A. The Legal Issue

Medical patients in the throes of terminal illness have been known to ask their doctors for pills they can use to bring on death. In two recent cases, Washington v. Glucksberg (1997) and Vacco v. Quill (1997), the U.S. Supreme Court considered claims that the Fourteenth Amendment to the U.S. Constitution prohibits states from threatening doctors with criminal punishment for every act of compliance with such a request. In each case, the Supreme Court sat in review of a judgment by a United States Court of Appeals that had held unconstitutional a state's flat legal prohibition against a doctor's (or anyone's) assisting another person in a suicide. In Glucksberg, the Court of Appeals for the Ninth Circuit had concluded that the State of Washington's statute imposing criminal liability on any person who "knowingly causes or aids another person to attempt suicide" infringes a Fourteenth Amendment right of certain terminally ill medical patients not to be "deprived of liberty" by any state "without due process of law." In Quill, the Court of Appeals for the Second Circuit had upheld a closely related claim, this one based on the Amendment's guarantee of "the equal protection of the laws". New York statutes make it a crime for a doctor to comply with a patient's request to be supplied with the means (pills) of terminating life, but do not make it a crime for a doctor to comply with a competent patient's request to discontinue or refrain from medical treatment that the patient knows is necessary to sustain life. The Second Circuit held that this combination of legal rules worked an unconstitutional discrimination between two classes of terminally ill and suffering persons who desire to die -- those who are in a position to hasten death by refusing treatment and those who need additional "treatment" (such as being supplied with pills) in order to achieve the desired result. 

Anyone considering these claims needs to have in mind an additional, complicating circumstance. As the records and briefs in the two cases make clear, it is a frequent practice of doctors to provide terminally ill patients, or at any rate those who so request, with as much sedation as may be required to save the patients from severe pain and suffering, without regard to whether the drugs required for effective sedation have the further consequence of hastening death. And that is not all. It can happen that the minimum effective concentration of pain-killers has the effect of putting patients into an unconscious or comatose state, and doctors in such cases sometimes then refrain from giving water or nutrition to the patient intravenously, although it is understood that patients may in consequence die sooner than they otherwise would have. In many parts of the country, if not all, this practice of "terminal sedation" of terminally ill and severely suffering patients is allowed to pass without response by law enforcement authorities charged with enforcing laws against both homicide and assisting in another's suicide. It is, obviously, impossible to know in what fraction of these cases the "terminal sedation" is engaged in with the intention of hastening death, in accordance with the patient's (or his or her family's) express or presumed wishes.

Those who supported the claims of unconstitutionality in Glucksberg and Quill  (for example, a brief submitted by Ronald Dworkin, et al., which is further considered below) did not seek to establish a general constitutional right either to commit or to assist suicide. They rather sought recognition for such rights on behalf of a select group of persons -- those for whom death is imminent and for whom life as long as it endures will be consumed in pain and physical distress, those of whom it may be said that the remnant of dignity that remains to them is the apacity to govern the process of one's own dying so that it may conform to one's "own convictions about why [one's] life is valuable and where its value lies". Nor did supporters present this right of choice as one to be free of all restriction that states might wish to impose on the exercise of such a choice. To the contrary, they readily granted that states can and ought to regulate with a view to ensuring that choices of this kind are competent, informed, and free. Supporters insisted, though, that a state may not profess for itself a goal of zero risk of error, as an excuse for simply prohibiting physician-assisted suicide across the board.

B. The Doctrinal Setting

1. "Fundamental Rights"

Washington v. Glucksberg is an instance of what is called "fundamental rights" adjudication under the "substantive" aspect of the Due-Process-of-Law clause in the Fourteenth Amendment. The Due Process Clause prohibits every state from "depriv[ing] any person of life, liberty, or property without due process of law." A long series of decisions has established that the constitutional prohibition of deprivations of life, liberty, or property "without due process of law" has some range of "substantive" application, meaning some range of application to state laws that admittedly have been enacted and applied by irreproachable procedures, just because these laws are judged to trench unjustifiably on people's constitutionally valued interests in life or liberty or property. 

All state "regulatory" laws -- all laws that impose legal restrictions on conduct -- impose some restriction on personal liberty, in the plainest possible sense of "liberty." They cannot all be unconstitutional. The rule developed by the Supreme Court for such cases is that, ordinarily, the state needs only to cite some recognizably "rational" reason for the law in order to warrant its constitutionality, but that, in those exceptional cases where a state law trenches on "fundamental" aspects of liberty, a reviewing court will apply a more demanding test. The precise formulation of the stricter test appears to be in flux. Where "fundamental rights" are at stake, the Court has sometimes said that states must satisfy reviewing courts that their restrictive laws are "necessary" to the achievement of a "compelling" state interest that cannot adequately be served by any "less restrictive alternative." Recently, the Court has appeared to be moving to a test of whether the challenged state law imposes an "undue burden" on a constitutionally protected liberty. 

As these differing tests have actually been carried out over the years, it has turned out that state laws almost never flunk the ordinary, "rational basis" test, but that they do quite frequently flunk the stricter "compelling interest" and "undue burden" tests reserved for laws that trench on fundamental rights.  Obviously, then, the prevailing doctrine makes a great deal turn on the method used by the courts, led by the Supreme Court, to decide whether a given liberty or aspect of liberty -- such as the freedom of persons in certain circumstances to act toward bringing their lives to an end without interference from the state -- is "fundamental." This question of the method for deciding which liberty interests are "fundamental" rights is one to which we shall return. 

2. The Cruzan Case

The Glucksberg and Quill cases were not the first ones to confront the Supreme Court with the claim of a constitutionally protected status for a person's "right to die." In Cruzan v. Director, Missouri Department of Health (1990), the Court dealt with the case of an auto accident victim who had lain for years in a hospital bed in what doctors described as a "persistent vegetative state" from which there was no chance of recovery. Nancy Cruzan's physical life -- breathing, heartbeat, metabolism -- was sustained by artificial life support equipment. She was otherwise still, silent, and, according to medical opinion, utterly without consciousness or feeling. Her parents requested that she be detached from the life-sustaining equipment, citing their belief that such had been her own wish regarding her fate should she ever fall into such circumstances. Hospital administrators refused, citing Missouri laws requiring clear and convincing evidence (in the form, e.g., of a formally executed "living will") that termination of life would accord with the patient's own wish. Cruzan's parents went to court, claiming that the Missouri laws unjustifiably infringed a fundamental aspect of Nancy Cruzan's liberty without a sufficiently weighty or compelling reason for doing so. 

An opinion by Chief Justice Rehnquist, speaking for a Supreme Court majority, rejected this claim. In what proved to be a very important passage, Rehnquist's opinion assumed -- to all intents and purposes, it conceded, and most other Justices made plain their agreement -- that Anglo-American common law has always recognized an individual's legally protected right against unwanted touchings or invasions of his or her own body, and that this right logically encompasses the right of a competent person to refuse or desist from unwanted medical treatment, for his or own reasons, whatever those reasons may be.^[*]Rehnquist further conceded that, in light of this well-established legal tradition, application of Missouri's "clear and convincing evidence" rule to Nancy Cruzan's case called for substantial justification. Rehnquist had no trouble, however, in concluding that Missouri's rule served state interests important enough to override Cruzan's liberty interest. One such state interest, in Rehnquist's view, was that in avoiding erroneous terminations of the lives of persons caught in Nancy Cruzan's tragic predicament. (Below, we shall give some attention to another and quite different sort of state interest identified by Rehnquist.)