Assisted Suicide: Will the Supreme Court Respect the Autonomy Rights of Dying Patients?
Lindsay, Ronald A., Free Inquiry
In October 1996, the Supreme Court announced that it will review decisions by the U.S. Courts of Appeals for the Second and Ninth Circuits that have held that a state's blanket prohibition of assisted suicide for terminally ill patients is inconsistent with the Constitution. (The Second Circuit ruled on a New York statute; the Ninth Circuit ruled on a Washington statute.) The Supreme Court will hear arguments in these critical cases early in 1997, and its rulings will be issued at the end of the Court's term, in late June or early July. Although some commentators have predicted that the current Court is too conservative to uphold even a limited right to assisted suicide, there is a basis for cautious optimism in some recent Court decisions, including the Court's 1992 decision in Planned Parenthood v. Casey, which struck down a statute unduly restricting a woman's right to secure an abortion. In that decision, the Court recognized that the Constitution precludes government interference in those matters "involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." On the other hand, there is no question that there are three solid votes against recognition of a right to assisted suicide: Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. Thus, if the Court does uphold a right to assisted suicide, it will likely be by a narrow majority.
Complicating the picture is the fact that the decisions in the Second Circuit and Ninth Circuit were predicated on different rationales. While the Ninth Circuit concluded that a dying person has a fundamental liberty interest in bringing about his or her death with the assistance of another, the Second Circuit declined to recognize such a liberty interest. Instead, the Second Circuit concluded that New York's prohibition of assisted suicide violates the Equal Protection Clause of the Fourteenth Amendment because New York allows physicians to withdraw life-sustaining medical treatment at the request of a dying patient. Since a physician's withdrawal of life-sustaining treatment brings about a patient's death as surely as the provision of lethal medication, the Second Circuit decided there is no rational basis for distinguishing the two methods of causing a patient's death. Accordingly, if New York allows withdrawal of life-sustaining treatment, it must permit physician-assisted suicide.
Given that there are these two independent rationales for holding prohibitions of assisted suicide to be unconstitutional, it is conceivable that, even if a majority of the Court finds that there is at least a qualified right to assisted suicide, there will be no majority opinion. In other words, there could be three Justices who conclude there is a fundamental liberty interest in assisted suicide and another two Justices who are not persuaded there is such an interest but who believe that it is a violation of the Equal Protection Clause to allow withdrawal of life-sustaining treatment while prohibiting assisted suicide.
The only certainty at this stage is that New York and Washington, and their supporting amici curiae, including the Catholic church and the Clinton administration, will trot out the same tired arguments for the constitutionality of bans on assisted suicide that have always been advanced. These arguments fall into two broad categories. One category of argument will be a contemptuous rejection of the claim that there is a fundamental liberty interest in assisted suicide. How can there be such a liberty interest given that in this country's early history most states treated suicide itself as a felony? Another category of argument will be an invocation of the abuses and fatal mistakes that will allegedly follow legalization of assisted suicide. In other words, even if there were a liberty interest in assisted suicide, the state's interest in protecting the lives of those who might be negatively affected by legalization outweighs the interest of those who want to hasten their deaths through assisted suicide. …