Back in the 1990s, noting the success of abortion rights advocacy in the federal courts, the assisted-suicide movement moved to circumvent the democratic process by convincing the United States Supreme Court to impose an assisted suicide Roe v. Wade: a decision that would establish doctor-prescribed or administered death as a national constitutional right. The assisted suicide advocates succeeded in obtaining two Supreme Court hearings. However, in a delicious irony, not only did their cases fail abysmally, but the precedent the Supreme Court established in one of the cases would years later become the hammer that shattered the constitutional right to abortion.
The Attempt to Declare Washington’s Law Banning Assisted Suicide Unconstitutional
In 1994, the assisted suicide advocacy group Compassion in Dying (now merged with the Hemlock Society to become Compassion and Choices) joined with three dying patients and five physicians to challenge Washington’s then-existing law that criminalized assisted suicide. The record prior to reaching the high court was mixed: The plaintiffs had won in the trial court, then lost in the U.S. Court of Appeals for the Ninth Circuit, where a threejudge panel ruled that Washington’s law was constitutional. Then, the notoriously liberal Ninth Circuit granted an en banc hearing by 11 judges, which (in an eight-to-three decision) found that Washington’s law against assisted suicide was indeed unconstitutional.
Although it never became law, the decision of the en banc court, written by Chief Judge Stephen Reinhardt, is worth pondering because it illustrates the true pro-euthanasia mindset and broad agenda of the euthanasia movement. First, the majority quickly and hubristically dismissed the court’s obligation to apply the law as written and to depend on previous rulings: “We must strive to resist the natural judicial impulse to limit our vision to that which can plainly be observed on the face of the document before us, or even that which we have previously had the wisdom to recognize.”
Thus freeing themselves of the usual constraints that serve to limit the scope of judicial rulings, Reinhardt and seven of his colleagues in effect licensed themselves to create new constitutional rights out of whole cloth: The wording of the United States Constitution, the binding nature of judicial precedent, and even the vote of the people of Washington only five years earlier rejecting legalization of assisted suicide carried no weight. (By 2008, voters had changed their minds about the issue and legalized assisted suicide for the terminally ill in Initiative 1000.)
The Compassion in Dying ruling relied on opinion polls for justification; it blurred sensitive and vital distinctions and was rife with factual error. For example, the eleven-judge panel found: “Unlike the depressed twenty-oneyear-old, the romantically devastated twenty-eight-year-old, the alcoholic forty-year-old . . . who may be inclined to commit suicide, a terminally ill, competent adult cannot be cured.” Yet, there are many cases of people diagnosed as near death who live for many years.
Judge Reinhardt also wrote: “While some people who contemplate suicide can be restored to a state of physical and mental well-being, terminally ill adults who wish to die can only be maintained in a debilitated and deteriorating state, unable to enjoy the presence of family or friends.” But that is both alarmist and a false paradigm. Medical science has tremendous abilities to palliate the symptoms associated with the end of life. I witnessed such beneficence with my own parents, who both died naturally under the compassionate care of hospice professionals.
But factual inaccuracies were a minor problem compared to the rest of Judge Reinhardt’s decision. Officially, the case stood for the (now defunct) proposition that there is a fundamental liberty interest in the United States Constitution in allowing citizens a “right to die.” Unlike other constitutional rights, however, this “liberty interest” would not have been available to all people. Rather, deciding who did or did not possess it would have involved a sliding scale—with some lives deserving of greater protection by the state than others. According to Reinhardt, the state had the highest interest in protecting the lives of the “young and healthy” from suicide, but not much interest in protecting those “who are diagnosed as terminally ill” from suicide. So long as the dying were not coerced into choosing death and were mentally competent (both extremely questionable propositions), Reinhardt and his seven majority-opinion colleagues would have granted them an almost absolute right to choose to be assisted in their suicide by a doctor.
Judge Reinhardt’s decision would also have opened the door to hastening the deaths of people with disabilities:
There are . . . subtle concerns . . . advanced by some representatives of the physically impaired, including the fear that certain physical disabilities will erroneously be deemed to make life “valueless.” While we recognize the legitimacy of these concerns, however, we also recognize that seriously impaired individuals will, along with nonimpaired individuals, be the beneficiaries of the liberty interest asserted here—and that if they are not afforded the option to control their own fate, they like many others will be compelled against their will to endure protracted suffering.
Judge Reinhardt even legitimized money worries as a reason for seeking medicalized suicide:
While state regulations can help ensure that patients do not make uninformed, or ill-considered decisions, we are reluctant to say that, in a society in which the costs of protracted health care can be so exorbitant, it is improper for competent, terminally ill adults to take the economic welfare of their families and loved ones into consideration.
Not only that, but Judge Reinhardt’s decision would have allowed active euthanasia:
We recognize that in some instances, the patient may be unable to self-administer the drugs and that administration by a physician, or a person acting under his direction or control, may be the only way the patient may receive them.
He also endorsed nonvoluntary killings of the incompetent—which, by definition, includes children, who generally are not allowed to make their own healthcare decisions—by allowing surrogates to choose death for their wards: “We should make it clear that a decision [to end a patient’s life] of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself.”
As Roe v. Wade had done twenty years previously, Judge Reinhardt’s sweeping ruling went well beyond the parameters of what the plaintiffs were asking. Thus, he sought to conjure an expansive right to die: “There is a Constitutionally protected liberty interest in determining the time and manner of one’s own death.”
Judge Reinhardt’s opinion was everything that assisted suicide activists were hoping for—and more. Not only would the majority opinion have created a constitutional right to commit suicide and to be assisted in that endeavor, but the death agenda would not have been restricted to the terminally ill, a restriction the political arm of the movement deceptively insisted would be ironclad.
Assisted Suicide Goes to the Supreme Court
In June 1997, the Supreme Court issued two 9-0 rulings that decided whether the Constitution guarantees access to assisted suicide. (Full disclosure: In both cases I wrote and filed an amicus brief in the Supreme Court as a lawyer for the International Anti-Euthanasia Task Force, now the Patients Rights Council.) The two decisions, Washington v. Glucksberg and Vacco v. Quill (the latter of which ruled that refusing life-sustaining treatment was not a form of suicide, an issue beyond our scope here), were both thorough and farreaching and buried hopes of the assisted suicide movement that they would be able to impose their agenda nationally via court diktat. In portentous language that would later become relevant in the 2022 decision to overturn Roe v. Wade, Chief Justice William Rehnquist, writing for his eight fellow justices, ruled unequivocally that assisted suicide is not a fundamental right.
First, the Court reviewed the laws surrounding suicide and assisted suicide during the last 700 years of Anglo/American jurisprudence, finding that assisted suicide is not a “fundamental liberty interest” protected by the “Due Process Clause.” That being so, all that the State of Washington had to demonstrate was that its anti-assisted suicide law “be rationally related to legitimate government interests.”
SCOTUS ruled that Washington had “unquestionably” accomplished this defensive task. The Supreme Court identified these interests over several pages of text:
• The State has an “unqualified interest” in the preservation of human life, “even for those near death.”
• Because suicide is a “serious health problem,” especially among “persons . . . in vulnerable groups,” states have the right to pass laws, including laws criminalizing assisted suicide, as a matter of suicide prevention.
• Those who commit suicide, including the terminally ill, “often suffer from depression or other mental disorders.” Because depression can often be effectively treated—and its causes, such as pain, significantly ameliorated—“legal physician assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses.”
• The State has “an interest in protecting the integrity and ethics of the medical profession.” Legalized physician-assisted suicide could “blur the line between healing and harming.”
• “Next, the State has an interest in protecting vulnerable groups—including the poor, elderly, and disabled persons—from abuse, neglect, and mistakes.” If physician-assisted suicide were permitted, “many might resort to it to spare their families the substantial financial burden of end-of-life health care costs.”
• “The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from discrimination, negative and inaccurate stereotypes, and ‘societal indifference.’. . . The State’s assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy; and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s.”
• Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.” Glucksberg and Vacco were devastating losses for the assisted suicide movement. It was now clear that any attempt to transform the United States into a suicide nation would require intense state-by-state political struggle rather than a sweeping declaration from the judiciary. (As of this writing, nine states and the District of Columbia have passed legislation legalizing assisted suicide for people with terminal illnesses.)
How Glucksberg Impacted the Dobbs Decision
And that’s where things stood until 2018, when Mississippi passed a law outlawing abortion after 15 weeks of gestation. As expected, the lower courts followed existing precedent and found the law to be unconstitutional. Then, the Supreme Court agreed to hear the case. In its legal brief, Mississippi argued that the Court should overturn Roe as bad law. And suddenly, Roe was on the docket in a way it hadn’t been since 1992, when the Supreme Court validated but modified the ruling in Roe in Planned Parenthood v. Casey.
Little did anyone suspect that the primary precedent the Supreme Court would apply in the ultimate ruling overturning Roe v. Wade would be the then little-thought-about Washington v. Glucksberg. I know I didn’t. As described above, that case was not about abortion. But crucially, it had been decided five years after Casey and contained case law that a majority of the justices deemed germane to the case at hand.
Dobbs v. Jackson Women’s Health Organization hit the country like an earthquake. Writing for a 5-1-3 majority, Justice Samuel Alito applied the ruling in Glucksberg as the primary precedent for striking down Roe as bad constitutional law! From the opinion (my emphases):
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty” And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue. . . . Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of “Anglo-American common law tradition,” [citation omitted] and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition.”
Analyzing the history of the unenumerated claim of a right to abortion, the majority found it wholly wanting:
As the Court cautioned in Glucksberg, “[w]e must exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court” (internal quotation marks and citation omitted).
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Cf. Glucksberg (removal of “common law’s harsh sanctions did not represent an acceptance of suicide”).
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”
So, in a hubristic attempt to force assisted suicide on the nation in the same way abortion had been, euthanasia activists instead laid the groundwork for Roe’s ultimate obliteration. As they say, the Lord works in mysterious ways!
Winston Churchill famously said after an early Allied victory in World War II, “Now is not the end. It is not even the beginning of the end. But it is perhaps, the end of the beginning.” So too with abortion, for the issue is now back to where it was before the Supreme Court in Roe v. Wade hubristically usurped the right of the people to decide this crucial moral issue through democratic processes.
Going forward, the pro-life movement will have to convince people that abortion is both morally wrong and should be legally impermissible in most cases—which will also require convincing women in unexpected pregnancies that it is in both their and the baby’s best interests to carry to term. It will not be an easy task in either regard. Decades of legalized abortion have exacted a toll on the country’s moral core by convincing much of the country that access to abortion is a fundamental right. This task will require much more than opposing abortion. It will also be necessary to demonstrate to women that the pro-life movement is their supportive friend.
Reversing pro-abortion beliefs could take decades. But then, so too did the great democratic struggle to reverse the great injustice of Roe v. Wade. In bringing the country to this portentous moment, the pro-life movement has taken its place in the grand tradition of social activism that is a hallmark of the American experience. Indeed—as both Glucksberg and Dobbs proved— in a free country, there’s no such thing as a hopeless cause. Onward!