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Sex, Death, and the Courts

Judges characteristically decide due process challenges to legislation by asking two questions. First, does the law compromise a “liberty interest”—that is, a right that the Constitution in principle protects from state action? Second, if so, are the purposes and effects of the statute so important that they justify a state in nevertheless restricting that liberty interest? The first is the question that divides the parties of history and principle in the way I described. The second, which arises only if a constitutional right is recognized, requires a balance. A court must assess the strength of that right and consider whether the state’s alleged interests are sufficiently strong to justify compromising a right of that strength.

In 1990, in the Cruzan case, a majority of the Supreme Court agreed that citizens have a liberty interest in deciding for themselves when medical treatment that prolongs their lives, including respirators and other life support systems, should be terminated. And though the actual decision held that Missouri had a competing interest strong enough to require proof that a vegetative patient had made an unambiguous choice in advance, a majority made plain that a state could not deny the right altogether.7 Many commentators have assumed, however, that the question in the Compassion case in Washington State—whether the Constitution protects, even in principle, a dying patient’s right to the assistance of a willing doctor in suicide—is a distinct one, because both medical practice and ordinary moral opinion draw a sharp distinction between stopping treatment a patient does not want and administering drugs with the sole purpose of killing him. A right to prevent or stop treatment is part of a more general constitutionally protected right not to suffer unwanted invasions of one’s body. But that more general right does not include a right that invasions the patient desires, like lethal pills or injections, be provided—otherwise it would include a constitutional right for everyone to take narcotic drugs, for example.

Judge Rothstein’s due process argument therefore focused mainly not on the Cruzan precedent, but on the Supreme Court’s abortion decisions instead. She rejected the historical test Justice White applied in Bowers v. Hardwick, which would have denied any right to assisted suicide; she said, in the different spirit of Justice Harlan’s “rational continuum” test, that the crucial question was whether a principled distinction could be drawn between the right to an abortion and the right to control other critical features of one’s own life. She cited, from the key opinion on abortion in Planned Parenthood v. Casey, the pertinent claim that

matters involving the most intimate and personal choices a person may make in a lifetime…are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

The choice of a terminally ill person about whether to die in dignity, Judge Rothstein said, falls within that description at least as plainly as a choice for or against abortion; she said her decision striking down the anti—assisted suicide statute was therefore “almost prescribed” by the precedent of Casey.

Rothstein was right. A right to abortion might have been justified in ways that would have entailed nothing about a right to suicide. Some lawyers argue, for example, that the abortion right flows from a more general right of women to gender equality. But the Supreme Court’s argument for the right, first in Roe v. Wade and then more explicitly in Casey, relied on a different idea: that personal and intimate decisions that reflect basic ethical or religious convictions should be made person by person, not by the state for everyone. That conception of individual dignity plainly applies to decisions about one’s own death.

The opinion for the Ninth Circuit panel that initially reversed Rothstein was written by Judge John Noonan, a noted Catholic theoretician who has been a firm opponent of legalized abortion. He condemned her principle-based reading of the due process clause, and relied on the contrary philosophy of Bowers to rebut it. Since assisted suicide is not the same thing as abortion, he said, Casey cannot be a precedent for a right to the former. Courts must ask, as an independent question, whether history has recognized a right to assisted suicide, and nothing is plainer than that it has not. On the contrary, that practice has been condemned by most American states from the beginning.

The en banc Ninth Circuit reversed both philosophy and decision once again. In a long opinion for the eight-strong majority, Judge Reinhardt declared for principle over Bowers, and for Harlan over White. In a historical survey he showed that suicide has not been universally condemned, particularly not when it has been seen as necessary to end great suffering. But he relied mainly on Rothstein’s argument based on judicial integrity, and took the opportunity to declare that the decision in Bowers “would appear to be aberrant.” “We also note,” he said, “without surprise, that in the decade since Bowers was handed down the [Supreme] Court has never cited its central holding approvingly.”

The three Ninth Circuit judges who dissented from the en banc ruling, on the other hand, made Bowers central to their argument. One of them—Judge Robert Beezer—said he accepted that the right to choose assisted suicide was a “liberty interest” of some force, but not one so fundamental that it could trump the State of Washington’s substantial interests in making such assistance a crime. The other two—Judge Ferdinand Fernandez and Judge Andrew Kleinfeld—doubted any constitutional right to assisted suicide at all, even a weak one, because it is not (in the words of Justice Scalia’s concurring opinion in Cruzan) “a right historically and traditionally protected against state interference.”


The Compassion in Dying case is therefore, at this stage of its history, a victory for the party of principle. So—though less clearly—is the Second Circuit decision in Quill v. Vacco. Three doctors challenged New York State’s penal laws which declare someone guilty of a crime who “intentionally…aids another person to attempt suicide.”8 The doctors supplied affidavits from dying cancer and AIDS patients who were in great pain that could no longer be relieved by drugs and who wanted, in the words of one, “to have drugs available for the purpose of hastening my death in a humane and certain manner.”

The trial judge in the Southern District of New York, Thomas P. Griesa, applied the Bowers test, and dismissed the complaint on the ground that “plaintiffs make no attempt to argue that physician-assisted suicide, even in the case of terminally ill patients, has any historic recognition as a legal right.” The doctors appealed. The Second Circuit, in an opinion of Judge Roger Miner for himself and Judge Milton Pollak, agreed with the trial judge that Bowers blocked any due process claim.9 “As in Bowers,” Miner said,

the right contended for here cannot be considered so implicit in our understanding of ordered liberty that neither justice nor liberty would exist if it were sacrificed. Nor can it be said that the right to assisted suicide claimed by plaintiffs is deeply rooted in the nation’s traditions and history. Indeed the very opposite is true.

But Judge Miner did claim to have found a way to declare the New York statutes unconstitutional anyway: he said that since New York allowed patients to order life-support systems removed (as the Cruzan decision said it must) it denied equal protection of the laws when it refused patients not on life support the aid of doctors in ending their lives. In order to assess that argument (and the arguments in the Supreme Court’s homosexuality decision we shall go on to consider) I must describe the complex test that courts now use to enforce the equal protection clause.

The Fourteenth Amendment language forbidding states to deny any person “the equal protection of the laws” might conceivably have been understood to impose only a very weak requirement on states: that they could only discriminate among their citizens if they first enacted laws describing and authorizing that discrimination. But that banal reading would leave a state free to create a caste system in which blacks (for example) were denied any civil or legal rights, so long as it did so through explicit legislation. Since the Fourteenth Amendment was enacted after the Civil War, with the expectation of preventing the most blatant forms of racial discrimination, that reading is unacceptable.

So is the opposite reading, however, which would declare that states must never enact laws that discriminate in any way among groups of citizens, awarding advantages to some at cost to others. For almost every national or state law has precisely that effect—the NAFTA treaty worked against the interests of some workers and in favor of others; environmental legislation injures some industries though not others; and state banking, securities, and professional regulations help some people but disadvantage others. So the Supreme Court has developed a more sophisticated interpretation of the equal protection clause that avoids either of these extreme and unacceptable readings. It has done this through a set of doctrinal rules and distinctions which, taken together, are calculated to serve an underlying rationale of political morality.

That underlying rationale is a theory which distinguishes between circumstances in which a democracy is working well, so that those who lose out in a political contest cannot complain of procedural inequality or unfairness, and when it is defective, so that losses to some groups cannot be accepted as fair. In the normal circumstances of ordinary politics, groups that lose—as the timber industry, for example, might lose through environmental legislation—have had a fair opportunity to present their case and exert an influence on the result in rough proportion to their numbers and the strength of their interests. The Court will therefore scrutinize ordinary legislation challenged on equal protection grounds only in a “relaxed” way. It will declare such legislation unconstitutional only if it finds that the distinction it draws, between those it benefits and those it harms, is plainly irrational, which means that those attacking it can show that it does not serve, even in a speculative or problematical way, any legitimate purpose of government. So the Court has approved, for example, a law subjecting oculists and optometrists to different regulatory schemes, even though no very impressive reason could be given why they should be treated differently. Only rarely, in fact, has any statute been found to violate this “relaxed” text of rationality.

In some circumstances, however, the general presumption that the political process has worked in a fair way is doubtful. That presumption cannot rescue legislation that deprives some group of the very political rights it needs in order to participate in the process on fair terms—when the legislation reduces the voting power of some group, for example, so that its political impact is made less than its numbers would otherwise justify. The Court has therefore created a different, “strict” or “heightened,” level of scrutiny for laws that have that effect. It declares such laws unconstitutional, even if they are rationally related to some legitimate state purpose, unless they can be shown to be necessary to prevent some grievous result that cannot be avoided in any other reasonable way. The Court relied on the strict test, for example, in its series of “reapportionment” decisions in which it struck down state schemes for drawing boundaries of electoral districts whose effect was to deny equal electoral impact, citizen by citizen, on a one-person, one-vote basis.10 Just as the “relaxed” test is rarely failed, so this “strict” test is rarely passed.

  1. 7

    Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). For detailed discussions of the Cruzan decision, see Life’s Dominion and Freedom’s Law.

  2. 8

    One of the plaintiffs was Dr. Timothy Quill, a New York doctor who, several years ago, had prescribed a lethal dose of pills for a long-term, competent patient with advanced leukemia who wanted to die. Prosecutors decided not to press charges against Quill under the New York statute challenged in the case, and a medical board declined to take professional action against him. The history is described in Life’s Dominion.

  3. 9

    Judge Guido Calabresi joined in the result reached by the judges, in a complex concurring opinion raising separate issues that I cannot discuss here.

  4. 10

    See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).

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