Glucksberg & Vacco

Glucksberg & Vacco • Source: Medical and Public Health Law Site

Overview • What rights does a patient have to the aid of a physician in committing suicide? • Legislators and voters have considered the issue • The activities of Dr. Jack Kevorkian in helping end patients lives have received enormous publicity

Glucksberg case - facts • Physicians and gravely ill patients brought suit to overturn a Washington law that makes "promoting a suicide attempt" a felony, on the grounds that the statute violates a constitutionally-protected liberty interest under the Due Process Clause of the Fourteenth Amendment. • A Federal district court ruled that the law was unconstitutional; a three- judge Court of Appeals for the Ninth Circuit reversed, but the full Circuit Court en banc reinstated the district court’s conclusion that the assisted suicide ban was unconstitutional as applied to terminally-ill, competent adults who wish to hasten their deaths with medication prescribed by their physicians.

Vacco case –facts • Physicians and gravely ill patients challenged the state law against aiding a suicide attempt. • The district court found the law constitutional, but a three-judge Court of Appeals for the Second Circuit disagreed, ruling that the prohibition violates the Equal Protection clause of the Fourteenth Amendment. • New York law permits terminally-ill patients to direct the removal of life-sustaining equipment in order to hasten their death, but does not allow those not attached to such equipment to hasten death by self-administering prescribed medication. • This distinction was untenable, and was not rationally related to any legitimate state interest.

Decisions • The Supreme Court unanimously upheld both the Washington and the New York laws • Unanimity is misleading • in addition to the opinion of the Court, three concurring opinions were filed in each case, joined by a total of five Justices, and those opinions, taken together, leave a major issue open for the time being.

Glucksberg Opinion • Rehnquist Opinion • O’Connor Concurrence • Stevens Concurrence • Souter Concurrence • Breyer Concurrence

Rehnquist Opinion: Question before the Court • does the "liberty" protected by the Due Process clause include a right to commit suicide? • does the liberty include a right to assistance in doing so.

Rehnquist Opinion: Conditions for constitutional due process protection to exist • the asserted right must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

Rehnquist Opinion: Is right fundamental? … • Reviewed the history of the law in this area • assisted suicide has been illegal for many centuries • almost every state considers rendering such assistance to be a crime • such prohibitions never have contained exceptions for those who were near death • the prohibitions have in recent years been reexamined and (except for Oregon) reaffirmed in many states.

… Rehnquist Opinion: Is the right fundamental • Conclusion • the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process clause.

Rehnquist Opinion: Difference with Cruzan • the right to refuse unwanted medical treatment is well-grounded in the nation’s history and law • “The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment.” • the right to assistance in committing suicide is not.

Rehnquist Opinion: Difference with Casey • “although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, it does not follow that any and all important, intimate, and personal decisions are so protected”

Rehnquist Opinion: Alternative to fundamental right • once the asserted right at issue has been held not to be fundamental, in order to uphold a prohibition on its exercise the Court must show that that prohibition is rationally related to legitimate government interests

Rehnquist Opinion: Legitimate government interests that justify a ban on assisted suicide • preservation of human life; • preventing suicide as a public health problem; • protecting those suffering from depression and pain; • protecting the integrity and ethics of the medical profession; • protecting vulnerable groups (the poor, the elderly, the disabled) from abuse, neglect, and mistakes, as well as from prejudice, stereotypes, and societal indifference; • avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia.

O’Connor Concurrence: Valid as applied to competent, terminally ill adults • it is possible that the statute as applied to a narrower class of patient--for example, to mentally-competent patients who are experiencing great suffering--might be unconstitutional. • no reason to deal with that question, given the agreement of all parties that a terminally-ill patient in great pain has no legal barriers to obtaining medication to alleviate that pain, even to the point of hastening death.

Stevens Concurrence • under certain circumstances, an interest in hastening death "is entitled to constitutional protection." • history and tradition provide ample support for refusing to recognize an open-ended constitutional right to commit suicide. • But, State of Washington has authorized the death penalty, hence acknowledging that the sanctity of human life does not require that it always be preserved. • Government interest in the preservation of human life is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient’s dignity and alleviating her intolerable suffering.

Souter Concurrence • left open the possibility that the asserted right to assisted suicide might be recognized in some circumstances in the future. • the concern about possible progression from assisted suicide to euthanasia was sufficient reason to uphold the statute. • legislatures are better suited than the courts to deal with the issue.

Breyer Concurrence • disagreed with the court’s characterization of the claimed liberty interest as a "right to commit suicide with another’s assistance." • the interest at stake was a right to die with dignity, that is, with personal control over the manner of death, medical assistance, and the avoidance of severe physical suffering. • a law preventing the administration of pain medication at the end of life might violate such a right.

Vacco v. Quill • Rehnquist Opinion • Stevens Concurrence

Rehnquist Opinion: Distinction between terminating life support and assisted suicide … • distinction does not create a constitutionally suspect classification: • "Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide." • Disagreed that ending or refusing lifesaving medical treatment "is nothing more nor les than assisted suicide." • When a person refuses life-sustaining medical treatment, that person dies of the underlying disease • when a person ingests legal medication, that person dies of the medication. • refusal or withdrawal of treatment does not necessarily imply an intent to cause death, while assisted suicide necessarily does.

… Rehnquist Opinion: Distinction between terminating life support and assisted suicide • The distinction has been recognized by many courts and legislatures. • It is not arbitrary or irrational.

Rehnquist Opinion: State Interests • State interests discussed in Glucksberg, also satisfy the requirement here that a legislative classification bear a rational relation to some legitimate end

Stevens Concurrence • there may be little difference in the intent of physicians, patients, and families, between the situation of removal of life support and that of assisted suicide • Some applications of the statutes prohibiting assisted suicide may indeed amount to unconstitutional discrimination.

Essential points about Glucksberg and Vacco • The Constitution does not forbid a prohibition of assisted suicide. • decisions leave things the way they are. • laws prohibiting assisted suicide are not unconstitutional on their face, or as applied to competent, terminally-ill adults. • physicians should be able to continue practicing in this regard as they have practiced in the past.

What the Court did not decide. • It did not say that the Constitution requires a ban on assisted suicide. • It did not invalidate state statutes or decisions that uphold a right to refuse life-sustaining treatment. • It did not address the use of advance directives (living wills and durable powers of attorney) under state law. • It did not invalidate the use of medication to relieve pain, even when that medication potentially could be lethal.

Current state law on assisted suicide • Legalized under state statute • No law prohibiting physician-assisted suicide, and have abolished common law criminal language • Criminalized under state common law • Criminalized under state statute

Legalized under state statute: Oregon Death with Dignity Act • permits competent adults suffering from a terminal illness to request and receive medication from their physician to end their lives • provides a number of procedural safeguards to ensure that the request is voluntary, the patient is competent, and the person is expected to die within six months

No law prohibiting physician-assisted suicide; have abolished common law criminal language • North Carolina, Utah, and Wyoming

Criminalized under state common law • Alabama, Idaho, Maryland, Massachusetts, Michigan, Nevada, Ohio, South Carolina, Vermont, and West Virginia

Criminalized under state statute • Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington, Wisconsin, District of Columbia

New York Law • It has always been a crime, either by statute or under the common law, to assist a suicide in New York • N. Y. Penal Law §125.15 (McKinney 1987) ("Manslaughter in the second degree") provides: "A person is guilty of manslaughter in the second degree when . . . (3) He intentionally causes or aids another person to commit suicide. Manslaughter in the second degree is a class C felony." • Section 120.30 ("Promoting a suicide attempt") states: "A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide. Promoting a suicide attempt is a class E felony."

Glucksberg & Vacco