Academic journal article The Hastings Center Report

The Constitution and Hastening Inevitable Death

Academic journal article The Hastings Center Report

The Constitution and Hastening Inevitable Death

Article excerpt

The due process clause of the Fourteenth Amendment protects the right of terminally ill persons to hasten their inevitable death. In prohibiting physicians from prescribing lethal medications by which such patients might hasten death, Michigan's ban on "assisted suicide" unconstitutionally imposes an "undue burden" on the exercise of that right.

As might be expected, the nationwide controversy over die legitimacy and legality of assisted suicide has had its most immediate impact in Michigan, the home state of assisted suicide's most visible practitioner, Dr. Jack Kevorkian. Although public opinion polls in Michigan show strong support for assisted suicide in certain circumstances, and for that matter, for Dr. Kevorkian himself, efforts to "Stop Kevorkian" have long been a prominent feature of the Michigan legal and political scene. Kevorkian's activity has been strongly opposed by a number of legislators and prosecutors, and by the politically powerful Michigan Right to Life lobby.

During the 1992-93 session of the Michigan legislature, a number of bills dealing with assisted suicide were introduced, ranging from permitting assisted suicide in certain circumstances to completely prohibiting it in all circumstances. Faced with this politically charged and highly controversial issue, the Michigan legislature decided to do what legislatures often do in such a situation - appoint a blue ribbon commission to study the matter.[1] However, the day before the agreed-upon bill establishing the study commission was to be voted on in the Michigan House, Kevorkian performed another of his now familiar assisted suicides, which, as usual, received nationwide media coverage. This renewed the legislative clamor to "Stop Kevorkian" and "[not] let Michigan become the nation's suicide capitol." The study commission bill was then amended on the floor of the House to add a provision making assisted suicide a criminal offense, and the amended bill was quickly passed by the House and the Senate and signed into law by the governor.

I am a professor of constitutional law at Wayne State University Law School in Detroit and am one of the lawyers litigating the American Civil Liberties Union's constitutional challenge to Michigan's assisted suicide ban. In this article, I will discuss the ACLU's substantive constitutional challenge to the ban, which I helped to formulate. The basis of that challenge is that the ban on assisted suicide is unconstitutional insofar as it prohibits terminally ill patients from making use of physician-prescribed medications to hasten their inevitable death. The ACLU further challenged the process by which the ban was enacted as violating provisions of the state constitution,[2] as well as arguing that the law was unconstitutionally vague and indefinite. I will argue here that the ban imposes an "undue burden" on what I maintain is the constitutionally protected right of terminally ill patients to hasten inevitable death. In doing so, I frame the issue differently from opponents of assisted suicide, as, for example, Professor Yale Kamisar's contention recently advanced in this journal that laws prohibiting assisted suicide do not violate the U.S. Constitution.'

A distinguished constitutional scholar has observed, "Once taken into our constitutional system, the dialogue takes on a new seriousness. It is, therefore, critically important that we get the questions right and the answers right, because constitutional law is written in concrete and is not easily washed out by rain or tears."[4] The "right question," as regards the ACLU challenge to Michigan's ban on assisted suicide, is not, I would submit, whether there is a constitutional "right to assisted suicide" or a constitutional "right to die." Rather the right question, framed in the context of this particular constitutional challenge, is whether an absolute ban on the use of physician-prescribed medications by a terminally ill person to hasten that person's inevitable death, if and when the person chooses to do so, is an "undue burden" on the person's "liberty" interest protected by the Fourteenth Amendment's due process clause, and so is unconstitutional. …

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