A Right to Die? Further Reflections
on Due Process Rights
When Is There a Constitutional 'Right to Die'? When Is There
a Constitutional 'Right to Live?'
—Yale Kamisar, Georgia Law Journal
OFTEN THE AMERICAN legal and political systems seem to pay more attention to matters affecting the few than to threats endangering large populations.1 So it seemed in 2005, when the fate of one woman in a persistent vegetative state, Terri Schiavo, commanded the attention not only of the media but also of all three branches of government in both Florida and Washington, D.C.2 As legislators and courts debated Schiavo's rights, countless other nameless and faceless individuals died from diseases and accidents that could have been, but were not, prevented. Likewise, surprisingly little attention or preparation was paid to a host of other dangers that threatened to kill thousands or even millions of people.3
Why was that so? This chapter argues that a partial answer relates to the failure of due process law to adopt a population perspective.
The roots of the constitutional debate over end-of-life decision making, the legal issue central to the Schiavo controversy, go back to the 1970s. As