PHYSICIAN-ASSISTED SUICIDE AND THE LAW

I. Washington v. Glucksberg and Vacco v. Quill deal explicitly with whether state 
laws that prohibit physician-assisted suicide (PAS) violate the Constitution, 
specifically, with whether there is implicit in the (Fourteenth Amendment’s) Due 
Process Clause’s protection of liberty, a “right to die.”  Dworkin et al, argue that 
there is.  The Court held that there is not.

N.B.  This is not exactly the same issue as the general moral question of whether 
the law should prohibit PAS.  State laws permitting PAS are compatible with the 
Court’s findings in these cases.

A. Oregon’s law.
B. But note the bill currently before the Congress and recently passed by the 
House.

II. Also, the following are different questions:

A. Is PAS morally justifiable?
B. Is a law permitting PAS morally justifiable?
C. Note that you could answer A, yes, and B, no, and vice versa.

III. Still, the Constitution is a moral document, so whether the Constitution includes 
rights that are inconsistent with law prohibiting PAS is relevant to whether a law 
permitting PAS can be morally justified.

IV. Dworkin, et al, argue that a right not to have the government interfere with PAS is 
implicit in the Constitution.  Their argument:

A. “Certain decisions are momentous in their impact on the character of a 
person’s life—decisions about religious faith, political and moral allegiance, 
marriage, procreation, and death, for example.”
B. “Such deeply personal decisions pose controversial questions about how and 
why human life has value.”
C. “In a free society, individuals must be allowed to make those decisions for 
themselves, out of their own faith, conscience, and convictions.” [“no official . 
. . can prescribe what shall be orthodox in politics, nationalism, religion, or 
other matters of opinion or force citizens to confess by word or act their faith 
therein.” West Va. v. Barnette, 1943)
D. Specifically, “a person’s interest in following his own convictions at the end 
of his life is so central a part of the more general right to make ‘intimate and 
personal choices for himself that a failure to protect that particular interest 
would undermine the general right altogether.”
E. Therefore, “just as it would be intolerable for government to dictate that 
doctors never be permitted to try to keep someone alive as long as possible, 
when that is what the patient wishes, so it is intolerable for government to 
dictate that doctors never, under any circumstances, help someone to die who 
believe that further life means only degradation.”

V. What is “doing the work” in this argument?

1. “Deeply personal decisions” that involve “controversial questions about how 
and why human life has value” on which a free society can impose no 
orthodoxy, must be left to individuals to make freely.
2. How to end one’s life is such a “deeply personal decision.”
3. Therefore, individuals must have the liberty to make these decisions as they 
will.
4. A law prohibiting PAS would violate this liberty, and would therefore be 
wrong.

VI. This is a powerful argument.  How does the Court avoid its conclusion?

A. Argues that any right to personal liberty implicit in the Due Process Clause to 
the Fourteenth Amendment can’t include a “right to die” since common law 
and long state legislative tradition has included, not only the legal prohibition 
of PAS, but also laws against suicide.
B. Argues that the Court recognized only a specific right of liberty in Cruzan, 
namely against forced medication.  This follows from the common law 
doctrine that forced medication was a battery.  Since common law does not 
permit any suicide, much less PAS, the Court can be interpreted as not having 
asserted any right of personal liberty or autonomy as general as is claimed.
C. There is a morally relevant distinction between PAS and withdrawing life-
sustaining treatment.
1. The former aims at and directly causes an individual’s death
2. The latter only has death as a foreseeable side effect and allows some 
other illness, etc., to cause death.
D. Whatever right of liberty individuals hold must be balanced against various 
state interests, including:
1. As Cruzan claims the “unqualified interest in the preservation of human 
life” (which has nothing to do with “quality of life”)
2. The protection of individuals from undue influence to undertake PAS 
(e.g., Kevorkian)—[general phenomenon, not every removal of restriction 
is a gain in freedom or “self-command”—Thomas Schelling]
3. Even though the state would not itself be making judgments about quality 
of life, by official condoning the ending of life on such a basis, it would be 
encouraging a situation in which the lives of severely disabled and the 
terminally ill would inevitably be devalued, leading at least to “prejudice, 
negative and inaccurate stereotypes, and ‘societal indifference,’ and 
perhaps, to their lives being sacrified.

VII. How might Dworkin, et al, respond to these objections?

A. They respond to C at p. 465.  Is this a good response?
B. They respond to D,2 at pp. 466f.  Is this a good response?