The scope of the Fourteenth Amendment liberty interest: does the Constitution encompass a right to define oneself out of existence? An exchange of views with John A. Powell, Legal Director, American Civil Liberties Union.

• Author: Destro, Robert A.

[W]e must start from scratch and think every problem through from its very premises to its last implications."(1)

Introduction: The Need to "Unpack" the Debate over Euthanasia and

Assisted Suicide

There are few areas in the law so fraught with euphemism and doublespeak as discussion of the so-called right to die. This is not a happy situation for any number of reasons. Perhaps the most important of these is the need for candor when the topic for discussion is the deregulation of euthanasia and assisted suicide. This exchange of views provides a welcome opportunity for a candid discussion. Let me begin by noting the points on which john powell [sic] and I agree.

We share the view that the advancement and protection of individual liberty, human dignity, and the common good require robust and open debate on important issues, careful attention to detail in the drafting of law and public policy, and active oversight of the interpretation and enforcement of the law. Both of us accept the proposition that, subject only to limitations not relevant here,(2) a competent adult is legally free to accept or reject any medical treatment offered, no matter how "beneficial" it may be to that person in the long run. We also agree that, while the provision of "useless" or "excessive" treatment is not required by either law or ethics, reaching agreement on a common definition of the terms useless, excessive, and treatment raises significant legal and ethical questions that are beyond the scope of this particular discussion.(3)

Agreement on ultimate goals, however, is rarely the most important component of a political or legal dispute. In most cases it is the initial premise--the manner in which "the problem" is defined at the outset--that determines the nature of the arguments. When viewed from this perspective, our disagreement on the role of law at the end of life is narrow but significant. We start at opposite ends of the legal spectrum.

Mr. powell and others who advocate legal recognition of a right to die begin their argument with a presumption that there is an unenumerated civil right to die, and that this right is part of the "liberty" and "privacy" protected by the due process clause of the fourteenth amendment.(4) Given that premise, they argue that individuals not only have the "right" to control the timing and manner of their own deaths, but also that, if the right asserted is to be meaningful for those who are either incapable or unwilling to die by their own hand, they must be free to seek "assistance in dying" from persons who are willing either to supply the means or take whatever action is necessary to cause death.

There are both practical and theoretical problems with this formulation. The practical problem is the easier to explain. Whereas john powell simply assumes that the right to die is a fundamental right, the United States Supreme Court has yet to accept the proposition that the right to die as elaborated by Mr. powell is even a constitutionally protected "liberty interest." Writing for the Court in Cruzan v. Director, Missouri Department of Health,(5) Chief Justice William Rehnquist limited the scope of the decision to one question: whether a state may require that the wishes of an incompetent patient respecting decisions to withhold or withdraw treatment must be proved by "clear and convincing" evidence. Holding that such a requirement is permissible,(6) the Chief Justice wrote:

This is the first case in which we have been squarely presented with the issue of whether the United States Constitution grants what is in common parlance referred to as a 'right to die.' We follow the judicious counsel of our decision in Twin City Bank v. Nebeker, [citation omitted], where we said that in deciding 'a question of such magnitude and importance ... it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject.'(7)

The language of the opinion is carefully crafted but has been read by advocates on both sides of the right to die issue as supportive of their positions. This is understandable. Though the Court did not reject the notion that an individual may have a right to refuse medical treatment, it did not embrace the proposition either: Many authoritative sources presume that the [Cruzan] opinion does recognize a constitutionally protected liberty interest in a competent person to refuse unwanted medical treatment. Indeed, the syllabus prepared for the Court says just that, and the case was hailed by the New York Times as the first to recognize a right to die. On the other hand, the Chief Justice's language does not support such a conclusion. While the majority agrees that '[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions,' (emphasis added) the Court never makes the inference itself. In fact, the opinion states explicitly that 'for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.'(8)

Those limitations, read together with the Court's explicit holding that the right to refuse medical treatment is not grounded in the concept of privacy but "is more properly analyzed in terms of a Fourteenth Amendment liberty interest,"(9) make it clear that whatever interest an individual has in controlling the nature and timing of medical care must be balanced against other important social concerns. In the words of the Court: "[D]etermining that a person has a 'liberty interest' under the Due Process Clause does not end the inquiry; 'whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.'"(10) This is not an endorsement of a generalized right to die.

The constitutional argument that lies at the foundation of Mr. powell's argument has thus been heard--and avoided by a majority of the Court. Unless a generalized right to die (as opposed to the universally accepted notion of the right to refuse medical treatment) can be established in the case law (which is doubtful), it is impossible to sustain the argument that the fourteenth amendment concepts of liberty necessarily include both the right to commit suicide and the right to receive "aid in dying." And without these "rights," the government need not bear the burden of proving the precise and "compelling" nature of whatever legitimate interests it might have in punishing or otherwise impeding the actions of those who (like Dr. Jack Kevorkian) would offer such "assistance" to consenting adults.

But I do not rest my argument on the practical ground that the Court has not accepted the generalized right to die. The Court's views on such issues may change over time. Rather, my argument aims at the heart of the contention that personal autonomy and privacy include a right to either suicide or "assistance in dying."(11) I assert that the right to die does not exist as a matter of moral logic or constitutional theory. In theory and in practice, such a right would be a contradiction of the "fundamental rights" principles upon which its proponents claim it is grounded. The specific reasons may be summarized as follows:

* First, the right to die is a concept that has no fixed moral or legal meaning.

* Second, while the concept of individual rights necessarily includes the freedom to refuse medical treatment, it does not, and logically cannot, include a right to commit suicide.

* Third, arguments favoring the recognition of a right to assisted suicide:

(a) assume that individual liberty includes an affirmative right to engage in any action that is not illegal and thus begin the argument with the presumption that there is a right to commit suicide;

(b) fail to address the legal and moral significance of the fact that suicide is, as a matter of law, a form of homicide;(12)

(c) ignore the important role of intent in both law and ethics;

(d) presume that consent can serve as a defense to a charge of homicide; and, as a result,

(e) lay the foundation for recognizing the existence of a right to be killed upon a showing of consent or demonstrating that death is in the best interest of the person who will die.

In sum Mr. powell's arguments in favor of a right to suicide fail because they assume, largely without regard to the underlying legal, philosophical, metaphysical, and practical foundations upon which they rest, that the right to be a homicide victim--by one's own hand or that of another--is (or should be) one of the liberties protected by the Bill of Rights.

Lessons from Michigan: The Continuing Saga of Dr. Kevorkian and the ACLU

Michigan law prohibits assisted suicide. Section seven of the statute provides: Criminal assistance to suicide; felony, penalties; exceptions for licensed health care professionals; repealer (1) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both:

(a) Provides the physical means by which the other person attempts or commits suicide.

(b) Participates in a physical act by which the other person attempts or commits suicide. (2) Subsection (1) shall neither be applicable to nor be deemed to affect any other laws that may be applicable to withholding or withdrawing medical treatment by a licensed health care professional. (3) A licensed health care professional who administers, prescribes, or dispenses medications or procedures to relieve a person's pain or discomfort, even if the medication or procedure may hasten or increase the risk of death, is not guilty of assistance to suicide under this section unless the...