The Future of Assisted Suicide and Euthanasia

By Neil M. Gorsuch | Go to book overview

5

Casey and Cruzan: Do They Intimate
a Right to Assisted Suicide and Euthanasia?

IF HISTORY and principles of fairness do not necessarily command a right to receive assistance in suicide or a right to euthanasia, some would invite us to look to principles of moral autonomy and the legal doctrine that has grown up around those principles. Judges Rothstein and Reinhardt found persuasive the argument that all persons have an inherent (substantive due process) right to choose their own destinies. Justices Stevens and Souter appeared sympathetic to this line of argument, and Justice O'Connor seemed to decline to voice any views with respect at least to terminally ill persons. Such voices (and votes) suggest that autonomy-based arguments will be heard again when an asapplied legal challenge to a state law banning assisted suicide makes its way to the U.S. Supreme Court. Neither are autonomy arguments exclusively judicial in nature. Many legislative advocates of assisted suicide and euthanasia argue that proper respect for individual choice compels legalization.

In this chapter, I address the legal question whether Casey and Cruzan specifically, and substantive due process doctrine more generally, are hardy enough to sustain a constitutionally protected autonomy interest that could, in turn, sustain a right to assistance in suicide and euthanasia. In chapter 6, I consider whether principles of personal autonomy, as developed by contemporary moral theorists independent of legal doctrine, provide a persuasive analytical basis for legalization.


5.1 THE “REASONED JUDGMENT”TEST AND ITS CRITICS

In Glucksberg, Chief Justice Rehnquist gave short shrift to arguments based on Casey and Cruzan, summarily dismissing the notion that they might sustain a constitutional right to receive assistance in committing suicide.1 While his analysis proved sufficiently persuasive for the three other members of the Court who adopted it as their opinion, it was apparently insufficient for the remaining (majority of) justices. Given that an as-applied challenge seems virtu

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