The scope of the Fourteenth Amendment liberty interest: does the Constitution encompass a right to define oneself out of existence? An exchange of views with John A. Powell, Legal Director, American Civil Liberties Union.

[W]e must start from scratch and think every problem through from its very premises to its last implications."(1) Introduction: The Need to "Unpack" the Debate over Euthanasia and Assisted Suicide There are few areas in the law so fraught with euphemism and doublespeak as discussion of the so-called right to die. This is not a happy situation for any number of reasons. Perhaps the most important of these is the need for candor when the topic for discussion is the deregulation of euthanasia and assisted suicide. This exchange of views provides a welcome opportunity for a candid discussion. Let me begin by noting the points on which john powell [sic] and I agree. We share the view that the advancement and protection of individual liberty, human dignity, and the common good require robust and open debate on important issues, careful attention to detail in the drafting of law and public policy, and active oversight of the interpretation and enforcement of the law. Both of us accept the proposition that, subject only to limitations not relevant here,(2) a competent adult is legally free to accept or reject any medical treatment offered, no matter how "beneficial" it may be to that person in the long run. We also agree that, while the provision of "useless" or "excessive" treatment is not required by either law or ethics, reaching agreement on a common definition of the terms useless, excessive, and treatment raises significant legal and ethical questions that are beyond the scope of this particular discussion.(3) Agreement on ultimate goals, however, is rarely the most important component of a political or legal dispute. In most cases it is the initial premise--the manner in which "the problem" is defined at the outset--that determines the nature of the arguments. When viewed from this perspective, our disagreement on the role of law at the end of life is narrow but significant. We start at opposite ends of the legal spectrum. Mr. powell and others who advocate legal recognition of a right to die begin their argument with a presumption that there is an unenumerated civil right to die, and that this right is part of the "liberty" and "privacy" protected by the due process clause of the fourteenth amendment.(4) Given that premise, they argue that individuals not only have the "right" to control the timing and manner of their own deaths, but also that, if the right asserted is to be meaningful for those who are either incapable or unwilling to die by their own hand, they must be free to seek "assistance in dying" from persons who are willing either to supply the means or take whatever action is necessary to cause death. There are both practical and theoretical problems with this formulation. The practical problem is the easier to explain. Whereas john powell simply assumes that the right to die is a fundamental right, the United States Supreme Court has yet to accept the proposition that the right to die as elaborated by Mr. powell is even a constitutionally protected "liberty interest." Writing for the Court in Cruzan v. Director, Missouri Department of Health,(5) Chief Justice William Rehnquist limited the scope of the decision to one question: whether a state may require that the wishes of an incompetent patient respecting decisions to withhold or withdraw treatment must be proved by "clear and convincing" evidence. Holding that such a requirement is permissible,(6) the Chief Justice wrote: This is the first case in which we have been squarely presented with the issue of whether the United States Constitution grants what is in common parlance referred to as a 'right to die.' We follow the judicious counsel of our decision in Twin City Bank v. Nebeker, [citation omitted], where we said that in deciding 'a question of such magnitude and importance ... it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject. …