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D, Die, Right to.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 26 November 2020

Die, Right to.

Life-and-death medical decisions—and, in particular, decisions that lead inexorably to death—have been at issue in three Supreme Court cases since 1990. *Washington v. Glucksberg (1997) and *Vacco v. Quill (1997) rejected claims that terminally ill, competent patients had a constitutional right to the assistance of a physician in ending their lives. The plaintiffs were challenging state laws that barred doctors from prescribing lethal doses of medication for such patients. In the third case, *Cruzan v. Director, Missouri Department of Health (1990), a patient was maintained on life support machinery in a persistent vegetative state and was incompetent to make decisions about her own treatment. The Court held that the state could prohibit the withdrawal of life support, absent “clear and convincing” evidence that this patient, if competent, would have decided to terminate treatment.

For some justices, constitutional liberty protects a person’s right to make life’s most important, intimate decisions free from state interference. Decisions about the timing of one’s death, like decisions about *contraception and *abortion, would qualify. For other justices, liberty does not extend that far. These justices tend to identify liberty with traditional American legal practice—and the right to die hardly qualifies as a traditional legal right.

The Court does recognize a constitutional right of patients to refuse life-prolonging treatment, under some circumstances at least. A majority of the justices, however, regard this right as an aspect of the traditional prerogative of persons to refuse unwanted bodily intrusions, including unwanted medical treatments—and not as part of an independent constitutional “right to die” or as a justifiable constitutional inference from the importance and intimacy of life-and-death decisions. Justices who take this position may hold (p. 262) nonetheless that a state cannot bar doctors from prescribing high doses of pain medication—even lethal doses, if necessary—to patients enduring severe and otherwise unmanageable pain.

Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993). Albert R. Jonsen, The Birth of Bioethics (1998). Leon R. Kass, Life, Liberty and the Defense of Dignity: The Challenge for Bioethics (2002). Cass R. Sunstein, One Case At a Time: Judicial Minimalism on the Supreme Court (1999).

Sheldon Gelman