Medical Treatment

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• Medical Treatment

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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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Mahrer v. Roe (1977)

• 1. Claim (A)
• State welfare funding of childbirth, but not
  non-therapeutic abortions violates EP
• Characterized as DP right, claim will necessarily
  fail
• DP rights are negative
• Failure to fund (or otherwise facilitate)
  exercise of a right is not a deprivation of it
• Quasi/Suspect class?
• Women? No, the classification is not based on
  sex
• Indigency? Not based on this either also not a
  SC
• Women seeking abortion? This is the
  classification, but not suspect or quasi-suspect.

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Mahrer v. Roe (1977)

• 1. Claim (A)
• Classification along line of fundamental right
• Persons exercising right lose state benefit,
  while
• Persons foregoing exercise obtain state benefit
• Classification burdens the exercise of fund. rt
• Is this burden permissible or undue?
• Failure to fund is seldom an undue burden
• Contrast other classifications re abortion (e.g.,
  MD licensing)
• State may express own preferences via funding
• Even where practical effect is to foreclose
  abortion
• Harris v. McRae (1980)
• Extends Mahrer to medically-necessary abortion

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2001
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Failure to Fund Fundamental Rights

• When refusal to fund constitutes a denial of an
  EP fundamental right
• Penalty imposed on exercise
• E.g., lose other welfare assistance if obtain
  abortion
• Example Memorial Hospital v. Maricopa Cnty
  (1974)
• Interstate migrants lose right to state-funded
  medical care
• Lack of rational basis for refusal
• Example Plyler v. Doe (1982)
• State loses money (productivity) by refusal to
  fund
• Example Denial of pre-natal care to illegal
  aliens
• Will cost the state money in increased neo-natal
  costs
• Rational for Congress since has additional
  purposes (deter)

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Cruzan v. MO Health Dept (1990)

• 1. Claim (B)
• Forced feeding, hydration respiration
  (extra-ordinary life sustaining treatment)
  violates
• Right to Die
• Right not to be touched
• Rehnquist - Interpretive methodology
• Textualism/Originalism fixed common law
• Informed consent doctrine (unconsented touching
  battery)

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

• 1. Claim (B)
• Reqhnquist - Interpretive methodology
• Dynamic (decisional law developments)
• Extension of right to refuse unwanted medical
  treatment
• Which was itself the product of Originalism
  Non-Interpret.
• OConnor (concur) - Interpretive methodology
• Broad Textualism
• Liberty/Privacy (derived from penumbras) bodily
  autonomy
• Invasion of the body in a literal sense
• Scalia (concur) - Interpretive methodology
• Clause-bound Textualism
• Note he deviates from Michael H, fn.6. Why?

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Cruzan v. MO Health Dept (1990)

• 2. Deprivation? (nature of state interference)
• Forced nutrition/hydration in all cases or
• Court approval required
• Undue burden (Roe) if purpose effect is to deny
  right
• Often, FR cases (DP and EP) bypass this step

Separate Analytical Step Part of Means Analysis
Does requirement of court approval unduly burden the fundamental right? Result is a deprivation of the right. Does requirement of court approval substantially advance a compelling state interest?
where imposed as separate step, Ct. uses lesser
scrutiny
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Cruzan v. MO Health Dept (1990)

• 3. Compelling State Interests
• Preservation of life
• In abstract, yes
• Against competent persons wishes, no
• Safeguard personal element of patient choice
• Yes
• 4. Narrowly-tailored Means
• Heightened evidentiary requirement
• Properly puts risk of uncertainty on those
  seeking to pull the plug

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Cruzan v. MO Health Dept (1990)

• 4. Narrowly-tailored Means
• Constitutional right to substituted judgment?
• I.e., where clear/convincing proof is lacking
• Doesnt MO rule preclude exercise of constl
  right?
• Begs the question
• Brennan (concur)
• States interest in assuring patient choice is
  not a compelling one
• as against patient or her surrogates

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Washington v. Glucksberg (1997)

• 1. Claim (C)
• FR of terminally ill person experiencing great
  pain to end her life or
• Right to commit suicide
• Select level of generality
• Rehnquist uses the broader formulation
• even though he usually uses narrow terms. Why?
• OConnor frames it in narrow terms
• Does she find a FR as so characterized?
• Maybe, but declines to reach issue, because
• Facial vs. As-Applied challenge (Stevens concurs)

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Washington v. Glucksberg (1997)

• 1. Claim (C)
• Right to commit suicide

• Interpretive Methodology
• Textualism/Originalism
• rights deeply rooted in Nations history
  tradition
• no state or common right to commit suicide (when
  ratified)
• Natural Law
• implicit in the concept of ordered liberty, such
  that neither liberty nor justice would exist if
  they were sacrificed
• Dynamic
• Rehnquist rejects as anti-democratic
• Result no FR to commit suicide (or assistance)

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Washington v. Glucksberg (1997)

• 1. Claim (C)
• FR of terminally ill person experiencing great
  pain to end her life - Breyer

• Interpretive methodology
• Dynamic - extension of precedent
• This right might be infringed in future cases
• But not here

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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
• Yes. Washington prohibits practice altogether
• 3. Legitimate State ENDS
• Preservation of human life
• even against persons wishes, because those
  wishes are often influenced by extrinsic factors

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Washington v. Glucksberg (1997)

• Legitimate State ENDS
• Protection of vulnerable groups
• elderly, disabled, impecuniary
• Avoidance of euthanasia
• termination of life (for greater good) w/o
  consent
• 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 vs.
  administering life-ending drugs
• Fundamental rights under EP vs. DP
• Somewhat easier to find, but not often
• Not here
• States legitimate interest preserving life
• Rational means (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.
• S.Ct. granted certiorari.

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