When the Time Comes, I’d Like to Die on My Own Terms—But the Massachusetts Supreme Court Won’t Let Me | Austin Sarat | Verdict

2022 was a bad year for substantive due process claims in US constitutional law. Low point entered Dobbs v. Mississippiwhen the U.S. Supreme Court hammered away at decades of precedent that had established reproductive freedom as a fundamental right under Article 14.Th Editing

in this Dobbs opinion, Justice Samuel Alito insisted that Roe v. Wade was “grossly wrong” in part because the right to abortion was “not deeply rooted in the history and tradition of this nation.”

2022 also marked the 25th.Th The anniversary of a case that helped pave the way for Alito’s narrow constitutional vision.Washington v. Glucksburg. I Glucksburgthe court refused to recognize the right to assisted suicide as a fundamental right because it too was “not deeply rooted in the history and tradition of this nation.”

But in later years GlucksburgCourts in Montana and California have recognized such a right under state law.

If the courts in Montana and California can do it, why not the courts in Massachusetts where I live?

After all, Massachusetts is one of the blue states, so I had high hopes when its highest court was asked last March to recognize the right to assisted suicide under the Massachusetts Declaration of Rights.

Reuters reported that during oral arguments the court “appeared open to legalizing medically assisted suicide in the state as justices questioned why terminally ill patients do not have a constitutional right to control when and how they die.” How to die.”

My hopes have been echoed by scholars, commentators, and even a US Supreme Court justice who have argued that state constitutions and state constitutional traditions can be bastions of liberalism and progressive federalism at a time when the US Supreme Court For many rights claims seem impolite. .

As Justice William Brennan noted in a 1977 contribution to the Harvard Law Review, “More and more state courts are creating state constitutional counterparts to the provisions of the Bill of Rights because the citizens of their states are more entitled than the federal provisions.” Protection is guaranteed, even to those who are uniformly defined.. This is certainly a significant and very important development for our constitutional jurisprudence and our concept of federalism.

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Couldn’t my home state see the logic? Politics suggests that it should.

A 2012 study concluded that the Massachusetts Supreme Court was the 11th most liberal state supreme court in the country. And the Commonwealth is nationally known for historic decisions on same-sex marriage, criminal justice reform, and racial justice.

But Republican Gov. Charlie Baker has nominated all of the judges to the court during his two terms in office. And these appointments are fruitful.

The Boston Globe notes that Baker “presented a centrist Court—or, for some, a particularly illogical Court—that already reflected moderate Republicans’ preference for pragmatism, cooperation, and sometimes caution.” It has started.”

Still, I was deeply disappointed when, on December 19, this court ruled that if I become terminally ill, I will not be able to end my life with the help of a physician.

But before looking more closely at his reasoning, it is worthwhile to reconsider. Glucksburgwhich was a touchstone for the Massachusetts ruler.

I Glucksburgthe Supreme Court was asked to rule on the constitutionality of a Washington state law that “[p]preventing a suicide attempt” a crime. The law said: “A person guilty of [that crime] When he knowingly causes or assists another person to attempt suicide.”

The petitioners, including four physicians, three terminally ill patients and one non-profit, Death with Dignity, argued that the liberties protected by the Due Process Clause of the Fourteenth Amendment “to a mentally competent, terminally ill adult”. Includes personal choice for doctor by – Assisted suicide.

They won in a federal district court, and the decision was upheld by the US Court of Appeals for the Ninth Circuit. Bank.

Re-reading the Ninth Circuit opinion written by Judge Stephen Reinhardt deepened the feeling that I had been let down by my state’s Supreme Court.

Reinhardt recognized that the issue of assisted suicide “raises an extraordinarily important and difficult problem…it requires that we confront the most basic human concerns—the death of self and loved ones—and peacefully and with dignity. Balance the interest in preserving human life against the desire to die.”

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But it concluded that “there is a constitutionally protected liberty interest in determining the time and manner of one’s own death.” “As long as Washington law prohibits physicians from prescribing life-ending drugs for use by terminally ill, competent adults who wish to hasten their own death, the Fourteenth Amendment does violates the due process clause.”

Alas, the Supreme Court gave Reinhardt a short answer, in what one legal scholar called a “woefully wrong” decision.

Chief Justice William Rehnquist stated that the Due Process Clause protects only those fundamental rights and liberties that are objectively deeply rooted in the history and tradition of this nation, and ‘implicit in the concept of organized liberty’, such as ‘ Neither freedom nor justice. If they had been sacrificed, they would have been there

Not surprisingly, he found that “a look at our nation’s history, legal traditions, and practices shows that Anglo-American common law has for more than 700 years penalized or otherwise assisted suicide.” What do I disapprove of?”

Rehnquist offered a familiar, judicial refrain when he concluded, “Across the nation, Americans are engaged in a serious and profound debate about the ethics, legality, and practicality of physician-assisted suicide. We hold that Allows debate to continue, as it should in a democratic society.

Because of Glucksburg While focusing on history and tradition eliminates any hope of recognizing a right to assisted suicide, I was initially pleased to see the Massachusetts Supreme Court decide substantive due process claims under the state constitution. rejected this approach to

Justice Frank Gaziano, writing for the majority, adopted what he called a “more inclusive approach.”

Following this approach, judges must “use sound judgment to determine whether a right is fundamental, even if it has not been expressly recognized in the past, in light of history and precedent.” . And, in a Reinhard-like gesture, Gaziano cautioned that “the exercise of sound judgment cannot be reduced to a mechanical formula.”

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He seemed to be tipping his hand to Rehnquist and Alito when he said their approach held hostage to what Gaziano called “the prejudice that so often haunts our history.” “

But then, in a surprising move, he turns to exactly the same kind of historical narrative. Channling Rehnquist, Gaziano clearly stated that “there is little question that, throughout history, American society has not considered suicide, in any form, an individual right.”

When I read that sentence, I could see the right that I longed to slip away. A few pages more references to how suicide is “perceived” and things only get worse.

Along the way, Gaziano veered between the right to refuse medical treatment and physician-assisted suicide, now widely criticized. He concluded by waiving the right to suicide, or the right to assisted death with dignity, citing “long-standing opposition to suicide” and the “absence of modern precedent” supporting “medical intervention to cause death”. .

Then, going full Rehnquist, Gaziano offered a theory of the democratic process, often unrecognized even in Massachusetts, where the question of whether I should seek the help of a physician to shorten my own death could be resolved. Can “informed … robust discussion and thoughtful” research by experts in the field.”

News reports indicate that state lawmakers plan to introduce a bill in the upcoming state legislative session that would allow Massachusetts to join ten other states and the District of Columbia where medical aid in dying is legal. Similar bills have been introduced every year for the past decade without success. We will soon see if Gaziano’s vision of democracy will die a dignified death in this state.

In the meantime, it’s fair to say that 2022 was a bad year for substantive due process, not just nationally, but in Massachusetts as well.

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