Journal of Legal Medicine, 37:155–166 C 2017 American College of Legal Medicine Copyright  0194-7648 print / 1521-057X online DOI: 10.1080/01947648.2017.1303354 AN ETHICAL ANALYSIS OF EUTHANASIA AND PHYSICIAN-ASSISTED SUICIDE: REJECTING EUTHANASIA AND ACCEPTING PHYSICIAN ASSISTED SUICIDE WITH PALLIATIVE CARE Benjamin Shibata∗ INTRODUCTION Medicine is the art of healing, the relieving of suffering, and the prolonging of life. As the end of life approaches, the ability of medicine to heal and prolong life comes to an inevitable end. The debates regarding euthanasia and physician-assisted suicide (PAS) in medicine are centered around the role of physicians and the autonomy of patients during the end of life when there is suffering. Individuals in favor of euthanasia and PAS argue the potential for these actions to be humane and merciful in respecting an individual’s request to end his or her suffering. They do not believe that someone should have to suffer unnecessarily or in great pain. In contrast, those opposed to euthanasia and PAS argue that ending a life is morally and inherently unacceptable. They believe that it is never okay to end a life. Although euthanasia and PAS are fundamentally different, they both attempt to give individuals the freedom to determine when they will end their life to avoid prolonged and unnecessary suffering. Euthanasia is the use of a lethal force, usually a drug, by a third party to end a life. PAS is the prescription of a lethal means to end a life by a physician, also usually a drug, but the patient must act alone when using the prescribed lethal means. This article will begin with a discussion of euthanasia and PAS using the moral principles of autonomy, nonmaleficence, beneficence, and justice. This will be followed by a discussion of the rights of patients and the duties of physicians in order to further this analysis on euthanasia and PAS. Current laws regarding euthanasia and PAS will then be analyzed. This will allow a ∗ Benjamin Shibata earned his Bachelor of Science degree in bioengineering at the University of California, Los Angeles, and a Master of Public Health from George Washington University studying health policy. He can be reached by sending an email to benshibata@gwu.edu. 155 156 SHIBATA discussion about why euthanasia should be rejected and why PAS should be accepted. Although this article will argue that PAS is acceptable, it will also emphasize the importance of promoting palliative care by reviewing PAS data and using two case scenarios. The article will conclude with policy recommendations for improving the practice of PAS with palliative care. I. EUTHANASIA AND PAS: MORAL PRINCIPLES A. Autonomy The ethical principle of autonomy is respect for an individual’s right to self-determination or “a norm of respecting the decision-making capabilities of autonomous persons.” Respect for autonomy has been demonstrated in the right of a competent patient to refuse medical treatment. Advocates for euthanasia and PAS argue that respect for autonomy should be extended to an individual’s request for aid-in-dying to relieve suffering. A lack of consensus has resulted in the following position in all but five jurisdictions that have allowed PAS in the United States: If you were on life-sustaining treatment, you would have a right to withdraw the treatment and then we could let you die. But since you are not, we can only allow you to refuse nutrition and hydration or give you palliative care until you die a natural death, however painful, undignified, and costly. This position demonstrates that limiting aid-in-dying has the potential to deny patients their autonomy, because they may be forced into a death that is painful, undignified, and costly. Denial of an individual’s access to relief in suffering can be viewed as a fundamental disrespect for one’s autonomy. However, autonomy as a negative obligation does not give individuals the right to force others to engage in acts they find immoral. If a physician feels euthanasia and PAS to be immoral, he or she does not need to participate. This negative obligation stands in the way of the positive obligation to relieve the suffering of a patient who requests assistance in dying. B. Nonmaleficence The ethical principle of nonmaleficence is preventing harm or “a norm of avoiding the causation of harm.” By their very nature, both euthanasia and PAS can be argued to inflict harm in the form of death, rendering these procedures unethical under the principle of nonmaleficence. However, there are situations where aid-in-dying may be ethical under the principle of nonmaleficence: If a person freely authorizes death, making an autonomous judgment that cessation of pain and suffering through death constitutes a personal benefit rather than a setback PHYSICIAN-ASSISTED SUICIDE 157 to interests, then active aid in dying at the person’s request involves neither harming nor wronging. In the face of unbearable suffering that cannot be relieved, both euthanasia and PAS can be viewed as the compassionate and nonmaleficent thing to do when a free and autonomous request renders it permissible. C. Beneficence The ethical principle of beneficence is doing the most good; that is, it is a “group of norms for providing benefits and balancing benefits against risks and costs.” Ending the suffering of an individual through assistance in dying can be viewed as a merciful and beneficent act. As a response to medical failure, both euthanasia and PAS can be viewed as compassionate. In contrast, aid in causing the death of an individual can be seen as a form of abandonment and thus not beneficent. As opposed to allowing assistance in dying, opponents argue that support systems such as improved palliative care should be created because life is sacred and should never be ended by a direct human act. D. Justice The ethical principle of justice is about fair treatment or a “group of norms for fairly distributing benefits, risks, and costs.” With this principle, it can be argued that allowing the hastening of one’s death in one instance and not another is unjust. We currently allow individuals to refuse treatment, which may hasten their death. However, the ability to refuse treatment may not be sufficient to relieve suffering in certain situations. In these situations, assistance in dying in the form of euthanasia and PAS may be supported with the principle of justice. A justice argument against allowing assistance in dying is that this option will target groups of people lacking access to care and support. Individuals could seek assistance in dying as a cost containment strategy and other reasons that not all are subjected to. For this reason, the idea of allowing assistance in dying can be opposed. II. INDIVIDUAL/PATIENT RIGHTS IN MEDICINE At one point in time, withdrawing or withholding treatment might have been considered a form of passive euthanasia, because stopping or refusing treatment could be associated with causing the death of the patient. However, in Cruzan v. Director, Missouri Department of Health, the Supreme Court held in 1990 that requiring clear and convincing evidence of an incompetent 158 SHIBATA person’s wish to be removed from life-sustaining treatment was not unconstitutional. This ruling can be interpreted to mean that there is a liberty interest in refusing unwanted medical treatment, even when that refusal leads to the consequence of death. Today, it is established that individuals have a constitutional right to refuse medical treatment. If an individual wants to refuse treatment that is keeping him or her alive, that individual has the right to do so. This is a fundamental exercise of one’s autonomy. Thus, no physician will ever be held responsible for a patient’s death due to the withdrawing of treatment if she or he follows the patient’s wishes. With the right to refuse came arguments about whether there existed categorical distinctions between competency and incompetency; withholding and withdrawing; and ordinary and extraordinary treatment. With regards to competency versus incompetency, a competent person may make a decision alone, whereas an incompetent person will be subject to a “substitute judgment” standard. To avoid a substituted judgment, advance directives play an important role in fulfilling an individual’s wishes should he or she become incompetent. No distinctions are made between withholding versus withdrawing treatment and ordinary versus extraordinary treatment. Thus, patients are given full autonomy to accept, refuse, or stop any medical treatment they could be or are subject to, as long as they make their wishes known when they are competent. The law, however, does not give an individual a constitutional “right to assistance in dying.” Established in Washington v. Glucksberg, there is no fundamental liberty interest in assisted suicide. The Supreme Court held that a right to assistance in dying was not protected by the Due Process Clause. In this instance, the Court used minimum scrutiny to give states the ability to “experiment” with PAS and other types of medical care involving assistance in dying. Thus, the limits on individual rights during the end-of-life with regards to PAS are limited to the laws of the state one is living in. The decision to give states the authority to regulate assistance in dying was made clearer in Vacco v. Quill. The Supreme Court held that states have a legitimate interest in outlawing assisted suicide and that “liberty” defined in the Fourteenth Amendment does not include the right to kill oneself, or assistance in doing so. In doing this, a rational distinction between a request to end one’s life and a request to withdraw life support was established. Individuals and physicians must abide by the rules of their state when deciding their options at the end-of-life. III. PHYSICIAN DUTIES IN MEDICINE With the exception of emergency cases and refusal based on discrimination, physicians have no obligation to treat a patient unless they choose to. Upon an undertaking, a physician has the duty to inform, to provide healing, PHYSICIAN-ASSISTED SUICIDE 159 and to treat until the relationship is terminated. Physicians cannot force a patient to undergo treatment because a patient has a right to refuse treatment, as previously discussed. There is an idea that physician assistance in dying may not be an obligation, but it may be inherent in the idea that a physician should respect a patient’s wishes, provide comfort, and relieve suffering. This idea is best discussed by exploring the difference between “letting die” and “killing.” As mentioned before, a patient is free to refuse treatment, and a physician has an obligation to respect that patient’s request even if that means letting the patient die. This is different from a scenario where a patient makes a request to a physician to hasten death. In this scenario, the patient is asking for, as opposed to refusing, treatment, which does not create a duty for the physician to assist. As mentioned in the previous section, Vacco v. Quill found that this distinction was enough to uphold New York’s ban on physician-assisted suicide. Though this does not completely remove the possibility of an inherent medical duty to assist a patient in dying, a physician must follow the regulations within his or her state or risk being criminally prosecuted under the law. IV. LEGAL ANALYSIS OF EUTHANASIA In the past, euthanasia has been classified by the action used—active or passive—and by the consent given—voluntary (with individual consent), nonvoluntary (without individual consent), or involuntary (against the will of the individual). These classifications have created instances where PAS has been described as passive-voluntary euthanasia when it is not. To remove confusion about euthanasia in the future, it has been suggested that the terms “active” and “passive” should be removed when describing euthanasia. It must be understood that an action either is or is not euthanasia. Euthanasia is “the deliberate act undertaken by one person with the intention of another person in order to relieve that person’s suffering.” In all cases, regardless of intent, euthanasia is illegal and is prosecuted under homicide laws everywhere in the United States. Debate about legalizing euthanasia is focused on the issue of what is considered to be voluntary-active euthanasia, where a patient voluntarily seeks out a third party to play an active role in ending his or her life. Performing euthanasia without or against individual consent is considered to be unacceptable because it conflicts with the established rights of patients discussed above. The most recent effort to make voluntary-active euthanasia legal was pushed by the infamous Dr. Jack Kevorkian, who was convicted of seconddegree murder when he engaged in euthanasia by actively injecting a lethal drug into his patient, assisting in that patient’s suicide. The Supreme Court 160 SHIBATA of Michigan ruled that there is no constitutional right to conduct euthanasia. The Supreme Court of the United States refused to hear the Kevorkian case. V. LEGAL ANALYSIS OF PAS PAS was first legalized in 1994 with the enactment of the Oregon Death with Dignity Act. Currently PAS is legal in Oregon, Vermont, Washington, Montana, and Bernalillo County in New Mexico. Oregon, Vermont, and Washington legalized PAS through state law, and Montana and Bernalillo County in New Mexico legalized PAS though court rulings. Legislation passed in Oregon, Vermont, and Washington allowing PAS decriminalizes the act of a physician prescribing a lethal means. It also protects individuals choosing to end their life from any negative ramifications that would result legally from a suicide. In contrast, the court rulings in Montana and Bernalillo County do not afford the same protections offered by legislation: they only protect the doctor from being prosecuted for homicide, because no legal protocol is in place. Even though a physician may legally take part in PAS and not be criminally prosecuted, the physician is not obligated to take part in assisting a patient to end his or her life. If all physicians unanimously decide not to engage in PAS, PAS would not be a viable option for patients. Thus, PAS serves as a legal means for physicians to enable the deaths of individuals meeting certain requirements but does not guarantee it. PAS has been classified as voluntary-passive euthanasia. Although this may be philosophically correct, it is not viewed this way under the law. In PAS, the patient makes the decision to end his or her life and self-administers the means of death alone. In order for euthanasia to occur, a doctor or some other third party must make the decision to end the life and play an active role. This is not the case with PAS because when and whether the means of death is used is entirely up to the patient. VI. REJECTING EUTHANASIA Euthanasia should be rejected because it would be impossible to control its potential for abuse and negative impacts, not because there are no moral justifications. Even though euthanasia can be argued to follow the principles of autonomy, nonmaleficence, beneficence, and justice, legalizing euthanasia exposes medicine and society to a future where euthanasia could be expanded beyond its intended use. One of the clearest examples of this happening has been observed in The Netherlands. Initially, The Netherlands only allowed euthanasia for individuals who were terminally ill. Within 30 years, euthanasia has moved from being allowed only for the terminally ill to the chronically PHYSICIAN-ASSISTED SUICIDE 161 ill to those with mental illnesses, which includes psychological distress to people over the age of 70 who are tired of life. Reasons for rejecting euthanasia can also be seen by looking at the current elements of PAS laws. In doing so, it becomes apparent that the same safeguards and intentions afforded to PAS laws will be difficult to implement in a euthanasia law. Most notably, because euthanasia will require a physician or some other third party to administer the lethal means, there will be no way to ensure that the patient remains in control of the decision, timing, and other aspects of the action. The inability for euthanasia to allow this creates risks where the decision to euthanize could be wrongfully executed, because the patient’s decision could rapidly change. This endangers the foundation of autonomy, beneficence, nonmaleficence, and justice because these principles depend on the desire and perspective of the individual. VII. ACCEPTING PAS In reviewing the ethical principles of autonomy, beneficence, nonmaleficence, and justice, there are clear arguments for allowing and accepting both euthanasia and PAS. Without the option to engage in euthanasia or PAS, individuals risk losing the autonomy to be relieved of suffering that can be viewed as maleficent and unjust. Why, then, should PAS be accepted while euthanasia is rejected? As noted above, PAS is fundamentally different from euthanasia because it requires the patient to be in control of the decision, timing, and every aspect of the action to end his or her life. This eliminates the possibility of a third party being responsible for failing to fulfill the patient’s wish to end his or her life and to this date there is no better way to ensure that the autonomous desires of an individual are fulfilled. Opponents to PAS argue the potential for a slippery slope that will lead to expanded access and thus the abuse of PAS. However, current PAS laws have strict requirements that aim to minimize the potential for abuse. Common to all PAS laws are the following: two oral requests must be made to a physician separated by at least 15 days, a written request must be provided to a physician signed by two witnesses, a prescribing and consulting physician must confirm the diagnosis and prognosis of terminal disease in which the patient has less than 6 months to live, a prescribing and consulting physician must determine whether the patient is capable, the patient must be referred for a psychological examination if either physician believes that the patient’s judgment is impaired by a psychiatric or psychological disorder, and the prescribing physician must inform the patient of feasible alternatives to assisted suicide, including comfort care, hospice care, and pain control. To date, there have been no efforts to expand the PAS laws beyond these guidelines, and data indicate that most individuals seek PAS for its intended purpose. The potential for abuse exists, but the current requirements appear to be sufficient. If 162 SHIBATA any abuse is observed in the future, additional requirements will most likely follow in the form of revised statutes. Some have argued that if PAS becomes widely adopted, the ability of medicine to confront end-of-life issues with alternatives like palliative care will diminish as society accepts PAS as the way to deal with them. It is true that widespread adoption of PAS can create an uphill battle for physicians looking to offer alternatives to deal with the suffering at the end of life. However, this argument seems to forget that individuals are only able to seek PAS as an option when no viable alternatives exist. Despite the legality of PAS in five jurisdictions, the American Medical Association does not accept PAS as an acceptable medical practice. Thus, there is no reason to suggest that PAS will remain popular, because medicine will continue to seek alternatives for dealing with the end-of-life. Requests to partake in PAS may pressure physicians to go beyond their traditional role as a healer but do not require them to act if they feel that it is immoral. Because of this, the autonomy of the physician is protected. At the same time, because physicians may recognize a valid request for assistance in suicide, PAS laws protect them legally if they choose to respond. These facts, combined with the guidelines present in PAS laws, seek to provide an ethical path that gives competent patients the ability to end their life with dignity with the help of a capable individual—their doctor. Although PAS cannot assure ethical outcomes in all cases, it is an option we should accept and improve upon if we aim to reduce suffering and increase dignity during the end-of-life. VIII. THE IMPORTANCE OF PALLIATIVE CARE The accepted practice of relieving pain and suffering in medicine is palliative care. Dr. Balfour Mount, the founder of the first palliative care unit in North America, described palliative care as “a relational process involving movement towards an experience of integrity and wholeness.” This is essentially the same goal that supporters of PAS have. However, palliative care and PAS ideally serve to alleviate two different cases of suffering. PAS is ideal for individuals who have a terminal illness, are capable, and have unimpaired judgment. In this case, it would not be beneficial for that individual to undergo palliative care treatment. Palliative care would, in fact, inhibit the autonomy of this individual, because palliative care rejects the notion of PAS as it strives to achieve a paradox wherein one can die healed. However, if that individual is depressed, palliative care is the more appropriate course of action, because relieving depression is one of the aims of that specialty. Depression is a clinical disease that can be treated and should not be a reason for seeking PAS. PHYSICIAN-ASSISTED SUICIDE 163 Palliative care is the specialty that has the ability to recognize and deal with depression at the end of life. This is important, because despite the strict guidelines that aim to prevent vulnerable/depressed patients from taking part in PAS, it has been suggested that the current implementation of the Death with Dignity Act may fail to protect some patients who are depressed from obtaining a lethal means. This is concerning but not surprising, because depression can be difficult to gauge for those who are untrained in recognizing the symptoms. Where PAS fails, palliative care can succeed and vice versa. From greatest to least, individuals have cited the following as reasons why they choose to partake in PAS: loss of autonomy, inability to engage in enjoyable activities, loss of dignity, loss of control of bodily functions, burden on family/friends/caregivers, and inadequate pain control. Palliative care can help patients deal with all of these reasons without the need to prescribe a lethal means. It is important for patients and physicians to understand what palliative care can offer in order to avoid wrongful participation in PAS. IX. POLICY RECOMMENDATIONS: PROMOTING AND IMPROVING PAS WITH PALLIATIVE CARE As noted above, the Death with Dignity Act, as well as other PAS laws, requires prescribing physicians to inform the patient of feasible alternatives, such as hospice, palliative care, and comfort care. Though this requirement does promote palliative care, there is a chance that patients simply dismiss this advice and miss the potential benefits they could experience. Thus, in order to allow patients to experience the benefits palliative care may offer, an additional requirement to seek counsel from a palliative care physician, before the second request for a lethal prescription is made, should be enforced. The role of the palliative care physician would be the following: 1. To provide details of a palliative course of action specific to the patient; 2. To assess the patient’s psychological well-being; and 3. To provide the ability to opt out of palliative care if there are no issues with the patient’s psychological well-being. These additional requirements provide screens that will help determine a patient’s psychological well-being in a timeline that would not delay the procurement of the lethal means if no issues are present. In addition, it may provide a means of comfort that was not previously expected. Added comfort is reasonable to expect from this change, because the goals of palliative care aim to confront and develop strategies to deal with the reasons why individuals seek PAS to begin with. Ideas in palliative care, such as “dignity therapy,” 164 SHIBATA “intimate dependencies,” and “role preservation,” may help to eliminate the wrongful use of PAS by relieving depression caused by loss of autonomy, an inability to engage in enjoyable activities, loss of dignity, loss of control of bodily functions, and other burdens at the end of life. In states where PAS legislation has not been passed, promoting the benefits of palliative care is imperative to allow a healthy discussion of the suffering that could be avoided with PAS. Physicians, especially those dealing with patients near the end of their lives, should work with palliative care specialists to learn how to maintain their patient’s dignity, self-respect, and meaningfulness in order to better gauge when PAS is appropriate. CONCLUSION Confronting the end of life is something we will all face. It is a daunting task that we must all deal with in our own way. At the same time, because our lives are bound to society and the people in our lives, the options we will be given at the end of life are framed by ethics, law, and policy. An ethical analysis using the moral principles of autonomy, nonmaleficence, beneficence, and justice has revealed scenarios where assistance in dying may be warranted. Analyzing the rights of the individual/patient and the physician’s duties associated with those rights within the realm of medicine reveals that there is no obligation or duty to obtain or give assistance in dying. However, a legal discussion reveals that states have the power to enact laws that foster assistance in dying. From these analyses and discussion, it is clear that there is a fundamental difference between euthanasia and PAS that allows us to reject euthanasia and accept PAS. It is much easier to protect against abuse of PAS, as well as ensure an autonomous decision, because PAS provides the patient with control of the decision, timing, and every aspect of the action to end the patient’s life. PAS is more acceptable because it provides the best option for providing relief of suffering where there previously was no reprieve. Although there is no medical obligation or duty to play a role is assisting with death, PAS should be explored by physicians when it is a legal option, in order to offer patients dignity when medical alternatives fall short of adequately relieving the suffering from a terminal illness. PAS is an option that does not guarantee ethical outcomes. Most notably, PAS has been criticized for being unable to prevent individuals with depression from obtaining a lethal means. Thus, promoting palliative care is recommended to offer support in areas where PAS might fall short of being able to deal with depression. Palliative care is equipped to confront the challenges that cause patients to seek PAS, and it may prevent individuals from wrongfully partaking in PAS. Because of this, policy options for improving PAS with palliative care are suggested. In states that have approved PAS laws, a requirement to meet with a palliative care specialist before a second request PHYSICIAN-ASSISTED SUICIDE 165 will allow for additional psychological screening that could prevent wrongful use of PAS, as well as give individuals a chance to experience relief in suffering of which they might have been previously unaware. In the states that have not approved PAS or have not enacted PAS laws, the citizens and medical community should discuss PAS by emphasizing a commitment to palliative care, while recognizing its limitations in respecting an individual’s autonomy. These suggestions seek to improve and better gauge the appropriateness of PAS. J. Donald Boudreau & Margaret A. Somerville, Euthanasia Is Not Medical Treatment, BRIT. MED. BULL. (Mar. 26, 2013), http://www.bmb.oxfordjournals.org/content/early/ 2013/03/26.bmb.1dtolo.full.pdf. Ruaidhri McCormack et al., Attitudes of UK Doctors towards Euthanasia and PhysicianAssisted Suicide: A Systematic Literature Review, 26 PALLIATIVE MED. 23 (2012). J. Donald Boudreau & Margaret A. Somerville, Euthanasia and Assisted Suicide: A Physician’s and Ethicist Perspective, 4 MEDICOLEGAL & BIOETHICS 1–12 (2014). Tom L. Beauchamp & James F. Childress, Principles of biomedical ethics (7th ed., 2013). Lawrence O. Gostin, Deciding Life and Death in the Courtroom. From Quinlan to Cruzan, Glucksberg, and Vacco—A Brief History and Analysis of Constitutional Protection of The “Right to Die,” 278 J. AM. MED. ASSOC. 1523–28 (1997). H. Brody, Assisted Death—A Compassionate Response to a Medical Failure, 327 NEW ENG. J. MED. 1384–88 (1992). H.M. Hosseini, Ethics, the Illegality of Physician Assisted Suicide in the United States, and the Role and Ordeal of Dr. Jack Kevorkian before His Death, 4 REV. EUR. STUD. 203–09 (2012). Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990). L.H. Glantz, Withholding and Withdrawing Treatment: The Role of the Criminal Law, 15 L. MED. HEALTH CARE 231–41 (1987). Edmund D. Pellegrino, Some Things Ought Never Be Done: Moral Absolutes in Clinical Ethics, 26 THEORETICAL MED. & BIOETHICS 469–86 (2005). Washington v. Glucksberg, 521 U.S. 702 (1997). Vacco v. Quill, 521 U.S. 793 (1997). Sara Rosenbaum, David Frankford, Slyvia Law, & Rand Rosenblatt, LAW AND THE AMERICAN HEALTH CARE SYSTEM (2d ed., 2012). J. Pereira, Legalizing Euthanasia or Assisted Suicide: The Illusion of Safegaurds and Controls, 18 CURR. ONCOL. e38–45 (2011). Euthanasia, THEFREEDICTIONARY.COM, http://legal-dictionary.thefreedictionary.com/Euthanasia +and+Physician+-Assisted+Suicide (last updated 2007). Patrick Dunn, M.D., et al., The Oregon Death with Dignity Act: A Guidebook for Health Care Professionals, OR. HEALTH & SCIENCE UNIV. (2008), https://www.ohsu.edu/xd/education/ continuing-education/center-for-ethics/ethics-outreach/upload/Oregon-Death-withDignity-Act-Guidebook.pdf. People v. Kevorkian, 639 N.W.2d 291, 248 Mich. App. 373 (Mich. Ct. App. 2001). Lawrence Gostin, Judith Areen, Patricia King, Steven Goldberg, & Peter Jacobson, LAW, SCIENCE AND MEDICINE (3d ed., 2005). Harvey Chochinov, DIGNITY THERAPY: FINAL WORDS FOR FINAL DAYS (2012). Oregon Death with Dignity Act of 1994, OR. REV. STAT. §§ 127.800-.897 (2012). Washington Death with Dignity Act of 2009, WASH. REV. CODE §§ 70.245.010-.904 (2009). 166 SHIBATA The Patient Choice and Control at End of Life Act of 2013, VT. STAT. ANN. TIT. 18, §§ 5281-93 (West 2013). Balfour Mount, Healing and Palliative Care: Charting Our Way Forward, 17 PALLIATIVE MED. 657–58(2003). Linda Ganzini et al., Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying: Cross Sectional Survey, 337 BRIT. MED. J. 973–75 (2008). E.T. Logger et al., Implementing a Death with Dignity Program at a Comperhensive Cancer Center, 368 NEW ENG. J. MED. 1417–24 (2013). Copyright of Journal of Legal Medicine is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. YaleGlobal Online A Publication of the MacMillan Center at Yale University that explores the connections of our world - yaleglobal.yale.edu Individuals increasingly expect the right to be informed and make their own decisions about health care, including control over the timing of death. Close to 800,000 people commit suicide every year, nearly 80 percent in low- and middle-income nations, reports the World Health Organization. As a proportion of all deaths, physician-assisted suicide typically represents less than half percent, and the procedure is limited to a few, mostly wealthy jurisdictions: Belgium, Canada, Colombia, Finland, Germany, Japan, Luxembourg, Netherlands, South Korea, Switzerland and the US states of California, Colorado, Hawaii, Montana, Oregon, Vermont and Washington as well as Washington, DC. “Proponents argue that it is a basic human right to choose a timely and dignified death, especially for the terminally ill,” writes Joseph Chamie. “Opponents contend that medical assistance in committing suicide does not constitute a fundamental human right, and palliative care, and hospice can relieve pain and suffering.” Patients are willing to travel for assistance with dying, and Chamie urges governments to confront rather than avoid the issue. – YaleGlobal Assisted Suicide: Human Right or Homicide? The world inches toward acceptance of patient autonomy and physician-assisted suicide as a humane way to cope with terminal illness Joseph Chamie, August 9, 2018 Life and death: All forms of cancer combined are why most patients seek assisted suicide; surgeons use a robot to remove a patient's prostate cancer, and David Goodall, 104, leaves Australia to die in Switzerland with the help of Exit International (Surgery photo: Nicole Roberts, US Air Force) NEW YORK: Death is an inevitable outcome for everyone. How one dies is a legitimate matter of concern for individuals and families, one that governments and courts should address rather than avoid. Physician-assisted suicide represents a fraction of all types of suicide, which together account for approximately 1.4 percent of annual deaths worldwide. Despite low incidence, the action to voluntarily end one’s life poses a dilemma – is assisted suicide a human right to be permitted or a homicide to be prohibited? In contrast to euthanasia, by which medical practitioners oversee a procedure that ends a person’s life to relieve intractable suffering, assisted suicide typically involves a person choosing to end life through voluntary selfadministration of a lethal dosage of drugs prescribed for that purpose. That distinction, however, is not always clear, especially when the person undertaking a suicide receives a physician’s aid directly or indirectly. Legal, but used sparingly: Reliance on assisted suicide is rising slowly in the Netherlands, Oregon and Washington State, but represents a small fraction of all deaths (Source: Government statistics) While suicide is a global phenomenon, with nearly 80 percent of suicides occurring in low- and middle-income countries, physician-assisted suicide is allowed in only a few countries: Belgium, Canada, Colombia, Finland, Germany, Japan, Luxembourg, Netherlands, South Korea, Switzerland and the US states of California, Colorado, Hawaii, Montana, Oregon, Vermont and Washington as well as Washington, DC. The specific circumstances, diagnoses and requirements for the procedure vary among countries and states, and in general the guidelines are explicit and stringent, with approvals and responsibilities specified for patients and licensed medical authorities and protections for the mentally ill and incompetent. The proportions of annual deaths reported as physician-assisted suicide are relatively low, typically less than a half of 1 percent. While proportions of assisted suicide have remained at those low levels, they have crept higher over time, as people become familiar with the procedure. For example, during the past two decades the proportion of deaths due to assisted suicides approximately doubled in the Netherlands, tripled in Washington and quadrupled in Oregon. The most common illness of patients turning to physician-assisted suicide is all cancers combined, often followed in second place by amyotrophic lateral sclerosis, or ALS. In Oregon, for example, 77 percent of those electing assisted suicide during the period from 1998 to 2016 had cancer and 8 percent had ALS. Similar cancer rates among patients deciding on assisted suicide were reported in Belgium, 69 percent; Canada, 63 percent; the Netherlands, 71 percent; and the US states of California, 68 percent; Colorado, 64 percent; Vermont, 83 percent; and Washington state, 72 percent. In general, the patients who decide on the procedure are motivated by symptoms, decreased quality of life and autonomy, a loss of sense of self and fears about the future. While each personal assessment is patient-specific, many who decide on suicide expect to relieve their suffering permanently and alleviate the burden for families and friends. Some people travel far or relocate for the purpose of physician-assisted suicide. A few years ago, 29-year old Brittany Maynard with terminal brain cancer moved from California to Oregon to end her life. Recently, 104year old David Goodall with diminished independence flew from his home in Australia to Switzerland to end his life. The issue was also popularized in the 2016 drama-comedy film, Youth in Oregon, in which an 80-year old terminally ill man travels by car from New York to Oregon for assisted suicide. End to suffering: All cancers combined are a leading reason for patients in Oregon choosing assisted suicide (Source: OregonLive) Most major religions, including Buddhism, Christianity, Hinduism, Islam, Judaism, oppose physician-assisted suicide. Among the Abrahamic religions, the opposition rests largely on the basic principle that life is sacred and only God, not the individual, should determine when their life ends. In Buddhism and Hinduism, suicide conflicts with their belief in karma and reincarnation. Religious opposition to assisted suicide, however, is not universal. The United Church of Christ and Unitarian Universalist Association affirm that individuals have the right to choose physician-assisted suicide and hold beliefs that God would favor ending suffering from a terminal illness. The positions of physicians and professional medical organizations concerning assisted suicide vary, too. At the most general level, however, the divide among physicians on the sensitive and difficult issue of assisting a patient to commit suicide is between two fundamental medical principles: “do no harm” versus “relieve suffering.” Some contend that the Hippocratic oath and medical ethics prohibit physicians from giving deadly drugs to anyone who asks. The American Medical Association and the American College of Physicians, for example, suggest that physician-assisted suicide is incompatible with the physician’s role as healer. In addition, those organizations argue that assisted suicide is difficult to control, poses serious societal risks and creates a slippery slope likely resulting in involuntary euthanasia. Others counter that the Hippocratic oath has been modified over time, and “do no harm” works both ways, suggesting it “harm” to prolong suffering. They point out that legalization in various jurisdictions has not been difficult to manage or control, neither posing serious societal risks nor creating a slippery slope. Moreover, in response to opposition of US medical associations, supporters note that 57 percent of American physicians support the option for the terminally ill. Respect for individual rights: Countries are divided over physician-assisted suicide, with public polls showing more than 80 percent support in Belgium, France and the Netherlands and less than 50 percent in Russia and Poland (Source: IPSOS) Despite the proscriptions of major religious groups and lack of consensus among medical practitioners, large portions of the general public support physician-assisted suicide: In 13 of 15 countries surveyed in 2015, more than half of those interviewed supported legalization; the only exceptions were Poland and Russia, where slightly less than half said it should be legal. Another large-scale opinion survey covering 34 cities in China conducted several years ago found that more two-thirds of those polled do not object to euthanasia or assisted suicide. Available time-series survey data also point to increasing public support for physician-assisted suicide. In the United States and the United Kingdom, for example, polls conducted over the past 30 years show consistent majorities and growing support for assisted suicide, especially when the patient has an incurable disease or lives in severe pain. Proponents argue that it is a basic human right to choose a timely and dignified death, especially for the terminally ill. Opponents contend that medical assistance in committing suicide does not constitute a fundamental human right, and palliative care and hospice can relieve pain and suffering. Another issue raised in the debate is that increased longevity and medical advances can delay death. Some patients fear that their lives may be prolonged unnecessarily or end in unbearable distress. Decisions by patients regarding the end of their life, it is argued, are personal decisions that governments should respect. Those who disagree maintain that government has a legitimate responsibility to protect life and restrict medical professionals and others from participating in actions to shorten a patient’s life. Most people wish to die at home, avoiding a painful and burdensome end of life. Only 20 percent of Americans die at home. Many say that rather than experiencing a long, drawn-out, emotionally and financially costly death in a medical facility with multiple interventions, they prefer a peaceful and painless death at home with dignity, a sense of emotional wellbeing and control over how people will remember them. Societies should not avoid or dismiss the option. The emotional stresses of terminal illness and deciding on suicide are immense. A sibling and a close friend attempted suicide, with the friend eventually electing physician-assisted suicide, and I can assure readers that the consequences of end-of-life decisions extend well beyond the individual involved, with repercussions for family members, friends, colleagues and even distant acquaintances. The debate is unlikely to be resolved soon. Still, a consensus may be slowly emerging. The compelling experiences in the small number of lead countries, public opinion trends and the concerns of the terminally ill point to decriminalization of assisted suicide with governmental and medical oversight and safeguards. Joseph Chamie is an independent consulting demographer and a former director of the United Nations Population Division. Copyright © YaleGlobal and the MacMillan Center Copyright of YaleGlobal Online is the property of Yale University, on behalf of YaleGlobal Online and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. Children and women, fleeing conflict in Syria, arrive in Dabbabieh, in northern Lebanon, May 16. destabilization of Syria. “The fanatics speak about freedom and democracy for Syria, but this is not their goal,” he said; “They want to divide the Arab countries, control them, seize petrol and sell arms. They seek destabilization and Islamization.... Syria must resist—will resist. Eighty percent of the people are behind the government, as are all the Christians.” U.S. BISHOPS Statement on PhysicianAssisted Suicide T aking on the issue of physician-assisted suicide in the state where voters most recently approved it, the U.S. bishops declared suicide “a terrible tragedy, one that a compassionate society should work to prevent.” Approved 191 to 1 on June 16 at the bishops’ spring general assembly near Seattle, the policy statement, To Live Each Day With Dignity, is the first document by the bishops as a body on the topic of assisted suicide. Introducing the statement, Cardinal Daniel N. DiNardo of Galveston-Houston, chairman of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities, said he hoped it would counter the recent “strong resurgence” in activity by the assisted suicide movement. “With expanded funding from wealthy donors, assisted suicide proponents have renewed their aggressive nationwide campaign through legislation, litigation and public advertising, targeting states they see as most susceptible to their message,” the document says. “If they succeed, society will undergo a radical change.” Physician-assisted suicide was approved by voters in Washington state in November 2008. It is also legal in Oregon, where voters approved it in 1994, and Montana, where a state court has ruled it is not against public policy. As Cardinal DiNardo was making his preliminary presentation of the document, representatives of Compassion & Choices, previously the Hemlock Society, held a news conference in the same hotel where the bishops were meeting. Barbara Coombs Lee, president of the organization, said the bishops’ document represented an attempt to impose Catholic beliefs on the entire U.S. population. “While we respect religious instruction to those of the Catholic faith, we find it unacceptable to impose the teachings of one religion on everyone in a pluralistic society,” she said. “We believe end-of-life care should follow the patient’s values and beliefs, and good medical practice, but not be restricted against the patient’s will by Catholic Church doctrine.” Responding to that charge at a later news conference, Cardinal DiNardo said the bishops were making a contribution to a “fundamental public debate” based on “our moral tradition and sense of solidarity with people.” “The compassionate way is to bring assistance to people,” not to encourage their deaths, he said. According to the new document, “one cannot uphold human freedom and dignity by devaluing human life. “A choice to take one’s life is a supreme contradiction of freedom, a choice to eliminate all choices,” the document says. “And a society that devalues some people’s lives, by hastening and facilitating their deaths, will ultimately lose respect for their other rights and freedoms.” The document also criticizes the idea of involving physicians in helping their patients commit suicide, calling it “a corruption of the healing arts.” Daniel N. DiNardo July 4-11, 2011 America 7 © America Press Inc. 2011. All rights reserved. www.americamagazine.org “I DON’T WANT TO DIE, BUT I AM DYING”: REEXAMINING PHYSICIAN-ASSISTED SUICIDE IN A NEW AGE OF SUBSTANTIVE DUE PROCESS Melissa Legault* Whether a person has the right to physician-assisted suicide (“PAS”) has been a contentious topic throughout history. The U.S. Supreme Court, in its 1997 decision Washington v. Glucksberg, delivered a plurality opinion determining that there is no constitutionally protected right to PAS. The Court reasoned that PAS is not deeply rooted in the country’s history or tradition and that it is not implicit in the concept of ordered liberty. The landscape of substantive due process has changed dramatically since Glucksberg was decided. New fundamental rights have been recognized using both reasoning from older case law and a renewed focus on the values of dignity and autonomy that the Court declined to consider in Glucksberg. There are many similarities between PAS and the already-established fundamental rights of abortion, refusal of treatment, same-sex sexual intercourse, and same-sex marriage. It is time for PAS to be recognized alongside these as a fundamental right. As more cases considering fundamental rights are decided, Glucksberg no longer represents the standard for substantive-due-process analysis but rather is an anomaly that interrupts an otherwise consistent line of reasoning and analysis employed by courts in substantive-due-process cases. Although the full impact of Lawrence v. Texas and Obergefell v. Hodges still lies ahead, three guiding principles from these cases can be extrapolated and applied to PAS. First, while history and tradition, which were emphasized by the Supreme Court in Glucksberg, remain important factors to consider, they are only the beginning of the fundamental-right analysis. Second, courts are now able to apply * J.D. Candidate, University of Arizona James E. Rogers College of Law, Class of 2018; B.A., Sociology, Wake Forest University, 2014. I would like to thank Professor David Marcus for his patient and helpful guidance; my Note Editors and Bern Velasco, for their meticulous and thought-provoking advice; my editing team at Arizona Law Review for their hard work and dedication; and Jim and my parents, Michael and Maureen Legault, for their unwavering love and support. 510 ARIZONA LAW REVIEW [VOL. 60:509 a broader definition of the right to be recognized instead of being confined to the careful description requirement of Glucksberg. Lastly, there is a deep, growing concern for protecting the dignity, personal autonomy, and privacy of individuals. These principles apply both directly and indirectly to PAS and support the recognition of PAS as a fundamental right. Further, the undue-burden test from the abortion cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, can serve as guidance to predict the limitations that could be placed on PAS after it is recognized as a fundamental right. TABLE OF CONTENTS INTRODUCTION ......................................................................................................510 I. EXPLORING THE HISTORY OF AMERICAN PHYSICIAN-ASSISTED-SUICIDE LAWS ..................................................................................................................513 A. Cases Leading Up to Glucksberg ................................................................514 B. The Glucksberg Plurality Opinion ..............................................................516 C. The States React: Current Physician-Assisted-Suicide Laws Throughout the United States .............................................................................................520 II. ANALOGY TO FUNDAMENTAL RIGHTS ESTABLISHED AFTER GLUCKSBERG ......522 A. The Evolution of Substantive Due Process: An Examination of Lawrence ...................................................................522 B. Continuing Down the Same Path: Obergefell v. Hodges ............................525 C. The New Substantive-Due-Process Test: Three Guiding Principles...........529 III. RECOGNIZING PHYSICIAN-ASSISTED SUICIDE AS A FUNDAMENTAL RIGHT.....530 A. The Three Guiding Principles of Lawrence and Obergefell Applied to Physician-Assisted Suicide .......................................................................530 1. History and Tradition as the Beginning and Not the End: An Emerging Awareness in Favor of Physician-Assisted Suicide .............................530 2. A Broader Definition of the Right to Physician-Assisted Suicide ..........531 3. Dignity and Personal Autonomy Are Directly Connected to PhysicianAssisted Suicide ...................................................................................532 B. Proposed Implementation of Physician-Assisted Suicide Nationwide, Modeled After Casey and Cruzan, With an Eye Towards Balancing State Interests .....................................................................................................535 CONCLUSION .........................................................................................................537 INTRODUCTION In 2014, a terminally ill woman named Brittany Maynard captured the nation’s attention when she released a video explaining her decision to end her own life.1 Brittany, a vibrant 29-year-old California native, was diagnosed with the most 1. About Brittany Maynard, BRITTANY MAYNARD FUND, http://thebrittanyfund.org/about/ (last visited Oct. 1, 2016). Brittany’s story went viral and a video of her discussing her decision received over 9 million views in its first month. Id. 2018] PHYSICIAN-ASSISTED SUICIDE 511 aggressive and deadly form of brain cancer2 in early 2014.3 The disease’s treatment options—surgery, chemotherapy, and radiation—are unlikely to result in successful remission, and the most effective therapies prolong a patient’s life by a mere three months.4 After an unsuccessful surgery, an increase in her debilitating symptoms, and no hope for a cure, Brittany began searching for a way to end her suffering.5 At the time, California did not offer PAS, so she moved to Oregon with her family to take advantage of that state’s death-with-dignity laws.6 Oregon law permitted a doctor to prescribe medication that would painlessly and peacefully end her life when and if she chose to ingest it.7 Brittany explained her situation by simply and eloquently stating, “I don’t want to die, but I am dying.”8 She added: My [cancer] is going to kill me, and it’s a terrible, terrible way to die, so to be able to die with my family with me, to have control of my own mind . . . to go with dignity is less terrifying. When I look into both options I have to die, I feel this is far more humane.9 Using legally obtained medication, Brittany ended her life.10 She could avoid the slow, painful death from cancer that would have robbed her of her dignity and humanity.11 By contrast, Bette-Ann Rossi,12 a 56-year-old Rhode Island native, was unable to make a similar choice when she was diagnosed with stage-four, terminal lung cancer in December 2012. By May 2013, after multiple rounds of chemotherapy and radiation, two surgeries, one blood clot, and a lot of praying, the cancer spread to her liver, brain, and bones, leaving the once vivacious dance teacher unable to walk. For four long months until she finally died, Bette-Ann needed two nurses to help her use the bathroom. She could not remember her daughter’s name. 2. Glioblastoma Multiforme is a fast-growing type of brain cancer that typically results in death of the patient within 15 months after diagnosis. Glioblastoma Multiforme, AM. ASS’N OF NEUROLOGICAL SURGEONS, http://www.aans.org/en/Patients/NeurosurgicalConditions-and-Treatments/Glioblastoma-Multiforme (last visited Mar. 2, 2018). 3. Brittany’s First Video, BRITTANY MAYNARD FUND, http://thebrittanyfund.org/brittanys-first-video-2/ (last visited Mar. 2, 2018). 4. Glioblastoma Multiforme, supra note 2. 5. Brittany’s First Video, supra note 3. 6. Id.; see infra Section I.C for a discussion of Oregon’s law. At the time, PAS was not legal in her home state of California. 7. Brittany’s First Video, supra note 3. 8. Nicole Weisensee Egan, Cancer Patient Brittany Maynard: Ending My Life My Way, PEOPLE, Oct. 27, 2014, at 64, 66. 9. Id. at 66–67. 10. New Video Shows Impact of Brittany Maynard’s Message, BRITTANY MAYNARD FUND, http://thebrittanyfund.org/brittany-maynards-legacy-one-year-later/ (last visited Mar. 2, 2018). 11. Id. 12. Bette-Ann Rossi Obituary, WOODLAWN FUNERAL HOME, http://www.woodlawnri.com/obituary/Bette-Ann-Rossi/Johnston-RI/1233535 (last visited Mar. 2, 2018). 512 ARIZONA LAW REVIEW [VOL. 60:509 She experienced terrifying hallucinations and often screamed in pain from the cancer that had contaminated her bones. She did not want to die, but she was dying. Because Bette-Ann did not have the opportunity to move to a state where PAS was legal, she was effectively denied the option of humane death and was instead forced to suffer a slow, agonizing one. Brittany Maynard and Bette-Ann Rossi were both faced with the reality that they were going to die from cancer, but only one woman had the chance to choose dignity in death. Now the time has come to recognize the autonomy of all Americans during one of the most intimate times in their lives: their deaths. PAS has been a hotly debated topic for over a century.13 In 1997, the issue finally came before the U.S. Supreme Court in Washington v. Glucksberg.14 The Court in Glucksberg found that “the Due Process Clause specially protects those fundamental rights and liberties which are objectively ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’”15 The Court was not prepared to recognize PAS as deeply rooted within our tradition and held that PAS was not a constitutionally protected right.16 Prior to Glucksberg, in cases such as Cruzan ex rel. Cruzan v. Director, Missouri Department of Health and Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court regarded dignity, autonomy, and the intimateness of the decision as important factors to consider when determining whether a right is fundamental. In the years since Glucksberg, many substantive-due-process cases have been adjudicated and new fundamental rights have been recognized.17 Disregarding Glucksberg, the doctrine of substantive due process has continued to evolve consistently.18 By rejecting the lower courts’ reasoning, which was in line with that of the preceding substantive-due-process cases, Glucksberg interrupted the trajectory and is seemingly inconsistent with both past and present substantive-dueprocess law.19 This Note explores the already-established fundamental rights of abortion, refusal of treatment, same-sex sexual intercourse, and same-sex marriage, and applies the same reasoning utilized in those areas to PAS. Part I outlines the important legal history of PAS, delving into the Court’s reasoning in Glucksberg for deciding that PAS is not a fundamental right.20 Part I also explains where public opinion and individual states currently stand on PAS.21 Part II explains the new developments in substantive due process since Glucksberg. 13. See Chronology of Assisted Suicide, DEATH WITH DIGNITY, https://www.deathwithdignity.org/assisted-dying-chronology/ (last visited Mar. 2, 2018). 14. Washington v. Glucksberg, 521 U.S. 702 (1997). 15. Id. at 720–21. 16. Id. 17. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015); see also Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process Since Lawrence v. Texas, 105 MICH. L. REV. 409, 432 (2006). 18. Hawkins, supra note 17, at 443. 19. See infra Section I.B. 20. See infra Part I. 21. See infra Part I. 2018] PHYSICIAN-ASSISTED SUICIDE 513 This Part illustrates not only how the new line of judicial reasoning contradicts determinative aspects of the Glucksberg decision, but also how it is more consistent with the substantive-due-process cases decided prior to Glucksberg.22 Specifically, Part II examines both the impact of Lawrence v. Texas23 and Obergefell v. Hodges24 on the PAS analysis and the focus of both cases on preserving personal autonomy, protecting intimate decisions, and maintaining dignity.25 Part II also identifies and defines the three guiding principles of substantive due process that animate Lawrence and Obergefell.26 Applying those principles to PAS, Part III argues that the reasoning in the new substantive-due-process cases, coupled with the reasoning in Cruzan ex rel. Cruzan v. Director, Missouri Department of Health27 and Planned Parenthood of Southeastern Pennsylvania v. Casey,28 suggests that a competent, terminally ill person’s intimate and dignity-oriented decision to die with physician assistance should be recognized as a constitutionally protected fundamental right.29 Lastly, Part III suggests a plan for evaluating laws restricting access to PAS based primarily on the undue-burden test for abortion outlined in Casey.30 I. EXPLORING THE HISTORY OF AMERICAN PHYSICIAN-ASSISTEDSUICIDE LAWS The reasoning employed by courts in the substantive-due-process case law leading up to Glucksberg mirrors many of the principles shaping current substantivedue-process jurisprudence.31 In particular, these cases used history and tradition as guideposts but not as absolute authority when recognizing new fundamental rights that protect personal dignity and autonomy.32 For example, the Supreme Court in Casey and Cruzan, and the Ninth Circuit in Compassion in Dying v. Washington33 employed reasoning consistent with principles articulated in later substantive-dueprocess cases such as Lawrence and Obergefell.34 22. See infra Part II. 23. Lawrence v. Texas, 539 U.S. 558 (2003) (holding that there is a constitutionally protected, fundamental right to consensual sexual activity in the privacy of an individual’s home). 24. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that there is a constitutionally protected, fundamental right to same-sex marriage). 25. See infra Part II. 26. See infra Part II. 27. Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269 (1990). 28. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992). 29. See infra Part III. 30. See infra Part III. 31. See infra Sections II.C, III.A. 32. See infra Section I.A. 33. See Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996). 34. See infra Part II, Section I.A. 514 ARIZONA LAW REVIEW [VOL. 60:509 A. Cases Leading Up to Glucksberg In 1990, the U.S. Supreme Court held that competent individuals have a constitutionally protected right to refuse life-preserving medical treatment.35 Because of a car accident, Nancy Cruzan was in a persistent vegetative state, and there was no sign that she would regain brain function.36 Her parents requested that the doctors remove her life-sustaining feeding and hydration tube, which would result in her death.37 The Supreme Court concluded that, based on the longstanding doctrine of informed consent,38 competent patients have a fundamental right to refuse treatment.39 In addition, guardians of an incompetent patient can prove by clear-andconvincing evidence that the incompetent patient wishes to assert that right.40 The Court attempted to strike a balance between the right of individuals to refuse treatment and the compelling state interest in ensuring that incompetent patients’ life-or-death wishes are followed.41 In deciding that PAS is not a fundamental right, the Glucksberg Court rejected the reasoning of both the District Court and the Court of Appeals, both of which decided the case under a different name: Compassion in Dying v. State of Washington.42 The lower courts, relying heavily on Casey,43 determined that the way a person dies is so intimate that terminally ill, competent people have a constitutionally protected right to choose how they die.44 Facing a similarly intimate 35. (1990). 36. 37. 38. Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 281 Id. at 266-67. Id. at 267. Regarding informed consent, the Court explained that [a]t common law, even the touching of one person by another without consent and without legal justification was a battery. . . . No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. The informed consent doctrine has become firmly entrenched in American tort law. Id. 39. Id. at 286–87. 40. Id. 41. See id. at 280–81. 42. See Compassion in Dying v. Washington, 850 F. Supp. 1454 (W.D. Wash. 1994); Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996); see also Washington v. Glucksberg, 521 U.S. 702 (1997). 43. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 44. Compassion in Dying, 79 F.3d at 793. 2018] PHYSICIAN-ASSISTED SUICIDE 515 choice, the Court in Casey created a new test45 for dealing with abortion regulations.46 Under this new test, “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”47 The Court reasoned that the Constitution provides protection for personal and intimate decisions such as marriage, procreation, contraception, family relationships, childrearing, and education and stated: [t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. 48 In Casey, the Court was concerned with balancing the importance of bodily integrity and personal autonomy with state interests in regulating abortions and protecting the rights of fetuses.49 In Compassion in Dying v. Washington, the en banc Court of Appeals found Casey highly instructive and held that, “[l]ike the decision of whether or not to have an abortion, the decision of how and when to die is one of the ‘most intimate and personal choices a person may make in a life-time,’ a choice ‘central to personal dignity and autonomy.’”50 The Ninth Circuit also drew from the reasoning in Cruzan and concluded that “by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, [the Cruzan Court] necessarily recognizes a liberty interest in hastening one’s own death.”51 45. The old test was from Roe v. Wade, 410 U.S. 113 (1973). In Roe, the Court adopted a trimester system for determining the amount of interference the state could impose on the woman’s right to an abortion. In the first trimester, no restrictions could be placed on the woman. In the second trimester, the State could regulate abortions to ensure safety. Lastly, in the third trimester, the state could restrict access to abortions whenever it wanted except for when the abortion was necessary to protect the life of the mother. Id. at 164; see also Carrie H. Pailet, Abortion and Physician-Assisted Suicide: Is There a Constitutional Right to Both?, 8 LOY. J. PUB. INT. L. 45, 50 (2006). 46. Casey, 505 U.S. at 878–79. 47. Id. at 878. 48. Id. at 851. 49. Id. at 878–79. 50. Compassion in Dying v. Washington, 79 F.3d 790, 813–14 (9th Cir. 1996) (en banc). In addition, the Supreme Court in Glucksberg acknowledged but quickly dismissed the respondents’ emphasis on the statement from Casey that reads: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Washington v. Glucksberg, 521 U.S. 702, 726– 28 (1997). 51. Compassion in Dying, 79 F.3d at 816. 516 ARIZONA LAW REVIEW [VOL. 60:509 The Ninth Circuit concluded that the decision to participate in PAS should be made by the individual, stating: In this case, by permitting the individual to exercise the right to choose we are following the constitutional mandate to take such decisions out of the hands of the government, both state and federal, and to put them where they rightly belong, in the hands of the people. We are allowing individuals to make the decisions that so profoundly affect their very existence—and precluding the state from intruding excessively into that critical realm.52 The court also stated that under the Constitution, no entity can impose its will upon people in matters that, like one’s own death, are “so highly central to personal dignity and autonomy.”53 B. The Glucksberg Plurality Opinion When Compassion in Dying was appealed to the Supreme Court, its name changed to Glucksberg v. Washington.54 In Glucksberg, three terminally ill people, four physicians, and a nonprofit organization sued the state of Washington claiming that its statutory ban of assisted suicide violated due process.55 The plaintiffs argued, and the lower courts agreed, that terminally ill competent people have a fundamental right to PAS.56 In an opinion seemingly inconsistent with the substantive due process outlined in Casey and Cruzan,57 the Glucksberg Court overruled the en banc Court of Appeals’s decision.58 Although the Court was unanimous in its decision, the plurality opinion59 is arguably one of the weakest unanimous decisions in American history.60 The Supreme Court examined the actual definition of the right to PAS and explained that in substantive-due-process cases, a careful description of the alleged constitutionally protected right is required.61 The respondents asserted a “liberty to 52. Id. at 839. 53. Id. 54. Glucksberg, 521 U.S. at 702. 55. Id. at 707–08. 56. Id. at 708. 57. See supra Section I.A. 58. Glucksberg, 521 U.S. at 735–36. 59. Chief Justice Rehnquist wrote the majority opinion. Id. at 705. Justice O’Connor filed a concurring opinion in which Justices Ginsburg and Breyer joined in part. Id. at 736 (O’Connor, J., concurring). In addition, Justices Stevens, Souter, Ginsburg and Breyer filed separate concurring opinions. Id. at 738 (Stevens, J., concurring); id. at 752 (Souter, J., concurring); id. at 789 (Ginsburg, J., concurring); id. (Breyer, J., concurring). 60. Yale Kamisar, Foreword: Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy, 106 MICH. L. REV. 1453, 1460 (2008) (reasoning that the Court avoided the real issue of whether a terminally ill person has the right to PAS by simply deciding there is “no general right to enlist the aid of a physician in committing suicide,” leading the author to conclude that Glucksberg “decided virtually nothing”). 61. Glucksberg, 521 U.S. at 721. 2018] PHYSICIAN-ASSISTED SUICIDE 517 choose how to die” and a right to “control of one’s final days.”62 However, the Court defined the right in question 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.”63 The Court distinguished PAS from the right to refuse treatment by asserting that battery laws and legal tradition have historically protected an individual’s right to refuse treatment and denounced a right to commit suicide.64 Using a two-part test, the Court held that PAS is not a constitutionally protected fundamental right and upheld a Washington law that prohibited PAS.65 The Court described the test as follows: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are objectively “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest.66 Beginning its inquiry by exploring “our Nation’s history, legal traditions, and practices,” the Court found that suicide and assisted suicide have been consistently criminalized and considered morally unacceptable.67 The Court discussed American colonists’ views on the subject and noted that it was a crime in most states to assist a suicide at the time the Fourteenth Amendment was ratified.68 Although the Court acknowledged that some states had recently been reexamining the legality of PAS, it specifically used failed attempts in Washington and California to enact legislation as evidence that states were choosing to reaffirm prohibitions.69 The Court ultimately found that, although “the States [were] currently engaged in serious, thoughtful examinations of physician-assisted suicide,” the history and tradition regarding PAS did not support it as a fundamental right.70 62. Id. at 722. Respondents also contended that even if the asserted right was not in line with this nation’s history and tradition, it was consistent with the Supreme Court’s substantive-due-process cases including Casey and Cruzan. They argued that the wide array of individualist principles protected by American jurisprudence also includes the “liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference.” Id. at 724 (citing Brief for Respondents at 10, Washington v. Glucksberg, 521 U.S. 721 (1997) (No. 96-110)). 63. Id. at 723. 64. Id. at 725; Diana Hassel, Sex and Death: Lawrence’s Liberty and PhysicianAssisted Suicide, 9 U. PA. J. CONST. L. 1003, 1020 (2007). 65. Glucksberg, 521 U.S. at 720–21, 735. 66. Id. at 720–21 (citations omitted). 67. Id. at 710–16. 68. Id. at 715. 69. Id. at 716–17. Contrary to the Court’s rationale, today the trend suggests the opposite, as both Washington and California, as well as five other jurisdictions, have legalized PAS in the years since Glucksberg. See infra Section I.C. 70. Glucksberg, 521 U.S. at 719. 518 ARIZONA LAW REVIEW [VOL. 60:509 In response to the lower courts’ use of Casey’s reasoning, the Supreme Court in Glucksberg found that the Constitution’s protection of many liberties rooted in personal autonomy does not allow for the general conclusion that “any and all important, intimate and personal decisions are so protected.”71 Because the Court determined that there is no fundamental right to PAS, it held that the Constitution only requires that the legitimate government interest be rationally related to the ban on PAS for the prohibition to prevail.72 For example, the Court determined that Washington’s interest in preserving human life, the public-health concerns related to suicide, a need to protect the mentally ill and other vulnerable groups, and the fear that permitting PAS would eventually lead to involuntary euthanasia73 were all rationally related to Washington’s law banning PAS. The Court concluded that the Fourteenth Amendment does not protect a fundamental right for “competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctor.”74 Legal scholars have expressed disappointment and concern with the weakness of the Glucksberg decision.75 One problem is that the Court may have balked at the real issue—whether a right to PAS exists for a terminally ill, competent person—and instead only addressed the simpler question of whether there is a general right to suicide which includes the right to suicide with the assistance of another.76 For example, at one point, Justice Rehnquist states “the question before us is 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 do.”77 This is misleading.78 The plaintiffs were not advocating for a “right to commit suicide” in a general sense, nor were they seeking a right to PAS in all cases.79 Instead, the plaintiffs were claiming a right to PAS in the limited circumstance of 71. Id. at 727–28. The Court is seemingly relying on the fact that PAS is not deeply rooted in American tradition. See id. 72. Id. at 728. 73. Id. at 728–33. 74. Id. at 735. 75. Kamisar, supra note 60, at 1459–66 (stating that the Glucksberg decision “may be the most confusing and the most fragile 9-0 decision in Supreme Court history”); see also Hassel, supra note 64, at 1018 (“[C]ommentators expressed disappointment that the Court had not done more to establish a clear standard with respect to assisted suicide.”). 76. See Hassel, supra note 64, at 1018–19 (explaining that some commentators suggest that the Court “ducked important questions by refusing to focus narrowly on the specific right asserted: physician-assisted suicide for the terminally ill competent person. Instead, the Court avoided the difficult issue by answering a broader and easier question of whether there is a generalized right to assistance in suicide”); see also Robert A. Burt, Disorder in the Court: Physician-Assisted Suicide and the Constitution, 82 MINN. L. REV. 965, 965–67 (1998); Martha Minow, Which Question, Which Lie? Reflections on the Physician-Assisted Suicide Cases, 1997 SUP. CT. REV. 1, 2. 77. Glucksberg, 521 U.S. at 723 (emphasis added). 78. Kamisar, supra note 60, 1460–61. 79. Id. 2018] PHYSICIAN-ASSISTED SUICIDE 519 terminally ill, competent people.80 By framing the question the way he did, Justice Rehnquist confused the issue, making the opinion more difficult to understand and weakening its persuasiveness.81 Additionally, although the members of the Supreme Court in Glucksberg unanimously held the state had legitimate interests in prohibiting PAS, the justices seemed to disagree about whether the right of individuals to control their own deaths is a liberty interest protected under the Due Process Clause.82 For instance, Justice Stevens stated in his concurrence that, although he believed the state interests were valid in Glucksberg, he did not “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.”83 Because Justice Stevens believed that Justice Rehnquist had only determined that the statute was constitutional on its face, he did not have to address the constitutionality as applied to the competent, terminally ill people.84 In addition, Justice O’Connor concluded that, although the Due Process Clause does not protect a generalized right to PAS,85 she would leave open the question of “whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death.”86 Justice Souter, too, considered the evolving history of PAS and found that the importance of an individual’s right to PAS was “within the class of ‘certain interests’ demanding careful scrutiny of the State’s contrary claim . . . .”87 He pointed to the similarities between the role of physicians in PAS and abortion cases and explained that “just as the decision about abortion is not directed to correcting some pathology, . . . the decision in which a dying patient seeks help is not so limited. The patients here sought not only an end to pain . . . but [also to] end . . . their short remaining lives with . . . dignity . . . .”88 Ultimately, Justice Souter found that the state interests in Glucksberg were sufficient, so he did not need to address whether the right to PAS was fundamental.89 80. Brief for Respondents at 32, Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110). 81. Kamisar, supra note 60, at 1462. 82. See Glucksberg, 521 U.S. at 736 (O’Connor, J., concurring); id. at 741–42 (Stevens, J., concurring); id. at 779–80 (Souter, J., concurring); see also Hassel, supra note 64, at 1010. 83. Glucksberg, 521 U.S. at 750 (Stevens, J., concurring). 84. Id. at 739–40; Kamisar, supra note 60, at 1464. 85. See supra note 76. 86. Glucksberg, 521 U.S. at 736–38 (O’Connor, J., concurring). 87. Id. at 782 (Souter, J., concurring). 88. Id. at 779–80. 89. Id. at 782. 520 ARIZONA LAW REVIEW [VOL. 60:509 C. The States React: Current Physician-Assisted-Suicide Laws Throughout the United States Although the Supreme Court has determined that PAS is not a fundamental right protected by the U.S. Constitution, PAS is legal in six states90 and the District of Columbia.91 Oregon was the first state to legalize PAS.92 Oregon enacted the Death with Dignity Act in 1997 and it has been implemented as intended for the last 20 years.93 The act allows capable, terminally ill, adult residents of Oregon to obtain and ingest prescriptions from their physicians to quicken the dying process.94 Further, the Montana Supreme Court held that state law did not prohibit a physician from prescribing medication to hasten the death of a terminally ill, mentally competent adult upon request from the patient.95 The Court found “no indication in Montana statutes that physician aid in dying is against public policy” and went on to say that a physician who aids a terminally ill patient in dying is not directly involved in the final decision or the final act. He or she only provides a means by which a terminally ill patient himself can give effect to his life-ending decision, or not, as the case may be. Each stage of the physician-patient interaction is private, civil, and compassionate. The physician and terminally ill patient work together to create a means by which the patient can be in control of his own mortality. The patient’s subsequent private decision whether to take the medicine does not breach public peace or endanger others.96 Washington voters approved the Death with Dignity Act, allowing competent, terminally ill patients to request life-ending medication from a physician.97 The Vermont legislature passed the Vermont Patient Choice and Control at the End of 90. Oregon, Washington, Vermont, Montana, California, and Colorado. OR. REV. STAT. § 127.800 § 2.01(1) (1999); WASH. REV. CODE § 70.245.020 (2009); VT. STAT. ANN. tit. 18, § 5283 (2013); CAL. HEALTH & SAFETY CODE § 443.2 (West 2016); COLO. REV. STAT. ANN. § 25-48-101 (West 2016); Baxter v. State, 224 P.3d 1211 (Mont. 2009). 91. Take Action: Death with Dignity Around the U.S., DEATH WITH DIGNITY, https://www.deathwithdignity.org/take-action/ (last visited Mar. 3, 2018). 92. Oregon Death with Dignity Act: A History, DEATH WITH DIGNITY, https://www.deathwithdignity.org/oregon-death-with-dignity-act-history/ (last visited Mar. 14, 2018). 93. According to the most recent statistics, 204 patients received prescriptions under the Death with Dignity Act in 2016, and 133 of those patients actually ingested the medication to hasten their deaths. OR. HEALTH AUTH., PUB. HEALTH DIV., OREGON DEATH WITH DIGNITY ACT: DATA SUMMARY 2016, at 4 (Feb. 10, 2017) https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithD ignityAct/Documents/year19.pdf. 94. OR. REV. STAT. § 127.800 § 2.01(1) (1999). 95. Baxter, 224 P.3d at 1222 (Mont. 2009). 96. Id. at 1217. 97. WASH. REV. CODE § 70.245.020 (2009). 2018] PHYSICIAN-ASSISTED SUICIDE 521 Life Act in 2013 allowing terminally ill, competent patients to receive prescriptions from physicians to aid in ending their lives.98 In large part because of Brittany Maynard’s story, in June 2016 her home state of California passed the End of Life Options Act allowing terminally ill patients with fewer than six months to live to end their lives with physician assistance.99 That November, Colorado became the sixth state to legalize PAS for the terminally ill through ballot initiative with 65% of voters favoring the legislation.100 In February 2017, the District of Columbia enacted a PAS statute.101 As of September 2017, 30 other states102 were considering death with dignity legislation.103 According to 2017 surveys, over 70% of Americans104 and a majority of doctors105 favor legalizing PAS. However, because there is no national legal consensus regarding PAS, many terminally ill patients, like Brittany Maynard, who wish to die with dignity are often required to uproot their families and establish 98. VT. STAT. ANN. tit. 18, § 5283 (2013). 99. CAL. HEALTH & SAFETY CODE § 443.2 (West 2016); Brittany’s Family Introduces Video Testimony as California Law-Makers Convene on End of Life Option Act, BRITTANY MAYNARD FUND, http://thebrittanyfund.org/brittanys-family-introduces-videotestimony-as-california-law-makers-convene-on-end-of-life-option-act/ (last visited Mar. 2, 2018). 100. Proposition 106: Access to Medical Aid-in-Dying Medication, COLO. GEN. ASSEMBLY (Sept. 12, 2016), http://www.leg.state.co.us/LCS/Initiative%20Referendum/ 1516initrefr.nsf/b74b3fc5d676cdc987257ad8005bce6a/99fbc3387156ab5c87257fae007488 90/$FILE/2015-2016%20145bb.pdf; Jennifer Brown, Colorado Passes Medical Aid in Dying, Joining Five Other States, DENVER POST (Nov. 8, 2016, 12:00 PM), http://www.denverpost.com/2016/11/08/colorado-aid-in-dying-proposition-106-electionresults/. 101. District of Columbia, DEATH WITH DIGNITY, https://www.deathwithdignity.org/states/district-of-columbia/ (last visited Mar. 2, 2018). 102. Alaska, Arizona, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Wisconsin, and Wyoming. Take Action: Death with Dignity Around the U.S., supra note 91. 103. Id. 104. The poll says that “73% of U.S. adults say a doctor should be allowed to end a terminally ill patient's life by painless means if the patient requests it.” Jade Wood & Justin McCarthy, Majority of Americans Remain Supportive of Euthanasia, GALLUP (June 12, 2017), http://news.gallup.com/poll/211928/majority-americans-remain-supportive-euthanasia.aspx. 105. “For the first time, most U.S. doctors—54 percent—favor aid in dying, backing the rights of patients with an incurable illness to seek ‘a dignified death’. . . .” Most U.S. Doctors Now Support Aid in Dying: Survey, NBC NEWS (Dec. 16, 2014, 6:10 PM), http://www.nbcnews.com/health/health-news/most-u-s-doctors-now-support-aid-dyingsurvey-n269691; see also April Dembosky, Doctors’ Secret Language for Assisted Suicide, ATLANTIC (May 27, 2015), http://www.theatlantic.com/health/archive/2015/05/doctorssecret-language-for-assisted-suicide/393968/ (describing the way some doctors in jurisdictions where PAS is not legal hint at or indirectly aid terminally ill people and their families to hasten patients’ deaths). 522 ARIZONA LAW REVIEW [VOL. 60:509 residency in one of the seven jurisdictions that have legalized PAS.106 Moving to a new state is expensive and arduous for anyone, especially a person who is terminally ill.107 To combat this legal patchwork problem, there are three main ways PAS could be legalized nationally. First, the Supreme Court could reexamine the PAS issue considering more recent decisions and rule that it is a constitutionally protected fundamental right.108 Second, states could adopt uniform statutes legalizing PAS.109 Third, state supreme courts, like Montana’s, could begin to overrule legislative efforts banning PAS, effectively legalizing it in those states.110 This Note advocates for a Supreme Court decision that would legalize PAS in all 50 states, making death with dignity available to all Americans. II. ANALOGY TO FUNDAMENTAL RIGHTS ESTABLISHED AFTER GLUCKSBERG When Glucksberg was decided in 1997, history and tradition stood at the center of substantive due process.111 However, that landscape has changed dramatically in recent years112 toward a renewed appreciation for personhood, autonomy, and dignity that drove the Court in Casey.113 A. The Evolution of Substantive Due Process: An Examination of Lawrence In 1986, the Supreme Court in Bowers v. Hardwick upheld a Georgia statute that criminalized sodomy and rejected the “fundamental right [of] homosexuals to engage in sodomy.”114 Seventeen years later, the Supreme Court 106. FAQs, DEATH WITH DIGNITY, https://www.deathwithdignity.org/faqs/ (last visited Mar. 2, 2018). 107. Id. 108. Christina White, Comment, Physician Aid-In-Dying, 53 HOUS. L. REV. 595, 626–27 (2015). 109. Id. at 627–28. 110. Id. at 628–29. 111. Bradley P. Jacob, Back to Basics: Constitutional Meaning and “Tradition”, 39 TEX. TECH L. REV. 261, 282 (2007); see, e.g., Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (holding that there is no constitutionally protected right to same-sex sodomy because it is not deeply root in the country’s history or traditions), overruled by Lawrence v. Texas, 539 U.S. 558 (2003); Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (overturning the conviction of a woman living with her son and two grandsons in violation of a statute that narrowly defined the word family because the Court said the institution of family is deeply rooted in this nation’s history and traditions). 112. Hassel, supra note 64, at 1005; Hawkins, supra note 17, at 432. 113. See Adam Lamparello, Suicide: A Legal, Constitutional, and Human Right, 18 TEX. WESLEYAN L. REV. 797, 817–18 (2012); see also Kenji Yoshino, Comment, A New Birth of Freedom?: Obergefell v. Hodges, 129 HARV. L. REV. 147, 158–59 (2015). 114. Bowers, 478 U.S. at 189–91. Like Glucksberg, the Court in Bowers relied on history, tradition and a narrow definition of the right to conclude that same-sex sodomy was not a fundamental right under the Constitution. Hassel, supra note 64, at 1012–13; see also Belkys Garcia, Reimagining the Right to Commercial Sex: The Impact of Lawrence v. Texas on Prostitution Statutes, 9 N.Y.C. L. REV. 161, 168 (2005). 2018] PHYSICIAN-ASSISTED SUICIDE 523 overruled Bowers and expanded liberty rights in Lawrence v. Texas.115 In Lawrence, the Court held that Texas could not prohibit same-sex sodomy because individuals have the right to define the meaning of their lives at the most personal level.116 The Court expansively reframed the issue as “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.”117 This reframing is important because Bowers was more consistent with Glucksberg’s narrow construction of the right, whereas Lawrence defines the right broadly in a way more consistent with Casey and Cruzan.118 Justice Kennedy applied the reasoning from Casey to determine that samesex couples may seek autonomy in their relationships for the same reasons women seek autonomy in their decision to seek abortions. In doing so, he repeated Casey’s message that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”119 Prohibiting people from engaging in consensual, same-sex intimacy would deny them decisional autonomy in one of the most personal choices they can make. According to the Court: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places . . . . Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”120 Lawrence focused on liberty and determined that government intervention is illegitimate because it would “demean [individuals’] existence or control their destiny by making their private sexual conduct a crime.”121 Instead of focusing on the history and tradition of the liberty interest, which Justice Kennedy determined were “the starting point[s] but not in all cases the ending point[s] for substantivedue-process inquiries,” Lawrence looked toward emerging awareness and new trends of social understanding to determine whether a right is protected.122 Lawrence also seems to depart from Glucksberg’s requirement of a narrow, careful description of the proposed fundamental right and focuses more on the unfair liberty restriction and the importance of freedom from government interference.123 In Lawrence, the Court rejected Bowers’s narrow definition of the right as same-sex sodomy and instead broadened the right to protect “two adults, who, with full and 115. Lawrence, 539 U.S. at 567, 578; Garcia, supra note 114, at 168. 116. Hassel, supra note 64, at 1005; see Lawrence, 539 U.S. at 574. 117. Lawrence, 539 U.S. at 564. 118. Hassel, supra note 64, at 1013. 119. Lawrence, 539 U.S. at 574 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992)); see supra Section I.B. 120. Lawrence, 539 U.S. at 562; see also Hassel, supra note 64, at 1005. 121. Lawrence, 539 U.S. at 578; Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 SAN DIEGO L. REV. 415, 424 (2012). 122. Lawrence, 539 U.S. at 572 (Justice Kennedy emphasizes the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”). 123. Hassel, supra note 64, at 1006–07. 524 ARIZONA LAW REVIEW [VOL. 60:509 mutual consent, engaged in sexual practices common to a homosexual lifestyle.”124 The reasoning in Bowers was very similar to that in Glucksberg, and the definitions of the asserted rights that were considered by the Court largely influenced its decision.125 Like in Bowers, where the Court could not find a specially recognized right to homosexual sodomy in our nation’s history or tradition, the Glucksberg Court’s framing of the issue allowed it to recount the historical rejection of suicide generally.126 In Lawrence, however, the Court adopted an approach that was more focused on weighing the asserted liberty interest against the governmental interests rather than merely determining whether a narrowly defined fundamental right has traditionally been recognized.127 The Lawrence decision ends by powerfully outlining the limitations of a plain-text reading of the Constitution and invokes the notion that the Constitution is a living document, stating: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.128 This quote stands in stark contrast to the two-part Glucksberg test centered around history and deeply rooted traditions. In Lawrence, the Court rejected the historical and traditional focus in Bowers and concluded that the Bowers Court did not fully appreciate the extent of the liberty interest at stake.129 Nevertheless, Lawrence left two main questions unanswered.130 First, the extent of conduct the Court believes is protected from government intrusion is unclear.131 The protected liberty interest, according to the Court, seems to be some kind of private, adult, consensual, sexual autonomy within a person’s home.132 The second question involves the standard of review.133 At times, Justice Kennedy seems to be using heightened scrutiny when he focuses on liberty and cites to cases holding that government interference with constitutionally protected rights 124. Lawrence, 539 U.S. at 578. 125. Hassel, supra note 64, at 1013. 126. See id. at 1018–19. 127. See Lawrence, 539 U.S. at 567. 128. Id. at 578–79. 129. See id. at 567–68. 130. Robert C. Farrell, Justice Kennedy’s Idiosyncratic Understanding of Equal Protection and Due Process, and Its Costs, 32 QUINNIPIAC L. REV. 439, 468 (2014). 131. Id. at 468; see also Jacob, supra note 111, at 284. 132. Farrell, supra note 130, at 469. 133. Id. at 468. 2018] PHYSICIAN-ASSISTED SUICIDE 525 must be narrowly tailored to a compelling interest.134 But the Court never explicitly says that the conduct protected in Lawrence is an implied fundamental right and holds that the government infringement “furthers no legitimate state interest.”135 This language is typically used under rational-basis analysis.136 Ultimately, most legal scholars and judges have concluded that Lawrence neither invokes strict scrutiny nor rational basis, and instead they identify it as a type of intermediate scrutiny or rational basis with bite.137 B. Continuing Down the Same Path: Obergefell v. Hodges In 2015, the Supreme Court held in Obergefell v. Hodges that marriage is a fundamental right protected by the Constitution, and same-sex marriage is included in that right.138 Obergefell departs from Glucksberg’s two-part test and instead follows the same substantive-due-process reasoning outlined in Cruzan, Casey, and Lawrence, further strengthening the argument that PAS should be deemed a constitutionally protected right.139 Justice Kennedy wrote the Obergefell opinion and described a process for finding new fundamental rights consistent with Lawrence.140 Justice Kennedy started with the history of marriage, provided an indepth description of the couples involved in the case, and used sympathetic language to describe their respective stories.141 Unlike in Glucksberg, history and tradition were not the endpoint of Obergefell’s substantive-due-process analysis.142 In addition, instead of defining the right narrowly, as required by Glucksberg, to apply to only same-sex couples, Justice Kennedy examined the right to marry more generally.143 134. Id. at 468–70; Lawrence v. Texas, 539 U.S. 558, 565–66 (2003) (citing Roe v. Wade, 410 U.S. 113 (1973) and Carey v. Population Servs. Int’l, 431 U.S. 678 (1977)). 135. Lawrence, 539 U.S. at 578; see also id., 539 U.S. at 599 (Scalia, J., dissenting); Farrell, supra note 130, at 471. 136. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting); Farrell, supra note 130, at 471. 137. Farrell, supra note 130, at 472 (“The courts of appeals for the First and Ninth Circuits, unsatisfied with either [strict scrutiny or rational basis], determined that Justice Kennedy’s opinion embraces some kind of intermediate scrutiny.”); Jeremy B. Smith, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 FORDHAM L. REV. 2769, 2774 (2005) (“Under rational basis with bite, a court, while purporting to use the rational basis test, actually applies some form of heightened scrutiny and invalidates the challenged law after a close examination of the law’s purpose and effects.”). 138. Obergefell v. Hodges, 135 S. Ct. 2584, 2607–08 (2015). 139. See generally Tobias Barrington Wolf, The Three Voices of Obergefell, L.A. LAW, Dec. 2015, at 28, 30 (2015); Richard A. Posner, Eighteen Years On: A Re-Review, 125 YALE L.J. 533 (2015) (reviewing William N. Eskridge, Jr., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996)). 140. Marie Louise Dienhart, Case Summary: Obergefell v. Hodges, 28 REGENT U. L. REV. 163, 180–81 (2016). 141. Obergefell, 135 S. Ct. at 2593. 142. Id. at 2598. 143. Id. at 2602. 526 ARIZONA LAW REVIEW [VOL. 60:509 Obergefell’s inquiry into whether a right is protected departs from Glucksberg’s two-part test.144 Although Justice Kennedy discussed the history and tradition of marriage, he did not remain confined by them. Instead, he illustrated the ways marriage has evolved over time through examples such as the change from arranged marriages to voluntary contracts and the abandonment of covertures due to the improved status of women.145 Further, he recognized the importance of new insights, stating that the “changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”146 Justice Kennedy also gave an extensive overview of the changes in public opinion surrounding same-sex intimacy and discussed pivotal case law.147 In addition, he explained the varying conclusions of state and lower federal cou...
Purchase answer to see full attachment