Calling something a right is an institutional decision.
Neil K. Komesar 1
Disagreement about the nature of constitutional rights in our system of law is prevalent. For those who view the Constitution as a set of principles for protecting individual rights, the United States Supreme Court’s opinion on physician-assisted suicide raised the question of whether our rights may be transferable. Do physicians need to be exempted from the criminal prohibitions against aiding suicide in order for patients to realize their sense of autonomy in dying? In other words, can the personal “right of privacy” survive patients’ deaths in order to protect physicians from criminal prosecution, but not spouses, family members, or friends who might have assisted those deaths?
In Washington v. Glucksberg2 and Vacco v. Quill,3 the United States Supreme Court answered this question in its constitutional form with a “no” by affirming that criminal prosecutions of physicians for assisting patients’ deaths remain theoretically possible. In Quill, the Court rejected an “equal protection” challenge to New York’s assisting or aiding suicide laws. Chief Justice Rehnquist, for the Court, reasoned it is “rational” for legislatures to provide immunity from prosecution for those physicians who remove life-sustaining technologies from terminally ill patients in