Roe v. Wade and the euthanasia debate

Issues in Law and Medicine

Volumn 12, Issue 4, 1997, Pages 343-354

  Bopp Jr , James ^a,b,c   Coleson, Richard E ^a,c,d,e  

^a Bopp Coleson and Bostrom   (United States)

^b Natl Right to Life Committee Inc   (United States)

^c National Legal Center for the Medically Dependent and Disabled Inc   (United States)

^d Indiana Citizens for Life ^*  (United States)

^e Riley and Oak Hill United Methodist Churches   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ASSISTED SUICIDE; DEATH AND EUTHANASIA; ETHICS; EUTHANASIA; FAMILY PLANNING; FEMALE; FOURTEENTH AMENDMENT; GENETICS AND REPRODUCTION; GOVERNMENT REGULATION; HUMAN; HUMAN RIGHTS; JURISPRUDENCE; LEGAL APPROACH; LEGAL ASPECT; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY; PREGNANCY; PREGNANT WOMAN; PUBLIC OPINION; ROE V. WADE; THERAPEUTIC ABORTION; UNITED STATES;

DEATH AND EUTHANASIA; FOURTEENTH AMENDMENT; GENETICS AND REPRODUCTION; LEGAL APPROACH; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY; ROE V. WADE;

ABORTION, LEGAL; EUTHANASIA; FAMILY PLANNING SERVICES; FEMALE; GOVERNMENT REGULATION; HUMAN RIGHTS; HUMANS; PREGNANCY; PREGNANT WOMEN; PUBLIC OPINION; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; UNITED STATES; WEDGE ARGUMENT;

EID: 0031085336     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Short Survey

References (41)

1. The goal of this article is to succinctly examine one of the two pillars upon which the Ninth Circuit rested its newly created right to assisted suicide, namely, the right to abortion. The goal is not to do an exhaustive examination of Roe v. Wade, 410 U.S. 113 (1973), for which the reader is respectfully referred to James Bopp, Jr. & Richard E. Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J. PUB. L. 181 (1989) (dealing exhaustively with the abortion distortion effect, i.e., the way in which neutral principles of law have been consistently bent in an outcome-driven direction in Roe and its progeny). This article has also not set for itself the task of explaining in exhaustive detail why substantive due process analysis (the constitutional analysis that permits the Supreme Court to create new constitutional rights by reading them into the "liberty" guaranteed by the due process clause of the fourteenth amendment to the U.S. Constitution) is a highly suspect form of constitutional adjudication.
2. James Bopp, Jr. & Richard E. Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J. PUB. L. id., 181
3. and ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990). The audience anticipated for this article is in part one without legal training (so that an effort will be made to explain legal terms), or extensive familiarity with the Supreme Court's analysis in Roe and Planned Parenthood v. Casey, 505 U.S. 833 (1992), or the Ninth Circuit's effort to apply that analysis to create a right to assisted suicide in Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995). Therefore, there will be a recounting of older decisions (and criticisms of them) that will not be news to a legal scholar. These tales bear retelling, however, because the Ninth Circuit has relied upon them in creating a new constitutional right. Finally, the authors are fully aware that the Supreme Court may overrule the Ninth Circuit on the basis that the right to abortion is unique (sui generis) and, in fact, have argued in a friend of the Court brief in the Supreme Court that the Court is not bound to find a right to assisted suicide on the basis of Cczsey's analysis. However, that does not vitiate the fact that the sort of analysis employed in Roe and Cosey permits a court willing to exercise raw judicial power to create a right to assisted suicide. The analysis is flawed and ought to be permanently abandoned, as the Court expressed its intent to do a scant decade before Roe.
4. In a supremely ironic statement, Judge Reinhardt, author of the opinion declaring a right to assisted suicide in Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996), insisted there were no legitimate slippery slope concerns with respect to declaring a right to assisted suicide. He opined that [b]oth before and after women were found to have a right to have an abortion, critics contended that legalizing that medical procedure would lead to its widespread use as a substitute for other forms of birth control or as a means of racial genocide. . . . The slippery slope fears of Roe's opponents have, of course, not materialized. Id. at 830-31. He insisted this despite the facts that there are approximately 1.5 million abortions per year in America since Roe and that most of these are for convenience reasons (with well over 90% done for reasons other than to preserve the life or health of the mother or because of rape or incest). Judge Reinhardt asserted this even as he was in the very act of fulfilling the predictions he eschewed with his declaration of a right to assisted suicide on the basis of the analysis used in the abortion cases.
5. This article will focus on the Ninth Circuit case, which relied on substantive due process to find a right to assisted suicide. As noted in the text, the Second Circuit and the Michigan Supreme Court have decided that there is no substantive due process right. The Second Circuit found a right under the equal protection guarantee, which the Michigan Supreme Court also rejected. Briefs of the state officials appealing both decisions were filed in the Supreme Court on November 12, 1996, with opposing briefs filed on December 10 and reply briefs filed on December 27. Oral argument in both cases was heard on January 8, 1997. The Ninth Circuit decision is Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996), cert. granted sub nom. Washington v. Glucksberg, 65 U.S.L.W. 3254 (Oct. 1, 1996) (No. 96-110). The Second Circuit decision is Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), cert. granted sub nom. Vacco v. Quill, 65 U.S.L.W. 3254 (Oct. 1, 1996) (No. 95-1858).
6. Roe v. Wade, 410 U.S. 113 (1973).
7. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
8. Some of these critiques are discussed in the text infra.
9. The ninth amendment to the Constitution (1791) states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The tenth amendment (1791) states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
10. Lochner v. New York, 198 U.S. 45 (1905).
11. Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) (footnotes and citations omitted).
12. Id. at 730.
13. Id. (emphasis added).
14. Roe, 410 U.S. at 153.
15. Scholarly criticism included comments by luminaries Epstein and Ely. Richard Epstein commented on the Roe Court's effort to distill a right of privacy from its prior decisions that "it is difficult to see how the concept of privacy linked the cases cited by the Court, much less . . . explains the result in the abortion cases." Richard A. Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159, 170.
16. John Hart Ely declared: "The Court has offered little assistance to one's understanding of what it is that makes [the privacy 'precedents'] a unit." John Hart Ely, Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5 (1978).
17. Griswold v. Connecticut, 381 U.S. 479, 502 (1965) (Harlan, J., concurring).
18. Roe, 410 U.S. at 152 (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
19. See Duncan v. Louisiana, 391 U.S. 145 (1968); Moore v. East Cleveland, 431 U.S. 494 (1977).
20. The following discussion permits discussion of only a few scholarly critiques of Roe. See generally James Bopp, Jr. & Richard E. Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J. PUB. L. 181 (1989) (cataloging numerous critiques of Roe and discussing at length the flaws of abortion jurisprudence).
21. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973).
22. ARCHIBALD COX, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113-14 (1976).
23. ALEXANDER BICKEL, THE MORALITY OF CONSENT 27 (1975).
24. Epstein, supra note 13, at 184.
25. Id. at 185.
26. Casey, 505 U.S. 833.
27. Id. at 848.
28. Id. at 849.
29. Id. at 851.
30. Id.
31. Cf. Roe, 410 U.S. at 163.
32. Casey, 505 U.S. at 876 (plurality opinion).
33. Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (W.D. Wash. 1994).
34. Id.
35. Id. at 1460.
36. Id. at 1464-65.
37. Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995).
38. Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996).
39. Id. at 801.
40. Id. (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)).
41. People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994), cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1996).