Constitution Daily

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Does the Constitution protect a ‘right to die’?

October 2, 2015 by Joshua Waimberg


(credit: NVinacco)
(credit: NVinacco)


California Governor Jerry Brown has a decision to make. Before October 7, he must decide whether or not to sign the End of Life Option Act into law.


The bill, which would allow people in the advanced stages of terminal illness to obtain a lethal dose of drugs from their doctors, was passed by the California legislature on September 11. If Gov. Brown signs it into law, it would make California only the fifth state to legalize the so-called “right to die.” The legislation follows the story of Brittany Maynard, the terminally ill woman who rose to national prominence prior to her death. The concept of assisted suicide is contentious, and both sides of the debate are passionate in their beliefs.


But is the right to die protected by the Constitution?


In 1997, the Supreme Court took up the matter in Washington v. Glucksberg. In that case, Dr. Harold Glucksberg and a group of practicing physicians challenged Washington State’s ban on assisted suicide. They argued that assisted suicide and the right to die was a liberty interest protected by the Due Process Clause of the 14th Amendment.


The district court agreed with them, saying that Washington’s ban placed an undue burden on the constitutional right to exercise the personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide. The Ninth Circuit affirmed this decision, but the Supreme Court disagreed.


In a decision written by Chief Justice William Rehnquist, the Court rejected the idea that the right to assisted suicide was a fundamental liberty interest protected by the Due Process Clause. To do so, the Court followed its “established method of substantive due process analysis.”


First, the Court asked whether the right was objectively, deeply rooted in the United States’ history and tradition, and “implicit in the concept of ordered liberty.” The Court tracked a detailed historical analysis and found that the right had no place in the country’s tradition or history, given the fact that assisted suicide had been consistently rejected in the past and was banned in a large number of states.


Second, the Court’s analysis required a “careful description” of the asserted fundamental liberty interest. The Court found that, in this case, that description was lacking. The Court decided to define the interest itself, determining that the right at issue was “a right to commit suicide which itself includes a right to assistance in doing so.”


The Court then discussed how this specific, asserted right had no place in the country’s traditions. To decide otherwise, the majority said, would force them to “reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state.”


Following its determination that the right to assisted suicide is not a fundamental liberty interest, the Court went on to employ a rationality test, as the “Constitution also requires, however, that Washington’s assisted suicide ban be rationally related to legitimate government interests.” The Court found that Washington’s ban was rationally related to the state’s interest in, above all, the protection of human life. They also found legitimate state interests in protecting medical ethics and protecting disabled and terminally ill people from facing pressure to end their lives.


Although the right to assisted suicide is not recognized as a fundamental liberty interest, the Court has determined that state laws similar to California’s End of Life Option Act are permitted.


In 2001, following the enactment of Oregon’s Death With Dignity Act, Attorney General John Ashcroft declared that physician-assisted suicide violated the 1970 Controlled Substances Act, and threatened to revoke the medical licenses of physicians who were involved in the practice. But the Supreme Court, in the 2006 case of Gonzales v. Oregon, determined that the Act does not allow the U.S. Attorney General to declare the medical practice illegitimate, as the practice was allowed under state law and had doctors prescribing regulated drugs. Therefore, Oregon’s law was upheld.


So, while the Constitution may not protect the “right to die,” Governor Jerry Brown still has a momentous decision to make for the state of California.


Joshua Waimberg is a legal fellow at the National Constitution Center.


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