Academic journal article The Hastings Center Report

Death and the Court

Academic journal article The Hastings Center Report

Death and the Court

Article excerpt

In polls of public opinion, a clear majority of Americans report that they favor making it legal for physicians to prescribe or administer lethal drugs to dying patients who want a quick and painless end to life. Therefore, a lot of people are probably unhappy--or even angry--with the Supreme Court of the United States, which in two unanimous decisions handed down at the end of June declined to constitutionalize the "tight to death with dignity." They shouldn't be.

Reversing judgments from the Second and Ninth Circuits, (1) the Court held that neither the equal protection nor the due process clauses of the Fourteenth Amendment preclude states from making it a crime to aid a suicide, even when such assistance takes the form of a physician prescribing lethal medication to a competent, terminally ill adult who voluntarily requests the physician's help.

In 1973 the Supreme Court in Roe v. Wade declared that the "right of privacy" ... "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (2) The subsequent quarter century of nearly continuous litigation suggests that had the justices announced this June that the Constitution protects a right to assistance in terminating one's life, they would not only have been faced with an endless stream of cases on the topic but also--and worse--might unintentionally have impeded the movement now underway to improve the care of the dying.

At present, reformers are focused on a multipart strategy. They are educating physicians, nurses, and other health care professionals about how to respond to dying patients' needs, creating new care settings for these patients and improving existing settings, empowering dying patients and their families, and seeking changes in governmental and private policies on payment for appropriate care, on the availability of narcotic drugs for pain control, and the like. Had the Court upheld the constitutional challenges to the bans on assisting suicide, advocates for the dying would have had to shift their efforts to defending the formal legal right they had won. One can only shudder at the prospect that care at the end of life would have become mired in a situation akin to the dichotomized debate about the legal limits of abortion that has resulted in nearly three decades of political acrimony and personal violence, leaving few openings for honest dialogue on the personal and social dilemmas that inhere in any resolution of the choice whether to abort a pregnancy.

It is thus ironic that the parties pressing the Supreme Court to recognize a constitutional right to assisted suicide relied heavily upon the Roe line of cases, and that the Court, in rejecting this argument, again made clear that the "right of privacy" does not provide a general basis for protecting personal choices distinct from the liberties protected by the Fourteenth Amendment, and that the case law on whether to "bear or beget children" does not establish legal standards broadly applicable to new situations.

Washington v. Glucksberg

The first of the two assisted suicide cases--and the one that excited the most comment and criticism since being handed down in March 1996 by an en banc bench of the U.S. Court of Appeals for the Ninth Circuit--originated in a challenge to the law in Washington State that makes causing or aiding a suicide a felony. (3) Called Washington v. Glucksberg by the time it reached the Supreme Court, the case was brought by four physicians who claimed that they would assist dying patients to take their own lives were it not for this statute. (4)

The plaintiffs contended that the statute violated their patients' Fourteenth Amendment "liberty interest," and the district court agreed. In affirming that decision, the circuit court concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death ... in short, a constitutionally recognized 'right to die'" that outweighs the state's interests in preventing suicide by "terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians. …

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