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Is advocating suicide a crime under the First Amendment?

Two different cases raising similar issues about advocating suicide may shape US policy for years to come. In Massachusetts, Michelle Carter was sentenced to two and a half years in prison for urging her friend Conrad Roy not to abandon his plan to kill himself by inhaling carbon monoxide: “Get back in that car!” she texted, and he did. The Massachusetts Supreme Judicial Court has already ruled that prosecuting her for involuntary manslaughter was permissible, even though she was not on the scene. The Massachusetts Supreme Judicial Court was careful to insist that its holding did not criminalize assisting the suicide of a person with a terminal illness:

It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life.

And now the case of Final Exit v. Minnesota is before the Supreme Court, with Final Exit asking the Supreme Court to take the case and overturn its conviction for assisting the suicide of Doreen Dunn on First Amendment grounds. Notably, no individual was convicted in that case: the medical director was given use immunity to testify against the organization, which was found guilty of the crime, and was fined $30,000.

Final Exit was convicted under an interpretation of the assisted suicide law first outlined in a different case, Minnesota v. Melchert-Dinkel. In that case, the Minnesota Supreme Court held that “advising” or “encouraging” an individual to commit suicide was protected First Amendment activity, but “assisting” suicide, including “enabling” suicide by instructing a specific person how to do it, could be criminalized. Mr. Melchert-Dinkel struck a deal with prosecutors, and therefore never appealed his conviction.

Both the Carter case and the Final Exit case involve the issue of the limits of criminalizing speech.

Final Exit has asked the Supreme Court whether Minnesota’s criminal prohibition of speech that “enables” a suicide violates the First Amendment. The Supreme Court has not yet decided whether to accept the case.

Both the Carter case and the Final Exit case involve the issue of the limits of criminalizing speech, and in both cases, the defendants foresaw and even intended that the people with whom they were communicating would die. There are several noteworthy distinctions between the two cases. In the first place, Conrad Roy’s competence to make the decision to die was (at least on the face of the court decisions) far more questionable than that of Ms. Dunn in Minnesota. The Massachusetts Supreme Judicial Court put great emphasis on his vulnerability and fragility. Relatedly, and crucially, Conrad Roy was wavering, and Michelle Carter put her thumb—indeed, her entire fist—on the pro-suicide scale. First amendment purists might say this makes no difference, and indeed criminalizing her speech constitutes viewpoint discrimination, the worst kind of First Amendment violation. Criminal lawyers, on the other hand, might argue that Roy’s ambivalence provides support for the contention that Ms. Carter caused his suicide. Final Exit argues that they did not coerce or pressure Ms. Deen; they provided information and comfort and support, but not persuasion.

Promoting the agency of competent individuals is good, even if they make decisions that we would not make.

Whether suicide or assisted suicide, this issue is not only about speech, but also fundamentally about individual agency. Promoting the agency of competent individuals is good, even if they make decisions that we would not make. Overriding a person’s will, whether by keeping him or her tethered to a life-support machine or haranguing him to get back in the car and die, is different from assisting him or her to implement a decision made thoughtfully and carefully.

Given Justice Gorsuch’s interest in and familiarity with the assisted suicide, and his announcement of his perspective through books and articles, it will be interesting to see whether the Court accepts the Final Exit case. Michelle Carter’s lawyers have promised to appeal on the issue of whether her texts and communications with Conrad Roy constituted protected speech, although the 2016 Massachusetts Supreme Judicial Court decision appears to have largely foreclosed that avenue of appeal. As more states legalize assisted suicide, this issue will continue to recur, and these early rulings have the potential to shape policy around the country.

Featured image credit: Lady Justice by jessica45. CC0 public domain via Pixabay.

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