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Assisted Suicide: What the Court Really Said

In the March 27, 1997, issue The New York Review published an amicus curiae brief submitted by six moral and political philosophers to the Supreme Court, urging the Court, in cases then pending, to recognize a limited constitutional right of terminally ill and competent patients to the help of a doctor in ending their lives, in order to avoid further pointless suffering and anguish.1 On June 26, the Court decided these cases, refusing to recognize such a right by an apparently crushing 9-0 vote.2 But though press reports did not make this clear, the unanimity of the vote was deceptive. Five of the six justices who wrote opinions made it plain that they did not reject such a right in principle, suggesting that the Court might well change its mind in a future case when more evidence of the practical impact of any such right was available.

The cases raised, moreover, not only the question of a specific right to assisted suicide, but a more fundamental constitutional issue as well—how to understand and enforce the “due process clause” of the Fourteenth Amendment, which declares that states may not “deprive any person of life, liberty or property, without due process of law.” That clause offers more potential protection to the liberty of individual citizens than any other constitutional provision. Its language is very abstract, however, and the actual protection it offers depends on whether it is read narrowly or expansively. The Court’s assisted suicide decisions contain the fullest and most candid judicial debate of that issue for many decades, and I shall discuss that debate first, not only because the issue is intrinsically important, but in order to understand the great differences in the opinions that made up the deceptively unanimous verdict.

The words “due process of law” might conceivably have been taken to mean, at one extreme, that government may compromise liberty in any way it likes so long as it follows stipulated procedures of lawmaking in doing so. At the other extreme, the clause might be interpreted to say that judges may strike down any law that offends what they themselves deem to be a requirement of pure justice. But almost every lawyer rejects both those extremes. The due process clause, according to the general understanding, condemns all the laws—and only the laws—that curtail liberties that are, in an often-quoted passage from an earlier Supreme Court decision, “deeply rooted in this Nation’s history and tradition.” But that historical standard is also very abstract and lawyers disagree about what it means.

In his majority opinion in the assisted suicide cases, on behalf of himself and four other justices, Chief Justice William Rehnquist defended an historicist view of the “Nation’s history and tradition” test. He insisted that the due process clause protects only those specific liberties that have historically been respected by American states, so that the clause does protect citizens from unwanted and invasive medical treatment, because the common law of most states has for a long time granted that protection. But, according to Rehnquist, the clause permits laws prohibiting a doctor from helping people dying in great pain to die sooner, because almost all states have long prohibited such help.

In an unusually candid statement of this view, Rehnquist acknowledged that it might well produce anomalies of principle, because it might well be that no principled distinction can be drawn between liberties that American states have historically protected and those that they have denied.3 He said that the Supreme Court’s suggestion, in its earlier Cruzan decision,4 that the due process clause gives people a right to have life-saving apparatus removed from their bodies was drawn only from common-law practice, and was

not simply deduced from abstract concepts of personal autonomy…. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection.

Justice David Souter, on the other hand, in his separate opinion concurring in but not joining Rehnquist’s majority opinion, offered a much more expansive view of the historical test.5 He said that the nation’s history and traditions include not just the specific rights that have been recognized in the past, but the “basic values” that are revealed when we interpret those rights to see which more general principles of political morality they represent. It may be, he said, that states have not always been wholly faithful to those basic values, and that some of even the oldest legal practices, like the long prohibition on abortion, can now be seen to offend them and so to violate the due process clause.

Judges, he said, must take care in deciding which principles of political morality do underlie the nation’s history, because these values can be identified at varying levels of generality and judges must not state them more broadly than a sound interpretation would justify. He conceded that identifying principles at the right level of generality is not a mechanical matter. “Selecting among such competing characterizations demands reasoned judgment about which broader principle, as exemplified in the concrete privileges and prohibitions embodied in our legal tradition, best fits the particular claim asserted in a particular case.” He drew, from his understanding of the due process clause, very different conclusions about assisted suicide from Rehnquist’s. If we apply reasoned judgment to the assisted suicide issue, Souter argued, we can identify arguments of what he called “increasing forcefulness for recognizing some right to a doctor’s help in suicide.”

The strongest of these arguments, he said, rests on a general principle, embedded in past traditions, that guarantees a

right to medical care and counsel, subject to the limiting conditions of informed, responsible choice when death is imminent…. There can be no stronger claim to a physician’s assistance than at the time when death is imminent, a moral judgment implied by the State’s own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death [e.g., terminating life support and allowing pain relief that advances death].

So Rehnquist’s and Souter’s views of the due process clause are dramatically different: the first protects individuals only from laws that few states have seen any reason to enact, and offers no protection at all against historically popular invasions of individual freedom. The second holds out the possibility that even longstanding and popular legal rules, like the ban on assisted suicide, might be held unconstitutional when they can be seen to violate more general and established principles of freedom.

It is therefore important to try to gauge the popularity of each of these views in the present Supreme Court. Rehnquist, as I have said, had no difficulty in using his historicist approach to reject any right to assisted suicide out of hand. Four other justices—Justices Anthony Kennedy, Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas—joined Rehnquist’s opinion, and we may safely assume that Scalia and Thomas do in fact embrace the historicist assumptions of that opinion.

O’Connor and Kennedy, however, were two of the three justices—the other was Souter—who wrote a joint opinion in the 1992 Casey abortion decision6 endorsing the interpretive view of due process that Souter defended in this case, and it is therefore puzzling why they joined Rehnquist’s opinion. Perhaps they did so out of institutional courtesy, so that one opinion—Rehnquist’s—could attract five votes and so count as the opinion of the Court, avoiding the inelegant result of a unanimous decision with no majority opinion.

In any case, however, O’Connor wrote a separate opinion which makes it plain that she still does not accept Rehnquist’s historicist understanding of the due process clause. She identified the question posed by the cases as “whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death.” She said that she saw no need to decide that question because, even if such a patient had such a right, the state laws challenged in the cases did not violate it because they allowed doctors to administer pain-relieving drugs even when these hastened death. She left open, that is, the crucial question—whether patients have some right to control how they die—that the historicist understanding would have answered, negatively and immediately. Kennedy did not write a separate opinion. But it is unlikely that he accepts the historicist account, given not only his opinion in Casey but also his explicitly interpretive reading of the other great clause of the Fourteenth Amendment—the equal protection clause—in the recent Colorado homosexual rights case.7

Justices Breyer, Ginsburg, and Stevens, who declined to join Rehnquist’s opinion, each made it at least as plain as O’Connor did that they were much closer to Souter’s than to Rehnquist’s understanding of the due process clause. Ginsburg said simply that she agreed with O’Connor. Breyer said pointedly that he joined O’Connor’s opinion “except insofar as it joins the majority.” He added that he would formulate the patient’s claim in these cases, not as Rehnquist had, but rather in “words roughly like a ‘right to die with dignity,”’ and he said that “our legal tradition may provide greater support” for such a right.

Breyer said, however, that he did not have to decide the question whether the due process clause actually does require judges to recognize such a right, because “the avoidance of severe physical pain (connected with death) would have to comprise an essential part of any successful claim,” and he agreed with O’Connor that pain can be avoided because the states do not prohibit even pain-relieving treatment that advances death. He concluded with the important observation that if states did interfere with the “administration of drugs as needed to avoid pain at the end of life,” then “as Justice O’Connor suggests, the Court might have to revisit its conclusions in these cases.”

The remaining justice—Stevens—wrote an eloquent separate opinion to explain that his vote to reverse the lower court decisions was based on procedural rather than substantive grounds. He said that since the patients who were plaintiffs in the cases at hand had all died before the Supreme Court decision, the question before the Court was not whether the anti-assisted suicide laws could constitutionally be applied to patients who were dying when they asked for relief. Instead, he said, once the patients had died, the case required the Court to decide whether the anti-suicide laws could constitutionally be applied to anyone at all, including, for example, a depressed but otherwise healthy person who had expressed a wish to die. Since he thought that a state could properly prevent doctors from aiding some people who wanted to die, he voted to sustain the statutes as not “facially” invalid.

His opinion left little doubt, however, that in what he deemed an appropriate case he would vote to overrule a statute that prevented doctors from helping competent and informed dying patients—not just those whose pain could not otherwise be relieved—to die sooner. He emphasized, as the Philosophers’ Brief had, that different people have different religious and ethical convictions about what kind of death most respects the value of their life, and that individual freedom demands that dying patients be permitted to die according to their own convictions. He ended with the uncompromising statement that

  1. 1

    The Philosophers’ Brief,” The New York Review, March 27, 1997, pp. 41-47.

  2. 2

    Washington et al. v. Glucksberg, 1997 WL 348094; Vacco v. Quill, 1997 WL 348037.

  3. 3

    It is worth noticing that he did not defend the historicist approach, as other conservative lawyers have attempted to do, by appealing to the “original intention” of those who wrote and enacted the Fourteenth Amendment. He defended it on the different, and I think now much more popular ground, that weakening the due process clause in this (or indeed any other available) way reduces the power of judges to contradict the wishes and convictions of a majority of a state’s citizens. For an assessment of that argument, see my recent book, Freedom’s Law (Harvard University Press, 1996).

  4. 4

    Cruzan v. Director, Missouri Dept. of Health, 497 US 261 (1990).

  5. 5

    In an earlier article in The New York Review, I defined and contrasted the historicist and interpretivist views of the due process clause at greater length. See “Sex, Death, and the Courts,” The New York Review, August 8, 1996, pp. 44-50.

  6. 6

    Planned Parenthood v. Casey, 505 US 833 (1992).

  7. 7

    See “Sex, Death, and the Courts,” pp. 49-50.

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