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5.6: The Right to Die

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    Washington v. Glucksberg (1997)

    521 U.S. 702 (1997)

    Vote: 9-0
    Decision: Reversed
    Majority: Rehnquist joined by O’Connor, Scalia, Kennedy, Thomas
    Concurrence: O’Conner joined by Ginsburg, Breyer,
    Concurrence: Souter
    Concurrence: Stevens
    Concurrence: Ginsburg
    Concurrence: Breyer

    CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.

    The question presented in this case is whether Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not.

    It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington’s first Territorial Legislature outlawed “assisting another in the commission of self murder.” Today, Washington law provides: “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” “Promoting a suicide attempt” is a felony, punishable by up to five years’ imprisonment and up to a $10,000 fine. At the same time, Washington’s Natural Death Act, enacted in 1979, states that the “withholding or withdrawal of life sustaining treatment” at a patient’s direction “shall not, for any purpose, constitute a suicide.”

    Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington’s assisted suicide ban. In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and Compassion in Dying, a nonprofit organization that counsels people considering physician assisted suicide, sued in the United States District Court, seeking a declaration that Wash Rev. Code 9A.36.060(1) (1994) is, on its face, unconstitutional.

    The plaintiffs asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide.” Relying primarily on Planned Parenthood v. Casey (1992), and Cruzan v. Director, Missouri Dept. of Health (1990), the District Court agreed, and concluded that Washington’s assisted suicide ban is unconstitutional because it “places an undue burden on the exercise of [that] constitutionally protected liberty interest.” * * *

    A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that “[i]n the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction.” The Ninth Circuit reheard the case en banc, reversed the panel’s decision, and affirmed the District Court. Like the District Court, the en banc Court of Appeals emphasized our Casey and Cruzan decisions. The court also discussed what it described as “historical” and “current societal attitudes” toward suicide and assisted suicide, and concluded that “the Constitution encompasses a due process liberty interest in controlling the time and manner of one’s death–that there is, in short, a constitutionally recognized `right to die.’ ” After “[w]eighing and then balancing” this interest against Washington’s various interests, the court held that the State’s assisted suicide ban was unconstitutional “as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians.” * * * We granted certiorari and now reverse.

    We begin, as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices. In almost every State–indeed, in almost every western democracy–it is a crime to assist a suicide. The States’ assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.

    * * *

    More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. In the 13th century …”[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was … introduced into English common law.” Centuries later, Sir William Blackstone, whose COMMENTARIES ON THE LAWS OF ENGLAND not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers, referred to suicide as “self murder” and “the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure. …” Blackstone emphasized that “the law has … ranked [suicide] among the highest crimes,” although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide “borde[r] a little upon severity.”

    For the most part, the early American colonies adopted the common law approach. * * * Over time, however, the American colonies abolished these harsh common law penalties. * * *

    Nonetheless, although States moved away from Blackstone’s treatment of suicide, courts continued to condemn it as a grave public wrong.

    * * *

    The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, and many of the new States and Territories followed New York’s example. Between 1857 and 1865, a New York commission … drafted a criminal code that prohibited “aiding” a suicide and, specifically, “furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. * * * In this century, the Model Penal Code also prohibited “aiding” suicide, prompting many States to enact or revise their assisted suicide bans …

    Though deeply rooted, the States’ assisted suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit “living wills,” surrogate health care decisionmaking, and the withdrawal or refusal of life sustaining medical treatment. At the same time, however, voters and legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide. * * *

    Thus, the States are currently engaged in serious, thoughtful examinations of physician assisted suicide and other similar issues. For example, New York State’s Task Force on Life and the Law–an ongoing, blue ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen … unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. … [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved.”

    … [O]ur laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents’ constitutional claim.

    The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia (1967); to have children, Skinner v. Oklahoma ex rel. Williamson (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska (1923); Pierce v. Society of Sisters (1925); to marital privacy, Griswold v. Connecticut (1965); to use contraception, Griswold, Eisenstadt v. Baird (1972); to bodily integrity, Rochin v. California (1952), and to abortion, Casey. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan.

    But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open ended.” By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.

    Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently, the Fourteenth Amendment “forbids the government to infringe …”fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

    * * * Turning to the claim at issue here, the Court of Appeals stated that “[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one’s death,” or, in other words, “[i]s there a right to die?” Similarly, respondents assert a “liberty to choose how to die” and a right to “control of one’s final days,” and describe the asserted liberty as “the right to choose a humane, dignified death,” and “the liberty to shape death.” As noted above, we have a tradition of carefully formulating the interest at stake in substantive due process cases. For example, although Cruzan is often described as a “right to die” case, we were, in fact, more precise: we assumed that the Constitution granted competent persons a “constitutionally protected right to refuse lifesaving hydration and nutrition.” Cruzan. The Washington statute at issue in this case prohibits “aid[ing] another person to attempt suicide” and, thus, the question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.

    We now inquire whether this asserted right has any place in our Nation’s traditions. Here * * * we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.

    Respondents contend, however, that the liberty interest they assert is consistent with this Court’s substantive due process line of cases, if not with this Nation’s history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of “self sovereignty,” and as teaching that the “liberty” protected by the Due Process Clause includes “basic and intimate exercises of personal autonomy,” see Casey (“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter”). According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the “liberty of competent, terminally ill adults to make end of life decisions free of undue government interference.” The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance. With this “careful description” of respondents’ claim in mind, we turn to Casey and Cruzan.

    In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, “ha[d] a right under the United States Constitution which would require the hospital to withdraw life sustaining treatment” at her parents’ request. … We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient’s wishes concerning the withdrawal of life sustaining treatment.

    * * * The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation’s history and constitutional traditions. 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. Indeed, the two acts are widely and reasonably regarded as quite distinct. In Cruzan itself, we recognized that most States outlawed assisted suicide–and even more do today–and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide.

    Respondents also rely on Casey. There, the Court’s opinion concluded that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” We held, first, that a woman has a right, before her fetus is viable, to an abortion “without undue interference from the State”; second, that States may restrict post-viability abortions, so long as exceptions are made to protect a woman’s life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. In reaching this conclusion, the opinion discussed in some detail this Court’s substantive due process tradition of interpreting the Due Process Clause to protect certain fundamental rights and “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and noted that many of those rights and liberties “involv[e] the most intimate and personal choices a person may make in a lifetime.”

    * * * That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San Antonio Independent School Dist. v. Rodriguez (1973), and Casey did not suggest otherwise.

    The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington’s assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here. As the court below recognized, Washington’s assisted suicide ban implicates a number of state interests.

    First, Washington has an “unqualified interest in the preservation of human life.” The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. This interest is symbolic and aspirational as well as practical * * * As we have previously affirmed, the States “may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy.” This remains true, as Cruzan makes clear, even for those who are near death.

    Relatedly, all admit that suicide is a serious public health problem, especially among persons in otherwise vulnerable groups. The State has an interest in preventing suicide, and in studying, identifying, and treating its causes.

    Those who attempt suicide–terminally ill or not–often suffer from depression or other mental disorders. See New York Task Force (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a “risk factor” because it contributes to depression). * * * The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients’ needs. Thus, legal physician assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses.

    The State also has an interest in protecting the integrity and ethics of the medical profession … [T]he American Medical Association, like many other medical and physicians’ groups, has concluded that “[p]hysician assisted suicide is fundamentally incompatible with the physician’s role as healer.” And physician assisted suicide could, it is argued, undermine the trust that is essential to the doctor patient relationship by blurring the time honored line between healing and harming.

    Next, the State has an interest in protecting vulnerable groups–including the poor, the elderly, and disabled persons–from abuse, neglect, and mistakes. The Court of Appeals dismissed the State’s concern that disadvantaged persons might be pressured into physician assisted suicide as “ludicrous on its face.” We have recognized, however, the real risk of subtle coercion and undue influence in end of life situations. Cruzan. … If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs.

    The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.” The State’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s.

    Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down Washington’s assisted suicide ban only “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” Washington insists, however, that the impact of the court’s decision will not and cannot be so limited. If suicide is protected as a matter of constitutional right, it is argued, “every man and woman in the United States must enjoy it.” * * * Thus, it turns out that what is couched as a limited right to “physician assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. Washington’s ban on assisting suicide prevents such erosion.

    We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code §9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.”

    * * *

    Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

    It is so ordered.

    Justice O’Connor, concurring. *

    {JUSTICE GINSBURG concurs in the Court’s judgments substantially for the reasons stated in this opinion. JUSTICE BREYER joins this opinion except insofar as it joins the opinions of the Court.}

    Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms.

    The Court frames the issue in this case as whether the Due Process Clause of the Constitution protects a “right to commit suicide which itself includes a right to assistance in doing so,” and concludes that “our Nation’s history, legal traditions, and practices do not support the existence of such a right.” I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question 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. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here … The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. In this light, even assuming that we would recognize such an interest, I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide.

    Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues. In such circumstances, “the … challenging task of crafting appropriate procedures for safeguarding … liberty interests is entrusted to the `laboratory’ of the States … in the first instance.” Cruzan (O’Connor, J., concurring) (citing New State Ice Co. v. Liebmann (1932)).

    In sum, there 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. There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here.

    Justice Stevens, concurring in the judgment.

    The Court ends its opinion with the important observation that our holding today is fully consistent with a continuation of the vigorous debate about the “morality, legality, and practicality of physician assisted suicide” in a democratic society. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. * * *

    Today, the Court decides that Washington’s statute prohibiting assisted suicide is not invalid “on its face,” that is to say, in all or most cases in which it might be applied. That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid. * * *



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