Euthanasia Jurisprudence and Physician-Assisted Suicide: What Did Glucksberg Teach US‪?‬

While few in number, my claims in this paper move from the modest to the questionable. The focus of this paper is primarily on the theory of law as it surrounds the doctor's role in hastening the death of those who are terminally ill and wish to die. The author of this paper contends that the euthanasia jurisprudence emerging from the twin physician-assisted suicide cases originating in the Second and Ninth Circuit Courts is radical, less than honestly conceived or possibly confused, and based on a little-noticed strategy of "judicial dodge ball" this author refers to as "narrow focusing." Until the legal landscape is cleared, it will be impossible to forge a stable, realistic and coherent public policy that permits death with dignity for many. To set the stage for the main argument, some general observations about the context out of which euthanasia jurisprudence emerges are in order. The first five points are obvious; the ones that follow are not as obvious. First, it is impossible to escape the need for settled public policy in the area of law involving the physician's or health practitioner's role in managing terminally ill patients and providing assistance in decisions involving dying and ultimately death. Given that almost all of medicine is practiced in institutional settings, individuals are expected, first and foremost, to obey the law--public law. And we have learned that the courts and state legislatures are not likely to tolerate loose cannons (whether kind and compassionate like Dr. Timothy Quill or distant and dispassionate like Dr. Jack Kevorkian) unilaterally making determinations of death and then hastening its arrival through physician-assisted suicide or voluntary, active euthanasia.