The human right to die with dignity: a policy-oriented essay.
In an arena nearly outside of legal attention, hospice(1) already affords such a right and each of the latter possibilities to terminally ill patients. With or without hospice, a caring family and responsible, caring health professionals can provide the same experience for the dying person and their family or friends. There are undoubtedly other institutional and group arrangements that can also suffice. In any event, human rights law does not address the hospice experience directly, nor indeed death or dying. And hospice, although quite conforming to human rights values, is not global, does not reach far enough yet, and does not reach even in the direction of all who choose death or who are dying--nor do I imagine that it should.
I. THE GENERAL PROBLEM: CONTEXTUAL COMPLEXITIES AND OVERREACHING DOMESTIC
Laws, however, (although here not human rights laws) intrude rather directly in circumstances outside the hospice experience and, in my opinion, they pose significant affronts to what should be recognized more generally as a human right to die with dignity. More particularly, I have in mind domestic laws addressing an anathema for hospice,(2) and those prohibiting all aspects of potentially complex processes of suicide and/or assisted-suicide and even assisted-death. Do such laws serve human dignity? Do they serve a right to die with dignity? Do they even address a choice that the law should judge?
A. Contexual Complexities
The complexities of context to which such general legal prohibitions might relate are enormous, and yet, such laws often intrude with a simplistic, broad, even antihuman prohibition of the ending of one's own life or the assistance of others in ending life. A series of introductory questions demonstrates merely some of these complexities. What, in fact, is prohibited suicide or assisted-suicide? Are distinctions with respect to conduct such as active versus passive (for example, act or omission, "killing" or "letting die")(3) realistic? Is heroic self-endangerment or self-extinction "suicide"? Are certain actions in war "suicide"? When law has failed to provide adequate health care and alternatives, and there is suffering and indignity accompanying disabilities or disease, is choice to be considered differently? Indeed, is choice legally different for those who are terminally ill, just "ill," not ill at all, for an elderly couple abandoned by society if not their children, when fragile lives seem broken?
Who should make such choices--the individual, family members, health professionals, legislators, or lawyers and judges? Should they be made secretly or openly, with or without evident consent of the individual? Should we test or differentiate on the basis of whether consent is informed, uninformed, misinformed, competent, incompetent, or not really possible (for example, where the individual is "experiencing" a quality of life perhaps appropriately referred to as "vegetative state")? Should we consider whether the consent comes from the seemingly rational or irrational, from those with tangled dreams, from the very young or very old? Should problems related to the development and allocation of material resources or medical appropriateness make a difference?(4) And whose dignity, needs, demands, interests, and concerns are most important--those of the dying person, of close survivors, or of society more generally? A law or legal decision unmindful of relevant policies at stake and features of context such as those noted above is altogether too simplistic, too dangerous, too inhuman. What pain, what consequences does such a law ensure? Must choice continue outside such law? Must we die alone if we prefer to die with others and in dignity?
Most assuredly, legal decision should not be blind to context. To further illustrate merely one aspect of the general problem posed, it is useful to quote Professor Leslie Bender, who is opposed to domestic laws prohibiting euthanasia in reckless disregard of human dignity:
we have to endure a rule that deters compassionate physicians from providing competent, suffering patients requested dignity, security and control over their dying processes. Similarly, we prohibit family members from mercifully ending the suffering of loved ones or create high legal barriers to families making termination of life-support decisions for incompetent loved ones based on our fear of bad families. The social and ethical price of gearing our laws and rules to the bad actors is significant suffering and indignity to innocent, humane people because of unnecessary restraints on their freedom to act out of care in a manner responsive to particularized circumstances of need.(5)
B. Overreaching Domestic Laws and Competing Interests at Stake
Instead of a context-specific approach to such problems, many domestic laws create the possibility of prosecution of physicians, other health care givers, and family members for murder, manslaughter, aiding and abetting such crimes, solicitation of or conspiracy to commit crimes, assault, or aiding, abetting or advising suicide.(6) A treatise series on US law recognizes, for example, that although suicide was a felony at common law, and although no state statute makes a successful suicide as such a crime, a minority of states still prohibit attempted suicide. Furthermore, state laws have "retained culpability for aiding, abetting, and advising suicide"(7)--some as murder, some as manslaughter, "[b]ut the predominant statutory scheme ... is to create a sui generis crime of aiding and abetting suicide" and thus to retain criminal liability, although the trend is "to mitigate the punishment for assisting a suicide."(8) The same treatise notes cases of so-called "suicide-pacts" where the survivor, when death has occurred, "is guilty of murder of the one who dies," and "[t]he fact that the deceased consented will not remove the case from this grade of felonious homicide."(9)
Elsewhere, the treatise series adds with respect to claims to a new "right to die":
consent of the deceased is no excuse ... [Further, the] fact that the motive of the slayer is unselfish or, according to moral standards, what might be termed "good," is not ordinarily recognized as a defense. Thus, the fact that life is taken to relieve one of suffering does not in law justify the act. It is clearly the rule that the fact that the killing was to relieve one of suffering, present or prospective, or was done from other humanitarian motives, neither excuses the killing nor mitigates the offense.
However, the termination of extraordinary medical means of sustaining the life of a comatose patient, who has no chance of recovery, which termination will in all medical probability accelerate the patient's death, will result in no criminal liability since the ensuing death will then be expiration from existing natural causes. The same rule applies in the case of a patient whose natural faculties are not impaired.(10)
Despite the latter statement concerning comatose patients, state law punishing even such conduct is still possible.(11) As Chief Justice Rehnquist of the US Supreme Court wrote in 1990:
[The state has an] interest in the protection and preservation of human life ... Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to starve to death.(12)
In the same case, Justice Scalia warned: "American law has always accorded the State the power to prevent, by force if necessary, suicide--including suicide by refusing to take appropriate measures necessary to preserve one's own life."(13) Additionally, there may be civil liability or other forms of civil sanction for many such actions (for example, loss of insurance benefits,(14) or loss of inheritance by a survivor).(15)
To paraphrase Chief Justice Rehnquist, clearly many states have not remained neutral. Through the creation or acceptance of criminal or civil sanctions, states have imposed supposed community goals of preserving life (of any quality) and assuring majority-oriented religious or moral preferences,(16) whether or not such goals or sanctions are reasonably necessary, compelling, substantially furthered and important, or even rational in most contexts, or in a particular case or cluster of circumstances.(17) In certain instances, other or related interests might include a supposed need to avoid "approving" suicide by decriminalization,(18) which can be a far more important need to protect the true "consent" and dignity of suicidal individuals,(19) and a need in certain contexts to protect survivors from tragic consequences.(20) Nonetheless, even such goals or interests are not rationally or adequately furthered in all instances by laws broadly and flatly prohibiting or punishing any form of suicide, assisted-suicide, or assisted-death. Additionally, one might question whether each goal is preferable, actually widely-shared, or should prevail over other interests at stake--such as the interests of individuals (which often seem more compelling) in free choice (including liberty, autonomy, or self-determination),(21) dignity, quality of life,(22) integrity, privacy,(23) personal religious or moral beliefs,(24) family concerns or rights,(25) agreement concerning the saving of family resources,(26) avoiding unjust or inhumane consequences, and so forth. Indeed, when there has been personal choice and when the quality and remainder of life are quite limited, and when the primary justification for criminal sanctions is the supposed need to protect majority-oriented morality, criminal law is at its worst. In such instances, the injustice and inhumanity necessarily furthered by inadequate consideration of competing interests reach toward oppression.
Nonetheless, it is evident that the community's interests in safety, public order, health, and related consequences for others can be sufficiently compelling to justify regulation of the manner and place of dying. For example, such interests undoubtedly would allow denial of a claim to commit suicide with a bomb in a crowded shopping mall. Additionally, they might be of sufficient magnitude to deny direct participation by certain persons--for example, young children (a circumstance implicating also the state's interests as parens patriae). However, they do not justify an absolute ban on the taking of one's life, nor an absolute ban on assistance by others. In constitutional parlance, one can also recognize that manner, place, and participation restrictions should at least be reasonable under the circumstances and, thus, reasonable with respect to impact or consequences concerning the various interests of the community, the dying person, and others.
With respect to death and dying and, more particularly, suicide, assisted-suicide, and assisted-death, is there additional guidance from international human rights law? Can one recognize a human right to die with dignity, and are there related rights that can usefully condition legal choice?
II. GENERAL INTERNATIONAL LEGAL POLICIES AT STAKE
Although there is no human right to die with dignity expressed as such in human rights instruments, there are several relevant and informing rights of a more general nature that are found in all of the major human rights instruments. Relevant, and potentially most important, is the general, fundamental, and enduring right of each person to human dignity, one that includes the right to live with dignity and thus to live the end of one's life, to die, with dignity. While mirroring the expectation contained in the preamble to the United Nation's Charter concerning the essential "dignity and worth of the human person," the preamble to the Universal Declaration of Human Rights also recognizes "the inherent dignity ... of all members of the human family."(27) In its first article, the Declaration proclaims similarly and without qualification that "[a]ll human beings are born free and equal in dignity and rights." Each person, the Declaration affirms, is to have respect and value, a right to human dignity.(28)
Perhaps reaffirming individual respect and value, Article 12 of the Universal Declaration recognizes an interrelated right of privacy. This right is clearly relevant to personal, sometimes intensely personal, choice about death and dying, although it is phrased as a freedom from "arbitrary interference with" one's privacy and is thus a qualified right.(29) Also potentially relevant are the broadly phrased human rights to "liberty" and "security of person" contained in Article 3. Although the same article states that "[e]veryone has the right to life," it is otherwise silent with respect to choice concerning the ending of one's life and yet that right is one expressly held by the individual, not the state.(30)
Also relevant in particular circumstances can be the right to be free from "torture" or "cruel, inhuman or degrading treatment" expressed in Article 5 of the Universal Declaration. This right need not be limited to public "treatment" or to treatment at the hands of the state.(31) Indeed, and relevant more generally, Article 1 recognizes (yet, as with any law, it cannot functionally guarantee) that all human beings "should act towards one another in a spirit of brotherhood." Besides a "right to social security," Article 22 recognizes the need for realization of "economic, social and cultural rights indispensable for" one's dignity. Article 25 adds the still too elusive right to "adequate...housing and medical care and necessary social services, and the right to security in the event of ... sickness, disability, ... [or] old age...." Further, Article 2 recognizes that "[e]veryone is entitled to all" such "rights and freedoms..., without distinction of any kind, such as ... [for example] social origin, property, birth or other status." It is evident therefore that one's status as a dying patient or terminally ill person is not a proper basis for the denial or deprivation of basic human rights.
The right to effective social and medical assistance is further clarified in Article 13 of the 1961 European Social Charter with the following obligation:
to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition.(32)
Such a right is also contained in Article 12 of the International Covenant on Economic, Social and Cultural Rights which recognizes "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" and the duty of state signatories to take needed steps "to achieve the full realization of this right," including "medical service and medical attention in the event of sickness."(33)
As noted, these general rights and freedoms are contained in each of the major human rights instruments, thus documenting persistent and wide-spread patterns of expectation relevant to the identification and clarification of normative content. Additionally, with respect to the right to life, Article 6 of the 1966 Covenant on Civil and Political Rights,(34) Article 2 of the European Convention on Human Rights,(35) and Article 4 of the American Convention on Human Rights(36) assure that such "shall be protected by law." The 1966 Covenant and the American Convention add that "[n]o one shall be arbitrarily deprived of his life,"(37) while the European Convention states far more broadly that "[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime...."(38) The American Convention adds that each person "has the right to have his life respected."(39) Article 5(1) of the American Convention also explicates the right to humane treatment with the declaration that "[e]very person has the right to have his physical, mental, and moral integrity respected." Similarly, Article 4 of the African Charter on Human and Peoples' Rights recognizes that "[e]very human being shall be entitled to respect for his life and the integrity of his person," adding that no one may be "arbitrarily deprived of this right."(40) As in the case of the Universal Declaration, the right to life recognized in each human rights treaty is that of the individual and none of the instruments prohibits choice concerning the ending of one's life.
What I find most relevant with respect to choice about the timing of death and dying, however, is the general and pivotal right of each person to human dignity. Such a right contains within it the need to respect personal choice, the dignity and worth or value of choice. Necessarily interconnected is the broad human right to "liberty." Such a right was recognizably involved, for example, in a case in the United States involving artificial feeding. While addressing the U.S. Constitution, Supreme Court Justice O'Connor aptly recognized that "our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination" and a state that forces "a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment."(41) She adds that "[a]ccordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water."(42) And if such a person is not competent but had earlier appointed (when competent) a proxy choicemaker (i.e., an assister), Justice O'Connor recognized that the state "may well be constitutionally required to protect the patient's liberty interest in refusing medical treatment."(43) Moreover, if one has a protected liberty to die in such ways, dignity and liberty might demand respect for a choice to die in other ways.(44)
Further, the right to human dignity necessarily includes a right to live with dignity, and thus, a right to end one's life in dignity--indeed, a right to not be compelled to live the remainder of life in indignity.(45) Consequently, when the quality of remaining life would reek of indignity and suffering, it is all the more appropriate to respect the dignity of personal choice. As Justice Brennan wrote in the same case:
For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a matter of extreme consequence. "In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve." Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 434, 497 N.E.2d 626, 635-636 (1986) (finding the subject of the proceeding "in a condition which [he] has indicated he would consider to be degrading and without human dignity" and holding that "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity").(46)
It is in such cases that one can recognize more clearly a necessary interface between the right to human dignity and the right to life. In context, many of the claims to a right to die with dignity actually reaffirm a more general commitment to life (including life shared, love, and humanity) and to the ending of one's life in dignity. In this sense, an affirmation of human dignity, its strength and grandeur, is an affirmation of the eternity of life. The interrelated right to a basic quality of life is reflected in these fundamental human rights and also, for example, in the rights to adequate food, health care, and shelter, recognized in Article 25 of the Universal Declaration.(47) Clearly, also, death is a part of life(48) and choice concerning life must necessarily include choice concerning the end and ending of life.
Interestingly, Justice O'Connor had also observed that "[a] seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures."(49) Surely in particular cases, such captivity might amount to violations of the right to be free from "cruel, inhuman or degrading treatment," if not "torture."(50) Similarly, and because captivity is contrary to human dignity, such does not seem to be consistent with "security,"(51) "health," "integrity,"(52) "adequate ... medical care" and "assistance," and the full meaning of the right to life. In view of such interrelated rights and interests, documented also in the European Convention, when the European Convention declares that no one shall be "deprived of his life intentionally,"(53) it must be that others cannot "deprive" one of life, but that choice to end life and to allow others to participate is still protected within the matrix of dignity, liberty, and other rights.(54) One is not "deprived" if one chooses.
Choice it seems, actual and informed choice, is at the base of concerns about teenage suicide and some of the lingering suffering among survivors--in fact, suicide by any person, especially those who are not terminally ill or clearly suffering from severe illness or disability. Suicide seems so irrational (or the result of seemingly irrational but manipulative anger)(55) that a relatively informed and free choice is suspect. Here, as with the terminally ill, nearly all of our laws relating to the need for knowing consent seem preferable to ensure the dignity of choice that is essential to the dignity and worth of each human person. But such laws should not require an unrealistically high and policy-thwarting standard of proof of individual choice or general wishes and, in my opinion, children (especially those terminally ill) should not be considered to be unalterably legally incompetent. I have no magic answer here with respect to what is otherwise typically the grist of lawyers--proofs, burdens, presumptions, and such--but we should rethink what they might and should be in view of the need to further human dignity and liberty, and we should alert others to shared demands and expectations.
Human rights law also demands more if the dignity of choice is to be fostered more adequately. If suicide is so irrational and seemingly selfish, absent terminal or severe illness or severe disability, do not the needs for "respect," "security," "health," and "adequate ... medical care" and "assistance" demand adequate mental health assistance? Beyond concern for choice, is not the indignity of suffering, the cruelty and inhumanity of inattention sufficient to compel more adequate recognition of a human right to mental health assistance? Is not life-threatening inattention also thwarting of the right to life found in the major human rights instruments?
Here I add concern with respect to "choice" by members of some the Lemming Society, who in the name of religion practice suicide and assisted-suicide. The human right to practice one's religious beliefs alone and with others adds nothing if the real problem, not the manifest problem at first blush, relates to the need for adequate mental health assistance.(56) Yet, religious beliefs can be relevant, as in the case of an elderly American Indian who chooses to die "alone," but with nature and the Great Spirit, in some still untrampled forest. His or her belief and practice seems worthy of respect if relatively freely chosen and relatively unhurtful to others. On the other hand, the Jonestown suicides, assisted-suicides, and murders raise serious concerns despite a proffered religious excuse.(57)
Here, as in many cases, human rights norms provide interrelated, but sometimes conflicting guidance, and choice as to legality must be sufficiently contextual and policy-aware in order to be policy-serving.(58) In general, however, there is sufficient evidence of a human right to die with dignity, implicating also a general right to choose the time of one's death(59) and a right to medical and other assistance sufficient to assure a humane, dignified process of dying. Domestic laws flatly prohibiting or punishing suicide, assisted-suicide, or assisted-death are irreconcilably at odds with a general right to die with dignity and should be changed or abandoned. Such laws judge too harshly.(60) They often intrude after death and criminalize an intensely personal choice, or a choice made with others, that deserves, if anything, more compassion and greater assistance prior to death--and for survivors, assistance prior to the time when time means nearly nothing.
III. A GENERAL APPROACH TO DECISION
As noted above, legal choice concerning the full meaning of the right to die with dignity should be contextually-oriented and policy-aware. When making a legal choice in this area (ad hoc, judicial, legislative, or other) one should look at the actual context in which claims to die with dignity arise and attempt to achieve an awareness of the consequences (in terms of value(61) participation or value enjoyment and deprivation) that are likely to flow from alternative choices available to the decisionmaker.(62) The consequences of choice, after all, are far more critical to implementation of the human right to die with dignity than formal definitions or rules, and are, thus, a key to a functional meaning of such a right. Restated, context and consequences are critical to the functional or social meaning of such a human right and awareness of context and consequences is critical for rational, policy-oriented inquiry and decisionmaking. If, for example, one were to apply a "rational basis" test with respect to the application of some statutory scheme affecting human liberty and privacy, consideration of actual context and probable consequences from such an application is a necessary part of an adequately rational and policy-oriented inquiry. The same would be true with respect to some other test or threshold for review of the application of a statutory scheme or governmental act. Indeed, under a "strict scrutiny" test, which should apply with respect to governmental deprivations of fundamental human rights,(63) awareness of actual context, and actual or probable consequences, is certainly no less critical to rational and policy-serving inquiry into whether such deprivations are necessary to promote a compelling, or overriding, legitimate public interest.
For better awareness of context, variables, and likely social consequences, the McDougal-Lasswell jurisprudence stresses the need to address this or any similar problem in terms of: (1) identification and clarification of all legal policies at stake in a given situation (such as relevant human rights); (2) description of relevant past trends in decisions and the consequences of decisions; (3) analysis of factors (both environmental and predispositional) that affected those decisions or led to certain policy-serving or policy-thwarting consequences; (4) projection of likely future trends, factors, and consequences; and (5) recommendations or choices.(64)
While performing the first task, it should be helpful to utilize a McDougal-Lasswell approach to treaty interpretation as a means of decisionmaking.(65) A primary task concerning the identification of relevant legal policies or goals involves the identification and clarification of current and relatively specific generally shared expectations about the human right to die with dignity that are relevant to the problem.(66) A related task involves supplementation of still vague, incomplete, or conflicting specific expectations about such a human right with more basic legal policies or goals of human rights law that are generally shared in the community, and are likely to be shared in the immediate future,(67) as herein attempted. Other basic expectations about human dignity could also be utilized.
For supplementation, a comprehensive map of human rights and other legal policies can be helpful. Here, for example, an attempt has been made to organize relevant human rights law in order to identify and supplement the content of a general human right to die with dignity. Further effort could be made by scholars to organize, in an empirical way, more of the basic community policies at stake and the various types of expectations about the human right to die with dignity. This could be done by addressing the actual intensities of demand or expectation, as well as the degree of commonly shared expectation. Awareness of the intensity and degree of general acceptance is not only more realistic but can be quite useful in making informed and rational choices among relevant legal policies and in performance of the task of supplementation.(68)
To summarize, this essay recommends greater recognition of a general human right to die with dignity. Such a right necessarily implicates a general right to choose the time of one's death and it is logically interrelated with a human right or claim to medical assistance and to other assistance sufficient to assure a humane, dignified process of dying. Such rights of an international character are unavoidably in conflict with certain domestic laws that contain crude, anticontextual prohibitions of suicide, assisted-suicide, and assisted-death, and such remarkably unfit and inconsistent domestic laws should be changed, abandoned, or recognized as uncontrolling in contexts or systems where international law prevails over inconsistent domestic law.(69) When international law does not obtain primacy directly, domestic laws should at least be interpreted in a manner best conforming to the human right to die with dignity.(70) With respect to the content, further contours, and application of the general right to die with dignity, a jurisprudential framework is offered for more contextually and policy-aware decisionmaking.
Those with tangled dreams,
On broken knees,
Those with little left
Can't you hear their pleas
The inquiry gleans
Yet the real theft
Is law that cannot please
(1.)Much of what I know about hospice I have learned from my wife, Paula, and her colleagues at The Hospice at the Texas Medical Center, where she served as Executive Director. Hospice is committed to humane physical, psychological, social, and spiritual care for terminally ill patients and their families or close survivors; to dying relatively pain-free with symptom control and dignity; and, finally, to bereavement support.
(2.)See, e.g., STATEMENT OF THE NATIONAL HOSPICE ORGANIZATION OPPOSING THE LEGALIZATION OF EUTHANASIA AND ASSISTED SUICIDE, AND RESOLUTION, 8 Nov. 1990, the latter including:
WHEREAS, The National Hospice Organization is on record supporting a patient's right to palliative care, a patient's right to refuse unwanted medical intervention including the provision of artificially supplied hydration and nutrition; and, ...
WHEREAS, We believe hospice care is an alternative to voluntary euthanasia and assisted suicide; therefore,
RESOLVED, That the National Hospice Organization reaffirms the hospice philosophy that hospice care neither hastens nor postpones death.
RESOLVED, That the National Hospice Organization rejects the practice of voluntary euthanasia and assisted suicide in the care of the terminally ill.
Id. The Statement adds: Hospice recognizes dying as part of the normal process of living and focuses on maintaining the quality of remaining life. Hospice affirms life and neither hastens nor postpones death ... Withholding or withdrawing life sustaining therapies or unintentionally hastening death through treatments aimed at controlling symptoms does not constitute either euthanasia or assisted suicide. The purpose of these acts is comfort of the patient[,] not ending the patient's life, thus neither is an act which intentionally and directly causes a patient's death.... One must question whether the choice of euthanasia is fully informed and truly voluntary. The choice between euthanasia and a painful, suffering death presented by euthanasia proponents is far different from the choice between euthanasia and a peaceful, comfortable death supported by appropriate hospice care.
Id. See also Miller, Hospice Care as an Alternative to Euthanasia, 20 LAW, MED. & HEALTH CARE 127, 128-29, 131 (1992); Faye J. Girsh, Physician Aid in Dying: A Proposed Law for California, 14 CRIM. JUSTICE J. 333, 342-43 (1992) (hospice "is not enough").
(3.)For a quite thorough and useful consideration of these and many other related issues, see George P. Smith, All's Well That Ends Well: Toward a Policy of Assisted Rational Suicide or Merely Enlightened Self-Determination?, 22 U.C. DAVIS L. REV. 275, 343-52, 380-81, passim (1989). See also Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 292 (1990) (Scalia, J., concurring); George J. Alexander, Death by Directive, 28 SANTA CLARA L. REV. 67, 82-3 (1988); Michael Ariens, Suicidal Rights, 20 RUTGERS L.J. 79, 91 (1988); Leslie Bender, A Feminist Analysis of Physician-Assisted Dying and Voluntary Active Euthanasia, 59 TENN. L. REV. 519, 528, 531-32, 534, 540 (1992); Linda Carl, Note, The Right to Voluntary Euthanasia, 10 WHITTIER L. REV. 489, 522-23 (1988); Phyllis Coleman & Ronald A. Shellow, Suicide: Unpredictable and Unavoidable--Proposed Guidelines Provide Rational Test for Physician's Liability, 71 NEB. L. REV. 643, 687, 689, 691 (1992); Yale Kamisar, When is There a Constitutional "Right to Die"? When is There No Constitutional "Right to Live"?, 25 GA. L. REV. 1203, 1206, 1209-10, 1216-17, 1219-20 (1991); Aida A. Koury, Note, Physician Assisted Suicide for the Terminally Ill: The Ultimate Cure?, 33 ARIZ. L. REV. 677, 688-90, 692 & ns.174-176, 698 (1991); Marni J. Lerner, Note, State Natural Death Acts: Illusory Protection of Individuals' Life-Sustaining Treatment Decisions, 29 HARV. J. ON LEGIS. 175, 185 n.49, 186-87 n.55, 201-07 (1992); Martha A. Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 CAL. L. REV. 707, 739-43 (1987); Stephen A. Newman, Euthanasia: Orchestrating "The Last Syllable of ... Time," 53 U. PITT. L. REV. 153, 165-67, 175-76, 190 (1991); Robert A. Pletcher, Assisted Suicide for the Terminally Ill: The Inadequacy of Current Legal Models to Rationally Analyze Voluntary Active Euthanasia, 13 CRIM. JUST. J. 303, 308, 310-11 (1992); John A. Robertson, Cruzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients, 25 GA. L. REV. 1139, 1175-77 (1991); Catherine D. Shaffer, Note, Criminal Liability for Assisting Suicide, 86 COLUM. L. REV. 348, 368 (1986) (also providing an informing summary of probable psychological profiles, id. at 355-57); Michelle Yuen, Comment, Letting Daddy Die: Adopting New Standards for Surrogate Decisionmaking, 39 UCLA L. REV. 581, 583 & n.10, 586, 597 n.81, 611 n.156 (1992); William J. Winslade, Book Review, When Death is at the Door, 5 MED. HUM. REV. 53, 55, 57 (Jan. 1991); Julie A. DiCamillo, Note, A Comparative Analysis of the Right to Die in the Netherlands and the United States After Cruzan: Reassessing the Right of Self-Determination, 7 AM. U. J. INT'L L. & POL'Y. 807, 808 n.7, 810 (1992); cf. Susan R. Martyn & Henry J. Bourguignon, Coming to Terms with Death: The Cruzan Case, 42 HASTINGS L.J. 817, 832-33, 836-37, 845 (1991); Marzen, O'Dowd, et al., Suicide: A Constitutional Right?, 24 DUQ. L. REV. 1, 9-13 (1985); Thomas J. Marzen, "Out, Out Brief Candle": Constitutionally Prescribed Suicide for the Terminally Ill, 21 HASTINGS CONST. L. Q. 799, 806-07 (1994); Thomas W. Mayo, Constitutionalizing the "Right to Die," 49 MD. L. REV. 103, 139-43 (1990); Victor G. Rosenblum & Clarke D. Forsythe, The Right to Assisted Suicide: Protection of Autonomy or an Open Door to Social Killing?, 6 ISSUES L. & MED. 3, 7-11, 17-18, 24 (1990); Robert A. Sedler, The Constitution and Hastening Inevitable Death, HASTINGS CNTR. RPT. 23, no. 5, at 20, 22, 24 (Sept.-Oct. 1993) (arguing against label of "suicide" re: terminally ill person's choice to end life or hasten inevitable death, but recognizing no "constitutional" difference, concerning the right of personal autonomy, between the hastening of death "by discontinuing lifesaving medical treatment and by taking a lethal dose"); Robert A. Sedler, Constitutional Challenges to Bans On "Assisted Suicide": The Views From Without and Within, 21 HASTINGS CONST. L.Q. 777, 786 n.33 (1994) (adding "[i]n no meaningful sense of the term can a terminally ill person's choice to hasten his or her inevitable death by the use of physician-prescribed medications be labeled a suicide.") [hereinfter Sedler ll]; Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U. CIN. L. REV. 803, 812-14 (1993); Robert F. Weir, The Morality of Physician-Assisted Suicide, 20 LAW, MED. & HEALTH CARE 116, 117-18 (1992).
Surveys indicate that over 70 percent of deaths in US hospitals or long-term care institutions "occur after a decision to withdraw life-sustaining treatment." Lerner, supra, at 176 n.7 (this is apparently true for some 56 percent of all deaths in the US). See also Cathleen A. Roach, Paradox and Pandora's Box: The Tragedy of Current Right-to-Die Jurisprudence, 25 U. MICH. J. L. REF. 133, 156 (1991); Smith, supra, at 366-67. Professor Henry Bourguignon is aware that such disctinctions are difficult ("barely tenable") to maintain but insists that they have some value in lessening our acceptance of "the frightening prospect" of involuntary euthanasia. Letter from Professor Henry Bourguignon (14 May, 1992) (on file with the author). Nevertheless, these distinctions are largely unrealistic, strangely self-deceiving, and illogical as determinative criterial referents. Intent and other features of context are generally more relevant to inquiry. See also infra text accompanying note 64.
(4.)Doctor William T. Butler, President of Baylor College of Medicine, argues that because, "information published by the Health Care Finance Administration [indicates that] nearly one-half of all Medicare expenditures in the final year of life occur during the last two months of a patient's life," during a natural process of death, such might not be a proper allocation of scarce medical resources. William T. Butler, Address at the River Oaks Country Club, Friends of Baylor meeting (20 Nov. 1990); Letter from William T. Butler (31 Jan. 1991) (on file with the author). On this issue, see also BARLY R. FURROW, ET AL., HEALTH LAW 568, 1058 (2d ed. 1991); BARUCH A. BRODY, LIFE AND DEATH DECISION MAKING (1988); Alexander, supra note 3, at 75-76, 103; Baruch A. Brody, Special Ethical Issues in the Management of PVS Patients, 20 LAW, MED. & HEALTH CARE 104, 108-09, 112-14 (1992); Rebecca Dresser, Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law, 28 ARIZ. L. REV. 373, 399-404 (1986); Robert I. Misbin, Physicians' Aid in Dying, 325 NEW ENG. J. MED. 1307, 1308 (Oct. 1991); Newman, supra note 3, at 186-87; Roach, supra note 3, at 159-60; Robertson, supra note 3, at 1196-99; but see Yale Kamisar, Some Non-Religious Views Against Proposed "Mercy Killing" Legislation, 42 MINN. L. REV. 969, 990 (1958); Marzen, supra note 3, at 5-7; Mayo, supra note 3, at 145.
(5.)Bender, supra note 3, at 532; see also id. at 527; cf. William J. Winslade, Physician-Assisted Suicide, 8 MED. HUMAN., Rounds No. 3 (Dec. 1990) (arguing for some "legal, professional, or public" review prior to implementation of choice, but a modification of "laws prohibiting assisted suicide"). Winslade, with experience as an ethics consultant, teacher, attorney, and psychoanalyst, shares an orientation toward what he terms "the complexity of particularity" when addressing choice.
(6.)See, e.g., Annotation, Homicide: Physician's Withdrawal of Life Supports from Comatose Patients, 47 A.L.R. 4TH 19-27 (1986); AM. JUR. 2D Right to Die; Wrongful Life [sections] 2, Criminal and Civil Liability [sections] 31 [hereinafter cited as "Criminal Liability"] (1979); AM. JUR. Homicide [sections] 111, Suicide [sections][sections] 583-86 [hereinafter cited as "Suicide"] (1968); AM. JUR. CUMULATIVE SUPPLEMENT 215 (1988) [hereinafter cited as "Suicide Supplement"]; Ariens, supra note 3, at 85-93; Kent S. Berk, Comment, Mercy Killing and the Slayer Rule: Should the Legislatures Change Something?, 67 TUL. L. REV. 485, 487-88 (1992); Carl, supra note 3, at 512-13; DiCamillo, supra note 3, at 834-35; George G. Garbesi, The Law of Assisted Suicide, 3 ISSUES L. & MED. 93, 95-101, 109 (1987); George G. Garbesi, Suicide: An International Human Right, 14 ISRAEL Y.B. HUM. RTS. 249, 252 (1984) [hereinafter Garbesi, Human Right]; Leonard H. Glantz, Withholding and Withdrawing Treatment: The Role of the Criminal Law, 15 LAW, MED. & HEALTH CARE 231, 240-41 (1988) (not likely that physicians or health professionals will be prosecuted and such would be "misuse" of criminal law); Horder, Assisting in Suicide--Keeping the Debate Alive, 54 J. CRIM. L. 253 (1990); Susan K. Jezewski, Note, Can a Suicide Machine Trigger the Murder Statute?, 37 WAYNE L. REV. 1921, 1926-38, 1941 (1991); John Keown, The Law and Practice of Euthanasia in the Netherlands, 108 L. Q. REV. 51 (1992) (voluntary and involuntary euthanasia are widespread in practice, some inroads on illegality, but some physicians and others are still prosecuted); Koury, supra note 3, at 679, 694; Laing, Assisting Suicide, 54 J. CRIM. L. 106 (1990); Marzen, supra note 3, at 57-82, 87-89, 94-95, 97-98, 148-242; Mathews, supra note 3, at 745-46; Stacy C. Mojica & Dan S. Murrell, The Right to Choose-When Should Death Be In the Individual's Hands?, 12 WHITTIER L. REV. 471, 473-85, 487, 490-97 (1991) (also documenting paper laws and trends in various countries); Rebecca C. Morgan, et al., The Issue of Personal Choice: The Competent Incurable Patient and the Right to Commit Suicide, 57 Mo. L. REV. 1, 9-12 (1992) (same); Pletcher, supra note 3, at 303-13; Rosenblum & Forsythe, supra note 3, at 6, 11; Mustafa D. Sayid, Note, Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United States, 6 B.C. INT'L & COMP. L. REV. 553 (1983); Sedler, supra note 3, at 21-22 (Mich. law challenged by A.C.L.U.); Sedler II, supra note 3, at 778; Shaffer, supra note 3; Sherman, supra note 3, at 804, 815-17, 823, 825, 830-35; Smith, supra note 3, at 290-91; Report of the Royal Dutch Society of Medicine, Life-Terminating Actions with Incompetent Patients, Part I: Severely Handicapped Newborns, 7 ISSUES L. & MED. 365, 367 (H. Jochemsen trans. 1991) (lack of guarantee that physicians will not be prosecuted and "committee considers it desirable to take life-terminating actions out of the sphere of criminal law"); Peter Zisser, Euthanasia and the Right to Die: Holland and the United States Face the Dilemma, 9 N.Y.L. SCH. J. INT'L & COMP. L. 361 (1988); cf. Nowak, Final Ethics: Dutch Discover Euthanasia Abuse, 4 J. NIH RES. 31 (Jan. 1992); Linda S. Stiefel, Note, A Time to Live, A Time to Die, 24 AKRON L. REV. 699, 704, 706 (1991) (some immunity under living will statutes in the US).
Several of these studies note that there is generally little enforcement of such written laws against those who attempt suicide, family members, or health professionals, a pattern relevant to claims of the state, abuse of power, and to problems posed by selective enforcement (including impairment of the legitimacy of laws) and the need to serve relevant interests of private individuals and groups. See also Bender, supra note 3, at 533-34; infra note 17.
(7.)Suicide Supplement, supra note 6, [sections] 583, at 215; see also Suicide, supra note 6, [sections][sections] 583, 585, 844-47.
(8.)Suicide Supplement, supra note 6, [sections] 583, at 215. See also In re Joseph G., 667 P.2d 1176 (1983); Sherman, supra note 3, at 823 (German law).
(9.)Suicide, supra note 6, [sections][sections] 586, 847-48. Cf. Diane M. Keating, Note, Existence of a Suicide Pact as a Complete Defense to a Survivor's Criminal Liability: State v. Sage, 21 AKRON L. REV. 245 (1987). Shaffer states that "[a]bout seventy-two percent of the persons who engage in suicide pacts are married, socially isolated, between fifty and sixty-five years of age, physically ill, and deeply devoted to their partners." Shaffer, supra note 3, at 357. Shaffer adds that such persons might be "more in need of counseling than criminal punishment." See also infra notes 19, 55. Yeates Conwell & Eric D. Caine, Rational Suicide and the Right to Die, 325 NEW ENG. J. MED. 1100, 1101 (Oct. 1991), add that "it is the elderly who have the highest rates of suicide," although "[y]oung adults account for the greatest number" of the 30,000 deaths attributed to suicide annually in the United States, and "it is from the elderly ... that we hear the most poignantly stated arguments supporting the right to determine the quality of one's life and the time and manner of one's death." Id. Their claims demand greater understanding and involvement, mercy, and the abandonment of unjust laws.
(10.)Criminal Liability, supra note 6, [sections] 31, at 28. It is quite curious that a morally "good" or humanitarian motive is not thought to be legally relevant when at least one of the bases of prohibitory laws is a claimed public or majority-oriented morality. See infra note 16.
(11.)See supra notes 6-8.
(12.)See Cruzen, 497 U.S. at 280.
(13.)Id. at 292 (Scalia, J., concurring); see also id. at 298 (Scalia, J., concurring).
(14.)See, e.g., 43 AM. JUR. 2D Insurance [sections][sections] 467, 1715 (1982) ("A beneficiary in a life insurance policy who murders or feloniously causes the death of the insured forfeits all rights which he may have in or under the policy. This rule is based upon public policy and upon the principle that no one shall be allowed to benefit from his own wrong."); Ariens, supra note 3, at 94-101; Marzen, supra note 3, at 89-93; Morgan, supra note 6, at 9; Sherman, supra note 3, at 805 n. 12 (Texas), 847, 850-51.
(15.)Compare In re Cox's Estate, 380 P.2d 584 (1963) with In re Estate of Bobula, 269 N.Y.S.2d 599 (1966), remitted, 227 N.E.2d 49 (1967); Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). See also Berk, supra note 6, at 490-509; Garbesi, Human Right, supra note 6, at 252 n.22; Sherman, supra note 3, at 805-06, 844-56, passim. On liability more generally, see Criminal Liability, supra note 6, [sections] 14, at 14-15; 5 A. SCOTT, TRUSTS [sections] 493.2 (3d ed. 1967); Note, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 NOTRE DAME L. REV. 1202, 1216-27 (1973); Ariens, supra note 3, at 102-12; Pamela M. Capps, Rock on Trial: Subliminal Message Liability, 1991 COLUM. BUS. L. REV. 27 (1991); Coleman & Shellow, supra note 3, at 644, 663-79; Thomas H. Crofts, Jr. & Thomas H. Sharp, Jr., Death with Dignity: The Physician's Civil Liability, 27 BAYLOR L. REV. 86 (1975); H. Tristram Engelhardt & Michele Malloy, Suicide and Assisting Suicide: A Critique of Legal Sanctions, 36 SW. L. J. 1003, 1030-32 (1982); Garbesi, supra note 6, at 101-04; C. A. Hopkins, Tortious Liability for Suicide, 49 CAMBRIDGE L. J. 392 (U.K. 1990); James A. Howell, Civil Liability for Suicide: An Analysis of the Causation Issue, 1978 ARIZ. ST. L.J. 573; Jezewski, supra note 6, at 1923 n.9, 1925 n.27, 1949; Stanley C. Kent & Catherine Woelk-Rudisill, Probate and Non-probate Distribution Issues in the Case of a Murder-Suicide, 17 COLO. LAW 1061 (June 1988); Koury, supra note 3, at 695; Lerner, supra note 3, at 212-14; Allen C. Schlinsog, The Suicidal Decedent: Culpable Wrongdoer or Wrongfully Deceased?, 24 J. MARSHALL L. REV. 463 (1991); but see Willard H. Pedrick, Dignified Death and the Law of Torts, 28 SAN DIEGO L. REV. 387, 398 (1991).
(16.)See Shaffer, supra note 3, at 354; Criminal Liability, supra note 6, at 4 (police power interests in preserving "health, safety, morals, and welfare of the community"), 8-9, 11, 16-19, 21-23; Berk, supra note 6, at 498-99; M. Lisa Wilson-Clayton & Mark A. Clayton, Two Steps Forward, One Step Back: McKay v. Bergstedt, 12 WHITTIER L. REV. 439, 441 (1991); DiCamillo, supra note 3, at 823; Lerner, supra note 3, at 186 & n.53; David L. Llewellyn, Jr., Licensed to Kill: The "Death With Dignity" Initiative, 14 CRIM. JUST. J. 309, 310-11 (life), passim (1992); Marzen, supra note 3, at 6 (sanctity of life), 147; Misbin, supra note 4, at 1309-10 (religious views); Morgan, supra note 6, at 5-7; Rosenblum & Forsythe, supra note 3, at 21, 31; Sherman, supra note 3, at 818-19, 826-28; Dudgeon v. United Kingdom, App. No., 4 Eur. H.R. Rep. 149, 182 (1981) (Walsh, J., dissenting in part) (dictum re: views of Lord Devlin: "Among the offences ... brought within the criminal law on the basis of moral principle, notwithstanding that it could be argued that they do not endanger the public, were euthanasia, the killing of another at his own request, suicide pacts...."). Claims to uphold a majority-oriented morality appear particularly wanting when the majority has failed to provide adequate health care(including mental health care), food, or shelter--in short, when there has been a failure to affirm the basics needed for a dignified life. Additionally, contemporary perspectives with respect to suicide and assisted-suicide are difficult to discern. See also infra note 25.
On the question of the state's interest in life of any quality, see, e.g., New York Central Railroad Co. v. White, 243 U.S. 188, 207 (1917) (dictum); James Bopp, Jr. & Daniel Avila, The Due Process "Right to Life" in Cruzan and its Impact on "Right-to-Die" Law, 53 U. PITT. L. REV. 193, 211, passim (1991); Robertson, supra note 3, at 1140-41, 1143, 1149, 1156, 1172, 1175-77; but see id. at 1180, 1186-87, 1189. In Donaldson v. Lungren, 2 Cal. App. 4th 1614 (1992), a California court of appeals stressed a vague state "interest in protecting society against abuses" in connection with a need to "protect the lives of those who wish to live" and argued that such "must prevail over the individual [interest in choice] because of the difficulty, if not impossibility, of evaluating the motives of the assister or determining the presence of undue influence." Id. at 1622-23. Cf. infra note 19. The court apparently thought that each "suicide is an expression of mental illness." Donaldson, 2 Cal. App. 4th at 1624; but cf. infra note 55.
(17.)Some of these words or phrases relate to US constitutional standards of review of state or federal actions. See, e.g., JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 340-41, 349, 573-90 (4th ed. 1991); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1439-55, passim (2d ed. 1988); Criminal Liability, supra note 6, at 4, 8-9, 11, 15 passim; Sedler II, supra note 3, at 788-89 ("The state cannot assert any valid interest in requiring a terminally ill person to undergo unbearable pain and suffering until death comes naturally.") Here, I assume that it is quite appropriate for the judiciary to address the application of a statutory scheme to a particular context and to inquire whether a particular application in a case otherwise properly before the courts is actually policyserving or policy-thwarting and that this inquiry may occur despite any particular weighting or threshold set forth more generally under a given standard of review. See also TRIBE, supra, at 1306 (re: "personhood" rights, one must examine "context" and "likely results" or "impacts"). Thus, even under a "rational basis" test it is most appropriate for a court to inquire whether a particular application of a statute is irrational (i.e., policy-thwarting to the point of irrationality or abuse) even if some or most applications could rationally serve a legitimate state goal. See also infra note 63. This might be termed realistic, functional, or applicative rationality, because inquiry would involve awareness of actual context to determine whether an application is realistically rational in terms of short and long-term consequences. See also infra text accompanying notes 61-64; JOHN E. NOWAK ET AL., HANDBOOK ON CONSTITUTIONAL LAW 526 (1978) (Professor Nowak suggests that the Court apply the "rational basis test in a realistic manner"). Concerning the human rights standard, see infra notes 30, 63.
Rather remarkably, and despite social changes, medical advances, and changes in law (see, e.g., supra text at note 8), "rates of suicide [in the US] have remained stable throughout this century." See Conwell & Caine, supra note 9; see also Mojica & Murrell, supra note 6, at 500; cf. Marzen, supra note 3, at 3-4; but see Rosenblum & Forsythe, supra note 3, at 5. Thus, influences other than criminal law are having their relatively constant per capita effect and such stability over a ninety-year period points to a conclusion that the state's claims in this regard are extravagant. See also Bender, supra note 3, at 527, 532-35 (anti-contextual, irrational and abuse of power); Berk, supra note 6, at 496 (re: mercy killings, argument that "[s]ociety ... suffers no injury" and "uncompromising rules have no place in today's legal arena"); Coleman & Shellow, supra note 3, at 680 n.201 (medical "intervention" is not rational for 24 out of 25 patients, such may be "an unacceptable ratio"); Girsh, supra note 2, at 343; Mojica & Murrell, supra note 6, at 501-03; Pletcher, supra note 3, at 313 ("The typical statute which prevents the assistance of suicide is overly broad in its scope. There is no recognition of the complex and varied circumstances under which an individual makes the decision to end life").
Although addressing another matter, the remarks of the European Court of Human Rights are also quite apt: "[when] the authorities have refrained in recent years from enforcing the law ... [and n]o evidence has been adduced to show that this has been injurious to moral standards ... or that there has been any public demand for stricter enforcement of the law ..., [i]t cannot be maintained ... that there is a 'pressing social need' to make such acts criminal offences." Dudgeon, 4 Eur. H.R. Rep. at 167. On patterns of practice in the United States, see also supra notes 3, 6. On public opinion in the United States, see infra note 25. Moreover, the general lack of enforcement of paper laws is not merely an evidence of state practice, but may also point to an underlying pattern of expectation that enforcement is neither appropriate nor required. Such patterns of expectation are relevant to claims of desuetude and to the emergence of a new customary law. See also infra note 68. Indeed, such patterns over time can reflect, in constitutional parlance, the traditions and expectations of our people.
(18.)See Yale Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, HASTINGS CENTER REP. 23, No. 3, 1993, at 32, 39; Llewellyn, supra note 16, at 312, 317; Shaffer, supra note 3, at 354 n.44; Sherman, supra, note 3, at 821. Such a claimed interest seems to beg the very question at stake and appears to be the most extravagant. See supra note 17; see also Newman, supra note 3, at 173-74; Dudgeon, 4 Eur. H.R. Rep. at 168 ("the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant's private life .... 'Decriminalisation' does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.").
Thomas Jefferson had thought that laws punishing the estates of those who commit suicide were barbaric and that their repeal would not encourage suicide. See, e.g., 6 THE PAPERS OF THOMAS JEFFERSON 155 (J.P. Boyd ed., 1952) ("As to example, we need not fear its influence. Men are too much attached to this life to exhibit frequent instances of depriving themselves of it. At any rate, the quasi-punishment of confiscation will not prevent it. For if one can be found who can calmly determine to renounce life, who is so weary of his existence here as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible to influence from the losses to his family by confiscation?" His view was shared by other Founders. See, e.g., Marzen, supra note 3, at 68-69.
(19.)See Shaffer, supra note 3, at 354 n.44, 355, 357-58, 366-69, passim ("some suicide assistants may themselves be psychologically troubled, suicidal individuals who need help rather than criminal punishment."); Bender, supra note 3, at 529; Bopp & Avila, supra note 16, at 213-14, 219-20; Coleman & Shellow, supra note 3, at 647; Conwell & Caine, supra note 9; Llewellyn, supra note 16, at 312, 318-19, 324-29; Marzen, supra note 3, at 811-12 (arguing for a blanket denial of individual choice because of the state's inability in every case to assure adequate distinctions as to rationality of choice--yet, this very inability of the state demonstrates the oppressive, unreasonable, and overreaching nature of blanket denials of choice. If the state is unable to make rational distinctions as to individual rationality, then a blanket prohibition of individual choice seems to be quite irrational and the concomitant denial of liberty to be without a "rational" basis.); Newman, supra note 3, at 188-89; Robertson, supra note 3, at 1176-77, 1179-80 ("state's interest in preventing mistakes"); Rosenblum & Forsythe, supra note 3, at 21-23, 31; Sherman, supra note 3, at 821-22, 829 n.127. See also supra note 16; infra note 55. In Compassion in Dying, Jane Roe, et al. v. The State of Washington, 850 F.Supp. 1454 (W.D. Wa. 1994), the state interests in preventing suicides of the young or those with a long life ahead and in preventing undue influence and abuse concerning personal choice were found to be outweighed by individual interests at stake. Id. at 1464-65, passim. See also infra note 21.
(20.)See, e.g., Criminal Liability, supra note 6, at 12-13, 16-19, 21-22 (the interest in protecting children); Wilson-Clayton & Clayton, supra note 16, at 441, 449; DiCamillo, supra note 3, at 823-24; Garbesi, Human Right, supra note 6, at 254, 271 & n.117, 272-73 & nn. 120, 123-124; Llewellyn, supra note 16, at 310; Laura L. Marcinko, Comment, To Live or Die: Creating a Choice of Medically Assisted Suicide in Michigan's Proposed Law, 8 COLLEY L. REV. 609, 617-18, 629 (1991); Mojica & Murrell, supra note 6, at 499; Sherman, supra note 3, at 821 (prevent brutalization of participatants). Clearly, this interest can be significant in particular contexts and insignificant in others.
(21.)See, e.g., Criminal Liability, supra note 6, at 8-9, 15, 25-26; Alexander, supra note 3, at 78-81; Bender, supra note 3, at 527, 530, 533, 535-38; Berk, supra note 6, at 497-98, 500; Wilson-Clayton & Clayton, supra note 16, at 445-48, 450-51, 457, 467, 469; Coleman & Shellow, supra note 3, at 681, 685, 692; DiCamillo, supra note 3, at 810-11, 816, 821-22, 824, 830-31, 838-40; Ronald Dworkin, When Is It Right to Die?, N.Y. TIMES, 17 May, 1994, at A15, col. 2 ("these values are too central to personality, too much at the core of liberty, to allow a majority to decide what everyone must believe.... Making a person die in a way that others approve, but that affronts his own dignity, is a serious, unjustified, unnecessary form of tyranny."); Garbesi, supra note 6, at 108; Garbesi, Human Right, supra note 6, at 256, 260, 262, 265; Kourly, supra note 3, at 699-700; Lerner, supra note 3, at 182-83, 188; Marcinko, supra note 20, at 614, 620, 635; Morgan, supra note 6, at 3-4, 17, 21, 27-29, 31-33, 35, 37-38, 43, 49; Roberston, supra note 3, at 1148, 1172-73, 1179, 1186-87, 1189; Sedler, supra note 3, at 20-25 (choice and "patient empowerment" relate to autonomy, bodily integrity, and liberty interests); Sedler II, supra note 3, at 780-82, 786, 788, 795-97 (same points); Stiefel, supra note 6, at 709-10; Weir, supra note 3, at 123-24; Steven J. Wolhandler, Voluntary Active Euthanasia for the Terminally Ill and the Constitutional Right to Privacy, 69 CORNELL L. REV. 363, 369-74 (1984); Yuen, supra note 3, at 582, 585 n.13, 591, 622 (also citing David Hume's essay On Suicide (1757)) infra text at notes 41-42; Compassion in Dying v. the State of Washington, 850 F. Supp. 1454, 1460 (W.D. Wa. 1994) ("Matters involving the most intimate and personal choices" are at stake with respect to choices of a terminally ill person and "are central to the liberty protected by the 14th Amendment. ... The suffering of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference than that of a pregnant woman."); In re Conroy, 486 A.2d 1209, 1225 (N.J. 1985) ("On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death."); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 307 (1986) (Compton, J., concurring) ("The right to die is an integral part of our right to control our own destinies so long as the rights of others are not affected ..., [and should] include the ability to enlist assistance from others ... in making deaths as painless and quick as possible."); Cruzan, 497 U.S. at 280; id. at 313 (Brennan, J., dissenting) ("The only state interest asserted here is a general interest in the preservation of life. But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment."); but see id. at 299 (Scalia, J., concurring); Martyn & Bourguignon, supra note 3, at 832; Robertson, supra note 3, at 1161, 1174-77, 1183; Rosenblum & Forsythe, supra note 3, at 21-24; Tom Stacy, Death, Privacy, and the Free Exercise of Religion, 77 CORNELL L. REV. 490, 546-48 (1992).
(22.)See, e.g., Criminal Liability, supra note 6, at 8-9, 11, 22-24; Alexander, supra note 3, at 81, 85-86; Bender, supra note 3, at 520-21; Berk, supra note 6, at 500; Benrubi, Euthanasia--the Need for Procedural Safeguards, 326 N. ENG. J. MED. 197 (1992); Wilson-Clayton & Clayton, supra note 16, at 445-46, 451-53; Conwell & Caine, supra note 9; Marcinko, supra note 20, at 616-17, 635-36; Misbin, supra note 4, at 1308; Morgan, supra note 6, at 3, 29, 33, 35, 37-38, 43; Newman, supra note 3, at 163-64, 180-83, 185-86, 190; Robertson, supra note 3, at 1141, 1143-44, 1186-87, 1189, 1202 & n.206; Weir, supra note 3, at 123-24; William J. Winslade, Guarding the Exit Door: A Plea for Limited Toleration of Euthanasia, 25 HOUS. L. REV. 517, 520-21, 523-24 (1988) (approving the claim of James Rachels, in THE END OF LIFE 185, passim (1986), to "mercy killing" as a defense against a charge of homicide if it can be shown 'that the victim while competent requested death, and that the victim was suffering from a painful terminal illness....'); Yuen, supra note 3, at 588 & n.28, 596, 625-26; cf. Bopp & Avila, supra note 16, at 215, 219; but see Kamisar, supra note 3, at 1212 & n.38, 1230, 1232-33, 1237; Cruzan, 497 U.S. at 336 n.8 (Stevens, J., dissenting). On this general point, see also Id. at 300 (Brennan, J., dissenting), quoted in part at infra text accompanying note 46.
(23.)See, e.g., Criminal Liability, supra note 6, at 11, 25-26; Alexander, supra note 3, at 78, 85; Berk, supra note 6, at 497, 500; Coleman & Shellow, supra note 3, at 655, 686-89; DiCamillo, supra note 3, at 821-23, 832, 839; Winslow-Clayton & Clayton, supra note 16, at 447; Garbesi, Human Right, supra note 6, at 253, 262-63, 267, 269, 272; Lerner, supra note 3, at 182; Marcinko, supra note 20, at 613-14; Mojica & Murrell, supra note 6, at 503; Morgan, supra note 6, at 19-21, 24-28, 32; Sedler, supra note 3, at 24 ("The state cannot assert any valid interest in requiring a terminally ill person to undergo unbearable pain and suffering until death comes 'naturally'"); Stiefel, supra note 6, at 708-10; Wolhandler, supra note 21, at 375, 383; Yuen, supra note 3, at 589, 593 n.61, 598, 622; see also Pedrick, supra note 15, at 396; Stacy, supra note 21, at 581, 583-87, 594; but see Marcinko, supra note 20, at 629-30; Mayo, supra note 6, at 125, 146.
(24.)See, e.g., Criminal Liability, supra note 6, at 8, 11-12, 21; Bender, supra note 3, at 521, 533-34, 536-37; Berk, supra note 6, at 500; Morgan, supra note 6, at 43, 49; Yuen, supra note 3, at 590, 625. See also Jezewski, supra note 6, at 1944 n.131, 1949 (individuals "should not be subjected to the ["religious or moral"] view prescribed by society"); Stacy, supra note 21, at 495, 559-63, 594.
(25.)See, e.g., Criminal Liability, supra note 6, at 7, 15-18. On family chociemaking for incompetent patients, see also Alexander, supra note 3, at 91; Berk, supra note 6, at 496; Robertson, supra note 3, at 1169 n.113 (quoting Professor Peggy Davis); DiCamillo, supra note 3, at 828; Martyn & Bourguignon, supra note 3, at 818, 325, 828, 841, 845-46, 851-57; Martha C. Minow, The Role of Families in Medical Decisions, 1991 UTAH L. REV. 1, 21-3 (1991); Newman, supra note 3, at 180, 187; Roach, supra note 3, at 143, 157-58, 160-61, 172, 180, 184, 186, 189; Nancy K. Rhoden, Litigating Life and Death, 102 HARV. L. REV. 375, 375-446 (1988); Stacy, supra note 21, at 495, 582-85, 590; William J. Winslade, Life and Death Choices: The Patient's Rights, in PERSONAL CHOICES AND PUBLIC COMMITMENTS: PERSPECTIVES ON MEDICAL HUMANITIES 70, 71 (W. Winslade ed., 1988) (addressing the need for informed family involvement, "negotiations," and counseling with respect to "right to die" decisions while also noting: "there are fates worse than death. Marginal life in an intensive care unit is one of them."); Yuen, supra note 3, at 605-08, 610, 625; but see Margaret Battin, Voluntary Euthanasia and the Risks of Abuse: Can We Learn Anything from the Netherlands?, 20 LAW, MED. & HEALTH CARE 133, 136 (1992) (discussing the risks of familial abuse); James Bopp, Jr. & Daniel Avila, The Sirens' Lure of Invented Consent: A Critique of Autonomy-Based Surrogate Decisionmaking for Legally-Incapacitated Older Persons, 42 HASTINGS. L. J. 779, 813-14 (1991); Dresser, supra note 4, at 395-97; Kamisar, supra note 3, at 1229, 1239; Miller, supra note 2, at 131-32 (hospice is better than euthanasia for families); Robertson, supra note 3, at 1151-52, 1169-71, 1191-93.
Addressing a 1984 Harris poll in the United States, Winslade also recognized that a 61 percent majority claim the right to tell their doctor to put them out of their misery when terminally ill and 80 percent favor such a family right for a terminally ill patient in a coma. Winslade, supra, at 70-71. In a 1990 Roper poll, some 64 percent nationwide stated that doctors should be allowed by law to end a "painful and distressing" terminally-ill life if the "patient requests it." See Jezewski, supra note 6, at 1944 n. 131. See also id. at 1925 n.25, 1944 n.133 (1988 A.B.A. survey of lawyer-members indicated over one-half approved lethal injections to terminally-ill patients); Alexander, supra note 3, at 99 n. 176 (polls in the Netherlands); Berk, supra note 6, at 489 n.21 (also trends in Canada, China, and the Netherlands); Garbesi, supra note 6, at 111; Garbesi, Human Right, supra note 6, at 255; Lerner, supra note 3, at 176 n.8 (another poll); Marcinko, supra note 20, at 624-25; Mojica & Murrell, supra note 6, at 486-87 (other surveys); Morgan, supra note 6, at 44 n.276, 46-47; Newman, supra note 3, at 155, 179; Pedrick, supra note 15, at 390 (referring to TIME/CNN poll); Roach, supra note 3, at 157-58, 180 n.242 (several polls); Sedler, supra note 3, at 20; Sherman, supra note 3, at 807 n.16; Stiefel, supra note 6, at 722 & n.196 (other surveys); Weir, supra note 3, at 116 (1990 NYT-CBS poll); Yuen, supra note 3, at 587, 592 (other poll of doctors); Decisions Near the End of Life, 267 JAMA 2229, No. 16 (22-29 Apr. 1992) (other polls); but see Lerner, supra note 3, at 187 n.55 (1991 vote in state of Washington); Mayo, supra note 3, at 137-43.
(26.)See, e.g., Alexander, supra note 3, at 70-71; Yuen, supra note 3, at 587-88, 625, 627; see also Marzen, supra note 3, at 5-7; Morgan, supra note 6, at 40; Newman, supra note 3, at 181-82; Robertson, supra note 3, at 1195-96; John A. Robertson, Assessing Quality of Life: A Response to Professor Kamisar, 25 GA. L. REV. 1243, 1250-51 (1991); supra note 4.
(27.)U.N. G.A. Res. 217A, U.N. Doc. A/810, at 71 (1948). On the legal utility today of the Universal Declaration as customary international law, at least in part, and as an authoritative interpretation of the United Nations Charter (identifying and clarifying those human rights protected by the Charter), see, e.g., MYRES S. MCDOUGAL ET AL., HUMAN RICHTS AND WORLD PUBLIC ORDER 272-74, 302, 325-30 (1980); Jordan J. Paust, On Human Rights: The Use of Human Right Precepts in U.S. History and the Right to an Effective Remedy in Domestic Courts, 10 MICH. J. INT'L L. 543, 570 n.182, 596 n.370 (1989) [hereinafter On Human Rights].
(28.)On the precept of human dignity in international and domestic US law more generally, see, e.g., Jordan J. Paust, Human Dignity as a Constitutional Right: A Jurisprudentially Based Inquiry Into Criteria and Content, 27 How. L. J. 145 (1984) [hereinafter Human Dignity].
(29.)See also Garbesi, Human Right, supra note 6, at 253, 262-63, 267, 269, 272; supra note 23.
(30.)Under human rights law, the interests of the state are weighted and protected under a scheme of review or justification that is nearly the reverse of that found in most domestic US constitutional schemes. Compare supra note 17 with Article 29(2) of the Universal Declaration of Human Rights, supra note 26 ("In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."). The human rights standard requires, among other things, that the state's interest at stake or measure of interference with the "exercise" of a right be reasonably and justly "required" or "necessary" under the circumstances. See, e.g., supra, art. 29; Dudgeon, 4 Eur. H.R. Rep. at 164-65 (necessity "implies the existence of a 'pressing social need' for the interference in question ..." and "a restriction ... [that], amongst other things, ... is proportionate to the legitimate aim pursued"); Jordan J. Paust, Political Oppression in the Name of National Security: Authority, Participation, and the Necessity Within Democratic Limits Test, 9 YALE J. WORLD PUB. ORD. 178 (1982); Christoph Schreuer, Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights, 9 YALE J. WORLD PUB. ORD. 113 (1982). Thus also, the particular application of, for example, a state's statutory scheme must be so justified. It is not enough that some other applications could be justly required or necessary. In this sense, the human rights standard is remarkably similar to the "strict scrutiny" test applied by US courts. On the strict scrutiny test, see, e.g., NOWAK & ROTUNDA, supra note 17, at 340-41, 349, 579, passim; TRIBE, supra note 17, at 1439-55. See also infra note 63.
Of course, this general standard pertains once one has recognized the existence of a relevant human right in context. For example, whether one's dignity is thwarted or a treatment is inhumane depends partly upon context. See also Soering v. United Kingdom, 11 Eur. H.R. Rep. 439, 468-78 (1989). Additionally, human rights instruments recognize that in the exercise of one's rights one may not "perform any act aimed at the destruction of any of the rights" of others. See, e.g., Universal Declaration of Human Rights, supra note 27, art. 30 (emphasis added). See also MCDOUGAL, supra note 27, at 806-10 (preferring the rational accommodation of rights of others and common interest).
(31.)See Jordan J. Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 HARV. HUM. RTS. J. 51, 53-4, passim (1992). More generally, the European Court of Human Rights has recognized:
Treatment has been held by the Court to be both "inhuman" because it was premeditated, was applied for hours at a stretch and "caused, if not actual bodily injury, at least intense physical and mental suffering," and also "degrading" because it was "such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them...." [A]ccount is to be taken not only of the physical pain experienced but also, where there is considerable delay before [death] ..., mental anguish.
Soering v. United Kingdom, 11 Eur. H.R. Rep. at 472-73.
(32.)E.T.S. No. 35 (1961).
(33.)U.N. G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1967), 993 U.N.T.S. 3.
(34.)U.N. G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1967), 999 U.N.T.S. 171 [hereinafter 1966 Covenant].
(35.)European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. No. 5, 213 U.N.T.S. 221 (1950) [hereinafter European Convention].
(36.)O.A.S. Treaty Ser. No. 36, O.A.S. Off. Rec. OEA/Ser. L./V./11.23, doc. 21 rev. 6 (1979) [hereinafter American Convention].
(37.)See 1966 Covenant, supra note 34, art. 6; American Convention, supra note 36, art. 4(1).
(38.)See European Convention, supra note 35, art. 2(1); cf. id. [paragraph] 2.
(39.)See American Convention, supra note 36, art. 4(1).
(40.)O.A.U. Doc. CAB/LEG/67/3 Rev. 5 (1981); Paust, Human Dignity, supra note 28, at 178-80, 182.
(41.)Cruzan, 497 U.S. at 287-88 (O'Connor, J., concurring). See also Compassion in Dying, 850 F. Supp. at 1461 ("basic human dignity"); supra note 21; Paust, Human Dignity, supra note 28, at 178-80, 182.
(42.)Cruzan, 497 U.S. at 288. See also supra note 21.
(43.)Cruzan, 497 U.S. at 288. On this issue, see also supra note 25.
(44.)See also Garbesi, Human Right, supra note 6, at 260-65 (liberty, choice, and personal autonomy); supra note 21.
(45.)See also Garbesi, Human Right, supra note 6, at 249-50, 261, 265, 271, aptly arguing also that rights to life, liberty, and security extend to "autonomy in deciding how one will live, as well as for how long," "the incidents of life," and "quality of ... life"; infra note 46; but see Rosenblum & Forsythe, supra note 3, at 21, 31.
(46.)Cruzan, 497 U.S. at 311 (Brennan, J., dissenting). See also supra notes 21-22; Munn v. Illinois, 94 U.S. 113, 142 (1876) (Field, J., dissenting) ("Life, as used in [the 14th Amendment] ... means more than mere animal existence ... its deprivation extends to all those limbs and faculties by which life is enjoyed."); People v. McClean, 3 N.Y.S. 2d 314 (N.Y. Civ. Ct. 1938) ("The right to life ... also includes those things which are necessary to the enjoyment of life.").
(47.)See also Boehm II v. Superior Court, 223 Cal. Rptr. 716, 720-21 (1986); MCDOUGAL, supra note 27, at 788; JOSEPH WRONKA, HUMAN RIGHTS AND SOCIAL POLICY IN THE 21ST CENTURY 3, 6, 27, 29, 31, passim (1992); Paust, Human Dignity, supra note 28, at 179, 187-88; Paust, On Human Rights, supra note 27, at 606 n.439.
(48.)See also supra note 2; Bender, supra note 3, at 520, 530-31.
(49.)Cruzan, 497 U.S. at 288.
(50.)See, e.g., Universal Declaration of Human Rights, supra note 27, art. 5; Garbesi, Human Right, supra note 6, at 265-66; see also Paust, Human Dignity, supra note 28, at 179, 182; Sedler, supra note 3, at 23-24 (deprivation of physician-prescribed medications to hasten death is a "substantial obstacle" for terminally ill persons and produces "unbearable pain and suffering"). On private duties in this regard, see supra note 30.
(51.)See also Garbesi, Human Right, supra note 6, at 265.
(52.)See also id. at 265-66.
(53.)See supra text accompanying note 38.
(54.)See also J.E.S. FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 30 (1969) (European Commission of Human Rights had not considered the question, but a German court "has held that the giving of fatal doses of drugs by a doctor to sick persons, whose death was certain, was not contrary to Article 2."); Garbesi, Human Right, supra note 6, at 260-65, 273.
(55.)See Schaffer, supra note 3, at 355-57; see also Coleman & Shellow, supra note 3, at 680 n.202, 682 n.210, 684 n.216; Conwell & Caine, supra note 9; Marzen, supra note 3, at 804, 811-12 & nn.44-45; Marzen, supra note 3, at 107-08, 111-22, 133-34; supra note 16. Misbin adds, however, that those who are ill and/or disabled may commit suicide earlier than they might otherwise wish because of a significant and terrible fear of pending loss of control and a fear that others (e.g., physicians) will not assist them later. See Misbin, supra note 4, at 1308; see also Newman, supra note 3, at 183. On the seeming irrationality of suicide, the "necromantic nightmare" arguably involved, see also 2 COMPLETE WRITINGS OF THOMAS PAINE 1124 (P. Foner ed., 1969) ("How dismal must the picture of life appear to the mind in that dreadful moment, when it resolves on darkness, and to die! One can scarcely believe such a choice is possible."). Clearly, some instances of self-imposed death are irrational. Others are seemingly irrational or selfish; yet others may be heroic, unselfish, if not rational in context.
(56.)With respect to religious beliefs and the fact that they have not generally been controlling in the past, see, e.g., Engelhardt & Malloy, supra note 15, at 1016; Criminal Liability, supra note 6, [sections] 2, at 5, [sections] 11, at 11-12, [sections] 21, at 21-22, [sections] 31, at 28; see also Suicide, supra note 6, [sections] 111, at 406; but see Stacy, supra note 21.
(57.)On the Jonestown murders, see, e.g., Guyana Official Reports 300 Dead At Religious Sect's Jungle Temple, N.Y. TIMES, 20 Nov., 1978, at 1, Four Hundred Dead in Mass Suicide Cult, N.Y. TIMES, 21 Nov., 1978, at 1, Marzen, supra note 3, at 143-45.
(58.)See also Garbesi, Human Right, supra note 6, at 254.
(59.)See also MCDOUGAL, supra note 27, at 10, 30, 153, 390 & 390, n.37; Richard B. Lillich, Civil Rights, in HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND POLICY ISSUE 115, 123 (Theodor Meron ed., 1984) ("The right to life, it can be argued, does not require an individual to go on living; hence, voluntary euthanasia--either by the administration of drugs or the withdrawal of life support systems--should be allowed."); Battin, supra note 25, at 134, 143 n.5 ("fundamental human right" to control "one's own death as far as possible," but not if "abuse" or "love-sick teenagers"); Garbesi, Human Right, supra note 6, at 260-65, 273 ("seems clear ... that international law ... protects an individual in his or her right, autonomously, and with the aid of others, to decide whether to commit suicide.").
(60.)See also supra note 17; Shaffer, supra note 3, at 358, 367-69, passim; cf. id. at 354; In re Joseph G., 667 P.2d at 1178 (attempted suicide, at least, "intrusion of the criminal law into such tragedies is an abuse,'" quoting Model Penal Code [sections] 210.5, com. 2, at 94 (1980)). Nearly all who write in this area are in favor of some sort of law revision. See supra notes 3-6, 15-17, 22.
(61.)"Values," as we use the term can be categorized in many ways. We recommend consideration of eight values: power, well-being, enlightenment, respect, wealth, skills, rectitude, and affection. These value categories provide a manageable reference to the types of value outcomes demanded, expected, and/or experienced or denied in a given instance of social interaction. For further inquiry, see, e.g., MCDOUGAL, supra note 27, at 6-37, passim.
(62.)With respect to these and the following jurisprudential points, see, e.g., Paust, Human Dignity, supra note 28, at 204-10, and references cited. When making a choice concerning a particular claim or incident, we also recommend use of phase analysis to assure adequate attention to context. See, e.g., MCDOUGAL, supra note 27, at 85, 94-142; Harold D. Lasswell & Myres S. McDougal, Criteria for a Theory About Law, 44 S. CAL. L. REV. 362, 386, 388 (1971). See generally, HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY (1992). Such a focus includes attention to: (1) the claimants or participants; (2) their perspectives (demands, identifications, expections); (3) situations of interaction (actual or likely); (4) resource values (and value positions re: participants); (5) strategies employed (actual or likely); (6) near-term outcomes (actual or probable); and (7) longer-term effects (actual or probable).
(63.)In fact, because human rights law requires use of a necessity test with respect to governmental deprivations of human rights (see supra note 30) and our judiciary has developed a "strict scrutiny" test with respect to "fundamental" rights or liberties (which requires that a governmental deprivation be necessary to promote a compelling or overriding legitimate public interest--see supra note 30), it would be logically consistent for our courts to recognize that human rights are fundamental rights requiring such a standard of review or protection. Indeed, more generally, because international law is part of supreme federal law (see, e.g., Jordan J. Paust, Customary International Law: Its Nature, Sources, and Status as Law of the United States, 12 MICH. J. INT'L L. 59, 84-90 (1990) [hereinafter Customary International Law]), such law and more ordinary domestic US law should be interpreted and applied consistently whenever possible. See, e.g., Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 VA. J. INT'L L. 393, 400 n.9, 411 n.37 (1988). Additionally, US courts have recognized human rights as fundamental rights. See, e.g., Paust, On Human Rights, supra note 27, at 572-87 n.317, 597, 599-601 n.390, 608-09 (inalienable, inviolable, or fundamental). In any event, inconsistent state law should fall under the supremacy clause. See infra note 69.
Additionally, some human rights are more than fundamental, they are peremptory norms (jus cogens) that preempt any inconsistent law regardless of the nature of the state's competing interest. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [sections] 702, cmt. n (1987); see also id. at [sections] 102, cmt. k n.6; MCDOUGAL, supra note 27, at 274, 317-18, 360, 417; 1966 Convenant, supra note 34, art. 4(2) ("No derogation" under any circumstances--e.g., of an individual's right to life or of an individual's right to freedom from torture or cruel, inhuman, or degrading treatment or punishment); American Convention on Human Rights, supra note 36, art. 27(2); cf. Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM. U. L. REV. 1, 32 (1982).
(64.)See, e.g., MCDOUGAL, supra note 27, at 92-93, passim. McDougal, Lasswell, and Chen also recognize the need to maximize personal choice, free from coercion and compatible with the aggregate common interest, and recognize the demands related to human rights "[f]or a merciful euthanasia (for freedom to depart or continue life)... when the decision is based upon an informed, insightful, and mature choice." See id. at 10, 30, 153, 390 n.37.
(65.)See, e.g., MCDOUGAL, supra note 27 (1967).
(66.)See, e.g., id. at 29, 44, 61-62, 99, 260-61, passim; Jordan J. Paust, The Concept of Norm: Toward a Better Understanding of Content, Authority, and Constitutional Choice, 53 TEMP. L. Q. 226, 240-41, passim (1980) [hereinafter The Concept of Norm]. As Justice Brennan wrote more recently with respect to constitutional interpretation: "[t]he act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought." William J. Brennan, Jr., Addresses--Construing the Constitution, 19 U.C. DAVIS L. REV. 2, 4 (1985). For evidence of relevant patterns of behavior and juristically relevant expectation, see, e.g., supra notes 6, 17, 25.
(67.)See, e.g., McDOUGAL, supra note 65, at 29-31, 61 n.22, 62, 99-100, 104-05, 110, 260-61, passim; Paust, supra note 66, at 242-48, passim.
(68.)See, e.g., Paust, The Concept of Norm, supra note 66, at 244-45, passim. See also Paust, Customary International Law, supra note 63, at 63-64, 75.
(69.)In the United States, customary and treaty-based human rights law should prevail over unavoidably inconsistent state law under the supremacy clause of the United States Constitution (art. VI, cl. 2). See, e.g., RESTATEMENT, supra note 63, [sections] 111(1) cmt. d; Paust, Customary International Law, supra note 63, at 84-86; Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT'L L. 760, 764, 766, 773 (1988). See also Garbesi, supra note 6, at 108; supra note 30.
(70.)On such indirect incorporation or use of international law as an interpretive aid, see, e.g., Paust, Human Dignity, supra note 28, at 218-22; Paust, On Human Rights, supra note 27, at 571-611, 650-51; Paust, Self-Executing Treaties, supra note 69, at 781-82; Christopher H. Schreuer, The Impact of International Institutions on the Protection of Human Rights in Domestic Courts, 4 ISRAEL Y.B. HUM. RTS. 60, 76-88 (1974).
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|Author:||Paust, Jordan J.|
|Publication:||Human Rights Quarterly|
|Date:||Aug 1, 1995|
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