To Fight Assisted Suicide In The Courts, Stop Arguing Federalism

To Fight Assisted Suicide In The Courts, Stop Arguing Federalism

When the next physician-assisted suicide case comes, we will need to litigate differently than we have for past fundamental-rights cases like abortion and same-sex marriage.
Kevin LeRoy
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The Supreme Court recently granted the “transgender bathroom” case, another reminder that the court has a say in such diverse questions as how long Tom Brady’s September vacation should be to who can enter the boys’ bathroom at a local school. The “transgender bathroom” case could be a blockbuster—but I’d like to revisit a case decided by the court just under two decades ago, Washington v. Glucksberg.

In Glucksberg, the Supreme Court considered the constitutional status of physician-assisted suicide. The majority opinion concluded that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause,” meaning states were free to prohibit the practice. All nine justices agreed in the result.

With the court actually refusing to read the right to physician-assisted suicide into the Constitution, Glucksberg is unique among the high-profile fundamental rights cases like Roe, Casey, and Obergefell. Unlike those latter three cases, Glucksberg is an example of the court doing what it was designed to do: if a right is not protected by the Constitution, as originally understood, then any recognition of that right belongs to the people and their state governments.

The defeat in Glucksburg is why the push for allowing doctors to kill terminally ill patients is now occurring at the state and local level with, most notably, Compassion and Choices at the helm. (Indeed, the movement recently scored a victory in Colorado.)

However, we should not expect the issue to remain at the polls. Whether it continues to win or lose, Compassion and Choices will grow tired of proceeding democratically before long. It will eventually ask the Supreme Court again whether the Due Process Clause—“No State shall . . . deprive any person of life, liberty, or property, without due process of law”—means that doctors must be allowed to kill their terminally ill patients.

Of course the 9-0 loss in Glucksberg won’t deter our friends on the other side. In their view, the Supreme Court settles nothing until it settles it in their favor. Indeed, the fundamental-rights inquiry makes all defeats invitations to come back when society’s morals have sufficiently evolved.

Federalism Arguments Are No Longer Persuasive

When the next physician-assisted suicide case comes, we will need to litigate differently than we have for past fundamental-rights cases like abortion and same-sex marriage. For those cases, our strategy was predominantly one of federalism. We argued that the right to end the life of a fetus or the right to marriage as a genderless institution was nowhere to be found in the federal Constitution. Therefore, the power to grant such rights did not lie with the Supreme Court.

The power of making this argument is apparent—it swaps the fight from the merits of divisive moral issues for a powerful point of order. Perhaps less charitably, we essentially admitted that legal abortion or same-sex marriage were valid state policies for some states, but asked the court to respect that citizens in other states thought differently. We were right. But we lost, repeatedly.

When the next case comes, we need to let the federalism argument go (or, at the very least, give it far less prominence). This will be painful. Federalism has been baked into the American culture of life itself, to say nothing of American culture writ large.

Moreover, federalism is a reasonable middle-ground position. We do not agree on the answer to ultimate questions, but, as members of a democratic republic, we should agree that unelected judges shouldn’t have the power to deliver those answers from on high. Unfortunately, on fundamental rights litigation, our friends on the other side have declared our reasonable middle-ground position unreasonable. Further, outside of the courtroom even our less-than-middle-ground overtures are rebuffed—just see the move to repeal the Hyde Amendment.

We have one option when the next case comes. We need to argue that the states are right to ban physician-assisted suicide because life is better than death, even in the face of terminal illness. We need to argue that physician-assisted suicide is not death with dignity. (Indeed, if it were, then not choosing death by suicide in the face of terminal illness is at best a missed opportunity, and at worst undignified.) We need to be prepared to argue that states that permit this practice are wrong.

The Left Already Agrees that Life Is Better than Death

Providentially, the case against physician-assisted suicide is the best fundamental-rights case in which to make the merits argument because of how foundational it is. Indeed our opponents have accepted the exact same argument—that life is better than death, even in extreme circumstances—in countless other contexts. Let’s consider just one: capital punishment.

Grant me the following assumption: many supporters of Compassion and Choices’ death with dignity proposition also favor declaring the death penalty unconstitutional. We have been approaching such a declaration for quite some time; Justice Stephen Breyer is just the most recent Supreme Court Justice to tilt his hand in that direction.

There are two justifications, putting the text of the Eighth Amendment aside, for banning capital punishment: accuracy and dignity. There might be a chance the man on death row is innocent, but even if there isn’t, his life has worth that is worthy of preservation, despite his crimes.

Now consider this hypothetical. A man commits a brutal murder in the public square, witnessed by countless bystanders. The man freely confesses, both to this murder and to a string of others. He is tried in open court and sentenced to life in prison, no parole. Faced with the prospect of spending the rest of his life in prison, he requests a prescription from the prison doctor for life-ending drugs, the very ones used for physician-assisted suicides. In other words, our defendant wants to choose capital punishment.

Would Compassion and Choices support this choice of our hypothetical defendant? No, because he isn’t a “terminally ill, mentally capable pe[rson] who ha[s] a prognosis of six months or less to live” and whose “suffering becomes unbearable.” But does the logic of Compassion and Choices’ position really command this result? No. I even think it’s the opposite.

It’s true, our defendant isn’t suffering from a terminal disease, but he is destined to die in jail. While he doesn’t have six months left to live, it’s clear he wishes he did: he wants die as soon as possible rather than suffer years confined in prison. Most importantly, he has freely affirmed that his suffering has become unbearable: he has been condemned to live with his guilt, in a prison cell, for the rest of his life.

Why would Compassion and Choices correctly deny our poor defendant the right “to self-ingest medication that brings about a peaceful death”? Is it because his life has inherent dignity, despite its tragic circumstances? Is it because, even in his suffering, he still is a valuable member of society worthy of (and capable of giving) love?

Perhaps it’s because there his suffering somehow has value—that in some paradoxical way his suffering can lead him and others to atone for their sins and bring reconciliation to the community? I think the answer to all of these questions is yes. I also think this applies to our terminally ill brothers and sisters.

So we see euthanasia proponents do recognize the value of human life, even in the face of at least some dire circumstances. When the next physician-assisted suicide case comes, let’s make them justify the distinctions they draw in front of the Supreme Court, instead of just arguing that we shouldn’t be there at all.

Kevin LeRoy is a Deputy Solicitor General for Wisconsin. The views expressed here are his own.

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