Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy

Abstract

In Washington v. Glucksberg (2007), the Court declined to find a right to physician-assisted suicide (PAS) in the Constitution. Not a single justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas (2003), holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg.

It is conceivable that the five justices who made up the Lawrence majority - all of whom still sit on the Court - might overrule Glucksberg. For various reasons, however, this seems improbable.

Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states.

Keywords: assisted suicide, death, dying, personal autonomy

JEL Classification: K00, K1, K10