The Declaration of Independence proclaimed, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
That statement, fundamental to our culture, treats the right to life as essential and inalienable. But does it also provide that a U.S. citizen has the right to terminate her own life under certain circumstances?
The laws in many states provide that suicide is a criminal act. But, does prolonging the life of one who is terminally and incurably ill constitute cruel and unusual punishment — which is prohibited by the Eighth Amendment to the Constitution? Determining precisely those circumstances that are an acceptable predicate to assisted suicide is a large part of the problem. Further complicating the issue is the need to protect people from death that is not of their own choosing.
Eighth Amendment jurisprudence has long been fraught, but in its 1957 decision in Troop v. Dulles, Chief Justice Warren, writing for the U.S. Supreme Court, clarified that “This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, that is not surprising. … The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
As both our society and our population mature, the parameters of the Eighth Amendment are increasingly being re-examined. As far back as 1996, the Ninth Circuit Court of Appeals (in Glucksberg v. Washington) and the Second Circuit Court of Appeals (in Quill v. New York) both found that the U.S. Constitution protects the choice of a mentally competent, terminally ill patient to choose aid in dying. Both states filed for review of that decision by the U.S. Supreme Court.
Currently, only three states — Oregon, Washington and Vermont — explicitly permit physician-assisted suicide. The Montana Supreme Court ruled in 2009 that Montana state law doesn’t prohibit end-of-life care. And, according to a report by Time magazine, a New Mexico district court judge, in a decision that is still under appeal, held earlier this year that terminally ill people who are mentally competent have a constitutional right to legally prescribed end-of-life drugs.
The ongoing tension between states’ rights and federalism — as evidenced, for example, by disparate laws concerning gay marriage — also colors the assisted-suicide or “death with dignity” debate. As it now stands, domicile determines a person’s right to direct her own death. Assisted suicide is a question of personal choice and ethics that is strongly in conflict with certain religious doctrine and dogma. It is likely that the issue will be subject to partisanship and that a personal choice — and right — will be held hostage to political bickering depending upon the prevailing religious beliefs in individual states.
We can only hope that as the standards of decency recognized by our maturing society evolve, we will reach consensus that a mentally competent person suffering extreme mental or physical pain without hope of relief will have the right to terminate her life regardless of where she may live.
As the balance of power in our population shifts from the baby boomers to the millennials, prevailing standards also are shifting. The recent death of Brittany Maynard, a 29-year-old woman with incurable brain cancer who died at home in Oregon after taking a lethal dose of barbiturates prescribed by her physician, puts a new face on the debate and makes it clear that this issue is now relevant to young and old alike. In Oregon, the median age of people having used the state’s right-to-die law is 71, according to The Washington Post. Only six people under the age of 34 have used it. That soon may change, and our society must be prepared to change, as well.
Richard H. Agins is an Arizona attorney who focuses his practice on elder law and emphasizes death with dignity as part of his elder-law-client counseling sessions.
