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Slippery Slopes and Euthanasia:

Prof. Raymond Tallis had an interesting review of (now Judge) Neil Gorsuch's The Future of Assisted Suicide and Euthanasia in the 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 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 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.

Kevin P. (mail):
Here is another point on the slippery slope:
Doctor accused of drugging dying man to get organs
3.8.2007 1:28pm
Mark Field (mail):
To me, one of the stronger arguments in favor of a law with formal requirements is that it would replace the current system in which euthanasia and assisted suicide happen based on the subjective judgment calls of patient, family and nursing staff.
3.8.2007 1:35pm
randal (mail):
Everything is a 'slippery slope' these days. We need a new term for what 'slippery slope' used to mean.

It used to mean: an argument that an opponent's position inevitably, through logical extension would lead to an undesirable conclusion.

Now it seems to mean: an argument that an opponent's position isn't as extreme as it could be, and somone might come along later with a more extreme position, so we should reject the moderate position in order not to give any ground to extremists.

Anyone using the phrase 'slippery slope' in the latter sense is, of course, retarded. Unfortunatley, it appears that most people using it these days are retarded.

Any ideas for a new phrase to embody the former meaning of 'slippery slope'?
3.8.2007 1:49pm
Yankev (mail):
Any ideas for a new phrase to replace the term "retarded" when referring to an argument that one deems obtuse?

On the other hand, it is clear that Professor Tallis is a caring and compassionate fellow. To demand that he employ intellectual honesty and rigorous analysis smacks of insensitivity to those he is trying to help.

For shame, Professor V: Prof. Tallis feels the pain of those who want to end their lives; how can we be so callous as to add to that pain by finding fault with his arguments?
3.8.2007 1:56pm
DaveN (mail):
Randal: How about simply using the word "inevitable" or "inevitably" to replace "slippery slope?" It is one fewer word, is much more precise, and does away with a cliche.

On the substantive issue, end of life issues are difficult and heart-wrenching. A law narrowly crafted to deal with people in those situations makes better sense than the hodgepodge Mark Field describes.

Of course, even with such a law the question becomes who besides the suffering person is entitled to make such a decision, particularly if the suffering person is either legally or mentally incompetent?

In a sense this reminds me of the question often found on the Multistate Bar Exam about the person who is in indescribable pain and begs a loved one to kill him because the pain medication is not working. The person in pain begs and begs, the loved one refuses repeatedly. Ultimately, the loved one gives in and kills the suffering person. The Multistate question is: What is the loved one guilty of? The Answer: Murder. Why? Because it's the bar exam.

(Even after 16 years of practicing law, I remember Charles Whitebread's Barbri comments on the subject)
3.8.2007 2:10pm
JunkYardLawDog (mail):
Does unbearable sufferring include mental suffering not in combination with unbearable physical suffering? If unbearable mental suffering is sufficient without unbearable physical suffering than the logical extension of the argument would result in any person at any time for any reason could be put to sleep, just like a common dog or cat. For who can define unbearable mental suffering other than the person supposedly wanting to be put to sleep??

I love this guy Randal who gives a definition of slippery slope and then proceeds to declare that definition of slippery slope not a definition of slippery slope and further declares that anyone who doesn't agree with his RE-definition of slippery slope is a retard.

Is that what passes for logic in public schools these days?

Says the "Dog"
3.8.2007 2:12pm
Caliban Darklock (www):
I've always wondered why, if we have an inalienable right to the pursuit of happiness, we do not have the concomitant right to the AVOIDANCE of UNHAPPINESS. Clearly, the right to life means we have a right to resist or refuse death. The right to liberty means we have a right to resist or refuse groundless imprisonment. Doesn't the right to the pursuit of happiness mean we have a right to actively avoid unhappiness, and that in so doing we have a right to waive either or both of our other rights?
3.8.2007 2:21pm
Duffy Pratt (mail):
Randal:

Maybe the definition of slippery slope just slid along its own slope. That has a tendency to happen in common usage. Think of what now passes for a tragedy.

Caliban:

An inalienable right is one that cannot be ceded to the sovereign. It would follow that it cannot be waived. I'm not saying that I buy into the whole "inalienable rights" rhetoric. It's pretty clear that, if you are given due process, then the government can do whatever it wants with your inalienable rights, much as GeorgeIII did. But I don't think you can reasonably get to a right to assisted suicide from the rights Jefferson declared "self-evident."
3.8.2007 2:43pm
Adeez (mail):
Caliban Darklock, that name is unforgettable, so I must say this is the second time I am in agreement with your point.

For those of us here who are strictly libertarian (whatever that means), what right does the government have criminalizing suicide? What concern is it of the government if someone wants to kill him/herself?

Assisted suicide, in instances where the sufferer clearly expressed a wish to end suffering, should likewise be perfectly legal. What is a more personal decision affecting one's own freedom than the choice to end one's own life?
3.8.2007 2:46pm
CrosbyBird:
For those of us here who are strictly libertarian (whatever that means), what right does the government have criminalizing suicide? What concern is it of the government if someone wants to kill him/herself?

I think the primary concern is that people will be "assisted" into making the decision to die, particularly when under duress from physical or emotional pain that makes them incapable of true consent. It's especially troublesome if the "assistant" stands to gain from the person's death, either in a positive (inheritance) way or a negative (no more time/money spent in caring) way.

Probably the worst pain I've ever experienced in my life was right before my appendectomy (it was definitely worse than a broken ankle). Not just the pain but the discomfort and nausea. That type of pain and discomfort over a prolonged period of time is quite capable of affecting a person's judgment so severely that they are no longer making a rational decision.

Don't get me wrong -- I'm pro-euthanasia. But this is the most compelling non-euthanasia argument I can imagine.
3.8.2007 3:02pm
Adeez (mail):
CrosbyBird: good response. I heard appendicitis, passing kidney stones, and giving birth are three of the worst pains in the world. Thankfully I've never experienced any of these.

Anyway, I have a follow-up. You said the pain was virtually unbearable. But, did you ask anyone to take you out of your misery? I'm genuinely interested b/c it sheds some light on the issue. If you asked to be "put out" and now realize what an error that was, then that'd support the non-euthanasia argument. But if not, I think that adds further weight to people's decisions to end their own lives.
3.8.2007 3:21pm
Yankev (mail):

Don't get me wrong -- I'm pro-euthanasia. But this is the most compelling non-euthanasia argument I can imagine.



Here's another. An investigation into legalized euthanasia a few years ago in the Netherlands found that it was not uncommon for doctors to make euthanasia decisions on behalf of their patients, without consulting the patient or his family. If the doctor determined the patient's life was not living, the doctor simply euthanized the patient. This used to be called murder, and not just on the bar exam.
3.8.2007 3:23pm
CrosbyBird:
Anyway, I have a follow-up. You said the pain was virtually unbearable. But, did you ask anyone to take you out of your misery? I'm genuinely interested b/c it sheds some light on the issue. If you asked to be "put out" and now realize what an error that was, then that'd support the non-euthanasia argument. But if not, I think that adds further weight to people's decisions to end their own lives.

I was fortunate enough to rush to the hospital and get morphine to take the edge off of the pain within a few hours. I was there early enough that I wasn't even registering with high white blood cell count (which delayed my surgery a few hours). I do remember lying on the floor at one point and saying I wanted to die. I can only guess what I'd be begging family to do for me if it was days into weeks into months of that pain.

If the doctor determined the patient's life was not living, the doctor simply euthanized the patient.

This is a terrible thing, but not IMO, a compelling argument against allowing euthanasia with consent. We can have boxing without decriminalizing assault.

This highlights how important living wills are; there is no stronger argument than one that comes from the actual person, at a time when there is little question of duress.
3.8.2007 3:36pm
;:
"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.'"

The act/omission distinction is morally superfluous? So we're all mass-child-murderers because of what happens in Africa every day? Or is it just that we keep African children out of sight and out of mind--as opposed to 'calculating" a moral bargain to ignore them--that makes it ok? I find the disregard of positive-negative liberty or act-omission distinctions shocking for libertarians to accept, even if the wider argument fights government regulation.

In the case of euthanasia the "calculation" might be the same, but not the action justified by the calculation. Actively killing (assisted suicide) someone is wrong. Letting someone die is usually not, and indeed in many cases it is usually unavoidable. Ought implies can, and no one can keep someone alive forever. But we can avoid killing each other.

Now, I personally think withholding something basic, such as food, when you've been caring for someone previously is probably barbaric and painful enough to be banned, despite what I've just said. But declining to continue expensive, painful, invasive, and extraordinary measures (such as breathing tubes, in some situations) is not necessarily wrong.

The difference I think lies in whether you are treating the extraordinary treatment as too expensive, painful, and inevitably failed and futile, or whether you are considering the *person* too expensive, pained, and failed to continue living. One can rightly say a treatment is not worth it without saying that we (and the person in question) would rather have the person dead and are willing to take active steps to kill him, which is the case in assisted suicide. It's just that the treatment, beyond basic services such as food, is too much to bear.

For an extremely poor person, it may be that supplying food might fall under that "extraordinary measure" category, but I can't imagine that happening in the U.S. or Western Europe.
3.8.2007 3:44pm
Michelle Dulak Thomson (mail):
CrosbyBird,

This is a terrible thing, but not IMO, a compelling argument against allowing euthanasia with consent. We can have boxing without decriminalizing assault.

Yes, but what the Netherlands ostensibly has is "euthanasia with consent." The point is that it didn't stop there; indeed, it barely even started there, as it took no time at all for the "consent" part to get quietly shelved in cases of, e.g., infants with birth defects.
3.8.2007 3:50pm
Adeez (mail):
With respect to Yankev &Michelle Dulak Thomson: I did not read this study and know nothing about it. But is the fear you cite of doctors killing patients w/reckless abandon? I simply can't accept that doctors in Holland or here would suddenly start murdering patients if euthanasia was legal.

As CrosbyBird mentioned, this report (as relayed by Yankev) states that doctors did not obtain patient consent. As such, it's not a compelling argument for criminalizing euthanasia b/c we could "just" ensure that consent is given.
3.8.2007 3:58pm
CrosbyBird:
Actively killing (assisted suicide) someone is wrong.

I can speak from personal experience here. My stepfather was dying, slowly and painfully, from end-stage renal disease. He required dialysis to go on living, but at the end, he was trapped in not only his bed, but a body so shattered that even with limited diet and medicines, the most simple acts were painful and prolonged.

He had the option to refuse dialysis, which he took advantage of, and was waiting to die. We called home hospice and kept vigil while his body filled with fluid. They gave him morphine for his pain and he slipped into a coma, then died.

In having the option to refuse treatment, he was lucky, because he had a way to end the suffering. There was no hope of recovery, mind you, just more months of being carried down the stairs and strapped to a machine for hours four times a week, so that he might live a shell of a life until something else failed and he died in a hospital.

If there was a dog or cat in such pain, with no hope for improvement, we would consider it cruelty not to end its suffering. But some people think a human being should be denied the peace we so clearly understand an animal deserves.

It's just that the treatment, beyond basic services such as food, is too much to bear.

Sometimes the disease is too much to bear. I cannot understand why one person, not experiencing such suffering, would deny another such peace.
3.8.2007 4:01pm
Michelle Dulak Thomson (mail):
Adeez,

Again, the Netherlands' guidelines regarding euthanasia (IIRC the state did not explicitly legalize the practice, rather decriminalized it subject to certain rules) do require consent of the patient. The point is that in practice, "consent" was taken as a formality that it would be nice to have, but that one could do without if it was obvious to the doctor that it would be better for all concerned if the patient died. "All concerned," I should make clear, including the patient him/herself — no one accuses Dutch physicians of deliberately acting against what they perceive to be their patients' best interests. But they're the ones doing the perceiving and the judging of best interests in these cases, not the patients, and as I remember the study, involuntary euthanasia was happening alarmingly often, by the physicians' own admission.
3.8.2007 4:15pm
Caliban Darklock (www):
@ Adeez:
> this is the second time I am in
> agreement with your point.

What? You agree with me? Out loud? In public? That's never happened before. I'm beginning to question my place in the universe. Damn you! This existential crisis is ALL YOUR FAULT!
3.8.2007 4:30pm
Latinist:
I think the phrase "slippery slope" is a useful one, as long as we remember that it has two parts. An issue is "slippery" because it's easy to move along the continuum, and there aren't clearly defined markers where it's easy to remain stopped. But an issue is a "slope" only if it's much easier to move in one direction than another.

Euthanasia might be a slippery issue without being a sloped one: anti-euthanasia types are always worried about nightmare situations where doctors kill healthy patients, but I find myself also worried about the opposite nightmare, where miserable, incurable patients are kept alive for years and years against their wills.

And what's more, anti-euthanasia arguments don't seem to really accept their own "slippery slope" claims. If you're worried that the slope you're on is too slippery to avoid sliding down, the solution isn't to move a few steps farther up, but to get off the slope entirely. If euthanasia is such a slippery slope, we shouldn't take ANY steps down it: we should be up on the plateau, where we keep all patients alive as long as possible, no matter what. After all, once we allow people to refuse unpleasant treatments, that'll soon be extended to allowing them to cut off life support, then allowing their families, then. . . . And yet almost no one (I think) favors the really extreme, stable-plateau position.
3.8.2007 4:44pm
Thorley Winston (mail) (www):
Here's another. An investigation into legalized euthanasia a few years ago in the Netherlands found that it was not uncommon for doctors to make euthanasia decisions on behalf of their patients, without consulting the patient or his family. If the doctor determined the patient's life was not living, the doctor simply euthanized the patient. This used to be called murder, and not just on the bar exam.


I remember reading about it an article in US News which was cited in my bioethics text. The study found that about 12% of the euthanasia cases in the Netherlands were "involuntary" in which the doctor killed the patient without getting the "consent" of patient or their family usually because the doctor thought it would be "compassionate" to spare them from having to make the decision.
3.8.2007 5:30pm
Michelle Dulak Thomson (mail):
Thorley Winston,

The study found that about 12% of the euthanasia cases in the Netherlands were "involuntary" in which the doctor killed the patient without getting the "consent" of patient or their family usually because the doctor thought it would be "compassionate" to spare them from having to make the decision.

That's basically what I remember reading as well. And this is with a protocol that IIRC involves the patient requesting death more than once, and a second physician certifying that the patient's pain is irremediable and confirming that s/he is terminally ill. Oh, and children under twelve aren't supposed to come under the directive at all, though evidently euthanasia of "defective" infants is routine practice.
3.8.2007 6:18pm
R:
randal:

I think "slippery slope" means whatever Eugene says it means. Go to Wikipedia and look it up if you don't believe me.
3.8.2007 8:06pm
LTEC (mail) (www):
1) Although I am a strong supporter of euthanasia, I think it obvious that the acceptance of some of it will lead to the acceptance of more of it, and that this will in turn lead to a state of affairs that even I will find unfortunate. For example, if we permit very ill people to choose to die, then there will unavoidably be pressure on very ill people to do just that. If my neighbor is allowed to enroll his child in hockey and piano and acting lessons, then there will be pressure on me to do the same. Freedom for one person entails social pressure on others. But this is no excuse to deny us freedom, especially the freedom to choose to die.

2) If I kill someone who is not able to object, and (in the best opinion of medical science) will never be in a position to be able to object, then this death is neither voluntary nor involuntary.
3.8.2007 8:35pm
JohnAnnArbor:

An investigation into legalized euthanasia a few years ago in the Netherlands found that it was not uncommon for doctors to make euthanasia decisions on behalf of their patients, without consulting the patient or his family. If the doctor determined the patient's life was not living, the doctor simply euthanized the patient. This used to be called murder, and not just on the bar exam.

I remember reading (no I don't have the cite handy) about a case where a doctor was hopeful for a gravely ill Dutch patient; he left for the day planning a new course of treatment. The next day, the patient was dead. When the doctor challenged the other docter who had killed the patient, he just shrugged and said "I needed the bed."

Apparently they learned well from the occupation a few decades back.
3.8.2007 8:38pm
Eli Rabett (www):
There will always be a slope because the variety of human conditions is too large and you can always find intermediate cases between those you think should be allowed euthenasia and those where it should not.
3.8.2007 9:03pm
Gordo:
We don't need to look at the Netherlands. The "laboratory of the states" has resulted in Oregon providing a decade's worth of data, with more to come if the "states rights" Republicans don't regain enough seats to end this particular laboratory.
3.8.2007 9:38pm
Ricardo (mail):
In the case of euthanasia the "calculation" might be the same, but not the action justified by the calculation. Actively killing (assisted suicide) someone is wrong. Letting someone die is usually not, and indeed in many cases it is usually unavoidable. Ought implies can, and no one can keep someone alive forever. But we can avoid killing each other.

I agree in general there is a moral distinction between killing and letting die but in the case of a doctor caring for a patient, the line is extremely murky. For instance, what is the relevant difference between switching off a ventilator that is assisting someone with breathing and injecting that person with drugs to cause certain muscles to involuntarily contract and stop breathing? Physically, both actions accomplish exactly the same end through very similar means.

I notice that the wishes of the patient don't factor into your analysis, either. Is it really your position that expensive treatment can be denied even if a patient wants it but no amount of pleading can allow assisted suicide?

Moreover, since you are arguing from the principle of double effect, I would not concede that the ultimate end in assisted suicide is to end life. It is rather to eliminate unbearable pain by any means necessary. I don't think this is any more quibbling than the objections you have raised. The same argument applies for why it is not wrong to kill someone in self-defense: the end is not to end life but to stop a severe threat.
3.9.2007 12:25am
lady:

I remain unconvinced that the decision to end ones life due to prolonged and interminable suffering can be likened, in any meaningful sense, to piano lessons. After all, the human impulse to survive--to live--seems to me to be strong enough to withstand "social pressures" to die. I cant imagine anyone basing such a difficult (not to mention permanent) decision as dying on peer pressure.

The right to die, after all, is not a positive or negative, as has been characterized in many posts. Issues like right to life and abortion have both been misrepresented in this respect. Abortion, for example, is not something that anyone "wants" to have, in any meaningful sense of the word. Individuals want the right to DECIDE to have the process, which is physically invasive and psychologically traumatic. People dont want to have abortions. They feel they must have them. Similarly, the right to die is not a happy event, objectively speaking. It is only so based on the unhappy circumstance of pain and suffering.

So I dont really follow the "peer pressure" argument, though I would fear the potentially powerful position of doctors and family members.
3.12.2007 12:43pm