DEATH WITH DIGNITY FOR THE SEEMINGLY UNDIGNIFIED: DENIAL OF AID IN DYING IN PRISON.

• Author: Messinger, Kathleen S.

INTRODUCTION

Few topics in American society illicit the strong reactions that suicide and aid in dying do. For some, suicide arouses moral and religious condemnation, and for others intellectual intrigue. (1) Whatever the reaction or interest, suicide is studied by a wide range of academic disciplines, and the conversation has progressed from debating the morality of suicide to debating the morality of the "right to die." For the purposes of this Comment, aid in dying refers to "a terminally ill competent patient's decision to seek a physician's help in prescribing medication to hasten the dying process." (2) In the past several years, a number of states have either passed or proposed laws that permit aid in dying. (3) While these debates continue, little attention has been given to a prisoner's access to aid in dying. This Comment weaves together the historical and philosophical underpinnings of suicide and aid in dying to assess how the Supreme Court and state courts have interpreted and evaluated a constitutional right to die. In addition, this Comment will address some of the most prevalent oppositional arguments to the availability, constitutionality, and morality of aid in dying. In the end, this Comment finds the denial of aid in dying in prison violates the Eighth Amendment of the Constitution's prohibition on "cruel and unusual punishment." (4) This Comment will proceed in four parts. Part I will undertake a philosophical and religious historical account of suicide and how it has informed Western ideals about suicide, which in turn have influenced the conversation surrounding aid in dying. Part II offers a comparative analysis of how courts have dealt with the issue of a patient's right to withdraw medical support or refuse potentially life-saving treatment as compared to a prisoner's right equivalent (or lack thereof). Part III provides an overview of how the Supreme Court has weighed in on aid in dying and how it has conceptualized various liberty interests in bodily integrity and autonomy, as well as the Court's jurisprudence on a prisoner's right to health care and how this body of case law has required states to provide prisoners with rights and access that are not endowed on non-incarcerated individuals. Lastly, in Part IV I argue that denying a terminally ill patient access to aid in dying violates the Eighth Amendment based on the historical and philosophical underpinnings of the "right to die" debate, the Supreme Court and various state courts' treatment of health care decisions (both in the context of prison and outside of it), and the evolution of the Supreme Court's treatment of "cruel and unusual" punishment.

1. PHILOSOPHICAL AND RELIGIOUS HISTORY CONTRIBUTING TO THE AID IN DYING DEBATE

   In many court cases, judges invoke the history and philosophy of suicide to reject aid in dying. (5) It is therefore necessary to not only situate the taking of one's own life within philosophical understandings of suicide, but also to highlight general inaccuracies underlying the judiciary's opinions about suicide and aid in dying. While legal and moral philosophy have influenced courts and society more generally, Western religions have helped form our contemporary understanding of suicide. Many opponents of aid in dying, currently and historically, have used philosophical and religious understandings of suicide as persuasive authority to condemn suicide and aid in dying and argue that it is immoral to take one's own life. (6) Opponents then use their beliefs to argue that aid in dying should be illegal. (7) Part I of this Comment will provide a brief historical overview of the views of Greek and Roman philosophers and critique how certain opponents of aid in dying have characterized philosophical understandings.

   1. GREEK AND ROMAN UNDERSTANDINGS OF SUICIDE

      Some of the earliest prescriptive and descriptive philosophical opinions of suicide come from ancient Greece. (8) Elise P. Garrison, a scholar studying the topic of suicide in Greek tragedy, argues that historical Greek attitudes toward suicide stem from the concepts of shame and honor. (9) These concepts were of "profound significance" in ancient Greece and "motivate[d] many of the suicides recorded by historians and nearly all suicides in Greek tragedy." (10) For example, suicide could be a reasonable reaction to one's own performance in battle." Another example of honor and shame in suicide arises in fifth century Greece where Messenian prisoners "refused to be tried by their captors" and took their own lives instead. (12) The Messenians died by their own hands "in order to escape punishment and further disgrace." (13) Thus, it appears that in antiquity Greece, far from being universally condemned or punished, suicide was permitted if shame or honor were at stake. (14) Garrison notes that "neither Thucydides (15) nor Herodotus (16) makes any explicit value judgment concerning the suicide victims they mention." (17) The language they evoke, in part, explains the circumstances that led to suicide and gives the impression that "suicide created no 'moral revulsion,' but rather provided people with an honorable release from an undesirable life." (18)

      Opponents of aid in dying have suggested that historically, suicide was forbidden. However, several counterexamples to this assumption exist. For example, in The Right to Assisted Suicide, Justice Gorsuch argues that in

      Compassion in Dying v. Washington, (19) Judge Reinhardt misinterpreted how suicide was treated in Ancient Greece. (20) Gorsuch argues that Athenian law "treated suicide" as a crime, "'punishing' the 'guilty' by amputating the corpse's right hand and denying traditional burial rituals." (21) However, Gorsuch may have misinterpreted the practice. As Garrison contends, the passage from a speech given by Aeschines in 330 B.C. "is the only reference to such treatment of a suicide" and as such it is unclear "how regularly the cutting off of a hand occurred." (22) Further, while Gorsuch argues that Athenian Law treated suicide as a crime per se--indicated by severing the deceased's right hand--Garrison argues that evidence of antiquity Greece suggests that there was "an uneasiness about suicides ... [but] the evidence does not suggest a categorical mistreatment of or societal revulsion from suicides." (23) Opponents of aid in dying also point to what they perceive as Plato and Aristotle's condemnation of suicide, however, that too is a simplified view of the kind of nuanced distinguishing factors that the philosophers accounted for. (24) In Phaedo, Plato opposes suicide because it was "against the will of the gods and thus not allowed." (25) Despite his general disapproval towards those who commit suicide, however, Papadimitriou et al. interprets Plato's text as demonstrating that Plato is "tolerant of people who suffer insurmountable pain. He recognizes the right of the desperate individual to commit suicide when faced with unavoidable misfortune due to having led a less than good life. [He] takes into account the insuperable unhappiness of such people." (26) Support for this proposition is found in Gorgias and Laws; in Gorgias Plato presents a scenario where those afflicted with "incurable diseases" of body or mind may not be better off living (27) and in Laws he seems to carve out an exception to wrongful suicide where the person is "compelled by some terribly painful and inescapable bad luck ... ," (28)

      Rather than openly condemning suicide, in Write to Death, Professor Elizabeth A. Gailey, argues that Greeks had an "open tolerance" of euthanasia. (29) She grounds her argument on three principal reasons. The first reason is the "fundamental trust in human reason." (30) That is, individuals have the "right to make rational decisions about. .. their own deaths." (31) The second reason is "[i]ndividual autonomy" or the notion that "man is the master of his own body, with the right to decide his own fate." (32) Last, Gailey points to the Greek "idealization of youth." (33) She argues that euthanasia was considered a "viable means of achieving a 'good death' (34) [and was] an appropriate option for individuals faced with debilitating or terminal illness [or a] loss of dignity at life's end." (35)

   2. HOW RELIGION HELPED SHAPE THE AID IN DYING DEBATE

      While philosophical texts help frame the discussion on the morality of suicide, as societies evolved, religion--particularly forms of Christianity--began to play a greater role in setting and guiding moral standards. (36) It is believed that "Christianity [is] perhaps the most important event in the philosophical history of suicide, for Christian doctrine has by and large held that suicide is morally wrong, despite the absence of clear Scriptural guidance." (37) As western societies moved away from ancient and classical views on the morality of suicide, religion played and continues to play a critical role in how we conceptualize life and death.

      Religious sects overwhelmingly reject aid in dying. (38) Opposition to aid in dying stems predominately from ideas about a "natural" life: religious leaders believe that aid in dying or hastening a natural death is contrary to God's intentions. (39) The evolution of Judeo-Christian thought in society explains the shift away from Greco-Roman beliefs about suicide and death. As Judeo-Christianity established a strong-hold throughout Europe, beliefs about suicide and a "good death" changed. Christianity in third century A.D. emphasized the value of life, and unlike the Greco-Romans school of thought that encouraged avoiding suffering, (40) Christians viewed "suffering" as a "consequence of--and reparation for--the wages of sin." (41) Without stating the obvious, the very nature of Christianity centers on suffering, as exemplified by the crucifixion of Christ. (42) The culmination of Christian thought on the issue of suffering is that it leads to "spiritual growth and salvation." (43) One could see then...