Alison Britton, Research Fellow at the Institute of Law & Ethics in Medicine, and co-author of “The Case for Physician Assisted Suicide”, examines the long-awaited decision from the American legislature.
‘Terminally ill people do not have a constitutional right to doctor assisted suicide’ - This was the conclusion of the United States Supreme Court in an opinion delivered by Chief Justice Rehnquist on 26 June 1997. The Supreme Court upheld laws in New York and Washington that make it a crime for doctors to provide drugs to mentally competent but terminally ill patients who no longer want to live. This article will briefly examine the main arguments raised in each of the two cases.
In the New York case of Vacco v Quill, the main question appears to have been whether New York’s prohibition on assisting suicide violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. It was considered that it did not. The Equal Protection Clause embodies a general rule that States must treat like cases alike but may treat unlike cases according to their own distinctive issues. In 1996 the New York Court of Appeals held the view that assisted suicide did deny equal protection of the law. They agreed that although there may be one section of the community facing a terminal illness, in reality this section comprises of two distinct groups. For example, the first group would be in a hospital either attached to life support equipment or given life saving therapy. This could be competently refused so arguably, assistance in dying would be achieved. The second group however would not be receiving such treatment and would therefore be unable to obtain lawful assistance in their death. In other words, one group would be able to die with assistance, albeit passive and the other would not. To this effect the Court of Appeals noted that ‘the ending of life by (the withdrawal of life support systems) is nothing more or less than assisted suicide.1
The Supreme Court now disagree and have reaffirmed a distinction between letting a patient die and making that patient die and they claim the distinction to be ‘logical, rational and well established’2 and that reliance on ‘logic’ and ‘contemporary practice’ allows the state of New York to treat them differently. They do however concede that ‘Granted in some cases, the line between the two may not be clear, but certainty is not required, even if it were possible’.
The second case under consideration was Washington v Glucksberg. This case discussed a wider range of issues but this and the New York case are to be read as a whole.
The central issue in this case was whether Washington’s prohibition against causing or aiding a suicide offends the Fourteenth Amendment to the United States Constitution. The decision invalidated the decision of the Court of Appeals by holding that it did not. It had been argued that a liberty interest existed which was protected by the Fourteenth Amendment and that such a liberty interest extended to allow a request by a mentally competent, terminally ill adult to request assistance with their suicide.
The Court of Appeals concluded that there was a constitutionally recognised ‘right to die’.3 The Supreme Court invalidated this decision.
The Supreme Court started by examining the history, practices and legal traditions of the United States and conclude ‘Attitudes toward suicide itself have changed since Bracton, but our 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 decision making, we have not retreated from this prohibition’. Given the acknowledgement of medical change and the endorsement of the importance of decisionmaking, one may question why their position has remained unchanged.
The Supreme Court then examined the concept of “liberty” and commented on its depth and diversity. They note that they have to exercise caution when requested to extend it further. They acknowledge that the outlines of the liberty interest may not actually be capable of being fully clarified but that they have been ‘refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition’. They interpret the question before them as 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.’
They aver that they would ‘have to reverse centuries of legal doctrine and practice...’ Their reluctance to do this seems obvious and although case law and the earlier Court of Appeals decision was discussed, with respect it is suggested that their conclusion doesn’t logically follow from such discussion. Instead of taking theopportunity to review and update the law arising from the changes which they have already acknowledged, reliance is placed on that fact that ‘the history of the law’s treatment of assisted suicide in this country ( that is, the U.S.) has been and continues to be one of 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 second part of their argument focuses on the constitutional requirement that Washington’s assisted suicide ban can be rationally related to legitimate government interests. In this case such interests covered a wide range of issues. The Court of Appeals had recognised Washington’s interest in protecting life but suggested that this interest had to be considered in the light of the quality of the life involved and to this effect consideration had to be given to the ‘medical condition’ and ‘wishes of the person’ concerned.4 The Supreme Court described this as a ‘sliding scale approach’ which has been rejected through Washington’s assisted suicide ban and that “all people’s” lives from beginning to end, regardless of physical or mental condition, are under full protection of the law’.
A further issue raised was the prevention of the serious public health problem of suicide and that ‘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. Next, the integrity and ethics of the medical profession were considered; the Court of Appeals felt such integrity would not be threatened, the Supreme Court disagreed. The State’s interest in protecting vulnerable groups includes the poor, disabled and elderly from coercion and undue influence was also considered. The last issue addressed was the fact that allowing assisted suicide may result in a slide toward voluntary or involuntary euthanasia.
The concern that the court had for these issues was sufficient for them to conclude that the state did indeed have a legitimate interest in the assisted suicide ban. However their final words make it clear that they are aware that it is only these two cases that have been settled for now since they conclude: ‘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.’
1. Quill v Vacco 80 F. 3d716 (1996) at p.729.
2. All quotes from the Supreme Court s rulings in this article have been taken from John Hofsess’ mailing list ‘Nothing but the News’.
3. Compassion in Dying v Washington 79 F. 3d 790 (1996).
4. at p. 816.
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