James Bopp Jr & Richard E Coleson. Issues in Law & Medicine. Volume 12, Issue 4. Spring 1997.
When abortion was declared a constitutional right in America, pro-life scholars declared that the nation had stepped on a slippery slope and predicted it would quickly lead to infanticide, assisted suicide, and active euthanasia. That prediction will be proven true with respect to assisted suicide if the United States Supreme Court affirms decisions by federal appellate courts in the Second and Ninth Circuits finding a constitutional right to assisted suicide.
The prediction was based on the fact that societal approval of abortion constituted something even larger than approval of abortion. Implicit in the approval of abortion on demand was the principle that it is permissible to take innocent human life, even for reasons of convenience. Once that principle was accepted, it was but a short distance to societal acceptance of “Baby Doe” cases and assisted suicide.
The slippery slope has been lubricated by the numbing effect of three decades of one and a half million abortions a year. Jack Kevorkian’s relentless flouting of the law, coupled with the inability of prosecutors to gain criminal convictions against him, has further numbed public outrage at assisted suicide and created a malaise of perceived inevitability.
However, if America does not gain a toehold on the slippery slope before reaching legal approval of assisted suicide, it should not be expected that the slide will stop at assisted suicide. The distance between assisted suicide and voluntary euthanasia (and even nonvoluntary euthanasia for persons who are incompetent) is even shorter than that between abortion and assisted suicide.
What is not appreciated by many (including those who support abortion rights but oppose assisted suicide) is the connection between the declared right to assisted suicide and the constitutional analysis employed by the United States Supreme Court in Roe v. Wade. To change metaphors, Roe v. Wade (the case declaring a right to abortion) is the root, the reaffirmation of Roe in Planned Parenthood v. Casey is the branch, and the right to assisted suicide is the fruit.
The Root: Roe v. Wade
In 1973, the United States Supreme Court seized the abortion issue from the laboratory of the states (some of which had been experimenting with more permissive abortion laws) and secured it behind the pale of constitutional protection. The decision, known as Roe v. Wade, was vigorously criticized by constitutional scholars for abandoning all pretense of being constitutional law and imposing on the states by fiat a regime of abortion on demand.
To understand the scholarly outrage, it is necessary to explore the debate over the shadowy realm of substantive due process. Substantive due process is the analytical device employed by the Court to declare constitutional rights not enumerated in the Constitution.
Of course, it was not intended by the framers of the Constitution that the Supreme Court find unenumerated rights. The Constitution was designed to create a limited government, with the federal government receiving only those powers and protecting only those rights ceded to it by the people. All other powers and the right to regulate all other matters were retained by the people and the states, as expressly set out in the Constitution. The arrangement was only to be altered by formal constitutional amendment.
In the Constitution and its amendments, the people granted the federal government the power to protect certain rights that were to be beyond the power of the federal or state governments to impinge upon. Those enumerated rights included the rights to free speech, free press, free association, free exercise of religion, and so on, as set out in the Bill of Rights.
Over the years, the high Court has had to apply these enumerated rights in changing contexts. For example, the rights to free speech and free press have been applied to an age of broadcast media and the Internet. However, such logical extension of enumerated rights was not a declaration of new rights.
Some justices have also been tempted to illegitimately stretch existing rights to encompass new ones that would surely be unrecognized as constitutional rights by the framers of the Constitution and its amendments. Where a newly declared right cannot be fairly traced to an enumerated right, the Court has engaged in a limited coup d’etat by seizing power to control areas not granted by the people to the federal government.
The temptation of the Court to create federal constitutional rights in areas left to state control by the framers has been strong because it allows the justices to decide the important issues of the day, rather than leaving them to the democratic process. When judges seek to decide matters not entrusted to them by the people, they arrogate to themselves the powers envisioned by Plato when he proposed his elite ruling guardians. Such judges do not limit themselves to the powers entrusted to them in the Constitution, which they swore to uphold. Rule by judges, rather than by the laws and Constitution duly enacted by the people, results in rule by man, not by law, a concept the framers clearly rejected when they rejected a monarchy and established a democratic republic.
Substantive due process, the tool the Court uses to create unenumerated rights, is based in the fourteenth amendment statement that a state may not “deprive any person of life, liberty, or property, without due process of law.” The obvious intent of this post-Civil War amendment was to secure for all persons fair legal proceedings before they could be hanged, imprisoned, or fined.
However, the term liberty has beckoned justices seeking to declare new rights. If the Court could gain public acquiescence in its decision to define the term liberty beyond its original meaning, the Court would have the freedom to create new rights. Liberty would become an empty vessel that the Court could fill with its notion of proper public policy on a wide range of issues and thus control the direction of public policy on the major social issues.
The public has so far acquiesced. Despite the outcry of scholars against the creation of new rights, there have been no impeachments of activist justices. Presidents who appoint activist justices have suffered little, if any, political penalty. In fact, the dominant media hue and cry only arises when Presidents attempt to appoint conservative justices who promise to interpret the laws, not make laws. Robert Bork, whose strong position against judicial activism has been articulated in his book The Tempting of America: The Political Seduction of the Law (1990), was found by the Senate to be outside the mainstream in his confirmation hearings because of his opposition to substantive due process. Thus, substantive due process has become part of the Supreme Court’s armamenture, and Court control of social policy is governed only by the Court’s self-control.
The Court showed a return to self-control briefly in the early 1960s when it repudiated prior use of substantive due process to strike down a variety of social legislation. That brief period was characterized by the repudiation of Lochner v. New York, a 1905 case in which the Supreme Court struck down state laws limiting the hours bakers could be required to work. The limitation (to a sixty-hour work week) was a traditional police-power regulation of the state designed to protect the health of bakers, but the Supreme Court used substantive due process to strike it down. The hot issue of the day was laissez-faire economics versus economic regulation, and the Supreme Court read its philosophy into the “liberty” of the fourteenth amendment, finding a right to unfettered freedom of contract. Thus, the use of substantive due process to strike state legislation became known as Lochnering.
However, Lochnering was repudiated by scholars, dissenting justices, and finally by the Supreme Court in 1963, when the Court declared:
There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, outlawing ‘yellow dog’ contracts, setting minimum wages for women, and fixing the weight of loaves of bread. This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time … Mr. Justice Holmes said,
‘I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.’
The Court declared further that the doctrine “that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely, [had] … been discarded.” “We have returned,” the Court concluded, “to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”
Because of this declaration just a decade before Roe v. Wade (decided in 1973), one would have expected that no abortion right would have been declared on the basis of substantive due process. After all, abortion was not an enumerated right in the U.S. Constitution, so it was left to the states to regulate.
However, the lure of substantive due process was strong, and the Court once again succumbed. Reaching back to prior substantive due process decisions finding a right to privacy “founded in the Fourteenth Amendment’s concept of personal liberty,” the Roe Court declared that this right to privacy was “broad enough to encompass” abortion.
By stretching the right of privacy—a right itself of questionable constitutional pedigree—to encompass a new abortion right, the Court did not even apply the limitations it had previously created to circumscribe its discretion in creating new rights. Recognizing that the ability to find new rights in the “liberty” clause gave it broad discretion, the Court had created certain tests to give an air of legitimacy to the enterprise and prevent “judges from roaming at large in the constitutional field.”
The Roe Court even cited one of these tests: only those rights “implicit in the concept of ordered liberty” were “fundamental,” i.e., protected by the liberty concept of the fourteenth amendment. This test meant that if ordered liberty could not exist without abortion, then abortion must be a “fundamental” right that the states could not infringe. Of course this nation had enjoyed two centuries of ordered liberty while abortion was largely illegal, so the right to abortion was not truly a fundamental right under that test.
Because the “ordered liberty” test for fundamental rights was somewhat abstract, the Court had developed a more concrete “historical” test for fundamental rights. The historical test asked whether a proposed right had been recognized as fundamental in the history and tradition of our people. Of course, an asserted right to abortion would have failed this test—because abortion has been largely illegal at common law and in state statutes since the founding of the republic—so the Roe Court ignored this test, too, and stretched the questionable privacy right to encompass a right to abortion.
The scholarly outrage at the Roe Court’s decision to reembrace its old Lochnering ways was immediate, powerful, and sustained. John Hart Ely examined Roe’s logical poverty and pronounced it a “Lochnering” opinion more dangerous than other activist decisions of the Supreme Court. He declared it “a very bad decision … because it [was] not constitutional law and [gave] almost no sense of an obligation to try to be.”
Archibald Cox stated:
My criticism of Roe … is that the Court failed to establish the legitimacy of the decision by articulating a precept of sufficient abstracmess to lift the ruling above the level of a political judgment. …
The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of childbirth and abortion or new advances in providing for the separate existence of a foetus. … Constitutional rights ought not to be created under the Due Process Clause unless they can be stated in principles sufficiently absolute to give them roots throughout the community and continuity over … time. …
Alexander Bickel commented: “The state regulates and licenses restaurants and pool halls and … God knows what else in order to protect the public; why may it not similarly regulate … abortion clinics, or doctors’ offices … ?”. … One is left to ask why,” he continued. “The Court never said. It refused the discipline to which its function is properly subject.”
Richard Epstein wrote that “Roe … [was] symptomatic of the analytical poverty possible in constitutional litigation.” He added that “we must criticize both Mr. Justice Blackmun in Roe v. Wade and the entire method of constitutional interpretation that allows the Supreme Court … both to ‘define’ and to ‘balance’ interests on the major social and political issues of our time.”
The Branch: Planned Parenthood v. Casey
Because of the barrage of scholarly criticism and growing dissent on the Court, it was widely speculated that the Supreme Court might reverse Roe v. Wade when it decided Planned Parenthood v. Casey in 1992. However, it chose to reaffirm Roe by a vote of 5 to 4, relying primarily on the legal doctrine of stare decisis; i.e., prior judicial decisions should generally be followed to provide stability to the law. In an effort to justify its reaffirmation of the Roe decision in the face of telling scholarly critiques, the Court resorted to an extremely broad and vague substantive due process analysis.
The Casey Court first rejected the history-and-tradition approach to deciding whether asserted constitutional rights should be declared fundamental and protected by federal courts. The Court declared: “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the fourteenth amendment marks the outer limits of the substantive sphere of liberty which the fourteenth amendment protects.”
The meaning, of course was that the Court was declaring its independence from any limits on its ability to create rights. It would not be bound by the intent of the framers of the Constitution and its amendments, nor the history and tradition of our nation, nor any neutral principle of law. It would be guided only by its own predilections. The Court put it more palatably:
The inescapable fact is that the adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office.
Of course, if “reasoned judgment” is the only polestar for the Court, there is nothing stopping it from invalidating at will state policies with which it disagrees. There is no longer any neutral principle for decisions or for evaluating the Court’s decisions. We are left with the principle that constitutional law is merely whatever the Court says it is.
In an effort to justify its appeal to the right of privacy, the Casey Court defined the right of privacy extremely broadly. To understand how broad it was, it is helpful to understand the roots of the right of privacy.
Originally, the right of privacy had protected the right of families to make important decisions concerning the upbringing of their children, such as whether children could be taught German or be sent to a private school. The decisions were based on the fact that the family is an institution predating the Constitution and was revered and protected in the history of our civilization. From this little-debated protection of family sovereignty over children, the Court had expanded the privacy right to include a right to contraception, based on the idea that the state should not be searching marital bedrooms for evidence of such activity. However, this marital right was then extended to the right of unmarried persons to use contraception. From these discrete cases, the Supreme Court derived a right of privacy, which it has characterized as protection for “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”
Obviously, none of these had anything to do with killing children, born or unborn. Nor could it legitimately because killing children, born or unborn, had been a crime under common law and statutory law in America. Yet, the Supreme Court stretched this so-called privacy right to encompass abortion. In an attempt to justify in Casey what it had done in Roe, the Supreme Court characterized the right of privacy expansively, in an apparent effort to make the declaration of a right to abortion appear reasonable. It declared:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
By broadly defining fourteenth amendment liberty, the Court intended to make its decree of an abortion right better fit the privacy right. However, it should be self-evident that with such a spacious definition of substantive-due-process liberty, the federal judiciary is without limits—other than the caprice of the Supreme Court—in pronouncing new constitutional rights.
The Casey Court also altered another aspect of traditional substantive due process analysis. Historically, once a fundamental right was identified (by whatever test), it was then weighed against asserted state interests to see if any were found to be “compelling.” If a state interest was found to be compelling, then it trumped the right, and a state could regulate the activity. Of course, the Supreme Court ultimately decided whether or not a state interest was sufficiently compelling to override the free exercise of a fundamental right, so this provided no diminution of the Court’s power to impose its view on public policy issues.
However, in Casey a new controlling analysis emerged. If a state statute constituted an “undue burden” on a woman’s right to abortion, then the statute was unconstitutional. Of course, the high Court still determined what burdens were undue. The practical effect of these changes was to make abortion jurisprudence an even more freewheeling balancing enterprise by the Supreme Court.
The Fruit: Assisted Suicide
When advocates of legalized assisted suicide went looking for federal constitutional protection for a right to physician-assisted suicide, the Roe/Casey analysis was ready at hand. Judge Rothstein, of the United States District Court for the Western District of Washington, began her legal analysis by setting out the liberty interest described in Casey (as set out in the block quote supra). She declared that “this court finds the reasoning in Casey highly instructive and almost prescriptive on the [issue of assisted suicide].” “Like the abortion decision,” she continued, “the decision of a terminally ill person to end his or her life ‘involv[es] the most intimate and personal choices a person may make in a lifetime’ and constitutes a ‘choice central to personal dignity and autonomy.'”
The district court then considered the interests asserted by the state of Washington to determine whether the state’s criminal prohibition on assisted suicide constituted an undue burden on the right to assisted suicide. Judge Rothstein rejected traditionally recognized justifications for barring assisted suicide—preventing suicide and preventing undue influence and abuse—as insufficient to prevent the ban on assisted suicide from being an undue burden on persons who were terminally ill, competent adults. Of course, based on the rationale employed, it is but a short step (and one legal challenge) from such limited assisted suicide to broadly available assisted suicide.
On appeal of the decision to the Ninth Circuit Court of Appeals, a three-judge panel first employed the traditional substantive due process analysis and reversed the district court? The panel asked whether a right to suicide or assistance in suicide had been recognized as a fundamental right in the history and tradition of our nation. Noting that, while suicide had been widely decriminalized because of the discovery that most suicides were due to competence-impairing ailments such as depression, neither suicide nor assisted suicide had ever been considered as fundamental rights. In fact, suicide was yet subject to social approbation, and assisted suicide was illegal in most states. The panel continued, declaring that even if there were a right to assisted suicide, there remained compelling interests in protecting vulnerable persons from assistance in self-termination and protecting the ethics of the medical profession by keeping doctors out of the killing business.
However, this victory for traditional values, a more-responsible brand of substantive due process, and vulnerable persons was short-lived. The Ninth Circuit decided to hear the case en banc; i.e., instead of the usual three-judge panel, eleven judges would hear the case.
The en banc Ninth Circuit vacated the ruling of the three-judge panel, affirmed the district court, and declared a constitutional right to physician-assisted suicide. It did so with heavy and primary reliance on Roe and Casey. The Ninth Circuit extensively analogized the right to abortion and the right to assisted suicide and dismissed as insufficient the asserted state interests in preserving life, preventing suicide, avoiding the involvement of third parties, precluding undue influence, protecting family members, protecting the integrity of the medical profession, and avoiding adverse consequences (such as the Netherlands’ slide into nonvoluntary euthanasia). It declared that it was “guided by the Court’s approach to the abortion cases.” “Casey in particular provides a powerful precedent,” it declared, adding that
The fundamental message of that case lies in its statements regarding the type of issue that confronts us here: ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.’
Conclusion
As may be seen, there is a direct link between Roe v. Wade and the finding of a right to assisted suicide. The expansive substantive due process analysis embraced by the United States Supreme Court to justify its imposition of an abortion-on-demand regime has been employed by the Ninth Circuit to justify the proclamation of a right to assisted suicide. Interestingly, the Supreme Court of Michigan and the United States Court of Appeals for the Second Circuit have rejected any substantive-due-process right to assisted suicide, employing a more traditional (history and tradition) liberty analysis? The Second Circuit, however, found a right to assisted suicide under the equal protection clause of the fourteenth amendment, an equally suspect analysis earlier rejected by the Michigan Supreme Court.
At the time of this writing, the Supreme Court has agreed to review the cases from the Ninth and Second Circuits. At issue is not only whether assisted suicide will become a right in all or parts of this nation, but also whether the federal judiciary will continue to impose its will on the republic without the accountability of neutral principles of law evenly applied. If the Court recognizes a substantive due process right to assisted suicide, it will do so on the basis of the sort of flawed analysis that was employed in an effort to justify Roe v. Wade. If it rejects a “liberty” right to assisted suicide, it will do so on the basis of an analysis that demonstrates once again how intellectually bankrupt its decision was in Roe v. Wade.