Deconstructing Washington v Glucksberg

It is not hard to identify the high water mark for the opposition to Death with Dignity legislation: it was June 26, 1997, the day Justice Rehnquist announced a unanimous Supreme Court’s  judgment in Washington v. Glucksberg, 521 U.S. 702 (1997).  The Court twisted itself in legal knots to differentiate its holding seven years earlier in Cruzan v Missouri, 497 U.S. 261 (1990), but nevertheless promulgated a confusing, contradictory reversal of the liberal 9th Circuit’s invalidation of Washington State’s prohibition on assisted suicide.

Opponents of Death with Dignity legislation were clinking champagne flutes at what seemed like a total vindication of their cause:   every ominous prediction by naysayers was cited fulsomely;  the conflation of a whimsical suicide by a temporarily forlorn but physically intact individual with an intractably suffering hospital bed-ridden dying patient seeking to hasten the inevitable by a few weeks was complete; the timeless Anglo-Saxon Judeo-Christian ethos against self-murder was paraded out to trivialize any attempt at any time in life’s progress to attenuate suffering if it meant curtailing life; the burying under the carpet of the reality that physician assisted suicide is commonly practiced in almost all hospitals when doctors are instructed to pull the plugs of extraordinary life-sustaining measures resulting inevitably, predictably in instant death; the self-flattering pronouncements of the AMA and other medical associations that the Hippocratic Oath cannot be soiled by allowing patients to control their destiny and choose an end which curtails the ignominy of end of life suffering and humiliations.

Justice Rehnquist, an otherwise brilliant jurist, stumbled and bumbled his way through a recitation of reasons why the Constitution somehow allows an individual to die on his terms but denies him the able assistance of his physician or his loved ones to facilitate the choice.  Reading Glucksberg is like watching a champion boxer bobbing and weaving around avoiding the killer blow to the head.  There is no logic to the majority opinion; there are so many internal contradictions that the case has been ripe for overturn since its inception.

Let us deconstruct the inanity.

The Chief Justice posits the question before the Court as follows:

“[T]he question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”

The CJ seems to be supporting the notion that IF it there is a constitutional protection in committing suicide, if it is lawful to do so, then surely it must be lawful and constitutionally protected to get assistance in asserting a lawful, constitutionally protected right.

However, a few paragraphs later, he shifts the focus to: “[W]hether the protections of the Due Process Clause include a right to commit suicide with another’s assistance'”

This is not merely parsing words– this is reframing the question.  No longer is the issue whether one has a right on one’s own to commit suicide under the Constitution, which implies a right of assistance.  Now the question is whether  the act of getting assistance in the commission of suicide is constitutionally protected.  The emphasis has changed– we are not asking whether a single individual has the right to decide his destiny; we are now asking whether a conspiracy to commit suicide between the abettor and the abetted is protected.

Justice Rehnquist then goes on at some length to demonstrate that suicide has been anathemas as long as good Christians and good Americans have legislated on the matter, and of course, if it is illegal to commit an act, it is illegal to abet that act.  The CJ writes:

“[O]pposition to and condemnation of suicide-and therefore, of assisting suicide-are consistent and enduring themes of our philosophical, legal and cultural heritages… More specially, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicde.”

One may wonder why the fixation on the last 700 years of jurisprudence and tradition?  Simply because the Court is loath to find a substantive due process unenumerated rights only in this fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.  Which is one reason why Justice Scalia was a bit nonplussed that the court would sanction gay marriage in Obergefell v Hodges, 576 US ___(2015 when it had been illegal in every state and every country for most of the prior 700 years.  But as to suicide and its concomitant ancillary of assisted suicide, Justice Rehnquist found compelling the near universal condemnation… except at the time of writing his opinion, suicide was illegal in exactly zero states.  Every state had done away with the prohibition and legal jeopardies of suicide or attempting suicide.

In a sense, Rehnquist was hoist on his own petard.  If the  long tradition of condemnation of suicide was the bedrock upon which a crime of abetting the illegal act of suicide was premised, then, in the logic of the Chief Justice, once states had removed the legal stigma from suicide, it becomes hard to justify a continued illegality of assisting someone to do something which is both legal and well within his constitutional prerogatives.

Justice Rehnquist then proceeds to bend his argument into pretzel like contortions.  How to differentiate Cruzan v Missouri, in which the self-same Chief Justice accorded a comatose, incurably afflicted, bedridden patient the constitutional  right to have her life-sustaining machines disconnected so as to lead inevitably, if not immediately to death?   Knowing that the only thing keeping her lungs breathing, her heart pumping, her kidneys flushing are electrically generated machines and knowing that her own organs are no longer functioning, unplugging the machines is as much an act of suicide as is taking a prescribed dosage of lethal medicine, with the caveat that the medicine takes longer to act.  Justice Rehnquist seeks refuge in a verbal sleight of hand.  What Nancy Cruzan was doing was withdrawing life sustaining treatment; what Dr Glucksberg was trying to do was to precipitate the death of his patient.  Forget the reality that in both cases, a severely compromised life expectancy is merely accelerated.  Forget that in the case of Dr Glucksberg we know that his patients were terminal and had less than 6 months to live; whereas Nancy Cruzan could have surivied on life support for  decades.

Justice Rehnquist’s final ploy is beloved in the elective branches of government: kick the can down the road.  As he puts it, let’s let the laboratory of the states wrestle with this issue because far be it for us mere mortal justices to interpret the Constitution before others have done the heavy lifting  for us.  So the CJ conveniently cites a parade of horrors should Death with Dignity legislation come to pass:  the disabled and other vulnerable communities will be abused; only the poor and uninsured will avail themselves of such laws; people in the prime of their lives suffering a temporary setback under the cloud of a depression will rush to sign up for these laws; unscrupulous people will coerce the unwilling to end their lives.

Of course, all these horrors are impossible under the language of the laws which have since 1997 been enacted.  And this year we have 20 years of robust data from Oregon to disabuse all the naysayers.

And ironically just as the CJ was crowing how almost all states have rejected Death with Dignity legislative proposals, since Glucksberg the dam has burst and state after state and country after country have finally listened to their populations who overwhelmingly want assurances that they won’t be forced to suffer unnecessarily in extremis at the end of their lives, but will have the option of choosing the time and manner.  Ironically Washington State itself, from whence the Glucksberg case originated, followed in quick succession by Vermont, Montana, California, Colorado, and DC, plus the Netherlands, Luxembourg, Colombia and Canada, have enacted comprehensive Death with Dignity legislation.

Anyone reading Glucksberg today with all its hemming and hawing, and its far more compelling concurrences by O’Connor, Stevens and Souter, can see the writing on the wall.  This is a case ripe for reversal.