RIGHT TO DIE (Update)

The question posed by claims for a "right to die" is whether states may prohibit people from hastening their own death or obtaining the assistance of others for that purpose. Since the 1970s, many courts have recognized the existence of a constitutional right to refuse medical treatment even though this refusal would hasten death. These rulings do not, however, constitute a generalized "right to die" for individuals who do not need medical interventions to prolong life. In 1997, the U.S. Supreme Court directly addressed this issue regarding the constitutionality of state laws prohibiting physician-assisted suicide, and held that no such right existed.

State laws against homicide have traditionally been applied to forbid people from hastening either their own or others' deaths. Under English common law, suicide was prohibited, though the state sanctions were necessarily indirect—through property inheritance forfeitures and burial degradations for the act of suicide and the imposition of criminal penalties for unsuccessful suicide attempts. During the course of the nineteenth century, American state legislatures abandoned these measures but at the same time enacted civil commitment laws phrased broadly enough to authorize psychiatric custodial confinement for suicide attempts. The abolition of English common law penalties thus did not clearly indicate that American legislators viewed suicide as a "right."

American law has also traditionally held that physicians are obliged to obtain consent from mentally competent patients before embarking on any medical treatment. On its face, this requirement would imply that a mentally competent person had a right to refuse life-prolonging medical treatment notwithstanding that hastened death would result from this refusal. It was not until the 1970s, however, that American courts drew out this implication. The landmark ruling, In re Quinlan (1976), was rendered by the New Jersey Supreme Court in a case involving Karen Ann Quinlan, a twenty-one-year-old woman in a persistent vegetative state whose parents sought judicial approval to remove the mechanical ventilator that assisted her breathing. The court held that if Quinlan had been mentally competent, she would have had a right to discontinue this medical treatment. In reaching this conclusion the court relied not only on the common law rule requiring a patient's consent for medical treatment generally but also on the recent decision of the U.S. Supreme Court in roe v. wade (1973). The state court reasoned that if the constitutional right of privacy protected a woman's control over her bodily integrity regarding the choice to abort, it followed that all individuals had a constitutional right to control medical interventions into their bodies. The state court further concluded that although Quinlan was not mentally competent, she should not thereby lose this constitutional protection of her bodily integrity but that the right should be available to her through the exercise of "substituted judgment"; that is, through someone such as her parent or court-appointed guardian speaking for her.

Strictly speaking, the Quinlan case did not establish a "right to die." The state court's formulation of Quinlan's constitutional right was to protect her bodily integrity; from this perspective, the question whether these interventions were necessary for her continued life was incidental to her basic claim against any unconsented medical treatment. Nonetheless, the context of the case and the court's discussion of that context gave clear prominence to the proposition, as the court itself put it, that mechanical prolongation of her life "only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life [would] compel Karen to endure the unendurable." Changes in medical technology and in population demographics during the preceding several decades, moreover, gave a new sense of urgency to this concern about "unendurable" prolongation of life. Advances in public health and individual medical treatments had led to increasing numbers of people surviving into old age but burdened with substantial, chronic disabilities. The intense media attention to Karen Ann Quinlan's case suggested that her plight symbolized a widespread public concern about excessive and inhumane applications of life-prolonging medical technologies.

Judicial decisions following Quinlan, however, highlighted opposite concerns—that withholding life-prolonging medical care could be excessive and inhumane. The New Jersey Supreme Court had assumed that, although Karen Ann was incompetent, her father could appropriately speak on her behalf; subsequent court cases that authorized withholding treatment from incompetent patients raised questions about the role of family or other substituted decisionmakers. In Superintendent of Belchertown State School v. Saikewicz (1977), decided immediately after Quinlan, the Supreme Judicial Court of Massachusetts ruled that medical treatment for leukemia, which most likely would have prolonged life for less than a year but with considerable physical discomfort, could be withheld from a profoundly retarded sixty-six-year-old man who had lived most of his life in a state retardation institution. The court came to this conclusion even though it conceded that the overwhelming majority of mentally "normal" people would have opted for the treatment; and critics charged accordingly that this ruling reflected an invidious discrimination against people with mental disabilities. In 1982, the Indiana Supreme Court affirmed that parents of a Down syndrome newborn could refuse life-saving surgery to correct an esophageal obstruction. This ruling reflected devaluation of retarded people even more than in Saikewicz, for the surgery was entirely curative and universally performed for other newborns with this condition. Following considerable media coverage of this case, known only as Baby Doe, Congress adopted the Child Abuse Amendments of 1984, withholding federal funds from states unless they enacted laws requiring medical treatment for infants with virtually any likelihood of extended life. Within five years, such laws were adopted in every state, thus effectively repudiating the Baby Doe ruling.

The first case to come to the U.S. Supreme Court regarding refusal of life-prolonging medical treatment also involved a person who could not speak for herself. In Cruzan v. Director, Missouri Department of Health (1990), parents sought judicial permission to remove a feeding tube from their adult daughter who was in a persistent vegetative state from brain injury in a car accident seven years earlier. The Missouri Supreme Court had ruled that there was no "clear and convincing evidence," as required under state law, that the daughter herself, when mentally competent, had expressed unwillingness to accept medical treatment in these circumstances. The U.S. Supreme Court, by a 5–4 vote, held that this ruling did not violate the Constitution. Chief Justice william h. rehnquist, writing for the Court, stated that "the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions." Nonetheless, Rehnquist held, states have constitutional authority to impose high evidentiary standards in determining the wishes of an incompetent person. In a concurring opinion, Justice sandra day o'connor observed that the Court's ruling should encourage individuals to complete advance directives or appoint health-care proxies to implement their wishes if they subsequently became incompetent; she also suggested that states would be constitutionally obligated to give effect to these instruments. In 1990, Congress enacted the Patient Self-Determination Act requiring that medical institutions receiving federal funds inform all entering patients about their rights under state law to make advance directives or appoint health-care proxies. Subsequent studies have shown, however, that relatively few people—between 5 percent and 29 percent of the population—have in fact completed such instruments.

Controversy about discriminatory implications of a right to refuse medical treatment was, moreover, not restricted to its application to incompetent people. There were also concerns that some disabled people would de-value themselves, or act on the basis of social devaluation of them, in deciding to forego life-prolonging treatment. These concerns were exemplified for some critics in a ruling by a California appellate court in Bouvia v. Superior Court (1986) regarding a quadriplegic woman with severe cerebral palsy who sought a court order directing hospital authorities to remove a feeding tube. The court ruled that Elizabeth Bouvia had a constitutionally based privacy right to refuse this treatment. In describing Bouvia's circumstances, the court appeared to base its sympathy for her claim on the seeming "uselessness, unenjoyability and frustration" of her disabled state. Critics responded, however, that the court ignored aspects of Bouvia's life—such as her recent miscarriage and divorce, her brother's death, her job loss and homelessness—which might have been more powerful motivations for her wish to end her life and, if she had been able-bodied, would have led judges to question her mental competency rather than to insist on acquiescence to that wish. These critics alleged confirmation in their concerns about devaluation of disabled people in Rehnquist's dictum in Cruzan, "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"—thus appearing to imply that a constitutional right to refuse feeding by medical means could be restricted to physically disabled adults.

Claims for a constitutional "right to die" thus implicate conflicting concerns. On one side, the principle demanding respect for autonomous personal choice (whether understood in constitutional terms as a privacy right or a liberty interest) clearly militates against any forced medical treatment. On the other, invidious social attitudes toward disabled people not only implies that others, even including family members, may not be trustworthy guardians for the interests of mentally incompetent people; these attitudes also suggest the existence of societal coercions toward mentally competent adults with physical disabilities that could lead them to devalue themselves and construe a "right to die" as an obligation to die.

These conflicting concerns were powerfully presented in constitutional challenges to state laws in Washington and New York imposing criminal penalties for assisting suicide. Plaintiffs alleged that states were constitutionally obliged to exempt from these laws physicians who assisted mentally competent, terminally ill patients requesting hastened death. In the Washington case, the U.S. Court of Appeals for the Ninth Circuit held that there was a fundamental right to control over one's bodily integrity, based on the privacy right or liberty interest established by Roe, that extended to individual control over the timing and manner of one's death and that, for mentally competent people who were already imminently dying of some terminal illness, the state had no adequately compelling interest in prohibiting physicians from assisting them toward hastened death. The U.S. Court of Appeals for the Second Circuit rejected this finding of a fundamental right but nevertheless held that New York's law drew irrational distinctions by obliging physicians to respect patients' refusals of life-prolonging treatment, thus hastening their deaths by acts such as removal of feeding tubes, while prohibiting physicians from respecting patients' requests for other physician actions to hasten death, such as prescriptions for lethal medications. The Second Circuit ruled that this irrational treatment violated the equal protection guarantee of the fourteenth amendment.

In Washington v. Glucksberg and Vacco v. Quill (1997), the U.S. Supreme Court unanimously reversed both appeals court rulings. In opinions joined by five Justices, Rehnquist held in the Washington case that neither the text of the Constitution nor the extensive historical existence of state law prohibitions supported the claim for a fundamental right to physician-assisted suicide; in the New York case, he held that the distinction between circumstances where physicians acted to hasten death, on the one hand, and withheld treatment but the patient's disease itself was the "active" cause of death, on the other hand, was well-accepted and plausible enough as to satisfy the constitutional standard of scrutiny for legislative rationality. Four Justices, though concurring in the result, were not so definitive in rejecting the constitutional claims against the assisted suicide prohibitions.

Justice john paul stevens was most clearly inclined toward finding a constitutional right; he concurred only on the ground that the statutes were challenged facially rather than as applied and that, though he was unwilling to strike down the prohibitions in all circumstances, there were some limited circumstances where an adequate case could be made regarding terminally ill, mentally competent patients. In footnotes to his majority opinions, Rehnquist accepted Stevens's position that the Court's ruling did not "absolutely foreclose" such future constitutional claims, though his opinions read as a whole appeared strongly inhospitable to any such claims.

Justice david h. souter wrote an extensive concurring opinion that also appeared favorably disposed toward finding a constitutional right to assisted suicide for terminally ill patients. He expressed reluctance to endorse this conclusion, however, because of the concerns raised by states about whether this right could not be adequately confined to true volunteers and would instead have coercive force on vulnerable people such as the elderly, the poor, minority group members, or the chronically disabled. Because there was no practical experience in the implementation of this right in any U.S. jurisdiction and the empirical data from the Netherlands—the only country where physician-assisted suicide had been legally recognized—was limited and subject to conflicting interpretations, Souter found that state legislatures were better suited than courts to assess the gravity of these practical concerns. He stated, however, that if there were "legislative foot-dragging in ascertaining the facts" he would re-examine his position and seemed to imply that he would then be prepared to proceed toward an independent judicial finding of some constitutional protection for assisted suicide.

Justice stephen g. breyer also wrote a concurring opinion indicating his favorable disposition toward a constitutional right for terminally ill patients who requested hastened death to avoid intractable physical pain. Breyer observed, however, that the litigative record indicated that physical pain could already be adequately palliated by various means, including sedation that might itself hasten death, and that such effective palliation was not prohibited by state law. However, he continued, if "state law … prevent[ed] the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life," then the Court "might have to revisit its conclusion" rejecting a constitutional right to assisted suicide.

O'Connor made a similar observation in her separate opinion but she joined Rehnquist's opinions, thus providing the fifth vote to make them opinions for the Court. Accordingly, O'Connor's position was itself more favorably disposed toward a possible future judicial finding of a constitutional right than was explicitly acknowledged in the Rehnquist opinions whose majority status depended on O'Connor's concurrence. (Justice ruth bader ginsburg also wrote a very brief concurrence, endorsing O'Connor's separate opinion but refusing to join the Court's opinions.)

Taken together, the separate opinions in the assisted suicide cases thus undermine the apparent force of the Court's unanimous rejection of a constitutional right. In fact, five of the Justices spoke with varying degrees of approbation about the prospect that some future litigation would present sufficiently compelling facts for judicial finding of such a right. For O'Connor, Breyer, and Ginsburg, the existence of a right to assisted suicide would depend on whether a terminally ill person could avert physical pain by any other state-sanctioned means. For Stevens, the existence of this right would be justified by claims for autonomous choice generally, not necessarily restricted to palliation of physical pain specifically; but the claim must be presented in a more narrowly focused context than a facial challenge to the prohibitory state laws. Souter similarly did not restrict his attention to claims for relief of physical pain, but he was not prepared to find a constitutional right to assisted suicide until state legislatures had sufficient time "to experiment" and engage in fact-finding about the possibility of confining the practice of assisted suicide to truly voluntary, mentally competent, terminally ill people.

If the U.S. Supreme Court were ultimately to hold that individuals had a constitutional right to a physician's assistance in hastening their death, this would clearly constitute a "right to die." This would be a much clearer acceptance of such a right than the numerous state rulings—implicitly endorsed by the Court's dicta in Cruzan—which have already found a constitutional right to refuse life-prolonging treatment because of the direct bodily intrusion represented by nonconsensual medical interventions. The Court's 1997 decisions in Glucksberg and Vacco do not definitively dispose of this more generalized claim, though it does seem unlikely that the Court would be prepared to revisit this question soon.

Deliberation about the legality of physician-assisted suicide is, however, likely to go forward in the immediate future in state legislatures and popular ballot initiatives. In 1994, Oregon voters (by a 51 percent margin) approved legalization of physician prescriptions of lethal medication requested by mentally competent patients who were diagnosed with illnesses likely to be fatal within six months. The constitutionality of this law was challenged on equal protection grounds but this challenge was rejected by the Ninth Circuit Court of Appeals and certiorari was denied by the U.S. Supreme Court in Lee v. Oregon (1997). States are thus free to authorize this practice; the Oregon voters reaffirmed their approval by a wider margin in 1996, making this state the first U.S. jurisdiction to endorse a "right to die," limited to mentally competent people already suffering from a fatal illness. Whether other states will follow; whether this right will be extended to mentally incompetent people (as the constitutional right to refuse treatment has been applied); whether this right will be extended beyond terminally ill people to others whose physical or psychological suffering leads them to request assisted suicide (as the Netherlands Supreme Court has endorsed); whether the U.S. Supreme Court will ultimately re-examine its refusal to proclaim a generalized constitutional "right to die"—these are all questions that remain open and vexing.

Robert A. Burt
(2000)

Bibliography

Committee on Care at the End of Life, Institute of Medicine 1997 Approaching Death: Improving Care at the End of Life. Washington, D.C.: National Academy Press.

Gerry, Martin H. and Nimz, Mary 1987 The Federal Role in Protecting Babies Doe. Issues in Law and Medicine 2:339–355.

Longmore, Paul K. 1987 Elizabeth Bouvia, Assisted Suicide and Social Prejudice. Issues in Law and Medicine 3:141–168.

New York State Task Force on Life and the Law 1994 When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context. New York: New York State Task Force on Life and the Law.

Symposium 1998 Physician-Assisted Suicide: Facing Death after Glucksberg and Quill. Minnesota Law Review 82:885–1101.

Weir, Robert F., ed. 1997 Physician-Assisted Suicide. Bloomington: Indiana University Press.