Assisted suicide and the inalienable right to life.

• Author: Avila, Daniel

ABSTRACT: This article focuses on a topic largely overlooked by both the supporters and opponents of assisted suicide. The legalization of suicide assistance damages the interests of persons who value the law's full and equal protection of their lives by designating them as eligible for help in killing themselves. Measures such as Oregon's Death with Dignity Act regard every person diagnosed as having a terminal condition as a candidate for suicide assistance, as if the protection of life was an alienable interest for this class. Thus all members of the eligible class, including those opposed to assisted suicide, lose the status of being regarded by law as having an inalienable right to the protection of life. This status-based injury should inform the standing and substantive constitutional questions raised by a state's adoption of such a policy.

In 1993, then-Indiana Democrat Governor and current U.S. Senator Evan Bayh "quipped to The [South Bend] Tribune ... that he'd sign a bill banning assisted suicide, but only if it exempted the Republican leader of the Indiana State Senate, with whom he'd wrangled for several years."(1) This remark touches on the subject of this article. Our country's Declaration of Independence regards the Republican official, and of course all citizens, as having fundamental rights that are, in the Declaration's terminology, "unalienable."(2) Therefore, even if the Indiana Senate leader had acquiesced to Mr. Bayh's assisted suicide proposal, the doctrine of inalienable rights considers such acquiescence null and void.

This aspect of the assisted suicide debate has not received adequate attention.(3) Commentary and discussion has focused instead on issues dealing with ethical, moral, and religious considerations, but the political question of whether to legalize suicide assistance necessarily turns on the consideration of inalienable rights. Are there such rights? Are they implicated by the practice of legalizing assisted suicide? This article contends that the right to the protection of life is inalienable(4) and that state policies shielding suicide assistants from prosecution based on the suicide victim's consent wrongfully treat as alienable what is in truth inalienable.

While assisted suicide advocates may dispute the claim that the right to the protection of life is inalienable, the legal arrangements corresponding to such a claim are indisputable as a political reality in the United States. We have built our system of government on the platform of fundamental rights by regarding them as inalienable possessions of all persons. Many persons have come to rely on the security provided by the status of being regarded by the government as possessing an inalienable right to the protection of life. Changing the law in such a manner as to consider the right to the protection of life to be an alienable interest for some persons, and applying this change to a class large enough to include individuals nonetheless opposed to their inclusion, raises important questions touching on the founding principles of our country.

The article will: (1) explain the significance of a distinction between the inalienable right to life itself, and the status of being regarded by law as having the inalienable right to life, (2) explore the nature of the injury caused by being regarded by law as having a right to the protection of life that is considered alienable, and (3) examine from the perspective of inalienable rights the question of standing and other constitutional issues raised by a state's legalization of suicide assistance.(5)

Inalienable Rights and The Status of Being Regarded By Law As Having Inalienable Rights: A Fundamental Distinction

The United States Declaration of Independence and many state constitutions declare that certain rights, including the right to life or the protection of life, are inalienable.(6) The concept of inalienability comes from contract theory and refers to a property interest that an owner may not surrender to another. The law refuses to recognize the possession of the property interest in anyone other than the owner even when the owner attempts to transfer it or otherwise renounces it. That is, no one else can rely on the owner's transfer to claim the property at issue. While the owner may effectively deny herself the fruits of ownership by declining to exercise her privileges, she is powerless to vest those privileges in anyone else.

John Locke incorporated this contractual analysis into his theory on the limits of political sovereignty He characterized the necessities of life as property that an individual could not bargain away in any political agreement with a ruler, even in exchange for security Locke asserted that each individual owed a duty to God to preserve his or her life.(7) Accordingly, individuals obliged by divine sanction to protect their lives neither held the power to license other individuals to imperil their lives nor possessed the authority to release the sovereign from its corresponding duty to defend their lives. Any supposed freedom to consent to the interference with one's own life would conflict with one's personal duty before God and therefore constitute a nullity Thus, a government could not usurp this property interest under the guise of a social compact.(8)

This perspective informed the American founding. As one commentator has explained, the Declaration of Independence

linked the unalienable rights of individuals with the people's right to rebel. In the background there is the basic idea that a social contract of some sort had been made in which the people transferred certain rights to government in return for something.... What rights the people transferred is less important than the rights they did not transfer because they were not transferable, that is to say, unalienable. Unalienable rights were thought to be held under any form of government so that when a government merely showed signs of wishing to invade these rights, it could be regarded as intending to reduce the people under absolute despotism.(9) Samuel Adams wrote, for example, in his "Rights of Colonists":

It is the greatest absurdity to suppose it in the power of one or any other of men at the entering of society, to renounce their essential natural rights, or the means of preserving those rights when the great end of civil government ... is for the support, protection and defence of those very rights: the principal of which ... are life, liberty, and property If men through fear, fraud, or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason.... would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.(10) A significant portion of our society continues to insist that human life is subject to a divine trust, the terms of which allow the use, but prohibit the abuse or destruction, of the entrusted gift of life.(11) For example, the Central Conference of American Rabbis from the Reform Jewish tradition concluded in 1997 that:

Jewish tradition, as is well known, prohibits suicide, if by `suicide' we mean a rational, premeditated act of self-killing. The prohibition flows from the tradition's affirmation of the sanctity, the inviolability of human life. This affirmation, in turn, assumes the doctrine that life belongs to God, Who has the final say in its disposal. This implies that the individual has no right of `ownership' over his/her life, no authority to bring that life to an illegitimately premature end. For this reason, the court may not execute a criminal on the strength of his own confession, `for the human life is not the property of man but of God.... One's confession cannot be accepted with respect to a matter that does not lie within his power ...[for] one is not entitled to commit suicide.'(12) Likewise, participants of the 1998 Lambeth Conference, the worldwide gathering of Anglican and Episcopal churches, resolved that "euthanasia [defined as the act by which one person intentionally causes or assists in causing the death of another] is neither compatible with the Christian faith nor should be permitted in civil legislation" because "life is God-given and has intrinsic sanctity, significance and worth."(13)

Roman Catholic teaching agrees:

Everyone is responsible for his life before God who has given it to him. It is God who remains the sovereign Master of life. We are obliged to accept life gratefully and preserve it for his honor and the salvation of our souls. We are stewards, not owners, of the life God has entrusted to us. It is not ours to dispose of.(14) Islamic teaching takes up the same theme, emphasizing that persons are trustees and stewards of their lives.(15) Thus, as one Islamic commentator has written: "Man is Allah's vice-regent on earth. His very life is Allah's trust with him. Everyone, therefore, has to act as a guard and trustee of one's own life.... Suicide negates faith in Allah and the concept that life is a trust of Allah."(16)

Thus, as noted by Richard Coleson, "[t]he evidence of contemporary religious viewpoints on suicide, assisted suicide, and voluntary active euthanasia demonstrates an overwhelming consensus, historically and at present, that such acts are morally wrong."(17) Supporters of the legalization of suicide assistance would insist that this sort of reasoning, no matter how widely accepted it may be, is inadmissible in any determination of public policy. They might contend that sectarian beliefs about a divine trust prohibiting self-destruction should not command the allegiance of those in society who disagree that God exists(18) or who profess that "my God" allows otherwise.(19) Thus, assisted suicide supporters would hold that the religious dimension of inalienable rights should disqualify the concept from exercising any normative influence...