“I Don’t Want to Die, But I Am Dying”: Reexamining Physician-Assisted Suicide in a New Age of Substantive Due Process

Whether a person has the right to physician-assisted suicide (“PAS”) has been a contentious topic throughout history. The U.S. Supreme Court, in its 1997 decision Washington v. Glucksberg, delivered a plurality opinion determining that there is no constitutionally protected right to PAS. The Court reasoned that PAS is not deeply rooted in the country’s history or tradition and that it is not implicit in the concept of ordered liberty.

The landscape of substantive due process has changed dramatically since Glucksberg  was decided. New fundamental rights have been recognized using both reasoning from older case law and a renewed focus on the values of dignity and autonomy that the Court declined to consider in Glucksberg . There are many similarities between PAS and the already-established fundamental rights of abortion, refusal of treatment, same-sex sexual intercourse, and same-sex marriage. It is time for PAS to be recognized alongside these as a fundamental right. As more cases considering fundamental rights are decided, Glucksberg no longer represents the standard for substantive-due-process analysis but rather is an anomaly that interrupts an otherwise consistent line of reasoning and analysis employed by courts in substantive-due-process cases.

Although the full impact of Lawrence v. Texas and Obergefell v. Hodges still lies ahead, three guiding principles from these cases can be extrapolated and applied to PAS. First, while history and tradition, which were emphasized by the Supreme Court in Glucksberg, remain important factors to consider, they are only the beginning of the fundamental-right analysis. Second, courts are now able to apply a broader definition of the right to be recognized instead of being confined to the careful description requirement of Glucksberg.  Lastly, there is a deep, growing concern for protecting the dignity, personal autonomy, and privacy of individuals. These principles apply both directly and indirectly to PAS and support the recognition of PAS as a fundamental right. Further, the undue-burden test from the abortion cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, can serve as guidance to predict the limitations that could be placed on PAS after it is recognized as a fundamental right.