“Right to Die”.

Although the popular term “right to die” has been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance, “right to die” could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician.

There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.726 On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health,727 the Court, rather than directly addressing the issue, “assume[d]” that “a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.”728 More importantly, however, a majority of the Justices separately declared that such a liberty interest exists.729 Yet, it is not clear how actively the Court would seek to protect this right from state regulation.

In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be “clear and convincing evidence” of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or “anyone but the patient herself ” in making this decision.730 Thus, in the absence of clear and convincing evidence that the patient had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration.731

Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized.732 However, the Court made clear in a subsequent case, Washington v. Glucksberg,733 that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.

In Glucksberg, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with “utmost care” before breaking new ground in the area of liberty interests.734 The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases,735 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. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.736

Footnotes

726
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) (“We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death”). [Back to text]
727
497 U.S. 261 (1990). [Back to text]
728
497 U.S. at 279. [Back to text]
729
See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting). [Back to text]
730
497 U.S. at 286. [Back to text]
731
“A State is entitled to guard against potential abuses” that can occur if family members do not protect a patient’s best interests, and “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.” 497 U.S. at 281–82. [Back to text]
732
There was testimony that the patient in Cruzan could be kept “alive” for about 30 years if nutrition and hydration were continued. [Back to text]
733
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 which prohibited assisted suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment. [Back to text]
734
521 U.S. at 720. [Back to text]
735
E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty interest in terminating pregnancy). [Back to text]
736
A passing reference by Justice O’Connor in a concurring opinion in Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty interest in seeking pain relief, or “palliative” care. Glucksberg and Vacco, 521 U.S. at 736–37 (Justice O’Connor, concurring). [Back to text]