Are the Distinctions Drawn in the Debate about End-of-Life Decision Making "Principled"? If Not, How Much Does It Matter?

Journal of Law, Medicine and Ethics

Volumn 40, Issue 1, 2012, Pages 66-84

  Kamisar, Yale ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ASSISTED SUICIDE; ETHICS; HUMAN; LEGAL ASPECT; TERMINAL CARE; TREATMENT REFUSAL; TREATMENT WITHDRAWAL; UNITED STATES;

HUMANS; SUICIDE, ASSISTED; TERMINAL CARE; TREATMENT REFUSAL; UNITED STATES; WITHHOLDING TREATMENT;

EID: 84859186886     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2012.00647.x     Document Type: Article

References (111)

1. T. E. Quill, "Physician Assisted Death: After the U.S. Supreme Court Ruling, " University of Detroit Mercy Law Review 75 (1998): 481-98, at 482-484, 497.
2. T. E. Quill and H. Brody, "'You Promised Me I Wouldn't Die Like This!, "'Archives of Internal Medicine 155 (June 26, 1995): 1250-1254, at 1250, 1254.
3. S. B. Nuland, How We Die ( New York : A.A. Knopf, 1994): at xvii (introduction).
4. D. Callahan, "Organized Obfuscation: Advocacy for Physician-Assisted Suicide, " Hastings Center Report 38, no. 5 (SeptemberOctober, 2008): 30-32, at 31.
5. J. D. Arras, "Physician -Assisted Suicide: A Tragic View, " Journal of Contemporary Health Law & Policy 13 (1997) 361-89, at 388.
6. J. Fitzpatrick and E. M. Fitzpatrick, A Better Way to Die ( New York : Penguin 2009): at 41.
7. Noteworthy, too, is A. F. Conard, "Elder Choice, " American Journal of Law & Medicine 19 (1993): 233-283. Conard, an emeritus professor of law at the time he wrote this article, believed that more "debilitated elders" could be "emancipat[ed]" in ways "compatible with prevalent laws and morals "if there were greater awareness and use of advance health care directives." Id., at 233-235. He "bypassed" both euthanasia and assisted suicide without debating their intrinsic merits or demerits because he believed the resistance to these procedures would be so great that they would not be widely available for the foreseeable future. See id., at 235.
8. Y. Kamisar, "The Reasons So Many People Support Physician-Assisted Suicide - and Why These Reasons Are Not Convincing, " Issues in Law & Medicine 12 (fall 1996): 113-131.
9. C. S. Campbell, quot;Ten Years of Death with Dignity,"The New Atlantis 22 (fall 2008): 33-46, at 38: "Supporters of the [Oregon Death with Dignity Act] often invoked 'hard cases'- nightmarish scenarios of terminally ill patients tortured by unrelenting pain.".
10. A case very similar to the one suggested by Professor Arras (and perhaps the very one he had in mind) occurred in Michigan in 1993. A woman named Ellen Ruth Ward suffered so much from a persistent pelvic pain that forced her to stay at home that she considered suicide. At first Medicare refused to cover the cost of an implantable pump that would bathe Ms. Ward's spinal column in morphine. However, when a Detroit newspaper published an article about her sad situation, Medicare changed its position. At this point, Ms. Ward became quite happy. See S. Andrews, "Woman in Pain Gets OK for Pump, "Detroit Free Press, March 2, 1993, at 3A.
11. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York State Task Force on Life and the Law, 1994).
12. C. H. Coleman, "The New York State Task Force on Life and the Law: Why It Concluded Physician-Assisted Suicide Should Not Be Legalized, " St. John's Journal of Legal Commentary 12 (1997): 647-52 at 647-648.
13. The letter is undated, but it was mailed to me in the spring of 2009. The letter is on file at the University of Michigan law library and with the guest editor of this symposium issue, Robert M. Sade.
14. Compassion & Choices letter, at 1. The Terri Schiavo case, mentioned in the letter, is ably discussed in T. E. Quill, "Terri Schiavo - A Tragedy Compounded, " New England Journal of Medicine 352 (April 21, 2005): 1630-1633. The case illustrates what may happen when politicians cannot resist "getting into the act" when a person is in a persistent vegetative state and relatives disagree over what should be done about it. To summarize briefly: A cardiac arrest left Ms. Schiavo in a persistent vegetative state. As so often happens, she had not written any advance directive. Her husband, who had been made her legal guardian under Florida law, maintained that his wife would not have wanted to receive life-prolonging treatment under the circumstances. After a long hearing, the trial court agreed and this ruling was affirmed. However, the Florida legislature created "Terri's Law" to override the court's decision. The feeding tube was reinserted, but the law that permitted this to happen was subsequently held to be an unconstitutional violation of the separation of powers. In 2005 the trial court ordered Ms. Schiavo's feeding tube removed again. This time the U.S. Congress passed an "emergency measure, " signed by the President, requiring the federal courts to review the case (and perhaps order the feeding tube reinserted). A federal district court in Florida refused to re-examine the case and this ruling was affirmed. Ms. Schiavo died shortly thereafter. In early 2009, a case quite similar to Terri Schiavo's took place in Italy. It involved Eluana Englaro, an Italian woman who had been in a persistent vegetative state for many years. Her father maintained, and several Italian courts had agreed, that his daughter would not have wanted to be kept alive under the circumstances. As the Italian government rushed to pass legislation prohibiting feeding tubes from being removed from patients dependent on them, Ms. Englaro died. See Y. Kamisar, "The Right to Forgo Treatment, "National Law Journal (March 2, 2009): at 20.
15. The literature is also on file at the University of Michigan law library and with the guest editor of this symposium issue, Robert M. Sade.
16. A. Meisel, The Right to Die, 2nd ed. ( New York : Wiley Law Pub., 1995): at 470.
17. N. L. Cantor, quot;The Permanently Unconscious Patient, Non-Feeding and Euthanasia,"American Journal of Law & Medicine 15 (1990): 381-437, at 427-428. I should disclose that in his article, id., at 383, Professor Cantor expressed his strong disagreement with a commentator named Yale Kamisar who, as Cantor described it, had called judicial endorsement of ending artificial nutrition "'intentional killings' of 'biologically tenacious' persons bringing America to 'the brink' of active euthanasia." I soon changed my position on this issue.
18. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).
19. Cruzan v. Harmon, 760 S.W. 2d 408 (Mo. 1988) aff'd sub nom. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990). Although it is settled that a competent person has the right to refuse unwanted medical treatment, in Cruzan, as Professor Quill and his co-authors have pointed out, the U.S. Supreme Court ruled that in the absence of any advance directive, the states could set their own standard of evidence about an incompetent patient's wishes to terminate medical treatment. See A. Meisel, L. Snyder, and T. Quill, "Seven Legal Barriers to End-of-Life Care, " JAMA 284 (November 15, 2000): 2495-2501, at 2496. However, the states are not required to establish as high a burden of proof as Missouri did - and most have not done so. See id. After the U.S. Supreme Court handed down its decision in the Cruzan case, Nancy Cruzan's parents asked for, and were granted, a second hearing before the state probate court. At the new hearing, three of Nancy Cruzan's former co-workers recalled conversations in which she said she never would want to live "like a vegetable" on medical machines. See New York Times, November 2, 1990, at A14, col. 3. The probate court ruled that there was "clear evidence" that if Ms. Cruzan had been mentally able she would have wanted to terminate her nutrition and hydration. The Court then authorized the cessation of nutrition and hydration. See New York Times, December 15, 1990, at sec. 1, at 1, col. 2. Twelve days later, and nearly eight years after she had lost consciousness, Nancy Cruzan died.
20. Cruzan, 497 U.S. at 278.
21. Id., at 279. Seven years later, writing for the Court in Washington v. Glucksberg, quoted in the text at note 44, infra, Chief Justice Rehnquist looked back at Cruzan as a case where the Court had "assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment."Glucksberg, 521 U.S. at 720.
22. See Cruzan, 497 U.S. at 287, 289 (Justice O'Connor, concurring); id., at 305, 307 (Justice Brennan, joined by Justices Marshall and Blackmun, dissenting); id., at 331 (Justice Stevens dissenting).
23. Justice Brennan, joined by Marshall and Blackmun, JJ., dissenting, 497 U.S. at 302.
24. See Justice O'Connor, concurring, 497 U.S. 288-289.
25. G. Williams, The Sanctity of Life and the Criminal Law ( New York : A.A. Knopf, 1957).
26. G. Williams, "Euthanasia, " Medico-Legal Journal 41 (1973): 14-34, at 18.
27. "[W]hen we think about a social problem, " my colleague Carl Schneider has observed, "we in America today tend to think about it in terms of rights, a mode of thinking we find accessible, convenient and comfortable." C. E. Schneider, "Rights Discourse and Neonatal Euthanasia, " California Law Review 76 (1988): 151-76, at 154. However, "defining an interest as a right makes accommodation seem to be the breaching of a right or the defining of a right or the defining away of a right and thus, a moral and political wrong."Id., at 172.
28. Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc) rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997); Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev'd, 521 U.S. 793 (1997).
29. This was how long it took for the U.S. Supreme Court to overturn both rulings. Glucksberg, as the Ninth Circuit decision came to be known, was decided on March 6, 1996. The Second Circuit handed down its decision in Quill on April 2, 1996. Both rulings were reversed by the U.S. Supreme Court on June 26, 1997.
30. A. M. Capron, "Liberty, Equality, Death!, " Hastings Center Report (MayJune 1996): 23-24, at 23 (emphasis added).
31. See 79 F. 3d at 802.
32. Quill 80 F.3d at 725.
33. Justice Brennan pointed this out in his Cruzan dissenting opinion. See 497 U.S. at 302-03.
34. G. J. Annas, "The 'Right to Die' in America: Sloganeering from Quinlan and Cruzan to Quill and Kevorkian, " Duquesne Law Review 34 (1996): 875-97, at 896.
35. A. Meisel, "Legal Myths about Terminating Life Support, " Archives of Internal Medicine 151 (August 1991): 1497-1502, at 1498. After the Cruzan case, observes Meisel, "it is virtually indisputable that competent patients have a right to refuse treatment whether terminally ill or not."Id., at 1499.
36. Ronald Dworkin, a well-known proponent of PAS, makes this point quite forcefully in R. Dworkin, "The Right to Death, " New York Review of Books (January 31, 1991): 14-17, at 17. He deems it "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."Id.
37. As I have discussed elsewhere, see Y. Kamisar, "Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy, "Michigan Law Review 106 (2008): 1453-78, at 1461-63, although formally Justice O'Connor provided the fifth vote, allowing the Chief Justice to say he was speaking for five members of the Court, it is not at all clear that she really joined Rehnquist's opinion.
38. 521 U.S. at 725.
39. 521 U.S. at 800.
40. Baxter v. Montana (unpublished opinion, dist. ct. Mont., December 5, 2008). Robert Baxter, the lead plaintiff in the case, was a terminal cancer patient. I should disclose that in the appeal of this case to the Montana Supreme Court, I signed my name to one of the amicus briefs filed on behalf of the State of Montana. I did not participate in the writing of the amicus brief.
41. Baxter, at 13.
42. Id., at 13 (referring to Article II, section 4 of the Montana Constitution).
43. Id., at 15 (referring to Article II, section 10 of the Montanan Constitution). The Montana court concluded that neither "the interest in protecting and defending human life" (id., at 19-20), nor the need to protect vulnerable groups from abuse (because the state legislature can provide various safeguards to prevent such abuses; id. at 20-21), nor the interest in "protecting the integrity of the medical profession" (id., at 20-22), constitutes "a compelling state interest." The Montana district court pointed out that although the U.S. Supreme Court "needed only to find a legitimate basis" for prohibiting PAS, the Montana Constitution requires a Montana court to find "a compelling state interest."Id., at 20.
44. Cf. R. C. Fox and J. P. Swazey, The Courage to Fail ( Chicago : University of Chicago Press, 1974): at 314 (in the early 1960s, when Seattle became the mecca of dialysis centers, there was less difficulty in selecting candidates for the limited number of kidney machines available than in "terminating a patient" once his treatment had gotten underway).
45. D. W. Brock, "Death and Dying, " in R. M. Veatch, ed., Medical Ethics, 2d ed. ( Sudbury, MA : Jones and Bartlett, 1997): 363-92, at 375.
46. See Quill, supra note 1, at 485-86 (discussing a case when the patient agreed to experimental treatment only after being assured she could stop it if the going became too hard).
47. See T. E. Quill et al., "Palliative Options of the Last Resort, " JAMA 278 (1997): 2099-2104, at 2102.
48. M. Angell, quot;Helping Desperately Ill People to Die," in L. L. Emanuel, ed., Regulating How We Die (Cambridge, MA: Harvard University Press, 1998): 3-20, at 6
49. A. Meisel, quot;Physician-Assisted Suicide: A Common Law Roadmap for State Courts,"Fordham Urban Law Journal 24 (1997): 817-57, at 829.
50. See also F. G. Miller et al., "Can Physician-Assisted Suicide Be Regulated Effectively?"Journal of Law, Medicine & Ethics 24, no. 3 (1996): 225-232, at 229.
51. S. F. Kreimer, "Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die, " American University Law Review 24 (1996): 803-854, at 841.
52. At the time Cardinal Bernadin spoke, Catholic bishops and theologians were divided on whether artificially provided food and water could be withdrawn from patients, and the Vatican had not taken a clear position on this issue. See P. Steinfels, "Prelate Assails 'Useless' Aid to Dying, " New York Times, May 27, 1988, at A12. However, two decades later, when the Eluana Englaro case arose in Italy (see note supra 17), the Vatican left no doubt that it strongly opposed the removal of a person's feeding tube under any circumstances.
53. R. Donadio, quot;Death Ends Coma Case that Set Off Furor in Italy," New York Times, February 10, 2009, at A7
54. R. Donadio, quot;Italy: First Report on High-Profile Death,"New York Times, February 12, 2009, at A10.
55. J. Bernadin, "Euthanasia: Ethical and Legal Challenges, " in T. A. Nairn, ed., The Seamless Garment ( Maryknoll, NY : Orbis Books, 2008): 154-63, at 157, 162. I should disclose that I was a member of the panel at which Cardinal Bernadin spoke in 1988 and criticized him for not condemning "'indirect' or 'passive' euthanasia, "' such as discontinuing nutrition and fluids. I changed my mind on this issue shortly thereafter. See note supra 20.
56. F. G. Miller et al., "Regulating Physician-Assisted Death, " New England Journal of Medicine 331 (1994): 119-23, at 120.
57. A year after the Cardinal gave his talk, Daniel Callahan ventured to say that "the most potent motive for active euthanasia and assisted suicide stems from a dread of the power of medicine"- the power that "seems to take on a drive of its own regardless of the welfare or wishes of patients." D. Callahan, "Can We Return Death to Disease?"Hastings Center Report 19, no. 21 (January 1989): 4-7, at 5.
58. J. Rachels, "Active and Passive Euthanasia, " New England Journal of Medicine 292 (January 9, 1975): 78-80.
59. See the discussion in H. Brody, "Physician-Assisted Suicide in the Courts: Moral Equivalence, Double Effect, and Clinical Practice, " Minnesota Law Review 82 (1998): 939-963, at 939-945.
60. S. H. Kadish, "Letting Patients Die: Legal and Moral Reflections, " California Law Review 80 (1992): 857-888, at 865, 867.
61. T. E. Quill, "Physician-Assisted Death in the United States: Are the Existing 'Last Resorts' Enough?" Hastings Center Report 38 (SeptemberOctober 2008): 17-22, at 19.
62. S. M. Wolf, "Holding the Line on Euthanasia, "Hastings Center Report 19, Special Supplement (January/February 1989): 13-15.
63. N. L. Cantor, "Glucksberg, the Putative Right to Adequate Pain Relief, and Death with Dignity, " Journal of Health Law 34 (Summer 2001): 301-338, at 306.
64. D. Orentlicher, "The Legalization of Physician-Assisted Suicide, " New England Journal of Medicine 335 (1996): 663, at 664.
65. E. J. Emanuel, "The Future of Euthanasia and Physician-Assisted Suicide: Beyond Rights Talk to Informed Public Policy, " Minnesota Law Review 82 (1998): 983-1014, at 992.
66. C. H. Baron et al., "A Model State Act to Authorize and Regulate Physician-Assisted Suicide, " Harvard Journal on Legislation 33 (1996): 1-34.
67. D. W. Brock, Life and Death ( New York : Cambridge University Press, 1993): at 170.
68. Y. Kamisar, "Some Non-Religious Views against Proposed 'Mercy-Killing' Legislation, " Minnesota Law Review 42 (1958): 969-1042, at 969 n.3.
69. See S. Bok, in G. Dworkin, R. G. Frey, and S. Bok, eds., Euthanasia and Physician-Assisted Suicide (New York: Cambridge University Press, 1998): 128-139, at 129.
70. K. L. Tucker, "In the Laboratory of the States: The Progress of Glucksberg's Invitation to States to Address End-of-Life Choice, " Michigan Law Review 106 (2008): 1593-1611, at 1596.
71. N. L. Cantor, "On Kamisar, Killing, and the Future of Physician-Assisted Death, " Michigan Law Review 102 (2004): 1793-1842, at 1817-1818.
72. See also E. J. Emanuel, quot;The Future of Euthanasia and Physician-Assisted Suicide: Beyond Rights Talk to Informed Public Policy,"Minnesota Law Review 82 (1998): 983-1014, at 1002.
73. T. E. Quill et al., "Care of the Hopelessly Ill - Proposed Clinical Criteria for Physician-Assisted Suicide, " New England Journal of Medicine 327 (November 5, 1992): 1380-1383, at 1381.
74. D. Callahan and M. White, "The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village, " University of Richmond Law Review 30 (1996): 1-83, at 6.
75. D. W. Brock, "Voluntary Active Euthanasia, " Hastings Center Report (MarchApril 1992): 10-22, at 10.
76. I do not fault Professor Quill for changing his position. As I have pointed out along the way, see note 20 supra, I have done so myself. If anything is surprising, it is that commentators who try to keep up with the vast literature on this subject do not change their minds more often.
77. See the discussion in Y. Kamisar, "Against Assisted Suicide - Even a Very Limited Form, " University of Detroit Mercy Law Review 72 (1995): 735-769, at 747-749.
78. See Y. Kamisar, "On the Meaning and Impact of Physician-Assisted Suicide Cases, " Minnesota Law Review 82 (1996): 895-922, at 911-912. For more on the meaning and usefulness of the term "terminally ill, " see text at infra notes 130-131.
79. R. Dworkin et al., "Assisted Suicide: The Philosophers' Brief, " New York Review of Books, (March 27, 1997): 41-47, at 41. Professor Dworkin's introduction to the Philosophers' Brief was written after the Court heard oral arguments in Glucksberg and Quill, but before the cases were decided.
80. D. W. Brock, "Voluntary Active Euthanasia, " Hastings Center Report (MarchApril 1992): at 10, 14.
81. N. L. Cantor, "Twenty-Five Years after Quinlan: A Review of the Jurisprudence of Death and Dying, " Journal of Law, Medicine & Ethics 29, no. 2 (2001): 182-196, at 193.
82. One might reply that the longer the projected lifespan, the better the possibility that a new cure or new kind of pain relief may eventually be found. However, as Felicia Ackerman has observed in response to this argument, "respect for privacy and autonomy would seem to require that it be each pain-wracked patient, rather than his government, who gets to decide in his own case whether it is worth going for such a long shot." F. Ackerman, "Assisted Suicide, Terminal Illness, Severe Disability, and the Double Standard, " in M. P. Battin, R. Rhodes, and A. Silvers, eds., Physician Assisted Suicide: Expanding the Debate (New York: Rutledge, 1998): 149-161, at 150.
83. J. Lynn et al., "Defining the 'Terminally Ill': Insights from SUPPORT, " Duquesne Law Review 35 (1996): 311-336, at 334.
84. Id. One of the reasons the authors rejected a more objective definition of the patient's suffering is "that whether one's suffering is sufficiently unbearable to make death preferable to continued life is an inherently subjective determination on which people differ, and for which no objective standard should be imposed on everyone."Id.
85. R. A. Burt, "The Supreme Court Speaks: Not Assisted Suicide but a Constitutional Right to Palliative Care, "New England Journal of Medicine 337 (October 23, 1997): 1234-1247.
86. 79 F.3d at 823-24.
87. Vacco v. Quill, 521 U.S. at 802.
88. Id., at 807 n.11, quoting from the New York Task Force Report, supra note 12, at 163.
89. H. Brody, "Compassion in Dying v. Washington: Promoting Dangerous Myths in Terminal Care, " BioLaw 2, Special Section (JulyAugust 1996): S:154-S:159, at S:157.
90. See, e.g., Brief of the American Medical Association, the American Nurses Association, and the American Psychiatric Association et al. as Amicus Curiae in Support of Petitioners at 4, Glucksberg (No. 96-110), available in 1996. WL 656263.
91. N. L. Cantor and G. C. Thomas, "Pain Relief, Acceleration of Death, and Criminal Law, " Kennedy Institute of Ethics Journal 6 (1996): 107-127, at 109.
92. See Cantor, supra note 88, at 315-327. Professor Cantor describes "deep sedation" or terminal sedation into two categories, short-term and long-term. When the procedure occurs in the last few days of the dying process, he tells us, "it is impossible to establish that withholding of ANH causes death, as opposed to the underlying disease." Id., at 319. Moreover, "there is often a palliative justification for withholding ANH as part of end-stage care. For example, ANH may be contraindicated because it would contribute to pulmonary edema. Both because the withholding of ANH at the end stage creates little risk of hastening death and because there is a palliative justification for taking the risk, [this particular procedure] is not akin to euthanasia."Id. Professor Cantor goes on to discuss what he calls long-term deep sedation, i.e., the "initiation of deep sedation at an earlier point in a dying process, perhaps weeks or more before the patient would normally die from the underlying disease." Id. He observes that Professor Tribe "presumably meant this version of deep sedation." See id.
93. M. Battin, "Terminal Sedation: Pulling the Sheet over Our Eyes, " Hastings Center Report 38, no. 5 (September-October 2008): 27-30.
94. T. E. Quill et al., "Palliative Options of Last Resort, " JAMA 278 (December 17, 1997): 2099-2104, at 2101. However, elsewhere in the same article, Quill and his co-authors maintain that "TS probably requires no change in the law" and that the Supreme Court's 1997 PAS decisions "gave strong support to TS, saying that pain in terminally ill patients should be treated, even to the point of rendering the patient unconscious or hastening death."Id., at 2100. I find these comments puzzling. As I try to show, see text at infra notes 153-170, the Supreme Court does not appear to have given any support to the two-step TS procedure. The Court did approve of the PDE, but as Quill and his co-authors themselves seem to recognize, the second step of the procedure - the withholding of ANH - cannot be justified by the PDE.
95. Professor Margaret Battin has recently criticized TS on various grounds. For one thing, she maintains, "because the assumption is that sedation is used just to end pain without the intention of ending life, the patient cannot be asked for consent to end his or her life, but only to relieve his or her pain." Moreover, the new euphemism, "palliative sedation, " makes matters worse. "By avoiding the word 'terminal' and hence any suggestion that death may be coming, the most important feature of this practice is obscured and terminal sedation is confused with 'palliative care."' See Battin, supra note 147, at 28.
96. D. Orentlicher, "The Supreme Court and Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, " Hastings Constitutional Law Quarterly 24 (Summer 1997): 947-68, at 956.
97. Id., at 955. "It is 'slow' euthanasia, " explains Orentlicher, "because the patient dies after a few hours or days rather than almost immediately."Id., at 955 n.50.
98. D. Orentlicher, "The Supreme Court and Physician-Assisted Suicide: Rejecting Assisted Suicide but Embracing Euthanasia, " New England Journal of Medicine 337 (October 23, 1997): 1236-1239, at 1238.
99. In the reply brief it filed, New York had quoted an extract of an article by Paul Rousseau. See P. Rousseau, "Terminal Sedation in the Care of Dying Patients, " Archives of Internal Medicine (1996): 1785-1786. This was the only part of New York's brief the Court quoted in footnote eleven.
100. On the same page of the brief quoted by the Supreme Court, see Reply Brief for Petitioners Vacco and Patako, at 12, the State of New York also maintained that the claim that the two-step procedure known as TS is being utilized in the state "is utterly without support in the record and [if it were being used] unquestionably outside the bounds of accepted medical practice."
101. Vacco v. Quill, 521 U.S. at 808 n.11.
102. See id., at 957 (the PDE "cannot justify the withdrawal of food and water component" of TS).
103. See 521 U.S. at 736-50. Justices Ginsburg and Breyer joined Justice O'Connor's concurring opinion.
104. 521 U.S. at 737.
105. 521 U.S. at 736-37.
106. Justice Ginsburg did not write a separate concurring opinion. Justice Breyer told us that he would not be adverse to considering whether there were a right like a "right to die with dignity." But he soon added that "the avoidance of severe physical pain (connected with death) would have to constitute an essential part" of any such right, and that, "as Justice O'Connor points out, the laws before us do not force a person to undergo that pain, " 521 U.S. at 791. Breyer did note that in a "very few" instances "the ineffectiveness of pain control medicines can mean not pain, but the need for sedation which can end in a coma." Id., at 791-792. But he did not discuss the acceptability of a process which combines sedation to the point of unconsciousness and the withholding of ANH.
107. See Y. Kamisar, "Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case, " Journal of Law & Criminology 88 (1998): 1121-1146, at 1124-1126, 1136.
108. Id. See also C. R. Sunstein, "The Right to Die, "Yale Law Journal 106 (1997): 1123-1163, at 1130: "The content of law depends not merely on the statute books but also on prosecutorial practice, and it is safe to say that in many cases prosecutors do not and will not deviate their limited resources to the most benign causes of voluntary active euthanasia."
109. Id., at 1126 (emphasis added). Noteworthy, too, is the proposal to achieve "a middle ground" by James Tulsky, Ann Alpers, and Bernard Lo. They would keep PAS a crime, but make it an affirmative defense to criminal charges if certain conditions were satisfied. This proposal is discussed at some length, but ultimately rejected in Kamisar, supra note 171, at 1138-1141.
110. The argument for formally prohibiting PAS/AVE, but allowing the practice to take place in extraordinary cases is not as inconsistent as it may appear at first blush. The argument is similar to the one made for refusing to carve out any formal or official exception to the prohibition against torture: A refusal to acknowledge officially that we should "balance" the reluctance to resort to torture against other interests is bound to strengthen the presumption against torture and increase the likelihood that it will only take place in the rarest and most extraordinary instances. See the discussion in G. Calabresi, Ideals, Beliefs, Attitudes, and the Law (Syracuse: Syracuse University Press, 1985): at 167, n.240. Moreover, the availability of informal practice in the most compelling cases is likely to relieve some of the pressure for legalizing or constitutionally protecting some forms of PAS/AVE. See Sunstein, supra note 173, at 1130.
111. Letter from the late Harold Leventhal, Judge of the U.S. Court of Appeals for the District of Columbia Circuit, to Professor Yale Kamisar, May 18, 1978, on file in the Bentley Historical Library, University of Michigan and with the guest editor of this symposium issue, Robert M. Sade. Judge Leventhal was responding to criticism of the reasoning of the New Jersey Supreme Court in In re Quinlan, 355 A 2d. 647 (1976).