Physician-Assisted Suicide: Should you have a Fundamental Right to Control your Own Death?

Blog Post | 110 KY. L. J. ONLINE | April 12, 2022

Physician-Assisted Suicide: Should you have a Fundamental Right to Control your Own Death?

By: Kayleigh Wright, Staff Editor, Vol. 110

As a society, we deem healthcare decisions as some of the most private and personal information one has. We accept that it is up to the discretion of the individual and their acting physician to create a medical plan best suited for their needs. It’s easy to support these decisions knowing that the individual is doing what is best for them in light of informed medical advice, but once this private decision results in the phrase, “physician-assisted suicide” heads start to turn. Why is that?  Each process essentially involves the private decision of making a medical treatment plan with your doctor. It is society’s perception of suicide, paired with the logical longstanding belief that your doctors are here to save your life, not take it away, that closes the door on the conversation. There is no fundamental right to Physician-Assisted Suicide (PAS), but when applied to certain situations, doesn’t this interfere with one’s right to die with dignity, or the right to choose to refuse certain medical treatments?[1] Justice Ginsberg thought so.[2]  

Washington v. Gluksberg, a United States Supreme Court decision held that a state ban on PAS was not a violation of one’s liberty interest under the Due Process Clause of the 14th Amendment.[3] Glucksberg identified four state interests, with the preservation of human life at the top.[4] Seven years prior to this decision, Cruzan v. Missouri Health Department held that a person of sound mind has a constitutionally protected liberty interest in refusing medical treatment.[5] Justice Ginsburg in Gluksberg points out the conflicting law in these cases and notes how Gluksberg might be applied differently in another context.[6]

The right a person has to freely exercise their privacy rights through personal decision-making is one they have in the family; sexual activity; and reproductive choices including the right to procreate, using contraceptives, and abortion.[7] It is also one a terminally ill patient should have with regard to medically ending their own life.[8] Privacy is a right each person should have when it comes to making important decisions concerning their life. [9] These important decisions people make have been protected by the Supreme Court as fundamental rights.[10] Cruzan, protected one of these fundamental rights, allowing a person the privacy decision to choose to end their life support.[11] Here, the Supreme Court said this choice to die is a fundamental right. The question then lies, what is fundamentally the difference between a doctor pulling a plug on a machine that provides lifesaving nutrients to a person that could potentially stay “alive” on it for years and a doctor prescribing pills to a person with mere days or months to live to end their unnecessary suffering.[12] Both are affirmative acts by physicians with the intent to end their life, but only one is a fundamental right.[13]

Terminally ill patients are given an expected life span of 24 months or less.[14] They often suffer severe pain at the end of their time and are hospitalized, painfully awaiting their fate.[15] There is a clear distinction in allowing PAS regarding terminally ill patients, who have days, weeks, or at most, months to live, and non-terminally ill patients who might have many years ahead of them.[16] The state’s interest in preserving human life is not as compelling as Gluksberg claims because there is no ability to preserve a terminally ill patient.[17] Supporters of PAS view this as the doctors killing the pain, not the patient. [18]

Hospice is a type of palliative care for people during their final moments.[19] It is intended to provide patients comfort through what can be a physically, or even mentally painful process.[20] Hospice is for people who are terminally ill, or who have decided to exercise their right to refuse medical treatment, and it is clear they will not survive their illness.[21] Hospice prepares you for your final moments, but often the treatments given are not enough to end the pain and suffering felt.[22] In this case, the state’s interest in preserving life, a life that’s inevitably ending within the coming days, is outweighed by the personal interest of PAS.[23] If terminally ill patients have the right to deny life-sustaining treatment, then they should also be afforded the right to choose PAS to obtain a more humane and compassionate death.[24]

The right to terminate your life is albeit the right to choose your destiny. It is a right every individual should have. The government’s interest in the preservation of human life isn’t as strong when that life is terminally ill.[25] I believe it is the title that is hindering the implementation and support of PAS in society. There is such a negative connotation around the word “suicide,” and the thought of a doctor aiding one is unable for many to comprehend. Slowly, as society becomes more inclusive it will grow to support PAS, but this will take time, and possibly rebranding to develop.

[1] Washington v. Glucksberg, 521 U.S. 702, 735 (1997).

[2] See Id. at 2261.

[3] Id. at 735.

[4] Id. at 728-33.

[5] Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 261 (1990).

[6] Supra note 1 at 788.

[7] Erwin Chemerinsky, Washington v. Glucksberg was Tragically Wrong, 106 Mich. L. Rev. 1501, 1503-04 (2008).

[8] Id. at 1501.

[9] Id. at 1507.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 1508.

[14] Concepts and Definitions for “Actively Dying,” “End of Life,” “Terminally Ill,” “Terminal Care,” and “Transition of Care”: A Systematic Review, Nat’l Libr. of Med. (June, 21, 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3870193/.

[15] Lisa Schencker, Assisted-suicide debate focuses attention on palliative, hospice care, Mod. Healthcare (May 16, 2015, 1:00 AM), https://www.modernhealthcare.com/article/20150516/MAGAZINE/305169982/assisted-suicide-debate-focuses-attention-on-palliative-hospice-care .

[16] Chemerinsky, supra note 7, at 1509.

[17] Id.

[18] Id.

[19] What are the Differences and Commonalities Between Hospice and Palliative Care, VITAS Healthcare, https://www.vitas.com/hospice-and-palliative-care-basics/about-palliative-care/hospice-vs-palliative-care-whats-the-difference.

[20] Id.

[21] Id.

[22] Katherine Chamberlain, Looking for a “Good Death”: The Elderly Terminally Ill’s Right to Die by Physician-Assisted Suicide, 17 The Elder L. J. 62, 80 (2009).

[23] Id.

[24] Id.

[25] Chemerinsky, supra note 7, at 1510.