Three Strikes: Is an Assisted Suicide Right Out?
Bopp, James, Jr., Coleson, Richard E., Issues in Law & Medicine
In 1997 advocates of legalized physician-assisted suicide ("PAS") got three strikes in their effort to establish a constitutional right to assisted suicide. Two federal appellate court decisions finding a federal constitutional right to PAS were unanimously reversed by the United States Supreme Court-on both substantive due process,1 and equal protection theories.2 The Florida Supreme Court also found no state constitutional right to PAS.3 This followed repeated rebuffs in state legislatures.4
Have assisted suicide advocates struck out in their effort to establish a federal or state constitutional right? Will they succeed under different circumstances? At the time this article is being written, advocates of legalized physician-assisted suicide have filed a lawsuit claiming a right to PAS under the Alaska Constitution.5 Is the suit likely to succeed?
While courts are often unpredictable, this article maintains that the battle is over in the U.S. Supreme Court and that other state supreme courts will likely follow the compelling logic of the U.S. and Florida Supreme Courts. Similarly, in legislatures-where hearings are held and legislators are educated in depth about the dangers of PAS to vulnerable persons-the influence of the Supreme Court will be immense. The uniform rejection of PAS by legislatures will likely continue.
But ballot initiatives, by their nature, are decided on a more simplistic level of public policy analysis and pose grave dangers to vulnerable persons. Federal statutory or constitutional protection is therefore needed to safeguard these vulnerable persons.
Part one of this article analyzes the U.S. Supreme Court decisions eschewing a right to physician-assisted suicide. Part two evaluates the Florida Supreme Court's decision rejecting a state constitutional right to PAS. Part three explains why a more particularized challenge in the U.S. Supreme Court will be unavailing. Part four discusses why support for a right to palliation without governmental interference would not encompass an assisted suicide right. Part five demonstrates why new evidence of assisted suicide in action will confirm the decisions rejecting a right to assisted suicide. Part six discusses why the ballot initiative process is inappropriate in the assisted suicide context.
The U.S. Supreme Court
Rejected the Arguments for Assisted Suicide
While proponents of legalized assisted suicide have tried to put a favorable spin on the U.S. Supreme Court's rulings rejecting a right to assisted suicide-e.g., insisting that the Court gave them a "green light" to pursue state legislation permitting suicide assistance6-in reality they have suffered a stunning defeat. As University of Michigan Law School Professor Yale Kamisar has stated, "Proponents of PAS have always had `the green light' to persuade state legislatures to legalize PAS."7 "[S]ome proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its ruling in the PAS cases," he remarked.8
The defeat means that future efforts by assisted suicide advocates to find protection for PAS in state constitutions or to enact laws legalizing assisted suicide by legislation will be heavily burdened by the U.S. Supreme Court's reasoned rejection of the assisted suicide movement's best arguments. One by one, the High Court analyzed the claims presented by able advocates such as Harvard Law School Professor Laurence Tribe and found them unconvincing.9
And while certain language in the opinions by the Court and individual Justices seem to leave open the technical possibility of a future, more particularized challenge, the discussion below shows that there is less hope for such a case than PAS advocates represent. The opinions reveal that all the arguments and situations have been considered in the decided cases. Therefore, another case would not bring a different result absent a failure of stare decisis on the Court. …