De-moralized: Glucksberg in the Malaise

Michigan Law Review

Volumn 106, Issue 8, 2008, Pages 1571-1591

  Smith, Steven D ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASSISTED SUICIDE; HUMAN; JURISPRUDENCE; LEGAL ASPECT; MEDICAL ETHICS; MORALITY; REVIEW; UNITED STATES;

ETHICS, MEDICAL; HUMANS; MORALS; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; UNITED STATES;

EID: 46649120329     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (121)

1. 521 U.S. 702 (1997).
2. 521 U.S. 793 (1997).
3. Glucksberg, 521 U.S. at 721.
4. For example, far from being "deeply rooted in this Nation's history and tradition," the abortion right announced in Roe v. Wade, 410 U.S. 113 (1973), was inconsistent with the law of most states at the time of the decision.
5. See Lucinda M. Finley, The Story of Roe v. Wade, in CONSTITUTIONAL LAW STORIES 359, 361-74 (Michael C. Dorf ed., 2004);
6. see also Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479, 1489 (2008) ("There is much that is unclear about the Glucksberg version of this formulation.");
7. Erwin Chemerinsky, Washington v. Glucksberg Was Tragically Wrong, 106 MICH. L. REV. 1501, 1505 (2008) ("[T]his assumption that a fundamental right exists only if there is a tradition of protecting it is wrong both descriptively and normatively. Descriptively, the Court has been willing to protect rights even though there has not been a tradition of protection."). And far from being amenable to "careful description," the right of privacy animating Roe and successor decisions has defied efforts by judges and scholars to say just what it is - or what it encompasses. The right's refractory character is amusingly reflected in a subchapter heading in a leading casebook: What Shall We Call This Segment - The Right to Engage in Homosexual Sodomy? Adult, Consensual Sexual Conduct in the Home? The Autonomy of Private Sexual Choices? Sexual Expression and Control of One's Body? Unconventional Sexual Lifestyles? The Right to Control One's Intimate Associations? The Right to Make Choices About the Most Intimate Aspects of One's Life? The Right to Be Let Alone?
8. JESSE H. CHOPER, RICHARD H. FALLON, JR., YALE KAMISAR & STEVEN H. SHIFFRIN, CONSTITUTIONAL LAW: CASES- COMMENTS-QUESTIONS 489 (10th. ed. 2006).
9. 539 U.S. 558 (2003).
10. Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1579 (2004).
11. Robert Post's judgment, though more celebratory and leaning to the grandiloquent, is similar in substance: Lawrence "simply shatters, with all the heartfelt urgency of deep conviction, the paralyzing carapace in which Glucksberg had sought to encase substantive due process." Robert C. Post, Foreword, Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 96 (2003).
12. Yale Kamisar, Foreword, Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy, 106 MICH. L. REV. 1453, 1460 (2008) ("After rereading Glucksberg many times, especially in light of what other commentators have had to say about it, I have come to the unhappy conclusion that it is possible to read the physician-assisted suicide cases as having decided 'virtually nothing.' Indeed, the more I reread the various opinions in Glucksberg, the more I get the feeling that this may be the most confusing and the most fragile 9-0 decision in Supreme Court history.").
13. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 MICH. L. REV. 15.17, 1519 (2008) ("Would the substitution of Roberts and Alito for William Rehnquist and Sandra Day O'Connor change the balance of the Court on matters of finding new constitutional rights unmoored in text and history? The opinion in Gonzales offers only cryptic hints on these questions, but the hints all point to Gluckberg.").
14. Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process Since Lawrence v. Texas, 105 MICH. L. REV. 409, 435-36, 442-43 (2006). The Note concludes that "|t]he lower courts almost certainly understand the social and political message Lawrence intended to convey, but as a matter of law, the decision provides almost no guidance."
15. Id. at 443.
16. Although legal scholars and others often talk about law's relation to morality as if there were some accepted understanding about what sort of thing the word refers to, an excursion into metaethics might prompt a bleaker conclusion. A leading metaethicist notes that "if one thing becomes clear by reading what philosophers writing in meta-ethics today have to say, it is surely that enormous gulfs exist between them, gulfs so wide that we must wonder whether they are talking about a common subject matter." MICHAEL SMITH, THE MORAL PROBLEM 3 (1994). For my own attempt to think about what morality might be,
17. see Steven D. Smith, The "Secular," the "Religious, " and the "Moral": What Are We Talking About?, 36 WAKE FOREST L. REV. 487 (2001).
18. For a helpful overview of the debate, see Larry Alexander, The Legal Enforcement of Morality, in A COMPANION TO APPLIED ETHICS 128 (R.G. Frey & Christopher Heath Wellman eds., 2003).
19. 478 U.S. 186 (1986). For an argument that both the majority opinion and the dissents in Bowers are analytically deficient, see Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 747-50 (1989).
20. 410 U.S. 113 (1973). Mark Tushnet has described "Justice Blackmun's opinion in Roe as an innovation .... It is the totally unreasoned judicial opinion." MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 54 (1988).
21. Cf. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 465 (2000) ("The opinions of the six justices make up the fullest and most candid debate between the historicist and the integrity understandings of the due process clause for many decades.").
22. Brief for Ronald Dworkin et al. as Amici Curiae in Support of Respondents, Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858, 96-110), 1996 WL 708956.
23. The brief was reprinted with additional commentary by Dworkin in the New York Review of Books. Ronald Dworkin et al., Assisted Suicide: The Philosophers' Brief, N. Y. REV. BOOKS, Mar. 27, 1997, at 41 [hereinafter Dworkin, Philosophers' Brief].
24. See infra notes 18, 56 and accompanying text.
25. Washington v. Glucksberg, 521 U.S. 702, 728-32 (1997).
26. For example, the asserted interest in protecting life may seem wholly unobjectionable when we are thinking about protecting the lives of people who desire to remain alive, as with a homicide law. But does the state have a legitimate interest in compelling individuals to remain alive if they do not wish to do so? Justice Stevens has argued that the claimed interest in preserving life for those who do not desire it is impermissibly "theological." Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 345-51 (1990) (Stevens, J., dissenting). Justice Souter, though concurring in the judgment in Glucksberg, declined to embrace the preserving-life rationale because he believed it reflected a "moral judgment contrary to [the patients']."
27. See Glucksberg, 521. U.S. at 782 (Souter, J., concurring).
28. In particular, the interest in preventing undue influence seemed persuasive even to Justices like Souter who were dubious about the state's more general interest in preserving life. See Glucksberg, 521 U.S. at 782-88 (Souter, J., concurring). This interest has been powerfully presented both in academic literature and in fiction.
29. See, e.g., Yale Kamisar, Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case, 88 J. CRIM. L. & CRIMINOLOGY 1121 (1998).
30. For a gripping fictional presentation of this concern, see P.D. JAMES, THE CHILDREN OF MEN 92-99 (Alfred A. Knopf 1993) (1992). (Like most of the engaging features of the novel, this scene was not presented in the movie of the same name.)
31. This permissive policy may be constitutionally required. See Cruzan, 497 U.S. at 278-79.
32. David P.T. Price, Assisted Suicide and Refusing Medical Treatment: Linguistics, Morals, and Legal Contortions, 4 MED. L. REV. 270, 272-73 (1996) ("Jurisdictions throughout the world have almost invariably declined to view refusals by competent patients of medical treatment which could prolong life as (physician-assisted) suicide.").
33. Judith Jarvis Thomson, Killing and Letting Die, in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE AND EUTHANASIA 104, 107 (Tom L. Beauchamp ed., 1995).
34. Compassion in Dying v. Washington, 79 F.3d 790, 824 (9th Cir. 1996), rev'd sub nom. Glucksberg, 521 U.S. 702.
35. Dworkin, Philosophers' Brief, supra note 15, at 45.
36. Vacco v. Quill, 521 U.S. 793, 801 (1997).
37. For a careful, critical assessment of the causation rationale, see Price, supra note 21, at 283-89.
38. Cf. Raymond G. Frey, Intention, Foresight, and Killing, in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE AND EUTHANASIA, supra note 22, at 66, 77 ("The doctor cannot... pass the buck to nature, to claim that the maladies of the patient were what killed the person; for the decision not to intervene is a part cause of the person's death").
39. Thomson, supra note 22, at 106. As these examples suggest, the difference between killing and letting die cannot be satisfactorily explained by reference to the legal distinction between acts and omissions any more than it can be explained by familiar notions of causation. Often the elimination of life-sustaining treatment will involve a conscious decision and affirmative steps by patient or doctor-actions, not mere omissions. Thomson's example of the malicious interloper who sneaks into a hospital room and deactivates a patient's life support demonstrates the point: we would surely say that the interloper acted to cause the patient's death.
40. See id.
41. Quill, 521 U.S. at 801-02 (citations omitted).
42. For a helpful presentation of the doctrine, see Alison McIntyre, Doctrine of Double Effect, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Summer 2006), http://plato.stanford.edu/archives/sum2006/entries/double-effect (last visited Sept. 15, 2007).
43. See, e.g., JONATHAN BENNETT, THE ACT ITSELF 194-225 (1995).
44. Cf. McIntyre, supra note 30, § 2 ("Many morally reflective people have been persuaded that something along the lines of double effect must be correct.").
45. The Second Circuit ruled that by prohibiting assisted suicide while permitting assistance in the refusal of life-sustaining treatment, New York irrationally discriminated among similarly situated persons, thus offending equal protection. Quill v. Vacco, 80 F.3d 716, 727-31 (2d Cir. 1996), rev'd 521 U.S. 793 (1996). The Ninth Circuit, sitting en banc, spoke in substantive-due-process terms, ruling that Washington's prohibition on assisted suicide restricted liberty without any rational basis. Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Washington, v. Glucksberg, 521 U.S. 702 (1997). The court discounted the interests asserted by the state-although these interests would apply equally to situations in which a patient chose to refuse life-sustaining treatment, the state did not attempt to vindicate its interests in those situations, and thus these interests could not in fact be very important. Id at 822-24.
46. See supra note 21 and accompanying text.
47. Quill v. Koppell, 870 F. Supp. 78, 84 (S.D.N.Y. 1994), rev'd sub nom. Quill v. Vacco, 80 F.3d 716 (2d. Cir. 1996), rev'd, 521 U.S. 793 (1996) (emphasis added).
48. RONALD DWORKIN, LIFE'S DOMINION 88 (1993) (emphasis added).
49. Id. at 89.
50. See id. at 13, 88. However, Dworkin argues that the harm is "less if it occurs after any investment [in life] has been substantially fulfilled, or as substantially fulfilled as is anyway likely."
51. Id. at 88.
52. Compare Chemerinsky, supra note 4, at 1513 ("To recognize a right to assisted dying for competent, termiminally ill patients does not as a matter of necessity lead to a right to physician-assisted suicide for others. Lines can be drawn. For instance, the right can be limited to terminally ill patients."),
53. with Kamisar, supra note 7, at 1471 ("Though proponents claim a new right may be limited to [physician-assisted suicide] for terminally ill patients, the limits they impose appear difficult to defend both in principle and in practice.").
54. Compassion in Dying v. Washington, 850 F. Supp. 1454, 1464 (W.D. Wash. 1994) (emphasis added), aff'd, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997).
55. Compassion in Dying v. Washington, 49 F.3d 586, 594 n.2 (9th Cir. 1995) (Wright, J., dissenting) (emphasis added), rev'd en banc, 79 F.3d 790, rev'd sub nom. Glucksberg, 521 U.S. 702. The Second Circuit decision agreed that "[s]urely, the state's interest [in preserving life] lessens as the potential for life diminishes." Quill, 80 F.3d at 729.
56. Compassion in Dying, 79 F.3d at 820 (emphasis added).
57. Id. at 821 (emphasis added).
58. A similar disagreement runs through the larger public debate. One familiar position holds that so long as a person's body can continue functioning-without extraordinary artificial support, perhaps? - then nature has not yet signaled that this person's part is over. But it is also possible to interpret terminal illness - combined with extreme suffering, perhaps? - as a person's cue to exit: someone who insists on clinging to life under those conditions is like an actor who won't get off the stage even though his role is finished. To shift the metaphor, people disagree about whether particular death-hastening actions - removing a food or hydration tube, injecting a lethal dose of morphine - are more like running out the clock, as the rules of the game permit, or more like running off the field before the game is over.
59. Cf. Albert R. Jonsen, Criteria that Make Intentional Killing Unjustified, in INTENDING DEATH: THE ETHICS OF ASSISTED SUICIDE AND EUTHANASIA, supra note 22, at 42, 50-52 (arguing that although most proponents of a "right to die" would limit the right to terminally ill persons, this limit cannot be squared with the professed commitment to self-determination as the decisive value).
60. For a very helpful study of this view, see RÉMI BRAGUE, THE WISDOM OF THE WORLD: THE HUMAN EXPERIENCE OF THE UNIVERSE IN WESTERN THOUGHT (Teresa Lavender Fagan trans., Univ. of Chi. Press 2003) (1999). Louis Dupré explains the classical assumption that nature reflects an ontotheological synthesis:
61. Nature ideologically directs organic processes to their destined perfection. It establishes the norms that things developing in time must follow if they are to attain their projected end. The more comprehensive term kosmos constitutes the ordered totality of being that coordinates those processes as well as the laws that rule them. Kosmos includes, next to the physis of organic being, the ethos of personal conduct and social structures, the nomos of normative custom and law, and the logos, the rational foundation that normatively rules all aspects of the cosmic development.
62. LOUIS DUPRÉ, PASSAGE TO MODERNITY 17-18 (1993).
63. LEON R. KASS, TOWARD A MORE NATURAL SCIENCE: BIOLOGY AND HUMAN AFFAIRS 259 (1985).
64. Michael J. Seidler, Kant and the Stoics on Suicide, 44 J. HIST. IDEAS 429, 432 (1983).
65. JOHN LOCKE, SECOND TREATISE ON GOVERNMENT 9 (C.B. Macpherson ed., Hackett Publ'g 1980) (1690).
66. Id.
67. For a particularly salient example, see JOHN PAUL II, THE GOSPEL OF LIFE (Evangelium Vitae) 115-24 (1995).
68. STEVEN WEINBERG, THE FIRST THREE MINUTES: A MODERN VIEW OF THE ORIGIN OF THE UNIVERSE 154 (1977). Remi Brague explains that in a modern scientific perspective, "[n]ature appears indifferent to human activities." BRAGUE, supra note 46, at 195.
69. BERTRAND RUSSELL, A Free Man's Worship, in WHY I AM NOT A CHRISTIAN 104, 107 (Paul Edwards ed., 1957).
70. For discussion, see STEVEN D. SMITH, LAW'S QUANDARY 33-37 (2004). Though widely accepted today, this restriction is in fact of comparatively recent vintage. Stuart Banner explains that during the nineteenth century, "[f]rom the United States Supreme Court to scattered local courts, from Kent and Story to dozens of writers no one remembers today, Christianity was generally accepted to be part of the common law."
71. Stuart Banner, When Christianity Was Part of the Common Law, 16 LAW & HIST. REV. 27, 43 (1998). Charles Reid shows that courts regularly invoked beliefs about the divinely ordained status of marriage in domestic-relations cases until well into the twentieth century.
72. Charles J. Reid, Jr., Marriage: Its Relationship to Religion, Law, and the State, 68 JURIST (forthcoming 2008), available at http://papers.ssrn.com/abstract=1008992.
73. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
74. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 345-51 (1990) (Stevens, J., dissenting); Webster v. Reprod. Health Servs., 492 U.S. 490, 565-72 (1989) (Stevens, J., concurring in part and dissenting in part).
75. A revealing sample of such opinions is provided in Richard Posner's Holmes lectures of a few years ago and the various passionate responses. See Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998);
76. Ronald Dworkin, Darwin's New Bulldog, 111 HARV. L. REV. 1718 (1998);
77. Charles Fried, Philosophy Matters, 111 HARV. L. REV. 1739 (1998);
78. Anthony T. Kronman, The Value of Moral Philosophy, 111 HARV. L. REV. 1751 (1998);
79. John T. Noonan, Jr., Posner's Problematics, 111 HARV. L. REV. 1768 (1998);
80. Martha C. Nussbaum, Still Worth of Praise, 111 HARV. L. REV. 1776 (1998).
81. Martha C. Nussbaum, Skepticism about Practical Reason in Literature and the Law, 107 HARV. L. REV. 714, 740 (1994).
82. See, e.g., RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 3-90 (1999).
83. John Stuart Mill, Utilitarianism, in UTILITARIANISM AND OTHER ESSAYS 272, 326 (Alan Ryan ed., 1987).
84. Id. at 325-26.
85. ALASDAIR MACINTYRE, AFTER VIRTUE (2d ed. 1984). MacIntyre's diagnosis elaborated on a view more succinctly expressed in a classic essay by Elizabeth Anscombe.
86. See G.E.M. Anscombe, Modern Moral Philosophy, in ANALYTIC PHILOSOPHY: AN ANTHOLOGY 381 (A.P. Martinich & David Sosa eds., 2001).
87. In a similar vein, see W.T. STACE, MAN AGAINST DARKNESS AND OTHER ESSAYS 10 (1967).
88. RAIMOND GAITA, A COMMON HUMANITY: THINKING ABOUT LOVE AND TRUTH AND JUSTICE 5 (Routledge 2000) (1998).
89. I encountered this quotation in Michael J. Perry, Morality and Normativity (Emory Univ. Sch. of Law Pub. Law & Legal Theory Research Paper Series, Paper No. 07-1.8, 2007), available at http://ssrn.com/ abstract=1009604. Perry quotes and discusses a number of other philosophers who make similar claims.
90. Id. at 32-39.
91. Arthur Allen Leff, Unspeakable Ethics, Unnatural Law, 1979 DUKE L.J. 1229;
92. see also Perry, supra note 63. I have developed similar criticisms at greater length elsewhere.
93. See, e.g., STEVEN D. SMITH, THE CONSTITUTION & THE PRIDE OF REASON 15-30, 84-91 (1998);
94. Smith, supra note 10.
95. JOHN M. RIST, REAL ETHICS: RETHINKING THE FOUNDATIONS OF MORALITY 44 (2002).
96. Id. at 37-38.
97. RICHARD JOYCE, THE MYTH OF MORALITY (2001);
98. J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG (1977).
99. See, e.g., 1 F.M. KAMM, MORALITY, MORTALITY 7 (1993) ("We present hypothetical cases for consideration and seek judgments about what may and may not be done in them. The fact that these cases are hypothetical and often fantastic distinguishes this enterprise from straightforward applied ethics....").
100. Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 59-61 (1971).
101. The problem, by now discussed in countless articles and books, is said to have been introduced by Philippa Foot. See PHILIPPA FOOT, The Problem of Abortion and the Doctrine of the Double Effect, in VIRTUES AND VICES 19, 23-24 (1978).
102. See, e.g., KAMM, supra note 68.
103. For a helpful presentation of some of these questions as they arise in adjudication, see R. George Wright, The Role of Intuition in Judicial Decisionmaking, 42 Hous. L. REV. 1381, 1391-98 (2006).
104. For a careful attempt to defend ethical intuitionism by attaching it to Kant's moral imperatives, see ROBERT AUDI, THE GOOD IN THE RIGHT: A THEORY OF INTUITION AND INTRINSIC VALUE (2004). Even if an account such as Audi's is persuasive, however, that account would not necessarily provide a good justification for the way intuitions are used in much moral philosophizing today. Thus Audi notes that "[a]ppeals to intuitions in resolving moral questions are a pervasive strategy in contemporary ethical discourse" but that "only a small proportion of the many who appeal to intuitions ... as evidence in ethical theorizing would espouse ethical intuitionism."
105. Id. at 24.
106. For a discussion of the difficulty of saying what a moral judgment, feeling, or intuition is, see ALEXANDER MILLER, AN INTRODUCTION TO CONTEMPORARY METAETHICS 43-46 (2003).
107. 438 U.S. 265 (1978).
108. See MACINTYRE, supra note 62, at 253.
109. For a critical discussion, see Larry Alexander & Maimon Schwarzschild, Grutter or Otherwise: Racial Preferences and Higher Education, 21 CONST. COMMENT. 3 (2004).
110. MACINTYRE, supra note 62, at 263.
111. For a description of this reversal in fortunes and a defense of formalism in law, see Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 166-84 (2006).
112. For a modest and pragmatic proposal in this vein, see Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 355 (2006).
113. For my own defense of a traditionalist approach in Establishment Clause jurisprudence, see Steven D. Smith, Separation as a Tradition, 18 J.L. & POL. 215 (2002).
114. For Devlin's position, see PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965). For one among many arguments criticizing Devlin for giving too much weight to convention and too little to reasoning in determining morality,
115. see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 240-55 (1977).
116. This would be a somewhat different rationale for the use of tradition in constitutional law than the ones discussed and criticized in Cass R. Sunstein, Due Process Traditionalism, 106 MICH. L. REV. 1543 (2008).
117. For a thoroughgoing criticism, see Lund & McGinnis, supra note 6, at 1557 ("The Lawrence opinion is a tissue of sophistries embroidered with a bit of sophomoric philosophizing.");
118. see also Gregory Kalscheur, Moral Limits on Morals Legislation: Lessons for U.S. Constitutional Law from the Declaration on Religious Freedom, 16 S. CAL. INTERDISC. L.J. 1, 3 (2006) ("The opinions produced by the Justices... in Lawrence provide compelling evidence that the persistent American confusion about the proper relationship between law and morality has now bome fruit in doctrinal incoherence.").
119. Washington v. Glucksberg, 521 U.S. 702, 721 (1997); see also supra note 3 and accompanying text.
120. See supra note 6.
121. For a lengthy assessment of that environment, see SMITH, supra note 54, chs. 3, 4,7.