This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At present, traditional, Christian-based morality and an emerging secular morality centered on the value of self-fulfillment are in conflict within our society, a conflict that probably reflects a slow historical transition from the first to the second. The intense debate about the morality of assisted suicide is one aspect of this conflict. Blanket prohibitions of assisted suicide support one side of this debate, a side that happens to be allied with the Christian religion. Consequently, these laws violate the Establishment Clause.
For the past several decades, American policymakers and judges have been grappling with the closely related issues of assisted suicide and euthanasia. These issues gain drama from the permanence of death and terror that accompanies it. They gain poignancy from the fact that unlike capital punishment - another purposeful termination of life - the laws governing assisted suicide and euthanasia potentially affect us all as we head toward the decrepitude that frequently accompanies our final years. Emotion runs high on these subjects, making them unusually difficult to resolve, and the complex imbrications of ethical, metaphysical, and jurisprudential theories that address them seem to add complexity without providing clarity. The injection of these subjects into the congressional debate over the seemingly separate topic of health care reform is only the latest indication of the controversy and confusion that accompanies them.1
This Article is directed to the question of assisted suicide, and specifically to the constitutionality of laws prohibiting that practice. The Supreme Court has addressed the issue several times over the past few decades. In Cruzan v. Director, Missouri Department of Health,2 the Court held that the Due Process Clause provides people with a constitutional right to refuse life-saving medical treatment. But soon thereafter, in Washington v. Glucksberg and Vacco v. Quill, the Court held that neither the Due Process Clause nor the Equal Protection Clause prohibits states from making it a crime to assist a person in committing suicide.3 Most recently, in Gonzales v. Oregon, the Court invalidated a Bush Administration effort to preempt the state of Oregon's Death with Dignity Act, which authorizes physicians to provide lethal drugs to an adult suffering from an incurable disease.4 The Gonzales decision, quite properly, does not address the constitutional issues, since the question that was raised involved the statutory authority of the Attorney General to preempt state law.5 But the majority opinion and the two dissents are clearly written with the awareness that these issues lie just below the legal surface of the case. Thus Gonzales, when viewed in conjunction with the controversy surrounding Terri Schiavo's death,6 the prosecution of Dr. Jack Kevorkian,7 a second state's legalization of assisted suicide by voter initiative,8 and the current health care debate, indicates that the question of assisted suicide is likely to occupy a central place in public discourse for some time.9
The most commonly stated legal rationale for arguing that the Constitution protects people's ability to obtain assistance in ending their lives is the so-called right to die, which is grounded on either substantive due process or the right of privacy, that is, the penumbra of the first eight amendments. …