Liberty interests Advocates of physician-assisted suicide have turned the American shibboleth "Give me freedom or give me death!" on its head
Gaffney, Edward McGlynn
Edward McGlynn Gaffney LIBERTY INTERESTS They do not include suicide Until Oregon amended its constitution in 1994, all fifty states prohibited physician-assisted suicide, either expressly or...
...Liberty and equality are noble values in our constitutional order, but neither liberty nor equality should diminish our respect for human life...
...Each of the key terms-terminal illness, competence, and voluntariness-is an ambivalent, empty vessel waiting to be filled with the ideology of those who wish to embark on a grand social experiment on the issues of life and death...
...Glucksberg asks whether the due-process clause of the Fourteenth Amendment protects the liberty of patients to end their own lives by seeking the assistance of a doctor, and whether doctors are free to provide this "service" to their patients...
...It acknowledges the possibility of abuse if physician-assisted suicide were to be normalized, but the only boundaries with which it concerns itself are those that protect the voluntary character of suicide...
...Quill questions whether a state violates the equal-protection clause of the Fourteenth Amendment if it draws a line between letting a patient die and actively causing a patient's death...
...The framers of this provision clearly thought of life, liberty, and equality as harmonious goals, not as mutual contradictions...
...An insidious bias against the handicapped-again coupled with a cost-saving mentality-makes them especially in need of statutory protection...
...The empirical evidence of this century in two dramatically different instances-Germany in the Nazi period and the Netherlands in the past decade- suggests that the outcome of doctors helping people to die is utter disregard for human freedom and human dignity...
...When the political branches enact laws that abridge these basic civil liberties, we should rejoice that a vigilant Court would nullify these laws as violations of the Constitution...
...Several justices reminded counsel at oral argument that the states are entitled to considerable judicial deference in choosing among policy alternatives ("Good Questions," Commonweal, January 31,1997...
...But since the customs and traditions of our people have never thought of taking one's own life- let alone of assisting another to do so-as a fundamental liberty, the judiciary should defer to the political process on this issue...
...Add to these historical episodes the phenomenon of "managed care" currently sweeping through medical practice in our country...
...Whether the Court heard this chant in so many words, it should be careful about the enormous implications for our culture that flow from thinking of physician-assisted suicide as a constitutional right grounded in either liberty or equality...
...Edward McGlynn Gaffney LIBERTY INTERESTS They do not include suicide Until Oregon amended its constitution in 1994, all fifty states prohibited physician-assisted suicide, either expressly or implicitly but unambiguously in the criminal sanctions for homicide...
...When the Court began to repudiate these laws in Brown v. Board of Education (1954), it was acting consistently with the purpose and meaning of the Fourteenth Amendment...
...Earlier this century the Court began to give special protection to religious freedom, freedom of speech, and of the press, calling them "fundamental liberties" because it would be hard to conceive of our society without them...
...And when, more recently, it began to invalidate laws that, in Justice William Brennan's phrase, placed women "more in a cage than on a pedestal," it was once again promoting the equal dignity of all persons before the law, irrespective of gender...
...It is true that some liberties should not depend on the outcome of elections...
...If it is by no means clear in Glucksberg that physician-assisted suicide would insure human freedom, it is even more dubious in Quill that physician-assisted suicide would promote equal justice...
...The Constitution mandates that judges strike down laws that assault the equal dignity of persons before the law, but it does not give judges a roving warrant to invalidate all legislation which they find offensive or unwise...
...In Vacco v. Quill, the argument is that it is irrational for New York to allow doctors to provide a variety of pain-killers but to prohibit the prescription of a lethal dose to a dying patient...
...The very text of the Fourteenth Amendment relied upon by those promoting physician-assisted suicide poses a serious difficulty: "No state can deprive any person of life, liberty, or property without due process or law...nor shall [it] deprive any person of equal protection of the laws" (emphasis added...
...Two of the most publicized cases before the Supreme Court this year-Washington v. Glucksberg and Vacco v. Quill-could require all the states to abandon these laws...
...But as with the liberty argument in Glucksberg, the argument in Quill misconceives the meaning of constitutional equality...
...if they are disabled, it is treated as 'natural' or 'reasonable...
...For example, wrote Noonan, "when the nondisabled say they want to die, they are labeled as suicidal...
...In modern Holland, hundreds of doctors have admitted that they, not their patients, have decided the "right" moment for the patient to die...
...In the Nazi eugenics project, Hitler's doctors, not autonomous choosing patients, decided who was "worthy of life...
...But the fundamental flaw is the argument's misconception of constitutional liberty...
...The argument in Glucksberg assumes rather than demonstrates a correlation between physician-assisted suicide and human freedom...
...On the contrary, these laws promote the equal value of the lives of all persons...
...The probability is high that it would impose far more serious burdens on the poor, minorities, and the disabled...
...This argument equates liberty with personal autonomy, exalting the freely choosing self...
...Under these circumstances the motive for recommending the "quick way out" may not be compassion- a virtue that means identifying and even suffering with a patient-but simply raw economic self-interest...
...The most notorious examples of laws held to violate the equal-protection clause were the Jim Crow laws...
...But the laws prohibiting physician-assisted suicide are not based on hostility to anyone because of race or gender...
...As Judge John T. Noonan, Jr., noted in his opinion in the Ninth Circuit, these groups "would be especially open to manipulation...
...On the day the Court heard argument in these cases, hundreds of disabled protesters in wheelchairs reinforced Noonan's point, chanting outside the Court, "We're not dead yet...
...It is a stretch to think of terminating life as a constitutional means of promoting liberty or equality...
...The principal argument in Glucksberg is that the human person should be free to decide not only when but how to die...
...Its assumption that physician-assisted suicide can be confined to a mentally competent person in the final stages of a terminal illness who voluntarily wishes to end his or her life is naive...
Vol. 124 • May 1997 • No. 9
