Constitutional Law

The Right To Die

The law can accommodate the rational choice to end your life, but moral correctness has prevented these rational choices for far too many.

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The United States Supreme Court has rejected the argument that a constitutional due process right to suicide exists. Nevertheless, an increasing number of states are passing or have for long now implemented due process rights for the terminally ill to exercise a greater measure of control over their own death. It is important to stress that the state due process rights I am discussing here are entirely limited to a class of individuals that are terminally ill. In other words, these laws are aimed to aid those who are already “dying in hospitals, full of tubes,” sometimes for weeks in agony as horrified friends and family are forced to bear witness to their pain.

Granting dying patients the power to determine when their lives will end has long been a serious point of contention with some American religious groups who view these right to die laws as government embracing a “culture of death.” Well-known right to die activists such as Jack Kevorkian have countered that religious ethics should not subvert sound medical reasoning. As of now, the argument against establishing right to die laws remains the dominant American position as only six states and the District of Columbia currently allow physicians to prescribe medications that hasten death. Another, more blunt way to put it, is that a theological belief is forcing millions of families and individual Americans to endure needless suffering that most of us spare our pets.

On its face, the religious objection to right to die laws is based on an otherwise morally praiseworthy worldview that all human life is sacred. Understanding how this seemingly positive belief became the chief impediment to ending so much needless human suffering presents a great lesson in the underlying conflict between science and dogmatic belief.

To be clear, I do not think this conflict needs be a zero-sum game. Indeed, the Constitution provides a great blueprint for how religious faith and science can interact in the same space to overall mutual benefit. Moreover, a strong argument can be made that a constant state of tension is how our market of ideas should function under. That said, I do agree with the critics of dogma such as neuroscientist and author Sam Harris in one very important respect; the main problem with dogma, no matter how benign, is that it is unresponsive to new evidence and discoveries.

The practical issue is the period in which most religious scripture takes place is centuries apart from the time period when modern science came about. Therefore, it is utterly impossible for scripture to take into account the evidence that modern science has produced. This places literal, dogmatic interpretation of spiritual text often in conflict with readily provable realities that modern science has revealed. For instance that the earth is billions, not thousands of years old. Often times, the descriptive conflict between religious dogma and modern science does not bear any direct impact on the everyday lives of most. When the subject matter spills into medical ethics however, the debate can have very real consequences.

Although the legitimacy of rational suicide is an evolving concept across societies, a powerful clinical criteria can be made for competent, elderly, terminal patients who want to end their suffering with the aid of their physician. To say this criteria should be denied to individuals who want it because of the religious beliefs of others has understandably been very difficult for some to accept, including myself.

My grandfather Charlie Broker lived an amazing life. Prior to attaining his degree and embarking on his incredible professional career as a surveyor in the state of Alaska — before statehood, mind you, when Alaska was Alaska — he served in the Pacific Theater in World War II on the battleship the U.S.S. Colorado. Although I know he suffered through intense combat he never talked about that much. What he did talk a lot about was the good times during his life in the Navy, particularly when he was stationed in China after the war, a period he always referred to as his “Shangri-La.”

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When I think about him, as he did with his own life, I try to focus on the good memories, and not the bad, such as his final few weeks, because he deserves better. He deserved to have his physician explain to him what exactly was going to happen, and to be given the choice to avoid it. Now, my grandfather was a very religious man, and of course I do not know for sure what he would have chosen to do, but that uncertainty does not bother me. I would have respected whatever choice he made, it bothers me that he was never given the humane option to avoid unnecessary suffering.

The law can morally facilitate these choices, taking into account a patient’s competency and the ability of advanced medicine to alleviate their pain as they die, or the existence of other options such as through palliative care. If the only remaining objection however is religious disapproval then this, to me at least, presents only more of a reason to design a legal system that empowers individual autonomy. Instead, most states force end of life religious dogma on unwilling human beings suffering through egregious and unnecessary pain. This is not to say that those opposing right to die laws are entirely wrong. Concerns about insurance companies pressuring patients to end their life for their bottom line or expanding the class of individuals eligible under the law outside of the terminally ill are complicated subjects. However, I would say it is time we allow science to have more of a moral impact on our decisionmaking.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is and forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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