Part I examines the development of the law legalizing passively hastening death and how this development relied significantly on distinguishing passively hastening death from actively hastening death. Part II subjects the arguments used to legitimate passively hastening death to a traditional criminal law analysis and demonstrates their weaknesses which were simple to conceal when there was little enthusiasm for, and discussion of, the legalization of actively hastening death. The central role of consent in legitimating passively hastening death is analyzed in Part III. Although passively hastening death technically satisfies all of the elements of the crimes of assisted suicide and homicide, it is not illegal because it is legitimated by consent – consent of a competent patient or consent of the surrogate of an incompetent patient. Consent is the mechanism for implementing the fundamental principle. This analysis is applied to actively hastening death in Part IV. Because there is no legally significant distinction between actively and passively hastening death, consent legitimates actively hastening death just as it does passively hastening death. Nonetheless, Part V explores other reasons why actively hastening death ought to be prohibited and concludes that any arguments of any substance that can be made against actively hastening death can be equally applied to passively hastening death and should, therefore, be rejected in the latter as they are in the former. Safeguards must be established to prevent abuse of actively hastening death just as they have for passively hastening death.
Physician-Assisted Suicide: A Common Law Roadmap for State Courts,
24 Fordham Urb. L.J. 817
Available at: https://ir.lawnet.fordham.edu/ulj/vol24/iss4/14