Fallacies of the logical slippery slope in the debate on physician-assisted suicide and euthanasia

Medical Law Review

Volumn 13, Issue 2, 2005, Pages 224-243

  Smith, Stephen W ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 27744459991     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi013     Document Type: Article

References (54)

1. S. Smith, 'Evidence for the Practical Slippery Slope in the Debate on Physician-assisted Suicide and Euthanasia' (2005) 13 Med. L. Rev. 17.
2. J. Keown, Euthanasia, Ethics and Public Policy (Cambridge University Press 2002).
3. See H. Lillehammer 'Voluntary Euthanasia and the Logical Slippery Slope Argument' 61 C.L.J. 545.
4. See also Derek Morgan's review of Roger Magnusson, Angels of Death: Exploring the Euthanasia Underground (2004) 12 Med. L. Rev. 327-8.
5. For a more detailed discussion of slippery slope arguments, see D. Enoch, 'Once You Start Using Slippery Slope Arguments, You're On A Very Slippery Slope' (2001) 211 O.J.L.S. 629
6. E. Volokh, 'The Mechanisms of the Slippery Slope' (2003) 116 Harvard Law Review 1026, 1032.
7. This suggestion was first made by Leo Alexander, a US doctor. He suggested that the 'euthanasia' movement in Nazi Germany led to the further atrocities committed by that regime. There is little reason to accept this proposition. See e.g. J. Rachels, The End of Life (Oxford University Press 1996) at 177-8.
8. Keown, supra, n. 2 at 76-9. In this case, acceptable means acceptable to those who support the legalisation or decriminalisation of VAE or PAS. It does not mean acceptable to Keown.
9. For example, the official stance of the Netherlands is that VAE is the only acceptable form of euthanasia. In fact, much of the pertinent research expressly limits the term euthanasia to VAE. See J. Griffiths, A. Bood and H. Weyers, Euthanasia and Law in the Netherlands (Amsterdam University Press 1998) at 17.
10. Keown makes specific mention of John Harris, Jonathan Glover, Helga Kuhse and Peter Singer as supporting NVAE. Keown, supra, n. 2 at 79.
11. It is important to note that while John Harris does support non-voluntary euthanasia, it is only within the context of a loss of personhood. J. Harris, 'The Philosophical Case Against the Philosophical Case Against Euthanasia' in J. Keown (ed.), Euthanasia Examined (Cambridge University Press 1995) at 36.
12. Harris's arguments rely heavily on the idea of personhood and under his definition, it is possible to be a human being but not a person. Harris, therefore, does not deny the importance of autonomy, but limits it to persons. He explicitly argues that NVAE and IVAE of persons are 'always wrong'. J. Harris, 'Final Thoughts on Final Acts' in J. Keown (ed.), Euthanasia Examined (Cambridge University Press 1995) at 60.
13. Glover and Kuhse and Singer have similar viewpoints about personhood and how it impacts on NVAE and IVAE. See, J. Glover. Causing Death and Saving Lives (Penguin Books 1977)
14. and H. Kuhse and P. Singer, Should the Baby Live: The Problem of Handicapped Infants (Oxford University Press 1985). There may still be real concerns with the arguments expressed by Harris, Glover and Kuhse and Singer. However, they would be different from the ones expressed by Keown.
15. See, e.g. the Northern Territory of Australia Rights of the Terminally Ill Act 1995 (repealed) s. 4 and Oregon Death with Dignity Act (2003), ORS s. 127.805(1).
16. Keown, supra, n. 2 at 79.
17. Ibid at 77.
18. Ibid.
19. Ibid.
20. Ibid at 78.
21. Ibid at 79.
22. Ibid.
23. D. Enoch, supra, n. 4 at 629.
24. R.G. Frey has suggested that there does not need to be a causal relationship as such. He argues that slippery slopes are based upon the idea that if we implement A then it becomes 'empirically very likely' that we will move to B. R.G. Frey, 'The Fear of A Slippery Slope' in G. Dworkin, R.G. Frey and S. Bok (eds) Euthanasia and Physician-Assisted Suicide (Cambridge University Press 1998) at 43-63, 45.
25. Enoch, however, argues that the relationship must be a causal one. Enoch, supra, n. 4 at 631, 637.
26. Volokh, supra, n. 5 at 1026.
27. The second part of Keown's argument would have the acceptance of VAE/PAS in terminally ill cases as A and the acceptance of VAE/PAS in cases of non-terminally ill patients as B.
28. Enoch distinguishes between this type of argument and a slippery slope. However, he calls it an 'argument from precedent'. Enoch, supra, n. 4 at 644-5.
29. This may mean that all logical slippery slope arguments are merely mis-characterised arguments from consistency. However, that issue need not be decided here.
30. Lillehammer, supra, n. 3 at 545-50.
31. Ibid at 548.
32. Ibid.
33. This issue will be discussed in greater detail in Section VII below.
34. See, G. Dworkin 'The Nature of Medicine' in G. Dworkin, R. G. Frey, and S. Bok (eds) Euthanasia and Physician-Assisted Suicide (Cambridge University Press 1998) at 6-16, 10,
35. and M. Pabst Baffin, 'Is a Physician Ever Obligated to Help a Patient Die?' in L.L. Emanuel (ed.), Regulating How We Die: The Ethical Medical and Legal Issues Surrounding Physician-Assisted Suicide (Cambridge University Press, 1998) at 21-47, 26.
36. Keown, supra, n. 2 at 76.
37. D. Callahan, 'When Self-Determination Runs Amok' (1992) 22 Hastings Center Report 52-5, 54.
38. It is important to note that here 'autonomy interest' means the autonomy of the patient. The doctor's autonomy is a vital component of the doctor's judgment as will become clear below.
39. This is not to suggest that people such as Callahan are making this argument. As noted above, he merely states that 'there is no reason they must be linked'. This is a suggestion that it may be a way the claim made by Callahan and others may be interpreted to provide a stronger argument against PAS and VAE.
40. Office of Public Prosecutions v. Chabot (1994) Nederlandse Jurisprudentie 656 [the Chabot case] involved a patient suffering from depression who was euthanised. She insisted that all she wanted to do was die and refused other possible treatments. There was a doctor who did agree to the request so it would not provide much support for this sort of argument. However, it is a case where the patient was not suffering from a terminal illness.
41. See M. Otlowski, Voluntary Euthanasia and the Common Law (Oxford University Press 2000) at 400-409.
42. Thus, it may help support the second prong of Keown's dilemma. In the Sutorius case, a doctor assisted a patient who wanted to commit suicide, but the patient did not suffer from any diagnosable mental or physical disease. Rather, he felt he had an 'pointless and empty' existence. Three experts testified at trial that the patient was suffering intolerably and the court acquitted the doctor. Keown, supra, n. 2 at 109-10.
43. However, the case was appealed and the Court of Appeal in the Netherlands held that his suffering could not be considered unbearable under the due care criteria and convicted him. No sentence was imposed on the doctor due to his compassionate motive. The decision of the Court of Appeal was upheld by the Supreme Court of the Netherlands. See S. Ost, Analytical Study of the Legal, Moral and Ethical Aspects of the Living Phenomenon of Euthanasia: Questions of Law, Morality and Ethics Within Contemporary Society (Edward Mellen Press 2003) at 271-2.
44. For an exploration of this as an empirical argument, see Smith, supra, n. 1.
45. Keown, supra, n. 2 at 124, 149.
46. It is important to note that Keown merely states that the evidence he cites 'indicates the force' of the logical slippery slope argument. He does indicate that the logical slippery slope does not rely on empirical evidence, although he does state that 'a shift in practice from condonation of VAE to the condonation of NVAE would certainly illustrate its cogency'. Ibid at 81.
47. There may in fact be significant reasons to dispute Keown's empirical claims. See Smith, supra, n. 1.
48. Nothing written here should be construed as arguing that there is not an empirical slippery slope argument that can be made. It is simply the assertion that Keown should be using the empirical evidence he has only in the context of an empirical slippery slope and not as purported evidence of a logical slippery slope.
49. Keown, supra, n. 2 at 77.
50. Ibid at 78.
51. See, e.g. the Northern Territory of Australia Rights of the Terminally Ill Act 1995 (repealed).
52. Kass, 'Death With Dignity and the Sanctity of Life' in M. M. Uhlmann (ed.) Last Rights?: Assisted Suicide and Euthanasia Debated (William B. Eerdmans Publishing Company 1998) at 199-222, 217.
53. Suitability in this case means free from depression and making a full and informed choice, which are often criteria necessary for PAS or VAE in the jurisdictions which allow them. See, e.g. Oregon Death with Dignity Act, ORS s. 127.800 to 127.897 (2003).
54. See, e.g. Keown, supra, n. 2 at 75.