Is Death a Constitutional Right?

For decades, physician-assisted suicide (PAS) and the right to die have been at the center of numerous legal battles. The “right to die” covers more than just “pulling the plug” on life-sustaining treatment. It also includes suicide, which is done without the assistance of a physician, as well as other practices that are done with the guidance of a physician. Such practices include passive euthanasia, assisted dying, active euthanasia, and most recently, physician-assisted suicide. [1] Physician-assisted suicide differs from euthanasia in the sense that, in PAS, the physician does not themselves carry out the life-ending task, but instead provide the medication by which a patient can end their life. [2] This difference makes PAS particularly controversial. While the withdrawal of life-sustaining treatment is legal, PAS is illegal in most states because it is considered affirmative aid, which leaves physicians subject to criminal liability. Physician-assisted suicide is currently legal in Oregon, Washington, and Montana, where physicians can lawfully provide life-ending medication upon the request of a patient. Each state has different criteria for PAS, but all three require that the patient be cognitively competent, terminally ill, and can provide witnesses for their request for PAS. [3] Although the legality of PAS largely depends on the attitude of the respective state government, one could argue that the banning of physician-assisted suicide violates the Due Process clause of the 5th Amendment because the choice to end one’s life during unceasing pain—especially when one’s death is imminent— should be included in one’s right to life. Furthermore, a court’s refusal to recognize the right to die allows the actions of PAS-administering doctors to fall under “affirmative aid in dying,” which exposes doctors to prosecution for murder.

A highly contentious case regarding the difference between physician-assisted suicide and active euthanasia was that of Dr. Jack Kevorkian in 1999. Kevorkian was a pathologist who faced several criminal trials throughout the 1990s for the deaths of patients whom he provided lethal injection to satisfy their requests for physician-assisted suicide. [4] Dr. Kevorkian was ultimately convicted of second degree murder on March 6, 1999 after he filmed himself for the television show 60 Minutes lethally injecting a patient named Thomas Youk who was suffering from Lou Gehrig’s disease and could not administer the injection himself. Both Youk, who was mentally competent, and his family wanted Dr. Kevorkian to perform PAS. According to the autopsy report, Youk’s death was declared a homicide by intravenous injection of substances. [5] Ultimately, Kevorkian was convicted of murder because he lethally injected Youk, an act of voluntary active euthanasia, rather than the patient themselves, as had been done previously since the his many other patients were physically able to do so. While PAS and active euthanasia are both highly controversial in their own right, voluntary active euthanasia is more contentious because the doctor injects the patient, technically making it a homicide in a court of law, while PAS is often ruled as suicide.

Using the Supreme Court’s reasoning in Washington v. Glucksberg (1997), the Michigan Court of Appeals, whom Kevorkian appealed to over two years after his initial conviction, noted that the right to privacy could be expanded by legalizing euthanasia, which would then render all legal discussion and public action around PAS irrelevant. Dr. Kevorkian’s appeal was dismissed on the grounds that this expanded right of privacy, specifically in regards to euthanasia, would be beyond the scope of the judiciary and that there is no “principled basis” for the court to legalize euthanasia. [6] The Michigan Court of Appeals’s dismissal of Dr. Kevorkian’s appeal in The People v. Jack Kevorkian (2001) is illustrative of the intense criminalization of PAS in states where it is not legalized, in which doctors who adhere to the requests of suffering patients and their families are charged with the same crimes as those who kill others with malicious intent. At the root of this debate, there is a fear that some doctors will take advantage of their patients and that requests for PAS and instances of suicide will greatly increase. In states such as Washington and Oregon who have legalized the practice, no such trend has materialized. [7] Because this concern about the integrity of physicians and the context in which they are performing PAS has not come to fruition, it is on state governments, and arguably the federal government, to at least lessen the charge from second degree murder to a punishment more befitting of the act of voluntary active euthanasia. Moreover, the law must recognize the circumstances and pressure under which a physician like Dr. Jack Kevorkian performs his duties when dealing with a terminally ill patient who is determined to end their physical suffering.

The Supreme Court and many lower courts have sparked controversy in the past when they have distinguished between different types of life-ending practices and how they often are not protected by the Due Process Clause or the Equal Protection Clause. Per the Constitution of the United States, Americans have the unalienable right to “life, liberty, and property” under the Due Process clause of the 5th Amendment as well as under the 14th Amendment. The 14th Amendment states that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'' [8] Proponents of PAS have reasoned that the current precedent of landmark cases such as Cruzan by Cruzan v. Director, Missouri Department of Health (1990), Washington v. Glucksberg, Vacco v. Quill (1997) violate aspects of both the 5th and 14th Amendments in regards to a citizen’s liberties and their right to choose between life and death. 

In 1983, a car accident caused 25-year old Nancy Beth Cruzan to fall into a vegetative state, and she was kept alive by an implanted feeding tube. After five years, Nancy’s parents were not allowed to terminate life support for their daughter; hospital officials refused to do so without permission from the court. Despite the Cruzans gaining approval from a trial court, the Missouri Supreme Court ruled against the Cruzans’ right to deny treatment for their daughter. In Cruzan v. Director, the U.S. Supreme Court affirmed the decision of the Missouri Supreme Court in a 5-4 decision. [9] Their reasoning was based on the argument that the denial to withdraw life-sustaining treatment did not violate the Due Process clause because Nancy Beth Cruzan was mentally incompetent due to her vegetative state. [10] However, just like an individual’s birth, their death should be considered a private matter, and when the government limits the ability for this private decision to be made when the patient is terminally ill and has no likelihood of ever regaining consciousness, let alone mental competence, the government’s role in the private liberties of civilians become increasingly unclear. [11] Essentially, the government can infringe upon an individual’s right to life just because that individual never officially declared they would not want life-sustaining care. Although any person 18 years or older can legally sign an advanced directive, many healthy young people do not, and a person as young as Nancy Beth Cruzan simply cannot not be expected to sign an advance directive for PAS as only 37 percent of all American adults have advanced medical directives. [12] In regards to Nancy, one can even argue that sustaining her persistent vegetative state without her written or verbal agreement was a violation of her personal autonomy as she was forced to suffer through a bleak prognosis, and even her next of kin could not make decisions as her proxy. 

In 1997, Dr. Harold Glucksberg and his team, including four other doctors, three terminally ill patients, and a non-profit organization which provided guidance to individuals considering physician-assisted suicide, brought a lawsuit against the state of Washington for outlawing physician-assisted suicide. [13] At the time, Washington was known for heavily criminalizing the advertisement of physician assisted suicide as well as the actual act of PAS. This case posed the question: Did Washington’s ban on physician-assisted suicide violate the 14th Amendment’s Due Process Clause by denying mentally competent, terminally ill adults the autonomy to choose death over a life of physical suffering? After a district court ruled in favor of Glucksberg and other petitioners and the Ninth Circuit approved this decision, the U.S. Supreme Court granted the state of Washington a writ of certiorari. In Washington v. Glucksberg, the Supreme Court unanimously ruled that Washington state’s ban on physician assisted suicide does not violate the Due Process clause of the 14th Amendment. The Court reasoned, “the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be offensive to our national traditions and practices”. The Court then noted that there is a special need to be cautious in considering what constitutes the precise “liberties” that should be included under the Due Process clause. [14] In the Court’s reasoning that the right to PAS was not a fundamental right in the country’s legal history and therefore not protected by the Due Process Clause, they stunted the expansion of individual rights in favor of legal tradition. By saying that PAS did not reach the level of importance that other fundamental rights do, the Court made a value judgement on the meaning of life for terminally ill, mentally capable patients and disallowed them from making that judgement themselves. 

With regard to physician-assisted dying, Dr. Timothy Quill would face similar legalities as Dr. Jack Kevorkian in 1997 New York. Quill, in conjunction with four other physicians and three terminally ill patients who have since died, challenged the constitutionality of the state’s ban on physician-assisted dying based on the Equal Protection Clause. The physicians were punished because of the distinction between PAS and the withdrawal of life sustaining treatment. When life sustaining treatment is withdrawn, the patient’s underlying illness is the official cause of death while with death by PAS, the lethal injection is the official cause of death, making the physician subject to a homicide charge [15]. In the majority opinion for Vacco v. Quill, Chief Justice Rehnquist noted that the distinction between PAS and the withdrawal of life-sustaining treatment is not arbitrary as the respondent suggested, and that the true intentions of physicians cannot be distinguished and the elements of intent and causation in PAS venture into dangerous territory. This invokes the same question as the case of Dr. Jack Kevorkian and Thomas Youk: Even when a terminally ill, mentally competent patient and their family request PAS, by nature does that still make the act of PAS a murder or assisted suicide? Ultimately, in Vacco v. Quill, the Supreme Court ruled that New York's ban on physician-assisted dying was constitutional and did not violate the 14th Amendment’s Equal Protection clause. [16] This decision and the reasoning behind it arguably violate the right to privacy, as established by a patient and their doctor as established in Roe v. Wade (1973). [17] The majority decision stated that the Due Process clause of the 14th Amendment provides a woman’s right to privacy and to have an abortion. Although many scholars disagree that a woman’s right to choose and physician-assisted suicide are comparable in terms of the 14th Amendment, this still remains a legitimate debate that has been subject to much analysis and is worth revisiting as we contemplate the laws behind life and death. [18] 

In the Court’s efforts to establish stipulations about and around the conditions in which mentally competent, terminally ill patients may hasten their death, they also infringed upon these very patients' rights to make decisions about their own care. Furthermore, by calling into question the integrity of physicians and terminally ill patients engaging in PAS, such as in the case of Dr. Jack Kevorkian, the Court disregarded the evidence which indicates that the legalization of PAS in fact does not increase the rate of suicide and would not disturb the fabric of American traditions and practices, as it was suggested by the majority opinion in Washington v. Glucksberg . In addition to the infringement made on the right to die by the Courts, the right to privacy between a patient and their doctor is also violated in many of these decisions. By making a terminally ill person’s death an issue of the state rather than a personal issue, the lines become blurred as to whether a person or the jurisdiction in which they live has autonomy over their body and health. The story of Jack Kevorkian and the aforementioned cases regarding debates over the right to die would have been decided differently if the word “life”, which is never defined in the Constitution, were interpreted differently. Civil rights have been expanded through the very wording of the Due Process and Equal Protection clauses of the 5th and 14th Amendments, and to this day advocates for PAS are fighting for that expansion to include the right to die. As arguments over what “life” means begin to erupt again over issues of abortion and the emerging field of Bioethics and what it all means in the 21st century, these are issues that very well likely should and will be revisited by the Courts in the future. 

Edited by Crystal Foretia


Sources

[1] Cornell Law, “Right to Die”, Legal Information Institute, online at https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/right-to-die (visited November 20, 2020)

[2] David S. Kemp, The Ongoing Debate Over Physician Assisted Suicide, VERDICT, (2012), online at https://verdict.justia.com/2012/12/17/the-ongoing-debate-over-physician-assisted-suicide (visited November 20, 2020)

[3] id 

[4] Michael DeCesare. Death on Demand : Jack Kevorkian and the Right-to-Die Movement. (2015).Lanham, MD: Rowman & Littlefield Publishers. Accessed November 22, 2020. ProQuest Ebook Central. 

[5] People v. Kevorkian, 248 Mich. App. 373, 639 N.W.2d 291, 1, 2, 3 (Mich. Ct. App. 2001)

[6] id at 2

[7] id 

[8] Cornell Law, Due Process, Legal Information Institute, online at https://www.law.cornell.edu/wex/due_process (visited November 25, 2020)

[9] Nancy Beth Cruzan, by her parents and co-guardians, Cruzan et ux. v. Director, Missouri Department of Health, et al. 497 U.S. 261 110 S. Ct. 2841; 111 L. Ed. 2d224; (1990) 

[10] Cornell Law, Nancy Beth CRUZAN, by her Parents and Co-Guardians, Lester L. CRUZAN, et ux., Petitioners v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, et al. Legal Information Institute, online at https://www.law.cornell.edu/supremecourt/text/497/261 (visited November 24, 2020)

[11] Robert F. Weir, William J. Winslade, Ph.D., J.D, Physician-Assisted Suicide, 224 (Indiana University Press 1997)

[12] Carolyn Crist, “Over one third of U.S. adults have advanced medical directives.” 2017, Reuters, https://www.reuters.com/article/us-health-usa-advance-directives/over-one-third-of-u-s-adults-have-advanced-medical-directives-idUSKBN19W2NO (visited November 30, 2020)

[13] Cornell Law, WASHINGTON, et al., Petitioners, v. Harold GLUCKSBERG et al, Legal Information Institute, online at https://www.law.cornell.edu/supremecourt/text/521/702 (visited November 25, 2020)

[14] Washington v. Glucksberg, 521 U.S. 702 (1997)

[15] Chris Skelton, Vacco v. Quill, 521 U.S. 703 (1997) - Justia Opinion Summary and Annotations, JUSTIA US Supreme Court 

[16] id 

[17] Roe v. Wade, 410 U.S. 113 (1973)

[18] Marc Spindelman, “Are the Similarities Between a Woman’s Right to Choose an Abortion and the Alleged Right to Assisted Suicide Really Compelling?”, 29 University of Michigan Journal of Law Reform, 777, 778, 779 (1996).