Assisted Suicide, the Supreme Court, and the Constitutive Function of the Law
Kaveny, M. Cathleen, The Hastings Center Report
It is not difficult to compose a brief summary of the Supreme Court's assisted suicide decisions that would be suitable for bar review study guides and law student outlines: With no dissenters, the Court overturned the decisions of the Second and Ninth Circuit Courts that conferred Fourteenth Amendment protection upon the choice of competent, terminally ill adults to end their own lives with medication prescribed by their physicians. (1) Holding that the Constitution does not protect a right to commit suicide that itself entails a right to assistance in committing the act, the majority opinions relegate assisted suicide and euthanasia to the "laboratory of the states." (2) However, the decisions leave open the ill-defined possibility that the Court might revisit the issue, particularly if presented with a more narrowly focused claim than the one vindicated by the two circuit courts.
Such a description would probably enable recent law school graduates correctly to answer a multiple choice bar exam question on "whether there is a constitutional right to die." But grasping their "bottom line" is not the same as grappling with the power of the two decisions to shape our society's ongoing debate about the neuralgic ethical and legal questions entangled in end-of-life decisionmaking. As legal theorist and literary critic James Boyd White has taught us, courts do not simply issue abstract judgments that impersonally and mechanically guide the behavior of individual and institutional agents in our society. According to White, those who play a role in the legal enterprise are engaged in a type of "constitutive rhetoric" that actually helps shape the moral identity of the community in which they participate. The community-constituting character of law does not inhere solely in the results that issue in particular cases, but also in the very way the questions are framed for decision. A lawyer arguing a client's position, and a fartiori a judge rendering an opinion, "is always saying not only 'Here is how this case should be decided,' but also 'Here--in this language--is the way this case and similar cases should be talked about. The language I am speaking is the proper language of justice in our culture.'" (3)
Assuming that White is correct, if we are to understand the full import of the Supreme Court decisions on assisted suicide, we cannot fix our gaze solely on the conclusions they reach. We must also scrutinize the way the justices frame the issues at stake, the communal hopes and fears they invoke, the modes of argument they find persuasive and those that they discount, and the particular words and phrases through which they convey all of those things. By exercising the authority to interpret the constitutive document of our nation that has ultimately rested in their hands since the Court decided Marbury v. Madison in 1803, the justices inevitably wield a tremendous power of moral formation. In effect, they are moral teachers who help to shape the character of our nation. White reminds us that the "habit of regarding law as the instrument by which 'we' effectuate 'our policies' and get what 'we want' is wholly inadequate. It is the true nature of law to constitute a 'we' and to establish a conversation by which that 'we' can determine what our 'wants' are and should be" (p. 42).
How, then, do the opinions in Glucksberg (4) and Quill (5) refocus the discussion regarding our communal obligations to the persons in our midst who are confronting the momentous and often terrifying task of relinquishing their earthly existence? In what follows, I would like to examine three issues on which these decisions are likely to exert significant pedagogical influence: (1) the tension between general rules or classifications and the particular needs of individuals; (2) the relationship among pain, dignity, and equality; and (3) the limits of philosophical theory and the importance of practical experience.
Equality, Rules, and Exceptions
The opinion of the Court in Glucksberg communicates its most significant moral lesson in the way that it frames the legal claim at stake. …