Washington v. Glucksberg and the 9-0 refusal to find a right to assisted suicide

Nine justices of the Supreme Court agreed on something. Mark the date. In a Republic where the Court splits five to four on a good many questions, and where the justices can find a dissent in a phone book, a nine-to-nothing judgment on a subject this charged is a rare piece of constitutional weather. It spans the whole range of the Court's philosophies, from the most restrained to the most expansive.

That is Washington v. Glucksberg. It deserves to be read closely, partly because of what it decided in 1997, and partly because a method it set out was used again, twenty-five years later, in a case about a very different subject.

The Washington statute

The state of Washington, like most states, made it a crime to assist another person in committing suicide. Its statute provided that a person was guilty of promoting a suicide attempt when he knowingly caused or aided another person to attempt suicide. The offense was a felony. This was not a novelty. The Court's opinion would later show that the prohibition was one of the oldest and most widely shared features of American law.

The plaintiffs were four Washington physicians who said they would help certain terminally ill, mentally competent patients end their lives if the law allowed, along with three gravely ill patients, who died before the case was resolved, and a nonprofit organization that counseled people considering assisted suicide. They sued, asking a federal court to declare the statute unconstitutional on its face, as a violation of the Due Process Clause of the Fourteenth Amendment.

That clause says no State shall "deprive any person of life, liberty, or property, without due process of law." The plaintiffs argued that "liberty" includes a right to choose the time and manner of one's death, and to obtain a doctor's help in doing so.

The lower courts

The federal district court agreed with the plaintiffs and struck down the law. A panel of the Ninth Circuit reversed, but the full court, sitting en banc, reinstated the ruling for the plaintiffs, reasoning from the Supreme Court's abortion decisions and from its 1990 decision in Cruzan v. Missouri, in which the Court had assumed that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. The Ninth Circuit saw a short step from the right to refuse treatment to a right to hasten death.

The Supreme Court took the case, and so did its companion from New York, which I will take up below.

Rehnquist's opinion

Chief Justice William Rehnquist wrote for the Court, in an opinion decided on June 26, 1997. He began by stating the question with care: whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide, which itself includes a right to assistance in doing so.

Then he applied what became the two-step method of the case.

First, a careful description of the asserted right. The Court insisted that a claimed liberty be described precisely, and not at a level of generality that smuggles in the answer. Calling it a "right to die" or a right to "control one's destiny" invites a yes. Describing it as a right to have a physician help end one's life invites a more honest analysis.

Second, the test of history and tradition. The Court said that the Due Process Clause protects, beyond the specific freedoms listed in the Bill of Rights, those fundamental rights and liberties which are "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." The Court had used that language in earlier cases, and it made it the test. It added that the Court has always been reluctant to expand the concept of substantive due process, since, in the Court's words, the guideposts for responsible decision-making in this uncharted area are scarce and open-ended.

Why the caution? Because when judges declare a new fundamental right, they take the question away from the voters and put it beyond the reach of ordinary politics. The Court said that to do so, it must have something firmer than the judges' own sense of what the Constitution ought to say.

The history

Rehnquist then did what Justices are supposed to do, and what too few opinions do: he read the history. He traced the treatment of suicide and assisted suicide in the Anglo-American common law, going back to the thirteenth century and the treatise of Bracton, who recorded that suicide was punished by forfeiture of the person's property. Over the centuries the severity of the punishment for the suicide himself softened, but the condemnation of helping another to die did not. The opinion described the American colonies and states as having continued the English tradition, and noted that the history of the law's treatment of assisted suicide in this country was one of the rejection of nearly all efforts to permit it.

The Court surveyed the statutes. Over the nineteenth century, states enacted laws against assisting suicide. In the twentieth century, after the debates on the subject, most states kept them, and many reaffirmed them. The Court observed that the legislatures of many states had recently considered whether to permit assisted suicide, and nearly all had again rejected it. Washington's own law had been reviewed and kept.

Against that background, the Court concluded that the asserted right was not deeply rooted. The opposite was true. Rehnquist found a consistent and almost universal tradition of prohibition. And Cruzan, on which the Ninth Circuit relied, was different. The right to refuse unwanted treatment rests on the longstanding tradition of protection against unwanted bodily touching, the law of battery. Assisting suicide has no such root.

The Court then held that the Washington statute was rationally related to legitimate government interests. Those interests included the state's unqualified interest in the preservation of human life, the prevention of suicide, the protection of the integrity and ethics of the medical profession, the protection of vulnerable groups, including the poor, the elderly and disabled persons, from abuse, neglect and mistakes, and the fear that permitting assisted suicide would start down a path to voluntary and perhaps even involuntary euthanasia. These are the kinds of interests a legislature may weigh.

Vacco v. Quill, the same day

On the same day the Court decided Vacco v. Quill, which came from New York. New York banned assisted suicide but allowed patients to refuse life-sustaining treatment. Physicians and patients argued that this treated similarly situated people differently, in violation of the Equal Protection Clause: a patient on a ventilator could hasten death by withdrawing it, but a patient not on life support could not hasten death by taking a prescribed drug.

The Court rejected the argument, with all nine justices agreeing in the judgment. It held that the distinction between refusing treatment and requesting assistance in suicide is a long-recognized and rational one. When a patient refuses treatment, the Court said, the cause of death is the underlying disease, and the physician who honors the refusal is not, in law, doing something to bring about death. When a physician assists a suicide, the physician is providing the means of death, and the patient's intent is to die. The Court said that the law has long distinguished between letting a patient die and making that patient die, and that the distinction is logical, rational and well established.

Readers should note this distinction carefully, because it comes back in any debate about the subject. I am not making a medical argument. I am telling you what the Court held, which is that the Constitution does not erase it.

The concurrences

The judgment was unanimous, but the concurring opinions show that the nine justices did not all travel by the same road.

Justice O'Connor, joined in part by Justices Ginsburg and Breyer, wrote separately, and Justices Stevens, Souter, Ginsburg and Breyer each concurred in the judgment. Justice Stevens, in the words of the majority's own footnote, would leave open a more particularized challenge by an individual plaintiff seeking to hasten her own death, and the majority replied that its holding does not absolutely foreclose such a claim, though it would have to differ from the one before the Court. Justice Souter wrote at length about the proper method of substantive due process, drawing on Justice Harlan's dissent in Poe v. Ullman, and concluded that the legislature, with its power to gather facts such as those from the Dutch experience, was better placed than a court to settle the question for now.

What I want you to see is that this was not a case in which the Court's more liberal justices voted against their principles. They agreed in the judgment against the claimed right to assisted suicide, while some of them wrote separately about narrower claims. The agreement in the judgment is real, and so are the careful limits on it.

Gonzales v. Oregon

Now to the aftermath. Oregon's Death with Dignity Act, approved by the state's voters in 1994 and kept in a second vote in 1997, allows physicians to prescribe lethal medication to certain terminally ill patients. Glucksberg did not stop it, because the Court held only that the Constitution does not require a state to allow assisted suicide. It did not hold that the Constitution forbids a state from allowing it.

In November 2001, the U.S. Attorney General issued a rule declaring that using controlled substances to assist a suicide was not a "legitimate medical purpose" under the federal Controlled Substances Act, which would have exposed Oregon physicians to federal discipline. Oregon sued. In Gonzales v. Oregon (2006) the Supreme Court held by six to three that the Attorney General's rule was invalid, because the Controlled Substances Act did not give the Attorney General authority to decide what counts as legitimate medical practice for this purpose, and Congress had not clearly given the federal government that role in a field traditionally left to the states.

Consider what that shows. The question of assisted suicide went to the states through both of the Court's decisions. Glucksberg said a state may prohibit it. Gonzales v. Oregon said, in effect, that a state may permit it, and the federal executive could not override the state's decision by regulation. That is federalism, working as it was meant to.

Why the question returned to legislatures

The best sentence in the Chief Justice's opinion is also the most important one. He wrote that throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide, and that the Court's holding permits this debate to continue, as it should in a democratic society.

Those words state the whole constitutional logic of the case. The Court did not announce that assisted suicide is good or bad. It announced that the question is not the Court's to settle.

And that is where a conservative constitutionalist should end up, whatever his own view of the policy. If the Constitution is silent, the voters decide. The Founders put the power to make the law in the people's representatives, who must stand for election, who answer to the people, and who may be thrown out. When a court takes such a question from them, it takes a piece of self-government. When it declines to, it hands the question back to the people who must live with the answer.

The strongest objection, answered

The best objection to Glucksberg runs like this: "A history-and-tradition test is a trap. It freezes the law at the practices of the past, and many rights that we now regard as obvious, such as the freedom to marry across racial lines, would not have passed the test in their day. The method gets the right answer only if the past was right."

That is a serious objection, and I will answer it point by point.

1. The method asks a narrow question. It asks whether a specific right, described carefully, is among the liberties the Due Process Clause protects. It does not say that anything not practiced in 1868 is forbidden. It says that the judges may not invent a new fundamental right without a root in the tradition.
2. Change is not forbidden. The objection assumes that if a right is not recognized by the courts, it cannot be recognized at all. But the people may change the law through legislation and, where necessary, through constitutional amendment. That is how women gained the vote, through the Nineteenth Amendment, and how slavery ended, through the Thirteenth. The proper engine of moral progress under our Constitution is the amendment and the statute.
3. The alternative is no better. If a judge may find new rights in "liberty" whenever he is persuaded that society's attitudes have changed, then the rights depend on the judge's reading of the times. In 1997 all nine justices agreed in the judgment not to take that step, and I think they were right.
4. The method cuts in many directions. The Court has used history to protect parental rights, and in other cases to protect liberties against the state. It is a tool for discipline, not a mere engine of restriction.

I would add a note of humility. The method is an imperfect guide, and honest scholars disagree over how to apply it. But an imperfect, checkable guide is better than no guide at all.

What it means for citizens

If you want to take part in the debate that Glucksberg left open, the place to do it is your state capitol. Bills on this subject are introduced in legislatures year after year, and the hearings are open to the public. how to testify at your statehouse when an assisted-suicide bill is heard shows how to testify, and the case against assisted suicide that does not depend on religion makes the argument against legalization on grounds a secular listener can weigh.

For the way the Glucksberg method came to shape the abortion decision, see From Bracton to 1868, the legal history Dobbs put back on the record. And the structure of federal and state power that the Court preserved in Gonzales v. Oregon is explained in Federalism Lets Fifty States Experiment, and the Constitution Planned It.

The case in brief

1. In Washington v. Glucksberg (June 26, 1997), the Court, with all nine justices agreeing in the judgment, held that Washington's ban on assisting suicide did not violate the Due Process Clause, because a right to assisted suicide is not deeply rooted in the Nation's history and tradition.
2. Chief Justice Rehnquist's two-step method, a careful description of the claimed right and a test of history and tradition, requires judges to look outside their own preferences before declaring a fundamental right.
3. Vacco v. Quill, decided the same day, held that New York could distinguish between refusing treatment and assisting suicide, and the concurrences left narrower claims open.
4. Gonzales v. Oregon (2006) held that the federal government could not override Oregon's permission by regulation, which shows that the question belongs to the states.
5. The Court said the debate should continue in a democratic society, which is where a free people should settle it.

What you can do: look up your state legislature's website, search for bills on assisted suicide in the current session, and read one bill's text and the testimony the committee has received.