The Alleged Distinction Between Euthanasia and the Withdrawal of Life-Sustaining Treatment: Conceptually Incoherent and Impossible to Maintain
David Orentlicher   |   1998 U. Ill. L. Rev.

Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal of treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded.

Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.

* Visiting DeCamp Professor of Bioethics, Princeton University; Associate Professor of Law and Codirector, Center for Law and Health, Indiana University School of Law-Indianapolis. A.B. 1977, Brandeis University; M.D. 1981, Harvard Medical School; J.D. 1986, Harvard Law School. I am grateful for the contributions of Judy Failer.