Can Glucksberg survive Lawrence? Another look at the end of life and personal automony.

ABSTRACT: In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority--all of whom still sit on the Court--might overrule Glucksberg. For various reasons, however, this seems improbable.

Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states.

In addition, various considerations might cause a court to balk at constitutionalizing PAS for the terminally ill. Such a right is not easily cabined. If personal autonomy extends to the time and manner of one's death, why doesn't it also apply whenever a competent person believes that death is better than continued life? Once the right to PAS is grounded on self-determination or personal autonomy in controlling one's own life and death, it no longer seems plausible to limit it to the terminally ill. Why should people who have to endure pain, suffering, or indignity for a much longer time than the terminally ill (often defined as those with six months or less to live) be denied this right? The argument made by many proponents of PAS that the right to forgo medical treatment and the right to PAS are merely subcategories of the same broad right is not convincing. Most of the two million people who die every year in this country do so in hospitals and long-term care institutions and do so after a decision to forgo life-sustaining treatment has been made. If medical treatment could not be rejected, vast numbers of patients would be at the mercy of every technological advance. (For example, Nancy Cruzan could have been kept alive in her persistent vegetative state for thirty years.) Allowing a patient to die at some point is a practical condition upon the successful operation of medicine. The same can hardly be said of PAS.

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A decade ago, in Washington v. Glucksberg, (1) the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. (2) One would expect such a ruling to be quite secure. But Glucksberg faces an uncertain future.

The Court also declined to find a right to PAS in the companion case of Vacco v. Quill. (3) In Quill, the Court rejected the argument that because New York permitted competent persons to refuse lifesaving medical treatment but prohibited competent persons not on life support from doing "essentially the same thing," the state's assisted-suicide ban violated equal protection. As in Glucksberg, there was no dissenting opinion.

Despite the apparently clear signal sent by these opinions, ten years later it remains uncertain whether Glucksberg and Quill are in fact still good law. This Symposium will explore many of the issues surrounding the two cases: their place in constitutional doctrine, (4) the ways in which they highlight problems in constitutional theory (5) and contemporary moral theory, (6) and their practical effect for physicians and patients. (7) Before turning to these pieces, I will lay out the arguments why these cases--especially Glucksberg--could conceivably be overturned, but why, in the end, they are likely to remain good law.