The right to die.

• Author: Sunstein, Cass R.

In a number of cases, people with terminal illnesses are seeking to end their lives with the aid of a physician.(1) Many such people suffer from hopeless conditions of increasing debilitation, sometimes accompanied by periods of excruciating pain. It was inevitable that circumstances of this kind would raise constitutional questions. Two recent cases have turned the "right to die"--or, more precisely, the right to physician-assisted suicide--into the next great arena for the struggle to define the scope of fundamental rights under the Due Process Clause. In Quill v. Vacco,(2) the Court of Appeals for the Second Circuit rejected the due process claim but held, somewhat astonishingly, that New York had acted "irrationally" and hence in violation of the Equal Protection Clause because it prohibited physician-assisted suicide while simultaneously permitting patients to withdraw life-saving equipment. In Compassion in Dying v. Washington,(3) the Court of Appeals for the Ninth Circuit held straightforwardly that a prohibition on the right to physician-assisted suicide violates the Due Process Clause.

In this Essay, I argue that the Supreme Court should not invalidate laws forbidding physician-assisted suicide. My basic claim is institutional: The Court should be wary of recognizing rights of this kind amid complex issues of fact and value, at least if reasonable people can decide those issues either way, and if the Court cannot identify malfunctions in the system of deliberative democracy that justify a more aggressive judicial role.(4) The issues presented by a right to physician-assisted suicide are especially well-suited to a federal system, where appropriate experiments may be made, and where such experiments are likely to provide valuable information about underlying risks. It is particularly important that the issue of physician-assisted suicide is facing not neglect or indifference but intense discussion in many states.(5) It is far too early for courts to preempt these processes of discussion, especially if we consider the fact that there is no systematic barrier to a fair hearing of any affected group. Despite appearances, the Court's current doctrines reflect this point. Thus a general theme of this Essay is that many cases involving "fundamental rights"--including the key privacy cases and the key equal protection cases--are best seen not as flat declarations that the state interest was inadequate to justify the state's intrusion, but more narrowly as democracy-forcing outcomes designed to overcome problems of discrimination and desuetude.

In short, the Court should say that even if it assumes that the right to physician-assisted suicide qualifies as "fundamental" under the Due Process Clause, a legal ban on physician-assisted suicide is constitutionally permissible in light of the state's legitimate and weighty interests in preventing abuse, protecting patient autonomy, and avoiding involuntary death. The Court should reach this conclusion partly because of appropriate judicial modesty in the face of difficult underlying questions of value and fact;(6) it should emphasize these institutional concerns in explaining its conclusion.

To present the argument in more specific and somewhat more technical terms, it does not seem especially controversial to say that the state needs a strong justification if it seeks to intrude on the decision of a competent adult to terminate his life under medically hopeless and physically painful conditions.(7) But it is extremely difficult either to describe the standard for "fundamental rights" that emerges from the existing cases or to tell whether the right to physician-assisted suicide qualifies as "fundamental" under those cases. We might want to read current law to say that there is a presumptive right(8) against government intrusion into a decision whether to terminate one's life under hopeless conditions or, alternatively and more broadly, a presumptive right against nontrivial government-imposed intrusions into the physical space of one's own body. In some cases, the right to physician-assisted suicide certainly meets the former standard, and while it does not quite meet the latter--it is a right "to" invasion, not a right "from" invasion--that right should probably be taken as close enough to the rights established by the existing case law to qualify as "fundamental" for constitutional purposes when the patient faces medically hopeless conditions. At the very least, it would be reasonable for the Court to make this assumption for purposes of decision. But--and this is the central point--the state has an array of strong justifications for intruding on that right. These justifications involve the risk of abuse by doctors and others and the danger that a right to physician-assisted suicide would, in practice, decrease rather than increase patient autonomy.

The state may believe, for example, that recognition of the right would allow people suffering from depression and distorted judgment to terminate their lives when their judgments should not readily be trusted; that a right to physician-assisted suicide would discourage people from dealing more productively with their distress and with the fact of death; that the line between hopeless and hopeful conditions is too thin in practice and that any right to physician-assisted suicide would thus produce premature deaths; that at least some doctors, carrying a great deal of authority and faced with multiple demands on their time, would present death as an option in such a way that some patients would have a hard time refusing; that some well-meaning families would impose irresistible pressures on terminal patients to "choose" death; or that any such right would have harmful effects on the performance and norms of the medical profession and perhaps on the norms of the citizenry in general. On some of these counts, the right to remove life-sustaining equipment is quite different from the right to physician-assisted suicide, because the latter creates far more serious risks of abuse.(9) At least relevant in this regard is the fact that numerous doctors--aware of the underlying risks--oppose a right to physician-assisted suicide.(10) In these circumstances, the Supreme Court should decline to impose a national solution.

This is emphatically not an argument against physician-assisted suicide as a matter of public policy. Many of the individual cases present powerful arguments for respecting the patient's wishes. A reader of those cases and the relevant literature may well conclude (as I would) that, in the end, states should probably allow physician-assisted suicide--because strong autonomy interests favor the right, social and familial interests support the right, the risks that trouble opponents of the right may not be as severe as they appear, and those risks can be handled through procedural safeguards short of denying the right.(11) Eventually, it may be predicted that the United States and other nations will indeed come to recognize a right to physician-assisted suicide under appropriate conditions, accompanied by procedural safeguards(12) While any judgment must be tentative, I believe that this is likely to be a salutary development.(13) What I am suggesting is that these claims do not support recognition of such a judgment as a matter of constitutional law.

1. SOME CLARIFICATIONS

   The "right to die" might be asserted in a number of circumstances.(14) Of course, the term might refer to the interest in withdrawing life-sustaining equipment. The interest in doing so appears to have been recognized as having presumptive constitutional status in Cruzan v. Director, Missouri Department of Health,(15) in the sense that the state must come forward with a strong justification for intruding on that interest. In any case, many states allow citizens to decline medical treatment.(16)

   The distinction between the right to withdraw life-sustaining equipment and the right to physician-assisted suicide is problematic in many ways,(17) but here I am speaking of cases that involve more than the withdrawal of treatment. Consider the following possibilities, designed to give a sense of the range of factual contexts in which the right might be claimed. (1) A competent patient seeks death under conditions that are both medically hopeless, in the sense that the best medical judgment is that there is a fixed and relatively short time to live, and physically difficult and debilitating, in the sense that the patient will experience some intense pain.(18) (2) A competent patient seeks death under conditions that are medically hopeless, but do not involve much physical pain. (3) A competent patient with a disease that will produce a long period of deterioration and a long span of life--Alzheimer's disease is the most familiar example--seeks to terminate her life at some stage before the deterioration becomes serious. (4) A patient may be unconscious or otherwise incompetent and also in a medically hopeless state; his family or guardian seeks death, with or without evidence that this would be the patient's desire. These might be called cases of nonvoluntary euthanasia, as distinguished from voluntary and involuntary euthanasia. (5) A competent patient may be facing a severe medical problem. Though his condition is not utterly hopeless, he may seek death because he is generally depressed or no longer considers life worth living. (6) A patient may be facing a period of sustained medical difficulty without knowing whether or not some improvement is eventually possible. His condition is therefore considerably better than in (5), but he seeks death because he no longer considers life worth living. (7) Any of the above conditions might involve a person who seeks death, not with the assistance of a physician, but with the assistance of a friend or family member.

   These various situations present quite different issues. In case (4), there is a...