Washington V. Glucksberg - Physician-assisted suicide

• Rehnquist 1997. SCt’s latest word on unenumerated rights.

• No generalized “right to commit suicide”: Case clearly establishes that there is no generalized right to commit suicide, let alone a right to enlist the assistance of others in doing so. And in fact, it’s pretty clear that even the class of “terminally ill patients in severe pain” do not have such a generalized right.

• Right to be free of pain. But Glucksberg was a facial challenge, essentially a claim that the statute could not constitutionally be applied to any terminally-ill competent patient. SCt here carefully left the door open to “as applied” claims. Thus, a future plaintiff might well succeed with a claim that a particular state ban on suicide or suicide-assistance has infringed that particular patient’s autonomy-based due process interest. For instance a terminally-ill, competent patient, whose pain cannot be reduced by any method that wouldn’t bring about death, might well succeed with a constitutional claim if the state prevented him from getting any relief.

• Five justices leave open possibility. Five justices (O’Connor, Stevens, Souter, Ginsburg, Breyer) seemed to explicitly leave open possibility that such an “as applied” claim might succeed.

• States free to permit. Lastly, the states are free to permit assisted suicide if they want to. A particular state statute permitting assisted suicide might violate some constitutional provision. But in general, there ought to be no constitutional problem with a state’s letting a competent patient voluntarily decide to commit suicide, and with letting her enlist a willing doctor in that action.

• Upshot. SCt remains quite unsettled about the scope of constitutional privacy. It appears to go beyond the 2-pronged test of Hardwick, but how far remains to be seen.

• Statutory ban. Washington banned “promoting suicide attempt.” The state defined this crime as “knowingly caus[ing] or aid[ing] another person to attempt suicide,” and made it a felony.

• Rehnquist’s majority opinion:

• Broad level of generality. Rehnquist phrased the issue at a very high level of generality: “whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”

• No historical right. To answer this question, Rehnquist began by canvassing past and present laws on the subject. He noted that “for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.” And today, in virtually every state – and in almost every western democracy – it was a crime to assist in suicide. Although the states had begun to re-examine this prohibition in light of modern medical technology, the prohibition remained on the books practically everywhere.

• Not a fundamental right. Rehnquist then concluded that any due process liberty interest in committing suicide was certainly not a “fundamental” interest.

1. Rationale: He noted that the SCt had always been reluctant to expand the list of fundamental due process interests “because guideposts for responsible decision making in this uncharted area are scarce and open-ended.” Only rights or interests that were “deeply rooted in this Nation’s history and tradition” could be fundamental. And, in view of the nearly universal past and present prohibition of suicide or assisting suicide, the asserted interest in committing suicide did not come close to meeting this “deeply rooted” test.

2. Cruzan distinguished. Rehnquist then distinguished the interest recognized in Cruzan from the one asserted here. Cruzan may have recognized a liberty interest in declining unwanted life-sustaining treatment, but that interest “was not simply deduced from abstract concepts of personal autonomy.” Rather, the interest recognized in Cruzan derived from the “common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment.” So the right recognized in Cruzan was “entirely consistent with this Nation’s history and constitutional traditions.” The interest in committing suicide with another’s assistance “may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection.”

• State’s interest in regulation was “rational.” Having decided that the liberty interest in assisted suicide was not “fundamental,” Rehnquist then turned to the issue of whether there were any limitations at all on the state’s right to ban such suicides. Rehnquist ducked the issue of whether there was a non-fundamental liberty interest in assisted suicide. Instead, he seemed to say that even if such a non-fundamental interest existed, the state merely had to show that its ban was “rationally related to legitimate government interests.” Rehnquist quickly concluded that the state easily satisfied this test.

1. Interest in preserving human life. First, Rehnquist said that the state had an “unqualified interest in the preservation of human life.” He noted that many people who desire to commit suicide are clinically depressed (often because of untreated pain), and that of this group many who receive proper treatment withdraw their suicide request. “Thus, legal physician-suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses.”

2. Protecting integrity of medical profession. Also, the state had an interest in protecting the integrity of the medical profession: a physician-assisted suicide could “undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming.”

3. Protecting the vulnerable. Next, Rehnquist wrote, the state had an interest in :protecting vulnerable groups – including the poor, the elderly, and disabled persons – from abuse, neglect, and mistakes.” There was a “real risk of subtle coercion and undue influence in end-of-life situations.” Apart from the state interest in combating coercion, the state had an interest in protecting these vulnerable groups from societal prejudice: the state’s suicide ban “reinforces its policy that the lives of terminally ill, disabled and elderly people must be no less valued than the lives of the young and healthy.”

4. Slippery slope. Finally, the state could rationally fear that legalizing physician-assisted suicide would set it down a slippery slope towards “voluntary and perhaps even involuntary euthanasia.” For instance, family members would inevitably begin to participate in the suicide, if the patient was unable to self-administer the drugs. And the experience of the Netherlands – the only western nation to allow even voluntary euthanasia – suggested that voluntary euthanasia had led to the involuntary variety for such groups as severely disabled newborns and elderly persons with dementia. Thus recognizing a right to physician-assisted suicide for the competent, terminally-ill patient “is likely, in effect, a much broader license, which could prove extremely difficult to police and maintain.”

5. State interests were rational. These various interests were “unquestionably important and legitimate.” And Washington’s outright ban on assisted suicide was “at least reasonably related” to the promotion of these interests.

• O’Connor’s concurrence. Agreed that there was “no generalized right to ‘commit suicide.’” But she seemed to leave open the possibility that a terminally-ill patient suffering great pain might have a limited right to have a physician prescribe medication to alleviate that suffering, even where this would hasten death. O’Connor thought there was no need to address that question here, since Washington (and NY, the state whose statute was at issue in the companion case) did not forbid such prescriptions. O’Connor thereby deprived Rehnquist of his 5^th vote for the proposition that there is no such right.

• Stevens’ concurrence. Although Stevens concurred in the result, he disagreed with the majority’s reasoning. Agreed that statutes like those of Washington and NY were not always unconstitutional, so that the plaintiffs’ facial attack on the statutes had to fail. However, Stevens believed that “there are situations in which an interest in hastening death is legitimate . . . I am also convinced that there are times when it is entitled to constitutional protection.”

• Broader view of Cruzan. Whereas Rehnquist said that Cruzan derived mainly from the “common-law rule that forced medication was a battery,” Stevens thought that Cruzan established a much deeper principle: that “some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State’s interest in preserving life at all costs.” That interest was “an interest in deciding how, rather than whether, a critical threshold shall be crossed.” Some terminally ill patients may have a constitutionally protected right to decide “how to die.”

• Particularized challenge: Posture of assisted suicide was similar to the posture of capital punishment 20 years previously: “Just as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so it is equally clear that the [SCt’s present] decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be valid.” Thus, Stevens did “not . . . foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.

• Souter’s concurrence. Concurred in result only. Would not say whether the individual’s autonomy interest is “fundamental,” because he thinks the state’s interest in preventing abuses is sufficiently persuasive to overcome that interest. Souter would have applied a somewhat different test for determining whether the statute violated plaintiffs’ substantive due process rights. Viewed issue as whether the statute sets up “one of those ‘arbitrary impositions’ or ‘purposeless restraints’ at odds with the Due Process Clause.” In Souter’s view, if a statute did this, it would violate due process even if it didn’t burden a fundamental interest, and even if it wasn’t wholly irrational. In other words, Souter seemed to be advocating a “sliding scale” approach to due process (though he didn’t use the phrase), by which the stronger the individual’s interest, the stronger the state’s countervailing interest had to be.

• Legsilature has greater competence. In any event, Souter agreed that for the present, the legislature’s judgment recognizing that a right to assisted suicide posed major dangers, should not be disturbed. But he left open the door for some future claim, when the factual realities were better understood.

• Breyer’s concurrence. Breyer, concurring in result only, disagreed with Rehnquist’s description of the plaintiffs’ claimed liberty interest as a “right to commit suicide with another’s assistance.” Breyer said that he could not be precise about what the plaintiffs’ interest truly consisted of, but that his formulation “would use words roughly like a ‘right to die with dignity,’” and that “at its core would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering – combined.”

• More direct challenge. So Breyer, like several of the concurring justices, thought that in a different case, the SCt might some day have occasion to find that a state’s ban on assisted suicide infringed a constitutional right. He suggested, for instance, that this might be the case if a state prohibited physicians from dispensing drugs needed to avoid pain at the end of life.