The “Disparate Impact” Argument Reconsidered: Making Room for Justice in the Assisted Suicide Debate

Lindsay R.A. , “Should We Impose Quotas? Evaluating the ‘Disparate Impart’ Argument Against Legalization of Assisted Suicide,” Journal of Law, Medicine & Ethics, 30, no. 1 (2002): 6–16, at 6.

Id. at 6.

Id. at 13.

Id. at 6.

On the difficulty of designing effective guidelines, see Coleman C.H. Fleischman A.R. , “Guidelines for Physician-Assisted Suicide: Can the Challenge Be Met?,” Journal of Law, Medicine & Ethics, 24 (1996): 217–24;.

Callahan D. White M. , “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village,” University of Richmond Law Review, 30 (1996): 1–83.

For example, Arras John , who has opposed the legalization of physician-assisted suicide (PAS), acknowledges that “[s]ome pain cannot be alleviated short of inducing a permanent state of unconsciousness in the patient, and some depression is unconquerable.

For such unfortunate patients, the present law on PAS/euthanasia can represent an insuperable barrier to a dignified and decent death.” Arras J.D. , “Physician-Assisted Suicide: A Tragic View,” Journal of Contemporary Health Law & Policy, 13 (1997): 361–89, at 367.

Lindsay , supra note 1, at 14.

Id. at 10.

One recent study found that, although a majority of seriously ill patients support assisted suicide or euthanasia “in an abstract situation,” few actually had considered the option for themselves. Emanuel E.J. Fairclough D.L. Emanuel L.L. , “Attitudes and Desires Related to Physician-Assisted Suicide and Euthanasia Among Terminally Ill Patients and Their Caregivers,” JAMA, 284 (2000): 2460–68, at 2463.

Lindsay , supra note 1, at 10.

Id. at 6.

At various points in his article, Lindsay portrays the risks associated with legalization in downright positive terms. For example, when he compares the equality-based argument against legalization of assisted suicide to the use of disparate impact theory in employment discrimination cases, he characterizes the risks of legalization as simply “allowing a person to choose assisted suicide” (p. 10) or providing “more freedom of choice in the context of decisions at the end of life” (p. 10).

One prominent proposal for legalizing assisted suicide would limit the practice to persons whose requests are “competent, fully informed, voluntary, and enduring.” Baron C.H. , “A Model State Act to Authorize and Regulate Physician-Assisted Suicide,” Harvard Journal on Legislation, 33 (1996): 1–34, at 18.

For a discussion of the complex factors behind such requests, see Muskin P.R. , “The Request to Die: Role for a Psychodynamic Perspective on Physician-Assisted Suicide,” JAMA, 279 (1998): 323–28.

See, for example, Von Gunten C.F. Ferris F.D. Emanuel L.L. , “Ensuring Competency in End-of-Life Care and Relational Skills,” JAMA, 284 (2000): 3051–57, at 3055 (“Clinical experience suggests that most requests for hastened death will resolve if unmet needs are addressed.”).

As the New York State Task Force on Life and the Law observed, “Like the availability of pain relief or the skills needed to diagnose depression, the kind of doctor-patient relationship envisioned by those who advocate legalizing suicide will simply be unavailable to many patients.” New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994), at 130–31.

As Patricia King and Leslie Wolf note, “physicians may be too quick to interpret ambivalent statements made by patients as being pleas to die, because at an unconscious level they perceive the patient as not deserving of money, resources, or other efforts that might be needed for care.” King P.A. Wolf L.E. , “Empowering and Protecting Patients: Lessons for Physician-Assisted Suicide from the African-American Experience,” Minnesota Law Review, 82 (1998): 1015–43, at 1042.

See also Wolf S.M. , “Gender, Feminism, and Death,” in Wolf S.M. , ed., Feminism and Bioethics: Beyond Reproduction (New York: Oxford University Press, 1996), 282–317, at 293 (“In assessing whether the patient's life has become ‘meaningless,’ or a ‘burden,’ or otherwise what some might regard as suitable for extinguishing at her request, it would be remarkable if the physician's background views did not come into play on what makes a woman's life meaningful or how much of a burden on her family is too much.”);.

Spindelman M.S. , “Some Initial Thoughts on Sexuality and Gay Men with AIDS in Relation to Physician-Assisted Suicide,” Georgetown Journal of Gender and the Law, 2 (2000): 91–105, at 102 (“[L]esbians and gay men may be afforded a right to an autonomous death because dominant cultural norms suggest that death is what they do or should desire.”).

New York State Task Force on Life and the Law, supra note 16, at 125.

See, for example, King Wolf , supra note 17;.

Watson S.D. , “Race, Ethnicity and Quality of Care: Inequalities and Incentives,” American Journal of Law & Medicine, 27 (2001): 203–24.

Lindsay , supra note 1, at 12.

Id. at 11.

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Lindsay , supra note 1, at 6.

In the interest of full disclosure, I should note that I served as staff counsel to the Task Force during the production of its 1994 report on physician-assisted suicide and euthanasia, and as executive director of the Task Force during production of its 1997 supplement to that report.

Baron , supra note 13, at 18.

New York State Task Force on Life and the Law, supra note 16, at 126.

Id. at 125–26.

Lindsay , supra note 1, at 9.

Grover S.S. , “The Business Necessity Defense in Disparate Impact Discrimination Cases,” Georgia Law Review, 30 (1996): 387–430, 399.

Id. at 430.

Lindsay , supra note 1, at 10.

National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles for the Protection of Human Subjects of Biomedical and Behavioral Research, DHEW Pub. No. (OS) 78–0012 (Washington, D.C.: U.S. Gov't Printing Office, 1978), at § C(3).

45 C.F.R. § 46.111(a)(3) (2001).

See Jones J.H. , “The Tuskegee Legacy: AIDS and the Black Community,” Hastings Center Report, 22 (Nov.–Dec. 1992): 38–40.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations,” signed by President Clinton on February 11, 1994, available at <http://www.epa.gov/swerosps/ej/html-doc/execordr.htm>.

Been V. , “What's Fairness Got To Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses,” Cornell Law Review, 6 (1993): 1001–85, at 1064.

Dworkin R. , Taking Rights Seriously (Cambridge: Harvard University Press, 1977), at 273.

Lindsay , supra note 1, at 13.

Id. at 13.

New York State Task Force on Life and the Law, supra note 16, at 1–16.

Id. at 16.

See Sullivan A.D. Hedberg K. Hopkins D. , “Legalized Physician-Assisted Suicide in Oregon, 1998–2000,” N. Engl. J. Med., 344 (2001): 605–07;.

Sullivan A.D. Hedberg K. Fleming D.W. , “Legalized Physician-Assisted Suicide in Oregon — The Second Year,” N. Engl. J. Med., 342 (2000): 598–604.

For a critical analysis of the Oregon data, see Foley K. Hendin H. , “The Oregon Report: Don't Ask, Don't Tell,” Hastings Center Report, 29 (May 1999): 37–42.

Lindsay , supra note 1, at 9.