The Volokh Conspiracy - 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.

	[Eugene Volokh, March 8, 2007 at 12:00pm] Trackbacks 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.