Can Glucksberg survive lawrence? Another look at the end of life and personal automony

Issues in Law and Medicine

Volumn 24, Issue 2, 2008, Pages 95-119

  Kamisar, Yale ^a,b  

^a UNIVERSITY OF SAN DIEGO   (United States)

^b UNIVERSITY OF MICHIGAN   (United States)

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EID: 57749177129     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (175)

1. 521 U.S. 702 (1997).
2. But see infra text accompanying notes 67-78.
3. 521 U.S. 793 (1997).
4. Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479 (2008);
5. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 MICH. L. REV. 1517 (2008);
6. Erwin Chemerinsky, Washington v. Glucksberg Was Tragically Wrong, 106 MICH. L. REV. 1501 (2008).
7. Cass R. Sunstein, Due Process Traditionalism, 106 MICH. L. REV. 1453 (2008).
8. Steven D. Smith, De-Moralized: Glucksberg in the Malaise, 106 MICH. L. REV. 1571 (2008);
9. Marc Spindelman, Death, Dying, and Domination, 106 MICH. L. REV. 1641 (2008).
10. Herbert Hendin & Kathleen Foley, Physician-Assisted Suicide in Oregon: A Medical Perspective, 106 MICH. L. REV. 1613 (2008);
11. Kathryn L. Tucker, In the Laboratory of the States: The Progress of Glucksberg's Invitation to States to Address End of Life Choice, 106 MICH. L. REV. 1593 (2008).
12. 539 U.S. 558 (2003).
13. 478 U.S. 186 (1986).
14. Lawrence, 539 U.S. at 578.
15. Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process Since Lawrence v. Texas, 105 MICH. L. REV. 409, 410 (2006). Mr. Hawkins goes on to say, however, that his scrutiny of 102 post-Lawrence lower court cases "indicates that the Glucksberg Doctrine has not only survived Lawrence, but has flourished." Id. at 411. Indeed, "[m]ost cases from [the survey] ignore Lawrence completely." Id.
16. Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1578 (2004).
17. Id. at 1579; see also Calabresi, supra note 4, at 1525.
18. Washington v. Glucksberg, 521 U.S. 702, 720-21, 723, 727 (1997). For the view that O'Connor, one of the four other Justices who joined Rehnquist's opinion, did not even agree with Rehnquist that a fundamental liberty interest - one that requires the state to come forward with a strong justification for intruding on that interest - has to be "deeply rooted in this Nation's history and tradition," see Ronald Dworkin, Assisted Suicide: What the Court Really Said, N.Y. REV. BOOKS, Sept. 25, 1997, at 40,
19. and Cass R. Sunstein, Supreme Caution: Once Again, the High Court Takes Only Small Steps, WASH. POST, July 6, 1997, at C1. As to whether Chief Justice Rehnquist's Glucksberg framework accurately describes substantive due process cases preceding Glucksberg, compare, in this Symposium, Chemerinsky, supra note 4, at 1504-06, and Smith, supra note 6, at 1572, with Sunstein, supra note 5, at 1544-45.
20. See Barnett, supra note 4, at 1489-91, which maintains that there is always more than one way to plausibly define the particular liberty at issue.
21. Lawrence v. Texas, 539 U.S. 558, 571 (2003).
22. Glucksberg, 521 U.S. at 721.
23. 381 U.S. 479 (1965). Griswold was followed by Loving v. Virginia, 388 U.S. 1 (1967), Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410 U.S. 113 (1973), Moore v. City of East Cleveland, 431 U.S. 494 (1977), and Carey v. Population Services International, 431 U.S. 678 (1977).
24. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 738 (1989).
25. See Yale Kamisar, Against Assisted Suicide - Even a Very Limited Form, 72 U. DET. MERCY L. REV. 735, 763-64 (1995).
26. Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).
27. Rubenfeld, supra note 19, at 749.
28. Bowers, 478 U.S. at 194.
29. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
30. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992).
31. Id. at 851, quoted in Lawrence, 539 U.S. at 574.
32. Washington v. Glucksberg, 521 U.S. 702, 727 (1997).
33. Id. at 727-28 (citation omitted).
34. Lawrence, 539 U.S. at 574.
35. Cf. Brief for the American Civil Liberties Union & the ACLU of Texas as Amici Curiae Supporting Petitioner at 3, Lawrence, 539 U.S. 558 (No. 02-102), 2003 WL 164132. The ACLU argued: [I]t is only a unifying principle of personal autonomy that serves to limit an otherwise boundless, tyrannical state power over every detail of personal life. And only such a unifying principle renders this Court's privacy decisions a coherent whole, instead of a series of disjointed pin-points of constitutional protection unconnected by principle or logic. Id. "Counsel of Record" for the ACLU brief was Professor Laurence H. Tribe, who also represented the plaintiffs in Quill.
36. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 1.
37. This provides support for the view that the challenged restriction on PAS implicates a fundamental right, but it does not end the inquiry. If the state's countervailing interests are powerful enough, they may override the "liberty interest" in PAS. See Cass R. Sunstein, The Right to Die, 106 YALE L.J. 1123, 1124 (1997) (arguing that even if there is a fundamental right to PAS, there are state interests sufficiently compelling to render prohibitions on PAS constitutional). But see Chemerinsky, supra note 4 (arguing that the Glucksberg Court should have applied strict scrutiny and struck down the prohibition on PAS).
38. For the view that Lawrence points the way to an alternative to the modern doctrine of fundamental rights that would require the government to justify its restriction on liberty instead of requiring the individual to establish that the liberty being restricted is "fundamental," see Randy Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-03 CATO SUP. CT. REV. 21, 35-36.
39. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992); see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1337-38 (2d ed. 1988); cf. Chemerinsky, supra note 4, at 1506-07.
40. Brief of Respondents at i, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110), 1996 WL 708925 (emphasis added).
41. Transcript of Oral Argument at 26-27, Glucksberg, 521 U.S. 702 (No. 96-110), 1997 WL 13671 (emphasis added).
42. Transcript of Oral Argument at 55-56, Vacco v. Quill, 521 U.S. 793 (1997) (No. 951858), 1997 WL 13672 (emphasis added).
43. Id. at 56 (emphasis added).
44. Yale Kamisar, On the Meaning and Impact of the Physician-Assisted Suicide Cases, 82 MINN. L. REV. 895, 912 (1998).
45. Glucksberg, 521 U.S. at 723. Elsewhere, however, Rehnquist does make it clear that the issue to be resolved was not whether the Court's "liberty jurisprudence" supported a right to suicide, but whether it supported a right to assisted suicide. Id. at 724.
46. N.Y. STATE TASK FORCE ON LIFE & THE LAW, WHEN DEATH IS SOUGHT: ASSISTED SUICIDE AND EUTHANASIA IN THE MEDICAL CONTEXT, at xi (1994) [hereinafter TASK FORCE REPORT].
47. Perhaps deliberately avoiding the terms "suicide" and "assisted suicide" (terms that carry strongly negative associations), the Ninth Circuit had used such synonyms as "right to die," "controlling the time and manner of one's death," "choosing a dignified and humane death," and "individuals' right to determine their own destiny." Compassion in Dying v. Washington, 79 F.3d 790, 801, 814, 816 (9th Cir. 1996) (en banc), rev'd sub nom. Glucksberg, 521 U.S. 702; see also id. at 798-99. As I have suggested elsewhere, Rehnquist may have been annoyed at what he may have considered the Ninth Circuit's emotive and euphemistic language for "suicide" and believed that the statement of the "question presented" should feature that term prominently. See Kamisar, supra note 38, at 913.
48. Glucksberg, 521 U.S. at 709 (quoting Compassion in Dying, 79 F.3d at 837). Rehnquist referred to this language again later in the opinion. Id. at 709 n.6, 732-33.
49. Id. at 735 (quoting Compassion in Dying, 79 F.3d at 838). He then dropped a footnote which added, "We emphasize that we today reject the [Ninth Circuit's] specific holding that the statute is unconstitutional 'as applied' to a particular class." Id. at 735 n.24.
50. See id. at 729 (quoting Compassion in Dying, 79 F.3d at 817).
51. Id. at 736 (O'Connor, J., concurring).
52. Id.
53. Id.
54. However, Justice O'Connor certainly didn't dissent from Rehnquist's opinion either. There is no indication, for example, that she interprets the stirring language in Casey any more expansively than did Chief Justice Rehnquist or that she has any more difficulty than he did accepting the distinction between forgoing life-sustaining medical treatment and actually intervening to bring about death. Moreover, she does say that "[t]here is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure." Id. at 737. It is also possible to read Justice O'Connors opinion as indicating that she is inclined to agree with Rehnquist that the state's interests are sufficient to justify a ban on assisted suicide even for terminally ill patients suffering great pain, so long as dying patients can obtain palliative care.
55. Id. at 789 (Ginsburg, J., concurring).
56. Id. (Breyer, J., concurring).
57. Id. at 790.
58. Id.
59. Id.
60. Id. at 791.
61. Id.
62. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 138-39 (1997); see also infra text accompanying notes 61-64, 72-78.
63. See Robert A. Burt, The Supreme Court Speaks - Not Assisted Suicide But a Constitutional Right to Palliative Care, 337 NEW ENG. J. MED. 1234 (1997); Kamisar, supra note 38, at 908-09. This point implicates a concept known as the "double effect" principle, which, in the context of pain relief, means that a physician (a) may not administer a lethal dose of drugs for the very purpose of killing the patient, but (b) may administer increasing dosages of drugs to relieve the patients increasing pain - even though doing so will foreseeably hasten or increase the risk of death - so long as the dosage was not intended to produce death but to relieve pain. For a helpful discussion of the "double effect" principle, see, in this Symposium, Smith, supra note 6, at 1578-79. As I have discussed elsewhere, the view that pain relief must be permitted even when the level of medication is high enough to bring about death helps PAS opponents, for one of their principal arguments is that health professionals can effectively meet their patients' need for compassionate end-of-life care without yielding to requests for assisted suicide. Kamisar, supra note 38, at 909-10.
64. In rare instances, it should be noted, nothing will relieve great pain and suffering except terminal sedation, a technique which renders a dying patient unconscious or stuperous until the end finally comes. See Norman L. Cantor, Twenty-Five Years After Quinlan: A Review of the Jurisprudence of Death and Dying, 29 J.L. MED. & ETHICS 182, 187 (2001).
65. I share Professor Cantors view that some forms of terminal sedation take us into "legally uncharted territory." Id.; see also David Orentlicher, The Supreme Court and Terminal Sedation: Rejecting Assisted Suicide; Embracing Euthanasia, 24 HASTINGS CONST. L.Q. 947, 956-60 (1997) (likening some forms of terminal sedation to active euthanasia). I also agree with Professor Cantor that it is "doubtful" that any of the concurring Justices in Glucksberg who made favorable references to the use of analgesics at high enough levels to cause unconsciousness were endorsing all forms of terminal sedation. Cantor, supra, at 187.
66. It appears that pain or the fear of pain is less often a decisive factor when patients seek assisted suicide than a feeling of "indignity," "degradation," or loss of control. See, e.g., Arthur E. Chin et al., Legalized Physician-Assisted Suicide in Oregon - The First Year's Experience, 340 NEW ENG. J. MED. 577, 581 tbl.3 (1999);
67. Peter J. Hammer, Assisted Suicide and the Challenge of Individually Determined Collective Rationality, in LAW AT THE END OF LIFE: THE SUPREME COURT AND ASSISTED SUICIDE 239, 263-64 (Carl E. Schneider ed., 2000);
68. Eric A. Johnson, Assisted Suicide, Liberal Individualism, and Visceral Jurisprudence: A Reply to Professor Chemerinsky, 20 ALASKA L. REV. 321, 324-27 (2003); see also Hendin & Foley, supra note 7, at 1635-36. Some patients, therefore, will undoubtedly be appalled by the helplessness and indignity brought about by some forms of terminal sedation, and strongly resist these procedures (especially when they have several weeks to live). They will do so even though there is no alternative way to ease their pain. This small category of cases probably constitutes the strongest set of circumstances for PAS (or for active euthanasia).
69. Glucksberg, 521 U.S. at 752 (Souter, J., concurring) (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting)).
70. Id. at 782. As to whether a moral judgment is a valid state interest, compare the views of two contributors to this Symposium, Barnett, supra note 32 at 36-38, and Smith, supra note 6, at 1584-88.
71. Glucksberg, 521 U.S. at 782 (Souter, J., concurring).
72. See id. at 778-79, 781-82, 785.
73. Id. at 785.
74. Id.
75. Id. at 785-86 (emphasis added).
76. Id. at 789.
77. Id. at 738 (Stevens, J., concurring).
78. See supra text accompanying notes 39-44. For a helpful discussion of "on its face" and "as applied" challenges in the Glucksberg context, see Sonia M. Suter, Ambivalent Unanimity: An Analysis of the Supreme Court's Holding, in LAW AT THE END OF LIFE: THE SUPREME COURT AND ASSISTED SUICIDE, supra note 57, at 25, 29-32.
79. See Glucksberg, 521 U.S. at 739, 740 (Stevens, J., concurring).
80. See supra text accompanying notes 45-48.
81. Glucksberg, 521 U.S. at 739 (Stevens, J., concurring).
82. Id. If, as Justice Stevens maintained, physicians lacked standing to challenge laws prohibiting assisted suicide, how could appellate courts ever consider a challenge as applied to terminally ill patients? All terminally ill patients (often defined as those who will die within six months) necessarily will die before completion of the litigation. In the Glucksberg case itself all but one of the patient-plaintiffs had died even by the time the district court had issued its decision. Moreover, the view that "physicians have standing to assert the legal rights of their patients has been established in many cases." Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 UTAH L. REV. 665, 677.
83. Glucksberg, 521 U.S. at 752-53 (Sourer, J., concurring); see also id. at 753 ("I take it to be true, as [the physician-plaintiffs] say, that the Washington statute prevents the exercise of a physicians 'best professional judgment to prescribe medications to [mentally competent, terminally ill] patients in dosages that would enable them to act to hasten their own deaths.'").
84. Id. at 741 (Stevens, J., concurring) (quoting id. at 723 (majority opinion)).
85. Id. at 742.
86. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990). This case, ably discussed in Louis Michael Seidman, Confusion at the Border: Cruzan, "The Right to Die," and the Public/Private Distinction, 1991 SUP. CT. REV. 47, involved a woman (Nancy Beth Cruzan) who had been in a persistent vegetative state for many years and was being kept alive by means of a feeding tube. Her parents sought to discontinue the tubal feeding, but were rebuffed by hospital officials and turned to the courts. The state supreme court ruled that, in the absence of a living will, they had to show "clear and convincing" evidence of their daughter's wish to be free of life support. The U.S. Supreme Court affirmed five to four, per Chief Justice Rehnquist, but assumed for purposes of the case that a competent person would have a "constitutionally protected right to refuse lifesaving hydration and nutrition." Cruzan, 497 U.S. at 279. As noted elsewhere in this Symposium, five members of the Cruzan Court - concurring Justice O'Connor and the four dissenters - seemed to go further than the Chief Justice and to assert that the right of competent persons to reject lifesaving medical treatment does exist. Chemerinsky, supra note 4, at 1507-08.
87. For the dramatic aftermath of the Cruzan case, see Carl E. Schneider, The Road to Glucksberg, in LAW AT THE END OF LIFE: THE SUPREME COURT AND ASSISTED SUICIDE, supra note 57, at 11, 18.
88. See infra Section II.D.
89. See infra Section 11.C.
90. Glucksberg, 521 U.S. at 742-43, 745 (quoting Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
91. Lawrence v. Texas, 539 U.S. 558, 577-78 (2003).
92. Id. at 578.
93. Id.
94. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CT. REV. 27, 30;
95. see also Pamela S. Karlan, Foreword: Loving Lawrence, 102 MICH. L. REV. 1447, 1457 (2004).
96. Sunstein, supra note 82, at 30.
97. "Were we to hold the statute invalid under the Equal Protection Clause," observed Kennedy, some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." Lawrence, 539 U.S. at 575.
98. Id. at 575; see also Karlan, supra note 82, at 1453-54; Miranda Oshige McGowan, From Out-laws to Ingroups: Romer, Lawrence, and the Inevitable Normativity of Group Recognition, 88 MINN. L. REV. 1312, 1313 (2004) ("Gays and lesbians win in Lawrence . . . because the challenged legislation explicitly targeted gays, and gays constituted a group that, in the Courts eyes, is socially salient.").
99. Robert A. Burt, Constitutionalizing Physician-Assisted Suicide: Will Lightning Strike Thrice? 35 DUQ. L. REV. 159, 179 (1996).
100. Transcript of Oral Argument, supra note 35, at 39-42.
101. Washington v. Glucksberg, 521 U.S. 702, 737 (1997) (O'Connor, J., concurring); see also Sunstein, supra note 32, at 1146 (observing that when the issue is close and "there is no democratic defect in the underlying political process, [courts] should not strike down reasonable legislative judgments").
102. TASK FORCE REPORT, supra note 40, at vii. The task force, convened by Governor Mario Cuomo in 1985, was made up of eight medical doctors (two of whom were deans of medical schools), two bioethicists who were not medical doctors, four lawyers, six clergymen (one of whom was also a law professor), the state commissioner of health, the state commissioner on the quality of care for the mentally disabled, and a member of the New York Civil Liberties Union. In addition, three medical doctors and a nurse served as consultants. Neither PAS nor euthanasia were on the agenda initially presented to the task force, but it decided to grapple with these issues when public debate about the practices intensified. Id.
103. Id. at vii-viii; see also id. at 125, 143; Glucksberg, 521 U.S. at 719, 732 (quoting TASK FORCE REPORT, supra note 40, at 120). Consider, too, UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE (Brian D. Smedly et al. eds., 2001), especially the summary at pages 2-3.
104. Consider, as well, a recent study detailing how "[d]eeply imbedded attitudes about race influence the way doctors care for their African-American patients." Stephen Smith, Tests of ER Trainees Find Signs of Race Bias in Care: Study Seeks Root of Known Disparity, BOSTON GLOBE, July 20, 2007, at A1
105. (reporting on Alexander R. Green et al., Implicit Bias Among Physicians and its Predictions of Thrombolysis Decisions for Black and White Patients, 22 J. GEN. INTERNAL MED. 1231 (2007)). As pointed out elsewhere in this Symposium, however, reports from Oregon indicate that "the option of physician-assisted dying has not been unwillingly forced upon those who are poor, uneducated, uninsured, or otherwise disadvantaged." Tucker, supra note 7, at 1604. Indeed, one recent annual report "found that a higher level of education is strongly associated with the use of physician-assisted dying." Id.
106. See Lawrence v. Texas, 539 U.S. 558, 567-70 (2003).
107. Id. at 572.
108. Id. (quoting MODEL PENAL CODE § 213.2 cmt. 2 (1980)).
109. Id.
110. MODEL PENAL CODE § 210.5 cmt. (Proposed Official Draft 1962), reprinted in 2 AM. LAW INST., MODEL PENAL CODE AND COMMENTARIES 100 (1985).
111. MODEL PENAL CODE § 210.5 cmt.
112. Lawrence, 539 U.S. at 572-73 (referring to the Wolfenden Report).
113. Id. at 573. For a critique of the Court's citation to foreign sources of law, see, in this Symposium, Calabresi, supra note 4, at 1539-41.
114. SELECT COMMITTEE ON MEDICAL ETHICS, REPORT, 1993-94, H.L. 21-1 para. 262, at 54. This report is sometimes called the Walton Report, after the Chair of the Committee, Lord Walton. The report is noted in Washington v. Glucksberg, 521 U.S. 702, 718 n.16 (1997), and substantial extracts are set forth in EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES 96 (John Keown ed., 1995).
115. Lawrence, 539 U.S. at 573 (citing Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) at 21 (1981)).
116. Pretty v. United Kingdom, 2002-III Eur. Ct. H.R. 157.
117. Lawrence, 539 U.S. at 576.
118. Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir. 1995), rev'd en banc, 79 F.3d 790 (9th Cir. 1996), rev'd sub nom. Glucksberg, 521 U.S. 702 (Noonan, J.).
119. Since Glucksberg, it is worth noting, the highest courts of two states have rejected the argument that the people of these states are entitled to PAS under state constitutions that contain special provisions expressly safeguarding privacy. See Sampson v. State, 31 P.3d 88 (Alaska 2001); Krischer v. McIver, 697 So. 2d 97 (Fla. 1997). For more on the Alaska case, compare Erwin Chemerinsky, Privacy and the Alaska Constitution: Failing to Fulfill the Promise, 20 ALASKA L. REV. 29 (2003), with Johnson, supra note 57.
120. Lawrence, 539 U.S. at 573.
121. Ezekiel J. Emanuel & Linda L. Emanuel, Assisted Suicide? Not in My State, N.Y. TIMES, July 24, 1997, at A21.
122. Timothy Egan, Assisted Suicide Comes Full Circle, to Oregon, N.Y. TIMES, Oct. 26, 1997, at A1; Emanuel & Emanuel, supra note 106; see also infra note 108.
123. The failure of PAS proponents to achieve success in any state legislature continues. A Michigan ballot initiative legalizing PAS failed in 1998, and between 1994 (the year the Oregon initiative was approved) and 2007, bills to legalize PAS failed in twenty-one states. Such bills failed five or more times in six states: Arizona, California, Hawaii, New York, Vermont, and Wisconsin. Kathi Hamlon, Int'l Task Force on Euthanasia & Assisted Suicide, Failed Attempts to Legalize Euthanasia/Assisted-Suicide in the United States, http://www.internationaltaskforce.org/usa.htm (last visited Feb. 10, 2008).
124. See Brief for the United States as Amicus Curiae Supporting Petitioners at 26, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110), 1996 WL 663185 ("Once a legislature abandons a categorical prohibition against physician assisted suicide, there is no obvious stopping point."), quoted in Glucksberg, 521 U.S. at 734 n.23.
125. "Terminal illness" is frequently defined as a condition or illness that will result in death within six months' time. See Daniel Callahan & Margot White, The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village, 30 U. RICH. L. REV. 1, 44 (1996).
126. However, "[t]he few studies that have been done indicate that the designation of six months as a terminal period is entirely arbitrary and that physicians vary drastically in their interpretation of what constitutes this terminal phase of illness." Id. at 45; see also 2 ALAN MEISEL, THE RIGHT TO DIE § 11.9, at 96 (2d ed. 1995);
127. Thomas J. Marzen, "Out, Out Brief Candle": Constitutionally Prescribed Suicide for the Terminally Ill, 21 HASTINGS CONST. L.Q. 799, 814-18 (1994).
128. I have assumed, as have most commentators, that "terminal illness" is a manageable classification. However, according to a five-hospital empirical study by Professor Joanne Lynn and five other health professionals, this assumption is quite shaky. Joanne Lynn et al., Defining the "Terminally Ill": Insights from SUPPORT, 35 DUQ. L. REV. 311, 334 (1996) ("Deciding who should be counted 'terminally ill' will pose such severe difficulties that it seems untenable as a criterion for permitting [PAS]."); see also Hendin & Foley, supra note 7, at 1633-34.
129. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992).
130. Dan W. Brock, Voluntary Active Euthanasia, HASTINGS CENTER REP., Mar.-Apr. 1992, at 10, 14.
131. Transcript of Oral Argument, supra note 35, at 50.
132. Id. Justice Scalia made a similar point. Id. at 27; Excerpts From the Supreme Court Oral Argument on Physician-Assisted Suicide, WASH. POST, Jan. 9, 1997, at A16.
133. Tucker, supra note 7, at 1596 n.7 (quoting James E. Dallner & D. Scott Manning, Death with Dignity in Montana, 65 MONT. L. REV. 309, 314 (2004)).
134. Alan Sullivan, A Constitutional Right to Suicide, in SUICIDE: THE PHILOSOPHICAL ISSUES 229, 241 (M. Pabst Battin & David J. Mayo eds., 1980). According to a survey of ancient attitudes about suicide undertaken by the Ninth Circuit in Glucksberg, suicide has been deemed a rational and sensible act if, among other things, it is caused by "weariness of life," "fear of dishonor," if "your existence is hateful to you," or "if you are overwhelmed by fate" or "bowed with grief." Compassion in Dying v. Washington, 79 F.3d 790, 807 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997).
135. For a list of situations which "various writers have regarded as good and sufficient reasons for ending life," see Richard B. Brandt, The Rationality of Suicide, in SUICIDE: THE PHILOSOPHICAL ISSUES, supra, at 117, 123.
136. Cf. DANIEL CALLAHAN, THE TROUBLED DREAM OF LIFE: LIVING WITH MORALITY 107-08 (1993) ("How can self-determination have any limits? Why are not the person's desires or motives, whatever they be, sufficient?").
137. HERBERT HENDIN, SEDUCED BY DEATH: DOCTORS, PATIENTS, AND ASSISTED SUICIDE 49 (rev. ed. 1998) (criticizing this distinction as a justification for legalization of PAS); see also Callahan & White, supra note 110, at 6-7 (arguing that the distinction is baseless because the "power differential" between physician and patients is essentially the same in both cases).
138. Yale Kamisar, Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation, 42 MINN. L. REV. 969, 969 n.3 (1958). Euthanasia has its origin in the Greek words eu (happy, painless) and thanatos (death). Id.
139. One commentator has put it more gently: Proponents of physician-assisted death are well aware that "euthanasia" is a term that has "strong emotionally laden connotations." DAN W. BROCK, LIFE AND DEATH 170 (1993).
140. Surely this explains in part why the nine physicians, lawyers, and ethicists who drafted a "Model State Act" authorizing and regulating PAS - and wrote an accompanying article - did not address active voluntary euthanasia. "Members of the public and the medical community disagree," they observed, "and we disagree among ourselves, as to whether there is an important difference between the two concepts." Charles H. Baron et al., A Model State Act to Authorize and Regulate Physician-Assisted Suicide, 33 HARV. J. LEGIS. 1, 10 (1996). In Gonzales v. Carhart, the Court recalled that it has "confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's 'fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.'" 127 S. Ct. 1610, 1634 (2007) (quoting Glucksberg, 521 U.S. at 732-35 & 733 n.23). Gonzales is discussed extensively elsewhere in this Symposium by Calabresi, supra note 4.
141. Some evidence of the high regard in which Professor Brock is held is that when Professor Sunstein wrote The Right to Die, he quoted or referred to Brock's writings seven times - more than he did any other proponent of assisted suicide or active euthanasia. Sunstein, supra note 32.
142. Brock, supra note 112, at 10. To the same effect is BROCK, supra note 120, at 203-04.
143. Compassion in Dying v. Washington, 79 F.3d 790, 831 (9th Cir. 1996) (en banc), rev'd sub nom. Glucksberg, 521 U.S. 702. The distinction would also be difficult to maintain in practice. Compare Lawrence O. Gostin, Drawing a Line Between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying, 21 J.L. MED. & ETHICS 94, 96 (1993),
144. with Yale Kamisar, Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES, supra note 99, at 225, 230-33.
145. Transcript of Oral Argument, supra note 35, at 29 (emphasis added).
146. Felix Frankfurter, Mr. Justice Jackson, in FELIX FRANKFURTER ON THE SUPREME COURT 509, 511 (Philip Kurland ed., 1970).
147. Bd. of Educ. v. Barnette, 319 U.S. 624, 661 (1942) (Frankfurter, J., dissenting).
148. See Alexander Morgan Capron, Liberty, Equality, Death! HASTINGS CENTER REP., May-June 1996, at 23, 23-24, so characterizing the reasoning in Compassion in Dying, 79 F.3d 790, but expressing his strong disagreement with this view.
149. In re Quinlan, 355 A.2d 647 (N.J. 1976).
150. For discussion of Cruzan, see supra note 75.
151. See Quinlan, 355 A.2d at 665, 670 & n.9.
152. E.g., Brock, supra note 112, at 11; Ronald Dworkin, Euthanasia, Morality, and Law, 31 LOY. L.A. L. REV. 1147, 1152-55 (1998);
153. Robert A. Sedler, Are Absolute Bans on Assisted Suicide Constitutional? I Say No, 72 U. DET. MERCY L. REV. 725, 729 (1995).
154. One might also view this as the principal component of what another contributor to the Symposium calls "the now-standard liberal case for the right to die" (using the right in its broadest sense). Spindelman, supra note 6, at 1642.
155. See Smith, supra note 6, at 1575-82.
156. See also the quotation from the "Philosophers' Brief" (an amicus brief filed by Ronald Dworkin, John Rawls, and other prominent philosophers on behalf of the Glucksberg plaintiffs) set forth elsewhere in this Symposium. Smith, supra note 6, at 1576 (quoting Brief for Ronald Dworkin et al. as Amici Curiae in Support of Respondents at 45, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110), 1996 WL 708956).
157. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 289 (1990) (O'Connor, J., concurring).
158. TASK FORCE REPORT, supra note 40, at 71-72 (footnote omitted).
159. Cruzan 497 U.S. at 302-03 (Brennan, J., dissenting).
160. TASK FORCE REPORT, supra note 40, at 75; see also CALLAHAN, supra note 117, at 77-81. It is worth recalling that "[a]lthough there was no possibility that her condition would improve, [Ms. Cruzan] could be kept 'alive' in her [persistent vegetative] state for as long as thirty years through artificial feeding and hydration." Seidman, supra note 75, at 50.
161. See TASK FORCE REPORT, supra note 40, at 75; Giles R. Scofield, Exposing Some Myths About Physician-Assisted Suicide, 18 SEATTLE U. L. REV. 473, 481 (1995);
162. see also CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 101-02, 106 (1999) ("It is reasonable to think that the risks of abuse are far greater in [PAS cases] than in cases of withdrawal of life support.").
163. John Arras, News From the Circuit Courts: How Not to Think About Physician-assisted Suicide, BioLaw (Special Section), July-Aug. 1996, at S:171, S:183.
164. Some commentators worry that the arguments of PAS proponents may "work backwards" and lead to new restrictions on "the hard-won rights that the great majority of patients can and do now exercise to refuse medical treatments." George J. Annas, The Promised End - Constitutional Aspects of Physician-Assisted Suicide, 335 NEW ENG. J. MED. 683, 686 (1996);
165. see also Susan M. Wolf, Holding the Line on Euthanasia, HASTINGS CENTER REP. (SPECIAL SUPPLEMENT), Jan.-Feb. 1989, at 13.
166. ART BUCHWALD, TOO SOON TO SAY GOODBYE 15-16 (2006).
167. I MEISEL, supra note 110, § 8.2, at 470. Another leading commentator has been equally emphatic on this point. See Cantor, supra note 57, at 193.
168. Alan Meisel, Physician-Assisted Suicide: A Common Law Roadmap for State Courts, 24 FORDHAM URB. L.J. 817, 849 (1997). As we have seen, in the context of equal protection the Court has told us that these two practices do not stand on an equal footing before the law. See supra text accompanying note 3.
169. Sunstein, supra note 5, at 1547.
170. Oregon's Death with Dignity Act was approved via a ballot initiative in 1994, but did not go into effect until after the Court's decision in Glucksberg. See Tucker, supra note 7, at 1600.
171. This organization is the successor to Compassion in Dying, the organization which instituted the lawsuit that led to the Glucksberg decision.
172. Washington v. Glucksberg, 521 U.S. 702, 785 (1997) (Souter, J., concurring).
173. See Tucker, supra note 7.
174. See Chemerinsky, supra note 4, at 1513-15.
175. See Hendin & Foley, supra note 7.