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Are Laws Against Assisted Suicide Unconstitutional? Yale Kamisar University of Michigan Law School, [email protected]

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Are Laws Against Assisted Suicide Unconstitutional? Yale Kamisar University of Michigan Law School, Ykamisar@Umich.Edu University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1993 Are Laws against Assisted Suicide Unconstitutional? Yale Kamisar University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/1399 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Constitutional Law Commons, Courts Commons, Medical Jurisprudence Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation Kamisar, Yale. "Are Laws against Assisted Suicide Unconstitutional?" Hastings Center Rep. 23, no. 3 (1993): 32-41. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Hastings Center Report, May-June 1993 n 15 Februaryof this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit sui- Are cide swelled to fifteen, the Michigan Laws against Assisted legislature passed a law, effective that very day, making assisted suicide a Suicide Unconstitutional? felony punishable by up to four years in prison. The law, which is automat- ically repealed six months after a byYale Kamisar newly established commission on death and dying recommends per- manent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "in- The reluctant to find constitutional the Supreme Court, rights tentionally providing physical in areas marked divisive social and debate, is not means" by which that other person by legal does so or from "intentionallypartic- likely to constitutionalize a right to assisted suicide. The ipat[ing] in a physical act" by which Court should cleave to the tradition of discouraging suicide she does so.1 and criminalizing its assistance. A two-thirdsmajority of each house was needed to give the new Michigan law immediate effect, but that re- quirement was easily met. The gover- nor applauded the legislature and assisted suicide by statute and as approvalof these acts or at least as signed the law the same day. But this another ten or twelve make some recognitionthat self-determination or is not the end of the story. A week types of assisted suicide a form of autonomy extends this far-namely, later, the American Civil Liberties murder or manslaughter,2 the Su- that taking one's life is a valid applica- Union of Michigan brought a lawsuit preme Court is likely to address the tion or aspect of individual self-deter- on behalf of two cancer patients and question in some case from some mination. If this is what he means, he several health care professionals who state, whether Michigan or another, is quite mistaken. specialize in the care of the termi- in the near future. As the most comprehensive and nally ill, attacking the law's constitu- In this article I shall only discuss most heavily documented law review tionality. The essence of the chal- federal constitutional arguments for article ever written on the subject lenge is that insofar as the law prohib- invalidating laws against suicide. I makes clear, abolition of such "pun- its a health professional, family mem- shall also discuss various reasons why ishments" as ignominious burial for ber, or friend from assisting a com- I believe these arguments will (and suicide and then the decriminaliza- petent, terminally ill person who should) fail. tion of both suicide and attempted wishes to hasten her death, the law suicide did not come about because violates the due process clauses of the Is There a "Right" to Commit suicide was deemed a "human right" state and federal constitutions and Suicide? or even because it was no longer con- the "Right to Privacy Guarantee" of sidered reprehensible. These changes the state constitution. So far as I know, no state law makes occurred, rather, because punish- If the Michigan Supreme Court either suicide or attempted suicide a ment was seen as unfair to innocent overturns the prohibition against as- crime. Why is this so? And what fol- relatives of the suicide and because sisted suicide on state constitutional lows from this? those who committed or attempted grounds, this particular lawsuit will According to Dan Brock, who sup- to commit the act were thought to come to an end. If, however,as I think ports both physician-assisted suicide be prompted by mental illness.4 likely, the state supreme court up- and voluntary active euthanasia, the Some of this thinking is reflected holds the prohibition, the U.S. Su- fact "that suicide or attempted sui- in the comments to the American preme Court may decide to review cide is no longer a criminal offense in Law Institute's Model Penal Code. the matter. Since approximately virtually all states indicates an accept- The code does criminalize aiding or twenty-five states expressly prohibit ance of individual self-determination soliciting another to commit suicide, in the taking of one's own life but not suicide itself or attempted sui- analogous to that required for volun- cide. not? "There is a certain YaleKamisar is ClarenceDarrow Distin- Why tary active euthanasia." I am not sure moral extravagance in imposing guished at TheUniver- UniversityProfessor what Professor Brock means by "ac- criminal punishment on a Law School,Ann Arbor person sityof Michigan ceptance"; it is an ambiguous term. who has sought his own self-destruc- In context, however, he seems to be tion and YaleKamisar, "Are Laws against Assisted Suicide ... who more properly re- Unconstitutional?"Hastings CenterReport23, no. 3 viewing the fact that we no longer quires medical or psychiatric atten- (1993): 3241. punish suicide or attempted suicide tion."5 32 This content downloaded from 141.211.57.224 on Fri, 9 Jan 2015 15:38:34 PM All use subject to JSTOR Terms and Conditions Hastings Center Report, May-June 1993 Sympathy and pity for the individ- quickest way to refute the belief not a There is no absolute or general ual who attempts suicide "emphati- few may hold that the reason for the "right to die." The only right or lib- cally did not mean approval of the criminal prohibition against assisted erty that the KarenAnn Quinlancase act." From colonial days through at suicide falls into Holmes's category and subsequent so-called "right to least the 1970s, "the predominant is to point to the position taken by the die" rulings have established is the attitude of society and the law has code. Its final "OfficialDraft" was the right under certain circumstances to been one of opposition to suicide."6 product of many years of research, be disconnected from artificial life The Model Penal Code's judgment deliberation, drafting, and revising by support systems or, as many have that "there is no form of criminal the most eminent criminal law called it, the right to die a natural punishment that is acceptable for a scholars of the 1950s and 60s, led by death. And the new Michigan ban completed suicide and that criminal Herbert Wechsler of Columbia Uni- against assisted suicide recognizes punishment is singularly ineffica- versity and Louis B. Schwartz of the that right by explicitly excluding cious to deter attempts to commit sui- University of Pennsylvania. To quote "withholdingor withdrawingmedical cide" (p. 94) does not mean that a leading scholar of the present day, treatment" from its coverage. (It also there is a "right"to commit the act. As the code "has become the principal exempts "prescribing, dispensing or Leon Kasshas pointed out, the capac- text in criminal law teaching, the administering" medication or treat- ity to take one's life-"I have inclina- point of departure for criminal law ment designed "torelieve pain or dis- tion, means, reasons, opportunity, scholarship, and the greatest single comfort and not to cause death, even and you cannot stop me, and it is not influence on the many new state if the medication or procedure may against the law"-does not establish codes that have followed in its wake."9 hasten or increase the risk of death.") the right to do so. Nor does it mean The Model Code's reporters con- In the 1970s, the Quinlan case that one has "ajustified claim against sidered the argument that the crimi- brought the "right to die" issue to others that they act in a fitting man- nality of assisted suicide should turn national prominence and set the ner."7As a practical matter, at least so upon "the presence of a selfish mo- tone for the developments in law and long as they do not resort to physical tive" (a position supported by one of bioethics that followed. But the Quin- violence, parents are "free" to treat its special consultants, England's lan court specifically distinguished their children unkindly, even cruelly. Glanville Williams), but concluded between committing or assisting in a But few, if any, would say that a that "the wiser course is to maintain suicide and what it called "the ending mother or father has a "right"to be a the prohibition and rely on mitiga- of artificiallife support systems"-the bad parent. tion in the sentence when the ground only issue presented.12 Society can do something about for it appears."'0With the stimulus of As one of the leading commenta- those who aid anotherto commit sui- the Model Code, in the next decade tors in this field, Rutgers Law cide-and it has. Throughout our and a half, eight states passed new School's Norman Cantor, recently history we have directed the force of laws specifically prohibiting assisted observed: "The assertion that rejec- the criminal law against aiding or suicide and eleven other jurisdictions tion of life-saving medical treatment assisting suicide.
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