Assisted Suicide

       The long-awaited Supreme Court decisions in the assisted suicide cases have now been published, and though, as almost everyone predicted, the Court decided unanimously to overrule the lower courts, the justices’ opinions were as a whole much less hostile to the right our brief defended than most commentators expected. I’ll explain why, but first comment briefly on your latest effort.
       You repeated your previous suggestion that my various attempts to explain our position to you amounted to a series of retreats in my position. I said earlier that I would not comment on this regrettable tactic, but perhaps I should now, in this final note of our exchange. I did try several different ways of getting you to realize how much your own views depended on a familiar but very widely rejected political theory about the concept of democracy. The final comment of your note shows that all my attempts to show you more of the dimensions of that concept have failed, and I hereby give up. But any reader who checks the correspondence will find that my position about the Constitution and assisted suicide, though undoubtedly more complex than you had first appreciated, remained the same as the position set out in our brief and in my New York Review of Books article that inaugurated our discussion.
       Your new note does make fresh mistakes, however. You say that I should have repeated my opinions about the facts in dispute in this exchange rather than relying on references to past writing. But, as I pointed out in my last note, that past writing already is part of our exchange, incorporated by reference from the New York Review of Books Web page. You also charge that my discussion of the burden of proof begs the question whether terminally ill patients have the constitutional right I claimed. If you read my note more carefully you’ll see that I emphasized that my views on the former issue assume my position on the latter, and conceded that you would understandably reject the former views because you reject the latter position.
       We may now turn to something more important. What did the Supreme Court say? Chief Justice Rehnquist, as expected, declared for your narrow historical test of the force of the due process clause. He argued, as you have, that since the American states have almost uniformly rejected any right to assisted suicide, that fact alone disposes of any due process claim, unless it can be shown that forbidding assisted suicide is absolutely irrational, which it cannot. Four other justices joined his opinion, and we know that two of them–Justices Scalia and Thomas–share Rehnquist’s very conservative view of the force of the due process clause. But the other two, Justices O’Connor and Kennedy, were among the three justices who jointly wrote an opinion in the Casey abortion case that firmly rejected Rehnquist’s historical test, and O’Connor wrote a separate opinion in these cases to make plain that she still rejected it. She said that the issue was still open, in spite of history, whether “a mentally competent person who is experiencing great suffering” has a constitutional right to a willing doctor’s help in dying.
       Four justices declined to join the Rehnquist opinion. Two of them–Justices Ginsburg and Breyer–joined Justice O’Connor’s opinion ruling out the historical test, and Breyer, in a separate opinion, added that he “would not reject the respondents’ claim without considering” whether patients in some circumstances might have “a right to die in dignity,” or “a right to personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering–combined”–rights, he said, “for which our legal tradition may provide greater support.” Justice Stevens went even further: he strongly suggested that in an appropriate case he would endorse a constitutional right to assisted suicide even for terminal patients whose pain could be alleviated through sedation, and he relied, as his opinion and quotations made plain, on arguments very similar to those advanced in our brief. Justice Souter, in his own opinion, refuted Rehnquist’s historical test on historical grounds, and endorsed instead a test for due process that, as he said, requires reasoned judgments of contemporary judges about what concrete rights actually do flow from the general moral traditions of the nation.
       Why did the five justices who expressly rejected Rehnquist’s historical test, and insisted on fresh contemporary judgment, vote to overrule the lower court decisions? Stevens did so on technical grounds: he said that since the patient-plaintiffs in the cases had all died, the cases raised only the question whether a state could prohibit assisted suicide in some circumstances–for example, for a depressed or mentally incompetent patient–and no one denied that it could. O’Connor, in the opinion that Ginsburg and Breyer joined, and Breyer, in his own opinion, said that any constitutional right to a doctor’s help in dying would be limited to terminal patients whose pain could not be alleviated, and these justices accepted the argument (though Stevens cited a body of evidence against it) that almost all pain can now be relieved with proper medication. Souter argued that there was as yet too little evidence showing that a right to assisted suicide could be limited to proper cases to make it reasonable for a court now to overrule a state’s judgment on that issue. All five of these justices insisted (as my original article hoped they would) that new evidence about pain or about the feasibility of effective regulation might later lead them to a contrary judgment.
       So though the lower courts’ decisions in these cases were decisively reversed, the underlying trend I described continues to gain momentum. Only the three most conservative justices on the Court now accept your view that a legal practice that has been continuously and widely accepted throughout our history is for that reason immune from due process condemnation. The remaining six justices have unambiguously rejected that view–five of them in the present cases–and, as I explained in an earlier note, so did the bulk of the lower court judges who considered the cases earlier. You predicted that the result in the case would provide an “empirical” test of my claim that “many lawyers and judges” reject the historical test and support a different conception of democracy and of America’s constitution. If so, the verdict is clear: I was guilty of understatement.