Medical Treatment / Right to Die

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• Medical Treatment / Right to Die

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Framing the Analysis

• Do persons have a fundamental right to
• State-funded medical services?
• Refuse life-saving medical treatment?
• Physician-assisted suicide?
• When does regulation/classification of the right
  amount to a denial or deprivation?
• Is the state interest compelling? (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS?

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A. State-funded medical services

• Mahrer v. Roe (1977)
• For poor women, State funds childbirth, but not
  (non-therapeutic) abortions
• General rule
• Failure to fund (or otherwise facilitate) the
  exercise of a fundamental right is not a
  deprivation of it
• There are no positive rights under DP only
  negative
• Equal protection rule
• Rights can also be fundamental for EP purpose
• There are some (few) positive rights under EP
  (eg, educatn)
• Harris v. McRae (1980)
• Extends Mahrer to medically-necessary abortion

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2001
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Framing the Analysis

• Is there a fundamental right to terminate ones
  own life?
• Right to refuse life-sustaining medical treatment
• Right to physician-assisted suicide
• Other medical rights issues
• Right to state-funded medical care
• Right to palliative treatment
• medical marijuana

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B. Refuse medical care?

• Cruzan v. MO Health Dept (1990)
• Nancy Cruzan in Persistent Vegitative State
• Parents (next friend) sue hospital to remove
  feeding tubes from comatose daughter
• Claim Forced feeding, hydration respiration
  (life sustaining treatment) violates Cruzans
• Right to Die
• Right to Refuse Treatment

which substantive due process formulation is more
appropriate?
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Cruzan v. MO Health Dept (1990)

• How should the SDP right be framed?
• Genl rule 1 court should not decide issues that
  arent before them
• State the issue in as narrow a way as would
  permit the court to decide the case
• Genl rule 2 avoid unprincipled distinctions
• if there is no principled distinction between
  different formulations of the right, the court
  should state it in broader terms avoids
  uncertainty and litigation
• Right to die (in abstract, or if terminally ill)
• Right to refuse unwanted medical treatment

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Cruzan v. MO Health Dept (1990)

• Right to Refuse Unwanted Medical Care
• Rehnquist (using an originalist approach) finds
• right to refuse touching in the informed consent
  doctrine (unconsented touching battery)
• OConnor (concur) (Broad Textualism)
• Liberty/Privacy (from penumbras) bodily
  autonomy
• Invasion of the body in a literal sense
• Applying Strict Scrutiny
• Compelling ENDS preserving life
• Necessary MEANS proof of patients desire
• Court upholds tough evidentiary requirements

Living will California Advance Health Care
Directive Act
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Terri Schiavo Law

• RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO
• Section 1 - The United States District Court for
  the Middle District of Florida shall have
  jurisdiction to hear, determine, and render
  judgment on a suit or claim by or on behalf of
  Theresa Marie Schiavo for the alleged violation
  of any right of Theresa Marie Schiavo under the
  Constitution or laws of the United States
  relating to the withholding or withdrawal of
  food, fluids, or medical treatment necessary to
  sustain her life.

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C. Washington v. Glucksberg (1997)

• How should right be framed?
• Right to defines ones existence
• Right to die
• Right to physician-assisted suicide
• Right of terminally ill person in great pain to
  end her own life

broader
narrower

• If the right is for a terminally ill person to
  end her own life, and the state prohibits
  assistance, then that would be analyzed under the
  undue burden (deprivation) test (See last
  paragraph, p. 679)

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Washington v. Glucksberg (1997)

• How should right be found?
• Rehnquist adopts modified originalism
• practices at time of adoption both illuminated
  and ... modified by history and tradition
• assisted suicide criminalized at common law
• serious debate currently underway in legislative
  bodies re-examining the prohibitions
• OConnor
• right may be broader than found by majority
  (i.e., terminally ill patient avoiding pain while
  dying), but
• not presented in this facial case because these
  patients have access to sufficient drugs

NB Reqhnquists version of deeply rooted in
history and tradition not quite as narrow as
Scalias fn.6
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Facial vs. As-Applied Challenges

• Facial the law, in all of its applications, is
  incap-able of being applied in a constitutional
  manner
• Examples legislature lacks power to enact
  stated interests are inadequate law has
  chilling effect
• As-Applied the law, while constl in some
  respects, is unconstl when applied to these
  facts
• Examples laws applied in a discriminatory
  manner zoning law that deprives viable use in
  specific case
• Which is this?
• Law prohibiting assisted suicide not facially
  unconstl
• If applied to bar paliative care, might be
  unconstl, but
• Not presented here because plaintiffs have access
  to drugs

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Washington v. Glucksberg (1997)

• Stevens (concur)
• Rejects Rehnquists originalism, in favor of
• Far broader and more basic concept of freedom
• right to dignity to define ones own life
• constitutional as applied here, but may not be
  elsewhere
• Breyer (concur)
• Rejects narrow construction of right, in favor of
• right to die with dignity
• personal control over ones manner of death

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Washington v. Glucksberg (1997)

• Souter (concur)
• Interpretivist method
• textualism (broad? narrow?)
• traditions (both adopted rejected)
• Degree of Scrutiny
• variable states interest/means must match the
  importance of the right
• Justice Marshall advanced a similar approach in
  Rodriguez v. San Antonio
• Sliding scale The further from a core textual
  right, the lesser showing needed by the state
• Has this been adopted in practice, if not in
  theory?

Isnt Souters approach more sensible? Variable
rights scrutiny?
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Washington v. Glucksberg (1997)

• 1. Claim (C)
• Distinguishing Cruzan
• Formalistic distinction between refusing
  treatment and demanding treatment is recognized
  by C.L.
• 2. Deprivation
• Not as applied to these cases?
• 3. Legitimate State ENDS
• Preservation of human life
• even against persons wishes, because those
  wishes are often influenced by extrinsic factors

In construing the state laws as not (as applied)
depriving a fundamental right, has the court
re-written those laws?
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Washington v. Glucksberg (1997)

• 3. Legitimate State ENDS
• Integrity of medical profession
• Protection of vulnerable groups
• elderly, disabled, impecuniary
• Avoidance of euthanasia
• termination of life (for greater good) w/o
  consent
• Souter believes this outweighs petitioners
  interests
• 4. Rational MEANS
• Banning vs. regulating is reasonable
• avoids risk of error, other pressures

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Vacco v. Quill (1997)

• Right to die in equal protection context
• Withholding life-sustaining treatment (ok) vs.
  administering life-ending drugs (barred)
• Fundamental rights under EP vs. DP
• Somewhat easier to find, but not often
• Not here
• States legitimate interest preserving life
• Rational means (of the classification)
• Based on causation

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Gonzales v. Oregon (2005)

• State permits death with dignity
• for terminally-ill patients
• with procedural safeguards
• Any fundamental rights affected?
• Can Feds preempt this state law?
• If federal law prohibits the use of drugs for it
• Ninth circuit ruled that DoJ exceeded delegated
  power in promulgating regs.
• Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir 2004)
• S.Ct. granted certiorari.

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(No Transcript)
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The Mercitron