Vacco v. Quill
Supreme Court of the United States (1996)

This Court has warned lower courts not to discover new rights implicit in the Due Process Clause. In Bowers it clearly stated:

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge- made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.

Bowers, at 194-195. The Second Circuit followed this mandate while the Ninth Circuit ignored it. In its forty-eight page opinion, the Ninth Circuit devotes little more than two footnotes to Bowers and baldly asserts that the precedent neither controls nor is inconsistent with its conclusion. Compassion In Dying, 79 F.3d at 813 fn.65. Such disregard for the clear admonition of this Court is troubling and telling; it (along with an inexplicable reliance on polling data to determine current societal attitudes toward suicide, Id., at 810) suggests that the Ninth Circuit panel was sitting as a superlegislature, rather than as a court organized under our constitutional structure.

Respondents and their amici are, at bottom, pressing this Court to ignore its precedents which counsel resistance to expanding the category of fundamental rights. On this basis alone, the Court should rule in favor of petitioners.

In looking to justify the creation of this new liberty interest, the Ninth Circuit relied upon this Court's decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992) which, after reviewing its previous decisions to grant constitutional protection for the fundamental rights of marriage, procreation, contraception, family relationships, child rearing, and education, stated, at 851:

These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, or meaning, of the universe, and of the mystery of human life.

The Ninth Circuit agreed with the district court that these sentences were "highly instructive" and "almost prescriptive" for creating a liberty interest in a person's choice to commit suicide. 79 F.3d at 813 (citations omitted).

It must be recognized that a majority of the justices in Casey indicated their belief that the underlying case of Roe v. Wade was either incorrectly decided or had sufficient doubts regarding its correctness to refrain from reaffirming it on its original (fundamental liberty) grounds. Rather, Casey's majority was formed out of a need to respect the principles of stare decisis, not the ringing reaffirmation of the fundamental right of more than twenty-years earlier. See Casey, 505 U.S. at 854. This makes Casey a most tenuous foundation for minting a new fundamental constitutional right. See Chopko, "Assisted Suicide: Still a Wonderful Life", 70 Notre Dame L. Rev. 519, 576 (1995).

As stated above, this Court has consistently resisted finding constitutionally protected liberty interests and has only done so after a careful and thorough analysis of the right in question. That being the case, it is inconceivable that a few passages found in Casey were intended by this Court as a springboard for courts to employ in the creation of new fundamental rights. That the Ninth Circuit believes so demonstrates how far it has strayed from this Court's precedents.

The Ninth Circuit also based its holding upon Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), in which this Court held that "a competent person has a protected liberty interest in refusing unwanted medical treatments" even where such a refusal will inevitably result in death. Id., at 278. From that narrow statement, the Ninth Circuit conjured a broad right to "hastening one's own death." 79 F.3d at 816. Once again, the Ninth Circuit's reasoning is flawed. The liberty interest discussed in Cruzan was necessarily limited to the refusal of unwanted medical treatment. This is apparent form the Court's derivation of this liberty interest from the well established tort law doctrine of informed consent. By virtue of an individual's right to determine who may treat his own body, the Court derived a corollary right to refuse the treatment of that same body. Id., at 269-270. It is a much greater leap, however, to then conclude that one may seek assistance in afflicting his own body.

Moreover, the Cruzan Court emphasized the narrowness of its holding:

This is the first case in which we have been squarely presented with the issue whether the United States Constitution grants what is in common parlance referred to as a "right to die." We follow the judicious counsel of our decision in Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897), where we said that in deciding "a question of such magnitude and importance" it is the [better] part of wisdom not to attempt by any general statement to cover every possible phase of the subject.

497 U.S. at 277. Consequently, Cruzan ought to be read as limited solely to its factual context "the right to refuse unwanted medical treatment" and not to create a broader right to hasten one's own death.