Recognize the Right to Die With Dignity

Three years ago my father died of lung cancer. In the last few days of his life he was in enormous pain and asked his doctors to end his suffering. He knew that his death was only days away, at the most a week or two, and he did not want to endure any longer. His doctors, of course, refused to do anything except give him more pain medicine. It caused him to sleep most the time, but when he awoke he was suffering tremendously and asked for his misery to be over. Within days mercifully he died.

The Supreme Court last week granted review of two U.S. Court of Appeals decisions that recognized a constitutional right to physician-assisted suicide. As I read these decisions, I appraised the arguments as a constitutional law professor, but I also had in mind the searing image of my father lying in a hospital bed gasping for each breath and asking for my help to end his pain. As a constitutional scholar, I think that the Court of Appeals rulings were correct, but most likely will be overruled by the Supreme Court. As I think of people suffering as my father did, I believe that a constitutional right to physician-assisted suicide is essential. As a matter of constitutional law, there are two distinct questions: Is there a fundamental right to physician assisted suicide; and if so, is there a compelling reason for limiting such a right? The 14th Amendment prohibits the government from denying a person liberty without due process of law. The 9th Circuit held that a right to physician assisted suicide is a fundamental aspect of a person’s constitutionally protected liberty.

The ruling follows from a long series of cases, going back to the earliest days of this century, protecting aspects of privacy and personal autonomy as “liberty.” For example, the Supreme Court has held that the due process clause protects a right to marry, a right to procreate, a right to purchase and use contraceptives, a right to abortion, a right to custody of one’s children and a right to control the upbringing of those children. None of these rights is expressly mentioned in the text of the Constitution, but all have been deemed fundamental by the Supreme Court because of their importance in a person’s life.

In 1990, the Supreme Court applied these cases to its ruling and ruled that competent adults have the right to refuse medical treatment. Eight of the nine justices--all but Antonin Scalia--agreed that the constitutional right to end treatment extended to refusal of life-sustaining food or water. The 9th Circuit decision held that this right should extend to those who wish to hasten the end of their own lives. If the Constitution’s protection of privacy and personal autonomy means anything, surely it must include the most basic and important choice of all: the decision to die with dignity.

Opponents argue that the danger of abuses warrants prohibiting physician-assisted suicides. There is concern that there could be pressure for the assisted killing of the disabled or the mentally incompetent.

But the solution should not be to prohibit physician-assisted suicide for everyone under all circumstances because some might abuse the right. Rather, the answer should be for states to adopt laws regulating physician-assisted suicide, such as by setting standards for competence and to ensure truly voluntary choices. Indeed, if the 9th Circuit ruling is allowed to stand, it is quite likely that states, in order to prevent abuses, will adopt laws regulating physician-assisted suicide.

The 2nd Circuit found that the prohibition of physician-assisted suicide denies equal protection of the laws. Those on artificial life support can end their lives, but others cannot. The 2nd Circuit concluded that this was a form of impermissible discrimination.

While the Court of Appeals rulings are on solid constitutional ground, there is a serious risk that it will be overruled by the Supreme Court. Three members--Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas--are sure to vote to overrule the 9th Circuit decision. They strongly oppose judicial protection of rights not enumerated in the Constitution. Scalia has already written that he believes there is no right to refuse medical treatment and no right to suicide.

Justices Sandra Day O’Connor, Anthony Kennedy and Ruth Bader Ginsburg are likely to cast the decisive votes. O’Connor and Kennedy agree with the conservative faction far more often than with the more liberal justices. Perhaps more important, in the 1990 decision recognizing a right to refuse medical treatment, O’Connor and Kennedy joined Rehnquist and Scalia in restricting the scope of the right to refuse medical treatment. Ginsburg has consistently voted against protecting rights under the due process clause.

Each of us will die someday. We all hope that the end will come peacefully as we sleep. But for many of us, medical technology to prolong life will mean that we will die as my father did. A competent, terminally ill patient should be able to choose whether to die in pain or in dignity. Nothing is more basic to our freedom and autonomy than the ability to make that choice. I only wish that my father had that right three years ago.