Three strikes: is an assisted suicide right out?

AuthorBopp, James J., Jr.

In 1997 advocates of legalized physician-assisted suicide ("PAS") got three strikes in their effort to establish a constitutional right to assisted suicide. Two federal appellate court decisions finding a federal constitutional right to PAS were unanimously reversed by the United States Supreme Court--on both substantive due process(1) and equal protection theories.(2) The Florida Supreme Court also found no state constitutional right to PAS.(3) This followed repeated rebuffs in state legislatures.(4)

Have assisted suicide advocates struck out in their effort to establish a federal or state constitutional right? Will they succeed under different circumstances? At the time this article is being written, advocates of legalized physician-assisted suicide have filed a lawsuit claiming a right to PAS under the Alaska Constitution.(5) Is the suit likely to succeed?

While courts are often unpredictable, this article maintains that the battle is over in the U.S. Supreme Court and that other state supreme courts will likely follow the compelling logic of the U.S. and Florida Supreme Courts. Similarly, in legislatures--where hearings are held and legislators are educated in depth about the dangers of PAS to vulnerable persons--the influence of the Supreme Court will be immense. The uniform rejection of PAS by legislatures will likely continue.

But ballot initiatives, by their nature, are decided on a more simplistic level of public policy analysis and pose grave dangers to vulnerable persons. Federal statutory or constitutional protection is therefore needed to safeguard these vulnerable persons.

Part one of this article analyzes the U.S. Supreme Court decisions eschewing a right to physician-assisted suicide. Part two evaluates the Florida Supreme Court's decision rejecting a state constitutional right to PAS. Part three explains why a more particularized challenge in the U.S. Supreme Court will be unavailing. Part four discusses why support for a right to palliation without governmental interference would not encompass an assisted suicide right. Part five demonstrates why new evidence of assisted suicide in action will confirm the decisions rejecting a right to assisted suicide. Part six discusses why the ballot initiative process is inappropriate in the assisted suicide context.

The U.S. Supreme Court Rejected the Arguments for Assisted Suicide

While proponents of legalized assisted suicide have tried to put a favorable spin on the U.S. Supreme Court's rulings rejecting a right to assisted suicide--e.g., insisting that the Court gave them a "green light" to pursue state legislation permitting suicide assistance(6)--in reality they have suffered a stunning defeat. As University of Michigan Law School Professor Yale Kamisar has stated, "Proponents of PAS have always had `the green light' to persuade state legislatures to legalize PAS."(7) "[S]ome proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its ruling in the PAS cases," he remarked.(8)

The defeat means that future efforts by assisted suicide advocates to find protection for PAS in state constitutions or to enact laws legalizing assisted suicide by legislation will be heavily burdened by the U.S. Supreme Court's reasoned rejection of the assisted suicide movement's best arguments. One by one, the High Court analyzed the claims presented by able advocates such as Harvard Law School Professor Laurence Tribe and found them unconvincing.(9)

And while certain language in the opinions by the Court and individual Justices seem to leave open the technical possibility of a future, more particularized challenge, the discussion below shows that there is less hope for such a case than PAS advocates represent. The opinions reveal that all the arguments and situations have been considered in the decided cases. Therefore, another case would not bring a different result absent a failure of stare decisis on the Court.(10) The federal constitutional battle is over, at least for this generation.(11)

There Is No Federal Fundamental Right to Assisted Suicide.

In Washington v. Glucksberg,(12) the U.S. Supreme Court reversed a Ninth Circuit decision(13) that found a fundamental right to assisted suicide.(14) In an effort to avoid the "history and tradition" test for unenumerated fundamental rights, the Ninth Circuit had framed the issue broadly, but the Supreme Court narrowed the focus.(15) The Ninth Circuit had asserted that Planned Parenthood of S.E. Pennsylvania v. Casey(16) and Cruzan v. Director, Missouri Department of Health(17) provided binding precedent, but the Supreme Court readily distinguished those cases.(18) The Ninth Circuit had dismissed asserted state interests,(19) but the Supreme Court found them sufficient to overcome an interest in assisted suicide.(20) These topics are developed next.

Framing the issue. The art of verbal engineering has played prominently in the campaign to gain legal protection for assisted suicide and euthanasia.(21) For example, in 1976 the euphemism euthanasia was replaced in the name of the Euthanasia Society of America, which became the Society for the Right to Die, a name clearly calculated to take advantage of broad public support for the right to refuse or withdraw medical treatment. That name was superseded in 1991 by Choice in Dying,(22) an obvious effort to take advantage of the pro-choice motif used in the abortion context.

Another example of verbal engineering is seen in the change of terminology for the promoted activity. In the 1988 through 1992 campaigns in California and Washington to legalize assisted suicide and euthanasia, pro-euthanasia forces used aid-in-dying to describe what they wanted to pass.(23) But after a 1993 poll found death with dignity more marketable,(24) that phrase was incorporated into the title of Oregon's Measure 16, which enacted an assisted suicide law known as the Death with Dignity Act.(25) Derek Humphrey, prominent pro-euthanasia movement leader, reportedly remarked after Measure 16 squeaked to passage (51%-49%) in 1994 that "[t]he euphemisms won."(26)

The Glucksberg case was originally known as Compassion in Dying v. Washington,(27) brought by a euphoniously named spin-off from the Hemlock Society.(28) Compassion in Dying was formed after Hemlock's failed initiative effort in 1991 to legalize euthanasia in Washington State.(29)

Verbal engineering played prominently in Compassion in Dying's efforts to frame the asserted right and in the lower courts' analyses, including shifting definitions of "terminal," "suicide," "care," "comfort care," and "medical treatment."(30)

How to frame the issue in substantive due process analysis has been the subject of considerable dispute on the Supreme Court.(31) In evaluating an asserted fundamental right, the issue tested must be framed in a concrete, fact-sensitive manner. Otherwise, the framing of the issue can determine an outcome not reachable by an objective, legitimate analysis.(32) The Supreme Court stated the need for caution and restraint in issue framing recently: "Substantive due process" analysis must begin with a careful description of the asserted right, for "[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.(33)

Because of the problems posed by improper formulation of a proposed right, the U.S. Supreme Court has established certain principles, which may be derived from its opinions, for formulating proposed rights to be tested for fundamentality. The Michigan Supreme Court gave thoughtful consideration to the framing of the proposed right in People v. Kevorkian, a 1994 case rejecting a federal constitutional right to assisted suicide, and summarized the U.S. Supreme Court's issue framing principles as follows:

[I]t is important to the analysis of substantive due process that the asserted right be framed in a precise and neutral manner. This is critical in cases involving end-of-life questions, which are particularly susceptible to emotion-laden terminology and flawed syllogisms. The approach of the United States Supreme Court in assessing whether a proposed right is `fundamental' has been to narrow the threshold inquiry by applying three principles: (1) the focus should be on the specific activity that proponents argue is protected by the constitution, taking into account all relevant facts, (2) the formulation should not be so broad as to encompass activities that are logically distinct and involve separate considerations, and (3) the formulation should reasonably accommodate all of the interests at stake.(34) Applying these issue-framing principles of the U.S. Supreme Court, the Michigan Supreme Court concluded that the proper issue was whether there is a right to suicide that includes assistance:

The question presented in this case thus is not whether a person has a constitutional right of self-determination, or a right to define personal existence, or a right to make intimate and personal choices, or a right not to suffer. Rather, the question that we must decide is whether the constitution encompasses a right to commit suicide and, if so, whether it includes a right to assistance.(35) But in 1996 the Ninth Circuit ignored the U.S. Supreme Court's framing principles and the Michigan Supreme Court's application of them to assisted suicide. Instead, it declared that the issue in Compassion in Dying/Glucksberg was "whether a person who is terminally ill has a constitutionally-protected liberty interest in hastening what might otherwise be a protracted,(36) undignified, and extremely painful death"(37) including "the prescribing of medication by a physician for the purpose of enabling a patient to end his life."(38) This was an effort to find support by likening assisted suicide to the right to refuse medical treatment recognized by the...

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