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UC Law Constitutional Quarterly

Abstract

In its physician-assisted suicide cases, the United States Supreme Court ostensibly affimned the distinction between "passive" and "active!' steps to end a patient's life. The Court reiterated its recognition of a right to refuse life-sustaining treatment but rejected a right to physician-assisted suicide. However, Professor Orentlicher argues that, in responding to concerns about unrelieved suffering in some dying patients, the Court compromised the very distinction it was trying to preserve. The Court indicated that suffering patients can turn to "terminal sedation," a practice which often is effectively a "slow euthanasia." The Court not only blurred the distinction between active and passive patient deaths, it also undermined a key argument against legalizing assisted suicide. By implicitly concluding that terminal sedation can be employed by physicians without significant abuse, the Court undermined the objection to assisted suicide that its legalization would be followed by significant abuse. The result is a constitutional scheme that is ethically inferior to one that includes a right to assisted suicide. Terminal sedation serves fewer of the purposes of right-to-die law and poses greater risks to patient welfare than does assisted suicide.

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