Dear Professor Dworkin,
Of course political principle is involved in legal decision-making. The hard question is, “Which principle?” You advocate a principle that precludes laws against assisted suicide. Many others–including every state legislature–have acted on the basis of a contrary principle, under which vulnerable people can be protected from being killed by their doctors, even with “consent.” It is not the case that one of these positions (yours) is “principled” and the contrary position is not. How do we decide which principle is to prevail when the citizens disagree?
This is a question of constitutional structure. In a democratic republic, we resolve disagreements over the public good through debate and ultimately through representative institutions–except in those instances (extremely important but few in number) where the people have resolved the issue at the constitutional level and placed it beyond the vicissitudes of democratic majorities. You and I both agree that, in order to determine whether a question has been resolved by the Constitution, it is necessary to engage in an act of interpretation. But your idea of interpretation seems to depend not on what the text means, or what our constitutional tradition has said, but on what you think would be the best answer. (I am honored that you say that “you and I” must “face the question” about what particular conception is “attractive,” but I must decline the honor. Constitutional law is a type of interpretation–a search for principles adopted by the people and reflected in the text–not a species of moral philosophy in which the interpreter decides what principles he thinks are most attractive. Even if you and I could come to agreement about what principles are “attractive,” that would be irrelevant to constitutional law. Nobody appointed us to be a roving constitutional convention.)
You state that a right to assisted suicide can be “derived from the text, by showing how fundamental the freedom of individual conscience is to America’s political ideals.” This is a flaming non sequitur. No quantity of proof that the freedom of individual conscience is fundamental to America’s political ideals could possibly establish the contested proposition that a right to assisted suicide is a part of America’s conception of the freedom of conscience. Plainly it is not. It never has been. This is like saying that a right against affirmative action can be derived by showing how fundamental the freedom from invidious discrimination is to America’s political ideals–when the disputed question is whether affirmative action is properly understood as invidious discrimination.
It is frankly surprising that you have shifted ground from due process (the theory in your brief) to freedom of conscience. Neither of the courts below rested on that ground, probably because freedom of conscience has been confined to cases involving speech, belief, and religion–it has never been extended to anything remotely resembling the right to have another person kill oneself.
Even as an abstract proposition, the claim that a right to assisted suicide is part of “the freedom of individual conscience” is unconvincing. If it were so, the right would not be confined to those facing a painful and imminent death. If assisted suicide is part of the freedom of conscience, the state could not intervene to prevent a tragedy like that involving Heaven’s Gate. How can the majority impose its “religious or ethical ideals” on competent adults who, after serious and sober reflection, prefer to join a UFO lurking on the other side of Hale-Bopp? Is that your view?
The law does not treat a victim’s consent as a defense to murder. That would be monstrous. Why, then, do you carve out an exception when consent is given by persons who are terminally ill and in pain? It can only be because you think some lives are not worth living. In the introduction to the “philosophers’ brief,” you argue that the state may “override” the right to assisted suicide “in order to protect citizens from mistaken but irrevocable acts of self-destruction.” Since every such act is irrevocable, the government may intervene whenever suicide would be “mistaken,” in the government’s judgment. That has nothing to do with freedom of conscience.
When we move from theory to practice, the argument loses even its patina of civil libertarianism. Whether a patient “chooses” to live or die will depend to a great extent on her doctor, who controls the relevant information and whose opinions carry the authority of scientific expertise. A weakened and depressed person will be highly susceptible to the hint that maybe everyone would be better off if she took the sip of poison.
Moreover, the “right” to die cannot and will not be limited to those hypothetical competent adults you like to talk about. The right to refuse life-sustaining treatment began with competent patients but quickly was extended to those whose “choice” was exercised by surrogates. If assisted suicide is so obviously in the best interest of this class of patient, how can you deny this mercy to those who cannot exercise the faculty of judgment? In the Netherlands, where assisted suicide has been decriminalized, assisted suicide has yielded to voluntary active euthanasia, and voluntary active euthanasia has led to involuntary euthanasia. In 1990, in addition to 2,300 cases of active voluntary euthanasia and 400 cases of assisted suicide, there were over 1,000 cases of active involuntary euthanasia, performed without the patient’s knowledge or consent, including roughly 140 (14 percent) where the patient was fully competent. And that is the Netherlands–a more homogeneous and stable society than ours and one with comprehensive national health care.
Specialists in the treatment of the terminally ill report that, with proper treatment for pain and depression, “most patients no longer want to die and are grateful for the time remaining to them.” Unfortunately, death is almost certainly a cheaper option than proper treatment–a consideration that will loom especially large when the patient is uninsured. No wonder the idea of assisted suicide is more popular among tenured philosophers than among the elderly, the handicapped, and the poor.
Perhaps I am wrong about the practical realities of assisted suicide. So may be the legislators, doctors, ethicists, and others who have studied the issue and come to similar conclusions. But are you really so sure you are right that you would impose it by judicial fiat on all 50 states? This is one for the people, not the professors, to decide.