Amdt14.S1.6.5.2 Physician Assisted-Death and Substantive Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court recognized in Cruzan v. Missouri Department of Health that the Due Process Clause includes the constitutionally protected right to refuse life-sustaining medical treatment, including nutrition and hydration.1 While refusing medical interventions may ultimately lead to a patient’s death, the Court unanimously held in a subsequent case, Washington v. Glucksberg, that this right does not extend to more active forms of medical intervention to assist terminally ill patients in ending their lives.2

In Glucksberg, terminally ill patients, physicians, and a nonprofit organization challenged a long-standing Washington state law that criminalized “knowingly caus[ing] or aid[ing] another person to attempt suicide.” 3 The plaintiffs argued that the Supreme Court’s decisions in Cruzan and Planned Parenthood of Southeastern Pennsylvania v. Casey suggested that the Due Process clause broadly includes protections for “basic and intimate exercises of personal autonomy.” 4 In reviewing this question, the Court began by “carefully formulating” the liberty interest in question.5 Although the lower courts and litigants had variously defined the question as a “right to die,” the Court provided a narrower characterization as whether the Due Process Clause’s protection of liberty included a right to assistance in committing suicide.6

The Court next examined the country’s history, legal traditions, and practices with respect to that narrowly defined right.7 The Court first noted the long history of criminalizing both suicide and assistance in suicide as distinguishing this case from its decision in Cruzan, which had relied on the long history of the right to refuse medical treatment.8 The Court also rejected the plaintiffs’ reliance upon Casey, noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected.9 While the Court’s decision in Glucksberg would appear to preclude constitutional protection for medical interventions intended to cause death, the question of whether there is a protected right to palliative or pain-relieving care during the dying process may remain an open question.10

See 497 U.S. 261, 278–79 (1990). See Amdt14.S1.6.5.1 Right to Refuse Medical Treatment and Substantive Due Process. back
521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected an argument that a state that prohibited assisted suicide, but which allowed termination of medical treatment resulting in death, unreasonably discriminated against the terminally ill in violation of the Fourteenth Amendment’s Equal Protection Clause. back
Glucksberg, 521 U.S. at 707. back
Id. at 724 (citing Cruzan, 497 U.S. at 278–79; Casey, 505 U.S. 833, 847 (1992), overruled by Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 79 (U.S. June 24, 2022)). back
Id. at 722. back
Id. back
Id. at 723–26. back
Id. at 723. back
Id. at 727–28. back
Id. at 737 (O’Connor, J., concurring) ( “[T]here is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives.” ). Since Glucksberg, the Court has not revisited the question of whether assisted suicide is protected under the Due Process Clause, but the Court has addressed the statutory question as to the interaction of the federal Controlled Substances Act with state laws authorizing medicated-assisted suicide. Gonzales v. Oregon, 546 U.S. 243 (2006). The Court has also cited Glucksberg in a decision upholding a federal partial-birth abortion ban for the proposition that the government has an interest in “protecting the integrity and ethics of the medical profession.” Gonzalez v. Carhart, 550 U.S. 124, 157 (2007). back