The empirical slippery slope from voluntary to non-voluntary euthanasia

Journal of Law, Medicine and Ethics

Volumn 35, Issue 1, 2007, Pages 197-210

  Lewis, Penney ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CONFIDENCE INTERVAL; ETHICS; HUMAN; LEGAL ASPECT; PASSIVE EUTHANASIA; REVIEW; STATISTICS; VOLUNTARY EUTHANASIA;

CONFIDENCE INTERVALS; EUTHANASIA, ACTIVE, VOLUNTARY; EUTHANASIA, PASSIVE; HUMANS; WEDGE ARGUMENT;

EID: 33847340625     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2007.00124.x     Document Type: Review

References (264)

1. On slippery slopes generally, see F. Shauer, "Slippery Slopes," Harvard Law Review 99 (1985): 361-82;
2. W. van der Burg, "The Slippery-Slope Argument," Ethics 102 (1991): 42-65, at 42-3 (noting that the slippery slope argument has been invoked against the legalization of abortion, euthanasia, in vitro fertilization, and DNA research);
3. B. Freedman, "The Slippery-Slope Argument Reconstructed: Response to van der Burg," Journal of Clinical Ethics 3 (1992): 293-7.
4. See also, B. Williams, "Which Slopes Are Slippery?" in M. Lockwood, ed., Moral Dilemmas in Modern Medicine (Oxford: Oxford University Press, 1985): 126-37, at 126-7 (pointing out that slippery slope arguments are often applied to matters of medical practice);
5. D. Walton, Slippery Slope Arguments (Oxford: Clarendon Press, 1992);
6. D. J. Mayo, "The Role of Slippery Slope Arguments in Public Policy Debates," Philosophical Exchange 21-22 (1990-91): 81-97;
7. J. P. Whitman, "The Many Guises of the Slippery Slope Argument," Social Theory & Practice 20 (1994): 85-97;
8. E. Lode, "Slippery Slope Arguments and Legal Reasoning," California Law Review 87 (1999): 1469-1544.
9. W. Wright, "Historical Analogies, Slippery Slopes, and the Question of Euthanasia," Journal of Law, Medicine & Ethics 28 (2000): 176-86, at 177.
10. See, e.g., J. Keown, "Euthanasia in the Netherlands: Sliding Down the Slippery Slope?" in J. Keown, ed., Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge Univiversity Press, 1995): 261-96, at 262, 287-8.
11. See C. Li, "The Fallacy of the Slippery Slope Argument on Abortion," Journal of Applied Philosophy 9 (1992): 233-7;
12. J. D. Arras, "The Right to Die on the Slippery Slope," Social Theory & Practice 8 (1982): 285-328, at 288;
13. L. E. Weinrib, "The Body and the Body Politic: Assisted Suicide Under the Canadian Charter of Rights and Freedoms," McGill Law Journal 39 (1994): 619-43, at 637.
14. See, e.g., Krischer v. McIver, 697 So. 2d 97, 109 (Fla. S.C. 1997) (Harding J., concurring);
15. Y. Kamisar, "Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia," in Keown, Euthanasia Examined, supra note 3, 225-60, at 245;
16. H. Hendin, "Scared to Death of Dying," New York Times, December 16, 1994, at A39. ("The Netherlands has moved from assisted suicide to euthanasia, from euthanasia for the terminally ill to euthanasia for the chronically ill, from euthanasia for physical illness to euthanasia for psychological distress and from voluntary euthanasia to involuntary euthanasia.")
17. See, e.g., Y. Kamisar, "Some Non-Religious Views Against Proposed 'Mercy Killing' Legislation," Minnesota Law Review 42 (1958): 969-1042, at 1030-41 (discussing the "parade of horrors" that could occur following the legalization of euthanasia);
18. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper No. 28 (1982): at 46;
19. G. Gelfand, "Euthanasia and the Terminally Ill," Nebraska Law Review 63 (1984): 741-78, at 764-5;
20. J. Gay-Williams, "The Wrongfulness of Euthanasia," in R. Munson, ed., Intervention and Reflection: Basic Issues in Medical Ethics (Belmont, CA: Wadsworth, 1983): 156-63;
21. J. V. Sullivan, "The Immorality of Euthanasia," in M. Kohl, ed., Beneficent Euthanasia (Buffalo, NY: Prometheus, 1975): 12-33, at 23-6;
22. G. Grisez, "Suicide and Euthanasia," in D. J. Horan and D. Mall, eds., Death, Dying and Euthanasia (Washington: University Publications of America, 1980): 742-817, at 811 (comparing the possible future legal stance on euthanasia in the United States and other western societies to the experience of Nazi Germany);
23. A. M. Capron, "Euthanasia in the Netherlands: American Observations," Hastings Center Report 22, no. 2 (1992): 30-3, at 32-3 (drawing a comparison with the euthanasia programme in Nazi Germany);
24. K. Amarasekara and M. Bagaric, "The Legalisation of Euthanasia in the Netherlands: Lessons to be Learnt," Monash University Law Review 27 (2001): 179-96, at 181;
25. D. Callahan, "When Self-Determination Runs Amok," Hastings Center Report 22, no. 2 (1992): 52-54.
26. J. Rachels, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press, 1986): at 172-3.
27. See also, van der Burg, supra note 1, at 43;
28. Williams, supra note 1, at 126;
29. Arras, supra note 4, at 288-9;
30. J. Glover, Causing Death and Saving Lives (London: Penguin Books, 1977): at 165-8;
31. D. Lamb, Down the Slippery Slope: Arguing in Applied Ethics (London: Croom Helm, 1988): at 61;
32. Lode, supra note 1, at 1477, 1483;
33. Keown, supra note 3, at 261-2.
34. On logical slippery slope arguments in the assisted dying context, see P. Lewis, Assisted Dying and Legal Change (Oxford: Oxford University Press, 2007): at 164-9.
35. Other examples of slippery slope arguments made in this context include the fears that legalization will legitimize the horrors of the Nazi genocide; erode the rights of the disabled; or promote the idea that only some lives are inherently worthwhile. For an example of the latter argument, see R. Sherlock, "Liberalism, Public Policy and the Life Not Worth Living: Abraham Lincoln on Beneficent Euthanasia," American Journal of Jurisprudence 26 (1981): 47-65, at 49-50 (arguing that the decision to allow euthanasia requires an answer to the question of when a life is not worth living; even to discuss such an answer poses a threat to the fundamental principle of equality before the law and the principles derived there from).
36. See generally, C. Schneider, "Rights Discourse and Neonatal Euthanasia," California Law Review 76 (1988): 151-76, at 167-71;
37. D. A. J. Richards, "Constitutional Privacy, The Right to Die and the Meaning of Life: A Moral Analysis," William & Mary Law Review 22 (1981): 327-419, at 398.
38. For examples of this argument, see supra note 5.
39. See H. Weyers, "Euthanasia: The Process of Legal Change in the Netherlands," in A. Klijn et al., eds., Regulating Physician-Negotiated Death (Amsterdam: Elsevier, 2001): 11-27.
40. According to the 1990, 1995 and 2001 Dutch studies of "medical behaviour which shortens life", assisted suicide is "relatively uncommon" in the Netherlands, occurring in 0.2% (95% confidence interval [CI] 0.1%-0.3%) of all deaths in 1990, 1995 and 2001 (based on death certificate studies [or 0.3% (1990, 95% CI 0.2%-0.4%), 0.4% (1995, 95% CI 0.2%-0.5%) and 0.1% (2001, 95% CI 0-0.1%) of all deaths (based on interviews)]), while voluntary euthanasia took place in 1.7% (1990, 95% CI 1.4%-2.1%), 2.4% (1995, 95% CI 2.1%-2.6%) and 2.6% (2001, 95% CI 2.3%-2.8%) of all deaths (based on death certificate studies [or 1.9% (1990, 95% CI 1.6%-2.2%), 2.3% (1995, 95% CI 1.9%-2.7%) and 2.2% (2001, 95% CI 1.8%-2.5%) based on interviews]). B. D. Onwuteaka-Philipsen et al., "Euthanasia and other End-of-Life Decisions in the Netherlands in 1990, 1995, and 2001," Lancet 362 (2003): 395-9,
41. at Table 1, drawing on P. J. van der Maas et al., "Euthanasia, Physician-Assisted Suicide, and other Medical Practices Involving the End of Life in the Netherlands, 1990-1995," New England Journal of Medicine 335 (1996): 1699-1705;
42. P. J. van der Maas et al., "Euthanasia and other Medical Decisions Concerning the End of Life," Lancet 338 (1991): 669-74.
43. See also, M. E. Newman, "Active Euthanasia in the Netherlands," in A. S. Berger and J. Berger, eds., To Die or Not To Die? Cross-Disciplinary, Cultural and Legal Perspectives on the Right to Choose Death (New York: Praeger, 1990): 117-28.
44. See Lewis, supra note 8, at 157-8.
45. See Lewis, id. at 150-3. Belgium has explicitly legalized only euthanasia, although assisted suicide may be folded into the regulatory regime.
46. See id., at 153-7.
47. See Lode, supra note 1.
48. See Shauer, supra note 1, at 382-3.
49. Rodriguez v. British Columbia (Attorney-General) [1993] 3 S.C.R. 519, 603 (S.C.C.). The case is discussed in Lewis, supra note 8, at 14, 119-22.
50. Washington v. Glucksberg, 521 U.S. 702 (1997);
51. Vacco v. Quill, 521 U.S. 793 (1997), both discussed in Lewis, supra note 8, at 15.
52. Washington v. Glucksberg, 521 U.S. 702, 734-5 (1997), citing C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (New York: The Free Press, 1991): at 104-13;
53. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure (New York: W.W. Norton and Co., 1997): at 75-84;
54. Keown, supra note 3, at 289;
55. a report of Chairman Charles T. Canady to the House Judiciary Subcommittee on the Constitution, of the Committee on the Judiciary, House of Representatives, Physician-Assisted Suicide and Euthanasia in the Netherlands, 104th Congress, 2nd Session, September 1996;
56. Executive Summary published as "Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report to the House Judiciary Subcommittee on the Constitution," Issues in Law & Medicine 14 (1998): 301-24 (heavily reliant on the work of Hendin and Gomez).
57. See J. Griffiths, A. Bood, and H. Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam University Press, 1998): at 23, note 15. The authors' comments on Herbert Hendin (one of the most vociferous critics of the Dutch approach) are that his research methods are inadequate, and that his analysis is "so filled with mistakes of law, of fact, and of interpretation, mostly tendentious, that it is hard to be charitable and regard them as merely negligent."
58. See also, Griffiths, Bood and Weyers, id., at 217, note 54 discussing one of the "irresponsible claim[s]" made by Hendin;
59. H. Weyers, Book Review, "Herbert Hendin: De Dood als Verleider. Weinig Overtuigende Verwoording van Een Bekend Standpunt Tegen Liberalisering van Euthanasie," ("Herbert Hendin: Death as Temptress. An Unconvincing Presentation of a Well-Known Objection to the Liberalization of Euthanasia Policy") Medisch Contact (Medical Contact, Official Journal of the Royal Dutch Medical Association) 52 (1997): 173-5;
60. J. Griffiths, Book Review, "Een Amerikaan over Euthanasie in Nederland," ("An American's View of Euthanasia in the Netherlands - Review of C.F. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands, 1991") Medisch Contact 48 (1993): 1208-9.
61. Researchers outside of the Netherlands have also criticized these critics.
62. See, e.g., J. Downie, "The Contested Lessons of Euthanasia in the Netherlands," Health Law Journal 8 (2000): 119-39, at 132-5;
63. T. E. Quill, Book Review, "Linda L. Emanuel, ed., Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide," Journal of Health Policy & Law 25 (2000): 391-402, at 393 (describing "the glib and biased accounting of the Dutch experience in the U.S. literature," citing Hendin, supra note 18);
64. R. Dworkin, "Assisted Suicide: What the Court Really Said," New York Review of Books 44, no. 14 (1997): 40-4, at 43, note 13.
65. An exchange between Hendin and Dworkin is found at "Assisted Suicide and Euthanasia: An Exchange," New York Review of Books 44, no. 17 (1997): 68-70, at 69-70.
66. Washington v. Glucksberg, 521 U.S. 702, 734 (1997).
67. See also, the concurring opinion of Souter J., id., at 785-6 (recognizing that the Dutch "evidence is contested");
68. Vacco v. Quill, 521 U.S. 793, 809 (1997).
69. The Dutch experience was also mentioned briefly in the earlier decision of the Second Circuit in Quill v. Vacco, 80 F.3d 716, 730 (1996),
70. citing New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (1994): at 133-4.
71. ("As to the interest in avoiding abuse similar to that occurring in the Netherlands, it seems clear that some physicians there practice nonvoluntary euthanasia, although it is not legal to do so.") The first decision in the Ninth Circuit in Compassion in Dying v. Washington, 49 F.3d 586, 593 (1995) identified a state interest in "preventing abuse similar to what has occurred in the Netherlands."
72. See also, The Queen on the Application of Mrs. Dianne Pretty v. Director of Public Prosecutions [2002] 1 A.C. 800, [55] (H.L.),
73. citing Keown, supra note 3, at 261-96.
74. D. Enoch, "Once You Start Using Slippery Slope Arguments, You're on a Very Slippery Slope," Oxford Journal of Legal Studies 21 (2001): 629-47, at 631 (describing rather than supporting this argument).
75. See, e.g., Hendin, supra note 18, at 163-5;
76. R. Fenigsen, "A Case Against Dutch Euthanasia," Hastings Center Report 19, no. 1 (1989): S22-30, at S24-6;
77. J. Keown, "The Law and Practice of Euthanasia in the Netherlands," Law Quarterly Review 108 (1992): 51-78, at 61-78;
78. J. Keown, "Further Reflections on Euthanasia in the Netherlands in the Light of the Remmelink Report and the van der Maas Survey," in Luke Gormally, ed., Euthanasia, Clinical Practice and the Law (London: The Linacre Centre, 1994): 219-40;
79. Keown, supra note 3.
80. M. P. Battin, "The Euthanasia Debate in the United States: Conflicting Claims about the Netherlands," in H. Krabbendam and H.-M. ten Napel, eds., Regulating Morality: A Comparison of the Role of the State in Mastering the Mores in the Netherlands and the United States (Antwerpen: Maklu, 2000): 151-71, at 156-7.
81. See, e.g., Fenigsen, supra note 22, at 24-6 ("Those who contend that it is possible to accept and practice "voluntary" euthanasia and not allow involuntary [euthanasia] totally disregard the Dutch reality");
82. R. Fenigsen, "Dutch Euthanasia Revisited," Issues in Law & Medicine 13 (1997): 301-11, at 310-11;
83. Keown, "The Law and Practice of Euthanasia in the Netherlands," supra note 22, at 61-78;
84. Keown, "Further Reflections," supra note 22, at 219;
85. Amarasekara and Bagaric, supra note 6, at 189;
86. H. Jochemsen and J. Keown, "Voluntary Euthanasia under Control? Further Empirical Evidence from the Netherlands," Journal of Medical Ethics 25, no. 1 (1999): 16-21, at 17-18, 20;
87. Pretty v. United Kingdom (2002) 35 E.H.R.R. 1, [31] (Eur. Ct. H.R.) (summarizing the intervention of the Catholic Bishops' Conference of England and Wales).
88. See contra, H. Rigter, "Euthanasia in the Netherlands: Distinguishing Facts from Fiction," Hastings Center Report 19, no. 1 (1989): S31-2, S31-2 (arguing that there is no evidence of involuntary euthanasia in the Netherlands);
89. G. M. Aartsen et al., "Letter to the Editor," Hastings Center Report 19, no. 5 (1989): 47 (agreeing with Rigter's assessment of euthanasia in the Netherlands and describing Fenigsen's article, supra note 22, as "completely misplaced");
90. van der Maas, "Euthanasia and other Medical Decisions Concerning the End of Life," supra note 11, at 669,
91. criticizing "ill-founded speculation" by Fenigsen (supra note 22) on the number of cases of euthanasia in the Netherlands.
92. The Remmelink Commission was appointed to carry out research into the practice of euthanasia in 1990. The research was published in full in English as P. J. van der Maas et al., "Euthanasia and other Medical Decisions Concerning the End of Life: An Investigation Performed upon Request of the Commission of Inquiry into the Medical Practice Concerning Euthanasia," Health Policy 22, nos. 1 and 2 (1992): 1-262
93. and P. J. van der Maas et al., Euthanasia and other Medical Decisions Concerning the End of Life (Amsterdam: Elsevier, Health Policy Monographs, 1992). A summary of the report was also published in the Lancet.
94. See van der Maas, "Euthanasia and other Medical Decisions Concerning the End of Life," supra note 11.
95. Some of the results of the 1995 follow-up study were published in English in van der Maas, "Euthanasia, Physician-Assisted Suicide, and other Medical Practices Involving the End of Life in the Netherlands, 1990-1995," supra note 11, and G. van der Wal et al., "Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands," New England Journal of Medicine 335 (1996): 1706-11.
96. A summary of the third follow-up study in 2001 was published in English in Onwuteaka-Philipsen, supra note 11.
97. Onwuteaka-Philipsen, supra note 11, at Table 1.
98. See supra note 25. The evidence is that the cases in this category are "quite heterogeneous" including severely handicapped neonates, coma patients and terminal cancer patients. In over half of the cases, there is evidence of some earlier discussion with the patient regarding euthanasia or a previously expressed wish. L. Pijnenborg et al., "Life Terminating Acts without Explicit Request of the Patient," Lancet 341 (1993): 1196-9, at 1197;
99. Griffiths, Bood and Weyers, supra note 19, at 226-7.
100. This may account for the conclusion reached by Margaret Otlowski that "there is some basis for suggesting that the incidence of active termination of life without the patient's request reported in the Remmelink survey may be disproportionately high." M. Otlowski, Voluntary Euthanasia and the Common Law (Oxford: Oxford University Press, 1997): at 438. The category represents non-voluntary rather than involuntary euthanasia. "In all situations in which there had been no discussion with the patient and in which no wish of the patient was known, the patients were incompetent." J. J. M. van Delden et al., "The Remmelink Study: 2 Years Later," Hastings Center Report 23, no. 6 (1993): 24-7, at 25.
101. Significantly, "most of these cases resemble death due to administration of pain relief more than they do euthanasia." Griffiths, Bood and Weyers, id., at 228 ("In 65% of the cases only morphine or the like was used, and in only 8% were muscle relaxants used, whereas in the case of euthanasia muscle relaxants are now used 90% of the time.")
102. See also, van Delden, id., at 25. A further indication that at least some of these cases would be better classified as due to the administration of pain relief is that "[a]lmost all [of them] involve patients with only a few hours or days to live." Pijnenborg, id., at 1198.
103. See E. D. Pellegrino, "The False Promise of Beneficent Killing," in L. L. Emanuel, ed., Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide (Cambridge, MA: Harvard University Press, 1998): 71-91, at 88;
104. Washington v. Glucksberg, 521 U.S. 702, 734 (1997);
105. Keown, "Further Reflections," supra note 22;
106. J. I. Fleming, "Euthanasia, the Netherlands, and Slippery Slopes," Bioethics Research Notes (Occasional Paper No. 1) (1992): 1-10, at 6-7;
107. T. Cipriani, "Give Me Liberty and Give Me Death," Journal of Law & Medicine 3 (1995): 177-90, at 190.
108. J. J. M. van Delden et al., "Dances with Data," Bioethics 7 (1993): 323-9, at 327,
109. citing van der Burg, supra note 1, at 57.
110. See also, Enoch, supra note 21, at 631;
111. Griffiths, Bood and Weyers, supra note 19, at 300;
112. Otlowski, supra note 27, at 439.
113. See van Delden, id., at 327;
114. H. Kuhse and P. Singer, "Active Voluntary Euthanasia, Morality and the Law," Journal of Law & Medicine 3 (1995): 129-35, at 132;
115. Griffiths, Bood and Weyers, id., at 300-1.
116. Raphael Cohen-Almagor views the comparative argument with skepticism, arguing that its use by the Dutch is a form of defensiveness: "Many Dutch scientists suggest that physicians in many countries are secretly doing what Dutch physicians are doing openly. However, this suggestion is dubious. There are not enough data to either support or refute this suggestion." R. Cohen-Almagor, Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing (Dordrecht: Kluwer, 2004): 147-8, citing only one source for his first sentence: L. Pijnenborg, "The Dutch Euthanasia Debate in International Perspective," in End-of-Life Decisions in Dutch Medical Practice (Rotterdam: Thesis, 1995): at 119-31. Section III. B infra examines the comparative evidence.
117. "To demonstrate a slippery slope one would need to show that something changed after introducing a certain practice and for this at least two investigations would be required." van Delden, id.
118. See also, Kuhse and Singer, id.;
119. Otlowski, supra note 27, at 439.
120. M. A. M. de Wachter, "Active Euthanasia in the Netherlands," JAMA 262 (1989): 3316-19, at 3316-17;
121. van Delden, supra note 27, at 26.
122. For a discussion of the relevant judicial decisions, see Lewis, supra note 8, at 76-83.
123. See J. Griffiths, "Comparative Reflections: Is the Dutch Case Unique?" in Klijn, supra note 11, 197-205, at 202 ("there is no evidence that-termination of life without a request has become more frequent since legalisation in 1984").
124. J. Keown, Euthanasia, Ethics, and Public Policy (Cambridge: Cambridge University Press, 2002): at 146 (emphasis in original). John Griffiths suggests on the contrary that "it seems pretty clear that many of the things to which opponents of euthanasia point as the horribles to which legalisation will lead, in fact pre-existed legalisation of euthanasia in the Netherlands." Griffiths, supra note 33, at 202.
125. See infra, at section III.B and R. S. Magnusson, Angels of Death - Exploring the Euthanasia Underground (New Haven: Yale University Press, 2002).
126. Onwuteaka-Philipsen, supra note 11, at Table 1 (95% CIs 0.6%-1.1% and 0.5%-0.9% respectively). These figures are based on death certificate studies. The 1990 survey did not collect interview data on this issue, but the relevant interview figures for the other two surveys are 0.7% (1995, 95% CI 0.5%-0.8%) and 0.6% (2001, 95% CI 0.4%-0.9%).
127. P. van der Maas and L. L. Emanuel, "Factual Findings," in Emanuel, supra note 28, 151-74, at 160.
128. N. M. Gorsuch, "The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Dutch and Oregon Experiments and Leading Utilitarian Arguments For Legal Change," Wisconsin Law Review (2004): 1347-1423, at 1395-6 (emphasis added), citing Griffiths, Bood and Weyers, supra note 19, at 267-98;
129. H. Kuhse, "From Intention to Consent: Learning from Experience with Euthanasia," in M. P. Battin et al., eds., Physician Assisted Suicide: Expanding the Debate (New York: Routledge, 1998): 252-66, at 263-6.
130. Kuhse's argument is discussed infra, text accompanying note 94.
131. See Lewis, supra note 8, at 129-33;
132. J. H. H. M. Dorscheidt, "Assessment Procedures Regarding End-of-Life Decisions in Neonatology in the Netherlands," Medicine & Law 24 (2005): 803-29, at 804-6;
133. Griffiths, Bood and Weyers, supra note 19, at 83, App. II-3, 341.
134. Downie, supra note 19, at 135-6.
135. Id., at 137, note 56.
136. L. Deliens et al., "End-of-Life Decisions in Medical Practice in Flanders, Belgium: A Nationwide Survey," Lancet 356 (2000): 1806-11, at Table 5.
137. The Belgian data is discussed infra, text accompanying note 56.
138. See Griffiths, supra note 33, at 202 (emphasis in the original).
139. See supra note 24, at 20-1.
140. E. A. Posner and A. Vermeule, "Should Coercive Interrogation Be Legal?" Michigan Law Review 104 (2006): 671-707, at note 67.
141. John Arras has described this as "an extremely difficult problem of empirical prediction."
142. See Arras, supra note 4, at 296.
143. See supra, text accompanying note 42.
144. Amarasekara and Bagaric, supra note 6, at 190 (emphasis in original). The argument is reproduced in M. Bagaric, "The Kuhse-Singer Euthanasia Survey: Why it Fails to Undermine the Slippery Slope Argument - Comparing Apples and Apples," European Journal of Health Law 9 (2002): 229-41, at 233.
145. S. W. Smith, "Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia," Medical Law Review 13 (2005): 17-44, at 22.
146. See Griffiths, supra note 33, at 202;
147. Griffiths, Bood and Weyers, supra note 19, at 301, note 4.
148. Some of the relevant cases are mentioned in Lewis, supra note 8, at 6-11, 95-7.
149. See also, Otlowski, supra note 27, at 140-8;
150. B. Sneiderman, "The Case of Robert Latimer: A Commentary on Crime and Punishment," Alberta Law Review 37 (1999): 1017-44, at 60, 85-87;
151. Downie, supra note 19, at 137, note 57;
152. L. Dietz et al., "Aiding, Abetting, or Counseling Suicide; Euthanasia and Assisted Suicide," American Jurisprudence, 2nd ed., Homicide § 623 (2006);
153. J. M. Thunder, "Quiet Killings in Medical Facilities: Detection and Prevention," Issues in Law & Medicine 18 (2003): 211-35, at 213.
154. See generally, Otlowski, id. at 134-8;
155. Magnusson, supra note 35.
156. See supra, text accompanying note 36.
157. See supra, text accompanying note 28.
158. H. Kuhse et al., "End-of-Life Decisions in Australian Medical Practice," Medical Journal of Australia 166 (1997): 191-6, at Box 4 (95% CI 2.7%-4.3%).
159. Further Australian evidence is discussed infra note 62.
160. Deliens, supra note 42, at Table 5 (95% CI 2.7%-3.8%). The pilot study which preceded this study is described in F. Mortier et al., "End-of-Life Decisions of Physicians in the City of Hasselt (Flanders, Belgium)," Bioethics 14 (2000): 254-67.
161. See also, F. Mortier et al., "Attitudes, Sociodemographic Characteristics, and Actual End-of-Life Decisions of Physicians in Flanders, Belgium," Medical Decision Making 23 (2003): 502-10.
162. F. Mortier and L. Deliens, "The Prospects of Effective Legal Control on Euthanasia in Belgium: Implications of Recent End-of-Life Studies," in Klijn, supra note 11, 179-95, at 184, note 17.
163. C. Seale, "National Survey of End-of-Life Decisions Made by UK Medical Practitioners," Palliative Medicine 20 (2006): 3-10, at Table 2. The survey was carried out in 2004-2005. A full comparison between the Australian and U.K. data is found in Table 2.
164. This data is from A. van der Heide et al., "End-of-Life Decision-Making in 6 European Countries: Descriptive Study," Lancet 362 (2003): 345-50, at Table 2;
165. Seale, id., at Tables 2 and 3;
166. Kuhse, supra note 55, at Box 4.
167. "[E]pidemiological research concerning medical decision-making at the end of life is-rather scarce." A. van der Heide et al., "End-of-Life Decisions in 6 European Countries: A Research Note," in Klijn, supra note 11, 129-34, at 131.
168. See N. Searles, "Silence Doesn't Obliterate the Truth: A Manitoba Survey on Physician Assisted Suicide and Euthanasia," Health Law Review 4 (1996): 9-16, at 22, Table 4 ("A little more than one in seven doctors indicated they had facilitated a patient's request for assisted suicide or euthanasia by hastening her or his death");
169. Downie, supra note 19, at 137-8.
170. See Kuhse, supra note 55, at Box 4: 1.8% of deaths were due to voluntary euthanasia and assisted suicide (95% CI 1.2%-2.4%);
171. C. D. Douglas et al., "The Intention to Hasten Death: A Survey of Attitudes and Practices of Surgeons in Australia," Medical Journal of Australia 175 (2001): 511-5 (5.3% of respondents reported giving a lethal injection or providing the means to commit suicide on request);
172. H. Kuhse and P. Singer, "Doctors' Practices and Attitudes Regarding Voluntary Euthanasia," Medical Journal of Australia 148 (1988): 623-7, at 624 (29% of responding doctors had taken active steps to end a patient's life on request);
173. C. A. Stevens and R. Hassan, "Management of Death, Dying and Euthanasia: Attitudes and Practices of Medical Practitioners in South Australia," Journal of Medical Ethics 20 (1994): 41-6, at 43 (18.8% of responding doctors had taken active steps to bring about the death of a patient; 49% of this group had never received a request from a patient);
174. P. Baume and E. O'Malley, "Euthanasia: Attitudes and Practices of Medical Practitioners," Medical Journal of Australia 161 (1994): 137-44 (12.3% of reporting doctors had complied with a patient request to hasten death; 7% had provided the means for suicide).
175. See K. Mitchell and R. G. Owens, "National Survey of Medical Decisions at End of Life Made by New Zealand General Practitioners," British Medical Journal 327 (2003): 202-3. (5.6% of respondent doctors making an end-of-life decision at the last death attended had performed active euthanasia or physicianassisted suicide; 44% of these decisions had not been discussed with the patient, almost entirely because the patient was no longer competent.)
176. A direct comparison between this study and the most recent U.K. study is found in Seale, supra note 58, at Table 4: the rate of active euthanasia or physician-assisted suicide at the last death attended across all respondents (not simply those who made an end-of-life decision) was 3.1% in the New Zealand study (95% CI 2.1%-4.1%) and 1.4% in the U.K. study (95% CI 0.3%-2.5%).
177. The empirical evidence is reviewed in E. J. Emanuel, "Euthanasia and Physician-Assisted Suicide: A Review of the Empirical Data From the United States," Archives of Internal Medicine 162 (2002): 142-52, at 146, Table 4. ("Many studies indicate that a small, but definite, proportion of US physicians have performed euthanasia or PAS, despite its being illegal.... [T]he data provide conflicting evidence on the precise frequency of such interventions, with reported frequencies varying more than 6-fold even among the best studies.")
178. See Seale, supra note 58, at Table 2;
179. B. J. Ward and P. A. Tate, "Attitudes among NHS Doctors to Requests for Euthanasia," British Medical Journal 308 (1994): 1332-4 (12% of responding doctors had taken active steps to hasten death on request);
180. S. A. M. McLean and A. Britton, Sometimes a Small Victory (Glasgow: Institute of Law and Ethics in Medicine, 1996): at App. III, Table 17, 31-2, discussed in Keown, supra note 34, at 61 and
181. M. Freeman, "Denying Death its Dominion: Thoughts on the Dianne Pretty Case," Medical Law Review 10 (2002): 245-70, at 249, note 31 (4% of responding Scottish health professionals had assisted suicide). The House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill doubted some of the U.K. survey evidence: "Bearing in mind however the trend towards death taking place in hospital rather than at home, the increasing prevalence of team-working in clinical care, the greater tendency for people to litigate where they suspect malpractice, and the potential for confusion with the legal administration of drugs to prevent restlessness and anxiety in the last hours of life, we would be surprised if covert euthanasia were being practised on anything like the scale which some of these surveys suggest." House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, Report, HL Paper 86-I (2005): at 239, available at 〈www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86i. pdf〉 (last visited December 13, 2006).
182. This data is from van der Heide, supra note 59, at Table 2;
183. Seale, supra note 58, at Tables 2 and 3;
184. Kuhse, supra note 55, at Box 4.
185. See supra, text accompanying notes 32-37.
186. Cohen-Almagor, supra note 30, at 26.
187. See Kuhse, supra note 55;
188. Seale, supra note 58;
189. van der Heide, supra note 59.
190. Some of the criticism was canvassed by the Australian Senate Legal and Constitutional Legislation Committee in its report on the Bill to overrule the Northern Territory legislation. Euthanasia Laws Bill 1996 (1997): at 88-9 (on the Northern Territory legislation, see Lewis, supra note 8, at 157-8).
191. See also, K. Amarasekara, "Euthanasia and the Quality of Legislative Safeguards," Monash University Law Review 23 (1997): 1-42, at 15-16;
192. Amarasekara and Bagaric, supra note 6, at 191;
193. Gorsuch, supra note 38, at 1396-1400.
194. See Seale, supra note 58, at 6: "Sudden and unexpected deaths are excluded from Table 3 to control for an artifactual effect that applied to this and the Australian study, which chose deaths according to the most recent one nominated by the respondent. Significantly fewer such deaths were nominated by UK and Australian doctors than in studies based on samples of death certificates. The effect of this is to artificially inflate the proportion of deaths receiving ELDs [end-of-life decisions], a point not appreciated by the Australian investigators."
195. See, e.g., Kuhse, supra note 55, at 196 (noting that their study comparing Australia and the Netherlands weakens the assumption that countries openly practicing euthanasia have higher nonvoluntary euthanasia rates than countries not openly practicing euthanasia);
196. M. Otlowski, "The Effectiveness of Legal Control of Euthanasia: Lessons from Comparative Law," in Klijn, supra note 11, 137-55, at 141-3, 152-5;
197. D. Morris, "Assisted Suicide under the European Convention on Human Rights: A Critique," European Human Rights Law Review 1 (2003): 65-91, 84.
198. Cohen-Almagor, supra note 30, at 26.
199. See also, B. D. Onwuteaka-Philipsen et al., "End-of-Life Decision Making in Europe and Australia: A Physician Survey," Archives of Internal Medicine 166 (2006): 921-9, at 927-8.
200. On social contexts as an influence on the strength of slippery slope arguments, see Lode, supra note 1, at 1493-4.
201. See van der Maas and Emanuel, supra note 37, at 161;
202. T. H. Stone and W. J. Winslade, "Physician-Assisted Suicide and Euthanasia in the United States," Journal of Legal Medicine 16 (1995): 481-507, at note 70;
203. Griffiths, Bood and Weyers, supra note 19, at 304-5;
204. Otlowski, supra note 27, at 452-4;
205. M. P. Battin, "A Dozen Caveats Concerning the Discussion of Euthanasia in the Netherlands," in M. P. Battin, The Least Worst Death: Essays in Bioethics on the End of Life (New York: Oxford University Press, 1994): 130-44, at 140-1.
206. See Searles, supra note 62, at 27 ("If the response rate is thought to be low, this is due predominantly to the controversial nature of the subject matter of this investigation. Physicians were asked if they have ever committed indictable offences, punishable by harsh professional and criminal sentences."); M. T. Muller et al., "Euthanasia and Assisted Suicide: Facts, Figures and Fancies with Special Regard to Old Age," Drugs & Aging 13 (1998): 185-91, at 189;
207. Downie, supra note 19, at 137;
208. Seale, supra note 58, at 6.
209. Emanuel, "The Practice of Euthanasia and Physician-Assisted Suicide in the United States," supra note 64, at 512.
210. See Magnusson, supra note 35, at 229.
211. See Weinrib, supra note 4, at note 77.
212. See Mortier and Deliens, supra note 57, at 179;
213. J. M. Cuperus-Bosma et al., "Physician-Assisted Death: Policy-Making by the Assembly of Prosecutors General in the Netherlands," European Journal of Health Law 4 (1997): 225-38, at 236-7;
214. B. Sneiderman, J. C. Irvine and P. H. Osborne, Canadian Medical Law: An Introduction for Physicians, Nurses and other Health Care Professionals 3rd ed. (Scarborough, Ontario: Carswell, 2003): at 727, quoting G. van der Wal, Euthanasia En Hulp Bij Zelfdoding Door Huisartsen (Euthanasia and Assisted Suicide by Family Physicians) (Rotterdam: WYT Uitgeefgroep, 1992): at 12: "physicians, having been informed about the requirements for prudent care, only report those cases of which they are almost certain that they will not be prosecuted");
215. H. Jochemsen, "Why Euthanasia Should not be Legalized: A Reflection on the Dutch Experiment," in D. N. Weisstub et al., eds., Aging: Decisions at the End of Life (Dordrecht: Kluwer Academic Publishers, 2001): 67-90, at 77. The 1995 Dutch research indicated, however, that failure to report was generally related to a failure to meet one of the procedural requirements (such as obtaining a written request; consultation with another physician; or providing a written report). "There were no major differences between reported and unreported cases in terms of the patients' characteristics or the basis for the decision to provide assistance (i.e., whether there was an explicit request and unbearable and hopeless suffering)."
216. van der Wal, supra note 25, at 1708. Similar results were reported in later research.
217. See B. D. Onwuteaka-Philipsen et al., "Dutch Experience of Monitoring Euthanasia," British Medical Journal 331 (2005): 691-3, at 692, and in earlier research amongst family doctors only.
218. See G. van der Wal et al., "Euthanasia and Assisted Suicide II: Do Dutch Family Doctors Act Prudently?" Family Practice 9 (1992): 135-40, at 137-40.
219. R. Pool, Negotiating a Good Death: Euthanasia in the Netherlands (Binghamton, NY: The Haworth Press, 2000): at 110, 114 (based on a small, non-scientific sample).
220. van der Wal, Euthanasia and Assisted Suicide by Family Physicians, supra note 79, at 12,
221. translated by Sneiderman, Irvine and Osborne, supra note 79, at 727.
222. See Gorsuch, supra note 38, at 1395.
223. See supra, text accompanying notes 58-59 and note 66.
224. The U.K. rate of non-treatment decisions as a percentage of non-sudden deaths was 33.4% (95% CI 27.1%-39.8%). Several European jurisdictions have significantly lower rates. For example, the rate in Belgium (pre-legalization) was 22.8% (95% CI 20.9%-24.7%). Denmark and Sweden had similar rates to Belgium. Italy's rate was much lower, at 5.6% (95% CI 4.6%-6.6%). The Netherlands and Switzerland had rates comparable to the U.K. Seale, supra note 58, at Table 3,
225. using data from van der Heide, supra note 59, at Table 2.
226. Seale, id., at 8.
227. C. Seale, "Characteristics of End-of-Life Decisions: Survey of UK Medical Practitioners," Palliative Medicine 20 (2006): 653-9.
228. See Mortier and Deliens, supra note 57, at 186-7.
229. The Belgian data is discussed supra notes 56-57 and accompanying text.
230. Law concerning the rights of the patient of August 22, 2002, discussed by H. Nys, "Recent Developments in Health Law in Belgium," European Journal of Health Law 13 (2006): 95-9.
231. See Mortier and Deliens, supra note 57, at 186-7.
232. See Kuhse, supra note 55.
233. See supra, text accompanying notes 46-47.
234. Otlowski, supra note 72, at 143 (emphasis added), 148. A similar argument was made by the Voluntary Euthanasia Society in its intervention in Pretty v. United Kingdom (2002) 35 E.H.R.R. 1, [27] (Eur. Ct. H.R.): "The Dutch situation indicated that in the absence of regulation slightly less than 1% of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this (non-voluntary euthanasia). A similar study [sic] indicated a figure of 3.1% in Belgium and 3.5% in Australia. It might therefore be the case that less attention was given to the requirements of a careful end of life practice in a society with a restrictive legal approach than in one with an open approach that tolerated and regulated euthanasia."
235. See supra, text accompanying notes 36, 55.
236. See Kuhse, supra note 38, at 263.
237. See Gorsuch, supra note 38, at 1395.
238. See supra, text accompanying notes 58-59.
239. Amarasekara and Bagaric, supra note 6, at 191,
240. citing Kuhse, supra note 55, at 196.
241. See also, Bagaric, supra note 48, at 236-8.
242. Amarasekara and Bagaric, id.
243. See Lewis, supra note 8, at 127-36.
244. See Lewis, id. at 95-7.
245. See Magnusson, supra note 35, at 262.
246. See also, Emanuel, "The Practice of Euthanasia and Physician-Assisted Suicide in the United States," supra note 64, at 509. That is not to say that there are no clinical difficulties in jurisdictions which have legalized euthanasia.
247. See, e.g., J. H. Groenewoud et al., "Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands," New England Journal of Medicine 342 (2000): 551-6.
248. See Magnusson, supra note 35, at 263;
249. Searles, supra note 62, at 25.
250. See also, R. Magnusson, "Underground Euthanasia and the Harm Minimization Debate," Journal of Law, Medicine & Ethics 32 (2004): 486-95, at 492.
251. See Emanuel, "The Practice of Euthanasia and Physician-Assisted Suicide in the United States," supra note 64, at 511;
252. Willems, supra note 62, at 67.
253. See Magnusson, supra note 35, at 4.
254. See Griffiths, supra note 33, at 203. For evidence of this use of pain relieving drugs,
255. see Douglas, supra note 62 (36.2% of respondents reported giving pain-relieving drugs with the intention of hastening death);
256. Seale, supra note 58, at Table 4 (comparing U.K. and New Zealand rates of cases where the intention of intensifying alleviation of pain or symptoms was partly to end life among responding general practitioners: the U.K. rate was 4.0% (95% CI 2.1%-5.9%);
257. the New Zealand rate was 13.7% (95% CI 11.8%-15.6%, calculated using data from Mitchell and Owens, supra note 63);
258. Deliens, supra note 42, at Table 1. Among end-of-life decisions, the rate of alleviation of pain and symptoms with opioids in doses with a potential life-shortening effect and an additional intention to shorten the patient's life was 5.3% (95% CI 4.6%-6.0%);
259. Kuhse, supra note 55, at Box 4. 6.5% of all Australian deaths were preceded by the alleviation of pain and suffering through the administration of opioids in sufficient doses to hasten death where the decision was partly intended to hasten death (no CI provided).
260. See Seale, id. at Table 3;
261. van der Heide, supra note 59, at Table 2. In fact, the reverse may be true.
262. See the data on Italy and Sweden in Onwuteaka-Philipsen, supra note 73, at Table 3.
263. Griffiths, Bood and Weyers, supra note 19, at 305.
264. See also, van Delden, supra note 27, at 27 ("medical decisions concerning the end of life-are-a part of modern medicine, and we had better openly discuss them").