July 2016 Bar Bulletin
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July 2016 Bar Bulletin

The Current Legal Landscape of the Death with Dignity Movement

By Eric Reutter


“There is a certain right by which we may deprive a man of life, but none by which we may deprive him of death; this is mere cruelty.”

—Friedrich Nietzsche
Human, All Too Human


The term “Death with Dignity,” also known as physician-assisted suicide, refers to a physician providing a patient with the means for hastening his/her death, most commonly via a medical prescription. The concept of physician-assisted suicide is different from the practice of euthanasia, in which a physician administers the lethal medication directly, rather than providing it to the patient for self-administration.

While the cultural battle over the role of Death with Dignity in our society is a fascinating topic, this article focuses on the legal processes that have led to the current Death with Dignity landscape.


The Supreme Court Fails To Provide Clear Guidance on End-of-Life Issues

During the 1990s, the U.S. Supreme Court heard two major cases that dealt squarely with end-of-life issues. The first case, Cruzan v. Dir., Missouri Dep’t of Health,1 saw a narrow 5–4 majority hold that a patient has the legal right to refuse life-sustaining treatment. The Cruzan ruling, although in some ways favorable to the Death with Dignity movement, was far from a guarantee that the court would ever recognize physician-assisted suicide as a legally protected right.

The decision was fragmented, as it contained two concurring opinions and two dissenting opinions, and ultimately granted a great deal of latitude to the states to serve as “laborator[ies]” for procedurally safeguarding patients’ rights regarding the refusal of life-
sustaining treatment.

In 1997, in Washington v. Glucksberg,2 the Supreme Court was forced to address whether an individual has a constitutionally protected right to physician-assisted suicide. A coalition of terminally ill patients and nonprofit organizations had challenged Washington’s legal ban against assisted suicide.

The Court unanimously held that physician-assisted suicide is not a constitutionally protected right and, in an attempt to distinguish its Cruzan decision, it remarked that the refusal of life-sustaining treatment was “widely and reasonably regarded as quite distinct” from the decision to end one’s life with the assistance of another.

In an effort to distinguish the right to refuse life-sustaining treatment from the right to physician-assisted suicide, the Court looked to the legal, historic treatment of both rights. The Court noted that, while the right to refuse life-sustaining treatment was deeply rooted in the common-law tradition of the courts, the right to assisted suicide has historically been rejected by the legal system.

The Court highlighted the fact that, at the time of its decision, almost every state had rejected efforts to permit physician-assisted suicide. The Court justified this historical analysis by noting that it is not simply a connection to personal autonomy that brings a purported liberty under the protection of the Due Process Clause, but rather it is the legal and historic treatment of a right that makes it a “fundamental liberty interest protected by the Due Process Clause.”

Chief Justice William Rehnquist, however, indicated that a future ruling on the issue might produce a different result, remarking that, “I do not, however, foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.” Despite a unanimous concurrence in the result, the case produced five concurring opinions and again demonstrated the divergent opinions held by the Supreme Court justices regarding end-of-life issues.

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