Can Glucksberg survive Lawrence? Another look at the end of life and personal autonomy.

• Author: Kamisar, Yale

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the tire Justices who made up the Lawrence majority--all of whom still sit on the Court--might overrule Glucksberg. For various reasons, however, this seems improbable.

Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states.

In addition, various considerations might cause a court to balk at constitutionalizing PAS for the terminally ill. Such a right is not easily cabined. If personal autonomy extends to the time and manner of one' s death, why doesn't it also apply whenever a competent person believes that death is better than continued life? Once the right to PAS is grounded on self-determination of personal autonomy in controlling one's own life and death, it no longer seems plausible to limit it to the terminally ill. Why should people who have to endure pain, suffering, of indignity for a much longer time than the terminally ill (often defined as those with six months of less to live) be denied this right? The argument made by many proponents of PAS that the right to forgo medical treatment and the right to PAS are merely subcategories of the same broad right is not convincing. Most of the two million people who die every year in this country do so in hospitals and long-term care institutions and do so after a decision to forgo life-sustaining treatment has been made. If medical treatment could not be rejected, vast numbers of patients would be at the mercy of every technological advance. (For example, Nancy Cruzan could have been kept alive in her persistent vegetative state for thirty years.) Allowing a patient to die at some point is a practical condition upon the successful operation of medicine. The same can hardly be said of PAS.

TABLE OF CONTENTS INTRODUCTION I. WHY THE COURT MIGHT OVERRULE GLUCKSBERG A. The Potential Impact of Lawrence B. The Revivification of the "Mystery of Life" Passage C. Despite the Lack of a Single Dissent, Glucksberg Was a Shaky Ruling from the Outset II. WHY THE COURT IS UNLIKELY TO ESTABLISH A RIGHT TO PAS A. The Rights of a Politically Vulnerable Group Are Not at Stake B. There Is No "Emerging Recognition" of a Right of Freedom to Practice PAS C. No Obvious Stopping Point 1. Once Established, Can (Will) PAS Be Limited to the "Terminally Ill"? 2. Once the Right to PAS Is Established, Will (Should) the Thin Line Between Assisted Suicide and Active Euthanasia Hold? D. The Right to Forgo Medical Treatment and the Right to PAS Are Not Merely Subcategories of the Same Broad Right III. THE OREGON EXPERIENCE INTRODUCTION

A decade ago, in Washington v. Glucksberg, (1) the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. (2) One would expect such a ruling to be quite secure. But Glucksberg faces an uncertain future.

The Court also declined to find a right to PAS in the companion case of Vacco v. Quill. (3) In Quill, the Court rejected the argument that because New York permitted competent persons to refuse lifesaving medical treatment but prohibited competent persons not on life support from doing "essentially the same thing," the state's assisted-suicide ban violated equal protection. As in Glucksberg, there was no dissenting opinion.

Despite the apparently clear signal sent by these opinions, ten years later it remains uncertain whether Glucksberg and Quill are in fact still good law. This Symposium will explore many of the issues surrounding the two cases: their place in constitutional doctrine, (4) the ways in which they highlight problems in constitutional theory (5) and contemporary moral theory, (6) and their practical effect for physicians and patients. (7) Before turning to these pieces, I will lay out the arguments why these cases--especially Glucksberg--could conceivably be overturned, but why, in the end, they are likely to remain good law.

1. WHY THE COURT MIGHT OVERRULE GLUCKSBERG

   Recent decisions, an expansive recognition of personal autonomy, and the complicated opinions in Glucksberg all undermine Glucksberg's continuing vitality.

   1. The Potential Impact of Lawrence

      The principal reason Glucksberg stands on shaky ground is Lawrence v. Texas, (8) which overruled Bowers v. Hardwick (9) and held that "[t]he State cannot demean [the] existence [of homosexuals] or control their destiny by making their private sexual conduct a crime." (10) As Brian Hawkins has observed, "Although the Lawrence majority opinion never cited Glucksberg, the aspersions Lawrence cast on Bowers inevitably fell with equal force on Glucksberg" (11)--especially the narrow view of substantive due process Glucksberg shared with Bowers.

      Mr. Hawkins is not the only commentator to call attention to the fact that, despite the heavy damage Lawrence seems to have inflicted on Glucksberg, it failed to so much as cite the earlier case. Two of Lawrence's strongest critics have called this failure a "striking manifestation of Lawrence's haughtiness toward the kind of legal analysis that had become conventional in the case law." (12) "The rejection of the Glucksberg test," they continue, "is not only unacknowledged and unexplained, but it is a total rejection." (13)

      Glucksberg had insisted, as had Bowers, that in order for a right or liberty to come within the substantive reach of the Due Process Clauses it had to be (1) "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty" and (2) susceptible of a "careful description" (14) (whatever that means). (15) Although the Lawrence Court did conclude that the historical grounds relied on by the Bowers majority were somewhat doubtful, (16) it could not, and did not, claim that the right or liberty at issue was "deeply rooted in this Nation's history and tradition." (17)

      As long as Bowers remained on the books, it served as a buffer between the implications of the line of cases originating with Griswold v. Connecticut (18) and any alleged constitutional right to PAS. As Jed Rubenfeld noted almost two decades ago, "The laws struck down under the rubric of privacy have had a peculiar tendency to gravitate around sexuality...." (19) If the Court were to build on these cases, the next one was likely to be a case establishing the right of homosexual persons, no less than heterosexual ones, to choose the sexual intimacy they share with adult partners in private. Unless and until such a ruling was handed down, any constitutional right to PAS seemed far away. (20)

      Bowers seemingly brought the development of privacy to an abrupt halt. Indeed, it threatened to do even more than that. The Court's prior cases had recognized three protected areas--marriage, procreation, and family relationships. The Bowers Court, however, thought it "evident" that none of the protected categories "bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy." (21) Moreover, the Court did not even see any unifying principle connecting the three recognized privacy categories. To quote Rubenfeld a final time:

      [A]fter [Bowers], we know that the right to privacy protects some aspects of marriage, procreation, and child-rearing, but we do not know why. By identifying three disparate applications ungrounded by any unifying principle, the majority effectively severed the roots of the privacy doctrine, leaving only the branches, which will presumably in short order dry up and wither away. (22) As long as Bowers remained good law--as long as the Court considered itself "com[ing] nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution" (23)--there was no chance that a right to PAS would be found in the Constitution. But Bowers has been overruled--and all five members of the Lawrence majority are still on the Court.

      One will search the Lawrence opinion in vain for any indication that the Court believed expanding the substantive reach of the Due Process Clauses is an act to be strongly resisted. If anything, the Lawrence Court indicated the contrary:

      [T]hose who drew and ratified the Due Process Clauses ... knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (24) B. The Revivification of the "Mystery of Life" Passage

      No treatment of Lawrence's impact on Glucksberg would be complete without some discussion of the significance of Planned Parenthood v. Casey's (25) "mystery-of-life" passage:

      Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to...