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. The latter argument is the focus of the brief just filed with the Court by the Solicitor General (i.e., the attorney representing the Clinton administration). In that brief the Solicitor General contends that:
The difficulty that physicians have in determining whether requests for assisted suicide come from patients with treatable pain or depression, the vulner-ability of terminally ill patients to subtle influences from physicians [and] family members … and the continuing possi-bility that someone can be misdiagnosed as terminally ill all support a state’s deci-sion to ban all assisted suicides.
Neither category of argument is persuasive.
History cannot be the sole guide for determining whether a person has an interest protected by the Constitution. Were that true, we would still have segregated schools and laws against miscegenation, since both practices were prevalent at the time the Fourteenth Amendment was adopted. In a multitude of other cases, the Supreme Court has recognized that the practices that were in place at the time any particular guarantee was enacted into the Constitution did not fix forever the meaning of that provision. The Constitution was not intended to be a static and lifeless document, but rather a document adaptable to changing social circumstances.
There are two principal changes in our social circumstances that indicate why we should not be forever bound by the eighteenth or nineteenth century’s understanding of fundamental liberty interests. First, the criminal prohibitions against suicide were motivated primarily by religious dogmas. In an increasingly secular society, these dogmas should no longer influence public policy. Second, the ways in which people die have changed dramatically. Two hundred, one hundred, and even fifty years ago people were usually carried off swiftly by contagious diseases. Pneumonia, for example, was widely acknowledged as the “old man’s friend.” However, given the greater control of contagious diseases, persons are now more likely to die through longer last-ing—and agonizing—conditions, such as cancer, heart disease, progressive renal failure, etc. These conditions can debilitate a person and inflict horrible pain without immediately bringing about that person’s death. Prohibition of assisted suicide under these circumstances is to require a person to live a life he or she no longer finds worthwhile.
This last point shows why there is not only a liberty interest in assisted suicide but a fundamental liberty interest. By preventing a person from obtaining assistance in dying we may literally be forcing that person to endure a limited, painful life that he or she has unambiguously rejected. Many patients with terminal conditions are incapable of bringing about their own deaths effectively. By denying that person necessary assistance in dying, we have taken control away from him or her and have totally eliminated autonomy. A compelled life is not a free life.
With respect to the abuse and mistake arguments, they prove too much. Yes, there is always the risk of a mistaken diagnosis, but not only is this risk minimal, it should be left up to the individual to decide whether this risk should be taken. After all, it is his or her life. Moreover, if we allowed the risk of a mistaken diagnosis to be dispositive, then we would never allow life-sustaining medical treatment to be withdrawn either. As to the fear that dying persons will be manipulated into requesting assisted suicide, no important life choice is immune from the possibility of such manipulation. How many manipulated marriages, child-bearing decisions, and career choices have there been? The government cannot and should not be our nanny. To argue that these situations are not comparable because a decision for assisted suicide is irreversible overlooks the fact that virtually every proponent of assisted suicide has recognized the need for rigorous procedural safeguards. The possibility of greater harm justifies greater caution; it does not justify a paralyzing fear for the safety of others that can be removed only by eliminating their autonomy. We can only hope the Supreme Court will agree.
Readers of this journal will be interested to know that the Council for Secular Humanism and the International Academy of Humanism will be joining in an amicus brief to be submitted to the Court in the two pending cases, Washington v. Glucksberg and Vacco v. Quill. As one might expect, the brief will argue in favor of the right to assisted suicide.