Academic journal article Issues in Law & Medicine

Preface

Academic journal article Issues in Law & Medicine

Preface

Article excerpt

The featured article in this edition of Issues in Law & Medicine, by law professor Yale Kamisar, LL.B., LL.D., analyzes and contrasts the disparate rationales in two United States Supreme Court cases. In Washington v. Glucksberg, the Court held that there was no privacy right in the United States Constitution that included physician-assisted suicide (PAS). Not a single justice dissented. In contrast, the Court in Lawrence v. Texas held that there is a constitutional right to privacy that includes consensual homosexual conduct, and that states cannot criminalize such behavior. It is not easy to reconcile the legal rationale of these two holdings. Lawrence takes a much more expansive view of substantive due process than does Glucksberg. Prof. Kamisar concludes that although it is conceivable that the five Justices who made up the Lawrence majority - all of whom still sit on the Court - might overrule Glucksberg, that seems improbable.

Prof. Kamisar discusses various considerations that might cause a court to resist finding a right to PAS for the terminally ill. First, such a right is not easily limited. If personal autonomy applies to the time and manner of a terminal patient's death, why doesn't it apply whenever a competent person believes that death is better than life? Second, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. Third, no state supreme court has found a right to PAS in its own state constitution. And fourth, although legislative attempts to legalize PAS have occurred in twenty states in the decade since Glucksberg, no state legislature has done so.

The second article, by Herbert Hendin, M.D., and Kathleen Foley, M.D., examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, the authors conclude that the safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division (OPHD), which is charged with monitoring how the law is working. The authors find that OPHD does not collect the information it needs to effectively monitor the law's application and in actions and publications it appears to be more interested in defending the law rather than protecting patient welfare. …

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