Washington v. Glucksberg: influence of the court in care of the terminally ill and physician assisted suicide.

• Author: King, Philip

1. INTRODUCTION

   On June 26, 1997, the United States Supreme Court considered a constitutional challenge to a Washington statute that criminalized acts of deliberate assistance of another in committing suicide. (1) The Court ruled that an asserted right to physician assisted suicide was not a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. (2) Chief Justice Rehnquist, writing for the Court, concluded the influential decision with a strong statement: "the opinion should not restrict the continuation of the open debate in our society about all aspects of physician assisted suicide." (3)

   The issue of how to care for the terminally ill patient, whether by use of palliative care techniques, a medical treatment process placing the relief of pain as the primary care goal, or by allowing the patient to voluntarily end their life, has been enriched by the far-reaching implications of the court's decision. (4) Timothy Quill, M.D., published an influential article in the New England Journal of Medicine which frames the issue of physician assisted suicide. (5) Dr. Quill wrote about his patient Diane who had recovered from several difficult life circumstances only to discover that she had acute myelomonocytic leukemia(6) Dr. Quill described the woman as an "incredibly clear, at times brutally honest thinker and communicator" who had finally taken complete control of her life with a strong sense of independence and self-esteem. (7) Faced with the prospect of a fifty percent survival rate involving extensive chemotherapy treatments and other considerably intrusive and complicated medical care, Diane, with the support of her family, decided not to undergo the recommended therapy. (8) Dr. Quill stated that she wanted to live her remaining time with her family outside of the hospital. (9)

   After considerable discussions between Dr. Quill and Diane about her care, Diane expressed the importance of the need and value of maintaining control of herself and her dignity over the upcoming months. (10) Dr. Quill wrote "that Diane expressed that when the time came, she wanted to take her life in the least painful way possible." (11) A short time later, Dr. Quill prescribed barbiturates after carefully considering the brief conversation between the two about Diane's trouble sleeping. (12) Dr. Quill noted that it was evident to him that Diane then felt secure knowing that if the time came she would be able to voluntarily end the suffering at her moment of choice. (13) Diane did take the medications and quietly passed away at home with her family one hour after ingesting the drugs. (14) Dr. Quill wrote: "[s]uffering can be lessened to some extent, but in no way eliminated or made benign, by careful intervention of a competent, caring physician, given current social constraints." (15)

   This Note will examine current issues pertaining to the medical care of the terminally ill individual, particularly with respect to palliative care and how the continuum of medical care incorporates the voluntary termination of a patient's life. Part II of this Note will look at the decision reached in Washington v. Glucksberg and how the Supreme Court has contributed to the molding of care for the terminally ill. Part III will review relevant aspects of end of life care concepts and their relationship and impact upon the assisted suicide alternative. Any analysis of physician assisted suicide must include the evolution of Oregon's legislative approach to the topic. (16) Oregon is the only state which provides terminally ill citizens the option of assisted suicide by legislative initiative, viz., the Death with Dignity Act. (17) The Act will be reviewed at length in Part IV.

   The final portion of this note will take a hard look at how the United States Congress has addressed the issue of care of the terminally ill with such initiatives as the Lethal Drug Abuse Prevention Act of 1998. (18) The 106th Congress is also considering legislation to promote pain management and palliative care under the Pain Relief Promotion Act of 1999. (19) However well intended this legislation is, the proposed law may drastically impact Oregon's

   physician assisted suicide law and could repress the possible improvements needed in palliative care by physicians. This Note will conclude with the proposition that physician assisted suicide, not euthanasia, is merely an option in the continuum of care for the terminally ill patient. When all practical and available medical procedures fail to provide the terminally ill patient with comfort and dignity during the final stages of life, the affected patient has a medical and, arguably, a legal right to end life with dignity.

   II: THE SUPREME COURT INFLUENCE UPON HEALTH CARE OF THE TERMINALLY ILL

   Physician assisted suicide began to evolve as a constitutional issue when two different United States Courts smack down state statues prohibiting physician assisted suicide. (20) In Compassion In Dying v. Washington, the Ninth Circuit Court of Appeals considered a substantive due process attack on a Washington statute prohibiting the aiding of another person to commit suicide. (21) The Ninth Circuit held that the statute violated the Due Process Clause of the Fourteenth Amendment as applied to terminally ill patients who wished to end their life by taking medications prescribed by their physician. (22) The appellate court reasoned that a person had a liberty interest in choosing how and when to die. (23)

   Shortly after the Ninth Circuit's decision in Compassion In Dying, the Second Circuit Court of Appeals considered a physicians action in Quill v. Vacco. (24) This case challenged the constitutionality of a New York statute, similar to the Washington law, which also made it a crime to assist someone in committing Suicide. (25) The physicians asserted that because New York allowed a competent person to refuse life-sustaining medical treatment, which was "essentially similar" to physician assisted suicide, that similarly-situated persons were treated differently. (26) In reversing a district court decision, the court of appeals held that the New York statute did not treat competent persons equally in the final stages of life, and therefore, violated the Equal Protection Clause. (27)

   The Supreme Court consolidated and reviewed the Ninth Circuit decision in Compassion In Dying v. Washington and the Second Circuit decision in Quill. (28) The issue before the Supreme Court in Glucksberg involved the existence of a liberty interest in selecting the manner and time in which an individual may die. (29) In Quill, the Court considered whether the New York law prohibiting physician assisted suicide was a violation of the Equal Protection Clause. (30) Thus, the constitutional review focused upon the application of the Fourteenth Amendment to an individual's fight to voluntarily terminate life with the assistance of a physician. (31)

   In Glucksberg, the action was brought by three terminally ill plaintiffs, four physicians and the non-profit Washington organization, Compassion In Dying. (32) The three terminally ill patients had died before the Court's decision, which illustrates the important nature of the right to die at a time selected by the individual. (33) Compassion In Dying is a non-profit organization that counsels people considering physician assisted suicide and is a strong supporter of an individual's right to die in Washington. (34)

   The respondents asserted that the Fourteenth Amendment Due Process Clause extended a personal choice by a mentally competent, terminally ill adult to consent to and to commit suicide with the assistance of a physician. (35) The Court provided two lines of reasoning in ruling that no such liberty interest was protected by the Constitution. First, the Court concluded that the liberty interest to end life voluntarily was not a fundamental fight which was so deeply rooted in the nation's history and tradition deserving of protection under the Due Process Clause. (36) The Court analyzed the physician assisted suicide issue based upon whether the fight to end life was so rooted in the traditions and consciousness of the people that the fight was implicit in the concept of ordered liberty. (37) The Court determined that the nation's legal history of prohibiting suicide, coupled with the fact that many states had enacted statutes making it a crime to help someone kill himself or herself was sufficient to find the issue of physician assisted suicide lacking the muster to grant Constitutional protection. (38) Secondly, the Court found that Washington's ban on physician assisted suicide was rationally related to a legitimate state government interest. (39) Even though the Court's decision was unanimous in both cases, careful examination of the written opinions of the Court and their suggests that the Court was supportive of the right to die. The Court was not about to overturn centuries of legal rulings and establish a fundamental fight to end life without greater justification. The rulings arguably may indicate judicial support for the voluntary termination of life under the direction of a physician in more appropriate circumstances.

   Chief Justice Rehnquist's opinion for the Court in Washington v. Glucksberg provides many indications of the Court's concern and understanding for the terminally ill patient's choice to end his or her life. The Court recognized that because of the advances made in medicine, Americans were more likely to die in institutions from chronic illnesses (40) The Court acknowledged that the public was very concerned about the issue of protecting an individual's dignity and independence in the final stages of life. (41) One may consider whether this is a signal by the Court that death with dignity may eventually evolve into a constitutionally protected right. (42) In another context, the Court did not consider the right to refuse medical treatment as...