¹ Lisa, Belkin, Doctor Tells of First Death Using His Suicide Device, N.Y. TIMES, June 6, 1990, at A1Google Scholar.

² Timothy E., Quill, Death and Dignity: A Case of Individualized Decision Making, 324 NEW ENG. J. MED. 691 (1991).Google Scholar

³ See Tamar, Lewin, Doctor Cleared of Murdering Woman with Suicide Machine, N.Y. TIMES, Dec. 14, 1990, at B6Google Scholar; William E., Schmidt, Prosecutors Drop Criminal Case Against Doctor Involved in Suicide, N.Y. TIMES, Dec. 15, 1990, § 1, at 10Google Scholar. However, in a subsequent civil action, a Michigan court barred Kevorkian from using his suicide machine. See Michigan Court Bars Doctor from Using His Suicide Machine, N.Y. TIMES, Feb. 6, 1991, at A13.

After Kevorkian helped two more women, Sherri Miller and Marjorie Wantz, kill themselves using other suicide devices he had created, the Michigan Board of Medicine suspended his license to practice indefinitely. See Michigan Board Suspends License of Doctor Who Aided in Suicide, N.Y. TIMES, NOV. 21, 1991, at D22. Kevorkian was subsequently indicted for murder in the two later deaths, but a Michigan judge again dismissed the charges against him. See Murder Charges Against Kevorkian Are Dismissed, N.Y. TIMES, July 22, 1992, at A12. As of February 25, 1993, Kevorkian had assisted in a total of fifteen suicides. See Kevorkian-Aided Suicide Investigated as Homicide, N.Y. TIMES, Feb. 26, 1993, at A10.

⁴ Lawrence K., Altman, Jury Declines to Indict a Doctor Who Said He Aided in a Suicide, N.Y. TIMES, July 27, 1991, § 1, at 1Google Scholar.

⁵ Lisa W., Foderaro, New York Will Not Discipline Doctor for His Role in Suicide, N.Y. TIMES, Aug. 17, 1991, § 1, at 25.Google Scholar

⁶ See Andrew H., Malcolm, Many See Mercy in Ending Empty Lives, N.Y. TIMES, Sept. 23, 1984, § 1, at 1Google Scholar; Louis, HARRIS, INSIDE AMERICA 154-56 (1987)Google Scholar.

⁷ Richard A., Knox, Poll: Americans Favor Mercy Killing, BOSTON GLOBE, Nov. 3, 1991, at 1.Google Scholar

⁸ See Allan, Parachini, The California Humane and Dignified Death Initiative, HASTINGS CENTER REP., Jan.-Feb. 1989, at Special Supp. 10, 10Google Scholar; Katherine, Bishop, Backers Fail to Get Lethal Injection Bid on California Ballot, N.Y. TIMES, May 18, 1988, at A23.Google Scholar

⁹ See infra notes 152-54 and accompanying text. The American Medical Association (“AMA“) differentiates between such physician conduct in the following way:

COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AMERICAN MEDICAL ASS'N, REPORT: D (A-91), DECISIONS NEAR THE END OF LIFE 3 (1991) [hereinafter AMA DECISIONS].

¹⁰ See Jane, Gross, The 1991 Election: Euthanasia; Voters Turn Down Mercy Killing Idea, N.Y. TIMES, Nov. 7, 1991, at B16.Google Scholar

¹¹ After the defeat of Washington's 1-119, the Hemlock Society and other proponents of physician-assisted suicide shifted their focus to California, Oregon, and Florida, vowing to put physician-assisted suicide referenda before California voters in 1992, Oregonians in 1994, and Floridians in 1996. See Janny, Scott, Suicide Aid Focus Turns to California, L.A. TIMES, NOV. 7, 1991, at A3Google Scholar. The November 1992 California ballot placed Proposition 161 (“P-161“), the so-called “Death with Dignity Act,” which sought to legalize aid-in-dying, before that state's voters for their consideration. See Leslie, Berkman, O.C. in Middle of ‘Death with Dignity’ Debate, L.A. TIMES, Oct. 4, 1992, at A1Google Scholar. While P-161 was ultimately defeated, it received 46% of the popular vote, exactly the same margin of popular support as did Washington's I-l 19. See Assisted Suicide Stays in the News, CHOICE IN DYING NEWS (Choice in Dying — the National Council for the Right to Die, New York, N.Y.), Winter 1992, at 2. This is not surprising, given that, in several important respects, P-161 resembles I-l 19. Compare Proposition 161: Text of Proposed Law, in CALIFORNIA BALLOT PAMPHLET: GENERAL ELECTION - NOVEMBER 3, 1992 [hereinafter Complete Text P-161﹜ with OFFICE OF THE SECRETARY OF STATE, Complete Text of Initiative Measure 119, in VOTERS PAMPHLET: STATE GENERAL ELECTION - NOVEMBER 5, 1991 [hereinafter Complete Text 1-119], This Note will point out relevant similarities and dissimilarities between the two initiatives.

For a detailed discussion of 1-l19 and other referenda, see infra notes 147-54, 158 and accompanying text.

¹² See Complete Text 1-119, supra note 11, §§ 2(4), 3(1), at 27-28.

¹³ See id. §§ 2(9), 3(1), at 28.

¹⁴ Euthanasia may be categorized as voluntary or involuntary, active or passive. It is voluntary when performed at the victim's request or at least with her consent; otherwise, it is involuntary. See Tom L., Beauchamp & Seymour, Perlin, Euthanasia and Natural Death, in ETHICAL ISSUES IN DEATH & DYING 216, 219 (Tom L., Beauchamp & Seymour, Perlin eds., 1978).Google Scholar Moreover, in the medical context, euthanasia is described as active when the doctor takes direct affirmative action designed to kill the patient, or as passive when the physician merely withholds or withdraws treatment, thereby allowing the patient to die. See James, Rachels, Active and Passive Euthanasia, 292 NEW ENG. J. MED. 78, 78 (1975).Google Scholar Recently, however, the American Medical Association stated that “most experts now reject the use of the term ‘passive euthanasia.’ “ AMA DECISIONS, supra note 9, at 3.

In addition, the AMA analysis proposes expanding the traditional voluntary-involuntary dichotomy along tripartite lines. Euthanasia is described as “voluntary” when performed at the patient's informed request; as “nonvoluntary” if performed on an incompetent patient in accordance with a surrogate's decision; and as “involuntary” when performed against a person's will. AMA DECISIONS, supra note 9, at 3.

¹⁵ See Complete Text 1-119, supra note 11, § 2(9), at 28.

¹⁶ In re Conroy, 486 A.2d 1209, 1224 (N.J. 1985); accord Bouvia v. Superior Court, 225 Cal. Rptr. 297, 306 (Cal. Ct. App. 1986); Lane v. Candura, 376 N.E.2d 1232, 1236 (Mass. App. Ct. 1978).

¹⁷ See ALAN, MEISEL, THE RIGHT TO DIE § 1.8, at 14–15 (1989 & Supp. 1992).Google Scholar

¹⁸ See supra note 9 and infra notes 65-75 and accompanying text.

¹⁹ See infra notes 81-92 and accompanying text.

²⁰ See George C., Garbesi, The Law of Assisted Suicide, 3 ISSUES L. & MED. 93, 106-07 (1987)Google Scholar; Stephen A., Newman, Euthanasia: Orchestrating “The Last Syllable of… Time,“ 53 U. PITT. L. REV. 153, 154 (1991)Google Scholar; Catherine D., Shaffer, Note, Criminal Liability for Assisting Suicide, 86 COLUM. L. REV. 348, 363 (1986)Google Scholar; Steven J., Wolhandler, Note, Voluntary Active Euthanasia for the Terminally III and the Constitutional Right to Privacy, 69 CORNELL L. REV. 363, 363, 366 (1984).Google Scholar

²¹ Shaffer, supra note 20, at 363.

²² Such questions are also germane to determining whether a patient's right to die, which currently embraces only her right to refuse unwanted medical treatment, should be extended to include PAS and PCVAE. The case for such an extension is eloquently argued in Note, Physician- Assisted Suicide and the Right to Die with Assistance, 105 HARV. L. REV. 2021 (1992). To the extent that the aforementioned Note posits that refusal of treatment is substantively undifferentiated from PAS and PCVAE and favors including both in the right to die, it fundamentally differs in perspective from this Note.

²³ This Note does not focus on doctors’ actions in cases in which patients decline life-sustaining treatment. Reference to refusal of treatment cases occurs only when they specifically mention suicide, the state interest in its prevention, and/or the state interest in protecting the ethics of the medical profession.

²⁴ However, it is noteworthy that the Scriptures contain no explicit prohibition of suicide per se. See Darrel W., Amundsen, Suicide and Early Christian Values, in SUICIDE AND EUTHANASIA 77, 77 (Baruch A., Brody ed., 1989).Google Scholar While suicides are discussed in the Bible, they are never condemned. The Old Testament contains three cases of possible suicide: Samson, Saul, and Achitophel. Baruch A., Brody, A Historical Introduction to Jewish Casuistry on Suicide and Euthanasia, in SUICIDE AND EUTHANASIA, supra, at 39, 40Google Scholar. In contrast, the New Testament never discusses the act. Judas's suicide is the New Testament's sole recorded self-killing, and it is reported but not examined. Amundsen, supra, at 81.

²⁵ GLANVILLE, WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW 257 (1957).Google Scholar

²⁶ Id. at 257, 261.

²⁷ 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *190.

²⁸ John V., Barry, Suicide and the Law, 5 MELB. U. L. REV. 1, 2–3 (1965)Google Scholar; Dennis E., Hoffman & Vincent J., Webb, Suicide as Murder at Common Law, 19 CRIMINOLOGY 372, 376-77 (1981).Google Scholar

²⁹ See WILLIAMS, supra note 25, at 261-62, 273.

³⁰ “Felo” referred to crimes involving a breach of trust between a person and his lord. Hoffman & Webb, supra note 28, at 374. “Felony,” a label reserved for the worst crimes, appears to be derived from the Latin “fell,” meaning bitterness, venom. Id. Hence, “felo de se,” or felony committed on one's self, was derived from “felo” when suicide came to be viewed as a felony. Id.

³¹ BLACKSTONE, supra note 27, at *189.

³² Id.

³³ Id. (emphasis added). The close ties between what American courts have deemed the state's interest in the preservation of life and its interest in preventing suicide receive early confirmation here.

³⁴ Id. at *190.

³⁵ In a leading English case, Hales v. Petit, Sir James Hale, a judge of the Common Bench, was found by the coroner to have committed suicide by feloniously and voluntarily drowning himself in a river. When his widow challenged the forfeiture of certain leaseholds to the Crown, the court found that the leaseholds, as chattels real, must be forfeited. See Hales v. Petit, 1 Plowden 253, 75 Eng. Rep. 287 (C.B. 1562).

³⁶ See Rex v. Dyson, Russ. & Ry. 523, 524 (1823); see also Commonwealth v. Mink, 123 Mass. 422, 425 (1877) (discussing English common law); McMahan v. State, 53 So. 89, 90 (Ala. 1910); Hicks v. Commonwealth, 82 S.W. 265, 266 (Ky. 1904).

³⁷ See Thomas J., Marzen et al., Suicide: A Constitutional Right?, 24 DUQ. L. REV. 1, 64–68 (1985).Google Scholar

³⁸ HOWARD I., KUSHNER, AMERICAN SUICIDE 22 (1989).Google Scholar

³⁹ Marzen et al., supra note 37, at 65 (quoting THE GENERAL LAWS AND LIBERTIES OF THE MASSACHUSETTS COLONY (1672), reprinted in THE COLONIAL LAWS OF MASSACHUSETTS 137 (W. Whitmore ed., 1887)).

⁴⁰ Id. at 69.

⁴¹ See Shaffer, supra note 20, at 350. For a slightly different perspective, see Commonwealth v. Mink, 123 Mass. 422, 428-29 (1877) (holding that, because of its unpunishable nature, suicide was not technically a felony, but criminal only as malum in se).

⁴² Marzen et al., supra note 37, at 69.

⁴³ See KUSHNER, supra note 38, at 32-34.

⁴⁴ See James, Bopp Jr., Is Assisted Suicide Constitutionally Protected?, 3 ISSUES L. & MED. 113, 135-40 (1987).Google Scholar

⁴⁵ In addition to the state's interest in the prevention of suicide, the state has an asserted interest in: the preservation of life; the protection of innocent third parties; and maintaining the ethical integrity of the medical profession. See Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417, 425 (Mass. 1977); see also Satz v. Perlmutter, 362 So. 2d 160, 162-63 (Fla. Dist. Ct. App. 1978); McKay v. Bergstedt, 801 P.2d 617, 625-27 (Nev. 1990).

⁴⁶ See Saikewicz, 370 N.E.2d at 426 n.l 1; Satz, 362 So. 2d at 162-63; McKay, 801 P.2d at 625.

⁴⁷ See supra notes 25-27 and accompanying text.

⁴⁸ See supra notes 28-29 and accompanying text.

⁴⁹ See supra note 43 and accompanying text.

⁵⁰ See Everson v. Board of Education, 330 U.S. 1, 18 (1947) (“[The First] Amendment requires the state to be neutral in its relations with groups of religious believers and nonbelievers ….“).

⁵¹ See 5 THE OXFORD ENGLISH DICTIONARY 444 (2d ed. 1989) (for etymology of English words); 1 HENRY G., LIDDELL & ROBERT, SCOTT, A GREEK-ENGLISH LEXICON 714, 731, 784 (New ed. 1940) (for translation of combined Greek words).Google Scholar

⁵² John M. Cooper, Greek Philosophers on Euthanasia and Suicide, in SUICIDE AND EUTHANASIA, supra note 24, at 9, 9-10.

⁵³ See Brody, supra note 24, at 39, 62-64.

⁵⁴ See WILLIAMS, supra note 25, at 313-14. Jews and all Protestants except Lutherans count this as the Sixth Commandment; Roman Catholics and Lutherans denominate it the Fifth Commandment. See 4 NEW CATHOLIC ENCYCLOPEDIA 5 (William J. McDonald et al. eds., 1967); 1 THE ENCYCLOPEDIA OF THE LUTHERAN CHURCH 539 (Julius Bodensieck ed., 1965).

⁵⁵ THOMAS, MORE, UTOPIA 102 (Paul, Turner trans., Penguin Books 1965) (1st ed. 1516) (emphasis added).Google Scholar

⁵⁶ See Helen, Silving, Euthanasia: A Study in Comparative Criminal Law, 103 U. PA. L. REV. 350, 380-81 (1954).Google Scholar

⁵⁷ See Rex v. Simpson, 84 L.J.K.B. 1893 (1915) (despite his kind motive, a soldier who killed his extremely ill son because he could not see the child suffer any longer was held guilty of murder).

⁵⁸ Suicide Act, 1961, 9 & 10 Eliz. 2, ch. 60, § 1. Prior to the passage of this statute, English courts punished attempted suicide on the theory that every attempt to commit a crime is punishable. WILLIAMS, supra note 25, at 273. Because the statute explicitly decriminalizes suicide, by implication it also decriminalizes attempted suicide.

⁵⁹ Id. §2(1).

⁶⁰ Marzen et al., supra note 37, at 5 n.12. However, some states still retain the common law classification of suicide as a crime. See, e.g.. In re Marlene B., 540 A.2d 1028, 1028-29 (R.I. 1988) (per curiam).

⁶¹ ALASKA STAT. § 11.41.120 (1989); ARIZ. REV. STAT. ANN. § 13-1103 (1989); ARK. CODE ANN. § 5-10-104 (Michie 1987); CAL. PENAL CODE § 401 (West 1988 & Supp. 1993); COLO. REV. STAT. § 18-3-104 (1986); CONN. GEN. STAT. ANN. § 53a-56 (West 1985); DEL. CODE ANN. tit. 11, § 645 (1987 & Supp. 1990); FLA. STAT. ANN. § 782.08 (West 1992); HAW. REV. STAT. § 707-702 (1988); IND. CODE ANN. § 35-42-1-2 (West 1986); KAN. STAT. ANN. § 21-3406 (1971); ME. REV. STAT. ANN. tit. 17-A, § 204 (West 1964); Act of Dec. 15, 1992, 1992 Mich. Pub. Acts 270 as amended by Act of Feb. 25, 1993, 1993 Mich. Pub. Acts 3 (effective Feb. 25, 1993); MINN. STAT. ANN. § 609.215 (West 1987 & Supp. 1993); Miss. CODE ANN. § 97-3-49 (1972); Mo. ANN. STAT. § 565.023(2) (Vernon Supp. 1992); MONT. CODE ANN. § 45-5-105 (1991); NEB. REV. STAT. § 28- 307 (1989); N.H. REV. STAT. ANN. § 630:4 (1986); NJ. STAT. ANN. § 2C:ll-6 (West 1982); N.M. STAT. ANN. § 30-2-4 (Michie 1984); N.Y. PENAL LAW §§ 120.30, 125.15(3), 125.25(l)(b) (McKinney 1987); N.D. CENT. CODE § 12.1-16-04 (Supp. 1991); OKLA. STAT. ANN. tit. 21, §§ 813-818 (West 1983); OR. REV. STAT. § 163.125(l)(b) (1991); 18 PA. CONS. STAT. ANN. § 2505 (1983 & Supp. 1992); P.R. LAWS ANN. tit. 33, § 4009 (1983); S.D. CODIFIED LAWS ANN. § 22-16-37 (1988); TEX. PENAL CODE ANN. § 22.08 (West 1989); V.I. CODE ANN. tit. 14, § 2141 (1964); WASH. REV. CODE ANN. § 9A.36.060 (West 1988); Wis. STAT. ANN. § 940.12 (West 1982).

⁶² See Commonwealth v. Hicks, 82 S.W. 265, 266-67 (Ky. 1904); Commonwealth v. Mink, 123 Mass. 422,428-29 (1877); Blackburn v. State, 23 Ohio St. 146, 163 (1872); State v. Jones, 67 S.E. 160, 165 (S.C. 1910); Turner v. State, 108 S.W. 1139, 1141 (Tenn. 1908).

⁶³ MODEL PENAL CODE § 210.5(1) (Proposed Official Draft 1962).

⁶⁴ Id. §210.5(2).

⁶⁵ Sidney H., Wanzer et al., The Physician's Responsibility Toward Hopelessly III Patients: A Second Look, 320 NEW ENG. J. MED. 844, 848 (1989)Google Scholar (emphasis added). 66 Id.

⁶⁷ See H. Tristram, Engelhardt Jr. & Michele, Malloy, Suicide and Assisting Suicide: A Critique of Legal Sanctions, 36 Sw. L.J. 1003, 1029 (1982)Google Scholar; Wanzer et al., supra note 65, at 848 (“we know of no physician who has ever been prosecuted in the United States for prescribing pills in order to help a patient commit suicide.“).

⁶⁸ See supra notes 1-5 and accompanying text.

⁶⁹ 178 N.W. 690, 694 (Mich. 1920).

⁷⁰ See Lewin, supra note 3.

⁷¹ Id.

⁷² Id. While he disagreed with the dismissal of murder charges, Richard Thompson, the prosecutor, subsequently agreed with that part of the court's ruling that noted the lack of an assisted suicide statute in Michigan. See Schmidt, supra note 3. In the summer of 1992, this lacuna was judicially cited anew as the justification for dismissing the murder charges against Kevorkian in the Miller and Wantz deaths. See Murder Charges Against Kevorkian Are Dismissed, supra note 3.

⁷³ People v. Campbell, 335 N.W.2d 27, 31 (Mich. Ct. App. 1983), appeal denied, 342 N.W.2d 519 (Mich. 1984).

⁷⁴ Id. at 30.

⁷⁵ Id. at 30-31.

⁷⁶ This bill proposed making suicide assistance a felony punishable by up to four years in prison and a $2,000 fine. Schmidt, supra note 3, at 10. On December 15, 1992, Michigan enacted a statute temporarily imposing these penalties for assisting a suicide. As amended, the statute became effective February 25, 1993, and remains in effect for up to 21 months while a commission studies the issue of “voluntary self-termination.” Act of Dec. 15, 1992, 1992 Mich. Pub. Acts 270 as amended by Act of Feb. 25, 1993, 1993 Mich. Pub. Acts 3 (effective Feb. 25, 1993).

Interestingly, Michigan appears to have previously considered similar legislation, but did not pass it. In 1983, in People v. Campbell, the Michigan Court of Appeals noted that the Michigan legislature then had pending before it a bill that proposed making incitement to suicide a felony punishable by ten years in prison. See People v. Campbell, 335 N.W.2d 27, 30 (Mich. Ct. App. 1983).

⁷⁷ See supra note 4 and accompanying text.

⁷⁸ See N.Y. PENAL LAW § 120.30 (McKinney 1987) (“A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.“).

⁷⁹ Id. § 125.15(3) (“A person is guilty of manslaughter in the second degree when … [h]e intentionally causes or aids another person to commit suicide.“).

⁸⁰ See id. § 125.25(l)(b) (“A person is guilty of murder in the second degree when … [t]he defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.“).

⁸¹ However, the New Jersey Advance Directives for Health Care Act does contain the following admonitory language: “[T]his State expressly rejects on both legal and moral grounds the practice of active euthanasia. No individual shall have the right to, nor shall any physician or other health care professional be authorized to engage in, the practice of active euthanasia.” N J. STAT. ANN. § 26(2)(H)(iv)(e) (West 1992).

⁸² State v. Bouse, 264 P.2d 800, 812 (Or. 1953) (emphasis added), overruled on other grounds by State v. Fischer, 376 P.2d 418 (Or. 1962); see In re Joseph G., 667 P.2d 1176, 1180 (Cal. 1983).

⁸³ In a tort action for battery, for example,-absence of the victim's consent is necessary since consent would defeat the notion that the contact involved was offensive and unwanted. See W. PAGE, KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 9, at 42 (5th ed. 1984)Google Scholar.

⁸⁴ Id. § 18, at 122; see WAYNE R., LAFAVE & AUSTIN W., SCOTT JR., CRIMINAL LAW § 5.11, at 477 (2d ed. 1986).Google Scholar

⁸⁵ Martin v. Commonwealth, 37 S.E.2d 43, 47 (Va. 1946).

⁸⁶ 108 S.W. 1139, 1140 (Tenn. 1908).

⁸⁷ Id. at 1141.

⁸⁸ 336 P.2d 505 (Cal. 1959).

⁸⁹ Id. at 511 (quoting State v. Bouse, 264 P.2d 800, 812 (Or. 1953), overruled on other grounds by State v. Fischer, 376 P.2d 418 (Or. 1962)).

⁹⁰ LAFAVE & SCOTT, supra note 84, § 3.6, at 227-28.

⁹¹ Id. § 7.1(a), at 605-07.

⁹² 411 P.2d 911,918 (Cal. 1966) (en banc) (“[O]ne who commits euthanasia bears no ill will toward his victim and believes his act is morally justified, but he nonetheless acts with malice if he is able to comprehend that society prohibits his act regardless of his personal belief.“). A subsequent California statute superseded the holding in this case, stipulating that an awareness of the obligation to act within the general body of laws regulating society was no longer required for malice; the intentional kiling of another would be sufficient. See CAL. PENAL CODE § 188 (West 1988). Hence, an agent's motivation in killing does not preclude malice. See id.

⁹³ 280 Cal. Rptr. 146, 151 (Cal. Ct. App. 1991). At trial, the defendant was convicted of second-degree murder for killing an acquaintance suffering from AIDS. Id. at 150. He claimed that the victim had requested his action. Id. at 149-50.

⁹⁴ Id. at 151-52.

⁹⁵ 487 So. 2d 1185, 1190 (Fla. Dist. Ct. App. 1986).

⁹⁶ Id.

⁹⁷ Id. (“Euthanasia is not a defense … and this court has been furnished with no law or statute to the contrary.“) (emphasis added).

⁹⁸ See Cleaves, 280 Cal. Rptr. at 151-52 (acknowledging that the California Supreme Court had not considered the absence of malice issue with regard to a new manslaughter crime for a killing at the victim's request, but stating that: “We leave it to our Supreme Court to resolve whether it is appropriate to examine the malice issue as it pertains to a killing at the victim's request.“).

⁹⁹ New Hampshire doctor Hermann Sander was charged with and acquitted of first-degree murder in the mercy-killing of an incurably ill cancer patient whom he had injected with 40 cc. of air. For news accounts summarizing his trial, see Russell, Porter, Mercy Death Trial Begins Tomorrow, N.Y. TIMES, Feb. 19, 1950, at 12Google Scholar; Russell, Porter, Dr. Sander Denies He Killed Patient; Says Mind Snapped, N.Y. TIMES, Mar. 7, 1950, at 1Google Scholar; Russell, Porter, Sander Acquitted in an Hour; Crowd Outside Court Cheers, N.Y. TIMES, Mar. 10, 1950, at 1.Google Scholar

While Sander admittedly performed his action at the repeated request of the victim's husband, it is unclear whether or not the request originated with the victim herself. I have nonetheless chosen to report this case as one of voluntary (i.e., patient-requested) euthanasia, assuming for the sake of argument that the victim's husband had her permission to ask Sander for his help.

¹⁰⁰ In 1974, a Nassau County, New York jury acquitted Dr. Montemarano of the charge of murdering a comatose cancer patient. See Roy R., Silver, Physician Acquitted in Patient's Death, N.Y. TIMES, Feb. 6, 1974, at 1Google Scholar. Montemarano had been charged with injecting the patient with a lethal dose of potassium chloride. Id. While the comatose patient could not have requested Montemarano's action at that time, it is unclear whether Montemarano acted in accord with the patient's prior request. If so, his behavior is an example of PCVAE. If not, his was an act of involuntary active euthanasia.

¹⁰¹ Dr. Rosier's case most clearly involves a physician's helping a terminally ill patient who had already decided to die. In 1986, Rosier injected his cancer-ridden wife, Patricia, with morphine, after she had failed in her deliberate attempt to kill herself with an overdose of sleeping pills. See Doctor Freed in Wife's Death, N.Y. TIMES, Dec. 2, 1988, at A20. In December 1988, Rosier was acquitted by a St. Petersburg, Florida jury. See id. The morphine actually had not caused Patricia Rosier's death; rather, her stepfather suffocated her, but had been granted immunity from prosecution before prosecutors discovered her cause of death. See id.

¹⁰² Hassman was formally charged with manslaughter for fatally injecting his mother-in-law, who suffered from advanced Alzheimer's disease, with the painkiller Demerol. See Michael, Winerip, Prosecutor Ponders Mercy for a Mercy-Killing Doctor, N.Y. TIMES, Nov. 25, 1986, at B4Google Scholar. It is unclear whether Hassman acted in accordance with the patient's desire for aid-in-dying expressed to him or to her husband prior to her Alzheimer-induced incompetency, or whether Hassman simply acted on his own initiative.

¹⁰³ See Alfonso A., Narvaez, Doctor Is Spared Jail Term in Mercy Killing, N.Y. TIMES, Dec. 20, 1986, at 29Google Scholar. In addition to probation, Hassman was fined $10,000 and was required as a part of his sentence to perform 200 hours of community service in each year of probation. Id.

¹⁰⁴ See supra notes 67, 99-103 and accompanying text.

¹⁰⁵ Helen Silving makes an argument along these lines in her seminal article, Euthanasia: A Study in Comparative Criminal Law, 103 U. PA. L. REV. 350, 353-54, 386-89 (1954). Silving's conclusion, however, differs. Silving recommends adopting euthanasia legislation that considers motive and circumstances in determining criminal penalties for mercy-killing. See id. at 386-88. Silving would not decriminalize such actions altogether. See id. at 387-88.

¹⁰⁶ In fact, Silving does propose such an alternative. See id. at 387-88.

¹⁰⁷ For the distinction between individual acts, on the one hand, and a social practice, on the other, see John, Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 3–13 (1955).Google Scholar

¹⁰⁸ Yale, Kamisar, Some Non-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 MINN. L. REV. 969, 974 (1958).Google Scholar

¹⁰⁹ See id. at 976, 1014-41.

¹¹⁰ Id. at 976 (“[T]he danger [is] that legal machinery initially designed to kill those who are a nuisance to themselves may someday engulf those who are a nuisance to others.“).

¹¹¹ Kamisar's position does not, however, assert a conceptual slippery slope argument of the form: Y follows X because X and Y are so conceptually related that it is impossible to draw a nonarbitrary line between the two. Rather, Kamisar's argument is much more forceful and is a variant of a causal slippery slope argument: Y follows X because X causes or is highly likely to cause Y.

I here follow the distinction between conceptual and causal slippery slope arguments made by John D., Arras, The Right to Die on the Slippery Slope, 8 SOCTHEORY & PRAC. 285, 288-89 (1982).Google Scholar Bernard Williams similarly distinguishes these types of slippery slope arguments, denominating them the “arbitrary result” and “horrible result” arguments, respectively. See Bernard, Williams, Which Slopes Are Slippery?, in MORAL DILEMMAS IN MODERN MEDICINE 126, 126 (Michael, Lockwood ed., 1985).Google Scholar

¹¹² See Gregory, Gelfand, Euthanasia and the Terminally III Patient, 63 NEB. L. REV. 741, 765-66 (1984)Google Scholar; Kamisar, supra note 108, at 1030-36.

¹¹³ Literally, “a life not worthy of life.“

¹¹⁴ See Kamisar, supra note 108, at 1030-36.

¹¹⁵ A translation of Hitler's October 1939 secret decree ordering involuntary active euthanasia was introduced at the Nuremberg Trials:

Reprinted in ALEXANDER, MITSCHERLICH, DOCTORS OF INFAMY 92 (1949)Google Scholar.

¹¹⁶ Under article 293 of the Dutch Penal Code, deliberately terminating the life of another at the other's express request is a criminal offense punishable by a maximum twelve-year prison term. Henk, Rigter, Euthanasia in the Netherlands: Distinguishing Facts from Fiction, HASTINGS CENTER REP., Jan.-Feb. 1989, at Special Supp. 31, 31.Google Scholar

¹¹⁷ See id. Several of the conditions that must be met apply to the patient, while others apply to the physician. The patient must: (a) expressly and repeatedly request to die, leaving no room for reasonable doubt about her desire; (b) be undergoing severe mental or physical suffering with no prospect of relief; (c) make a well-informed, free, and enduring decision; and (d) refuse other care or otherwise have exhausted all other care options. Id. The physician must: (1) consult at least one other doctor and is advised to keep a record of the course of events; and (2) invoke a defense of force majeure if indicted. Id.

¹¹⁸ See id.

¹¹⁹ See M.A.M. de, Wachter, Active Euthanasia in the Netherlands, 262 JAMA 3316, 3317 (1989).Google Scholar

¹²⁰ See Richard, Fenigsen, A Case Against Dutch Euthanasia, HASTINGS CENTER REP., Jan.-Feb. 1989, at Special Supp. 22, 22, 23CrossRefGoogle Scholar; J.K.M., Gevers, Legal Developments Concerning Active Euthanasia on Request in the Netherlands, 1 BIOETHICS 156, 161 (1987).CrossRefGoogle Scholar However, another author has stressed that, as of October 1989, no official statistics on the incidence of PCVAE in the Netherlands existed. See de Wachter, supra note 119, at 3316.

¹²¹ Fenigsen, supra note 120, at 22.

¹²² Id. at 24; see id. at 24-26.

¹²³ See id.

¹²⁴ See Richard, Fenigsen, Euthanasia in the Netherlands, 6 ISSUES L. & MED. 229, 237 (1990)Google Scholar. In the poll, 77% of the respondents expressed “some” or “considerable” understanding for someone who kills a parent without his or her consent, out of mercy; 43% approved involuntary active euthanasia for people who are unconscious ‘'with little chance of recovery.” Id.

¹²⁵ See id. at 235-37. “During the twenty years of its open history, the theory and the rhetoric of Dutch euthanasia have undergone a distinct evolution from the enthusiastically embraced involuntary euthanasia to the present emphasis on voluntariness.” Id. at 235-36.

¹²⁶ See Bopp, supra note 44, at 113-40; Marzen et al., supra note 37, at 100.

¹²⁷ 497 U.S. 261 (1990).

¹²⁸ See id. at 293 (Scalia, J., concurring).

¹²⁹ See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

¹³⁰ See supra notes 28-35, 37-40 and accompanying text.

¹³¹ Adamson v. California, 332 U.S. 46, 67 (1947) (Frankfurter, J., concurring).

¹³² Joel, Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFF. 93 (1978).Google Scholar

¹³³ THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).

¹³⁴ Feinberg, supra note 132, at 93.

¹³⁵ See WESLEY N., HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED INJUDICIAL REASONING 36–38 (Walter W., Cook ed., 1919)Google Scholar.

¹³⁶ Regardless of whether the Founding Fathers espoused the general notion of a just war, they unequivocally supported a particular war, the American Revolution. See generally Right of Revolution, in 1 THE FOUNDERS’ CONSTITUTION 76 (Philip B. Kurland & Ralph Lerner eds., 1987) (containing documents by Hamilton, Jefferson, Madison, and others deeming insurrection and rebellion to be right under the circumstances).'

¹³⁷ Samuel, Adams, The Rights of the Colonists, in 5 THE FOUNDERS’ CONSTITUTION, supra note 136, at 394, 395.Google Scholar

¹³⁸ According to Feinberg, this conundrum has puzzled writers since Aristotle. See Feinberg, supra note 132, at 119.

¹³⁹ John Stuart Mill articulated the classic statement of this view:

JOHN STUART, MILL, ON LIBERTY 10 (Alburey, Castell ed., Crofts Classics 1947) (1859)Google Scholar.

¹⁴⁰ 105 N.E. 92 (N.Y. 1914) (Cardozo, J.), overruled on other grounds by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957).

¹⁴¹ Id. at 93; see also Wilkinson v. Vesey, 295 A.2d 676, 687 (R.I. 1972) (“[T]he patient's right to make his decision in light of his own individual value judgment is the very essence of his freedom of choice … .“).

¹⁴² This is essentially the argument outlined in Note, supra note 22, at 2024-28.

¹⁴³ See, e.g., Gray v. Grunnagle, 223 A.2d 663, 674 (Pa. 1966) (” ‘[T]he agreement between the physician and his patient is contractual in nature … . ‘ “ (quoting Robert E., Powell, Consent to Operative Procedures, 21 MD. L. REV. 189, 192 (1961)))Google Scholar; Troyen A., Brennan, Ensuring Adequate Health Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease, 1988 DUKE L.J. 29, 35 (“The paradigm for establishment of the doctor-patient relationship has long been one of contract.“).Google Scholar

¹⁴⁴ See, e.g., Randy E., Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269, 290 (1986)Google Scholar (“[I]t is widely recognized that agreements to perform illegal acts should not be enforceable. Similarly, slavery contracts are also thought to be unenforceable per se.“).

¹⁴⁵ See I PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 38-39 (1982); Note, Wrongful Birth Actions: The Case Against Legislative Curtailment, 100 HARV. L. REV. 2017, 2032 (1987) (“A physician's role is to inform on the basis of his expert knowledge … .“).

¹⁴⁶ Despite his staunch commitment to individual autonomy, even John Stuart Mill recognized that the principle of self-determination is not unbounded. See MILL, supra note 139, at 104 (“[B]y selling himself for a slave, [the individual] abdicates his liberty; he forgoes any future use of it beyond that single act… . The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom.“).

¹⁴⁷ Complete Text 1-119, supra note 11, § 2(7), at 27-28. For purposes of aid-in-dying, it should be noted that both 1-119 and P-161 define a terminal illness as an “incurable or irreversible condition” that has been so certified. Seeid.; Complete Text P-161, supra note 11, § 2525.2(j), at 68. In contrast, there appears to be no generally accepted medical definition of “terminal.” See Developments in the Law: Medical Technology and the Law, 103 HARV. L. REV. 1519, 1644 n. 11 (1990) (citing Ronald, Bayer et al., The Care of the Terminally III: Morality and Economics, 309 NEW ENG. J. MED. 1490, 1491 (1983))Google Scholar.

¹⁴⁸ Complete Text 1-119, supra note 11, § 2(9), at 28. Given these requirements, several of Dr. Kevorkian's patients would not have qualified for 1-119 aid-in-dying. Clearly, none of his first three patients had been certified as terminally ill and, moreover, none was actually within six months of dying. Janet Adkins was in the early stages of Alzheimer's disease, an admittedly debilitating, but nonetheless non-terminal, illness. See Belkin, supra note 1, at Al. Two other women, Sherry Miller and Marjorie Wantz, suffered from multiple sclerosis and a chronic pelvic disease, respectively. See Murder Charges Against Kevorkian Are Dismissed, supra note 3, at A12.

¹⁴⁹ Complete Text 1-119, supra note 11, § 2(9), at 28. Note, however, that the written, witnessed directive asking the physician to provide aid-in-dying may have been executed at any time during the patient's adult life. Id. § 3(1), at 28.

¹⁵⁰ Id. §6(2), at 29.

¹⁵¹ Id. § 2(9), at 28. P-161 stresses the painlessness of the death to be caused over its humanity or dignity. See Complete Text P-161, supra note 11, § 2525.2(k), at 68. Interestingly, however, while both initiatives are concerned with painless death, neither requires that the patient be suffering pain, unmitigated or otherwise, as a pre-condition of requesting such a death. See Complete Text 1-119, supra note 11; Complete Text P-161, supra note 11.

¹⁵² In contrast, P-161 expressly defines “aid-in-dying” as any “medical procedure that will terminate … life … in a painless, humane and dignified manner whether administered by the physician at the patient's choice or direction or whether the physician provides means to the patient for selfadministration.” Complete Text P-161, supra note 11, § 2525.2(k), at 68 (emphasis added).

¹⁵³ See OFFICE OF THE SECRETARY OF STATE, STATE OF WASHINGTON, Statement for, in VOTERS PAMPHLET: STATE GENERAL ELECTION - NOVEMBER 5, 1991, at 12 (“[A] conscious and mentally competent dying adult patient will be able to ask his or her physician for medication to end life … . “ ).

¹⁵⁴ See OFFICE OF THE SECRETARY OF STATE, STATE OF WASHINGTON, Statement against, in VOTERS PAMPHLET: STATE GENERAL ELECTION - NOVEMBER 5, 1991, at 13 (“1-119 allows doctors to kill their patients when … [they] in a moment of despair ask for a lethal injection.“).

¹⁵⁵ See Complete Text 1-119, supra note 11, § 2(7), at 27-28.

¹⁵⁶ Id. § 2(9), at 28.

¹⁵⁷ Factors to consider in determining a drug's suitability for use in aid-in-dying and in calculating the correct quantity to use include the drug's interaction with other medications the patient may be taking, the patient's physical condition, and the manner by which the patient chooses to die, whether by injection, liquid drugs, or pills. Because of the high degree of variation to which these factors are susceptible, physicians’ consultation with pharmacists in such matters is recommended. See DEREK, HUMPHRY, FINAL EXIT 144-45 (1991)Google Scholar.

¹⁵⁸ Additional questions surround life-insurance policy provisions. Will a patient who opts for aid-in-dying be deemed a suicide and her beneficiaries consequently declared ineligible to collect on her policy? California's P-161 attempts to resolve these questions in two ways. First, it declares that, when a qualified patient receives aid-in-dying, it is not a suicide. See Complete Text P- 161, supra note 11, § 2525.16, at 69. Second, P-161 stipulates that an insurer doing business in California may not refuse to pay sums due when an insured receives aid-in-dying in accordance with P-161's terms. See id. § 2525.17(e). In contrast to P-161, Washington's 1-119 contained neither of these provisions. See Complete Text 1-119, supra note 11, at 27-30.

¹⁵⁹ See HUMPHRY, supra note 157, at 117-20.

¹⁶⁰ See id. at 152-70.

¹⁶¹ Id.

¹⁶² See Heckler v. Chaney, 470 U.S. 821 (1985) (holding that the FDA might, in its discretion, decline to approve drugs used for lethal injections in human executions).

¹⁶³ See supra notes 147-54 and accompanying text.

¹⁶⁴ See LAFAVE & SCOTT, supra note 84, § 3.6, at 227-31.