The Future of Assisted Suicide and Euthanasia, Neil M. Gorsuch
After assessing the strengths and weaknesses of arguments for assisted suicide and euthanasia, Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong. At the same time, the argument Gorsuch develops leaves wide latitude for individual patient autonomy and the refusal of unwanted medical treatment and life-sustaining care, permitting intervention only in cases where an intention to kill is present.
http://press.princeton.edu/titles/8317.html
TABLE OF CONTENTS:
Acknowledgments xi
Chapter 1: Introduction 1
Chapter 2: The Glucksberg and Quill Controversies: The Judiciary’s (Non)Resolution of the Assisted Suicide Debate 8
2.1 The Washington Due Process Litigation 8
2.2 The New York Equal Protection Litigation 11
2.3 The Final Battle? The Supreme Court Does (and Does Not) Decide 14
2.4 The Aftermath of Glucksberg and Quill 17
Chapter 3: The Debate over History 19
3.1 Which History? 20
3.2 The Project 22
3.3 The Ancients 22
3.4 Early Christian History 25
3.5 English Common Law 28
3.6 Colonial American Experience 29
3.7 The Modern Consensus on Suicide and Its Assistance 30
3.8 The Euthanasia Movement 33
3.9 Prevailing Law Today 43
3.10 Conclusion 46
Chapter 4: Arguments from Fairness and Equal Protection: If a Right to Refuse, Then a Right to Assisted Suicide? 48
4.1 An Act /Omission Distinction? 49
4.2 A Causation-Based Distinction? 51
4.3 Toward an Intent-Based Distinction: The Insight of the Double Effect Principle 53
4.4 Some (Initial) Arguments against Double Effect: Conflating Intent and Foresight 57
4.5 Distinguishing Suicide, Assisted Suicide, and Euthanasia from the Right to Refuse: Intending versus Foreseeing Death 62
4.6 Some (Additional) Criticisms of Double Effect as Applied to the Assisted Suicide Debate 69
4.7 Conclusion 75
Chapter 5: Casey and Cruzan: Do They Intimate a Right to Assisted Suicide and Euthanasia? 76
5.1 The “Reasoned Judgment” Test and Its Critics 76
5.2 Casey-Based Arguments 79
5.3 Cruzan-Based Arguments 82
5.4 Conclusion 84
Chapter 6: Autonomy Theory’s Implications for the Debate over Assisted Suicide and Euthanasia 86
6.1 The Autonomy Debate 86
6.2 The Neutralist View of Autonomy 87
6.3 The Harm Principle’s Competing View 89
6.4 Perfectionism and Autonomy 90
6.5 The Implications of Autonomy Theory for the Assisted Suicide and Euthanasia Debate 93
Chapter 7: Legalization and the Law of Unintended Consequences: Utilitarian Arguments for Legalization 102
7.1 The Dutch Experience: “Virtually Abuse-Free”? 103
7.2 The Oregon Experience: An “All-Too Conscientious” Statutory Regime? 115
7.3 Legalization and Other Unintended Consequences 125
7.4 Decriminalization as a “Costless” Enterprise? 132
7.5 How to “Balance” the Costs and Benefits of Legalization? 138
7.6 Conclusion 141
Chapter 8: Two Test Cases: Posner and Epstein 143
8.1 Posner’s Utilitarian Case for Assisted Suicide 143
8.2 Posner’s and Epstein’s Libertarian Case for Assisted Suicide 152
Chapter 9: An Argument against Legalization 157
9.1 The Inviolability of Human Life 157
9.2 What Does It Mean to Respect Human Life as a Basic Good? 163
9.3 Some Objections 167
9.4 The Future of the Oregon Experiment? 176
Chapter 10: Toward a Consistent End-of-Life Ethic: The “Right to Refuse” Care for Competent and Incompetent Patients 181
10.1 The Inviolability of Life and the “Right to Refuse” for Competent Persons 182
10.2 The “Right to Refuse” and Infant Patients 191
10.3 The “Right to Refuse” and Incompetent Adult Patients 204
10.4 Conclusions 215
Epilogue 219
Appendix A: Certain American Statutory Laws Banning or Disapproving of Assisted Suicide 227
Appendix B: Statistical Calculations 229
Notes 231
Bibliography 285
Index 303
Over the past decade, the Supreme Court has struck down an unprecedented number of federal statutes, most notably several designed to protect the civil rights of Americans, as beyond Congress’s power under Section 5 of the Fourteenth Amendment, for example, Flores V. City of Boerne, 117 S. Ct. 2157 (1997), Kimel v Florida Board of Regents, 120 S. Ct. 631 (2000), and Board of Trustees v. Garrett, 19 S. Ct. 2240 (1999). The Supreme Court has also recently struck down statutes as being outside the authority granted to Congress by the Commerce Clause, such as in the case of U.S. v. Lopez, 115 S. Ct. 1624 ((1995) or U.S. v. Morrison, 120 S. Ct. 1740 (2000). I am hopeful that the Court’s recent decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005) signals a turn away from the diminishing of the authority of Congress to legislate to protect the American people.
In light of your advocacy for judicial restraint and deference to Congress, what is your understanding of the scope of congressional power under Article I of the Constitution, in particular, the Commerce Clause, and under Section 5 of the Fourteenth Amendment?
Response: As the question indicates, on the of the Court’s most recent pronouncements with respect to the Commerce Clause came last year in Gonzales v. Raich. There the Court made clear that “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established.” The precedents of the Supreme Court addressing the Fourteenth Amendment have likewise repeatedly demonstrated that Congress’s authority to enact legislation pursuant to Section 5 is very broad. If confirmed, I would enforce these Supreme Court rulings fully in cases that may come before me, applying the same judicial restraint and deference to congressional judgement in these arenas as I would in any other.
2006 confirmation hearing, page 42-43
http://online.wsj.com/public/resources/documents/2016_0131_gorsuch_confirmation.pdf