The Right to Die

Yale Law Journal

Volumn 106, Issue 4, 1997, Pages 1123-1162

  Sunstein, Cass R ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ACTIVE EUTHANASIA; ARTICLE; ASSISTED SUICIDE; CIVIL RIGHTS; COMPASSION IN DYING V. STATE OF WASHINGTON; CONTRACEPTION; DEATH AND EUTHANASIA; DECISION MAKING; DEPRESSION; ETHICS; EUTHANASIA; FAMILY; FREEDOM; GOVERNMENT; GOVERNMENT REGULATION; HUMAN; INDUCED ABORTION; JURISPRUDENCE; LEGAL APPROACH; MENTAL CAPACITY; MENTAL STRESS; PASSIVE EUTHANASIA; PERSONAL AUTONOMY; PERSUASIVE COMMUNICATION; PHYSICIAN; POLICY; POLITICAL SYSTEM; PRIVACY; PROGNOSIS; QUILL V. VACCO; RIGHT TO DIE; SOCIAL CHANGE; SOCIAL CONTROL; SOCIOECONOMICS; TERMINALLY ILL PATIENT; TREATMENT REFUSAL; UNITED STATES;

COMPASSION IN DYING V. STATE OF WASHINGTON; DEATH AND EUTHANASIA; LEGAL APPROACH; QUILL V. VACCO;

ABORTION, INDUCED; CIVIL RIGHTS; COERCION; CONTRACEPTION; DECISION MAKING; DEMOCRACY; DEPRESSIVE DISORDER; ETHICS; EUTHANASIA; EUTHANASIA, ACTIVE; EUTHANASIA, PASSIVE; FAMILY; FEDERAL GOVERNMENT; FREEDOM; GOVERNMENT; GOVERNMENT REGULATION; HUMANS; JUDICIAL ROLE; JURISPRUDENCE; MENTAL COMPETENCY; PERSONAL AUTONOMY; PHYSICIANS; PRIVACY; PROGNOSIS; PUBLIC POLICY; RIGHT TO DIE; SOCIAL CHANGE; SOCIAL CONTROL, FORMAL; STATE GOVERNMENT; STRESS, PSYCHOLOGICAL; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; TERMINALLY ILL; TREATMENT REFUSAL; UNITED STATES; VALUE OF LIFE; WEDGE ARGUMENT;

EID: 0030621662     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797150     Document Type: Review

References (181)

1. Dr. Jack Kevorkian has been the doctor in many of the most famous cases. See, e.g., People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994); Tamar Lewin, Doctor Cleared of Murdering Woman with Suicide Machine, N.Y. TIMES, Dec. 14, 1990, at B6.
2. 80 F.3d 716 (2d Cir.), cert. granted, 117 S. Ct. 36 (1996).
3. 79 F.3d 790 (9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).
4. For the classic treatment, see JOHN HART ELY, DEMOCRACY AND DISTRUST (1980). I urge a cautious judicial role partly because judicial judgments may be wrong and partly because judicial judgments may cause serious social problems even if they are right. See infra text accompanying notes 129-33. By "recognizing rights," I mean invalidating legislation; as suggested below, I do think these cases are an appropriate setting for recognizing a presumptive right, in the sense that the state should be required to bring forward a strong justification for any intrusion.
5. Washington, for example, enacted its governing law in 1992, and Governor Cuomo of New York sponsored a widely discussed Task Force report in 1994 that rejected legalization of physician-assisted suicide. See Quill, 80 F.3d at 734-35 (Calabresi, J., concurring) (describing New York background); Compassion in Dying v. Washington, 49 F.3d 586, 591-92 (9th Cir. 1995) (describing discussion in New York and Michigan), rev'd, Compassion in Dying, 79 F.3d 790.
6. There is an extensive philosophical literature on the right to die. A particularly illuminating discussion is DAN W. BROCK, LIFE AND DEATH 202-30 (1993), which argues for autonomy right and challenges the distinction between withdrawal of treatment and active euthanasia. See also RONALD DWORKIN, LIFE'S DOMINION 218-41 (1993) (arguing for autonomy right); John Keown, Euthanasia in the Netherlands: Sliding down the Slippery Slope?, in EUTHANASIA EXAMINED 261, 261-62 (John Keown ed., 1995) (collecting various positions about whether voluntary euthanasia will lead to involuntary euthanasia). As will become apparent, the philosophical issue is far from coextensive with the constitutional issue, and there is a limit to how much progress can be made through philosophical discussion alone; many of the key questions are empirical, involving the real-world effects of the relevant right.
7. There is an extensive philosophical literature on the right to die. A particularly illuminating discussion is DAN W. BROCK, LIFE AND DEATH 202-30 (1993), which argues for autonomy right and challenges the distinction between withdrawal of treatment and active euthanasia. See also RONALD DWORKIN, LIFE'S DOMINION 218-41 (1993) (arguing for autonomy right); John Keown, Euthanasia in the Netherlands: Sliding down the Slippery Slope?, in EUTHANASIA EXAMINED 261, 261-62 (John Keown ed., 1995) (collecting various positions about whether voluntary euthanasia will lead to involuntary euthanasia). As will become apparent, the philosophical issue is far from coextensive with the constitutional issue, and there is a limit to how much progress can be made through philosophical discussion alone; many of the key questions are empirical, involving the real-world effects of the relevant right.
8. There is an extensive philosophical literature on the right to die. A particularly illuminating discussion is DAN W. BROCK, LIFE AND DEATH 202-30 (1993), which argues for autonomy right and challenges the distinction between withdrawal of treatment and active euthanasia. See also RONALD DWORKIN, LIFE'S DOMINION 218-41 (1993) (arguing for autonomy right); John Keown, Euthanasia in the Netherlands: Sliding down the Slippery Slope?, in EUTHANASIA EXAMINED 261, 261-62 (John Keown ed., 1995) (collecting various positions about whether voluntary euthanasia will lead to involuntary euthanasia). As will become apparent, the philosophical issue is far from coextensive with the constitutional issue, and there is a limit to how much progress can be made through philosophical discussion alone; many of the key questions are empirical, involving the real-world effects of the relevant right.
9. For the moment I put to one side some of the definitional issues.
10. It is presumptive in the sense that government can overcome the right with a showing of a sufficiently strong interest.
11. See infra text accompanying notes 143-45.
12. See A Review of Assisted Suicide, WASH. POST, Oct. 3, 1996, at A28; Plus News, CHI. SUN-TIMES, June 25, 1996, at 3 (noting American Medical Association members voted "overwhelmingly" not to change AMA's opposition to physician-assisted suicide); see also Willard Gaylin et al., Doctors Must Not Kill, 259 JAMA 2139 (1988) (arguing against active euthanasia). But see Judy Foreman, Assisted Suicide Seen Gaining Favor, BOSTON GLOBE, Feb. 1, 1996, at 3.
13. See A Review of Assisted Suicide, WASH. POST, Oct. 3, 1996, at A28; Plus News, CHI. SUN-TIMES, June 25, 1996, at 3 (noting American Medical Association members voted "overwhelmingly" not to change AMA's opposition to physician-assisted suicide); see also Willard Gaylin et al., Doctors Must Not Kill, 259 JAMA 2139 (1988) (arguing against active euthanasia). But see Judy Foreman, Assisted Suicide Seen Gaining Favor, BOSTON GLOBE, Feb. 1, 1996, at 3.
14. See A Review of Assisted Suicide, WASH. POST, Oct. 3, 1996, at A28; Plus News, CHI. SUN-TIMES, June 25, 1996, at 3 (noting American Medical Association members voted "overwhelmingly" not to change AMA's opposition to physician-assisted suicide); see also Willard Gaylin et al., Doctors Must Not Kill, 259 JAMA 2139 (1988) (arguing against active euthanasia). But see Judy Foreman, Assisted Suicide Seen Gaining Favor, BOSTON GLOBE, Feb. 1, 1996, at 3.
15. See A Review of Assisted Suicide, WASH. POST, Oct. 3, 1996, at A28; Plus News, CHI. SUN-TIMES, June 25, 1996, at 3 (noting American Medical Association members voted "overwhelmingly" not to change AMA's opposition to physician-assisted suicide); see also Willard Gaylin et al., Doctors Must Not Kill, 259 JAMA 2139 (1988) (arguing against active euthanasia). But see Judy Foreman, Assisted Suicide Seen Gaining Favor, BOSTON GLOBE, Feb. 1, 1996, at 3.
16. See RICHARD A. POSNER, AGING AND OLD AGE 235-45 (1995) (arguing on behalf of right to physician-assisted suicide); see also Keown, supra note 6, at 263-66 (describing controversial safeguards in Netherlands). Keown identifies safeguards requiring that the request must come from the patient and be free and voluntary; the request must be well-considered, durable, and persistent; the patient must be intolerably suffering, with no hope of improvement; euthanasia must be the last resort, after other alternatives have failed; euthanasia must be performed by the physician; the physician must consult with another physician trained in the field; and the death record should not indicate death of "natural causes." These safeguards are controversial because it is not clear that they are respected in practice. See id.; see also HERBERT HENDIN, SEDUCED BY DEATH 47-95 (1997).
17. See RICHARD A. POSNER, AGING AND OLD AGE 235-45 (1995) (arguing on behalf of right to physician-assisted suicide); see also Keown, supra note 6, at 263-66 (describing controversial safeguards in Netherlands). Keown identifies safeguards requiring that the request must come from the patient and be free and voluntary; the request must be well-considered, durable, and persistent; the patient must be intolerably suffering, with no hope of improvement; euthanasia must be the last resort, after other alternatives have failed; euthanasia must be performed by the physician; the physician must consult with another physician trained in the field; and the death record should not indicate death of "natural causes." These safeguards are controversial because it is not clear that they are respected in practice. See id.; see also HERBERT HENDIN, SEDUCED BY DEATH 47-95 (1997).
18. A recent referendum in Oregon has produced a right of this sort, accompanied by procedures whose constitutional adequacy is in doubt. See Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995). In 1988, there was a failed effort to produce a referendum on this topic in California; in November 1991, Washington voters rejected a highly publicized referendum proposal to legalize active euthanasia. See BROCK, supra note 6, at 203.
19. It is most unfortunate that American constitutional law lacks a kind of "democratic political question doctrine" - a doctrine that would allow the Court to decline to validate or invalidate legislation, and to suspend its judgment about constitutionality until a certain period of democratic deliberation (and clarification of relevant issues) has passed. The Court can deny certiorari, of course, and there are analogues in American law to such a doctrine, see infra Section IV.C (discussing desuetude and associated doctrines), but the idea has no explicit constitutional foundation. Such a doctrine would be especially well-suited to the right to physician-assisted suicide.
20. A helpful discussion can be found in DWORKIN, supra note 6, at 218-41, which argues on behalf of an autonomy right.
21. 497 U.S. 261 (1990). The Court said: The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. . . . Although we think the logic of the cases . . . would embrace such a liberty interest [in resisting the forced administration of life-sustaining medical treatment], the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. Id. at 278-79. Justice O'Connor was much clearer on this point. See id. at 289 (O'Connor, J., concurring) ("[T]he liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.").
22. See, e.g., Quill v. Vacco, 80 F.3d 716, 727-28 (2d Cir.), cert. granted, 117 S. Ct. 36 (1996) (describing New York statutes allowing patients to decline treatment).
23. See infra text accompanying notes 73-74.
24. It has been suggested that modern pain management techniques make this an unlikely event. For example, Brock writes: There are not great numbers of patients undergoing severe suffering that can only be relieved by directly killing them. Modem methods of pain management enable physicians and nurses to control the pain of virtually all such patients without the use of lethal poisons, though often at the cost of so sedating the patient that interaction and communication with others is limited or no longer possible. BROCK, supra note 6, at 170.
25. See, e.g., Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die, 44 AM. U. L. REV. 803, 824-25 (1995) (noting New York State Task Force on Life and the Law's opposition to physician-assisted suicide based in part on fact that majority of individuals who commit suicide suffer from depression and most doctors are not adequately trained to diagnose depression in complex cases such as terminal illness).
26. See BROCK, supra note 6, at 229-30.
27. See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 280 (1990). Note that there is a pervasive concern that if physician-assisted suicide is permitted, there will inevitably be physician-chosen death instead. See infra Sections III.C-D.
28. This is a legal claim, not a philosophical one. There has been a long debate about the philosophical issues raised by suicide. See Miriam Griffin, Philosophy, Cato, and Roman Suicide: II, 33 GREECE & ROME 192 (1986).
29. See Cruzan, 497 U.S. at 280 ("[T]he majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death."); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973) (suggesting that laws banning suicide are constitutionally unproblematic).
30. See HENDIN, supra note 11, at 216; HERBERT HENDIN, SUICIDE IN AMERICA (1995).
31. See HENDIN, supra note 11, at 80-95.
32. See David P. Phillips, The Influence of Suggestion on Suicide: Substantive and Theoretical Implications of the Werther Effect, 39 AM. SOC. REV. 340 (1974).
33. See POSNER, supra note 11, at 236.
34. Cf. ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991) (discussing people's capacity to order their lives without reference to law).
35. Abortion is an interesting analogy along this dimension. Even without Roe v. Wade, 410 U.S. 113 (1973), and even in places where abortion is unlawful, abortions occur, sometimes in large numbers. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 278 (1993). But this is not much of an argument against Roe, since the relevant abortions tend to be extremely dangerous. See id. The term "back-alley butchers" reflects the point. In the case of physician-assisted suicide, there is a weaker parallel in the informal processes I am describing. No one should deny, however, that the ban on physician-assisted suicide can produce some ugly informal outcomes. Compassion in Dying presents an example: When he realized that my family was going to be away for a day, he wrote us a beautiful letter, went down to his basement, and shot himself with his 12 gauge shot gun. He was 84 . . . . My son-in-law then had the unfortunate and unpleasant task of cleaning my father's splattered brains off the basement walls. Compassion in Dying v. Washington, 79 F.3d 790, 834-35 (9th Cir.) (en banc) (citation omitted), cert. granted, 117 S. Ct. 37 (1996).
36. I will use the two terms interchangeably. There is, however, a technical difference. If the Court finds a "fundamental right," the state may intrude only on a showing that it has chosen the least restrictive means of promoting a compelling state interest. See, e.g., Roe, 410 U.S. at 155. It is unclear whether the identification of a "liberty interest" has the same consequence. It is notable that in Cruzan v. Director, Missouri Department of Health, the Court spoke of a "liberty interesi" rather than a fundamental right, see 497 U.S. 261, 278-79 (1990), though it is not clear that this was intended as a distinction.
37. The plurality opinion in Michael H. v. Gerald D., 491 U.S. 110 (1989), strongly supports this view: "We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Id. at 127 n.6. Interestingly, the plurality found consistency with Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972), by saying that such cases did not acknowledge "a longstanding and still extant societal tradition withholding the very right pronounced to be the subject of [the] liberty interest." 491 U.S. at 127. Thus, in those cases, there was no tradition of state enforcement of laws withholding the liberty interest "continuing to the present day." Id. This idea bears on the notion of desuetude. See infra text accompanying notes 150-52.
38. 79 F.3d 790, 813 (9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).
39. 381 U.S. 479 (1965).
40. 405 U.S. 438 (1972).
41. 431 U.S. 678 (1977).
42. 410 U.S. 113 (1973).
43. 478 U.S. 186 (1986). The Court did not resolve the issue of heterosexual sodomy.
44. 316 U.S. 535 (1942) (holding fundamental right under Equal Protection Clause).
45. 478 U.S. 186 (1986).
46. 497 U.S. 261 (1990).
47. 494 U.S. 210 (1990).
48. 491 U.S. 110 (1989).
49. 431 U.S. 494 (1977).
50. 416 U.S. 1 (1974).
51. 388 U.S. 1 (1967).
52. 434 U.S. 374 (1978) (holding fundamental right under Equal Protection Clause).
53. 434 U.S. 47 (1977).
54. For relevant discussions, see LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION (1991), which challenges traditionalism in constitutional law; J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613 (1990), which argues that traditions are indeterminate; and Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989), which argues for broad privacy right not rooted in tradition.
55. For relevant discussions, see LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION (1991), which challenges traditionalism in constitutional law; J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613 (1990), which argues that traditions are indeterminate; and Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989), which argues for broad privacy right not rooted in tradition.
56. For relevant discussions, see LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION (1991), which challenges traditionalism in constitutional law; J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613 (1990), which argues that traditions are indeterminate; and Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989), which argues for broad privacy right not rooted in tradition.
57. See Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (plurality opinion of Scalia, J.) (discussing right of adulterous natural father as not rooted in specific tradition); Bowers v. Hardwick, 478 U.S. 186, 192-95 (1986) (White, J.) (discussing lack of specific tradition supporting right to consensual sodomy); Moore v. City of East Cleveland, 431 U.S. 494, 503-06 (1977) (plurality opinion of Powell, J.) (discussing need to ground rights in tradition and sanctity of family tradition); Griswold v. Connecticut, 381 U.S. 479, 501-02 (1965) (Harlan, J., concurring) (discussing need to ground fundamental rights in "continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society").
58. See, for example, Justice Scalia's discussion in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 294-95 (1990), of the historical English legal reason for the prohibition on suicide, and a similar discussion in Compassion in Dying v. Washington, 79 F.3d 790, 806-10 (9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).
59. See Cruzan, 497 U.S. at 294-95 (discussing Anglo-American reasoning against prohibition); Compassion in Dying, 79 F.3d at 808-10 (discussing Greco-Roman and Anglo-American reasoning).
60. See POSNER, supra note 11, at 236-37 (discussing rarity of reporting); id. at 251-52 (discussing rarity of enforcement).
61. See Griswold, 381 U.S. at 500 (Harlan, J., concurring) (citing Poe v. Ullman, 367 U.S. 497, 522, 539-45 (1961) (Harlan, J., dissenting) (arguing that ban on use of contraceptives within marriage should be invalidated partly because it is so anomalous and so at odds with tradition)).
62. See Moore, 431 U.S. 494 (plurality opinion).
63. See Quill v. Vacco, 80 F.3d 716, 724-25 (2d Cir.) (rejecting view that right to die qualifies as "fundamental" on ground that tradition does not recognize that right), cert. granted, 117 S. Ct. 36 (1996).
64. 410 U.S. 113 (1973).
65. The Court's own discussion in Roe establishes as much. See id. at 130-41 (discussing conflicting and unclear historical rules on abortion).
66. See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977) (striking down law prohibiting sale of contraceptives to minors); Eisenstadt v. Baird, 405 U.S. 438 (1972) (striking down as irrational law forbidding sale of contraceptives to unmarried people).
67. 388 U.S. 1, 6 (1967) (invalidating antimiscegenation law that had historical roots in colonial period).
68. 434 U.S. 374 (1978) (invalidating law forbidding people to marry unless they have met their support obligations).
69. 478 U.S. 186, 192-96 (1986) (discussing lack of historical basis for right to consensual sodomy).
70. 491 U.S. 110, 127-28 n.6 (1989) (plurality opinion of Scalia, J.) (defending use of specific historical traditions relating to adulterous natural father rather than parenthood more generally).
71. Of course the whole idea of "substantive due process" is quite doubtful as a matter of text and history. See ELY, supra note 4, at 14-18 (arguing that interpretation of Due Process Clause as incorporating general mandate to review substantive merits of government action "not only was not inevitable, it was probably wrong"). But we might see that idea as doing the work of the Privileges and Immunities Clause, which could plausibly have been used for an enterprise of this kind. See Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5, 9-15 (1949) (discussing historical development of limited Privileges and Immunities Clause).
72. See Michael H., 491 U.S. at 127-28 n.6 (plurality opinion of Scalia, J.) (arguing that traditions should be characterized at level of greatest specificity).
73. Due process traditionalism might be thought to minimize decision costs too, at least if it is relatively simple to identify traditions.
74. See Cass Sunstein, Against Tradition, 13 SOC. PHIL. & POL'Y 207 (1996) (challenging idea that tradition is good source of rights).
75. See generally David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996) (defending idea that constitutional law is form of common law).
76. See infra Section IV.A.
77. 416 U.S. 1 (1974) (upholding New York village ordinance as valid land-use legislation addressed to family needs).
78. Compassion in Dying v. Washington, 79 F.3d 790, 793 (9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).
79. See text accompanying notes 113-33.
80. See Cass R. Sunstein, Leaving Things Undecided, 110 HARV. L. REV. 4 (1996) (defending judicial minimalism in midst of complex issues of fact and value).
81. See POSNER, supra note 11, at 239-40 (characterizing value of right of suicide as "option").
82. Interestingly, Justice Scalia made this very argument in his separate opinion in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 296-97 (1990) (Scalia, J., concurring). This claim does not, however, mean that the distinction fails rationality review. See infra Subsection IV.B.1.
83. Cf. Washington v. Harper, 494 U.S. 210, 219-27 (1990) (holding that Due Process Clause permits state to administer antipsychotic drugs to prisoner against his will despite significant liberty interest in avoiding such administration of drugs).
84. This point is intended as a description, not as a full defense of the cases and especially not of a full defense of Roe v. Wade. See EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK (1996), for an effort to defend Roe in these terms. Note also that it is possible to think that any physical invasion is legitimate either because the invasion is the product of the woman's voluntary actions or because protection of the fetus counts as sufficient justification. These points bear on the question of whether government may intrude on the right as I have understood it.
85. See Eisenstadt v. Baird, 405 U.S. 438, 448 (1972); see also Griswold v. Connecticut, 381 U.S. 479, 498-99 (1965) (Goldberg, J., concurring).
86. Criminal law sanctions might be thought to raise difficulties for this standard, but the appearance is misleading. The suggested standard is about literal invasion, not about confinement. In any case, it is well understood that the state needs a strong justification for depriving people of liberty; violations of the criminal law ordinarily provide that justification.
87. On incompletely theorized judgments, see CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 35-61 (1996); and Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733 (1995).
88. On incompletely theorized judgments, see CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 35-61 (1996); and Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733 (1995).
89. 494 U.S. 210 (1990).
90. It would follow from what I have said that a grant of permission to rape or assault would be constitutionally suspect. By contrast, a broad right of sexual autonomy need not follow; by preventing various sexual relations, the state certainly does not allow invasions of the body in the way I am describing here.
91. See Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).
92. See Moore v. City of East Cleveland, 431 U.S. 494 (1977).
93. 5ee JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 177-83 (1990) (discussing private property and self-ownership).
94. See RICHARD A. EPSTEIN, MORTAL PERIL (forthcoming 1997) (defending even broader conception of autonomy as matter of policy).
95. See BROCK, supra note 6, at 210-13 (rejecting distinction between passive and active euthanasia).
96. 497 U.S. 261, 277-79 (1990) (assuming right to withdraw treatment qualifies as liberty interest but noting that state may nonetheless have sufficient grounds to interfere with that interest).
97. 115 S. Ct. 2097 (1995).
98. Id. at 2117 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)).
99. I defend this standard below. See infra Section IV.A.
100. I am putting to one side the idea that the state has an interest in protecting life as such. In many forms, that view is rooted in considerations that are essentially religious in nature and therefore an illegitimate basis for upholding a law. In nonreligious forms, the idea is hard to understand independently of the considerations discussed in the text.
101. See supra note 18.
102. This is the argument of Herbert Hendin. See HENDIN, supra note 11, at 127-34, 155-59.
103. See id. at 114-20. There is a similar concern with the right to abort. Women may be under intense pressure from boyfriends, parents, or husbands to have an abortion, even when they would prefer not to do so, and in such cases the right might undermine their autonomy. It is unlikely, however, that a large percentage of abortions results from these pressures as a matter of fact. If the percentage were in fact large, the argument for the right to abort would be undermined.
104. Compare the situation of restaurants under Title VII. Many restaurants sought a ban on race discrimination, on the apparent theory that a legal barrier enabled them to do what they wanted to do and in that way increased their autonomy. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 965-67 (1995) (discussing how Civil Rights Act of 1964 protected desires of restaurants by changing "social meaning" of nondiscrimination). Like a right to discriminate, a right to die could decrease autonomy, by pressuring patients to submit to social norms and familial desires.
105. See HENDIN, supra note 11, at 214.
106. See id. at 52-54, 75-84; infra text accompanying notes 101-07.
107. HENDIN, supra note 11, at 94.
108. See Keown, supra note 6, at 261-62.
109. See HENDIN, supra note 11, at 50 (arguing that under Dutch system "the patient has no autonomy because the doctor has decided that the quality of the patient's life is such that it is time for the patient to die").
110. See, e.g., CARLOS F. GOMEZ, REGULATING DEATH: EUTHANASIA AND THE CASE OF THE NETHERLANDS 104-11, 135 (1991) (claiming that some deaths have not been voluntary); HENDIN, supra note 11, at 75-84 (discussing involuntary and nonvoluntary deaths); Keown, supra note 6, at 262-63, 271-73 (discussing allegedly large number of involuntary deaths).
111. See Henk A.M.J. ten Have & Jos V.M. Welie, Euthansia: Normal Medical Practice?, HASTINGS CENTER REP., Mar-Apr. 1992, at 34 (describing study: Commissie Onderzock Medische Praktijk inzake euthanasie, Medische Beslissingen rond het Levenseinde [Medical Decisions Concerning the End of Life] (The Hague: S.D.U. Uitgeverij, 1991)); see also Keown, supra note 6, at 267-75 (reporting findings of study).
112. See Henk A.M.J. ten Have & Jos V.M. Welie, Euthansia: Normal Medical Practice?, HASTINGS CENTER REP., Mar-Apr. 1992, at 34 (describing study: Commissie Onderzock Medische Praktijk inzake euthanasie, Medische Beslissingen rond het Levenseinde [Medical Decisions Concerning the End of Life] (The Hague: S.D.U. Uitgeverij, 1991)); see also Keown, supra note 6, at 267-75 (reporting findings of study).
113. See Keown, supra note 6, at 271.
114. See GOMEZ, supra note 101, at 104-13, 135; HENDIN, supra note 11, at 75-84.
115. See HENDIN, supra note 11, at 76; Keown, supra note 6, at 277.
116. Keown, supra note 6, at 289.
117. See EPSTEIN, supra note 85 (manuscript ch. 16, at 12-14) (arguing that significant abuse has not been demonstrated); POSNER, supra note 11, at 242 & n.23 (same).
118. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996) (discussing norms and official "statements"); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 964-65 (1996) (same).
119. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996) (discussing norms and official "statements"); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 964-65 (1996) (same).
120. But see supra note 91.
121. See ELLIOT ARONSON, THE SOCIAL ANIMAL 63-64 (7th ed. 1995) (discussing copycat suicides); Phillips, supra note 26, at 341-42 (discussing relation between suicides and knowledge of other suicides).
122. See ARONSON, supra note 110, at 63-64.
123. See infra Subsection IV.A.3.
124. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 385-86 (1985) (suggesting that Roe should have been decided more narrowly and as equality case).
125. See Planned Parenthood v. Casey, 505 U.S. 833, 896-98 (1992) (plurality opinion) (referring to interest in sex equality); id. at 918-19 (Stevens, J., concurring in part and dissenting in part) (same); id. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (same).
126. See SUNSTEIN, supra note 29, at 270-85; Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 380 (1992); David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 18-22; Kenneth L. Karst, Book Review, 89 HARV. L. REV. 1028, 1036-37 (1976) (noting relevance of equality concerns to abortion question).
127. See SUNSTEIN, supra note 29, at 270-85; Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 380 (1992); David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 18-22; Kenneth L. Karst, Book Review, 89 HARV. L. REV. 1028, 1036-37 (1976) (noting relevance of equality concerns to abortion question).
128. See SUNSTEIN, supra note 29, at 270-85; Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 380 (1992); David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 18-22; Kenneth L. Karst, Book Review, 89 HARV. L. REV. 1028, 1036-37 (1976) (noting relevance of equality concerns to abortion question).
129. See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).
130. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 148-56 (2d ed. 1986) (discussing concept of desuetude).
131. See id.; see also RICHARD A. POSNER, SEX AND REASON 326-28 (1992) (discussing role of Catholic Church in preventing statutory change).
132. See infra note 152 and accompanying text. See generally BICKEL, supra note 117, at 148-56.
133. See infra text accompanying notes 162-64.
134. Perhaps it might be thought that politically weak groups are most vulnerable in a system lacking a formal right to physician-assisted suicide; many (wealthy, well-educated) people may have something like that right even in a system in which the right is not formally recognized. But politically weak people would also be at special risk in a system recognizing such a right; the risks of abuse might well operate most strongly against members of disadvantaged groups. Hence the interest in political equality does not seem to argue in any particular direction. Note in this regard that while a slight majority of whites favor physician-assisted suicide, African Americans oppose it by more than two to one. See HENDIN, supra note 11, at 180.
135. See Roe v. Wade, 410 U.S. 113, 162-64 (1973).
136. See infra text accompanying notes 143-45.
137. A suggestion to this effect is made by a defender of the right to active euthanasia. See BROCK, supra note 6, at 172 ("Different persons can reasonably reach different conclusions . . . .").
138. I am referring here to the general view of constitutional interpretation set out in ELY, supra note 4; see also JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 266 (William Rehg trans., Polity Press 1996) (1992) (arguing against judicial paternalism); SUNSTEIN, supra note 29, at 123-61 (embracing same general view). On this view, a democratic problem exists if a right central to democracy is at issue (for example, the right to free political speech) or if a group is being fenced out of political processes through formal exclusions or, more controversially, prejudice or "animus." See Romer v. Evans, 116 S. Ct. 1620, 1627 (1996) (striking down state constitutional amendment partly because it reflects "animus"). It might be thought that there is such a defect in light of the fact that religious groups can block change for religious reasons, and perhaps this accounts for current practice in some states. The short answer is that this is not the sort of defect that would justify a more aggressive judicial role. Religious groups of course are entitled to participate in democratic processes, and even if there are constraints on the kinds of arguments that they are entitled to make, the arguments typically invoked against physician-assisted suicide do not run afoul of those constraints. The case is different from Griswold v. Connecticut, 381 U.S. 479 (1965), where a well-organized religious minority, invoking a purely religious argument, was able to block a repeal that was very generally favored of a prohibition that was never directly enforced through the criminal law. See POSNER, supra note 118, at 324-28.
139. This is not to say that courts should defer to any minimally plausible legislative judgment; the critical fact here is that fully reasonable people might decide this issue either way, even though the Court might find one view more reasonable than the other as a matter of policy.
140. Cf. LEARNED HAND, The Spirit of Liberty, in THE SPIRIT OF LIBERTY 189, 190 (Irving Dilliard ed., 3d ed. enlarged 1960) (suggesting that spirit of liberty is spirit which "is not too sure that it is right").
141. Accord EPSTEIN, supra note 85 (manuscript ch. 17, at 2). Professor Epstein's view is notable insofar as he is a strong defender of the right to physician-assisted suicide as a matter of policy, see id. (manuscript ch. 16, at 2-3), and insofar as he is not reluctant to urge a strong judicial role in other areas, see RICHARD A. EPSTEIN, TAKINGS (1985) (arguing for aggressive protection of property rights).
142. See GERALD N. ROSENBERG, THE HOLLOW HOPE 175-201 (1991) (discussing limits of courts in producing social reform and complex effects of Roe v. Wade).
143. Cf. id. at 182-84 (discussing growing popular support for repeal of abortion laws prior to Roe). But see DAVID J. GARROW, LIBERTY AND SEXUALITY 616-17 (1994) (contending that states would not have moved in direction set by Roe). Whether or not Roe is a good example, the point certainly holds in general.
144. This right is vigorously urged in WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 123-82 (1996), which claims that the Constitution forbids laws banning same-sex marriage. 132. 347 U.S. 483 (1954).
145. Cf. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1220-28 (1978) (discussing rights that courts, for institutional reasons, underenforce).
146. 405 U.S. 438 (1972).
147. See id. at 454-55.
148. 80 F.3d 716 (2d Cir.), cert. granted, 117 S. Ct. 36 (1996).
149. Id. at 731.
150. For a philosophical discussion of this distinction, see, for example, BROCK, supra note 6, at 202-13.
151. See id.
152. Murder is, of course, prohibited in various forms, but states do not impose criminal penalties on the general failure to assist people who will die without help.
153. See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 56, at 338-43 (4th ed. 1971).
154. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-203 (1989) (holding that there is no affirmative right to action by state).
155. See David Orentlicher, The Legalization of Physician-Assisted Suicide, 335 NEW ENG. J. MED. 663, 665 (1996).
156. See Daniel Callahan, When Self-Determination Runs Amok, HASTINGS CENTER REP., Mar.-Apr. 1992, at 52, 53-55.
157. See HENDON, supra note 11, at 47-95. Recall that my suggestion is that the distinction is sufficiently plausible for constitutional purposes; the policy issue is different. See supra text accompanying notes 11-13; see also Orentlicher, supra note 143, at 665-66 (arguing that permitting assisted suicide in "limited" cases will bring law closer to society's moral values).
158. 316 U.S. 535 (1942) (invalidating law requiring sterilization of certain criminals).
159. 434 U.S. 374 (1978) (invalidating law forbidding people to marry unless they have met their support obligations).
160. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (striking down poll tax); Reynolds v. Sims, 377 U.S. 533 (1964) (articulating one person, one vote principle).
161. Quill v. Vacco, 80 F.3d 716, 731 (2d Cir.), cert. granted, 117 S. Ct. 36 (1996) (Calabresi, J., concurring in the result).
162. Cf. Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 639-59 (1980) (plurality opinion of Stevens, J.) (construing statute against ordinary language so as to avoid perceived unintended outcome); Church of the Holy Trinity v. United States, 143 U.S. 457, 472 (1892) (interpreting statute contrary to its plain meaning so as not to reach outcome likely disfavored by enacting legislature).
163. See BICKEL, supra note 117, at 148-56.
164. 381 U.S. 479 (1965); see Guido Calabresi, Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 122 n.136 (1991).
165. 116 S. Ct. 2264, 2277-79 (1996) (striking down law in part on ground that there was no actual purpose of promoting educational diversity and equal opportunity); see also Thompson v. Oklahoma, 487 U.S. 815, 857-58 (1988) (O'Connor, J., concurring) (voting to strike down law imposing death penalty with no minimum age provision on grounds that statute did not reflect actual and recent legislative judgments in light of subsequent statute allowing minors to be dealt with as adults in some cases); Califano v. Goldfarb, 430 U.S. 199, 223 n.9 (1977) (Stevens, J., concurring) ("Perhaps an actual, considered legislative choice would be sufficient to allow this statute to be upheld, but that is a question I would reserve until such a choice has been made.").
166. 116 S. Ct. at 2265.
167. See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979) (holding NLRB without jurisdiction over teachers in church-operated schools under the National Labor Relations Act so as to avoid First Amendment difficulties); Kent v. Dulles, 357 U.S. 116, 129 (1958) (construing statute so as to avoid constitutional doubts).
168. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (striking down vagrancy law for vagueness). A similar idea underlies the development of death penalty doctrine. In Furman v. Georgia, 408 U.S. 238 (1972), Justice White and Justice Stewart did not hold that death penalties were unconstitutional per se, but only that the death penalty had to be administered nonarbitrarily. See id. at 306-14 (White and Stewart, JJ., concurring). Once the public reaffirmed its commitment to capital punishment under more specific criteria after this form of "constitutional remand," the Court retreated. See Gregg v. Georgia, 428 U.S. 153, 179-81 (1976).
169. See GARROW, supra note 130, at 547-49
170. 426 U.S. 88 (1976).
171. See id. at 116.
172. See id.
173. See infra text accompanying notes 163-64.
174. See Compassion in Dying v. State of Washington, 49 F.3d 586, 590 (9th Cir. 1995), rev'd, 79 F.3d 790 (9th Cir.), cer. granted, 117 S. Ct. 37 (1996).
175. See Quill v. Vacco, 80 F.3d 716, 728 (2d Cir), cert. granted, 117 S. Ct. 36 (1996).
176. See id. at 734-35.
177. See id. at 735 ("inertia will not do"); accord BICKEL, supra note 117, at 148 (claiming that failure to repeal statute is not necessarily sufficient to rebut challenge on grounds of desuetude).
178. See POSNER, supra note 118, at 326-28 (defending Griswold and arguing that statute persisted only because of political power of Catholic Church).
179. For a recent discussion, see United States v. Virginia, \16 S. Ct. 2264, 2274-76 (1996), in which the Court invalidated same-sex education at Virginia Military Institute. AVISHAI MARGALIT, THE DECENT SOCIETY (1996), is, in my view, a relevant discussion of the phenomenon of "humiliation" via state channels.
180. See supra Section IV.B.
181. See Ginsburg, supra note 113, at 381-86 (urging narrower holding in Roe); see also Sunstein, supra note 72, at 49-50 (criticizing Roe for its "maximalism").