Professional Licensing / Police Power

SUPREME COURT UPHOLDS PROHIBITIONS ON ASSISTED SUICIDE

Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997)

A patient's possible right to the aid of a physician in committing suicide has in the past few years become one of the most discussed issues in medical ethics. Legislators and voters have considered the issue, and the activities of Dr. Jack Kevorkian in helping end patients' lives haver received enormous publicity. Now, in the most-discussed case of its term just ended, the United States Supreme Court held that there is no constitutional right to die with the help of a physician, and hence that prohibitions on assisted suicide are constitutionally valid.

Two Federal court cases were at issue, Washington v. Glucksberg, , No. 96-110, a Washington state case, and Vacco v. Quill, No. 95-1858, which originated in New York. In the first case, Dr. Glucksberg, along with two other physicians and three gravely ill patients (who since have died) brought suit to overturn a Washington law that makes "promoting a suicide attempt" a felony, on the grounds that the statute violates a constitutionally-protected liberty interest under the Due Process Clause of the Fourteenth Amendment. A Federal district court ruled that the law was unconstitutional; a three- judge Court of Appeals for the Ninth Circuit reversed, but the full Circuit Court en banc reinstated the district court's conclusion: that the assisted suicide ban was unconsitutional as applied to terminally-ill, competent adults who wish to hasten their deaths with medication prescribed by their physicians.

In Vacco v. Quill, as in the first case, suit was brought by three physicians and three gravely ill patients who since have died, challenging the state law against aiding a suicide attempt. The district court found the law constitutional, but a three-judge Court of Appeals for the Second Circuit disagreed, ruling that the prohibition violates the Equal Protection clause of the Fourteenth Amendment. The court's reasoning was that New York law permits terminally-ill patients to direct the removal of life-sustaining equipment in order to hasten their death, but does not allow those not attached to such equipment to hasten death by self-administering prescribed medication. The court felt that this distinction was untenable, and was not rationally related to any legitimate state interest.

The Supreme Court unanimously upheld both the Washington and the New York laws. The unanimity in result, however, is misleading: in addition to the opinion of the Court, three concurring opinions were filed in each case, joined by a total of five Justices, and those opinions, taken together, leave a major issue open for the time being.

The Court's opinion in both cases was written by Chief Justice Rehnquist, and joined by Justices O'Connor, Scalia, Kennedy, and Thomas. The question before the Court, the Chief Justice said, is whether the "liberty" protected by the Due Process clause includes a right to commit suicide, which right would include a right to assistance in doing so. In order for constitutional due process protection to exist, he said, the asserted right must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental." He reviewed the history of the law in this area, concluding that assisted suicide has been illegal for many centuries, that almost every state considers rendering such assistance to be a crime, that such prohibitions never have contained exceptions for those who were near death, and that the prohibitions have in recent years been reexamined and (except for Oregon) reaffirmed in many states Hence, the opinion concluded that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process clause. He distinguished the Court's earlier decision in Cruzan v. Director, Mo. Dept. Of Health, on the grounds that the right to refuse unwanted medical treatment is well-grounded in the nation's history and law, while the right to assistance in committing suicide is not.

Once the asserted right at issue has been held not to be fundamental, in order to uphold a prohibition on its exercise the Court must show that that prohibition is rationally related to legitimate government interests. Chief Justice Rehnquist set forth a number of government interests that would justify a ban on assisted suicide: the state's unqualified interest in the preservation of human life; the interest in preventing suicide as a public health problem; the interest in protecting those suffering from depression and pain; the interest in protecting the integrity and ethics of the medical profession; the interest in protecting vulnerable groups (the poor, the elderly, the disabled) from abuse, neglect, and mistakes, as well as from prejudice, stereotypes, and societal indifference; and the interest in avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia. The Chief Justice concludes that the ban on physician-assisted suicide is constitutional.

Justice O'Connor, who joined the opinion of the Court, also filed a concurring opinion which was joined by Justice Ginsburg, and also by Justice Breyer except insofar as it joined the opinion of the Court. Justice O'Connor pointed out the statute was upheld on its face or as applied to all competent, terminally-ill adults. She stated that it is possible that the statute as applied to a narrower class of patient--for example, to mentally-competent patients who are experiencing great suffering--might be unconstitutional. She saw no reason to deal with that question here, given the agreement of all parties that a terminally-ill patient in great pain has no legal barriers to obtaining medication to alleviate that pain, even to the point of hastening death.

Justice Stevens, in his concurring opinion, went even further than Justice O'Connor, stating bluntly that under certain circumstances, an interest in hastening death "is entitled to constitutional protection." He agreed with the Court that history and tradition provide ample support for refusing to recognize an open-ended constitutional right to commit suicide. However, he points out that Washington has authorized the death penalty, hence acknowledging that the sanctity of human life does not require that it always be preserved. Justice Stevens stated that the interest in the preservation of human life is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient's dignity and alleviating her intolerable suffering.

Justice Souter, concurring, wrote a long opinion the bulk of which dealt with technical issues regarding the Due Process clause. His opinion, like the other concurrences, left open the possibility that the asserted right to assisted suicide might be recognized in some circumstances in the future. Justice Souter took especially seriously the concern about possible progression from assisted suicide to euthanasia; this, he felt, was sufficient reason to uphold the statute. He stated that at this time, the legislatures are better suited than the courts to deal with the issue.

Justice Breyer, concurring, disagreed with the court's characterization of the claimed liberty interest as a "right to commit suicide with another's assistance." He felt that the interest at stake was a right to die with dignity, that is, with personal control over the manner of death, medical assistance, and the avoidance of severe physical suffering. He suggested that a law preventing the administration of pain medication at the end of life might violate such a right.

Vacco v. Quill found the Justices lined up as they had been in Glucksberg. Again, Chief Justice Rehnquist wrote for himself and four other Justices. He found that the distinction between terminating life support and assisted suicide does not create a constitutionally suspect classification: "Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide." He disagreed with the Circuit Court's statement that ending or refusing lifesaving medical treatment "is nothing more nor les than assisted suicide." When a person refuses life-sustaining medical treatment, that person dies of the underlying disease; when a person ingests legal medication, that person dies of the medication. Furthermore, refusal or withdrawal of treatment does not necessarily imply an intent to cause death, while assisted suicide necessarily does. The distinction has been recognized by many courts and legislatures. Hence, the opinion concluded that the distinction between assisting suicide and refusing lifesaving medical treatment is not arbitrary or irrational. The state interests discussed in Glucksberg, said the Chief Justice, also satisfy the requirement here that a legislative classification bear a rational relation to some legitimate end.

The concurring opinions in Vacco, too, lined up the same way as in Glucksberg, and took essentially the same positions as in the former case. Noteworthy is Justice Stevens's opinion that there may be little difference in the intent of physicians, patients, and families, between the situation of removal of life support and that of assisted suicide, and hence that some applications of the statutes prohibiting assisted suicide may indeed amount to unconstitutional discrimination.

The one essential point to understand about the Glucksberg and Vacco decisions is that they leave things the way they are. All the Court has done is to say that the laws prohibiting assisted suicide are not unconstitutional on their face, or as applied to competent, terminally-ill adults. Hence, for the time being, physicians should be able to continue practicing in this regard as they have practiced in the past.

It is important to be clear about what the Court did not decide. It did not say that the Constitution requires a ban on assisted suicide. It did not invalidate state statutes or decisions that uphold a right to refuse life-sustaining treatment. It did not address the use of advance directives (living wills and durable powers of attorney) under state law. It did not invalidate the use of medication to relieve pain, even when that medication potentially could be lethal. It merely ruled that the Constitution does not forbid a prohibition of assisted suicide.