Assisted Suicide: the State Versus the People

• Jurisdiction: United States,Federal
• Citation: Vol. 21 No. 01
• Publication year: 1997

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 2FALL 1997

Assisted Suicide: The State versus The People

John P. Safranek, M.D., Ph.D.(fn*)

Stephen J. Safranek, J.D.(fn**)

I. Introduction

The Ninth Circuit Court of Appeals grounded a right to assisted suicide in Compassion in Dying v. Washington on the principles of personal dignity and autonomy.(fn1) Although the court determined that these principles justify a right to assisted suicide as coherently as they would a right to the "intimate and personal choice" of abortion,(fn2) assisted suicide differs from abortion because it implicates the state's power to protect actual-rather than potential(fn3)-human life. Because the Court in Roe v. Wade classified the fetus as only a potential human being,(fn4) the Court did not defer to the states' traditional authority to protect human life. In contrast, the Court recognized that the human life at stake in the case of assisted suicide is an actual one. Therefore, to justify a right of assisted suicide, the judiciary must defend arrogating power that it has historically ceded to the states.

This Article will examine the Ninth Circuit's appeal to personal dignity and autonomy to justify a constitutional right of assisted suicide in the face of pluralist opposition, that is, a law duly enacted by a majority of elected representatives in a state or by the people directly.(fn5) Scrutiny of the Ninth Circuit's decision will reveal the formidable jurisprudential obstacles to basing a right to assisted suicide on dignity and autonomy, obstacles the Supreme Court refused to overcome in revoking Compassion in Dying.(fn6) This examination is divided into three parts: the first analyzes attempts to justify rights on the principle of liberty, to which autonomy and dignity reduce; the second focuses specifically on the Ninth Circuit's attempt to ground a right to assisted suicide on this principle; and the third examines three responses to the challenge that pluralism presents to the Ninth Circuit's decision.

II. Dignity and Autonomy

A. Neutrality Is Necessary

A crucial tenet of contemporary liberal legal and political theory asserts that the government must remain neutral to competing views of the good, or morality. Championed by such eminent liberals as Ronald Dworkin(fn7) and John Rawls,(fn8) this tenet has gained currency as a jurisprudential principle: jurists cite it to override state laws regarding matters of personal morality. For example, a Michigan Supreme Court justice upheld a right to assisted suicide, claiming: "Defining liberty, therefore, cannot involve a morality play by any group or by a general disapproval by the majority of this Court."(fn9) Therefore, liberal scholars and jurists bear the self-imposed burden of justifying a right to assisted suicide without imposing morality.

B. The Equivalence of Liberty, Autonomy, and Dignity

The Ninth Circuit upheld a right to assisted suicide in Compassion in Dying v. Washington, agreeing with the Supreme Court's statement in Planned Parenthood of Southeastern Pennsylvania v. Casey that "choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment."(fn10) Therefore, to secure the protection of the Fourteenth Amendment, the act of assisted suicide must fulfill two requirements: the choice to participate in this act must be central to personal dignity and autonomy, and the liberty guaranteed by the Due Process Clause must encompass choices related to personal dignity and autonomy. The former claim will be conceded; the latter, however, is problematic.

The substance of the Due Process Clause has been disputed at least since the Warren Court initially invoked it to justify individual rights.(fn11) The Due Process Clause does not protect every act of liberty, and in the last thirty years the Supreme Court has attempted to articulate criteria establishing which free acts the general right to liberty protects.(fn12) Previously the Court claimed that acts of a certain private nature enjoy constitutional protection and employed this criterion to justify rights to the liberties of purchasing contraceptives(fn13) and obtaining an abortion.(fn14)

In Casey, the Justices eschewed privacy in favor of two other criteria-dignity and autonomy-to distinguish among acts of liberty that the Due Process Clause protects.(fn15) The Ninth Circuit's justification in Compassion in Dying of a right to assisted suicide, which appealed directly to Casey's criteria, depends entirely on the coherence of dignity and autonomy as jurisprudential principles.(fn16)

If the concepts of dignity and autonomy distinguish those acts of liberty that the Fourteenth Amendment guarantees, then these concepts must differ in some relevant respect from liberty; otherwise jurists would be attempting to distinguish among acts of liberty by the criterion of liberty, which is not possible. However, neither the judiciary nor legal scholars have ever clearly differentiated either autonomy or dignity from liberty.

The Supreme Court has frequently employed autonomy in constitutional jurisprudence. For example, it has recognized the autonomy of the individual to control unwanted mail,(fn17) to represent herself in court,(fn18) and to choose the editorial content of publications.(fn19) In all of these instances, the Court could have substituted liberty for autonomy without altering the import of these rights. In Casey, the Court also used liberty and autonomy indistinguishably, claiming, "[t]he woman's constitutional liberty interest also involves her freedom to decide matters of the highest privacy and the most personal nature";(fn20) and, "[d]ecisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own view of what is best."(fn21) In constitutional jurisprudence, both liberty and autonomy protect a woman's right to make important personal decisions for herself.(fn22) Thus, the Court has identified autonomy with liberty for many decades, and recently has employed it to ground important personal rights.

Liberal scholars also identify autonomy with the classical understanding of liberty. Joseph Raz claims that personal autonomy "is essentially about the freedom of persons to choose their own lives,"(fn23) and Ronald Dworkin states that individuals' right to autonomy is "a right to make important decisions defining their own lives for themselves."(fn24) John Stuart Mill, the classical liberal, stated that the principle of liberty "requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character. . . ."(fn25) Hence, it appears that neither the Supreme Court nor liberal scholars have differentiated autonomy from liberty.

The Supreme Court has also used dignity in a sense indistinguishable from autonomy or liberty, namely, the freedom or right of individuals to decide important personal matters for themselves. In Casey, the Court claimed, "A woman considering abortion faces a difficult choice having serious and personal consequences of major importance to her own future-perhaps to the salvation of her own immortal soul. The authority to make such traumatic and yet empowering decisions is an element of basic dignity."(fn26)

The judiciary must cast dignity in the same voluntarist light as autonomy; otherwise, it would patently impose a view of the good. It cannot claim, for example, that everyone suffering grievously from terminal cancer must partake in assisted suicide in order to preserve dignity; rather, death with dignity is the death that the individual autonomously chooses, whether by assisted suicide or natural causes. If jurists proposed a substantive code of dignified human action, then they would be imposing an axiology and constraining an individual's choice-whatever it might be-in important personal matters. Thus, when it asserts that human dignity safeguards an individual's choice regarding the manner of her death, the judiciary reduces dignity to autonomy and liberty.

C. The Ethical Basis of the Harm Principle

If personal dignity and autonomy do not relevantly differ from liberty, then the concept of liberty must protect important personal decisions, such as the right to assisted suicide, from the tyranny of pluralism, i.e., the majority vote of elected representatives or the people themselves. The point of departure for establishing claims to liberty is John Stuart Mill's harm principle, which prohibits the majority from circumscribing an individual's liberty unless the act harms others.(fn27) The judiciary routinely adjudicates liberty claims on the basis of their harmful ramifications, as paradigmatically illustrated in Justice Holmes's rejection of the free speech act of screaming "Fire!" in a movie theater because of the act's potential harm.(fn28)

Although the harm principle animates nearly all liberal political and legal theory,(fn29) it presents contemporary liberalism with an insoluble contradiction: an individual judges an act as harmful only when she thinks a good is being subverted. As Joseph Raz notes,Since 'causing harm' entails by its very meaning that the action is prima facie wrong, it is a normative concept acquiring its specific meaning from the moral theory within which it is embedded. Without such a connection to a moral theory, the harm principle is a formal principle lacking specific...