It was not until the last decade of the twentieth century that the U.S. Supreme Court decided three cases in which the Court began what remains a tentative exploration of whether (if at all) the U.S. Constitution guarantees a choice concerning the time and manner of one’s death. The Court seemed especially concerned that it leave room for the political process to address the so-called ‘‘right to die’’—a term of art, covering a broad array of factual settings raising endof- life issues, most notably physician-assisted suicide (PAS), decisions by competent adults to refuse or remove life-sustaining treatment, and choices made on behalf of children or incompetent adults. In 2004, the nation was riveted with the Terri Schiavo case, an especially powerful illustration of the legal and political complexities that abound in this area of individual liberty.
American law has long recognized a constitutional right to refuse medical treatment. Like all rights, it is not absolute and subject to reasonable state regulation. As early as 1905 (Jacobson v. Massachusetts, 197 U.S. 11), the Supreme Court upheld a compulsory vaccination law, justified by the government’s interest in stopping the spread of communicable diseases.
The first case to bring to widespread public attention the issue of hastening the death of a dying person came in 1976, when a U.S. appellate court upheld the right of close family members to allow the termination of life support for a patient, Karen Ann Quinlan, in a persistent vegetative state. Other cases soon followed and all states enacted laws recognizing the legal right to withhold or withdraw life-sustaining medical treatment. There emerged a legal consensus on three fundamental principles: (1) Competent persons have a right to refuse medical treatment, even if the result is death; (2) persons without decisionmaking capacity have a right to have their family decide to withhold or withdraw treatment; (3) a ‘‘bright line’’ exists between ‘‘passively’’ hastening a person’s death by withholding or withdrawing treatment and more ‘‘active’’ means such as assisted suicide and active euthanasia.
The U.S. Supreme Court began its tentative forays into the problem in 1990 in the case of Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). The parents of Nancy Cruzan, who was in a persistent vegetative state with no hope of regaining consciousness, sought to terminate food and hydration, ending her life.
The Court’s decision was in three parts. First, the Court said that competent adults have a constitutional right to refuse medical care. (Only Justice Antonin Scalia refused to recognize such a right.) That principle, Chief Justice William Rehnquist wrote, ‘‘may be inferred from our prior decisions.’’ Rehnquist ‘‘assumed’’ that there was a right to refuse food and water and thus hasten death. Five other justices stated explicitly that such a right exists. This liberty was grounded in the due process clause of the Fourteenth Amendment. The second major portion of the opinion held that before treatment is terminated, a state may require solid evidence that a person wanted that result. The third major component of the opinion held that states have the power to prevent family members from making this decision for another. The right to end treatment is uniquely personal, and a decision by others, even close family, may not necessarily be motivated by the best interests of the patient.
Key questions were left unresolved. The right recognized here was not deemed ‘‘fundamental’’ and thus the opinion gave no guidance as to what level of judicial scrutiny (strict or some lower level) was appropriate. The Court also did not address what kind of proof is needed to constitute clear and convincing evidence of the person’s desires in these matters. The strong implication of the Court’s language was that a written ‘‘living will’’ would meet the test but that a state could refuse to recognize oral testimony. Finally, the Court left open the question of whether a state is or is not required to defer to the decision of a surrogate or guardian if there is ‘‘competent and probative evidence’’ that the patient wished that surrogate to decide.
In 1997, the Court turned its attention to PAS in two cases, Washington v. Glucksberg, 117 U.S. 2258 (1997), and Vacco v. Quill, 117 U.S. 2293 (1997). While the Court rejected facial challenges to state laws punishing persons aiding a suicide and the claim that there is a constitutional right to PAS, there was an even greater tentativeness to many of the justices’ opinions than had been seen in previous cases. While the effect of the decisions was to uphold laws in forty-nine states prohibiting assisting another in committing suicide, a majority of the justices went to some pains to leave open the possibility of state laws protecting such a right consistent with the U.S. Constitution.
In Washington v. Glucksberg, the Court rejected the notion that the Fourteenth Amendment includes a fundamental right to assisted suicide. Reasoning that a right is fundamental under the due process clause only when grounded in history or tradition, Chief Justice Rehnquist’s opinion noted that for ‘‘over 700 years’’ the ‘‘Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and attempting suicide.’’ Moreover, in almost every state in the United States and in most Western democracies it is a crime to assist suicide. Thus, the right is not fundamental; the Washington law could be upheld as long as it had a rational basis, which Rehnquist found in the state’s concerns to preserve life, protect the integrity and ethics of the medical profession, protect vulnerable groups, and avoid the slippery slope to voluntary and possibly even involuntary euthanasia.
The constitutional issue in Vacco v. Quill was somewhat different: Do laws prohibiting PAS violate the equal protection clause of the Fourteenth Amendment? Rehnquist, again writing for the majority, held that such laws do not discriminate against a suspected class (for example, a racial minority) and do not violate a fundamental right, since Glucksberg refused to recognize the claimed right as fundamental. Under established equal protection analysis, the law must be upheld as long as it meets the rational basis test, and the state’s rational interests for such laws had also been spelled out in Glucksberg.
States remain free to enact laws protecting this right. The Court indicated that nothing in the Constitution limits a state’s ability to prohibit or allow PAS. (In 1994, the Oregon Death With Dignity Act legalized PAS for competent, terminally ill adults. Other states have considered or will consider similar laws.) Five justices in concurring opinions indicated that PAS prohibitions might be unconstitutional as applied in specific cases. Justice Sandra Day O’Connor said (several times) in her concurrence that suffering patients in the last days of their lives may have a constitutional right to relief of that suffering. Justice Stephen Breyer very clearly indicated that there may be a constitutional right to PAS in a specific case if the person’s core claim is ‘‘avoidance of severe physical pain (connected with death).’’ He noted pointedly that the Washington and New York laws ‘‘do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill.’’
Against the backdrop of totalitarian abuses in Russia and Germany, post-World War II America saw a heightened concern for fundamental human rights such as equality, personal liberty, and privacy. The African-American civil rights movement and Vietnam war protests paved the way for the liberation movements of the 1970s with respect to the rights of women, gays, other racial and ethnic minorities, and people with disabilities. Starting with the Cruzan case, the 1990s brought a movement for the rights of the dying.
As often happens (for example, the right of privacy recognized in Griswold v. Connecticut, 381 U.S. 479 (1965), and the right to abortion in Roe v. Wade, 410 U.S. 113, 1973), the Supreme Court comes on the scene only after challenges to laws at the state and local level. (In 1965, every state except Connecticut recognized a right to use contraception. In 1973, most states had legalized abortion.) Thus, some of the Court’s tentativeness regarding the ‘‘right to die’’ undoubtedly reflects a genuine desire to allow states to engage fully in the political and legal experimentation that Justice Louis D. Brandeis hailed as one of the benefits of the federal system.
Liberation movements often spark backlash; the reaction of abortion foes to Roe v. Wade is an especially vivid example. The ‘‘right to die’’ is no exception. Perhaps nothing better epitomizes the intensity of conflict in this area than the case of Terri Schiavo, which sparked in Florida ‘‘Terri’s Law,’’ arguably one of the more extreme legislative interferences (if one discounts the U.S. Congress’s subsequent interjections into the Schiavo case) with the judicial process and individual rights. Many conservative groups in that state applied concerted pressure on Florida legislators to pass the law, certainly out of a concern for Schiavo, but also as a means to advance their broader prolife and anti-abortion agenda.
Shortly after Oregon’s Death with Dignity law went into effect, the federal Drug Enforcement Administration threatened Oregon doctors with loss of federal prescribing privileges if they provided dying patients with services authorized by the state law. Attorney General Janet Reno ruled that this was an improper use of the federal regulations. In the midst of the 9/11 crisis, Attorney General John Ashcroft reversed his predecessor’s decision. The U.S. District Court for Oregon held that Aschroft lacked authority under the federal Controlled Substances Act (CSA), and the Ninth Circuit affirmed. On February 22, 2005, the U.S. Supreme Court granted certiorari in Gonzales v. Oregon (368 F. 3d 1118, 9th Cir. 2004, cert. granted, No. 04-623, U.S. Feb. 22, 2005) and will consider whether the attorney general’s interpretation of the CSA prohibiting distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of state law, is a permissible interpretation. A decision was expected by the end of the Court’s October 2005 term.
The legal and political future of PSA and other components of ‘‘the right to die’’ remains an open question, one of the first great civil liberties issues of the twenty-first century.
PHILIP A. DYNIA
References and Further Reading
Cases and Statutes Cited
See also Compelling State Interest; Cruzan v. Missouri, 497 U.S. 261 (1990); Gay and Lesbian Rights; Kevorkian, Jack; Privacy; Privacy, Theories of; Refusal of Medical Treatment and Religious Beliefs; Washington v. Glucksburg, 521 U.S. 702 (1997)