Why Assisted Suicide Wins

The ‘right to die’ is quietly being established in the states.

By Nic Rowan, managing editor of The Lamp.

There’s a feeling of fait accompli about New York’s Medical Aid in Dying (MAiD) bill. Kathy Hochul has not yet signed it, but it is widely expected that the Democratic governor will. If and when she does, its advocates in the state will score a victory that they have been seeking for nearly a decade. The bill’s passage into law will mark a step toward the movement’s ultimate end: to shore up a popular—if not strictly legal—consensus around the “right to die.”

The bill was first introduced in the 2015 legislative session in response to a highly publicized end-of-life saga on the West Coast. In that case, Brittany Maynard, a 29-year-old woman diagnosed with brain cancer, had sought to end her life in California. But in 2014, California’s laws were not favorable to that choice—so she moved to Oregon, which had passed the nation’s first “death with dignity” law in 1997, and obtained a prescription for life-ending drugs. In the final months of her life, Maynard, with the help of a sympathetic press, made herself the face of the right-to-die movement and trained her fire on California’s lawmakers.

“Who has the right to tell me that I don’t deserve this choice?” she demanded in a viral op-ed published the day after her death. “That I deserve to suffer for weeks or months in tremendous amounts of physical and emotional pain? Why should anyone have the right to make that choice for me?”   

The pitch was successful. Not that it was a particularly difficult one to make. It is highly embarrassing in the United States to be caught—or even seem to be caught—denying someone her rights. The year after Maynard ended her life, California’s governor, Jerry Brown, signed the state’s own version of Oregon’s law. Maynard’s case was widely considered the impetus for its passage. 

In the next decade, six other states (and the District of Columbia) followed suit, and in each one a version of Maynard’s plea played a significant part in the debate. New York was no different. An explanatory document attached to the New York bill rehearses the whole Maynard story in miniature and argues that terminally ill patients have a right to control the “how and when” of their deaths. 

“These patients, when mentally competent, should be afforded this right,” it says. “Patients seek to die with dignity, on their own terms, typically in their own homes, surrounded by their family and other loved ones.” 

That all sounds very high-minded. But it is not what is in the actual bill. The text makes no formal reference to a right to die. It is a simple procedural affair permitting doctors to prescribe life-ending drugs without fear of retribution from the state. More than anything else, it is a guide for physicians, patients, family members—everyone involved in the procedure—for how to avoid liability once the patient takes the lethal dose. The questions addressed are mechanical, not moral—even though the issue at stake is fundamentally a question of morality.

Both camps in the debate over medical aid in dying—or assisted suicide, as it was commonly called until very recently—recognize this fact and understand that their respective successes depend on the public’s opinion. Those in favor say that the ability to terminate one’s life is as fundamental a right as the freedom of speech. Ensuring that right is a moral crusade. Those opposed say that it is no right at all, but a perversion of rights in which the “do no harm” tradition of the Hippocratic Oath is inverted and redeployed for nefarious ends. To keep it off the books is a moral imperative. 

The strife between the two groups is bitter. And, except in rare cases, the struggle often goes unseen. Unlike in Canada or England, MAiD is not exactly a national issue in America. In fact, by necessity it is constrained to the state level. There are historical reasons for these constraints, reasons that are bound up in the debate over whether or not there really is a “right to die.” 

Three years before Oregon enacted the Death with Dignity Act in 1997, a group of terminally ill people, led by the physician Harold Glucksberg in the neighboring state of Washington, challenged the state’s ban on physician-assisted suicide, which had been enacted in 1979. They argued that buried deep within the Due Process Clause of the Fourteenth Amendment, there was a “liberty interest” to assisted suicide. In this reading, Glucksberg et al. proposed that the Due Process Clause guarantees personal autonomy and that the ability to choose the how and when one’s death naturally follows from that guarantee.

This legal strategy is likely well known to anyone who follows national debates over abortion. It is more or less the same argument that was successfully used in Planned Parenthood v. Casey at the Supreme Court in 1992. There, a three-justice plurality wrote that “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.” In the Glucksberg case, a Washington district court judge used Casey’s “highly instructive” argument to determine that the arguments made with regard to women’s bodily autonomy apply more broadly to bodies, more generally speaking. Like abortion, the right to physician-assisted suicide was wedged into the heart of liberty. 

“The decision of a terminally ill person to end his or her life involves the most intimate and personal choices a person may make in a lifetime,” she wrote, “and constitutes a choice central to personal dignity and autonomy.”

The decision was challenged and then affirmed in a circuit court ruling. Meanwhile, another case worked its way up through the courts in New York, with a conflicting outcome. As often happens, when there are opposed rulings at the circuit level, the Supreme Court took on the case to resolve the matter. But, as also often happens when the Supreme Court intervenes, the matter was only complicated by these efforts. 

When the court heard Washington v. Glucksberg in 1997, it was unanimous in its opinion. Chief Justice William Rehnquist, writing in the majority opinion, stated that there is no right to assisted suicide “deeply rooted in the nation’s history,” and it could not reasonably be argued that such a right was encoded in the Fourteenth Amendment. So the issue was tossed back to the states. And it has been working its way through individual legislatures ever since.

Once again, to those who follow abortion debates, this is familiar territory. Glucksberg’s reasoning was prominently used a few years ago in Dobbs v. Jackson Women’s Health. There, the court found that just as there is no longstanding tradition of a right to assisted suicide, so too there is no historic right to abortion embedded in the Due Process Clause. Since the right cannot be discerned, it is not protected.

On first glance, it appears that Glucksberg and Dobbs were victories for opponents of assisted suicide and abortion. The reality in practice is much less encouraging. Human beings are by nature reactive, and when some of them push strongly in one direction, others pull with just as much vigor in the opposite. In the two years after Dobbs, the pro-life movement all but collapsed. The pro-choice movement, spurred by its recent defeat, firmed up abortion protections in many states and won unexpected victories in others. The assisted suicide movement was not so successful immediately after Glucksberg—though it is true that Oregon’s law came into effect only months after the decision—but it has made up for its slow start in persistence.

Every year, about twenty states consider medical aid in dying bills. Only one or two pass every so often, but, as any organizer will tell you, consensus is building among lawmakers. After all, it is hard for many state legislators to resist the movement’s arguments. In the recent deliberations over the New York bill, Brad Hoylman-Sigal, its sponsor in the state senate, put the case for MAiD succinctly. The bill, he said, is “not about hastening death, but ending suffering.” When viewed this way, there is no debate to be had. Either you are for suffering or against it. And if you are against it, you are also against every American’s right to life, liberty, and the pursuit of happiness—even if those lofty ideals mean killing oneself. 

Still, the fact remains that the gains the MAiD movement has made fall far short of its goals. Although the majority of Americans say that they believe assisted suicide should be legal, that support doesn’t easily translate into law. And those who make MAiD’s victories possible often do so because they feel they have no choice. Jerry Brown had to be guilted into it, and Kathy Hochul, who faces significant pressure from the Catholic Church in the state to veto the bill, seems to be waiting for a quiet moment to make her move. No matter. Those in the movement are playing a long game, and the momentum is theirs. 

The Supreme Court in Glucksberg worried that legally condoning assisted suicide would put at risk the very people these bills seek to protect. “What is couched as a limited right to ‘physician-assisted suicide’ is likely, in effect, a much broader license, which could prove extremely difficult to police and contain,” Rehnquist wrote in his opinion. To buttress his point, he cited recent studies from the Netherlands showing that what began as a limited experiment in personal autonomy quickly devolved into the state-sanctioned killing of inconvenient people. “Each step, when taken, appears a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance,” he added, citing a previous case dealing with similarly contentious issues.

It is easy to laugh off slippery slope arguments, but in so many cases, they prove prescient. Rehnquist was writing at a time when only one state, Oregon, was haphazardly incorporating assisted death into its laws. Now nearly a quarter of states have some form of the practice on the books, and the ones who adopted it originally are expanding access. Absent a serious change in cultural attitudes toward how to treat the end of life—don’t hold your breath—that number is only likely to grow in the coming years. 

When surveying the field in 2006, Neil Gorsuch, writing in a private capacity, begrudgingly admired the assisted suicide’s movement’s resilience, even as it consistently falls short of a national victory. Its proponents, he wrote, “have a history of carefully choosing to fight discrete and targeted policy battles to avoid total defeat and to build a public consensus along the way toward their ultimate and more ambitious goals.” 

That goal? It’s the same thing the court identified in Glucksberg: “If suicide is to be protected as a matter of constitutional right,” Rehnquist warned, citing Washington’s arguments, “‘every man and woman in the United States must enjoy it.’”