The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be left alone—the most comprehensive of rights, and the right most valued by civilized men.”
Justice Louis Brandeis, Olmstead v. United States
Although written in dissent, Brandeis’s “right to be left alone” has become a permanent feature of our judge-made law. This right has become a kind of self-evident norm regulating the relationship between government and the citizens.
That this right has become “most valued by civilized men” is both peculiar and peculiarly American. It is peculiar because the word “civilized” derives from civis, or citizen. To be civilized, in this sense, means to claim the right to political participation.
The privatizing of public things, as well as the use of public things for private purposes, is also peculiarly American. Consider the typical set of issues which are recycled from election to election: Tax cuts, school vouchers, the sale of public lands, deregulation of the cable industry, sexual conduct, abortion, and now physician-assisted suicide. Of course, political parties differ over which particular things ought to be privatized; yet, both parties agree that government achieves its purpose either when it facilitates private, individual choices, or when it gets out of the way of private choices altogether. In the last election, for example, President Clinton boasted of having privatized more federal activities than the last two Republican administrations combined.
The alleged right to physician-assisted suicide, however, provides a test case for how far we can go in enjoying a right to be left alone and still remain civilized.
Compassion in Dying
On March 6, 1996, the Ninth Circuit Court of Appeals, sitting en banc, ruled that the state of Washington is constitutionally incompetent to legally prohibit physician-assisted suicide. In doing so, the court rejected an earlier three-judge panel decision, written by Judge John Noonan, upholding the state’s anti-euthanasia statute.
The original suit, filed by Compassion in Dying, a group devoted to assisting terminally ill patients contemplating suicide, sought a declaration that the Washington statute violates the due process and equal protection clauses of the Fourteenth Amendment.
Writing for the majority, Judge Stephen Reinhardt understood perfectly well that, with the exception of the common law principle of self-defense, the right of one private person to kill another person is not to be found in the organic, statutory, or written constitutional laws of our polity.
The common law principle never has been construed to condone either the deliberate use of lethal force by private agents or suicide. In cases of self-defense, the individual is not publicly authorized to use lethal force; he does not act as a policeman, jury, or executioner—he acts to protect his life against extreme and imminent danger.
The common law principle does not conflict with, neither may it trump, the state’s monopoly on the use of lethal force. No private party has a right to judge that another person deserves to die and to execute that judgment by way of lethal force.
In any case, the common law principle of self-defense has not formed any part of the Supreme Court’s case law on abortion. In Roe v. Wade, Justice Blackmun listed five potential harms imposed upon a pregnant woman by state laws prohibiting abortion. Only one of these, “[s]pecific and direct harm medically diagnosable,” provides anything analogous to the traditional principle and situation of self-defense. This was not at issue in Roe, for the state of Texas already had such an exception. The other harms enumerated by Blackmun are psychological, sociological, and economic in nature. All of these represent forms of duress that never have been included under the common law right of self-defense.
To his credit, Judge Reinhardt makes no bid either to reinterpret the common law principle or to smuggle it into the abortion precedents. Rather, he repairs to the Court’s own case law regarding certain liberties protected by the right of privacy. After citing the Brandeis dictum concerning the right to be left alone, Reinhardt asserts: “The essence of the substantive component of the Due Process Clause is to limit the ability of the state to intrude into the most important matters of our lives, at least without substantial justification. In a long line of cases, the Court has carved out certain key moments and decisions in individuals’ lives and placed them beyond the general prohibitory authority of the state.”
In the course of his one-hundred-page opinion, Reinhardt makes more than sixty citations to the Court’s case law on the privatization of sexual conduct. Indeed, the Court’s decisions in these cases do provide an impressive body of precedent for Reinhardt’s argument that there exists a constitutionally protected right to die.
When we survey the Court’s expansion of the right of privacy we see the right of privacy incrementally emancipated, first from traditional protections afforded to married people, and second from sexual conduct itself. In Griswold (1965), the Court discovered that married people enjoy a right of privacy to make uniquely marital decisions. Seven years later, in Eisenstadt (1972), the Court expanded the right of privacy. Justice Brennan wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The next year, in Roe v. Wade (1973), the right was further expanded to include abortion.
In Carey v. Population Service International (1977), which invalidated state restrictions on the sale of contraceptives to minors, Justice Brennan wrote that privacy is an “interest in independence in making certain kinds of important decisions.” In the course of twelve years, the Court privatized marital sex, non-marital sex, abortion, and teenage sex. The final result was that privacy became an all-purpose right of autonomy in making decisions.
This process culminates in Roe v. Wade (1973): What was once homicide, indeed wrongful homicide, in all but three of the states was now a private choice protected by the Bill of Rights.
Neither in Roe nor in subsequent cases did the Court deny that abortion is homicide. In fact, one of the rarely mentioned oddities of Roe is that the Court refused to take a position, one way or the other, on the moral status of the entity being killed. The Court did not declare that the fetus is not a person in the moral sense of the term. Rather, the Court asserted that it could find no legal ground for such status, at least no ground sufficient to trump a woman’s constitutional right of privacy.
Enter Homicide
So what made the framework established by Roe so unusual, and indeed such a powerful precedent for the issue of physician-assisted suicide, is that the Court declined to say whether the choice is homicidal in terms of the rightness or wrongness of the act. This judgment is left entirely to the individual.
In cases like Webster, where the state of Missouri had declared that unborn human beings are persons, the Court refused to prohibit the states from expressing their concern that abortions are acts of homicide. Indeed, the Court has repeatedly said that the states can convey their opinion about this matter and ask a woman to think twice. But the Court did prohibit the states from effectuating that judgment in criminal and civil laws.
In the language of the joint opinion in Planned Parenthood v. Casey, the state may place no “undue burden” in the path of a woman’s choice. Again, the state may believe that her choice is homicidal; but it may impose no criminal penalties or civil liabilities.
For purposes of constitutional law, the woman may define the moral properties of her action. If the woman, in conscience, believes that her act is wrongful homicide, that judgment must remain private.
The Casey decision did two additional things that provided a bridge from abortion to physician-assisted suicide. First, the joint opinion jettisoned the trimester scheme. Why is that important? For twenty years, the Court seemed to say that the state’s effective valuing of human life is keyed to viability (even though, in effect, only at live birth on U.S. soil do the rights of the child begin legally). As everyone knows, even terminally ill persons are “viable.”
Once this distinction was removed from the Court’s abortion jurisprudence, the analogies between abortion and physician-assisted suicide became stronger, because we are no longer debating whether there is life and whether it is viable, but rather the meanings and values assigned to the life.
Second, the joint opinion in Casey moved the abortion right from the category of an unenumerated right of privacy to the enumerated right of liberty in the due process clause of the Fourteenth Amendment. The joint opinion defined the liberty at issue in the following way: “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.”
Bridge to Assisted Suicide
By moving the abortion right from privacy to liberty, the Court once again strengthened the bridge of analogies running from abortion to physician-assisted suicide. The issue of liberty in decisions about matters of life and death was no longer limited by the context of marital, sexual, or reproductive privacy; it became part of a larger right to individual self-creation.
We can hardly criticize Judge Rothstein of the District Court and then Judge Reinhardt for making a beeline to the Casey definition of liberty, and noticing that the so-called right to “define one’s own concept of existence” (not to mention “the universe”) leaves plenty of room for the right to die. Or, to put it more plainly, the right of the individual, as against the state, to control the meaning of his life.
When Compassion in Dying first went from the District Court to the three judge panel of the Ninth Circuit, Judge Noonan tried to dismiss the apparent analogy between decisional, self-constitutive liberty in abortion and physician-assisted suicide. Noonan wrote: “The category created is inherently unstable…. If such liberty exists in this context, as Casey asserted in the context of reproductive rights, every man and woman in the United States must enjoy it. . . . The conclusion is a reductio ad absurdum.”
He is correct, of course, that the category is “inherently unstable.” But so, too, are other conceptions of civil liberties proffered by the Court. Frankly, no one, including the Court, knows how to draw absolute boundaries around what might count as religion for the purpose of interpreting either of the religion clauses of the First Amendment.
In the Selective Service board cases, for example, the Court virtually allowed individuals to define it for themselves. Furthermore, Noonan begs the question whether the liberty right in Casey is essentially, or exclusively, a reproductive right. The transition from privacy to liberty suggests that reproductive choices are only one aspect of a broader liberty to make self-defining decisions.
Finally, in response to Noonan, we do not have to suppose that the exercise of the alleged right is “uncurtailable.” Even the most expansive rights discovered by the modern Court have been regarded as amenable to time, manner, place restrictions, as well as to various balancing tests when the state asserts a compelling interest.
Such a balancing test is precisely the move made by Judge Reinhardt. “If the balance favors the individual, then the statute—whatever its justifications—violates the individual’s due process liberty rights and must be declared unconstitutional, either on its face or as applied. Here, we conclude unhesitatingly that the balance favors the individual’s liberty interest.”
An Open Door
After considering the pattern of case law culminating in Casey, and after drawing out a right to die from that case law, Reinhardt turns to the interests of the state. The chief, and most traditional, interest of the state, he maintains, is the preservation of life. Given the right of decisional liberty defined by Casey, how should it be balanced against the state’s general interest in preserving life?
As we track Reinhardt’s opinion on the question, we need to keep three things in mind:
• The state (Washington) already permits physicians to accede to the patient’s request to be subjected to no further medical treatment.
• The state of Washington already has abandoned its law against suicide.
• The train of abortion cases already had weakened the claim of the state to have a monopoly on defining life; Roe already limited the power of the states to unilaterally define the meaning and quality of life.
As for the first point—”the similarity between what doctors are now permitted to do and what the plaintiffs assert they should be permitted to do”—Reinhardt himself begs the question. Similarities do not imply that there are no important differences. Striking someone in the head in a sporting contest and striking someone in the head for the purpose of relieving them of their cash would not cancel out the very important difference between the two acts.
Reinhardt much too quickly dismisses the moral and legal difference between complying with a patient’s desire to forgo further treatment and performing an act that has as its express purpose the death of the patient. But once the patient’s request to forgo further treatment is regarded as properly similar to the patient’s request to have the physician hasten his death, the way is open to the conclusion that the individual may command the doctor to kill him.
By repealing its criminal prohibition, the state already has weakened its interest in whether the individual commits suicide. In addition, the privacy cases have not only established an individual right of autonomy over decisions that seem roughly analogous to the issue at hand, but have also questioned the ability of the state to enforce its own definitions of what makes human life valuable.
Reinhardt concludes that: “When patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the state’s interest in forcing them to remain alive is clearly less compelling. Thus, while the state may still seek to prolong the lives of terminally ill or comatose patients or, more likely, to enact regulations that will safeguard the manner in which decisions to hasten death are made, the strength of the state’s interest is substantially reduced in such circumstances.”
A Different Balance
What is left of the interests of the state? Reinhardt answers, it may regulate the conditions under which the free choice is made. What about the medical profession? Reinhardt acknowledges the potential problem of second parties exerting “undue influence.” Nonetheless, he opines that the medical profession will be a virtuous check: “[T]he direct involvement of an impartial and professional third party in the decision-making process would more likely provide an important safeguard against such abuse.”
It is precisely at this point that one might suspect that something is missing from Reinhardt’s representation of the state’s interests. What if the state’s main interest is not the general notion that human life ought to be preserved, but rather its own monopoly over uses of lethal force?
We can insist that although health-care professionals are often “impartial” third parties, they are not official legislators, umpires, or executors. They do not make laws regarding homicide; they have no public authority to resolve disputes between two parties; and they have no executive powers to take away life, liberty, or property.
If Reinhardt’s argument prevails, however, we will have private parties exercising the right to use lethal force for the purpose of vindicating the order of justice as they see it. Moreover, in the case of physicians, these are no ordinary private parties, but, as Judge Noonan pointed out, private agents whose professional competence is licensed by the state.
In other words, the patient who commands the physician to cause his death is not only commanding the state to delegate a right to use a lethal force to a physician, he is also asserting that the right be exercised without the ordinary constraints that the state must observe in using lethal force.
This not only makes a parody of due process, but it greatly weakens the principle of equal protection. According to the Fourteenth Amendment, the state must afford all “persons” equal protection with respect to general, standing laws. The prohibition of homicide is one of these general, standing laws. According to Reinhardt, however, when persons are “no longer able to pursue liberty or happiness and do not wish to pursue life,” the mere private choices of patients and physicians can relieve the state of its constitutional burdens. In effect, patients and physicians can make the state apply its protections arbitrarily. And this will affect everyone in civil society.
Dissolving Civil Society
Indeed, relinquishing the exercise of such a right is the cornerstone of John Locke’s theory of civil government. In the Second Treatise of Government, Locke has us imagine individuals in a condition of “perfect liberty.” That liberty comprises two powers: first, to make judgments about which acts are in accord with his own preservation or the preservation of others; second, to execute those judgments with whatever force he deems necessary to secure the end of preservation.
At least in the state of nature, the preservation of life is the great commandment of the natural law. Every member of the species has an equal right to make and execute such judgments as are necessarily to this end. But Locke insists that the exercise of such rights must be relinquished upon entering civil society. In civil society, the great law is not the preservation of life, but rather the preservation of life under public measures and constraints.
Why enter civil society in the first place? One reason is that brigands and miscreants will exercise their powers to the detriment of the rightful interests of others. But we do not need civil society to afford us protection against the miscreants. This also can be accomplished Mafia-style — by individuals or families joining forces to protect their interests.
Locke emphasizes that the rationale for political order is the more general and persistent inconvenience of men being judges in their own case. Government is meant to address the problem of “the partiality and violence of men,” including one’s friends.
According to Locke, the first act of civil society is a covenant whereby each agent relinquishes his natural and private rights to judge and execute the law of nature, transfer ring such powers to civil society, which enjoys a monopoly judicial and executive powers. In the absence of such a covenant, no political order exists. Some other kind of order might evolve and other forms of contracts can be undertaken, but they are not political.
Therefore, to assert that an individual has a private franchise to use lethal force is to assert that that individual is not a member of civil society; and, by the same token, for the state to retransfer such powers back to individuals is tantamount to dissolving civil society. Whether the delegation is done by a court, a legislature, or an executive is irrelevant.
Thus, the individual who asserts that government must recognize, and even assist, his private use of lethal force is not claiming a right to be left alone. Rather, he is asking for the state either to cancel the civil contract altogether, to cancel it in his case, or to admit that such a monopoly never was conferred his case, or to admit that such a monopoly never was conferred upon the government in the first place. Any or all of these options imply the rejection of the principle of political order.
Have We Forgotten What to Fear?
Perhaps we can remain “civilized” and enjoy a “right to be left alone” in matters of lifestyle. Perhaps we can regard the state as a kind of condominium, that gives us options on various services such as health care, social security, fire departments, and schools. But the state’s monopoly on lethal force, as well as the constitutional constraints upon the way the state uses lethal force, cannot be an option for individuals. This power is a necessary condition for the existence of political society. It cannot be delegated or transferred to private parties. The Courts have no more business transferring that power than do legislatures.
The fact that federal judges, as well as many citizens, perceive no danger in private franchises to use lethal force tells us much about our society. It tells us, first, that the abortion right is not an inert right. The transforming of a criminal prohibition into a constitutional right has become like a virus that implants itself in our constitutional software. Indeed, the privatizing of this decision has affected our perceptions of the nature of civil society itself. The Ninth Circuit decision proves beyond any doubt that abortion is not just about abortion. Roe v. Wade effected a radical reorientation of how we picture civil society. For it threw into doubt the first protection afforded by political order: namely, the protection of persons against private judgments, especially when the judgments are executed by way of lethal force.
Second, the expansion of this private franchise to use lethal force tells us that people have forgotten what to fear. Apparently, many Americans believe that they have more to fear from the traditional criminal codes than they do from the private decisions made by physicians, insurance companies, and families. Yet it is an illusion to believe that our suburban enclaves constitute an effective protection against the injustices and vagaries of private choices. The case of Compassion in Dying raises the issue of why we need civil society in the first place.