Academic journal article Issues in Law & Medicine

Roe V. Wade and the Euthanasia Debate

Academic journal article Issues in Law & Medicine

Roe V. Wade and the Euthanasia Debate

Article excerpt

When abortion was declared a constitutional right in America, pro-life scholars declared that the nation had stepped on a slippery slope and predicted it would quickly lead to infanticide, assisted suicide, and active euthanasia.(1) That prediction will be proven true with respect to assisted suicide(2) if the United States Supreme Court affirms decisions by federal appellate courts in the Second and Ninth Circuits finding a constitutional right to assisted suicide.(3)

The prediction was based on the fact that societal approval of abortion constituted something even larger than approval of abortion. Implicit in the approval of abortion on demand was the principle that it is permissible to take innocent human life, even for reasons of convenience. Once that principle was accepted, it was but a short distance to societal acceptance of "Baby Doe" cases and assisted suicide.

The slippery slope has been lubricated by the numbing effect of three decades of one and a half million abortions a year. Jack Kevorkian's relentless flouting of the law, coupled with the inability of prosecutors to gain criminal convictions against him, has further numbed public outrage at assisted suicide and created a malaise of perceived inevitability.

However, if America does not gain a toehold on the slippery slope before reaching legal approval of assisted suicide, it should not be expected that the slide will stop at assisted suicide. The distance between assisted suicide and voluntary euthanasia (and even nonvoluntary euthanasia for persons who are incompetent) is even shorter than that between abortion and assisted suicide.

What is not appreciated by many (including those who support abortion rights but oppose assisted suicide) is the connection between the declared right to assisted suicide and the constitutional analysis employed by the United States Supreme Court in Roe v. Wade.(4) To change metaphors, Roe v. Wade (the case declaring a right to abortion) is the root, the reaffirmation of Roe in Planned Parenthood v. Casey(5) is the branch, and the right to assisted suicide is the fruit.

The Root: Roe v. Wade

In 1973, the United States Supreme Court seized the abortion issue from the laboratory of the states (some of which had been experimenting with more permissive abortion laws) and secured it behind the pale of constitutional protection. The decision, known as Roe v. Wade, was vigorously criticized by constitutional scholars for abandoning all pretense of being constitutional law and imposing on the states by fiat a regime of abortion on demand.(6)

To understand the scholarly outrage, it is necessary to explore the debate over the shadowy realm of substantive due process. Substantive due process is the analytical device employed by the Court to declare constitutional rights not enumerated in the Constitution.

Of course, it was not intended by the framers of the Constitution that the Supreme Court find unenumerated rights. The Constitution was designed to create a limited government, with the federal government receiving only those powers and protecting only those rights ceded to it by the people. All other powers and the right to regulate all other matters were retained by the people and the states, as expressly set out in the Constitution.(7) The arrangement was only to be altered by formal constitutional amendment.

In the Constitution and its amendments, the people granted the federal government the power to protect certain rights that were to be beyond the power of the federal or state governments to impinge upon. Those enumerated rights included the rights to free speech, free press, free association, free exercise of religion, and so on, as set out in the Bill of Rights.

Over the years, the high Court has had to apply these enumerated rights in changing contexts. For example, the rights to free speech and free press have been applied to an age of broadcast media and the Internet. …

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