The Future of Assisted Suicide and Euthanasia

By Neil M. Gorsuch | Go to book overview
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2

Glucksberg and Quill:
The Judiciary's (Non)Resolution
of the Assisted Suicide Debate

2.1 THE WASHINGTON DUE PROCESS LITIGATION

IN 1994 a group of Washington State physicians and patients, along with an assisted suicide advocacy organization, filed suit in federal district court seeking a declaratory judgment that the state statute forbidding the assistance of another person in committing suicide1 was unconstitutional under substantive due process doctrine. The case was assigned to District Judge Barbara Rothstein, who became the first judge to hold assisted suicide to be a right guaranteed by the U.S. Constitution.

Under the familiar language of the Fourteenth Amendment, no state may “deprive any person of life, liberty, or property, without due process of law.”2 Despite the procedural tone of the amendment's language, and arguments by commentators as diverse as John Hart Ely and Robert Bork,3 the Supreme Court has for many years held in case after case that due process contains a “substantive” component—one that imposes a nearly absolute bar on certain governmental actions “regardless of the fairness of the procedures used to implement them.”4 Judge Rothstein observed that many of these substantive rights adduced by the courts pertain to “marriage, procreation, contraception, family relationships, childrearing, and education.”5

For guidance on whether assisted suicide might qualify as a new addition to this list, Judge Rothstein turned to the then most recent major exposition of substantive due process jurisprudence, Planned Parenthood v. Casey,6 in

which the Court reaffirmed the right to abortion. Judge Rothstein observed that, while discussing abortion, the three-justice plurality in Casey suggested that matters

involving the most intimate and personal choices a person may make in a life-
time, choices central to personal dignity and autonomy, are central to the lib
erty protected by the Fourteenth Amendment. At the heart of the liberty is the

-8-

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