Washington v. Glucksberg was tragically wrong.

• Author: Chemerinsky, Erwin

Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects of autonomy that the Court has protected in decisions concerning family autonomy, reproductive autonomy, and autonomy to engage in sexual activity. Moreover, the government's general interest in protecting life and preventing suicide has far less force when applied to a terminally ill patient. The tragedy of Washington v. Glucksberg is that every day across the country, terminally ill patients are being forced to suffer longer and being denied an essential aspect of their autonomy and personhood.

INTRODUCTION

Fourteen years ago, in the spring of 1993, my father was dying of terminal lung cancer. Near the end of his life, he was in the hospital, far too weak to get out of bed or even to shave. Except when sedated, he was fully conscious and completely rational. He completely understood that he was in the last days of his life and that he would never get out of that hospital bed. I stood next to him as he asked a doctor to administer drugs to end his life. He cogently explained to the doctor that either he was awake and in great pain or he was drugged into unconsciousness. He told the doctor that it was his time to go and there was no point in prolonging his life a few more days. No one in my family objected to his choice.

The doctor brusquely said, "I can't do that," and quickly changed the subject. My father, though, was persistent and again asked the doctor to give him enough morphine to stop his breathing and end his suffering. The doctor said that the law did not allow that and that he would not discuss it further.

My father died four days after making that request. I will never understand what interest the State of Indiana, where he was in the hospital, had in keeping him alive for those few additional days. He was awake for increasingly short intervals and while awake he complained of great pain. The tumor had blocked circulation to his arm and it was grotesquely swollen. He did not see any point in having an amputation since he was about to die. He told the doctor that at that stage it did not matter to him whether he died of gangrene from the death of tissue in his arm or from the lung cancer.

I cannot approach the topic of physician-assisted suicide without confronting the vivid image of my father pleading with a doctor to help him stop suffering. The prohibition of physician-assisted suicide affects those like my father who are not on life support and are physically too weak to commit suicide. Those on artificial life support can order it ended. (1) Those with the physical ability to do so can commit suicide, albeit with far greater trauma to their family and loved ones. But a person like my father, who desperately wanted to end his suffering, was left with no alternatives. Thankfully, he only lingered for a few days after his request; but there are many terminally ill patients who suffer for months because of the lack of a right to death with dignity.

Three years after my father died in 1993, the United States Court of Appeals for the Ninth Circuit, in an en banc ruling, found that the right to privacy included a right to physician-assisted suicide. In a lengthy and carefully reasoned opinion by Judge Stephen Reinhardt, the court, in a seven-to-four decision, ruled in favor of terminally ill patients in the State of Washington who were challenging the law prohibiting aiding or abetting a suicide. (2) Almost simultaneously, the United States Court of Appeals for the Second Circuit found that a similar New York law violated equal protection. (3)

A year later, the Supreme Court reversed both of these decisions and emphatically rejected any constitutional right to physician-assisted suicide. (4) The majority opinion in each of these cases was written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Justices Stevens, Souter, Ginsburg, and Breyer concurred in the judgment. There were no dissents.

In this Article, I argue that the Supreme Court was wrong, tragically wrong, in its decisions in Washington v. Glucksberg and Vacco v. Quill. As I assess these cases and assisted death, there are two questions to be answered. First, should the right to privacy under the Constitution, which had been recognized in prior cases, be interpreted to include a fundamental right to assisted death for terminally ill patients? Second, if so, is the prohibition of assisted death necessary to meet a compelling government interest?

The Supreme Court's crucial error was in failing to recognize that the prohibition of assisted death infringes a fundamental aspect of the right to privacy. Thus, the Court used only rational basis review, rather than strict scrutiny. Had it applied the latter, it should have found that none of the government's alleged interests met the demanding requirements of strict scrutiny.

The tragedy of the Supreme Court's decision is that countless other individuals in my father's situation needlessly suffer every day across the country. They are denied the most basic aspect of their autonomy: the power to decide to end their life with dignity and on their own terms.

In Part I, I explain why the Supreme Court was wrong in failing to find that a fundamental right was implicated. In Part II, I describe why laws prohibiting assisted dying for terminally ill patients fail strict scrutiny. (5)

1. LAWS PROHIBITING ASSISTED DEATH INFRINGE THE RIGHT TO PRIVACY

   There are two key steps to the argument that laws prohibiting assisted death infringe the right to privacy. First, the Constitution protects fundamental aspects of personal autonomy, even though privacy and these rights are not enumerated in the Constitution. Second, the right to assisted dying--a right to die with dignity--is a core aspect of the personal autonomy protected under the Constitution's right to privacy.

   The first step is controversial, but as a constitutional matter, not difficult. Conservative Justices consistently maintain that there is no right to privacy protected by the Constitution because it is not mentioned in the text and was not intended by the framers. (6) But long before the Supreme Court considered physician-assisted suicide, it held that privacy is protected as a fundamental right under the Constitution, and it safeguarded many aspects of autonomy as fundamental rights. For example, the Court has expressly held that certain aspects of family autonomy are fundamental rights and that government interference will be allowed only if it withstands strict scrutiny. These liberties include the right to marry, (7) the right to custody of one's children, (8) the right to keep a family together, (9) and the right to control the upbringing of one's children. (10) Similarly, the Court has recognized a right to reproductive autonomy, which includes the right to procreate, (11) the right to purchase and use contraceptives, (12) and the right to abortion. (13)

   Unless the Court intended to overrule all of these decisions, it was clear at the time of Glucksberg that the Constitution was interpreted as protecting basic aspects of personal autonomy as fundamental rights even though they are not mentioned in the text of the document. Put another way, the Court never has adopted the originalist position of Justices like Scalia and Thomas that the Constitution's meaning is limited to its original meaning. (14) As I and others have argued elsewhere, and there is no need to repeat here, there are compelling reasons to reject an originalist approach to the Constitution. (15) Moreover, scholars have developed persuasive arguments as to why privacy is worthy of constitutional protection as a fundamental right. (16)

   In Glucksberg, Chief Justice Rehnquist's majority opinion formulated an approach to identifying fundamental rights that is at odds with the Supreme Court's approach in its earlier privacy cases. Chief Justice Rehnquist wrote that "we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition.'" (17) Further, he gave decisive weight to history and tradition:

   The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. (18) However, this assumption that a fundamental right exists only if there is a tradition of protecting it is wrong both descriptively and normatively. Descriptively, the Court has been willing to protect rights even though there has not been a tradition of protection. For example, laws prohibiting interracial marriage were far more "deeply rooted in this Nation's history and tradition" than the right to interracial marriage, but in Loving v. Virginia, the Court held that such a right is protected by the Due Process Clause. (19) And there was no deeply rooted tradition of protecting a right to abortion before Roe v. Wade. In fact, abortion was illegal in forty-six states when Roe was decided. (20)

   Of course, conservatives can argue that is why these decisions were wrong. But that misses the point: Chief Justice Rehnquist purports to describe how the Court has acted in determining whether an...