THE CONSTITUTIONAL RIGHT TO SUICIDE: A LEGAL AND PHILOSOPHICAL EXAMINATION, by G. Steven Neeley. New York: Peter Lang Publishing, Inc., 1994, 1996. 229 pp. Cloth $41.95.
Reviewed by Donald A. Downs, Department of Political Science, University
of Wisconsin, Madison
As the population ages and medical technology advances, more and more individuals and families find themselves confronted with a very personal and difficult choice: to continue living with great pain and suffering or loss of dignity, or to accept a timely death. But many individuals who choose to die are unable to do so because of laws against assisted suicide and euthanasia. G. Steven Neeley takes up the gauntlet for people trapped in this predicament in THE CONSTITUTIONAL RIGHT TO SUICIDE. The book is timely, for the United States Supreme Court is about to decide whether there is a constitutional right to suicide.
Neeley begins the book with a noteworthy treatment of the contemporary case law (which unfortunately omits the cases before the Supreme Court due to the timing of publication). This beginning is followed by a somewhat less satisfactory discussion in Chapter Two of the historical status of suicide in different cultures, the works of philosophers, and the common law. Chapter Two does not handle the historical treatment of suicide with sufficient contextual sensitivity (for example, Neeley too cavalierly dismisses St. Augustine’s proscription of suicide because it would violate the Establishment Clause, as if that is the end of the matter). But Chapter One builds a strong foundation for Neeley’s argument, as he illuminates how the law fails individuals who cry out for help.
Neeley presents cases of permanently comatose patients whose deaths are either imminent or non-imminent (pp.10-12), and cases of individuals in agony, such as a 73 year-old patient who suffered excruciating pain from the mechanical respirator attached to his trachea (State v. Perlmutter, p. 13). He also delves into more troubling cases that concern "quality of life" more than pain. In McKay v. Bergstedt, a mentally competent non-terminal quadriplegic sought the removal of his respirator, a move that would cause his death. "Although the petitioner led an otherwise useful and productive life, when faced with the imminent death of his father, he became concerned with the quality of his future life." (14)
To accommodate all such patients, Neeley argues for a right to suicide that goes considerably beyond the carefully crafted rights that courts and legislatures have promulgated in recent years (the two cases before the Supreme Court were the first to venture well beyond this line in 1995). The Supreme Court (in CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 1990), Congress, and state legislatures now recognize the basic right to refuse unwanted medical treatment on the grounds of freedom of religion and the right to prevent unwanted invasions of the body. Such cases and legislation also draw a firm line between killing and letting die, a policy with deep roots in Western law that derives from the distinction between commissions and omissions. Another set of distinctions also prevails: whereas states have decriminalized suicide to a significant extent, thirty-four states still prohibit assisted suicide (voluntary passive euthanasia), and none allow active euthanasia.
Neeley contends that these policies do not go far enough, and that the Constitution should fill the void. "At best, the individual could request medication for relief of pain while refusing nourishment or other medical treatment until he eventually succumbs to his disease or starvation. Forcing persons to remain alive against their wishes and best interests—even if only for a relatively short period of time—is not optimally humane and violates the right to personal autonomy which lies at the foundation of the Constitution." (p. 22)
In the pivotal Chapter 3, Neeley analyzes the constitutional rights to privacy and autonomy and concludes that a proper understanding of case law requires a "positive" right to suicide (i.e., to attain assistance or have someone kill you). This right is dictated by the Constitution’s "core commitment to an inchoate right of personal autonomy which preserves the right of the individual to master his own fate." (P. 80) Neeley’s logic resembles that of the Ninth Circuit in one of the cases before the Supreme Court, in which Judge Stephen Reinhardt quoted from the 1992 Supreme Court abortion case (PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY): "At the heart of the liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the mystery of human life." In an unusual "Philosophers’ Brief" for the Supreme Court case, several prominent philosophers present a similar argument, albeit in less flowery language than Reinhardt.
In Chapters 4 and 5, Neeley wrestles with more cases and some legal and philosophical literature on both sides of the debate, including claims about the integrity of the medical profession and the "slippery slope" concern that the new constitutional right will open the door to unprincipled euthanasia, Nazi style. Neeley defends his position against such claims. "If one explicitly restricts one’s advocacy to VOLUNTARY euthanasia, then one can hardly be vulnerable to the charge that one’s advocated position logically entails involuntary euthanasia or Nazi programs of non-euthanasian murders." (p. 152) His case is philosophically indebted to the neo-Kantianism of legal theorist David Richards, who premises his position on "the deeper theory of autonomy, Kant’s central contribution to ethical theory." (p. 179)
Neeley’s book makes as strong a case on "autonomy" grounds as one can make, but, in this reviewer’s opinion, it will not persuade skeptics. His philosophical response is truncated. For example, he does not deal with Yale Kamisar’s well-known and powerful "slippery slope" critiques, which began back in 1958. Kamisar maintains that once you move beyond the right to refuse medical treatment, you will encounter no nonarbitrary basis from which to draw the next line. Such territory is treacherous ground upon which to build a new constitutional right.
Neeley seems too insouciant about the ability to hold the line, especially in the context of the extraordinary pressures to control medical costs that have arisen in the new age of "managed care." He does not discuss the messy business of application that already witnesses ethics boards consisting of cost-conscious moral "philosophers" making decisions of life and death. The right he wants the courts to enforce applies only in cases of voluntariness. But what about the many patients who prevaricate or are ambivalent? What is their status in this new pressure-packed environment? Neeley rightly assumes that individuals are presumably rational and responsible for their own decisions; his analysis in Chapter 6 of why those who want to commit suicide are not normally insane is excellent. But the pressures that now surround the decision to die challenge Neeley’s presumptions concerning voluntariness. Rigorous controls would have to be established, a matter that Neeley does not explore.
Even if Neeley’s position ultimately convinces from a policy perspective, it does not follow that the Supreme Court should make it a constitutional right. Like Ronald Dworkin (a contributor to the "Philosopher’s Brief"), Neeley’s constitutional interpretation and theory of "autonomy" are premised on a "deeper theory" that entails a high level of generality and abstraction. But the jurisprudential history of rights adjudication has consisted of a dialectical tension between individual autonomy and the collective judgments of the democratic community. Strong individual rights like freedom of speech have emerged out of this tension because of their clearer status in the written Constitution and because of the logic that has developed out of the dialectic of constitutional interpretation. But constitutional interpretation at the high level of generality championed by Dworkin and Neeley seldom satisfies because it takes place in a vacuum that does not heed the Supreme Court’s obligations to the constitutional scheme. The "deeper" the Court pushes the abstract right to privacy, the more the Court resembles the Sorcerer’s Apprentice.
The broad right to suicide runs counter to the considered opinions of courts, legislatures, and the medical profession (in comparison, the medical profession was in the forefront of the movement to legalize abortion). And it would be a constitutional oddity. For example, in the New York and California cases before the Supreme Court, the Circuit courts ruled that the right to suicide must be accompanied by legal procedures to ensure voluntary and accurate decisions. As Jeffrey Rosen remarked in THE NEW REPUBLIC, "What an odd constitutional right that judges invent, and then command the state legislatures to restrict!" (June 24, 1996) Finally, Justice Black argued in the Griswold privacy case (1965) that the power to create new, non-textual rights logically includes the power to restrict or remove textual rights. Is it a coincidence that as the right to privacy has grown, the Fourth Amendment (the clearest textual basis for that right) has shriveled?
But even if one disagrees with the constitutional conclusion and the scope of the right as Neeley defines it, Neeley’s probing and passionate plea for the right to suicide should provoke serious thinking and reconsideration. If the Supreme Court would be wise to keep the right out of the Constitution, this does not mean that legislatures and the medical profession should turn their heads. Despite the constitutional problems, Neeley makes a strong case for meaningful policy reform, including that which falls short of his absolutism. THE CONSTITUTIONAL RIGHT TO SUICIDE will sharpen one’s thinking on the issue, pro or con.