The Right to Die as a Constitutional Right to Privacy

 

The Right to Die

 

By Amy Wees

August 11, 2009

 

Under what circumstances should an individual with an incapacitating or terminal illness be able to make the decision to die or allow a physician to assist in their death instead of remaining alive with the assistance of life supporting medical machines?  This is the question that has risen in many judicial cases surrounding the right to die law.  The right to die law was not designed to make it legal for an individual to commit suicide; rather it is used primarily in situations dealing with physician assisted suicide such as the above stated situation (Weisbrod, 2003).

In the past, many of these situations were handled by the family.  It would be determined with the help of the family physician that a person could no longer sustain life on their own and the family would decide whether or not to “pull the plug.”  However, the advancement of medical technology in the form of new drugs and respirators has made it more difficult to decide whether a person can possibly recover from the worst of situations and as a result the public has become more involved in these cases today (Weisbrod, 2003).

“In 1997, the U.S. Supreme Court held in Washington vs. Glucksberg that there was no constitutionally protected right to die assisted by a physician (Weisbrod, 2003).”  Dr. Harold Glucksberg, along with four other doctors as well as three terminally ill patients and a non-profit organization which councils those considering physician assisted suicide sued the state of Washington for banning physician assisted suicide.  Glucksberg’s suit was based on the violation of the constitution’s fourteenth amendment “Due Process Clause by denying competent terminally ill adults the liberty to choose death over life (Washington v. Glucksberg, 1997).”  The due process clause of the Fourteenth Amendment states “nor shall any State deprive any person of life, liberty, or property without due process of law (Moyers, 1997)”. Although the district court and the Ninth Circuit Court ruled in favor of Glucksberg that the fourteenth amendment due process clause protects “a liberty interest in controlling the time and manner of one’s death”, the Supreme Court did not (Moyers, 1997).  “The Supreme Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. Moreover, employing a rationality test, the Court held that Washington’s ban was rationally related to the state’s legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life (Washington v. Glucksberg, 1997).”

The Chief Supreme Court Justice in this case, Chief Justice Rehnquist, gives a historical perspective into the Right to die law and the U.S. Constitution by answering the question “does the due process clause protect a right to commit suicide?”  Rehnquist used four pieces of historical evidence to justify his ruling.  First, he notes that Anglo-American law has for seven centuries disapproved of suicide and assisted suicide and that the basis of jurisprudence in the U.S. until the 20th century labeled suicide as self murder and a very serious crime.  Second, each of colonies had laws against suicide when the constitution was written.  Third, “when the fourteenth amendment was adopted in 1868 it was a crime in most states to assist suicide.”  Fourth, recent updates of legislation by states reaffirm the repudiation of assisted suicide and therefore there is nothing in our history or current law to support a right to die (Moyers, 1997).

The fourteenth amendment was again cited in a similar case, Vacco v. Quill in New York heard by the Supreme Court in January, 1997.  In New York it is a crime to assist in suicide but patients themselves may refuse life saving medical treatment.  Physicians in New York claimed that it was within their standards to prescribe lethal medication for competent terminally ill patients but that they were prevented from doing so because of the assisted suicide ban.  These physicians along with three terminally ill patients sued the State’s Attorney General Vecco on the grounds that the ban violated the equal protection clause of the fourteenth amendment.  “The equal protection clause prohibits states from denying any person within its jurisdiction the equal protection of the laws (Cornell University Law School, 2009).”  The equal protection clause was designed to prevent states from discriminating against certain classes of individuals although it is up to the court to decide if there has been discrimination in an application of a certain law.  The application of the clause in Vacco v. Quill questions whether allowing a terminally ill patient to remove life saving devices while preventing another patient in the same situation from taking lethal doses of prescription drugs is unequal treatment under the assisted suicide ban.

The Federal District Court first disagreed and the Circuit Court reversed that decision ruling for Quill.  The Supreme Court however, held that the equal protection clause did not apply.

Justice Rehnquist once again delivered the verdict in this case stating “the New York statutes outlawing assisted suicide neither infringe fundamental rights nor involve suspect classifications, e.g., Washington v. Glucksberg… On their faces, neither the assisted suicide ban nor the law permitting patients to refuse medical treatment treats anyone differently from anyone else or draws any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection.  This Court disagrees with the Second Circuit’s submission that ending or refusing lifesaving medical treatment “is nothing more nor less than assisted suicide.” The distinction between letting a patient die and making that patient die is important, logical, rational, and well established and has been widely recognized and endorsed in the medical profession, the state courts, and the overwhelming majority of state legislatures, which, like New York’s, have permitted the former while prohibiting the latter.  The Court therefore disagrees with respondents’ claim that the distinction is “arbitrary” and “irrational.” The line between the two acts may not always be clear, but certainty is not required, even were it possible. Logic and contemporary practice support New York’s judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently (Vacco v. Quill, 1997).”

The issue of right to die law has since been treated mainly as a matter of state law giving states the ability to define their position on the right to die through the use of statutes on substituted judgment, euthanasia laws, durable powers of attorney and living wills.  The state of Oregon, for example, is the only state with a “Death with Dignity statute which allows physicians to provide patients access to drugs to facilitate their own death (Weisbrod, 2003).”  Other states do not permit any type of euthanasia or physician assisted suicide but in certain cases do allow the removal of life support and the withdrawal of life sustaining procedures without penalty.

More recent court cases have dealt recurrently with the question of whether a family member or surrogate can speak for the patient or make decisions as to the patient’s ultimate wishes for life or death.  One landmark case was that of Nancy Cruzan of Missouri.  In 1983, at the age of 25 years old, Nancy Cruzan lost control of her car and was thrown from the vehicle.  By the time paramedics arrived and were able to resuscitate her, Nancy had been deprived of oxygen to the brain for up to fourteen minutes causing permanent brain damage.  At the hospital, Nancy was able to breath on her own but due to her condition she had to be fitted with a feeding tube to sustain her life and she was unresponsive to any attempts of communication by her family or medical personnel.  Nancy’s eyes would occasionally open and she would startle from noises in the room, but her body was frozen and her hands were bent so badly that her nails cut into her wrists.  Nancy was not mentally alive; she was merely physically alive by her ability to breath and the feeding tube that sustained her.  In this condition Nancy could live this way for another thirty years.  But was she really “living”?  A state statute prevented Nancy’s parents from speaking on her behalf because she was an adult and had no living will.  Therefore, removal of the feeding tube without a court order was not possible and Nancy’s parents were left with few choices as to ending her suffering.  Removing the tube was the option Mr. and Mrs. Cruzan thought that Nancy would want.  They decided to go to court with the assistance of a pro-bono lawyer, William Colby, to request a court order to remove the feeding tube (Colby, 2006).

The Cruzan’s first trial was with the state’s Attorney General vs. the department of health which was won but was lost upon appeal at the Missouri State Supreme Court.  According to the case summary: “The appellate court denied Cruzan’s petition holding that petitioners lacked authority to effectuate the request because there was no clear and convincing evidence of the daughter’s desire to have life-sustaining treatment withdrawn as required under the Missouri Living Will statute, Mo. Rev. Stat. § 459.010 et seq. (1986) (Cruzan v. Harmon, 1989).”  The court also found that Nancy was not dead nor terminally ill using the following state statute as their basis: “For all legal purposes, the occurrence of human death shall be determined in accordance with the usual and customary standards of medical practice, provided that death shall not be determined to have occurred unless the following minimal conditions have been met: “(1) When respiration and circulation are not artificially maintained, there is an irreversible cessation of spontaneous respiration and circulation; or “(2) When respiration and circulation are artificially maintained, and there is total and irreversible cessation of all brain function, including the brain stem and that such determination is made by a licensed physician.” Mo. Rev. Stat. § 194.005 (1986).  Since Nancy’s respiration and circulation were not being artificially maintained, she obviously fit within the first proviso of the statute (Cruzan v. Harmon, 1989).”

The case was appealed by the Cruzan’s at the U.S. Supreme Court where the court affirmed Missouri’s decision and more specifically, decided that Missouri did not make a constitutional error by deciding that Nancy would not have wanted her feeding tube removed based on the evidence and testimony presented of a conversation Nancy had with a friend about not wanting to live in a vegetative state during the state trial.  Justice Rehnquist stated in his opinion “No doubt is engendered by anything in this record but that Nancy Cruzan’s mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of “substituted judgment” with anyone, the Cruzan’s would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself (Cruzan v. Director, Missouri Dept of Health, et al., 1990).”

Luckily, the Supreme Court allowed for appeal at the state level and after gaining more testimony from three other friends about Nancy’s wishes, a Missouri Probate Court decided that there was enough clear and convincing evidence that Nancy would not want to continue living in a vegetative state.  The feeding tube was removed allowing Nancy to die peacefully a short time later (Taub, 2001).  As a result of this case, the condition of Permanent Vegetative State (PVS) was brought to the forefront.  If Nancy had been given the opportunity to learn the importance of stating her wishes ahead of time incase something like this happened to her, a court order would not have been needed and her family would have been at peace much sooner.  A situation such as Nancy’s has forced the public to really think about what their wishes would be if put in a similar situation and to act on those wishes in the form of legal documentation.  “In 1991, as a result of the Cruzan decision, the federal government enacted the Patient Self-Determination Act that requires hospitals, nursing facilities, hospices, home health care programs, and health maintenance organizations to inform patients about their right to make forward-looking care and treatment decisions through the use of advance directives.  Following the Cruzan case, states developed both medical proxy laws, whereby individuals could designate someone to make medical decisions for them if they become incapacitated, and living wills, legal statements of end-of-life care wishes (Taub, 2001).”

It should be mentioned that not all of the Supreme Court Judges in Nancy’s case affirmed the decision of Missouri; four of the nine justice’s dissented.  Specifically, Justice Brennan makes a statement about the value of a life being sustained by medical equipment and the law: “Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity (Cruzan v. Director, Missouri Dept of Health, et al., 1990).”  Justice Brennan goes on to say that although there was evidence that Nancy did not want to live like this, she is forced to because of a state decision specifically “Missouri and this Court have displaced Nancy’s own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name and openly in Missouri’s own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter (Cruzan v. Director, Missouri Dept of Health, et al., 1990).”

In sum, it seems that there are many considerations that are left to be made about the right to die and the law’s intervention in the matter.  After all we live in a country where it is lawful to end the life of an unborn child with a physician’s assistance via abortion because of a mother’s right to privacy and bodily integrity under the fourteenth amendment.  At the same time and under the same amendment, it is not lawful to end our own life or for a physician to assist us in that right if we are suffering or are no longer mentally competent.  Who decides what is lawful when it comes to our own bodily integrity and privacy?  These are rights that are supposed to be protected by our Constitution, Bill of Rights and Amendments therein.

However, it is because of these documented rights that the law has a place to protect the public from unnecessary harm and intervene in certain cases.  Therefore, it is paramount for the public to learn from situations such as that of Nancy Cruzan and recognize the importance of using legal documentation such as a living will to protect individual rights and avoid the necessity of the law to intervene in these private situations.

 

 

 

References

 

Colby, W. (2006). Conference on the Law of Death and Dying: Article: From Quinlan to Cruzan to Schiavo: What Have We Learned? Loyola University Chicago Law Journal .

Cornell University Law School. (2009). Equal Protection. Retrieved August 11, 2009, from Legal Information Institute: http://topics.law.cornell.edu/wex/equal_protection

Cruzan v. Director, Missouri Dept of Health, et al., 497 U.S. 261 (1990).

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1989).

Moyers, P. (1997). “The Right to Die?” Vol 2. Fall. Retrieved August 11, 2009, from Princeton University Law Journal: http://www.princeton.edu/~lawjourn/Fall97/II1moyers.html

Taub, S. (2001). “Departed, Jan 11, 1983; At Peace, Dec 26, 1990”. American Medical Association Journal of Ethics , Vol. 3, No. 7.

Vacco v. Quill, 521 U.S. 793 (1997).

Washington v. Glucksberg, 521 U.S. 702 (1997).

Weisbrod, C. (2003). “Right to Die” Cases. Dictionary of American History. The Gale Group Inc. Retrieved Aug 11, 2009, from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401803609.html#citationanchor

 

 

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