Academic journal article The William and Mary Bill of Rights Journal

Justice O'connor and the "Right to Die": Constitutional Promises Unfulfilled

Academic journal article The William and Mary Bill of Rights Journal

Justice O'connor and the "Right to Die": Constitutional Promises Unfulfilled

Article excerpt

INTRODUCTION

There will be much written about Justice Sandra Day O'Connor and her legacy. If nothing else, after all, she was the first woman ever to serve on the United States Supreme Court. But there is far more to Justice O'Connor's place in the American legal landscape. She was a pivotal swing vote on a highly-divided Court. As such, her views were often critical to the development of the law over the past two decades.1 And let us not forget that she was one of the five votes that effectively decided the 2000 presidential election.2 There simply is no denying that Justice O'Connor will be remembered as a major figure in American law whether one praises or despises her jurisprudence.3

The popular press has already begun to review and assess the impact Justice O'Connor made in a number of substantive areas of law. Most frequently mentioned among these areas are affirmative action, abortion, the First Amendment's Establishment Clause, and federalism.4 I agree that Justice O'Connor has been an important voice in these areas5 and that her replacement could affect the dialogue on these significant questions over the years to come. But there are important parts of Justice O'Connor's jurisprudence that are receiving scant attention.

This Essay seeks to fill one significant gap in the developing analysis of Justice O'Connor's legacy. My focus is on her important contributions concerning the role the United States Constitution plays in end-of-life decisionmaking.6 All of the Court's decisions in this area came during Justice O'Connor's tenure.7 In each of them, she wrote a concurring opinion that took a position different from the majority's reasoning in important respects. And in each case, O'Connor' s concurrence was more protective of federal constitutional rights concerning personal decisions about the time and manner of one's death.8 The first goal of this Essay is to describe the important role Justice O'Connor has played in this area of law.

I also explore how the O'Connor legacy in the area of death and dying may accurately be characterized as one of constitutional promises unfulfilled. In her important concurring opinions, Justice O'Connor left no doubt that, in her view, the Constitution most certainly spoke to certain end-of-life matters. For example, she wrote about the place in constitutional jurisprudence of palliative care and of the recognition of the right of surrogate decisionmaking.9 These positions served as important caveats on the much more laissez-faire attitude of the majority. But these tantalizing promises of constitutional protections remain unfulfilled as Justice O'Connor leaves the bench. This is so even though the Court has had occasions over the years to speak more clearly on these issues. What is more, this failure to follow through on O'Connor's views has had, and will continue to have, real world consequences. One can see these consequences in such things as the saga surrounding Terri Schiavo and the case recently decided by the Supreme Court on January 17, 2006, concerning Oregon's Death with Dignity Act.10 Thus, with Justice O'Connor's retirement and the consequent loss of her moderating voice on these matters, there is a distinct danger that the unfulfilled constitutional promises may become broken ones.

This Essay is in three parts. Part I discusses the Supreme Court's constitutional jurisprudence in death and dying matters with a particular focus on Justice O'Connor's views. My aim is not to provide a comprehensive consideration of these weighty issues. Rather, the more modest goal of this Part is to describe the constitutional landscape and illustrate how much Justice O'Connor has had to do with its construction. Part ? explores how the promises of greater constitutional protection for end-of-life rights remain unfulfilled. It also describes the practical consequences ofthat state of affairs. Finally, Part ?? briefly considers the uncertain future of constitutional protection for the "right to die" in a Court without Justice O'Connor. …

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