard A. McCormick, The Principle of Double Effect, in How BRAVE A NEW WORLD? 413 (1981) (analyzing the DDE and reviewing its recent evaluation).
82. Beauchamp, Introduction, supra note 54, at 11. The DDE defines four conditions which must be met if an act resulting in both good and bad effects is to be morally permissible: (1) the act itself, apart from its effects, is not morally evil; (2) the evil effect is not intended but can be foreseen; (3) the evil effect is not produced by means of the good effect; and (4) a proportionate reason supports the act in spite of the evil consequences. See, e.g., Joseph M. Boyle, Towards Understanding the Principle of Double Effect, 4 ETHICS 527 (1980); Germain Grisez Towards a Consistent Natural-Law Ethics of Killing, 15 AM. J. JURIS. 64 (1970). See generally, Richard A. McCormick, The Principle of Double Effect, in How BRAVE A NEW WORLD? 413 (1981) (analyzing the DDE and reviewing its recent evaluation).
83. See generally BEAUCHAMP & CHILDRESS, supra note 60, at 206-11 (analyzing and critiquing the rule of double effect).
84. PRESIDENT'S COMM'N, supra note 37, at 77-82.
85. See generally RICHARD M. GULA, WHAT ARE THEY SAYING ABOUT MORAL NORMS? 61-81 (1982) (reviewing shift among some revisionist moral theologians who subscribe to a "proportionalist" methodology).
86. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
87. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
88. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
89. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
90. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On
91. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
92. For a detailed defense of the moral difference between killing and letting die on the basis of intention, see Sulmasy, supra note 56, at 1-11, 283-409. For other intention-based accounts, see Joseph M. Boyle, Jr., On Killing and Letting Die, 51 NEW SCHOLASTICISM 433 (1977); John Finnis, A Philosophical Case Against Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL & LEGAL PERSPECTIVES 23, 25-30 (John Keown ed., 1995); Edmund D. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide and Active Euthanasia, in INTENDING DEATH, supra note 18, at 163; Bonnie Steinbock, The Intentional Termination of Life, 6 ETHICS SCI. & MED. 59 (1979), reprinted in KILLING AND LETTING DIE, supra note 18, at 120; Thomas D. Sullivan, Active and Passive Euthanasia. An Impertinent Distinction? 3 HUM. LIFE REV. 40 (Summer 1977), reprinted in KILLING AND LETTING DIE supra note 18, at 131.
93. Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1179 ("'killing' . . . entail[s] either a wrongful act, a crime, or an intentional action.").
94. Killing, for Sulmasy, "means that an agent intentionally creates a new, nontherapeutic, lethal pathophysiological state in a human being with the specific intention that this human being should die by way of the agent's acts, and this human being does die." Sulmasy, supra note 56, at 5. By contrast, letting die means that an agent intentionally removes or refrains from initiating a therapeudic intervention that would stop or delay the natural history of a pre-existing, lethal disease in a human being either with the specific intention that this human being should die by way of the agent's act or not so intending, and this human being does die. Id. at 6.
95. See id. at 7.
96. Id.; see id. at 256 ("What all [killing] has in common with the immoral acts of [letting die] is that the agent's intention is that a human being should die by way of the agent's act.").
97. Id. at 282.
98. Some reasons why one might hold the belief that acting with the specific intention to kill (in the normative sense) is morally wrong include: moral intuitions, religious beliefs, Kantian practical maxims, or Millian limits on other-regarding practices. More generally, one can argue that much in criminal law simply echoes this moral belief.
99. Sulmasy, supra note 56, at 477. Without question, "it [is] difficult to distinguish suicides from treatment refusals on the basis of intention." Beauchamp, The Justification of Physician-Assisted Deaths supra note 18 at 1178; see also Beauchamp, Introduction, supra note 54, at 10-11; Kadish, supra note 18 at 866-67. The precise nature of a patient's intention in making the choice to end her life is not transparent. Does the patient intend to bring about her own death or only to relieve herself of suffering (while knowing that death is unavoidable)? To come to terms with this bedevilling question about the frontiers of intending death requires us to revisit criminal law's distinction between intention and motive. As criminal law attempts to make clear, an actor's motive is not the same as her intention In brief, a motive is a reason for intending. See LAFAVE & SCOTT, supra note 62, at 227-31. Or, more precisely, "a motive is a psychological state of affairs that helps to explain how an agent comes to have an intention. Properly speaking, the prepositional content of an intention must refer to an event." Sulmasy, supra note 56, at 346. On this definition one can plausibly claim that in the act of assisted suicide the patient intends that she should die by way ot her own act, motivated by a desire to be free from suffering.
100. Sulmasy, supra note 56, at 477. Without question, "it [is] difficult to distinguish suicides from treatment refusals on the basis of intention." Beauchamp, The Justification of Physician-Assisted Deaths supra note 18 at 1178; see also Beauchamp, Introduction, supra note 54, at 10-11; Kadish, supra note 18 at 866-67. The precise nature of a patient's intention in making the choice to end her life is not transparent. Does the patient intend to bring about her own death or only to relieve herself of suffering (while knowing that death is unavoidable)? To come to terms with this bedevilling question about the frontiers of intending death requires us to revisit criminal law's distinction between intention and motive. As criminal law attempts to make clear, an actor's motive is not the same as her intention In brief, a motive is a reason for intending. See LAFAVE & SCOTT, supra note 62, at 227-31. Or, more precisely, "a motive is a psychological state of affairs that helps to explain how an agent comes to have an intention. Properly speaking, the prepositional content of an intention must refer to an event." Sulmasy, supra note 56, at 346. On this definition one can plausibly claim that in the act of assisted suicide the patient intends that she should die by way ot her own act, motivated by a desire to be free from suffering.
101. In a series of journal articles, physician Timothy Quill has argued that acts of assisted suicide are justified "by the physician's compassionate response to an exceptional circumstance of suffering in which no good alternatives remain for the patient." Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1194 (citing Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691, 693- 94 (1991)). See also, e.g., Timothy E. Quill, Incurable Suffering, HASTINGS CTR. REP., Mar.- Apr. 1994, at 45. Quill's eloquence notwithstanding, my only point here is to insist that a physician's compassionate response to his patient's suffering is simply his motive for intending the patient's death. The law must still separate beneficent motives from criminal intent. No article on physician-assisted suicide would be complete without a discussion of Dr. Jack Kevorkian, the retired pathologist and inventor of the "suicide machine." Kevorkian began assisting suicides in June 1990, and to date has assisted in 46 (known) suicides. New Admission Puts Kevorkian Suicide List at 46, N.Y. TIMES, Nov. 5, 1996, at 16. Kevorkian has been tried three times on charges of assisted suicide, and has been acquitted by jury each time. While some maintain that the acquittals are indicative of society's greater ambivalence about the demarcation of the line between killing and letting die, an alternative view would suggest that the juries simply confused Kevorkian's purported motive - compassion for suffering individuals - with his specific intent - that these individuals should die by way of his acts. This would not be the first time juries got it wrong. See, e.g., Yale Kamisar, The "Right to Die": On Drawing (And Erasing) Lines, 35 DUQ. L. REV. 481, 500 n.83 (1996) (finding juror confusion in one Kevorkian prosecution).
102. In a series of journal articles, physician Timothy Quill has argued that acts of assisted suicide are justified "by the physician's compassionate response to an exceptional circumstance of suffering in which no good alternatives remain for the patient." Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1194 (citing Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691, 693-94 (1991)). See also, e.g., Timothy E. Quill, Incurable Suffering, HASTINGS CTR. REP., Mar.- Apr. 1994, at 45. Quill's eloquence notwithstanding, my only point here is to insist that a physician's compassionate response to his patient's suffering is simply his motive for intending the patient's death. The law must still separate beneficent motives from criminal intent. No article on physician-assisted suicide would be complete without a discussion of Dr. Jack Kevorkian, the retired pathologist and inventor of the "suicide machine." Kevorkian began assisting suicides in June 1990, and to date has assisted in 46 (known) suicides. New Admission Puts Kevorkian Suicide List at 46, N.Y. TIMES, Nov. 5, 1996, at 16. Kevorkian has been tried three times on charges of assisted suicide, and has been acquitted by jury each time. While some maintain that the acquittals are indicative of society's greater ambivalence about the demarcation of the line between killing and letting die, an alternative view would suggest that the juries simply confused Kevorkian's purported motive - compassion for suffering individuals - with his specific intent - that these individuals should die by way of his acts. This would not be the first time juries got it wrong. See, e.g., Yale Kamisar, The "Right to Die": On Drawing (And Erasing) Lines, 35 DUQ. L. REV. 481, 500 n.83 (1996) (finding juror confusion in one Kevorkian prosecution).
103. In a series of journal articles, physician Timothy Quill has argued that acts of assisted suicide are justified "by the physician's compassionate response to an exceptional circumstance of suffering in which no good alternatives remain for the patient." Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1194 (citing Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691, 693- 94 (1991)). See also, e.g., Timothy E. Quill, Incurable Suffering, HASTINGS CTR. REP., Mar.-Apr. 1994, at 45. Quill's eloquence notwithstanding, my only point here is to insist that a physician's compassionate response to his patient's suffering is simply his motive for intending the patient's death. The law must still separate beneficent motives from criminal intent. No article on physician-assisted suicide would be complete without a discussion of Dr. Jack Kevorkian, the retired pathologist and inventor of the "suicide machine." Kevorkian began assisting suicides in June 1990, and to date has assisted in 46 (known) suicides. New Admission Puts Kevorkian Suicide List at 46, N.Y. TIMES, Nov. 5, 1996, at 16. Kevorkian has been tried three times on charges of assisted suicide, and has been acquitted by jury each time. While some maintain that the acquittals are indicative of society's greater ambivalence about the demarcation of the line between killing and letting die, an alternative view would suggest that the juries simply confused Kevorkian's purported motive - compassion for suffering individuals - with his specific intent - that these individuals should die by way of his acts. This would not be the first time juries got it wrong. See, e.g., Yale Kamisar, The "Right to Die": On Drawing (And Erasing) Lines, 35 DUQ. L. REV. 481, 500 n.83 (1996) (finding juror confusion in one Kevorkian prosecution).
104. In a series of journal articles, physician Timothy Quill has argued that acts of assisted suicide are justified "by the physician's compassionate response to an exceptional circumstance of suffering in which no good alternatives remain for the patient." Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1194 (citing Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691, 693- 94 (1991)). See also, e.g., Timothy E. Quill, Incurable Suffering, HASTINGS CTR. REP., Mar.- Apr. 1994, at 45. Quill's eloquence notwithstanding, my only point here is to insist that a physician's compassionate response to his patient's suffering is simply his motive for intending the patient's death. The law must still separate beneficent motives from criminal intent. No article on physician-assisted suicide would be complete without a discussion of Dr. Jack Kevorkian, the retired pathologist and inventor of the "suicide machine." Kevorkian began assisting suicides in June 1990, and to date has assisted in 46 (known) suicides. New Admission Puts Kevorkian Suicide List at 46, N.Y. TIMES, Nov. 5, 1996, at 16. Kevorkian has been tried three times on charges of assisted suicide, and has been acquitted by jury each time. While some maintain that the acquittals are indicative of society's greater ambivalence about the demarcation of the line between killing and letting die, an alternative view would suggest that the juries simply confused Kevorkian's purported motive - compassion for suffering individuals - with his specific intent - that these individuals should die by way of his acts. This would not be the first time juries got it wrong. See, e.g., Yale Kamisar, The "Right to Die": On Drawing (And Erasing) Lines, 35 DUQ. L. REV. 481, 500 n.83 (1996) (finding juror confusion in one Kevorkian prosecution).
105. In a series of journal articles, physician Timothy Quill has argued that acts of assisted suicide are justified "by the physician's compassionate response to an exceptional circumstance of suffering in which no good alternatives remain for the patient." Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1194 (citing Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691, 693- 94 (1991)). See also, e.g., Timothy E. Quill, Incurable Suffering, HASTINGS CTR. REP., Mar.- Apr. 1994, at 45. Quill's eloquence notwithstanding, my only point here is to insist that a physician's compassionate response to his patient's suffering is simply his motive for intending the patient's death. The law must still separate beneficent motives from criminal intent. No article on physician-assisted suicide would be complete without a discussion of Dr. Jack Kevorkian, the retired pathologist and inventor of the "suicide machine." Kevorkian began assisting suicides in June 1990, and to date has assisted in 46 (known) suicides. New Admission Puts Kevorkian Suicide List at 46, N.Y. TIMES, Nov. 5, 1996, at 16. Kevorkian has been tried three times on charges of assisted suicide, and has been acquitted by jury each time. While some maintain that the acquittals are indicative of society's greater ambivalence about the demarcation of the line between killing and letting die, an alternative view would suggest that the juries simply confused Kevorkian's purported motive - compassion for suffering individuals - with his specific intent - that these individuals should die by way of his acts. This would not be the first time juries got it wrong. See, e.g., Yale Kamisar, The "Right to Die": On Drawing (And Erasing) Lines, 35 DUQ. L. REV. 481, 500 n.83 (1996) (finding juror confusion in one Kevorkian prosecution).
106. I mean "unwanted" in the sense that the burdens of a particular medical intervention outweigh its benefits from the patient's perspective. See, e.g., HASTINGS' CENTER, GUIDELINES ON THE TERMINATION OF LIFE-SUSTAINING TREATMENT AND THE CARE OF THE DYING 19 (1987).
107. See supra note 65 (distinguishing purpose from knowledge under the Model Penal Code). The distinction between purpose and knowledge in the context of considering choices to end one's life is indebted to Kadish, supra note 18, at 865-66.
108. Kadish, supra note 18, at 867.
109. Id.
110. See Barber v. Superior Court, 195 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983) (cited with approval in In re Conroy, 486 A.2d 1209, 1234-35 (N.J. 1985)); see also Kevin W. Wildes, Ordinary and Extraordinary Means and the Quality of Life, 57 THEOLOGICAL STUD. 500, 512 (1996) (arguing that "the distinction between ordinary and extraordinary means involves patient-centered judgments about the quality of life, which must take into account the usefulness of the treatment, one's understanding about death and dying, and the repugnance one may have toward one's life after subjection to a particular medical treatment").
111. See, e.g., Dax S. Cowart & Robert B. White, Let Me Die, Videotapped Interview Between Donald Cowart and Robert B. White, M.D. (May 8, 1974) (twenty-seven-year-old burn victim recounting how doctors refused his repeated requests to forgo medical treatment requests made because victim judged his future life with significant disabilities to be unacceptably burdensome); see also various articles in DAX'S CASE: ESSAYS IN MEDICAL ETHICS AND HUMAN MEANING (Lonnie D. Kliever ed., 1989).
112. See, e.g., Dax S. Cowart & Robert B. White, Let Me Die, Videotapped Interview Between Donald Cowart and Robert B. White, M.D. (May 8, 1974) (twenty-seven-year-old burn victim recounting how doctors refused his repeated requests to forgo medical treatment requests made because victim judged his future life with significant disabilities to be unacceptably burdensome); see also various articles in DAX'S CASE: ESSAYS IN MEDICAL ETHICS AND HUMAN MEANING (Lonnie D. Kliever ed., 1989).
113. Beauchamp, The Justification of Physician-Assisted Deaths, supra note 18, at 1192.
114. Quill II, 80 F.3d at 729.
115. See supra note 28 (absent a showing of similarity, similar treatment as a constitutional mandate is inapplicable).
116. Likewise, differences in intentionality support different legal treatment in principle under the due process clause. A liberty interest in forgoing life-sustaining medical treatment (constitutionally protected under Cruzan) need not extend to any interest in assisted suicide.
117. See Cruzan, 497 U.S. at 279 ("But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.") (emphasis added).
118. Quill II, 80 F.3d at 732 (Calabresi, J., concurring).
119. Id.
120. Id. at 739-40.
121. Id. at 735-36.
122. Id. at 738.
123. Id.
124. Id. at 741. In other words, Judge Calabresi invites the state to articulate a purpose for its prohibition on assisted suicide, thus providing an opportunity for the court to find that the two groups of terminally ill patients at issue here are not similarly situated. See supra note 29 (discussing how courts determine whether groups are similarly situated).
125. Id.
126. Id.
127. Id. at 743.
128. The British Columbia Court of Appeals, in Rodriguez v. Attorney General of Canada, accepted a similar argument. See British Columbia Court of Appeal, Rodriguez v. British Columbia (Attorney General), B.C.J. No. 641 (Q.L.) (B.C.C.A.) (1993) (distinguishing, based on intention, between palliative care resulting in death and assisted suicide, and between forgoing medical treatment and active euthanasia); see also Beauchamp, Introduction, supra note 54, at 11 (discussing case).
129. Quill II, 80 F.3d at 742.
130. Id.
131. See, e.g., James Rachels, More Impertinent Distinctions and a Defense of Active Euthanasia, in BIOMEDICAL ETHICS 355 (Thomas A. Mappes & Jane S. Zembaty eds., 1981), reprinted in KILLING AND LETTING DIE, supra note 18, at 139, 140-43.
132. See, e.g., James Rachels, More Impertinent Distinctions and a Defense of Active Euthanasia, in BIOMEDICAL ETHICS 355 (Thomas A. Mappes & Jane S. Zembaty eds., 1981), reprinted in KILLING AND LETTING DIE, supra note 18, at 139, 140-43.
133. Somerville, supra note 17, at 43.
134. After this essay was accepted for publication and the editing process begun, the Supreme Court ruled that states may continue to ban the practice of physician-assisted suicide. That development warranted this brief afterword.
135. Washington v. Glucksberg, 117 S. Ct. 2258 (1997); Vacco v. Quill, 117 S. Ct. 2293 (1997).
136. See Glucksberg, 117 S. Ct. at 2260, 2274.
137. See Vacco, 117 S. Ct. at 2295, 2302.
138. Gluckesberg, 117 S. Ct. at 2271.
139. Id.
140. Vacco, 117 S. Ct. at 2298.
141. Id.
142. Id. at 2302.
143. Id. at 2298.
144. Id. (emphasis added).
145. Id. at 2309 (Stevens, J., concurring in judgments).
146. For discussion on this debate about causation, see supra notes 52-59 and accompanying text.
147. Vacco, 117 S. Ct. at 2299.
148. Id. (quoting Assisted Suicide in the United States, Hearing before the Subcommittee on the Judiciary, 104th Cong., 2d Sess., 367 (1996) (testimony of Dr. Leon R. Cass)).
149. Id. (citations omitted) (emphasis added).
150. Id. (quoting Assisted Suicide in the United States, supra note 123, at 368) (emphasis added.)
151. See id. at 2310 (Stevens, J., concurring in the judgments) ("Unlike the Court, however, [ ] I am not persuaded that in all cases there will be in fact a significant difference between the intent of the physicians, the patients or the families in the two situations [permitting death to ensue from an underlying fatal disease and causing it to occur by the administration of medication]. ).
152. Id. at 2302.
153. Id. at 2302 n. 12. As Chief Justice Rehnquist further comments: "certainty is not required, even were it possible." Id. at 2302.
154. Two Days That Shaped the Law, N.Y. TIMES, June 28, 1997 at A22 (editorial).
155. See, e.g., Glucksberg, 117 S. Ct. at 2274. ("Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."); id. at 2293 (Souter, J., concurring in judgment) ("The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents' claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time."); id. at 2310 (Stevens, J., concurring in judgments) ("There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts."); id. at 2312 (Breyer, J., concurring in judgments) ("Were the legal circumstances different . . . the Court might have to revisit its conclusions in these cases.").