Physician-Assisted Suicide and Voluntary Euthanasia: Some Relevant Differences

Abstract

Yale Kamisar, in a series of influential articles on physicianassisted suicide and voluntary active euthanasia, has written eloquently in opposition to legalizing these practices.' Today he revisits the first of these articles, his seminal 1958 article, Some Non-Religious Views Against Proposed Mercy-Killing Legislation.2 In that paper Professor Kamisar used the distinction between the law on the books and the law in action to quiet concerns about the harsh consequences of a blanket prohibition on mercy killing. A blanket prohibition, after all, if strictly applied, would impose criminal punishment on physicians and relatives whose complicity in bringing about the death of a patient, or loved one was justified by the dying person's desperate condition and lucid wish to die. It would impose criminal punishment, that is, on innocent people. To mitigate this difficulty, Kamisar argued that, while the law on the books rightly criminalizes all acts of mercy killing, the law in action, given the possibilities of prosecutorial forbearance and jury nullification, recognizes exceptions and thus can be relied on to protect such innocent people from criminal punishment.4 Revisiting this argument, Kamisar