Summary:
Washington v. Glucksberg was a case that started with physicians who believed they had a fundamental right to assist patients in death if they wanted it. Harold Glucksberg, a Washingtonian physician, could not assist patients in death because of a state law forbidding anyone from assisting in a suicide attempt, regardless of the relationship or how close they were to physical death. Glucksberg claimed that “the Washington statute unconstitutionally prohibited doctors from providing life-ending assistance to terminally ill patients suffering painful and debilitating illnesses” (Gillman, Graber, Whittington, 2020:1). His position was backed by many organizations, including the American Counseling Association. Most states had a similar law that Glucksberg’s advocates were prepared to bring to the Supreme Court. Glucksberg eventually appealed to it after the Court of Appeals for the Ninth Circuit reversed a decision by a federal court that supported a right to die (Gillman, Graber, Whittington, 2020:1). The Supreme Court unanimously decided that the Washington law was constitutional, resulting in a defeat for Glucksberg and his allies.
In their decision of the case in 1997, the Supreme Court judges applied rational basis review instead of strict scrutiny (Chemerinksy, 2008:1503). Chief Justice Rehnquist, who delivered the opinion of the court, pointed out that the legal history of suicide consistently showed that it is disfavored, including cases where it is assisted by a physician for terminally ill cases (Urofsky, 1998:389). This seemingly contradicted a previous case- Cruzan v. Missouri Department of Health, 1990, which held that the Due Process Clause protects the right to refuse unwanted lifesaving medical treatment. Rehnquist acknowledged their similarity but insisted that because they never enjoyed similar legal protection, his view would not change (Gillman, Graber, Whittington, 2020:3). Other justices agreed, including Sandra Day O’Connor, who stated “there is no generalized right to commit suicide” (Gillman, Graber, Whittington, 2020:7). She added that the state had an interest in protecting citizens who might seek to commit suicide based on maltreatment or from pressure placed by physicians.
Surprisingly, none of the justices challenged these views. Justice Stevens added there was a fear that permitting P.A.S. (physician assisted suicide) would be seen as contradicting their societal role as healers (Gillman, Graber, Whittington, 2020:8). Justice Breyer suggested that if the claim had been made using different wording, such as “right to die with dignity”, it may have found greater support within the Court (Gillman, Graber, Whittington, 2020:9). Previously, the court had held in various cases that bodily integrity is a fundamental right, allowing individuals the right to determine what to do with their own body as it relates to medical needs, including Roe v. Wade. Death with dignity would seem integral to bodily integrity, giving Breyer’s opinion a hinge from which the door could remain open to future analysis by the Court pertaining to these issues. Being that the justices did not view P.A.S. as a fundamental right, it did not pass the strict scrutiny test, which measures whether a fundamental right is being violated. It is worth noting that none of the justices mentioned the right of privacy as it pertains to this case, particularly regarding the personal autonomy of the individual, which could have also been addressed.
Critique of the case:
One of the theoretical themes in the case is the way the Supreme Court bases its interpretation of the constitution on social or cultural norms. Deciding cases that would go against historical outcomes or the norms and values of a society puts the Court’s integrity in danger. Regarding suicide, Urofksy (1998:328) points out that in the 1990s there was much cultural backlash against it, suggesting a norm against it was realized by the Court. This developed from the historical and traditional roots of the meaning of suicide. In the past it was seen as a mortal sin that violated canon law (Urofsky, 1998:328). One who committed suicide, or acted as an accomplice to it, were usually condemned by the Church. They were thought by many priests and theologians to reside in Hell after death, creating a mass perception that suicide was evil.
What also must be considered is the legal context of this theme. Rehnquist was correct that suicide was never recognized as a right under common law. A famous case in English jurisprudence is Hales v. Petit, which was “one of the first cases to classify suicide as a felony”, condemning “...self-murder as a criminal act” (Urofsky, 1998:329). When this case was decided in 1562, Christianity in all its versions held supreme moral authority over English society and Europe in general. The Church most certainly influenced public opinion about suicide, which would have filtered through to jurists, many who were likely Christian themselves. This case set the precedence for a public and judicial perception about suicide that reinforced one another, forming the general opinion that nobody involved in suicide deserved a fundamental right to be realized. Yet as time went on, the Church held less influence on public opinion and people started exploring other sources of moral authority. Gradually, public opinion about suicide shifted, resulting in the more modern notion that P.A.S. is one of the few legitimate contexts in which suicide could be socially accepted. It has gotten to the point where a majority of people now support P.A.S. in certain situations. In 2018, a Gallup poll found that 72% of respondents believed a physician should have the right to end a terminally ill patient’s life, provided they had the patient’s consent (Brenan, 2018). As public support for P.A.S. continues to gather momentum, the 1997 decision by the Court increasingly appears old-fashioned, an anachronistic decision that failed to anticipate the shift that would occur.
A symbolic outcome of the case is the affirmation that the Court became more conservative after the liberal revolution in civil rights during the mid-20th century. An ideological shift occurred in the court during the 1980s, after Ronald Reagan was able to replace three liberal justices with conservative ones. Since then, the Court has made increasingly conservative decisions, at least most of the time. It is not clear whether a liberal majority would have ruled in favor of Glucksberg, since every liberal-leaning justice on the Court voted against him in 1997, including John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer- the more liberal justices at the time. Had the case been decided 30 years earlier, there may have at least been a few justices voting in favor, since liberal justices tend to have a broader interpretation of the constitution.
I believe the Court’s narrow interpretation in the case demonstrates this symbolic shift perhaps more than any other case during late century judicial review. Many state courts during this period “expanded what many people have come to call a right to die by upholding the claims of patients that they had a right to stop treatment” (Urofsky, 1998:318). Social momentum was gathering for an acceptance of the right to die, which became recognized by the Supreme Court when ruling on Cruzan v. Missouri Department of Health seven years before the Glucksberg case. In that case, the right to die was recognized as a part of personal autonomy, not from the right to privacy but from due process, resulting in a constitutionally protected scenario where the patient or their family could give the physician their consent (Urofsky, 1998:322). “Under Cruzan, those who are on life support have the right to have it ended. In other words, they have the right to assisted dying under the Constitution” (Chemerinsky, 2008:1507). Kamisar (2008:1) adds that if medical treatment were mandatory, patients like Nancy Cruzan would be “at the mercy of every technological advance”, forcing her to be kept alive in a vegetative state for thirty years. This case marked a profound shift in the broader constitutional interpretation that the right to die may be included among fundamental civil rights, but it appears Glucksberg happened to soon for the Court to expand on it.
The case had a bigger societal impact than most people realize. By affirming P.A.S. as unconstitutional, the Court effectively prevented the dangerous capability of physicians to persuade people who aren’t terminally ill to commit suicide, including the mentally ill. In his majority opinion, Rehnquist pointed out that P.A.S. “could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses” (Gillman, Graber, Whittington, 2020 4). O’Connor backed him up by saying the State had an interest in protecting people vulnerable to suicide, including the mentally ill and those facing pressure from their physician (Gillman, Graber, Whittington, 2020:7). Considering the rising suicide rates in our country without P.A.S., the Court’s decision to reject it probably kept rates lower than they would have been with it.
In the case of the terminally ill, the Court’s decision does not indicate a progressive position for society. Chereminsky (2008:1502) shares a personal story about his terminally ill father: “The prohibition of physician-assisted suicide affects those like my father who are not on life support and are physically too weak to commit suicide”. Challenging the position that a right to die would tarnish the physician’s traditional role as healer, Chereminsky (2008:1511) points out that this is not applicable in situations where there is no more healing to be done. He also challenges the Court by asking whether the state “has a compelling interest in prolonging lives of terminally ill patients who wish to die” (Chemerinsky, 2008:1509). The Ninth Circuit (1996) in their support of Glucksberg had a similar view, stating: “When patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the state's interest in forcing them to remain alive is clearly less compelling.” These are good points that I believe the Court failed to take into consideration. The Court’s decision has a major impact on the families of terminally ill patients who are unable to request P.A.S. for loved ones who are suffering unnecessarily. I cannot imagine how hard it must be for a family to request P.A.S. to relieve the pain of their loved one only to be rejected by a technicality.
I do not think the case had a large impact on how Americans think about liberty. It may have made headlines back in 1997, but for millennials like me who (until now) have never heard of the case, it doesn’t seem relevant to our understanding of liberty. Even considering those who are aware of the case and its outcome, I still do not think it reshaped our cultural conception of liberty. Evidence from the Gallup poll cited earlier suggests that rather than agreeing with the decision, public opinion heavily supports P.A.S. in the context of terminally ill patients seeking death.
This reflects a major shortcoming in the case. The lack of distinction between terminally ill patients and those who are not terminally ill was a generalization the Court may have regretted. Because of this, law professor Kamisar (2008:9) finds that “this may be the most confusing and the most fragile 9-0 decision in Supreme Court history”. He thinks Rehnquist in particular misinterpreted the question as being about the right to commit suicide rather than the right to have a physician assisting with it, which Sandra O’Connor agreed with. By shifting the focus to suicide in general, the Court did not sufficiently regard terminally ill cases under strict scrutiny.
Another shortcoming was the Court’s lack of consistency in applying other decisions involving bodily integrity and the right to privacy. In justice Souter’s opinion, he appealed to Roe v. Wade when describing the Court’s previous understanding that abortion was an essential part of bodily integrity (Gillman, Graber, Whittington, 2008:5). Then in the same opinion, he acknowledged “there can be no stronger claim to a physician’s assistance than at the time when death is imminent” (Gillman, Graber, Whittington, 2008:6). This suggests bodily integrity should apply to those who are terminally ill the same way a woman’s body does during a life-threatening pregnancy. It does not make sense that the Court would allow physician assistance to terminate a woman’s pregnancy (including the death of the fetus) while disallowing it to someone whose death is already a certainty, at least in my mind. In both cases, someone dies, but the integrity is only focused on the life being saved. If bodily integrity included the lives being lost, we may have seen different results in both cases.
Another inconsistency, this time in relation to the right of privacy, came about in a future case, when in Lawrence v. Texas (2008) the state of Texas was overruled by the Supreme Court for arresting a same-sex couple engaged in private intimate contact. Kamisar (2008:1) found that Lawrence is not easy to reconcile with Glucksberg on the basis of privacy rights, nor does Chemerinsky (2008:1506): “The Court in Lawrence protected a privacy right even though it was not based in the text, the framer’s intent, or tradition.” In the past, the right to privacy has also been used to support laws involving contraception and abortion. This further supports the analogy to birth control in that bodily integrity and privacy are not similarly provided for “death” control. I don’t think legalizing birth control while withholding comparable legislation for death control is in the best interest of the integrity of the Court.
A final shortcoming is the idea that historical precedent should hinder the legal progress of a rapidly developing society. Oliver Wendell Holmes (1897) said it best: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past”. Glucksberg is a good example of the reliance some courts have to traditional legal principles that went into effect when society was far different than it is today. I believe we now have sufficient technology to determine whether someone can recover from an illness or not; and I also believe the social stigma against suicide is not as strong as it was in the past. These two changes in the evolution of society should prompt a reconsideration of traditional views on suicide that originated centuries ago.
Reflection:
Suicide is a sensitive topic that must be carefully reflected upon. When discussing this issue with my wife, she was initially against all P.A.S., based on an initial emotional reaction and a religious conviction. As I worked her through the issue, explaining the cases in which P.A.S. might be acceptable, she gradually opened her mind to the idea. This seems like a microcosm of Court processes in general: that as society adjusts to changing ideas about formerly intolerable actions, the Court adjusts to cultural transformations accordingly, resulting in decisions that broaden constitutional interpretations rather than narrowing them.
In light of this, I believe the social stigma behind suicide created a bias that heavily influenced the Court in their decision of Washington v Glucksberg. The decision seemed to be more about the public backlash against suicide than P.A.S. involving terminally ill patients. Karmisar (2008:9) summed it up well when he wrote: “The best chance [Glucksberg] had of prevailing in the courts—perhaps the only chance—was to ask for a narrow right to P.A.S., one confined to the terminally ill. Such a limited right would cause less alarm and command more support than a general right to assisted suicide”. It is crucial to evaluate Supreme Court decisions through the process of change, because often the Court adjusts to cultural transformations gradually and not all at once. Allowing P.A.S. only in the context of terminally ill patients would have at least allowed the shift in public opinion to fully blossom without revolutionizing legal suicide in general.
The case impacted my own understanding of liberty and society by providing an example of the Supreme Court misunderstanding the plaintiff, not following public opinion, and sticking to traditional beliefs. There are some staunch traditionalists on the Court that are reluctant to see change in the way the constitution is interpreted. It showed me how originalism is still alive and well, despite two-and-a-half centuries of social and cultural development. And sometimes, that’s a good thing. There are times when public opinion changes so swiftly and radically that a return to originalism may be necessary, but I do not think it was in this case. Glucksberg should have been the next step in the development of P.A.S., which had already taken the first in Cruzan. That is probably the reason why justice Breyer and others left the door open to future consideration on the matter.
I wouldn’t say the context surrounding the case made me particularly angry. As someone who was misdiagnosed for depression and prescribed medications that made it worse, I can strongly vouch for the opinion that physicians should not have P.A.S. rights for the mentally ill. However, in the case of the terminally ill, it did irk me a little that the patient could not ask for it, especially when reading about Chemerinsky’s ordeal. The ruling on Cruzan would have motivated me to expect a ruling supporting P.A.S., but only under this special circumstance.
It is important to reflect on this case because not all unanimous Court decisions are logically consistent with other rulings, especially ones occurring after it. As it applies to this case, the ruling in Lawrence v. Texas is an example of the way the Court may be pressed to reconsider previous decisions based on new conceptions of rights. It also serves as an important reminder that plaintiffs must be as reserved as possible when confronting the Court with radical ideas. Glucksberg’s party may have asked for too much; by opening the debate on P.A.S. in broad terms, the Court seemed unable to reduce the issue to terminally ill patients rather than patients in general.
In 24 years, the case has not been redressed, possibly because the Court is even more conservative now than it was in 1997. Considering all the public support for P.A.S. on terminally ill patients, and all the support by state courts, it is still surprising that it hasn’t come back to their attention after all this time. If it did, I would expect more support in the Court for it, if not a full victory than at least a decision that isn’t unanimous. I believe we owe it to people, and their families, who are going through tremendous suffering at the end of their lives, that they should have the choice to end it when medical attention is no longer useful.
References:
Brenan, Megan. 2018. Americans’ Strong Support for Euthanasia Persists. Gallup. Retrieved December 11, 2012, https://news.gallup.com/poll/235145/americans-strong-support-euthanasia-persists.aspx
Chemerinsky E. 2008. Washington v. Glucksberg was tragically wrong. Michigan Law Review 106(8):1501-1516
Gillman, H., Graber, M. A., & Whittington, K. E. (2021). American constitutionalism. Oxford University Press, supplementary material, 1-9. Retrieved December 11, 2012, https://wsu.instructure.com/courses/1495115/files/78998571?module_item_id=13166696
Holmes, Oliver W. 1897. The Path of the Law. 10 Harvard Law Review 457,469
Kamisar, Yale. 2008. Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Automony. Issues Law Med. 24(2):95-119
Ninth Circuit Court of Appeals. 1996. Compassion in Dying v. Washington, 79 F.3d 790, 793-94
Urofsky, Melvin I. 1998. Leaving the Door Ajar: The Supreme Court and Assisted Suicide, 32 U. Rich. L. Rev. 313-405
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