Arguments from Fairness and
Equal Protection: If a Right to Refuse,
Then a Right to Assisted Suicide?
OVER the last thirty years, virtually every American jurisdiction has come to recognize a right to refuse medical treatment grounded in common law principles that bar nonconsensual touchings and require informed consent before the administration of medical treatment.1 Debate persists over many aspects of this new right, however, including, not insignificantly, whether and how to extend the right to incompetent persons. Increasingly, “living wills” and “advance directives” are used to instruct family members and physicians on a patient's wishes in the event he or she becomes incompetent. But what about infants or adults who have never been competent, or persons who become incompetent but leave behind no instructions? Some states have tried to extend the right to refuse treatment to these persons by “substituting the judgment” of a competent, court-designated person for the judgment of the incompetent patient.2 Others have developed a “best interest test,” whereby courts themselves purport to decide what is in the incompetent's best interests.3 Both of these doctrines seek to give meaning to a right ordinarily dependent on choice to patients incapable of choosing—and to do so through an agent never selected by the patient.
I will return to some of the central questions raised by patient refusals of care later, in chapter 10. For now, the essential point is that, since the first right-to-refuse case was decided by the New Jersey Supreme Court in 1976,4 virtually every state in the nation has recognized a right, belonging at least to competent adults, to refuse basic, life-sustaining medical care, including tubes supplying food and water. Given the widespread acceptance of such a right, the question naturally follows whether a right to assistance in suicide and euthanasia must also be accepted. If patients have a right to tell their doctors to remove respirators or feeding tubes, in fairness should they also have a right to tell their physicians to administer lethal injections?
The Second Circuit answered this fairness or equal protection ques-