Roe v. Wade and the euthanasia debate.

• Author: Bopp, James, Jr.

When abortion was declared a constitutional right in America, pro-life scholars declared that the nation had stepped on a slippery slope and predicted it would quickly lead to infanticide, assisted suicide, and active euthanasia.(1) That prediction will be proven true with respect to assisted suicide(2) if the United States Supreme Court affirms decisions by federal appellate courts in the Second and Ninth Circuits finding a constitutional right to assisted suicide.(3)

The prediction was based on the fact that societal approval of abortion constituted something even larger than approval of abortion. Implicit in the approval of abortion on demand was the principle that it is permissible to take innocent human life, even for reasons of convenience. Once that principle was accepted, it was but a short distance to societal acceptance of "Baby Doe" cases and assisted suicide.

The slippery slope has been lubricated by the numbing effect of three decades of one and a half million abortions a year. Jack Kevorkian's relentless flouting of the law, coupled with the inability of prosecutors to gain criminal convictions against him, has further numbed public outrage at assisted suicide and created a malaise of perceived inevitability.

However, if America does not gain a toehold on the slippery slope before reaching legal approval of assisted suicide, it should not be expected that the slide will stop at assisted suicide. The distance between assisted suicide and voluntary euthanasia (and even nonvoluntary euthanasia for persons who are incompetent) is even shorter than that between abortion and assisted suicide.

What is not appreciated by many (including those who support abortion rights but oppose assisted suicide) is the connection between the declared right to assisted suicide and the constitutional analysis employed by the United States Supreme Court in Roe v. Wade.(4) To change metaphors, Roe v. Wade (the case declaring a right to abortion) is the root, the reaffirmation of Roe in Planned Parenthood v. Casey(5) is the branch, and the right to assisted suicide is the fruit.

The Root: Roe v. Wade

In 1973, the United States Supreme Court seized the abortion issue from the laboratory of the states (some of which had been experimenting with more permissive abortion laws) and secured it behind the pale of constitutional protection. The decision, known as Roe v. Wade, was vigorously criticized by constitutional scholars for abandoning all pretense of being constitutional law and imposing on the states by fiat a regime of abortion on demand.(6)

To understand the scholarly outrage, it is necessary to explore the debate over the shadowy realm of substantive due process. Substantive due process is the analytical device employed by the Court to declare constitutional rights not enumerated in the Constitution.

Of course, it was not intended by the framers of the Constitution that the Supreme Court find unenumerated rights. The Constitution was designed to create a limited government, with the federal government receiving only those powers and protecting only those rights ceded to it by the people. All other powers and the right to regulate all other matters were retained by the people and the states, as expressly set out in the Constitution.(7) The arrangement was only to be altered by formal constitutional amendment.

In the Constitution and its amendments, the people granted the federal government the power to protect certain rights that were to be beyond the power of the federal or state governments to impinge upon. Those enumerated rights included the rights to free speech, free press, free association, free exercise of religion, and so on, as set out in the Bill of Rights.

Over the years, the high Court has had to apply these enumerated rights in changing contexts. For example, the rights to free speech and free press have been applied to an age of broadcast media and the Internet. However, such logical extension of enumerated rights was not a declaration of new rights.

Some justices have also been tempted to illegitimately stretch existing rights to encompass new ones that would surely be unrecognized as constitutional rights by the framers of the Constitution and its amendments. Where a newly declared right cannot be fairly traced to an enumerated right, the Court has engaged in a limited coup d'etat by seizing power to control areas not granted by the people to the federal government.

The temptation of the Court to create federal constitutional rights in areas left to state control by the framers has been strong because it allows the justices to decide the important issues of the day, rather than leaving them to the democratic process. When judges seek to decide matters not entrusted to them by the people, they arrogate to themselves the powers envisioned by Plato when he proposed his elite ruling guardians. Such judges do not limit themselves to the powers entrusted to them in the Constitution, which they swore to uphold. Rule by judges, rather than by the law, and Constitution duly enacted by the people, results in rule by man, not by law, a concept the framers clearly rejected when they rejected a monarchy and established a democratic republic.

Substantive due process, the tool the Court uses to create unenumerated rights, is based in the fourteenth amendment statement that a state may not "deprive any person of life, liberty, or property, without due process of law." The obvious intent of this post-Civil War amendment was to secure for all persons fair legal proceedings before they could be hanged, imprisoned, or fined.

However, the term liberty has beckoned justices seeking to declare new rights. If the Court could gain public acquiescence in its decision to define the term liberty beyond its original meaning, the Court would have the freedom to create new rights. Liberty would become an empty vessel that the Court could fill with its notion of proper public policy on a wide range of issues and thus control the direction of public policy on the major social issues.

The public has so far acquiesced. Despite the outcry of scholars against the creation of new rights, there have been no impeachments of activist justices. Presidents who appoint activist justices have suffered little, if any, political penalty. In fact, the dominant media hue and cry only arises when Presidents attempt to appoint conservative justices who promise to interpret the laws, not make laws. Robert Bork, whose strong position against judicial activism has been articulated in his book The Tempting of America: The Political Seduction of the Law (1990), was found by the Senate to be outside the mainstream in his confirmation hearings because of his opposition to substantive due process. Thus, substantive due process has become part of the Supreme Court's armamenture, and Court control of social policy is governed only by the Court's self-control.

The Court showed a return to self-control briefly in the early 1960s when it repudiated prior use of substantive due process to strike down a variety of social legislation. That brief period was characterized by the repudiation of Lochner v. New York,(8) a 1905 case in which the Supreme Court struck down state laws limiting the hours bakers could be required to work. The limitation (to a sixty-hour work week) was a traditional police-power regulation of the state designed to protect the health of bakers, but the Supreme Court used...