Is there a constitutional right to die? This is a question that has deep philosophical undertones. Far from being of conceptual interest only, the ‘right to die’ question impacts greatly on humans, with great ramifications on individual liberties and the quality of life. Opinion is divided, with a salient dichotomy engendered by religious, judicial, historical and quasi-judicial considerations. The due process of the law has been colored by various suits seeking determination of this one question, is there a constitutional right to die? The rulings given have set a precedence which will indubitably guide future discourses and legislations, but for the moment there is no explicit and universally recognized
This paper discusses the question in light of the most prominent ‘right to die’ cases. A brief discussion of these cases is offered and a discussion of the outstanding issues presented. It is concluded that the right to die is indeed entrenched in the constitution and is reflected in the clauses establishing the concept of voluntas aegroti or informed consent and the right to live. Additionally, the right to die is explicitly permitted by several states. Some court rulings have also set a precedent that upholds the right.
The right to die is an all-encompassing term that includes suicide, palliative care, assisted suicide, active euthanasia and passive euthanasia. Palliative care is defined as the provision of comfort care that speeds up an individual’s demise. Assisted suicide is the process by which an individual is helped to commit suicide and passive euthanasia is letting a person die by stopping ongoing medication or preventing the initiation of medication to the person. Finally, active euthanasia is the killing of another person in order to alleviate his or her suffering (Thomas, 2005).
The right to die has deep historical antecedents. For instance, suicide was held as a mark of gallantry in Ancient Greece and Roman societies and martyrdom regarded with reverential awe. Some aver that the anti-suicide movement emanated from the teachings of St. Augustine (Fischer, 1996). Be that as it may, the right to die is a complex issue that has been criminalized in many societies. Belgium, Switzerland and Holland are among the few countries which have explicitly entrenched the right to die in their constitutions. In U.K, suicide was decriminalized in 1961 under the Suicide Act of 1961 (Grayling, 2005).
The right to die is affirmed in the state of Oregon in the U.S. In this particular region, the right of individuals to assisted suicide was ingrained in the State’s constitution following a hugely successful plebiscite in 1994. The Death with Dignity Act was born soon thereafter. Seven years later, the Ashcroft Directive was issued and it ruled that assisted suicide had no legal medical purpose under the Controlled Substances Act. This implied that physicians practicing under the Death with Dignity Act stood at the danger of losing their licenses. However, the U.S Court of Appeals for the Ninth Circuit overruled the directive and the Supreme Court was later to affirm the Appeal Court ruling (Fischer, 1996).
In France, the law was amended three years ago in order to allow passive euthanasia. However, active euthanasia is still not legal (Sokol, 2007). According to Gorusch (2000), legislation outlawing assisted suicide New York was put in place in 1965. The right to die is recognized neither by the UN Universal Declaration of Human Rights nor by the European Convention on Human Rights. As Kass (1993) correctly asserts, the right to die lacks definite philosophical and legal grounding.
This paper examines various issues related to the right to die and attempts to answer the often-asked question “is there a constitutional right to die? “. Accordingly, we will reconstruct landmark cases, interrogate the rulings given and give our considered opinion within the context of the issues under consideration.
2. The Right to Die and Landmark Cases
A few landmark cases, arbitrated by the Supreme Court, litter the judicial landscape in so far as the constitutional right to die is concerned. These include Cruzan vs. Director, Missouri Department of Health, Compassion in Dying vs. Washington, Washington vs. Glucksberg and Vacco v. Quill and the case of Terry Schiavo. These are briefly enumerated in the sections that follow.
- Cruzan vs. Director, Missouri Department of Health,
Before individuals could be granted the permission to refuse treatment, they were required by The State of Missouri to give explicit and compelling reasons on why such a refusal was being sought. This case took place in 1990 and involved Nancy Cruzan who was in a continual vegetative state. Vegetative state is defined as “the absence of voluntary action or cognitive behavior of any kind” and “an inability to communicate or interact purposefully with the environment “ (Valko, 2003).
Feeding tubes were inserted into her body in order to keep her alive. Cruzan’s parents moved to court seeking to allow the doctors attending to their daughter to terminate her life by removing the tubes. They were granted the permission to have this done though the ruling was later overturned by the state’s Supreme Court (Cruzan, 497 U.S. 261, 1990).
The rationale for the decision to overturn the lower court ruling was that the reasons advanced for the sought assisted suicide were not credible enough. The court was not satisfied by Cruzan’s parents’ pleadings to the effect that denial of their request was an infringement on their daughter’s constitutional right. However, the higher court’s ruling was premised on two assumptions. The first assumption was that the constitution only guaranteed the rights of competent persons to refuse medication. The second assumption was that the constitution also protects the rights of persons considered incompetent to refuse medical treatment. Based on these assumptions, the court ruled that the reasons given by the parents did not meet the required standards that would necessitate pulling out Cruzan’s feeding tubes (Allen, n.d).
However as Justice O’Connor, one of the members of the bench noted, inherent in the Due Process Clause is ‘liberty… [that protects] an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water”. O’Connor further states that affected victims who are incompetent must have their rights upheld through surrogates who would reach such important decisions on their behalf. The implication is that the incompetent persons will needs to be upheld and take precedence over the State’s law. Thus, states that outlaw assisted suicide may be compelled to take note of the incompetent person’s will or have oral submissions presented on the incompetent person’s desires in order to avoid infringing on their rights to self determination (Allen, n.d).
In Cruzan vs. Mo Dept. of Health (1990), the lower Court upheld the right of individuals to refuse medical treatment. However, the New York State Task Force on Life and Law avers that the rights of rejection of treatment and assisted suicide have different constitutional allusions. The right to assisted suicide is criminal only to the extent that the body of the affected individual is intruded into and physical restraints used, both of which go against the principles of personal dignity. Thus, the right against intrusion underpins the right to refuse treatment. The New York State Task Force on Life and Law further asserts that assisted suicide does not contravene individual liberties since no intrusion is involved in the process. Therefore, it finds the Supreme Court ruling criminalizing assisted suicide as tenable principally because it hinges in part on the historical and pervasive opposition to assisted suicide. However, Cruzan’s tubes were removed after her wishes were discovered (Cruzan, 497 U.S. 261, 1990).
- Compassion in Dying vs. Washington
In Compassion in Dying vs. Washington, the court upheld the right of individuals to assisted suicide (Gorusch, 2000). In the 1996 ruling, the court described the right to assisted suicide as a contained term and described the correct appellation as the right to die. Since the constitution guaranteed the right to suicide, it automatically upheld the right of individuals to die. It asserted that “there is a constitutionally protected liberty interest in determining the time and manner of one’s own death.”
- Vacco vs. Quill
In Vacco vs. Quill, American Civil Liberties Union (ACLU) submitted that prevention of assisted suicide is tantamount to infringement of human rights. ACLU further submitted that the laws that make assisted suicide to be illegal are contrary to the provisions of the Equal Protection Clause, principally because they bar a doctor from prescribing drugs that are to be taken by persons who are in the later stages of their terminal illnesses and are of sound mind. In its ruling, the court drew attention to New York’s laws which criminalize assisted suicide, noting that the legislation had a clear dichotomy between ‘killing’ and ‘letting die’ (Vacco vs. Quill, 1997). However, in Quill vs. Koppell it was ruled that no such rights are enshrined in the constitution (ACLU, 1996).
- Washington vs. Glucksberg
The United States Supreme Court returned a verdict of 9-0 against these cases in Washington vs. Glucksberg and Vacco v. Quill thus banning assisted suicide. In this ruling, the court sought to provide guidance on a number of issues related to the right to die. The most salient issue brought to the fore by the court in Washington vs. Glucksberg was that a precedent had been set in court rulings that assert the illegality of assisted suicide. Therefore, the court ruled that assisted suicide is not a right enshrined in the Due Process Clause. Stated differently, the court ruled that the constitution does not give individuals the right to seek the aid of physicians in order to carry out assisted suicide (Washington v. Glucksberg, 1996).
However, the court remained silent on whether the constitution guarantees mentally competent persons who are in excruciating pain the right to determine the conditions of their impending demise. In other words, does the constitution recognize the rights of individuals to access palliative care?
- The case of Terry Schiavo
Perhaps this was the most prominent ‘right to die’ case judging by the sheer interest it generated and the intense legal battle it spawned. The case involved Theresa Marie Schindler or Terry who was born in Pennsylvania on December 3, 1963. She got married to Michael Schiavo on November 10, 1984 and they moved to St. Petersburg two years later. Terry collapsed at home in Florida when she was 26 years old in 1990. As a result of the fall her brain was starved of oxygen and got damaged and she lapsed into a persistent vegetative state (University of Miami, 2005). Vegetative state is defined as “the absence of voluntary action or cognitive behavior of any kind” and “an inability to communicate or interact purposefully with the environment “ (Valko, 2003).
At the Humana Northside Hospital where she was taken, Terry was given nutrition and hydration through a percutaneous endoscopic gastrostomy (PEG) tube. Her husband was later appointed by the court as her guardian and she was moved to a more advanced center for rehabilitation. She was transferred to different care centers and given various treatments but there was little if any improvement in her state. In 1992, Terry’s husband received close to $300, 000 as settlement for a suit lodged against one of Terry’s physicians and a further $750,000 which was put in a trust fund for the care of Terry. Later, the court thwarted Terry’s parents’ attempts to remove Michael as her guardian and Terry’s first guardian ad litem, John Pecarek asserted that Michael had treated Terry with compassion and utmost care (University of Miami, 2005).
Michael moved to court eight years after Terry’s fall and asked the court to have the feeding tubes attached on Terry removed on the grounds that his wife was in a vegetative state. Florida laws uphold euthanasia if it can be proved that the victim is in a vegetative state. However, as Valko (2003) reports, she was shown on video smiling and reacting to her mother’s overtures. Not surprisingly, Terry’s family – the Schindlers, put up a spirited fight to have her kept on life support and even offered to take charge of her care, a proposal that was rebuffed by her husband. Thus began an intense legal battle that was to last for many years (University of Miami, 2005).
Terry’s husband had her placed in a hospice and at about the same time Richard Pearse who was Terry’s second guardian ad litem testified that Terry was indeed in a vegetative state and stood very little chance of getting better. On February 11, 2000 the presiding judge of the case, Judge Greer, ruled that the PEG tubes inserted into Terry be removed. This would lead to Terry’s demise within 1 to 2 weeks (University of Miami, 2005). Following this ruling, Terry’s parents challenged the decision and petitioned the court to rule that swallowing tests be done on Terry in order to determine her ability to eat on her own. The judge refused to assent to the petition and subsequently restricted visitation to Terry as well as prohibited pictures upon Michael’s request (University of Miami, 2005).
On January 24, 2001, the District Court of Appeal upheld the earlier order given by Judge Greer that the feeding tubes be removed. On April 24, 2001 the PEG tubes were removed. Shortly thereafter, Terry’s parents lodged a civil suit in which they claimed that Michael had committed perjury in his statement that Terry had distaste for life support. The Circuit Court hearing the case ordered that the tube be reinserted pending the hearing of the case and returned the case to Judge Greer who ruled that the tube be removed. On October 3, 2001, the District Court of Appeal ordered a stay in the removal of the tube indefinitely and later ruled that Terry be examined by 5 doctors to ascertain whether she can make progress when given new treatment. Orders for the removal of the tube were again issued on September 17, 2003 and were disputed by among others Governor Jeb Bush of Florida (University of Miami, 2005).
In October 2003, the Florida court once again gave the order that the feeding tube be removed. Political pressure soon thereafter led to the enactment of the so-called Terri’s Law which gave the Florida Governor the authority to issue a ‘stay’ against the removal orders. Thus, the then Florida Governor directed that Terry be transferred from the hospice and have a surgical reinsertion of the tube used to feed her. The Governor’s decision was to be later declared unconstitutional under Florida’s rules and orders for the removal of the tube given again. However, this was not to be as in March 2005, Public Law 109-3 was passed by the U.S Congress. The import of this act was to declare that the court ruling had contravened Terry’s rights and was described as “An Act for the relief of the parents of Theresa Marie Schiavo.” (University of Miami, 2005).
The court again found the appeal lodged by Terry’s family under the new act to be defective and accordingly threw it out. Thus the stage was finally set for the peaceful rest of Terry. The tube was finally pulled off in March 2005 (Sosa et al, 2005).
3. Discussion and conclusion
We find that the right to die is enshrined in the constitution if only for the following reasons
- Humans have a right to live.
The right to live is universally recognized and is guaranteed in national and international constitutions. As Höfling (2008) asserts, the right to live is supplemented in many instances by guarantees of physical inviolability and is under consideration for inclusion in the European Union’s Charter of Fundamental Rights. This right to live impacts on the right to die as it necessarily implies that individuals must be protected from assault by others. The right to live also guarantees individuals’ recourse to self-determination (Höfling, Recht and Todesstrafe cited in Höfling, 2008).
The German Federal Constitutional Court succinctly and aptly summarizes it thus “The fundamental right guarantees the protection of freedom in the area of physical and mental integrity” (BVerfGE 52, 2008). Self determination of individual integrity is said to be “part of the originally private personality. The human being is – in constitutional terms – free to choose his/her standards and to live and make decisions in accordance to these standards” (BVerfGE 89).
Promulgation of life through insertion of feeding tubes and physical strapping is an infringement of the right to bodily integrity. It also follows that
- the concept of informed consent
Informed consent is the central pillar that guides the relationship between doctors and their patients. It is enshrined in Article three II of the European Charter of Fundamental Rights. The concept of voluntas aegroti is also an inviolable tenet enshrined in the U.S. constitution. The elemental aspect of this principle dictates that the outcomes of the physician-patient relationship shall eternally reflect the will of the patient. The implication is that the competent patient is invested with the authority to accept or refuse any medical intervention.
Consequently, the concept of informed consent seems to uphold individuals’ right to die. This right was indeed affirmed in Cruzan vs. Mo Dept. of Health (1990) where the court upheld the right of refusal of treatment. Secondly and more fundamentally, this particular legislation seems to favor palliative care. Refusal by the doctor to administer palliative care to his or her patient may amount to actual bodily injury which is deemed to be contrary to the provisions of the constitution. Indeed, the Fourteenth Amendment protects the right to palliative care (Thomas, 2005)
- incompetent patients
It is a given fact that patients who are in vegetative states are unable to express their will with regard to continuation of life. This does not however take away from them their right to self determination and informed consent and should not be used to keep them in undesirable conditions.
If possible, the needs of such patients need to be guided by their written or stated will. Where there is no will, surrogate decision makers duly recognized by courts of law should be allowed to make the decision on whether life should be terminated. The rulings in the Terry Schiavo case established a precedent which recognizes the authority of surrogate decision makers. Additionally, in Cruzan vs. Mo Dept. of Health (1990), the vegetative Cruzan’s parents acted as surrogate decision makers for the patient in the vegetative state. These rulings further allude to a constitutionally recognized right to die not just for competent patients but also for incompetent patients.
Finally, a couple of individual states have explicit clauses which expressly guarantee the right to die. As mentioned previously, the State of Oregon has enacted the Death with Dignity Act. The State of Florida upholds this right if there is reasonable cause to show that the affected patient is in a persistent vegetative state. These reasons are sufficient to show that the right to die is entrenched in the constitution.
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