It’s My Body, and I’ll Die How I Want to!
- The Supreme Court has found that we have a right to hasten death by foregoing or stopping life-saving treatment.
- The Supreme Court has found that terminally-ill patients do not have a right to hasten death.
- The Supreme Court has not enumerated a rationale for denying the right to autonomy to some, namely terminally-ill patients, while granting it others.
This article is by Andrew Murphy, a 2L at Chicago-Kent.
Unless you have been living under a rock for the past 20 years, you have heard of Doctor Jack Kevorkian and the debate sparked by his actions in assisting more than 130 people to commit suicide. However, this was not the beginning of the debate on one’s ability to control when and how they die. This debate has been carried out in our judicial system for decades as evidenced by In re Quinlan and its progeny. Today the debate still endures in the form of a terminally-ill patient’s right to affirmatively hasten death through physician-assisted suicide when the only alternative is languishing in pain and prolonging an undesirable quality of life. The Supreme Court has unequivocally held that the terminally-ill patient does not have this right. Is it intellectually dishonest to draw a distinction between hastening death by withholding life-saving medicine and hastening death by affirmatively acting to do so? Is this an example of governmental paternalism and undue burden on personal autonomy? I would answer both questions in the affirmative.
Our society historically has been one that values autonomy and freedom from undue intrusion by the government. In property law terms, we like our bundle of sticks, and we want control over what we do with them. However, the Court has found that we do not have the ability to cede our right-to-life stick when faced with the option of suffering from an incurable condition. The Court has described our right to autonomy in grandiose terms in some instances and then turned around and denied that very same right to autonomy in others. Few decisions a person makes is a private as one’s choice to affirmatively hasten one’s death. People, specifically people suffering from terminal illnesses, should be able to exercise their autonomy over their bodies by controlling the time and manner of their death.
In order to truly understand the issue it is necessary to briefly recap some of the seminal cases on this issue. In Vacco v. Quill, 521 U.S. 793 (1997), the Court decided that denying terminally-ill patients the right to hasten death through physician-assisted suicide was not a violation of equal protection. New York physicians argued that “New York law does not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths” because “those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs.” Chief Justice Rehnquist, writing for the Court, admitted that “the line between the two may not be clear, but certainty is not required.”
The Court refused to deal with the autonomy issue and instead characterizes the right to refuse treatment not as a right to hasten death but as a right to “bodily integrity and freedom from unwanted touching.” In essence, the Court simply rephrases the rationale behind refusal of treatment and says “Voilà! Problem solved.” However, this does little to address the crux of the argument that this distinction is arbitrary. On the contrary, the Court gives no reasoning for their finding except to say the distinction is long standing and to make an ipse dixit assertion that the distinction is not arbitrary.
Decided the same day as Vacco, the Court in Washington v. Glucksberg, 521 U.S. 702 (1997), determined that denying terminally-ill patients the right to hasten death by way of physician-assisted suicide did not violate due process because the right to die is not a fundamental liberty. In its voluminous opinion, the court opines that the prohibition against suicide is longstanding and cites several centuries of statutory and common law and treatise passages dealing with the subject of suicide. The Court makes a compelling argument that assisted suicide is not a liberty “deeply rooted in this Nation’s history and tradition,” and thus is not a fundamental liberty under the Court’s test. This argument, however, is ultimately unconvincing when considered in light of the Court’s willingness in other cases to find a “fundamental right” in areas not “deeply rooted” in the history and traditions of this nation.
Deprived of the ability to seek a dignified, medically-supervised means of dying, many terminally-ill patients are left with few alternatives and instead take matters into their own hands, often resorting to macabre methods. When it comes down to it, many, if not most, of the advocates of physician-assisted suicide support it not because they do not value life and desire to terminate it but because they value autonomy and one’s ability to choose for himself the time and manner of his death.
 If you have been living under a rock, this article ought to catch you up.
 E.g. U.S. Const. amend. I; amend. II; amend. III; amend. IV; amend. V; amend. XV; amend. IXX; amend. XXI; amend. XXIV.
 See Texas v. Lawrence, 539 U.S. 558 (2003) (stating boldly that “Liberty presumes an autonomy of self”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (stating that “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter,” and “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.”).
 See Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997).
 See Lawrence, 539 U.S. 558 (noting that “Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533,” but ultimately finding a Constitutionally protected right to sodomy.); Roe v. Wade, 410 U.S. 113 (1973) (citing centuries of law opposing abortion, including American common and statutory law, and many of the same treatises cited in Glucksberg yet finding that the right to privacy encompassed a woman’s right to terminate her pregnancy in certain instances.); see also U.S. v. Va., 518 U.S. 515, 557 (1996) ( noting “[a] prime part of the history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”).
 See Brief of Amicus Curiae of Ten Surviving Family Members in Support of Physician-Assisted “Suicide”, 1994 WL 16012285. (Describing experience of surviving family member cleaning the brains off the wall after terminally-ill family member shot himself with a 12-gauge shotgun.).