The Interest in Dying

-- By EthanSinger - 26 Feb 2021

The Right to Die

“Is there a right to die?” asks Chief Justice Rehnquist in Washington v. Glucksberg. According to the courts 9-0 decision, there is not. According to the Supreme Court of Canada, there is. Like the right to anything that implicates other interests and rights, there will likely never be a resounding answer to the question.

Regardless of whether there is a right to die however, there is an undeniable interest that some people have in dying or receiving assistance in dying (i.e. the three gravely ill patients in Glucksberg and their doctors challenging Washington’s law that made assistance in suicide illegal). In the United States, right or not, many are enabled to carry out their interest either on their own accord or with assistance of others. The problem is that those whose interest in dying is arguably the strongest, and would offend the least amount of competing interests, are also those who are the least enabled and have the hardest time in seeing their interests through.

Those Who are Not Enabled

Via Glucksberg, a terminally ill person does not have a right to receive assistance from a doctor in dying, and states can make it illegal for terminally ill people to receive such assistance. Specifically, Glucksberg upheld a Washington law that provided that “a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide” and ruled that this law did not violate any fundamental right. Washington has since changed this law to allow physician-assisted death for the terminally ill, but this assistance is still illegal in 40 states.

Consider John Rehm, who was a resident of Maryland when he asked doctors for assistance in hastening his death. He had Parkinson’s, for which there is no known cure. As his conditions worsened and John realized the inevitable end was approaching, he decided that he did not want to go on living the way he was living. The frail John could not feed himself or go to the bathroom without assistance, nor could he stand. Medicine existed that would grant John’s wish and expedite his personally painful road to death, but since it was illegal in Maryland to provide assistance in one’s death, doctors refused to help. Instead, his doctors told John that if he wanted to accelerate his death, his only option was to refuse all food and water. This is legal because it falls under the right to refuse medical assistance via Cruzan v. Director, Missouri Department of HealthCruzan v. Director, Missouri Department of Health, a case decided 7 years before the Supreme Court in Glucksberg distinguished Cruzan as not providing a right to die. John took the doctors advice and died 10 days later.

Those Who are Enabled

If instead of living in Maryland, John was a resident of nearby Vermont or District of Columbia, instead of forcing death by starving for 10 days, John could have died in the way he preferred. As a resident of those locations, John could have legally been prescribed medicine to hasten his death. This is because even though Glucksberg recognized that states have an “unqualified interest in the preservation of human life,” states can still make it legal for terminally ill people to receive assistance in dying. Therefore, in the United States, the enablement of a terminally ill person’s interest in dying, which can equate to an interest in their and their family’s autonomy, dignity, pain and suffering, and more, is subject to where they live.

Still, some of those who live in a state where physician-assisted death is illegal can still find a way to be administered medicine that will hasten their death. For instance, citizens of the United States have been known to travel to countries such as Switzerland and the Netherlands, countries where physician-assisted death is legal, to receive medicine that will hasten their death. This is expensive however, and requires a terminally ill person to be able to travel from the United States to Europe. For someone essentially bed-ridden like John, or for someone without much money, this can be difficult or impossible. Thus, of those who are terminally ill, those who are either the poorest or have arguably the lowest quality of life from a physical perspective (as they are not physically able to travel), are those who are the most disabled from accessing physician-assisted suicide.

Extending the Enablement

Whether the court in Glucksberg is right about whether there is a fundamental right to die is not the point. The aftermath of Glucksberg and Cruzan shows that fundamental right to die or not, people can still have an interest in dying and will always be enabled in dying. Even where assisted-death is illegal, John and the many others who have expedited their deaths show that hastening death is always possible and legal. What matters then is not whether there is a right to die, but how people should be enabled in dying.

While Glucksberg points out that some people may have an interest in dying one day and not the next, it is often the terminally ill, and the sickest of the terminally ill, that are the least enabled in choosing how they will die. And as Justice Stevens points out in his concurrence, many of the states that have laws banning physician assisted-death have “authorized the death penalty, and thereby concluded that the sanctity of human life does not require that it always be preserved.” In a society where states acknowledge that life should not always be preserved, and in a society where the end of life can legally be hastened, exceptions to preserving life are clearly made. It is time to revisit how the exceptions are made. Those whose days before an impending death are all but certain to be unpleasant should have their options for hastening their death expanded to include more humane options, right to die or not.

As you recognize, the question is not whether people have a right to die, but whether the state can prohibit assistance. You do not actually provide any argument one way or another on that point. It would obviously strengthen the draft to do so.

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