When Justice Anthony Kennedy wrote the majority opinion in Obergefell v. Hodges, finding a constitutional right to gay marriage, advocates of physician-assisted suicide had almost as much reason to celebrate as gay citizens who had been longing to marry. Physician-assisted suicide, or aid in dying, is the option currently available in five states for competent terminally ill people with less than six months to live to obtain lethal medications from physicians in order to choose the time and manner of their deaths. The New Mexico Supreme Court is expected to decide soon whether the state constitution provides a constitutional right to physician-assisted suicide for terminally ill New Mexicans. Odd as it may seem, the Supreme Court’s decision in Obergefell may well have helped advocates of the right to physician-assisted suicide.
Even stranger are the bedfellows created by this case: supporters of aid in dying may cheer Justice Roberts’ dissent in Obergefell because of his uncompromising stance that the majority’s analysis supporting a right to gay marriage necessarily overrules the framework of a decision almost twenty years earlier finding no constitutional right to assisted suicide.
In 1997, the Supreme Court held that there was no constitutional right to physician-assisted suicide in Washington v. Glucksberg. The proponents of the right to physician-assisted suicide argued that the right to liberty included the right of terminally ill people to choose the time and manner of their death. Justice Rehnquist reframed this as a right to commit suicide, and held that no such right existed because suicide had been rejected by the “history and tradition” of the United States. Essentially, the Court held that constitutional due process rights could only exist if they were part of the long-standing history and tradition of American society. It does not take a keen legal mind to see how awkward this analysis might be for proponents of a constitutional right to gay marriage. Homosexual activity remained criminalized long after criminal penalties for suicide and attempted suicide.
So how to constitutionalize the right to gay marriage while maintaining the due process analysis of Glucksberg, which leaned so heavily on public attitudes throughout history? Justice Kennedy’s efforts to distinguish Glucksberg were pretty weak. He conceded that “Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices.” But, he insisted, “…while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”
This is skating pretty close to adopting different due process approaches depending on a Justice’s policy preferences, and Justice Roberts would have none of it. He asserted that Obergefell amounts to a reversal of the analysis (and thus possibly the result) of Glucksberg.
This was not just a lofty hypothetical argument about due process theory. Less than three months later, the New Mexico Appellate Court, facing an argument that the state constitution supports a right to physician-assisted suicide, spent a significant proportion of its decision parsing how Obergefell affected the right to physician-assisted suicide. In Morris v. Brandenberg, the majority rejected the argument that Obergefell overruled Glucksberg; Judges Garcia and Hanisee were content to take Justice Kennedy at his word without too much explanation. Dissenting Judge Vanzi, however, spent eight pages meticulously demonstrating how the due process analysis of Obergefell—that rights evolve, and are not limited by history and tradition—must necessarily support the claim of a right to choose the time and manner of one’s death.
Morris v. Brandenberg is now before the New Mexico Supreme Court, which recognized a state constitutional right to gay marriage in 2013, Griego v. Oliver. The likelihood is that this court will become the first state Supreme Court to find a right to physician-assisted suicide, and if it does, you can bet that this case will contain numerous citations to the US Supreme Court’s recognition of a constitutional right to gay marriage.
Update by the author, 5 July 2016: The New Mexico Supreme Court, following the lead of courts in New York, California, Florida and Alaska, deferred to the Legislature to decide a topic as controversial as assisted suicide. “It is clear,” said the court in Morris v. Brandenberg, “that such a right cannot be defined without comprehensive legislation.” As I predicted, the New Mexico high court spent a lot of space discussing Obergefell. Although agreeing with Justice Kennedy that assisted suicide is different from determining the time and manner of one’s death, unlike Justice Kennedy, the majority in Morris elaborated on why it is different. The one that they (and I) consider most important is that, regardless of the attempts of plaintiffs seeking the right to limit it to the terminally ill, in the long run, if the right exists as a matter of due process, it cannot be so limited. It’s either for everyone, or for no one. They also believe (I am less convinced of this) that a constitutional right to assisted suicide would create a very high risk of voluntary and involuntary euthanasia. If advocates of physician-assisted suicide cannot win in courts in New York, California, and the Democrat-heavy Supreme Court of New Mexico, legislative initiatives may be their best bet after all.
Featured image credit: Pills by kev-shine. CC BY 2.0 via Flickr.