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The debate surrounding physician-assisted suicide is not an abstraction. While germinating philosophical and legal arguments, physician-assisted suicide is a decision that has enormous costs and implications for families. With this in mind, it is important to ground the philosophical and legal arguments at the heart of this debate in the practical implications of such decisions. This article will argue that laws banning physician-assisted suicide are morally wrong and unconstitutional through an introduction to the constitutional doctrines of Due Process, Equal Protection, and the implied right to privacy.

The Fourteenth Amendment’s Due Process Clause reads no state shall “deprive any person of life, liberty, or property, without due process of law.” Absent of due process, the government cannot constitutionally take away a person’s liberty. Under a substantive view of due process, the Supreme Court has safeguarded certain areas of personal autonomy, such as family autonomy, reproductive autonomy, and the autonomy to engage in consensual sexual activity. The Fourteenth Amendment’s Equal Protection Clause reads no state shall “deny to any person within its jurisdiction the equal protection of the laws.” With this provision of the Fourteenth Amendment, the Court has protected against discrimination of various kinds and has interpreted this provision to guarantee a strong presumption of formal equality.

The right to privacy is nowhere found in the Constitution; it is not an enumerated right. Yet, the Court has found this right to exist as an inference from other provisions in the Bill of Rights, from the “penumbras” and “emanations” of specific guarantees in the First, Third, Fourth, Fifth, and Ninth Amendments. In sum, as will be later discussed, these three protections serve to offer convincing justifications for the recognition of physician-assisted suicide as a fundamental right subject to strict scrutiny review.

With constitutional doctrine introduced, it is now fitting to delve into the Supreme Court’s jurisprudence on the subject in question – the constitutional “right to die.” The first “right to die” case ever heard by the Supreme Court was Cruzan v. Director, Missouri Department of Health (1990). In this case, the Court upheld the interests of the state of Missouri over the privacy claims of parents who sued to remove a feeding tube inserted in their daughter, Nancy Cruzan, who was brain dead and who doctors predicted would remain unconscious for the next thirty years unless the tube was removed and she was allowed to die. Chief Justice Rehnquist, writing for a bare majority, rejected the extension of the right to privacy into a realm of social policy associated with death, but interpreted the Fourteenth Amendment’s Due Process Clause to protect the liberty interest of an individual terminating unwanted medical treatment, if they are able to express or have clearly expressed (e.g., in a living will) their desire to have medical treatment ceased in the event that they become incompetent. 

Following the logic that the right to privacy included the autonomy to deny unwanted medication, in the case of Compassion in Dying v. State of Washington (1996) the U.S. Court of Appeals for the Ninth Circuit lifted a ban on doctor-aided suicide through an en banc ruling that physician-assisted suicide was a constitutionally protected liberty under the Fourteenth Amendment’s Due Process Clause. As such, the Ninth Circuit invalidated a law in Washington prohibiting physicians from “aiding or abetting” suicide, categorizing the law as an “undue burden” on the exercise of a constitutional right. 

Moreover, the Ninth Circuit ruled that the law violated the equal protection guarantee of the Fourteenth Amendment. This guarantee requires that “all persons similarly situated should be treated alike.” Following the conclusion that physician-assisted suicide was constitutionally protected, the Ninth Circuit ruled that Washington’s legislature allowed patients on life-support to exercise their constitutional right to hasten death, but denied this right for mentally competent, terminally ill patients not on life support. Thus, the Ninth Circuit struck down the absolute prohibition of physician-assisted suicide on both due process and equal protection grounds.

A year later, the existing precedent was overturned when the Supreme Court reversed both of the above decisions and forcefully repudiated any constitutional right to assisted suicide. The Court did this in a pair of consolidated cases, Washington v. Glucksberg (1997) and Vacco v. Quill (1997), which reject the constitutional “right to die” on both due process and equal protection grounds, respectively. In Glucksberg, the Court asserted that fundamental liberty under the Due Process Clause was limited to what is “deeply rooted in our Nation’s history and traditions.” And because there was a long history of states outlawing assisted death, the Court ruled that the fundamental liberty of the Fourteenth Amendment did not include the right to die with dignity. Following from this decision, in Quill, the Court ruled that New York’s ban of assisted death did not discriminate on the face of the law and did not implicate any “suspect classifications” or classifications dealing with groups that have been historically discriminated against.

The U.S. Supreme Court was tragically wrong in its decisions in Glucksberg and Quill, both theoretically in terms of their construction of the “right to life” and legally by failing to characterize the right to assisted death as a fundamental right subject to strict scrutiny. First, I will address the philosophical justification for physician-assisted suicide by clarifying misperceptions about the right to life and refuting the claims of legal paternalists. Second, I will address the legal justification for physician-assisted suicide by showing how the right to assisted death is comparable to other rights historically protected as fundamental and how that characterization yields strict scrutiny review. 

First: the philosophical justification. The right to life, to the extent that it is enforced, depends on an interest in self-preservation. The right to life stipulates that if one wants to preserve and protect their life and body, the State will recognize that interest and seek to prevent anyone from arbitrarily taking it away. The key word: if. The right to life does not fall from thin air; it arises out of the presumed interest that everyone has in preserving their life. The right to life depends on a choice to live, not an obligation to live. Heeding this, the question becomes: how should the State determine who has made that choice and who has genuinely forfeited their right to self-preservation (i.e., terminally ill patients)? While a comprehensive criterion is hard to postulate, the right to life should be presumed until one has sufficiently proved a genuine surrender of that right. The sufficient-proof criterion should not be decided by courts, but rather should be left to the democratic process and the political branches – but still not immune from judicial review.

The next philosophical justification rests on a repudiation of legal paternalism. According to Gerald Dworkin, legal paternalism describes the interference with a person’s liberty of action for reasons exclusively referring to the welfare or interests of that person. The threshold question here is as follows: is an infringement on personal autonomy justified by the State for the purpose of preventing self-harm? A proper analysis of this question leads to the conclusion ‘no’ for two reasons: (1) it erroneously substitutes self-government (or self-judgment) for the judgment of the State; and (2) it undermines John Stuart Mill’s “Harm Principle”, which asserts that state coercion is only justified to prevent harm against others.

Now, with the philosophical justifications attended to, we move to the legal justification. The legal justification rests on two questions: (1) Should the constitutional right to privacy be interpreted to include a fundamental right to assisted death for terminally ill patients? And (2), if so, is the prohibition of assisted death necessary to meet a compelling government interest?

The answer to the first question is yes. The Constitution protects fundamental aspects of personal autonomy, even though privacy and these rights are not enumerated in the Constitution. The right to assisted dying – a right to die with dignity – is a core aspect of the personal autonomy protected under the Constitution’s right to privacy. 

The answer to the second question is no. The State of Washington in Glucksberg and the State of New York in Quill asserted several interests to support their laws prohibiting aiding or abetting suicide. The Ninth Circuit and the Supreme Court each addressed six specific interests: (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5) protecting the integrity of the medical profession; and (6) avoiding future movement toward euthanasia and other abuses. Nevertheless, these interests lose potency when applied to terminally ill patients, a limited subset of the population. 

In conclusion, the broader upshot of this debate is whether the issue of assisted suicide should be left to the political process or decided by the courts. The Supreme Court took the former position in Glucksberg, but this issue should not be left to the political process for two reasons. First, the Constitution should be interpreted as including a fundamental right to physician-assisted suicide, and the protection of fundamental rights in a liberal democracy is not left to the political process. Second, very few states have adopted “death with dignity” laws (with some notable exceptions like Oregon, for example), even though most Americans favor legalizing physician-assisted suicide. This begs the question: why has the political process not acted accordingly? This can be attributed to the scary task of reckoning with human mortality, a task humans wish to avoid at all costs, yet terminally ill patients do not have the option of choosing when to confront their individual mortality. Thus, in concrete terms, every competent adult facing a terminal disease should be able to die with dignity. The Supreme Court erred in Glucksberg and Quill, and countless individuals and their families continue to suffer from these infamous decisions.