A right to physician-assisted suicide?

Few Supreme Court decisions have the possibility of touching as many lives, directly or indirectly, as the recent rulings finding no constitutional right to physician-assisted suicide. Washington v. Glucksberg(1) and Vacco v. Quill(2) have the effect of upholding laws in 49 states prohibiting aiding another person in committing suicide.

Although the decisions were rendered without a single dissent, they left open the possibility of legal protection for this right both at the state level and in future Supreme Court rulings.

The Court had before it two decisions of U.S. courts of appeals that had found a constitutional right to physician-assisted suicide. In one case, the Ninth Circuit, in an en banc decision, had found that terminally ill people have a fundamental liberty interest, protected under the Due Process Clause of the Fourteenth Amendment, to physician-assisted suicide.(3)

The Ninth Circuit had declared unconstitutional a Washington law that "a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide."(4) The court had concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death--that there is, in short, a constitutionally recognized fright to die.'"(5)

In the other case, just a few weeks after the Ninth Circuit's ruling, the Second Circuit had declared unconstitutional a New York law that prohibits aiding another in committing suicide.(6) Several physicians and gravely ill patients had challenged the New York statute that "a person is guilty of manslaughter in the second degree when . . . he intentionally causes or aids another person to commit suicide."(7) The Second Circuit had found that the New York law violated the Equal Protection Clause of the Fourteenth Amendment.

The court explained that patients on artificial life support already have the right to physician-assisted suicide. In 1990, in Cruzan v. Director, Missouri Department of Health, the Supreme Court had ruled that competent adults have the right to refuse even life-saving medical treatment.(8) The Second Circuit said that in light of this decision, people not receiving artificial life support are discriminated against because they have no right to physician-assisted suicide. The court concluded that this latter group is denied equal protection.

Supreme Court reversal

The Supreme Court reversed both courts of appeals decisions. Chief Justice William Rehnquist wrote for the majority in each case. In Glucksberg, the Court rejected the claim that the Washington law prohibiting assisted suicide violated a fundamental right protected under the Due Process Clause.

Rehnquist began by observing that a right is protected as fundamental under the Due Process Clause only when supported by history or tradition. He said that "for over 700 years, the Anglo-American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide."(9)

Rehnquist noted that "in almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."(10) After reviewing the history of laws prohibiting suicide and assistance of suicide, Rehnquist said, "Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decision making, we have not retreated from this prohibition [of assisting suicide]."(11)

The Court concluded that "to hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state."(12)

Because the Court determined that "the asserted `right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause,"(13) the Washington law was to be upheld so long as it met a rational basis test. The Court found that the law reasonably served many legitimate interests.

The Court found, for example, that the state has important interests in preserving life,(14) protecting the integrity and ethics of the medical profession,(15) protecting vulnerable groups,(16) and stopping the path to voluntary and even involuntary euthanasia.(17) Rehnquist said that the experience in the Netherlands indicated that "regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia."(18)

Similarly, in Quill, the Court held that laws prohibiting physician-assisted suicide do not violate the Equal Protection Clause. Rehnquist, again writing for the majority, initially noted that the prohibition neither discriminated against a suspect class, such as against a racial minority, nor violated a fundamental right, since Glucksberg had expressly repudiated that contention.(19) Under equal protection analysis, this means that the law was to be upheld so long as it met a rational basis test.

Moreover, the Court rejected the claim that New York's law discriminated against anyone. The Court noted that New York's law treated everyone equally: All have the right to refuse medical care, and all are prohibited from assisting another in a suicide.(20) The Court disagreed with the Second Circuit's conclusion that those not on artificial life support are discriminated against as compared with those who can receive physician-assisted suicide by demanding the termination of a respirator or artificial nutrition or hydration.

The Court said that this "distinction comports with fundamental legal principles of causation and intent."(21) The Court explained that "when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication."(22)

The Court also emphasized the importance of intent in laws prohibiting assisted suicide. The justices noted that "in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, `must, necessarily and indubitably, intend primarily that the patient be made dead.'"(23) The Court said that the law traditionally has recognized this distinction in distinguishing between allowing refusal of treatment and prohibiting suicide.

Doors left open

Glucksberg and Quill thus seem to emphatically reject a constitutional right to physician-assisted suicide. Not a single justice in either case voted to declare unconstitutional either state law. Yet, the cases also left open some doors to future legal protection of a right to physician-assisted suicide.

First, states may enact statutes protecting this right. The Court's decisions emphasized the absence of constitutional limits on state laws. In other words, the issue of a right to die is left to the political process; largely unconstrained by the Constitution, states may prohibit or allow physician-assisted suicide. For example, in 1994, Oregon enacted, through a ballot initiative, a "Death with Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.(24) Other states are sure to consider similar proposals in the future.

Second, five justices, in concurring opinions and opinions concurring in the judgment, left open the possibility that laws prohibiting physician-assisted suicide might be declared unconstitutional in specific cases. Justice Sandra Day O'Connor submitted the identical, short concurring opinion in both decisions.

She said that while there "is no generalized right to `commit suicide,'" the Court need not address the "narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death."(25)

O'Connor concluded by reiterating that "there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives."(26) Justices Stephen Breyer and Ruth Bader Ginsburg concurred in this opinion.

Also, Justice John Paul Stevens wrote an opinion concurring in the judgment in both cases that was joined by Justices Breyer, Ginsburg, and David Souter.(27) Stevens said that he wrote "separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the states to punish the practice."(28)

Stevens said that although the Court rejected the facial challenges to the New York and Washington laws, that "does not foreclose that some possibility that some applications of the statute[s] might well be invalid."(29) He explained that in particular cases a person's claim of this right might be strong and the state's interests much less.

Likewise, Breyer wrote an opinion concurring in the judgment, and he was clearer than the other justices in explaining when a constitutional right to physician-assisted suicide might be recognized. He observed that the core of a person's claim would be "avoidance of severe physical pain (connected with death)."(30) He said that the New York and Washington laws were constitutional because they "do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill."(31)

Breyer concluded that "were the legal circumstances different--for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life--then the law's impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue."(32)

In other words, five justices left open the possibility of challenging the application of laws prohibiting physician-assisted suicide in particular cases. The strongest challenge might be brought if a state law prevented the provision of pain-relieving medication that likely would hasten a terminally ill patient's death. Similarly, a challenge might succeed if brought by someone whose pain was so severe that it could not be relieved by medication.

Should there be a right to die?

Ultimately, the key question in appraising the Supreme Court's decisions is whether terminally ill, competent adults should have a right to physician-assisted suicide. None of us can answer this question without reference to the experiences of our families and our own fears. O'Connor recognized this in beginning her concurring opinion: "Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions."(33)

Four years ago, my father was dying of lung cancer. He either was in great pain or sedated into sleep. When he awoke, he was lucid but obviously suffering enormously. A few days before he died, he asked his doctor for medication to end his life. He was far too weak to get out of his hospital bed, let alone act to end his own life. His doctor brushed aside his request by ignoring it, though my father repeated it several times.

I cannot consider the constitutional issue of a right to physician-assisted suicide without seeing in my mind the searing image of my father in his hospital bed, gasping for each breath and wanting to end his pain. I cannot imagine any interest the state had in keeping my father alive for three more days.

If liberty means anything, I think it must include a right, for those like my father, to die with dignity.

Notes

(1.) No. 96-110, 1997 WL 348094 (June 26, 1997).

(2.) No. 95-1858, 1997 WL 348037 (June 26, 1997).

(3.) Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc).

(4.) WASH. REV. CODE [sections] 9A.36.060(1) (1994).

(5.) 79 F.3d 790,816.

(6.) Quill v. Vacco, 80 F.3d 716 (2d Cir.1996).

(7.) N.Y. PENAL LAW [sections] 125.15 (McKinney 1987). Also, New York has a separate statute that makes it a felony when a person "intentionally causes or aids another person to attempt suicide." Section 120.30.

(8.) 497 U.S.261 (1990).

(9.) 1997 WL 348094, at *4.

(10.) Id.

(11.) Id. at *8.

(12.) Id. at *10.

(13.) Id. at *13.

(14.) Id.

(15.) Id. at *14.

(16.) Id. at *15.

(17.) Id.

(18.) Id. at *16.

(19.) 1997 WL 348037, at *3.

(20.) Id. at *4.

(21.) Id.

(22.) Id.

(23.) Id. at *5 (citation omitted).

(24.) OR. REV. STAT. [sections] 127.800 (1996). A federal district court declared the law unconstitutional on the ground that it does not provide sufficient safeguards for terminally ill patients. Lee v. Oregon, 891 E Supp.1429 (D. Or.1995), but this decision was vacated by the Ninth Circuit. Lee v. Oregon, 107 F.3d 1382 (9th Cir.1997).

(25.) 1997 WL 355983, at *1.

(26.) Id. at *2.

(27.) Additionally, in Washington v. Glucksberg, Justice Souter wrote a lengthy opinion concurring in the judgment that discussed the proper methodology for analyzing claims involving substantive due process.1997 WL 348094, at *25.

(28.) 1997 WL 355983, at *2.

(29.) Id.

(30.) Id. at *10.

(31.) Id.

(32.) Id. at *11.

(33.) Id. at *1.

Erwin Chemerinsky is Legion Lex Professor of Law and Political Science at the University of Southern California Law School in Los Angeles.