Washington v. Glucksberg 1997
Petitioner: State of Washington
Respondent: Harold Glucksberg
Chief Lawyer for Petitioner: William L. Williams
Chief Lawyer for Respondent: Kathryn L. Tucker
Justices for the Court: Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, Chief Justice William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Clarence Thomas
Justices Dissenting: None
Date of Decision: June 26, 1997
Decision: Ruled that Washington's ban on assisted suicide is constitutional.
Significance: The Court ruled that assisted suicide is not a fundamental liberty protected by the Constitution. State laws prohibiting assisted suicide are, therefore, constitutional.
By the beginning of the twenty-first century the process of dying had become complicated, involving more choices and actions. Choices about artificial life support in determining how and when an individual dies were common. Historically, assisted suicide had not been one of those choices. Assisted suicide, frequently referred to as physician-assisted suicide, means that one individual, generally a doctor, helps another person take his own life. A physician does this by prescribing a lethal (deadly) dose of a drug that the doctor knows will be used by the patient to commit suicide. The patient dies by human action, not by natural causes.
Felony in Washington
Throughout U.S. history most states prohibited assisted suicide. For example, it has always been a felony (serious) crime to assist a suicide in the state of Washington. Washington's first Territorial Legislature in 1854 outlawed "assisting another in the commission of self murder."
In 1994 four medical physicians from the state of Washington, three gravely ill patients, and Compassion in Dying, a non-profit organization that counsels people considering physician-assisted suicide, decided to challenge the modern-day Washington state law prohibiting physician assisted suicide. The physicians, who occasionally treated terminally ill patients, had said they would assist these patients in ending their lives if not for Washington's assisted suicide ban. The Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." The plaintiffs (group bringing the suit) claimed there is "a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent terminally ill adult to commit physician assisted suicide." The Fourteenth Amendment to the Constitution provides that a state may not deprive a person of life, liberty, or property without the due process of law. Due process means all legal proceedings will be fair. The Washington law, charged the plaintiffs, is unconstitutional (does not follow the intent of the U.S. Constitution) because it bans the liberty of assisted suicide which they claim is protected by the Fourteenth Amendment's Due Process Clause. Both the liberty in question and the due process which protects it are of a special legal nature.
Special Liberties and Due Process
The words "physician-assisted suicide" are certainly never mentioned in the Constitution or Bill of Rights. The type of liberty the plaintiffs referred to is an "unenumerated" liberty or right. Unenumerated liberties are not written into the text of the Constitution or Bill of Rights but come from common law (common practices of individuals carried on for centuries) and philosophy, and are deeply rooted in the U.S. legal system. Such liberties are fundamental (essential) freedoms in which a person may participate relatively free from government interference. A few examples of such liberties are a person's right to marry, have children, raise children, direct their child's education, marital privacy, and the right to refuse life saving medical treatment. These abstract fundamental liberty interests have been recognized by the U.S. Supreme Court in various cases and are considered protected by the Due Process Clause of the Fourteenth Amendment. This special type of due process protection is known as substantive due process. Substantive due process protects those unenumerated liberties which are generally beyond the reach of governmental interference. The government may not regulate these liberties even by the use of fair procedures.
Is assisted suicide an unenumerated fundamental liberty? If it is, it is protected as the plaintiffs claim. If it is not, it is not protected and the state of Washington may ban it without violating the Fourteenth Amendment.
Let the Courts Decide
The U.S. District Court for the Western District of Washington ruled assisted suicide a liberty protected by substantive due process and, ruling in favor of the plaintiffs, found the Washington law unconstitutional. The U.S. Court of Appeals for the Ninth Circuit agreed with the district court. The state of Washington next appealed to the U.S. Supreme Court who agreed to hear the case.
The U.S. Supreme Court, reversing the appeals court decision, ruled assisted suicide is not a fundamental liberty interest, therefore not protected by substantive due process. Chief Justice William H. Rehnquist wrote for the unanimous (9–0) court.
Determining a Liberty Interest
The Court applied a two-part test to determine what truly is a fundamental liberty interest. First, the fundamental liberty interest must be "deeply rooted in this Nation's history and tradition." On this first point Chief Justice Rehnquist wrote:
An examination of our Nation's history, legal traditions, and practices demonstrates that Anglo American common law has punished or otherwise disapproved of assisting suicide for over 700 years.
Rehnquist continued that assisted suicide was certainly not rooted in U.S. history because it is considered a crime and prohibited in almost every state. The laws make no exception for those persons near death. Further, "the prohibitions have in recent years been reexamined and, for the most part reaffirmed in a number of States." In the year 2000 assisted suicide was legal only in Oregon. Thus, assisted suicide fails the first part of the test.
Second, the fundamental liberty interest must be carefully defined and described. Chief Justice Rehnquist lists the Ninth Circuit Court's various descriptions of the liberty interest as "right to die," "right to control one's final days," and "the liberty to shape death." The Court found that the Ninth Circuit Court did not properly describe the liberty interest. Redefining the liberty in dispute, Rehnquist wrote,
Since the Washington statute prohibits 'aid[ing], another person to attempt suicide,' the question before the Court is more properly characterized as whether the 'liberty' specially protected by the [Due Process] Clause includes a right to commit suicide which itself includes a right to assistance in doing so.
Therefore, it also failed the second part of the test. The Court concluded, " . . . the respondents [plaintiffs] asserted [claimed] 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause."
Furthermore, the Court found that Washington's assisted suicide ban was rationally (reasonably) connected to many governmental interests. Some of "these interests include prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, . . . maintaining physicians' role as their patients' healers," and protecting vulnerable (aged, mentally retarded, and seriously ill) groups from pressure to end their life.
Refusal of Treatment Versus Assisted Suicide
The Court made it clear that assisted suicide is far different from a competent person's right to refuse unwanted medical treatment, even if it means such refusal would hasten their death. Assisted suicide results in a death caused by another person. When a person dies because they have refused medical treatment, they have essentially died a natural death. Historically, a person has had the right to refuse medical treatment. In Cruzan v. Director, Missouri Department of Health (1990) the Court affirmed as a constitutional liberty the right to reject not only life preserving medical treatment but also life sustaining food and water.
An Earnest Debate
The justices did not entirely agree on the reasoning, but all nine agreed that no fundamental right exists to assisted suicide. The Washington law banning assisted suicide was upheld. The decision left it to each individual state to decide how to most appropriately deal with the assisted suicide issue. As the Court concluded,
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.
B y the beginning of the twenty-first century many organizations, both supporting and opposing assisted suicide, promoted their beliefs through the Internet, books, and various publications. Founded in 1980 by Derek Humphrey, The Hemlock Society is the oldest and largest pro-assisted suicide organization with more than 27,000 members in the United States. As do most pro-assisted suicide groups, The Hemlock Society refers to itself as a "right-to-die organization" involved in the "right-to-die movement." The society takes its name from a poisonous herb, hemlock. The Greek philosopher, Socrates, died by drinking a hemlock brew.
Hemlock believes "that people who wish to retain their dignity and choice at the end of life should have the option of a peaceful, gentle, certain and swift death in the company of their loved ones. The means to accomplish this with . . . medication . . . prescribed by the doctor and self-administered." Hemlock educates both citizens and physicians, advocates, legislates (helps change and design the laws), and litigates (takes court action). Hemlock strongly opposes suicide for reasons other than ending the suffering of dying.
The Patients' Rights Organization (PRO-USA) is Hemlock's legislative arm. Its funds go directly into legislative efforts to change laws through lobbying and to promote state ballot measures. It has supported legislation for physician-aided dying in more than twenty states.
Assisted suicide was legalized in Oregon in 1997. However, no case challenging the law had reached the courts in its the first few years.
Suggestions for further reading
Longwood College of Virginia Library (A comprehensive guide to doctor assisted suicide websites and literature). [Online] Website: http://web.lwc.edu/administrative/library/suic.htm.
Ontario Consultants on Religious Tolerance (all viewpoints including religious). [Online] Website: http://www.religioustolerance.org/euthanas.htm (Accessed on July 31, 2000).
The Hemlock Society. [Online] Website: http://www.hemlock.org (Accessed on July 31, 2000).
Webb, Marilyn, et al. The Good Death: The New American Search to Reshape the End of Life. New York: Bantam Books, 1997.
Woodman, Sue. Last Rights: The Struggle Over the Right to Die. New York: Plenum Press, 1998.