As of 2024, 8,700 terminally ill Americans since 1997 have chosen death. In January 2024, terminally ill cancer victim Lynda Bluestein became one of those 8,700. Bluestein, a resident of Connecticut, where medically-assisted suicide is not allowed, reached a settlement with Vermont, one of 10 states that permits doctor-assisted suicide, to allow out-of-state residents to take advantage of the state’s protection for terminally ill patients to end their own lives. Before her death, Bluestein explained, “I wanted to have agency over when cancer had taken so much for me that I could no longer bear it. That’s my choice.”
Background:
However, in Washington v. Glucksberg (1997) the Supreme Court found that terminally ill patients like Bluesteindid not have a protected federal right to to choose how and when to die through medically assisted suicide, and instead left it to state legislatures to enumerate this right.
Dating back to 1854, Washington’s territorial legislature first banned “assisting another in the commission of self-murder.”[1] Nearly 150 years later, in 1994, the state’s position on the issue remained unchanged, with state law criminalizing the promotion of suicide as a felony punishable by up to five years in prison or a hefty fine up to $10,000. According to the 1994 state statute, promoting a suicide attempt is defined as “when he or she knowingly causes or aids another person to attempt suicide.”
This prohibition of assisted suicide was taken to the courts by four Washingtonian physicians along with three terminally ill patients in 1993. Relying on Planned Parenthood of Southeastern Pa. v. Casey and Cruzan v. Director, Mo. Dept. of Health, the respondents argued that assisted suicide was a liberty protected by the Fourteenth Amendment. The state law banning medically-assisted suicide, the process by which a terminally ill patient takes medication to end their life with the support of medical professionals, was found unconstitutional by the District Court.[1] [2] The Ninth Circuit affirmed the District Court, but the Supreme Court ultimately found medically-assisted suicide constitutional in Washington v. Glucksberg.
Argument:
In Glucksberg the court used two main arguments that medical assisted suicide was not a fundamental, inalienable right, and thus was not protected under the first section of the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.”[2] In short, Glucksberg asserted that a fundamental right had to be established in the nation’s history and the right needed to be “carefully described.”[3] These requirements departed from the precedent set by Poe v. Ullman that there cannot be a formula to determine which rights should be protected under substantive due process. [4] Yet looking at subsequent treatment on the first of the two requirements from Glucksberg reveals how the treatment of fundamental rights has been inconsistent.
In the first part of their requirements as to what is protected, the Court claimed that the Fourteenth Amendment “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”[5] The court lays out substantial evidence that the right to medically-assisted suicide is not deeply rooted in the history of the U.S. and has been historically discouraged and outlawed, citing legislation ranging from 1647 Providence Plantations legislature declarations that that “[s]elf-murder is by all agreed to be the most unnatural”[6] to a 19th-century law in Connecticut which stated that “[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal.”[7][3] [4] [5]
There is no dispute that historically this right to suicide, or medically-assisted suicide specifically, is not “rooted in this Nation’s history and tradition.” However, this requirement laid out by the Court in Glucksberg has not been followed in later cases, indicating that subsequent benches viewed Glucksberg as an erroneous interpretation of the Due Process Clause. Examples of cases that break with the history and tradition of the nation are countless, including Obergefell v. Hodges and Lawrence v. Texas, demonstrating that Courts found Glucksberg’s test faulty, disregarded the precedent, and used new due process analysis.
Prior to the landmark case Obergefell v. Hodges (2015), the right to marry someone of the same gender was not rooted in the history and tradition of the US. While the first domestic law explicitly defining marriage as “between a man and a woman” was a 1973 Maryland state family law, in British common law, which the Founding Fathers took inspiration from in the creation of US law, marriage has been implicitly defined as being between a husband and wife. In Sir William Blackstone’s 1765 Laws of England, vol. 1 The Rights of Persons, he defined how “by marriage, the husband and wife are one person in law.” Yet, with that history in mind and with Glucksberg as precedent, the Supreme Court in Obergefell still ruled that the “state [must] license a marriage between two people of the same sex,” under the Due Process Clause of the Fourteenth Amendment and supported by the Equal Protection Act.[8]In the opinion, the majority even acknowledged that “the history of marriage is one of both continuity and change,”[9] directly opposing the importance of a fundamental right being deeply rooted in the nation’s history. While the justices in Obergefell directly acknowledged Glucksberg’s requirement for rights to be carefully described, the majority’s acknowledgment of changing circumstances opposed the requirement of being rooted in the nation’s tradition.[10]
Again, in numerous cases that followed Glucksberg, rights were protected under the Due Process Clause that were not rooted in tradition. For example, the US has had a long history of restrictions on with whom individuals can engage in sexual intimacy, with sodomy laws dating back to the 1600s. As late as 1976, in the case Doe v. Commonwealth Attorney of Richmond, the Supreme Court upheld sodomy laws. Thus, the groundbreaking decision in Lawrence v. Texas (2003), a mere six years after Glucksberg, breaks with the requirement of a right rooted in US tradition, as it had long been tradition to restrict this right.
While it appears that the first requirement established in Glucksberg stands alone, as subsequent cases have disregarded the notion that fundamental rights must be rooted in the nation’s history, the conversation surrounding the Glucksberg test was reinvigorated in 2022 with the landmark decision Dobbs v. Jackson. In the case, the majority cited Glucksberg saying that abortion as a right not explicit in the constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” to be protected.[11] The court thus found that despite 50 years of precedence from Roe v. Wade, a protected right to abortion was not deeply rooted in this Nation’s history and tradition, and therefore it was not a fundamental right, so the decision whether to ban it must be turned over to the state legislatures. The majority ignored the Court’s own stance from mere years earlier in Obergefell that deciding what classifies as a fundamental right cannot be “reduced to any formula.”
Dobbs becomes even more pressing in the context of Glucksberg because in Justice Kavanaugh’s concurrence, he assures that overruling Roe “does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”[12] However, the rejection of the Glucksberg test in many subsequent cases casts doubt on that assurance. Justice Kavanaugh even specifically lists Obergefell v. Hodges as remaining unaffected by the decision in Roe. However, Kavanaugh’s reassurance is in direct opposition to Justice Thomas’s concurrence, which states, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”[13] Considering that the supposed fundamental rights in the cases of Lawrence and Obergefell have decidedly not been deeply rooted in the nation’s history and both outright disregard the precedence of the Glucksberg test, Kavanagh’s statement seems unreliable at best. With little reasoning to his differentiation between Dobbs and other fundamental rights cases, Clarence’s hesitancy on the protected status of previously established fundamental rights seems especially powerful.
Conclusion
In 1997, it may have seemed like the decision made in Glucksberg affected only the terminally ill patients. However, in light of Dobbs, and considering that subsequent fundamental rights cases have set aside the requirements of the Glucksberg test, Glucksberg may now play a prevalent role in the lives of most Americans. Given Dobbs‘ reliance on Glucksberg to overrule Roe, it is more important than ever to closely observe how the Court addresses past precedent that directly impacts millions of Americans. But for terminally ill patients like Lynda Bluestein, it does not seem like the Court is in favor of getting their rights federally protected by the Supreme Court anytime soon.
[1] Washington v. Glucksberg, 521 U.S. 702, 707 (1997).
[2] U.S. Const. amend. XIV, § 1.
[3] Glucksberg, 521 U.S. at 703.
[4] Poe v. Ullman, 367 U.S. 497, 543 (1961).
[5] Glucksberg, 521 U.S. at 703.
[6] The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations, 1647-1719, Volume 1 (pg 19)
[7]A Digest of the Laws of the State of Connecticut (pg 270)
[8] Obergefell v. Hodges, 576 U.S. 644, 654-660 (2015).
[9] Id. at 650.
[10] Id. at 662.
[11] Dobbs v. Jackson, 597 U.S. ___, 13 (2022).
[12] Id. at 133.
[13] Id. at 119.