This entry contains information applicable to United States law only. In Washington v. Glucksberg, ___U.S. ___ , 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), the U.S. Supreme Court was asked to review the constitutionality of a Washington state statute prohibiting physician-assisted suicide. By upholding the statute and denying mentally competent, terminally ill patients a constitutional right to hasten their death through lethal doses of self-administered, doctor-prescribed medication, the Supreme Court returned this controversial issue to the states where it continues to be debated among residents, legislators, and judges. In handing down its decision, the Court was careful to point out that it was not foreclosing reconsideration of the issue at some later time.
The case arose in January 1994 when four Washington physicians, three gravely ill patients, and a nonprofit organization that counsels people considering doctor-assisted suicide filed a lawsuit in the U.S. District Court for the Western District of Washington. The lawsuit challenged the constitutionality of Washington Revised Code section 9A.36.060, which makes it a crime to knowingly assist, aid, or cause the suicide of another person. The district court ruled the statute unconstitutional on the ground that it violated the liberty interest protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution (Compassion in Dying v. Washington, 850 F. Supp. 1454).
The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit, where a panel of judges reversed the district court's ruling and reinstated the Washington statute. In a 2-1 decision, the court of appeals emphasized that no right to assisted suicide has ever been recognized by a court of final jurisdiction anywhere in the United States (Compassion in Dying v. Washington, 49 F.3d 586 (1995). Agreeing to rehear the case en banc (before eleven judges on the ninth circuit), the court of appeals reversed the panel's decision and affirmed the district court's ruling, which had invalidated the Washington statute (Compassion in Dying v. Washington, 79 F.3d 790 (1996). In an 8-3 decision, the appellate court said that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death," including the liberty interest of certain patients to hasten their deaths by taking deadly amounts of medication prescribed by their physicians.
When the case reached the Supreme Court, Chief Justice William H. Rehnquist cast the issue in a slightly different light. In an opinion joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, Rehnquist said that the case turned on whether the Due Process Clause protects the right to commit suicide with another's assistance. According to the Court, three reasons supported its decision to reject such a constitutional claim.
First, the Court observed that suicide and assisted suicide have been disapproved by Anglo-Saxon law for more than seven hundred years. From thirteenth-century England through nineteenth-century America, the Court said, the common law has consistently authorized the punishment of those who have attempted to kill themselves or assisted others in doing so. Second, the Court pointed to the overwhelming majority of states that currently prohibit physician-assisted suicide. Only Oregon expressly allows doctors to help their patients hasten their demise through lethal doses of prescribed medication, and the law that allows this practice is presently being challenged in court. Third, the Court found that the history of the Due Process Clause does not support the asserted right to assisted suicide.
Although the Due Process Clause protects certain fundamental rights, the Court wrote, the asserted right to physician-assisted suicide does not rise to this level of importance. Before a right may be deemed fundamental in nature, it must be deeply rooted in the nation's legal history. Because the Court found the asserted right to physician-assisted suicide to be contrary to U.S. history, tradition, and practice, it concluded that it was not a fundamental right. This conclusion meant that the Court would not apply the strict scrutiny standard of judicial review that is required when a piece of legislation affects a highly valued liberty or freedom.
Instead, the Court applied a minimal standard of judicial scrutiny. Known as the rational relationship test, this standard of judicial scrutiny requires courts to uphold laws that are reasonably related to some legitimate government interest. In this case the Court said that the state of Washington had a legitimate interest in preserving life, preventing suicide, protecting the integrity and ethics of the medical profession, and safeguarding vulnerable members of society, such as the poor, elderly, and disabled, from friends and relatives who see physician-assisted suicide as a way to end the heartache and burden that often accompany the protracted illness of a loved one.
On the same day that the Court released its decision in Glucksberg, it announced its decision in a companion case, Vacco v. Quill, ___U.S. ___ , 117 S. Ct. 2293, 138 L. Ed. 2d 834 (1997). Vacco differed from Glucksberg in that the plaintiffs in Vacco (three doctors and three terminally ill patients) challenged a New York law prohibiting physician-assisted suicide on the ground that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. New York Penal Law section 125.15 makes it a crime to intentionally help another person commit suicide. However, pursuant to the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), New York permits competent adult patients to terminate life-sustaining treatment, such as artificial hydration, nutrition, and respiration.
The Equal Protection Clause requires the government to provide equal treatment to all similarly situated people. The Fourteenth Amendment prohibits the government from denying legal rights to one group of persons when those same rights are afforded to another group confronted by indistinguishable circumstances. The plaintiffs argued that the withdrawal of life-sustaining treatment is tantamount to suicide, because by definition its withdrawal typically ends life by ceasing to sustain it. The plaintiffs in Vacco contended that, in allowing some patients to hasten their death by terminating life-sustaining measures but not allowing other patients to hasten their deaths by taking lethal doses of prescribed medication, New York had denied patients equal protection of the laws.
The Supreme Court disagreed. A fundamental distinction exists between letting a patient die and killing her, Chief Justice Rehnquist wrote in the majority opinion that was again joined by Justices O'Connor, Scalia, Kennedy, and Thomas. In one instance, the patient is allowed to die by natural causes when life-sustaining treatment is withdrawn. The patient's cause of death in that instance, the Court said, is the underlying illness. In the other instance, the Court continued, death is intentionally inflicted by the joint effort of doctor and patient. The cause of death in that instance, the Court emphasized, is not the underlying illness, but human action.
The Court also pointed out that the Cruzan decision was based on the ancient common-law tradition of protecting patients from unwanted medical treatment. Under the common law, it is considered a battery (an intentional tort that makes any unwanted touching actionable) for a physician to force a competent adult to undergo life-sustaining treatment over a clearly voiced objection. Based in part on this common-law tradition, the Court in Cruzan recognized a limited constitutional right of a competent, adult patient to disconnect hydration, nutrition, and respiration equipment, even if exercising this right would necessarily result in the patient's death. However, the Court in Vacco noted that a right to physician-assisted suicide has never been approved by the common law but has been historically discouraged by both common-law and statutory schemes throughout the United States. Thus, the Court concluded that physician-assisted suicide is not substantially similar to refusing medical treatment and that the legal systems of New York and other states may treat each practice differently without running afoul of the Equal Protection Clause.
Although the decisions in Glucksberg and Vacco were both unanimous, a number of justices wrote concurring opinions that were applicable to both cases. In a concurring opinion by Justice O'Connor, which was joined by Justice Ruth Bader Ginsburg, O'Connor stressed that the states remain free to establish a right to physician-assisted suicide or to otherwise strike a proper balance between the interests of terminally ill patients and the interests of society. State legislatures, O'Connor suggested, are a more appropriate forum for making such difficult decisions because their members are accountable to the electorate at the ballot box. By contrast, the federal judiciary is often insulated from public opinion because their members are appointed to the bench for life. Relying on several studies undertaken by the states to evaluate the problem of physician-assisted suicide, O'Connor said that the right to die must first be grappled with at the local level before entangling federal courts in the controversy.
Justice John Paul Stevens's concurring opinion also underscored the need for further national debate on the propriety of physician-assisted suicide, but in a different vein. Although the states' interests may have been adequately served in Glucksberg and Vacco, Stevens cautioned, the Court's holding in these two cases does not foreclose the possibility that other circumstances might arise in which such statutes would infringe on a constitutionally protected area. There will be times, Stevens wrote, when a patient's interests in hastening his death will outweigh the state's countervailing interests in preserving his life. Although Stevens did not speculate about the circumstances in which a patient might successfully assert a right-to-die claim, Justice Stephen Breyer took the opportunity to do so in his concurring opinion.
Breyer suggested that the right to die should be renamed "the right-to-die with dignity." Once recognized by the Court, Breyer said, the right to die with dignity would include a competent patient's right to control the manner of her death, the quality and degree of professional care and intervention, and the amount of physical pain and suffering. According to Breyer, a statute that would prevent patients from obtaining access to certain palliative care aimed at reducing pain and suffering might infringe on the right to die with dignity. Competent, terminally ill adult patients, Breyer intimated, may enjoy a constitutional right to prescription medication that will minimize the agony that often tortures the final days of their existence.
Justice David H. Souter articulated a different method of analysis for evaluating right-to-die cases. Souter argued that the so-called right to die is a species of substantive due process. Substantive due process, Souter reminded the Court, is a doctrine under which a judge evaluates the substantive merits of a statute, as opposed to the procedure by which it is implemented or administered. Under the rubric of substantive due process, the Court has recognized an individual's interest in dignity, autonomy, and privacy, among other things, over the course of the last century. The right to refuse unwanted medical treatment recognized by the Court in Cruzan, for example, was designed in part to serve these three interests.
Souter contended that the doctrine of substantive due process protects individuals from "arbitrary impositions" and "purposeless restraints" created by the government. Souter advocated viewing substantive due process claims on a continuum of liberty in which the level of judicial scrutiny would increase in direct proportion to the level of government restraint or imposition. First enunciated by Justice John Marshall Harlan in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), this approach to substantive due process would require courts to carefully balance the competing interests presented by the litigants in each right-to-die case.
Souter contrasted this simpler approach with the more complicated analysis presently employed by the Court, an analysis that involves multiple tiers of judicial scrutiny, ranging from strict to minimal scrutiny, different categories of constitutional rights, ranging from fundamental to non-fundamental rights, and different classes of protected status into which a plaintiff may fall, ranging from suspect to non-suspect classes. A balancing approach like the one articulated in Poe, Souter maintained, would allow for the gradual evolution of a constitutional right to die, instead of the complicated all-or-nothing approach that the Court has effectively adopted.
See: Death and Dying; Living Will.
