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COPYRIGHT 2000 Harvard Society for Law and Public Policy, Inc.
I. INTRODUCTION
Whether to permit assisted suicide and euthanasia is among the most contentious legal and public policy questions in America today. The American public consciousness became galvanized on June 4, 1990, with the news that Dr. Jack Kevorkian had helped Janet Adkins, a fifty-four-year-old Alzheimer's patient, take her life.(1) It was later disclosed that Dr. Kevorkian had neither taken the medical history nor made an examination of Ms. Adkins, and that he had never consulted Ms. Adkins's primary care physician.(2) Dr. Kevorkian had simply agreed to meet Ms. Adkins in a Volkswagen van he had outfitted with a "suicide machine" consisting of three chemical solutions fed into an intravenous line needle. It took Dr. Kevorkian several attempts to insert the needle into Ms. Adkins, but he eventually succeeded.(3) Ms. Adkins then pressed a lever releasing lethal drugs into her body.
While the media often uses the term "assisted suicide" to describe Dr. Kevorkian's practices, it is a misnomer. Dr. Kevorkian seeks to legalize not only the practice of aiding another in taking his or her life (assisting suicide), but also the practice of intentionally killing another person motivated by feelings of compassion or mercy (euthanasia). Indeed, in 1999 Dr. Kevorkian performed an act of euthanasia for a nationwide television audience on 60 Minutes, with the express desire of provoking debate over legalizing that practice too. (He was later convicted of second-degree murder after a trial in which he chose to act as his own counsel).(4)
Since Ms. Adkins's death made national headlines, Dr. Kevorkian claims to have assisted more than 130 suicides.(5) While Dr. Kevorkian is perhaps the most notorious proponent of assisted suicide and euthanasia, he is hardly without allies. Derek Humphry, founder of The Hemlock Society, a group devoted to promoting the legalization of euthanasia, has praised Dr. Kevorkian for "breaking the medical taboo on euthanasia."(6) The American Civil Liberties Union has taken up his legal defense.(7)
In 1984, the Netherlands became the first country in the world to give legal sanction to some forms of assisting suicide and euthanasia. The Dutch Supreme Court declared that although killing a patient remains a criminally punishable offense under the nation's Penal Code, physicians can claim an "emergency defense" under certain circumstances.(8)
In a 1991 issue of The New England Journal of Medicine, Dr. Timothy Quill, a University of Rochester professor, defended his decision to prescribe barbiturates to a cancer patient even though she admitted that she might use them at some indefinite time in the future to kill herself.(9) A New York grand jury was convened but declined to bring an indictment for assisting suicide. The State's Board for Professional Medical Misconduct considered pressing disciplinary charges but declined, reasoning that Dr. Quill had written a prescription for drugs that had a legitimate medical use for his patient (as a sleeping aid for her insomnia) and that he could not have definitively known she would use the medication to kill herself. Ruling, in essence, that the evidence was too equivocal to conclude that Dr. Quill intended to cause the death of his patient, charges were dropped.(10)
In 1992, a gynecology resident submitted an anonymous article to the Journal of the American Medical Association that sparked a long-running debate in the most prominent American medical journals. Entitled It's Over Debbie, the article described how the author administered a lethal injection to a terminal cancer patient (an act of euthanasia, not assisted suicide) that he had never met before after her demand to "get this over with."(11)
After its publication in the early 1990s, The Hemlock Society's book, Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying,(12) rocketed to the New York Times' best-seller list. The book provides step-by-step instructions (in easy to read large print) on various methods of "self-deliverance."(13) On January 18, 2000, its sales on Amazon.com ranked 4,347 among all titles (very high indeed).(14) Chapter titles range from "Self-Deliverance by Plastic Bag" (a recommended method) to "Bizarre Ways to Die" (discussing the relative merits of guns, ropes, and firecrackers) and "Going Together" (ideas for double suicides).(15) A New England Journal of Medicine study found that instances of asphyxiation by plastic bag, a method highly touted in Final Exit, measurably increased after the book's publication.(16)
The growing debate over assisted suicide and euthanasia has produced increasing political and legal activism. In 1988, an early voter referendum campaign in California aimed at toppling the State's law banning assisted suicide failed to secure a spot on the ballot after collecting "only 129,776 valid signatures of the required 372,178."(17) Another effort four years later not only secured a spot on the ballot, but also garnered 48 percent of the vote. A similar 1991 effort in Washington State obtained 46.4 percent of the vote.(18) By 1994, the referendum campaigns bore their first fruit when Oregon voters narrowly approved the legalization of assisted suicide, 51 percent to 49 percent, though subsequent legal challenges delayed implementation for three years.(19)
Since 1992, bills have been introduced to legalize assisted suicide or euthanasia in various state legislatures, including Alaska, Arizona, Colorado, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, Rhode Island, Vermont, and Washington.(20) All have failed -- so far. Some states have actually strengthened or reaffirmed their laws prohibiting assisted suicide. Dr. Kevorkian's home State of Michigan is an example.(21) In New York, a blue-ribbon panel was convened to consider revamping or repealing its laws banning assisting suicide, but the panel ultimately rejected any change by a unanimous vote.(22) Maryland passed a statute for the first time codifying that state's common law ban on assisted suicide.(23) In the last four years, Iowa, Oklahoma, and Virginia also strengthened their laws against the practice.(24) Congress has gotten into the net, too; it is currently considering legislation that would effectively overrule Oregon's referendum permitting assistance in suicide.(25)
Perhaps frustrated by the results of their early referendum and legislative efforts, in the mid-1990s euthanasia proponents turned to the courts in Washington and New York, seeking to have laws against assisting suicide declared unconstitutional.(26) Wildly disparate lower court rulings resulted. One federal district court found a constitutional right to assisted suicide; another found that no such right exists.(27) The appellate courts reviewing these decisions produced even more fractured opinions.(28) Eventually the cases culminated in argument before the United States Supreme Court. The Court's 9-0 decisions upheld the Washington and New York laws banning assisted suicide and were hailed as a major victory for assisted suicide opponents.(29) Few noticed at the time, however, that critical concurring Justices viewed the cases as raising only facial challenges to laws against assisting suicide and reserved the right to consider in later cases whether those laws are unconstitutional as applied to terminally ill adults who wish to die.(30) Thus, far from definitively resolving the issue, the Court's decisions only assure that the coming decade will witness even more debate over assisted suicide and euthanasia than the last.
Part II of this Article discusses the Washington and New York cases. These cases identify the turf where scholars, courts, and legislatures will fight future battles over assisted suicide and euthanasia. Specifically, they suggest that debate will focus on four issues: history, fairness, autonomy, and utility. The central questions will likely be whether historical precedent supports legalization; whether concerns of equal protection or fairness dictate that, if we permit patients to refuse life-sustaining care like food and water, we must also allow assisted suicide and euthanasia; whether respect for personal autonomy and self-determination compels legalization of these other practices; and whether legalization represents the solution that would provide the greatest good for the greatest number, even if some people might be harmed or offended.
With that background, the Article then discusses in turn each of these questions. Part III reviews the legal history of assisted suicide and euthanasia and concludes that little historical antecedent supports treating them as "rights." Part IV argues that many efforts to distinguish assisted suicide and euthanasia from the refusal of life-sustaining care are unsound but that at least one rational distinction does exist. As a result, principles of fairness and equal treatment do not require legalization of one practice merely because we allow the other. Part V addresses the claim that principles of autonomy compel legalization. As developed by many moral-legal philosophers, faithful adherence to principles of personal autonomy would compel legalization but also would result in an overbroad euthanasia right few would sanction. Part VI confronts utilitarian arguments for assisted suicide and euthanasia and concludes that they are both practically and analytically flawed.
Having addressed the major moral-legal arguments raised in the assisted suicide and euthanasia debate to date, the Article then argues in Part VII that a basic moral and common law principle has been largely overlooked. Whatever the claims of fairness or autonomy or utility may be, this principle holds that the intentional taking of human life by private persons is always wrong. Part VII also examines the roots of the principle and its application. It argues that the principle explains and makes sense of the current legal distinctions between cases where treatment may be withdrawn and where it may not, where potentially lethal care may be given and where it may not, as well as why assisted suicide and euthanasia should not be permitted. It suggests that, whether the venue is judicial or legislative, the appropriate line society should draw -- and today largely does draw -- is between acts intended to kill and acts where no such intention exists.
II. THE COURTS
A. The Washington Due Process Litigation
1. The Trial Court
In 1994, a group of Washington State physicians and patients along with a non-profit organization dedicated to the legalization of euthanasia filed suit in federal district court. They sought a declaratory judgment that the state statute forbidding a physician from knowingly assisting a patient's suicide was unconstitutional.(31)
Federal District Judge Barbara Rothstein agreed. Under the Fourteenth Amendment, no state may "deprive any person of life, liberty, or property, without due process of law."(32) Despite the procedural tone of the Fourteenth Amendment's language, Judge Rothstein observed that, "through a long line of cases," the Supreme Court has interpreted the Amendment's "liberty" component to contain certain "substantive" rights that the states may not abridge except for the most compelling reasons, including rights pertaining to "marriage, procreation, contraception,family relationships, childrearing, and education."(33)
For guidance, Judge Rothstein turned to the then-most recent major exposition of substantive due process jurisprudence, Planned Parenthood v. Casey,(34) in which the Court reaffirmed the right to abortion. Judge Rothstein observed that, while discussing abortion, the three-justice plurality in Casey suggested that matters
involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of the liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.(35)
Judge Rothstein found this reasoning "highly instructive."(36) "Like the abortion decision, the decision of a terminally ill person to end his or her life involves the most intimate and personal choices a person may make in a lifetime and constitutes a choice central to personal dignity and autonomy."(37)
Judge Rothstein also found instructive the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health.(38) There, the Court assumed without deciding that the liberty component of the Fourteenth Amendment embraces the right of a competent adult to refuse life-sustaining medical treatment.(39) From this apparent right, Judge Rothstein posed the question whether there is "a difference for purposes of finding a Fourteenth Amendment liberty interest between refusal of unwanted treatment which will result in death and committing physician-assisted suicide in the final stages of life."(40) Judge Rothstein concluded that there is not, because both are "profoundly personal," and at "the heart of personal liberty."(41)
2. The Ninth Circuit Panel Decision
A divided panel of the Ninth Circuit reversed.(42) Judge Noonan, a noted Catholic legal thinker before and after ascending to the bench, wrote a stinging decision stressing three points.
First, Judge Noonan argued that Casey's discussion of autonomy was a mere "gloss" on substantive due process jurisprudence, one that was later "implicitly controverted by Cruzan."(43) Judge Noonan pointed out that Cruzan had relied upon an examination of history and tradition -- not abstract conceptions of "personal liberty" -- to determine whether a constitutional right exists.(44) Turning to the historical record, Judge Noonan concluded that "in 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. Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past."(45)
Second, Judge Noonan suggested that taking Casey's personal liberty "gloss" so seriously would lead to absurd results. If "personal dignity and autonomy" is the touchstone of constitutional analysis, he reasoned, every man and woman in the country must enjoy them.(46) Thus, "[t]he depressed twenty-one year old, the romantically devastated twenty-eight year old, the alcoholic forty year old who choose suicide are also expressing their views of the existence, meaning, the universe, and life."(47)
Third, Judge Noonan rejected any attempt to analogize refusing medical care and affirmatively seeking assistance in suicide on the grounds that one involves an omission of care and the other an affirmative act: "When you assert a claim that another ... should help you bring about your death, you ask for more than being let alone.... You seek the right to have a second person collaborate in your death."(48)
3. The En Banc Court
Two and a half years after the suit was filed, an en banc panel of the Ninth Circuit vacated Judge Noonan's decision and affirmed the trial court's judgment by a vote of 8 to 3.(49) The majority opinion was written by Judge Reinhardt, as well known for his expansive view of the Constitution as Judge Noonan is for his conservative views.
The en banc court's exhaustive 50-page opinion tracked Judge Rothstein's analysis. It rejected Judge Noonan's assertion that history is "our sole guide" in substantive due process inquiries.(50) Indeed, the Court argued that if history were the only guide, the Supreme Court never would have declared anti-miscegenation laws unlawful in Loving v. Virginia(51) because such laws were commonplace at the time the Fourteenth Amendment was adopted.(52) Neither would the Supreme Court have recognized a right to an abortion; more than three-quarters of the states restricted abortions when the Fourteenth Amendment was passed.(53)
Further, the en banc panel argued that the historical record concerning suicide itself is "more checkered" than Judge Noonan had suggested.(54) Judge Reinhardt pointed to the fact that Socrates and Plato sanctioned suicide under some circumstances, the Stoics glorified it, and Roman law sometimes permitted it.(55) While conceding that assisted suicide was unlawful under English and American common law, Judge Reinhardt stressed that the majority of states has not treated suicide or attempted suicide as criminal since at least the turn of the century.(56)
Turning to Casey and Cruzan, Judge Reinhardt argued that Judge Rothstein's analysis had been right all along. Basic life decisions are constitutionally protected, and "[l]ike the decision of whether or not to have an abortion, the decision how and when to die is one" of them.(57) In responding to Judge Noonan's assertion that, under this logic, a right to assisted suicide would have to be extended to the desperate or depressed, the en banc court argued that the state has a legitimate interest "in preventing anyone, no matter what age, from taking his own life in a fit of desperation, depression, or loneliness or as a result of any other problem, physical or psychological, which can be significantly ameliorated."(58) But, the court stressed, "the state's interest in preserving life, is substantially diminished in the case of terminally ill, competent adults who wish to die."(59) Likewise, the en banc court rejected Judge Noonan's proffered act-omission distinction, stating that "Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one's own death."(60)
In one critical respect, the en banc court went even further than the trial court. Judge Reinhardt virtually admitted that approving an assisted suicide right would necessarily lead to approving a right to euthanasia, though he strained to point out that the formal recognition of the latter right would have to await another day:
We agree that it may be difficult to make a principled distinction between physician-assisted suicide and the provision to terminally ill patients of other forms of life-ending medical assistance, such as the administration of drugs by a physician.... The question whether that type of physician conduct may be constitutionally prohibited must be answered directly in future cases, and not in this one. We would be less than candid, however, if we did not acknowledge that for present purposes we view the critical line in right-to-die cases as the one between the voluntary and involuntary termination of an individual's life.(61)
While the Washington litigation progressed through the trial and appellate processes, a similar effort was being waged on the other side of the country.
B. The New York Equal Protection Litigation
1. The Trial Court
The New York litigation, filed June 20, 1994, was led by Dr. Timothy Quill, author of the New England Journal of Medicine article defending his decision to prescribe barbiturates to a terminally ill patient.(62) Like the Washington plaintiffs, Dr. Quill and his fellow physician-plaintiffs challenged New York's law prohibiting the intentional assistance or promotion of suicide.(63) Like the Washington plaintiffs, they contended that New York's law violated the substantive component of the Fourteenth Amendment Due Process Clause.(64)
Chief Judge Griesa of the Southern District disagreed. Judge Griesa rejected any attempt to rely on Casey, dismissing its discussion of personal autonomy as "too broad" to ordain the outcome of this case: "The Supreme Court has been careful to explain that the abortion cases, and other related decisions on procreation and child rearing, are not intended to lead automatically to the recognition of other fundamental rights on different subjects."(65) Like Judge Noonan, Judge Griesa treated the due process claim as depending upon an examination of history.(66) Again like Judge Noonan, Judge Griesa concluded (with little explanation) that the plaintiffs had failed to prove "that physician assisted suicide, even in the case of terminally ill patients, has any historic recognition as a legal right."(67)
Dr. Quill and his fellow physician-plaintiffs contended that, even if no due process right exists, the Equal Protection Clause of the Fourteenth Amendment renders assisted suicide statues unlawful.(68) Specifically, they noted that under New York statutory law a competent person may refuse medical treatment -- even if doing so certainly will result in death.(69) To treat like persons alike, they argued, assisted suicide must also be permitted.(70) "To certain ways of thinking, there may appear to be little difference between refusing treatment in the case of a terminally ill person and taking a dose of medication which leads to death."(71)
In response, Judge Griesa held that New York State needed to present only a "reasonable and rational" basis for the distinction in its law, nothing more.(72) He found such a distinction exists on the grounds that a patient refusing treatment is merely "allowing nature to take its course" while the act of suicide involves "intentionally using an artificial death-producing device."(73)
2. The Second Circuit
The Second Circuit reversed.(74) It did not address the due process theory advanced by Dr. Quill below and adopted by the en banc Ninth Circuit court. Instead, it adopted the plaintiffs' Equal Protection theory. Rejecting the trial court's natural-artificial distinction, the court argued that
there is nothing "natural" about causing death by means other than the original illness or its complications. The withdrawal of nutrition brings on death by starvation, the withdrawal of hydration brings on death by dehydration, and the withdrawal of ventilation brings about respiratory failure.... It certainly cannot be said that the death that immediately ensues is the natural result of the progression of the disease or the condition from which the patient suffers.(75)
New York responded by proffering another distinction between assisting suicide and refusing treatment, claiming (as Judge Noonan had) that one involves an affirmative act while the other is only an omission. But the Second Circuit rejected this too. "[T]he writing of a prescription to hasten death ... involves a far less active role for the physician than is required in bringing about death through asphyxiation, starvation, and/or dehydration."(76) Quoting Justice Scalia's concurrence in Cruzan, the court held that the act-omission distinction is "`irrelevan[t]'" because "`the cause of death in both cases is the suicide's conscious decision to pu[t] an end to his own existence.'"(77)
C. The Supreme Court
By mid-1996, the Ninth and Second Circuit cases were ripe for the Supreme Court's review. The Court consolidated the cases and heard argument on January 8, 1997. On June 26, 1997, the Chief Justice delivered two opinions for the Court, overruling both the Ninth and Second Circuits.(78) He was joined by Justices O'Connor, Scalia, Kennedy, and Thomas.
While widely portrayed in the media as a conservative Rehnquist Court victory for enemies of euthanasia,(79) the little-reported truth is that any such "victory" may well prove pyrrhic. Largely unnoticed in the Court's fractured opinions is the fact that several Justices believed Glucksberg and Quill presented only the question whether laws against assisting a suicide are facially constitutional, not whether they are constitutional as applied to any particular class of persons.(80) In their various opinions, moreover, each of these Justices variously hinted, suggested, or at least kept the door open to the possibility that prohibitions against assisting suicide and euthanasia are unconstitutional as applied to competent and terminally ill adults.
1. The Majority Opinion
Due Process. The Chief Justice began his opinion for the Court on the substantive due process question by expressing open skepticism about the Ninth's Circuit en banc Court's reliance on Casey and Cruzan's discussions of personal autonomy: "We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices."(81)
Unlike Judge Reinhardt's historical analysis, however, Chief Justice Rehnquist did not consult the views of ancient philosophers. He did not look at Roman law or practice. Instead, he began with English common law experience. Even there, the Chief Justice began and ended his analysis in a single paragraph, summarily concluding that suicide and its assistance were never sanctioned in English common law.(82)
The Chief Justice devoted more attention to American legal history.(83) While conceding Judge Reinhardt's point that the sanctions associated with suicide were eventually repealed by all American jurisdictions, the Chief Justice declined the Ninth Circuit's invitation to read much into that: "[T]hough States moved away from Blackstone's treatment of suicide [as a crime], courts continued to condemn it as a grave public wrong."(84) Of more direct significance, the Chief Justice held, is the fact that American jurisdictions have always treated assisting suicide as a felony.(85) Having found that "[t]he 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," the Chief Justice "conclude[d] that the asserted `right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause."(86)
Turning directly to Cruzan and Casey, the Chief Justice rejected the respondents' claim that the Due Process Clause creates a constitutional guarantee of "self-sovereignty" including all "basic and intimate exercises of personal autonomy."(87) Cruzan "was not simply deduced from abstract concepts of personal autonomy."(88) Rather, the Chief Justice saw its result as dictated by a purely historical analysis: "[G]iven 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."(89)
The Chief Justice brushed aside, too, reliance on supposedly "highly instructive" or "prescriptive" passages in Casey: "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, and Casey did not suggest otherwise."(90)
Equal Protection. The Chief Justice's equal protection analysis was even more succinct than his due process discussion. New York's distinction between refusing life-sustaining medical treatment and suicide, he wrote, survives rational basis review because it "comports with fundamental legal principles of causation."(91) When a patient refuses treatment, "he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication."(92) While essentially adopting Judge Griesa's natural-unnatural distinction, curiously the Chief Justice nowhere addressed the Second Circuit's argument that inducing death by withdrawal of life-sustaining care is no more "natural" than inducing death by active means.
Instead, the Chief Justice proceded on, holding that the distinction between refusing care and assisting suicide is further justified on grounds of intent. "The law has long used actors' intent or purposes to distinguish between two acts that may have the same result."(93) For example, the common law of homicide distinguishes "between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life."(94) And, in this case, a physician who withdraws care pursuant to an express patient demand "purposefully intends, or may so intend, only to respect his patient's wishes."(95) By contrast, a doctor assisting a suicide "must necessarily and indubitably, intend primarily that the patient be made dead."(96)
2. The Concurrences
The Chief Justice's opinions spoke for the Court only by virtue of Justice O'Connor's fifth vote. Justice O'Connor, however, filed a separate statement joined by Justices Ginsberg and Breyer that, substantially limits the precedential effect of the Chief Justice's opinions.(97) Justice O'Connor argued that the only question presented in the cases before the Court was whether the New York and Washington laws that outlaw assisting suicide are facially unconstitutional -- i.e., invalid in all possible applications. On this question, Justice O'Connor conceded that laws against assisting suicide have at least some constitutional applications. For instance, to Justice O'Connor, the fear "that a dying patient's request for assistance in ending his or her life would not be truly voluntary justifies" at least some governmental restrictions.(98) But Justice O'Connor expressly left open the possibility that laws against assisting suicide also have some unconstitutional applications and hinted that a dying patient whose request is "truly voluntary" might present just such a case.(99)
Justices Souter and Stevens also filed separate concurrences. Justice Souter focused on attacking the Chief Justice's contention that substantive due process analysis turns on an examination of history or tradition. To him, substantive due process analysis is incapable of "any general formula," except to say perhaps that it should be "like any other instance of judgment dependent on common-law method," with arguments "being more or less persuasive according to the usual canons of critical discourse."(100) In the end, however, Justice Souter concluded that, even using his mode of analysis, states have rational reasons for refusing to permit at least some forms of assisted suicide.(101) However, he also stressed that states are in the process of reconsidering their assisted suicide laws.(102) He strongly suggested that such reconsideration is a good idea and that legalization of assisted suicide in some circumstances should be its result.(103) Indeed, he added that he would not tolerate "legislative foot-dragging" in the area and noted that "[s]ometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims."(104)
Justice Stevens stated openly that he viewed Glucksberg and Quill as raising only facial challenges. Moreover, he heavily hinted how he would rule in an as-applied challenge limited to terminally ill adult patients and raised the specter of the Court's decades-long battle over capital punishment through case after case:
[J]ust as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so is it equally clear that a decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be valid.(105)
Justice Stevens went on to argue that, while Cruzan and Casey are not "prescriptive" of a right to assistance in suicide as Judge Reinhardt had suggested, they "did give recognition, not just to vague, unbridled notions of autonomy, but to the more specific interest in making decisions about how to confront an imminent death."(106) Lest any doubt remain about how he would rule in an as-applied challenge brought by a competent, terminally ill patient, Justice Stevens added that "[t]he liberty interest at stake in a case like this differs from, and is stronger than ... the common-law right to refuse medical treatment" underlying the Cruzan decision.(107)
On the equal protection question, Justice Stevens claimed that the Court's distinction between refusing care and assisting suicide based on intent was "illusory."(108) A doctor discontinuing treatment "could be doing so with an intent to harm or kill that patient. Conversely, a doctor who prescribes lethal medication does not necessarily intend the patient's death -- rather that doctor may seek simply to ease the patient's suffering and to comply with her wishes."(109) The "illusory" nature of the distinction is further proved, Justice Stevens submitted, by the fact that the American Medical Association ("AMA") endorses administering pain-killing medication to terminally ill patients even when it results in death: "The purpose of terminal sedation is to ease the suffering of the patient and comply with her wishes."(110) This same intent, Justice Stevens argued, "may exist when a doctor complies with a patient's request for lethal medication."(111)
While rejecting a distinction based on intent, Justice Stevens concurred in the Court's Equal Protection decision overruling the Second Circuit. He accepted, without discussion, the Court's distinction based on causation.(112) Unfortunately, like the Court, he declined to address the Second Circuit's provocative criticisms of this distinction.
D. The Consequences of Glucksberg and Quill
The most immediate consequence of the Supreme Court's decision was to return the assisted suicide and euthanasia issue to the states and the political process. A less obvious, but perhaps even more important, consequence is the fact that five votes on the Court appear to be leaning in favor of recognizing a constitutional right to assistance in suicide for competent, terminally ill persons suffering severe pain.
Whether the assisted suicide and euthanasia issue is resolved in the legislative or judicial arena, Glucksberg and Quill make clear that only the opening salvo has been fired in what is likely to be a lengthy war analogous to the fight over capital punishment. They also expose the sort of moral-legal arguments we can expect to hear on both sides of the debate in any legislative chamber or judicial proceeding. Four central issues emerge:
First, there is a division between those who see no historical precedent for permitting assisted suicide and euthanasia and those who question whether history so clearly condemns the practices. The Chief Justice (like Judge Noonan) stands on one side of this debate while Judge Reinhardt is firmly on the other.
Second, there is a difference of opinion over whether principles of fairness (equal protection) require us to permit assisting suicide and euthanasia if we allow patients to refuse life-sustaining medical care. The Second Circuit thought principles of fairness so required. Justice Stevens came close to agreeing with the Second Circuit, disputing any distinction based on intent. The New York trial court disagreed, as did a majority of the (present) Supreme Court.
Third, there are those, like Judges Rothstein and Reinhardt and Justice Stevens, who are convinced that the themes of self-determination, personal choice and autonomy underlying Casey and Cruzan provide grounds for a right to assistance in suicide and euthanasia. Meanwhile, others such as Chief Justice Rehnquist, find such principles completely unavailing.
Finally, many are curious whether society would be bettered or worsened by legalization. Justices O'Connor and Souter expressed open interest in what "experimentation" in the states might "prove" about the utility of assisted suicide and euthanasia.
These four issues represent axes around which debate has so far revolved. Although all four issues emerged in the judicial arena, each will surely be hotly debated in the legislative arena. Is euthanasia antithetical to our Nation's tradition? Is it only fair to legalize assisted suicide and euthanasia as we allow patients to refuse life-sustaining care? Are rights to assistance in suicide and euthanasia essential to personal choice and identity? Would the recognition of these rights do more good or harm for most people? All of these are questions that principled legislators will ask, and they are questions that will reemerge in the next case to reach the Supreme Court. The following several Parts of this Article are devoted to developing potential answers to these questions.
III. ARGUMENTS FROM HISTORY
A. Which History?
The relevance of history to the constitutional debate over assisting suicide and euthanasia is the subject of much dispute. Some -- such as Chief Justice Rehnquist -- see history as critical to any substantive due process analysis. Others -- such as Justice Souter -- think it bears little or no relevance.(113) Even among those agreeing that history is relevant, methodological disputes quickly arise. Joined by Chief Justice Rehnquist, several years ago Justice Scalia included a controversial footnote in his opinion for the Court in Michael H. v. Gerald D.,(114) asserting that courts conducting substantive due process inquiries should "refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."(115) In Glucksberg, the Court appeared to follow this dictum, focusing only on the narrow question whether history supports a right to assistance in suicide, and eschewing more general historical discussions about autonomy and "self definition."(116)
Justices O'Connor and Kennedy filed a separate statement in Michael H. to register their view that the Court had not always examined -- and need not always rely on -- the most specific level of tradition available.(117) Sometimes, they argued, the Court has legitimately examined history at a more "general" level.(118) Justice Souter seemed to take this tack in the assisted suicide cases, pointing to the fact that individuals have settled rights to refuse unwanted medical care and procure abortions as evidence of a more general tradition permitting "`[e]very human being of adult years and sound mind ... to determine what shall be done with his own body.'"(119) Similarly, Judge Reinhardt placed stress on the general legal history of suicide rather on the more specific history of assisting suicide and euthanasia.(120)
It is unclear, however, whether Justices O'Connor and Kennedy meant to suggest in Michael H. that a court actually may disregard an on-point "specific" tradition in favor of a contrary "general" one. The primary case they cited for support, Eisenstadt v. Baird,(121) certainly does not suggest such license. There, relying on prior cases suggesting a general right to "reproductive privacy" for married couples, the Court declared that laws prohibiting the sale of contraception to unmarried persons violated the Due Process Clause.(122) Yet, at the time Eisenstadt was decided, a long-standing and more specific tradition existed in many states outlawing the sale of contraceptives to unmarried persons.(123) Justices O'Connor and Kennedy neglected to mention that the Court in Eisenstadt did not consider or even identify this more specific tradition;(124) the fact that Eisenstadt overlooked a "specific" tradition in favor of a more general one does not offer much of a reasoned basis for sanctioning the practice. Neither did Justices O'Connor and Kennedy in Michael H. (or Justice Souter in Glucksberg) provide any reason why more general traditions should be permitted to trump more on-point traditions. Besides, Eisenstadt's result itself can be defended fully without resort to any contortions concerning historical "levels." Indeed, the case is best understood not as a substantive due process case at all, but as an equal protection case simply requiring equal access to contraceptives for married and unmarried persons alike.
Just as scholars and decisionmakers disagree over the level of historical abstraction to apply, they also disagree on what history is relevant. In due process cases, the Supreme Court has frequently looked not only to this Nation's history, but also to English common law. But why stop there? Why not resort to Roman or Greek precedent? Chief Justice Burger did in his concurrence in Bowers v. Hardwick.(125) So did Justice Blackmun in his opinion for the Court in Roe v. Wade.(126) If Ancient Greece and Rome are relevant, why not survey other, non-Western traditions? Even if agreement can be reached on how far back in history to look and whose history is relevant to the constitutional analysis, the question remains how far forward to go. When interpreting the Fourteenth Amendment, should the analysis include only pre-ratification history, or more recent history as well? In Glucksberg, the Court focused primarily on United States history but strayed briefly into the history of English common law,(127) while Judge Reinhardt devoted pages of the federal reports to ancient suicide practices.(128)
All of the methodological questions that plague the substantive due process doctrine's reliance on history -- whether history should be consulted at all, at what "level" a court must operate, how far back and how far forward to look, and whose history should be examined or eschewed -- would also confront any legislator seriously interested in examining history as a potential guide to statutory reform. This Article suggests, however, that only one fair conclusion may be reached on the historical record, no matter what methodology is employed. History provides remarkably little support for the sort of assisted suicide right that Justices O'Connor, Souter, and Stevens suggested they might consider or that our legislatures might sanction.
B. The Ancients
Judge Reinhardt claimed that ancient Greek and Roman suicide practices support -- or at least are not antithetical to -- a right to assistance in suicide. In fact, Athenian law treated suicide as a crime, "punishing" the "guilty" by amputating the corpse's right hand and denying traditional burial rituals.(129) Plato defended this practice on multiple occasions. In Phaedo, Plato (through Socrates) argued that a philosopher should embrace natural death when it comes because it will free him from the shadowy cave of human existence and bring him into contact with truth.(130) But, he added, to seek out death is wrong, and suicide is akin to "run[ning] away" from one's assigned post and duties.(131) In Laws, Plato condemned suicide on the grounds that he who commits the act "from sloth or want of...
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