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

A decade ago, in Washington v. Glucksberg,1 the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented.2 One would expect such a ruling to be quite secure. But Glucksberg faces an uncertain future.The Court also declined to find a right to PAS in the companion case of Vacco v. Quill3 In Quill, the Court rejected the argument that because New York permitted competent persons to refuse lifesaving medical treatment but prohibited competent persons not on life support from doing "essentially the same thing," the state's assisted-suicide ban violated equal protection. As in Glucksberg, there was no dissenting opinion.Despite the apparently clear signal sent by these opinions, ten years later it remains uncertain whether Glucksberg and Quill are in fact still good law. This Symposium will explore many of the issues surrounding the two cases: their place in constitutional doctrine,4 the ways in which they highlight problems in constitutional theory5 and contemporary moral theory6 and their practical effect for physicians and patients.7 Before turning to these pieces, I will lay out the arguments why these cases - especially Glucksberg - could conceivably be overturned, but why, in the end, they are likely to remain good law.I. Why the Court Might Overrule GlucksbergRecent decisions, an expansive recognition of personal autonomy, and the complicated opinions in Glucksberg all undermine Glucksbergs continuing vitality.A. The Potential Impact of LawrenceThe principal reason Glucksberg stands on shaky ground is Lawrence v. Texas® which overruled Bowers v. Hardwick9 and held that " [t]he State cannot demean [the] existence [of homosexuals] or control their destiny by making their private sexual conduct a crime."10 As Brian Hawkins has observed, "Although the Lawrence majority opinion never cited Glucksberg, the aspersions Lawrence cast on Bowers inevitably fell with equal force on Glucksberg"11 - especially the narrow view of substantive due process Glucksberg shared with Bowers.Mr. Hawkins is not the only commentator to call attention to the fact that, despite the heavy damage Lawrence seems to have inflicted on Glucksberg, it failed to so much as cite the earlier case. Two of Lawrence's strongest critics have called this failure a "striking manifestation of Lawrence's haughtiness toward the kind of legal analysis that had become conventional in the case law"12 "The rejection of the Glucksberg test," they continue, "is not only unacknowledged and unexplained, but it is a total rejection."13Glucksberg had insisted, as had Bowers, that in order for a right or liberty to come within the substantive reach of the Due Process Clauses it had to be (1) "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty" and (2) susceptible of a "careful description"14 (whatever that means).15 Although the Lawrence Court did conclude that the historical grounds relied on by the Bowers majority were somewhat doubtful,16 it could not, and did not, claim that the right or liberty at issue was "deeply rooted in this Nation's history and tradition."17As long as Bowers remained on the books, it served as a buffer between the implications of the line of cases originating with Gnswold v. Connecticut18 and any alleged constitutional right to PAS. As Jed Rubenfeld noted almost two decades ago, "The laws struck down under the rubric of privacy have had a peculiar tendency to gravitate around sexuality . . . ."19 If the Court were to build on these cases, the next one was likely to be a case establishing the right of homosexual persons, no less than heterosexual ones, to choose the sexual intimacy they share with adult partners in private. Unless and until such a ruling was handed down, any constitutional right to PAS seemed far away20Bowers seemingly brought the development of privacy to an abrupt halt. …