On October 6, 2014, 29-year-old Brittany Maynard became the newest face of a national campaign to legalize physician-assisted suicide, also known as “death with dignity,” “aid in dying,” and “the right to die.”
Mrs. Maynard, suffering from terminal brain cancer, ended her life in Oregon under the state’s Death with Dignity Act. During her advocacy campaign, Mrs. Maynard expressed “that when her condition became unbearable she would end her life with medication.” She explained:
I can’t even tell you the amount of relief that it provides me to know that I don’t have to die the way that’s been described to me; that my brain tumor would take me on its own.” “[Instead,] I will die upstairs in my bedroom that I share with my husband, with my mother and my husband by my side, and pass peacefully with some music that I like in the background.
Advocates of the right to die often argue that- as terminally ill patients are already close to death- “[p]hysician-assisted suicide isn’t ‘a choice between life and death, [but rather] a choice of the exact timing and the manner of [one’s] death.’”
Regulation of physician-assisted suicide on the state level is quite standardized. “Where it is permitted, the application for an aid in dying prescription must be made by the mentally competent, terminally ill patient and cannot be made by a surrogate decision maker.” Further, “an aid in dying prescription must be self-administered by the mentally competent, terminally ill patient.” Contrary to initial fears, “available studies regarding who elects to utilize aid in dying do not demonstrate any overuse by especially vulnerable groups. There is no evidence that vulnerable groups are targeted by caregivers, family members or physicians who utilize aid in dying to hasten the deaths of vulnerable, terminally ill patients.” Moreover, a recent national opinion poll conducted by Gallup shows there is substantial nationwide support for aid in dying.
The “right to die,” however, is not a federally protected right. Despite previous courts finding that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment,” the Supreme Court released two holdings in 1997, Vacco v. Quill and Washington v. Glucksberg, in which they declined to recognize that the U.S. Constitution protected the right to die.
In Quill, the Supreme Court focused on determining, in light of a New York statutory ban, whether the Equal Protection Clause of the Fourteenth Amendment protects the right to aid in dying. The Equal Protection Clause “embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.” Ultimately, the Supreme Court found that New York’s bans on assisted suicide “neither infringe fundamental rights nor involve suspect classifications.” In contrast to the initial findings by the Second Circuit, the Supreme Court said that refusing unwanted medical treatment and requesting physician-assisted suicide are two distinct actions, and that “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist.”
In Glucksberg, the Supreme Court challenged the Ninth Circuit’s en banc ruling that “the Constitution encompasses a due process liberty interest in controlling the time and manner of one’s death–that there is, in short, a constitutionally recognized ‘right to die.’” First, the Supreme Court chose to narrow the issue into a question of “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 Court then resolved that “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it[; thus,] . . . the asserted ‘right’ . . . is not a fundamental liberty interest protected by the Due Process Clause.”
Given the Supreme Court’s refusal to recognize that the U.S. Constitution protects the right to die, advocates of death with dignity may question how they can access the judicial system to promote their cause going forward. The answer is that they can focus on utilizing state courts. In Cruzan v. Director, Mo. Dept. of Health, the Supreme Court recognized “that state courts have legal resources available for making decisions which are not available to it.” Moreover, in her Glucksberg concurrence, Justice O’Connor acknowledged the “extensive and serious evaluation of physician-assisted suicide” occurring in the states and entrusted the challenge of safeguarding liberty interests to the “laboratory” of the states.
Advocates of death with dignity have already found success in asserting their rights on the state rather than federal level. Currently, Montana, New Mexico, Oregon, Vermont, and Washington authorize death with dignity. Of these, Montana and New Mexico’s authorizations resulted from advocates asserting their rights in state court.
First, in Baxter v. Montana, the Supreme Court of Montana affirmed that Montana’s state statutes shield from prosecution those who partake in physician-assisted suicide. Since suicide is not a crime under Montana law, the court focused on finding whether a physician is committing a homicide by prescribing a lethal dose of medication to a mentally competent, terminally ill patient. Ultimately, the court held that a doctor’s actions to aid a patient in dying are outside of the reach of Montana’s homicide statute when the patient has consented to the act. The Court made this determination by analyzing state case law and interpreting state statutes and legislative intent.
More recently, in Morris v. New Mexico, the Second Judicial District Court of New Mexico found that the right to die is a protected fundamental right according to the Constitution of New Mexico. Although suicide is not a crime in New Mexico, the court found that the state’s felony prohibition on “assisting suicide” did criminalize the act of a doctor aiding a mentally competent, terminally ill patient in dying. In determining that this felony prohibition is unconstitutional, the court based its overall analysis on the fact that “New Mexico has the inherent power as a separate sovereign in our federalist system to provide more liberty than is mandated by the United States Constitution.” The state’s constitution guarantees its citizens distinct rights in addition to those found in the federal Constitution: “[t]he right to enjoy life and liberty and to seek and obtain safety and happiness.” The court found that “the liberty, safety and happiness interest of a competent, terminally ill patient to choose aid in dying is a fundamental right under our New Mexico Constitution.” The court concluded by finding, under a strict scrutiny analysis, that the defendants failed to prove that the criminalization of physician aid in dying furthers a compelling state interest. In its conclusion, the court granted injunctive relief prohibiting the state from prosecuting physicians for aiding in a terminally ill patient’s death with dignity. If affirmed on appeal, the ruling could impact the entire state.
The two state-level decisions of Baxter and Morris shed light on potential avenues of success for aid in dying litigation. In particular, the recent ruling in New Mexico may shake the status quo. Previously, advocates had only found success in authorizing aid in dying by winning statewide ballot initiatives, passing legislation, or, in the case of Montana, arguing that the state’s criminal laws did not explicitly prohibit aid in dying. Now, an advocate of death with dignity may find it fruitful to not only assert the right to die in state court based on openings in statutory interpretation, but also by asserting distinctive fundamental rights protected by the state constitution.