Posted by Eugene Volokh:
Slippery Slopes and Euthanasia:
http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#1173376823
Prof. Raymond Tallis had an interesting review of [1](now Judge) Neil
Gorsuch's The Future of Assisted Suicide and Euthanasia in the [2]Jan.
26, 2007 Times Literary Supplement ($). Prof. Tallis disagreed with
Judge Gorsuch's opposition to euthanasia, and in the process dismissed
Gorsuch's worry about slippery slopes. There's no need to worry, he
reasoned, that allowing euthanasia would "have an adverse knock-on
effect [i.e., indirect effect] or place vulnerable people at risk":
An appropriately framed law ... would seem to make sure that
assisted dying did not fall into that category [of laws that have
such an effect]. After all, the wish of a dying person in
intolerable pain would seem to be objectively reasonable. This
latter criterion prohibits the extension of assisted dying, beyond
the terminally ill suffering unbearably, to any competent adult who
is merely fed up with life or feels her life is worthless. And the
appeal to autonomy forbids the extension of assisted dying to
non-competent individuals with or without their prior consent --
the first port of call according to those who invoke the
slippery-slope argument.
So, the argument goes, the proposal Prof. Tallis endorses is narrow,
and slippage-proof: Its careful limitations "prohibit[] the extension
of assisted dying, beyond the terminally ill suffering unbearably, to
any competent adult who ... feels her life is worthless." Moreover,
the firm language of "prohibits the extension" suggests that assisted
dying also wouldn't be extended beyond the terminally ill suffering
unbearably to other places on the continuum between the terminally ill
and the merely very unhappy (since that to would be "the extension of
assisted dying, beyond the terminally ill suffering unberably" to
others). And later on Prof. Tallis makes clear that he sees
"terminally ill" in the "appropriately framed law" that he endorses
(the Joffe Bill) as involving people who are in "the last few days or
weeks of ... life."
But here is what Prof. Tallis goes on to say on the next page, when
criticizing Gorsuch's "inviolability of life" principle:
Unfortunately, [Gorsuch's proposed principle] makes the withdrawal
of life-preserving treatment as problematic as assisted dying.
[Gorsuch] reexamines [In] re B, the case of a mentally competent
woman who had become paralysed from the neck down. She requested
the ventilator on which she was dependent to be switched off -- an
act that would have brought about her immediate death. Neil Gorsuch
would not allow her expressed judgement that her life is not worth
living to carry weight in law.
And couple that with the preceding page, where Prof. Tallis endorses
the view that "the act/omission distinction [is] 'morally
superfluous,'" because turning off a ventilator or stopping kidney
dialysis involves an aggrement that "[the patient's] death is a price
worth paying for ending [the patient's suffering" -- which is exactly
the calculation that is made, when at your considered and persistent
request, I assist you to take a lethal conoction of drugs. Indeed, the
former Surgeon General Everett Koop described such cases as
'euthanasia by omission.'"
So Prof. Tallis seems to think that B in In re B (2 AER 449 (2002)),
who was not terminally ill -- certainly not in the sense of being in
"the last few days or weeks of ... life" -- is entitled to end her
life by demanding that her treatment stop. He also concludes that
stopping treatment is equivalent to active euthanasia. It follows,
then, that he would endorse active euthanasia even for people who are
not "terminally ill" in the Joffe Bill's sense; and he faults Gorsuch,
it seems, for taking the contrary view.
Yet what then happens to his assurance that the Joffe Bill's
"objective reasonableness" requirement "prohibits the extension of
assisted dying, beyond the terminally ill suffering unbearably, to any
competent adult who is merely fed up with life or feels her life is
worthless"? Perhaps the requirement might prohibit the extension of
assisted dying to the merely angst-ridden -- though how can we be
entirely confident that a court would resist a depressed person's
judgment that her mental suffering is unbearable (see [3]the Dutch
case cited on p. 1058 of this article, where the Dutch court did not
resist this judgment)? But the requirement does not prohibit slippage
beyond the terminally ill to those who are paralyzed: Prof. Tallis
himself is faulting Gorsuch for not heeding B's desires, which
suggests that Prof. Tallis would see B's desire for death (whether
termination of life support or active assisted suicide seems
equivalent to Prof. Tallis) as objectively reasonable. So already some
extension beyond the terminally ill suffering unbearably is endorsed
in the very article that seems to dismiss the risk of such extension.
Now it may well be that assisted suicide for the terminally ill should
be allowed, and that this should indeed be extended to those who are
paralyzed and unable to live off life support. It may be that this
should even be extended to any competent adult who chooses this. These
are tough questions to which I have no firm answer. But the risk of
slippage in this area -- which Gorsuch's book describes carefully, and
which I also briefly note [4]on pp. 1057-58 of this article -- ought
not, I think, be lightly ignored. Seemingly narrow bills that have
criteria that supposedly "prohibit[] the extension of assisted dying"
may well lead to broader bills, or even to broader interpretations of
the criteria. And that is made especially clear by the arguments of
some of the bills' supporters.
References
1. http://volokh.com/posts/1154561708.shtml
2. http://tls.timesonline.co.uk/article/0,,25373-2576862,00.html
3. http://www.law.ucla.edu/volokh/slippery.pdf
4. http://www.law.ucla.edu/volokh/slippery.pdf
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