Right to die

Constitutional right of individual persons to decline or discontinue life-sustaining medical treatment for themselves. This right does not include affirmatively committing suicide or obtaining medical help to do so.

The federally guaranteed right to die is quite limited, which gives states great freedom to take different positions. The only action regarding the right to die that states may not take is to prohibit knowledgeable, competent patients from disconnecting their life-support system. In other words, the federal right provides only a minimum floor below which states cannot go.

Therefore, many states have voluntarily recognized some additional rights. For example, if the patient has become comatose or incompetent and cannot personally exercise his or her right to refuse treatment, most states will recognize some form of clear previous expression, advance directive, or living will. In the absence of such clear expression, many states will allow certain relatives, doctors, or guardians to make this decision based on the patient’s “best interests” or his or her informal previous expression. However, some states rather severely restrict the conditions under which others may make the decision to remove life support for a patient or require extensive proof that it would accord with the patient’s wishes. Whether the state may absolutely forbid such proxy decisions when the patient is comatose or incompetent is unclear. However, conversely, granting too much freedom to end the life of another may violate some notion of a right to life.

There are other state expansions of the minimum right to die. For example, if the main medical objective of administering known death-hastening pain-relieving medication is to alleviate otherwise intractable intense pain, pursuant to the patient’s fully informed request, a number of states choose not to punish those who administer this medication. These states regard this act as consistent with the federally guaranteed right to die, although they could probably prosecute those involved. This type of death is distinguished from common suicide leaping off buildings, jumping in front of cars, employing poisons, weapons, or other equipment and medically assisted suicide, which is illegal in most states and not within the federally guaranteed right to die.

The Cruzan Case

The genesis of the constitutional right to die is the opinion in Cruzan v. Director, Missouri Department of Health[case]Cruzan v. Director, Missouri Department of Health[Cruzan v. Director, Missouri Department of Health] (1990). The Supreme Court was faced with the case of a thirty-year-old woman in a “persistent vegetative state” a coma who was capable of some reflexes but no cognitive functions as the result of a severely brain-damaging automobile accident. Medical opinion was that she had virtually no chance of any significant recovery. She was apparently being kept alive by the medical administration of nutrition and hydration through tubes. There was evidence that, several years before the accident, at age twenty-five, she had told her roommate informally that if sick or injured she would not wish to continue her life unless she could live at least halfway normally.

Her parents, who had been appointed her guardians, wished to disconnect the life-support systems. The Missouri supreme court sustained an order preventing the disconnection. Because the patient had not executed a formal living will allowing disconnection pursuant to state law, the court held there must be other “clear and convincing evidence” of her wishes, which it found wanting. The Court was asked to overturn this ruling on the grounds that it violated the Constitution. It declined, ruling instead that the state court was within its constitutional rights.

The Right to Die

In the first part of its Cruzan decision, the Court assumed (but fell short of expressly holding) that the Constitution grants a competent, conscious adult a personal right to refuse life-sustaining hydration and nutrition. This followed, the justices intimated, from a long historical legal tradition recognizing bodily integrity, requiring consent to medical procedures, and allowing patients to refuse treatment. The legal community later regarded the first part of Cruzan as creating the right personally to refuse lifesaving treatment.

In Washington v. Glucksberg[case]Washington v. Glucksberg[Washington v. Glucksberg] (1997), the Court interpreted this part of Cruzan as strongly suggesting that the protection of “liberty” in the due process clause of the Fifth and Fourteenth Amendments “protects the traditional right to refuse unwanted lifesaving medical treatment.” It saw this right as analogous to other specific intimate personal liberties held protected by the clause in a string of previous cases: the freedom to marry, to have children, to direct their education and upbringing, to use contraception, to maintain bodily integrity, and to have an abortion.

However, the Court in Cruzan goes on to hold that even though the patient herself may have such a personal right, it does not follow that the parents may assert it for her. It held that the state’s interests in preserving life and the element of personal choice, preventing potential abuses by surrogates, and allocating the risk of error sensibly loom comparatively larger on this question and justified Missouri in requiring a high standard of proof, although a state does not have to do so. Therefore, the Court upheld the order preventing disconnection.

The Cruzan opinion, recognizing the personal right but allowing restriction of surrogate assertion, is an evident compromise between conflicting interests: the individual interest in terminating a bad existence and the state’s interest in preserving life.

Physician-Assisted Suicide

The Court made only two more decisions in the right to die area: Washington v. Glucksberg[case]Washington v. Glucksberg[Washington v. Glucksberg] (1997) and Vacco v. Quill[case]Vacco v. Quill[Vacco v. Quill] (1997). Both cases deal with whether there is a right to affirmative physician-assisted suicidePhysician-assisted suicide such as lethal injections. Because of countervailing state interests and a desire to preserve the life-saving nature of the medical profession, the Court held that at least in the abstract, absent some compelling individual case, no such right exists. Nor is it a denial of constitutional equal protection of the laws to treat a patient who refuses life support more permissively than one who, in quite similar circumstances, seeks a doctor’s assistance in dying. The Court justified its decision by pointing to the long historical, cultural, and legal distinction between passive measures such as refusal of treatment and active measures such as suicide.

The two 1997 cases were general challenges (by a group of physicians, a public interest group, and some by-then-deceased patients) to state laws against assisted suicide designed to prohibit physician-assisted suicide of terminally ill patients. Neither case was a specific challenge to a particular application of the prohibition to a terminally ill, intractably pain-wracked, motor-impaired patient who desired to commit suicide or had committed suicide with physician assistance.

In the context of the general challenge, the Court refused to invalidate state prohibitions against physicians assisting the suicide of terminally ill patients. However, several of the justices were willing to concede that a specially compelling individual case might arise in which a particular patient was in such dire straits that to deny him or her the right to physician-assisted suicide might violate his or her liberty protected by the Constitution. In other words, the justices suggested that some very particular application of the state law might be found unconstitutional.

However, until the Court makes such a ruling, the states are free to determine the legality of physician-assisted suicide and regulate it as they please. The justices apparently were reluctant to “freeze” the law by banning a certain kind of state provision for the entire nation at a time when states are experimenting and trying to find the right approach.

Looking at both life-support withdrawal and assisted suicide, it is clear that the Court, by allowing one and not the other, and attaching certain qualifications, has reached a compromise position on the important and knotty matter of the extent of a patient’s right to die.

Further Reading

  • Humphrey, Derek, and Mary Clement. Freedom to Die: People, Politics, and the Right-to-Die Movement. New York: St. Martin’s Press, 1998.
  • McHugh, Paul R. “Dying Made Easy: Deaths of T. Youk and M. Schwartz from ALS.” Commentary 107 (1999): 13.
  • Manning, Michael. Euthanasia and Physician Assisted Suicide: Killing or Caring. New York: Paulist Press, 1998.
  • Paris, John J. “Hugh Finn’s ‘Right to Die.’” America 179 (1998): 13.
  • Rosen, Jeffrey. The Most Democratic Branch: How the Courts Serve America. New York: Oxford University Press, 2006.
  • Rosenfeld, Barry. Assisted Suicide and the Right to Die: The Interface of Social Science, Public Policy, and Medical Ethics. Washington, D.C.: American Psychological Association. 2004.
  • Woodman, Sue. Last Rights: The Struggle Over the Right to Die. New York: Plenum Trade, 1998.

Cruzan v. Director, Missouri Department of Health

Fundamental rights

Privacy, right to

States’ rights and state sovereignty