Two Test Cases: Posner and Epstein
IN RECENT years, Richard Posner and Richard Epstein have published provocative arguments for the legalization of assisted suicide. Posner introduced Aging and Old Age in 1995, and Epstein followed in 1999 with Mor tal Peril. Posner argued for legalization primarily on practical, or utilitarian, grounds. The benefits associated with legalization, he claimed, outweigh any attendant costs. Legalization would, in this sense, be the “efficient” legal response. Epstein's argument, meanwhile, was equally characteristic of his body of work: in deference to the harm principle and libertarian ideal, he argued that government should leave people unfettered to make their own decisions. These authors exemplify some of the arguments developed in the two preceding chapters and, thus, provide us with test cases: Do the points I have suggested with respect to autonomy-and utilitarian-based theories of assisted suicide and euthanasia withstand these recent thoughtful writings?
Ultimately, I believe they do. The empirical benefits Posner claims will ?ow from legalization are open to question, and Posner's utilitarian calculus founders on the incommensurability problem. Eventually, as I hinted in the last chapter, Posner himself offers an alternative argument; joining Epstein, he suggests that persons should be left to decide for themselves whether to seek assisted suicide because no harm befalls any third party. Yet faithful adherence to libertarian theory tends not merely toward legalizing assisted suicide for the terminally ill, but also toward legalization of assisted suicide, euthanasia, and consensual homicide for all competent adults, regardless of their physical condition or reasons for action.
Posner argues for legalization of assisted suicide primarily on the strength of an empirical claim that it would lead to fewer, not more, suicides.1 Without assisted suicide as a viable legal option, the argument runs, people frightened of disability associated with terminal illness are forced either to kill themselves while they still can or face the prospect of losing self-control.2 If as-