In Washington v. Glucksberg, the Supreme Court held that, even as applied to persons who are terminally ill and mentally competent, substantive due process liberty does not include a right to commit suicide with a physician’s assistance. The majority opinion in Glucksberg reached that result by applying what it claimed was the Court’s “established method,” under which an unenumerated fundamental right will be recognized only if, when carefully described, it can be said to be “deeply rooted in this Nation’s history and tradition.” The Court’s same-sex marriage decision in Obergefell v. Hodges, however, pointedly refused to use the tradition-centric Glucksberg method. Instead, the Obergefell standard “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Contra Glucksberg, “[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries.”
Although Obergefell unquestionably limits Glucksberg’s applicability in future cases, it remains to be seen whether it “effectively overrule[s] Glucksberg,” as Chief Justice Roberts suggested in dissent. The Obergefell majority declared that Glucksberg’s approach “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy,” but it also said that the Glucksberg approach “may have been appropriate for the asserted right there involved (physician-assisted suicide).” If – for reasons of stare decisis or otherwise – the Court adheres to the Glucksberg approach in the context of physician-assisted suicide, we can be confident it will not recognize that right as fundamental.
But what if the Court were to re-examine physician assisted-suicide using Obergefell’s “reasoned judgment” approach? Would that make it likely, as some have suggested, that the Court will constitutionalize physician-assisted suicide under at least some circumstances? This essay argues that the reasoned-judgment approach lends little support to a fundamental right to physician-assisted suicide. Obviously, the reasoned-judgment standard does not rule out a fundamental right to physician-assisted suicide in the straightforward way the Glucksberg test does. Nevertheless, there are powerful arguments that should impel the Court to a “reasoned judgment” against establishing a fundamental right to physician-assisted suicide. Given the legality and availability of aggressive palliative care, the individual interests of terminally ill, competent patients are not weighty enough to warrant prima facie recognition of such a right. Even more clearly, countervailing state interests such as protecting vulnerable patients from “abuse, neglect, and mistakes” would in any event justify the states in overriding it.