Eric A. Johnson, Assisted Suicide, Liberal Individualism, and Visceral Jurisprudence: A Reply to Professor Chemerinsky

Article excerpt

Eric A. Johnson, Assisted Suicide, Liberal Individualism, and Visceral Jurisprudence: A Reply to Professor Chemerinsky, 20 ALASKA L. REV. 321 (2003).

In Sampson v. State, 31 P.3D 88 (Alaska 2001), the Alaska Supreme Court addressed the question whether terminally ill persons have a right to the assistance of a physician committing suicide. Professor Erwin Chemerinsky recently offered a critique of Sampson in Privacy and the Alaska Constitution: Failing to Fulfill the Promise, 20 ALASKA L. REV. 29 (2003). He began his critique by recounting the suffering endured by his father during his final days. But his father's suffering does not merely inform Professor Chemefinsky's analysis; it serves as a substitute for analysis. From his experience with his father, Professor Chemerinsky moves directly to the conclusion that the right to privacy "must include a fight, for those like [his] father, to die with dignity." He treats the court's disagreement with him as a kind of insensitivity and betrayal of the right to privacy.

Because the proposed constitutional right to assisted suicide would extend to some persons but not to others, the right cannot be based merely on respect for individuals' strongly held personal convictions. Respecting strongly held personal convictions would mean respecting not just the convictions of those who think that being poor or ugly or chronically (but not terminally) ill makes life valueless. It would also mean respecting the convictions of those who believe that life is not worth living under any conditions. Because the professor presumably does not, and realistically can not, advocate providing lethal drugs to everyone who sincerely believes his or her life is valueless, his right to privacy must be based on the conclusion that some lives are objectively less valuable than others.

This objective valuation would have to be based on disability, rather than on physical pain. The 1999 report on Oregon's experiment with assisted suicide showed that pain was not a decisive factor in the decisions of the "case patients" to commit suicide. Only one of the fifteen patients who committed physician-assisted suicide expressed concern to the physician about inadequate pain control. This data is consistent with numerous other studies, which show that requests for assisted suicide rarely are motivated by pain or fear of pain. Not surprisingly, physical pain played only a very minor role in the efforts of the Sampson plaintiffs to justify assisted suicide. …