Brandon Sheffert

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            Many patients in America currently suffer from terminal illness, with no option other than to suffer for an indeterminate amount of time. The Supreme Court of the United States denies terminally ill patients the fundamental right to hasten their death through physician-assisted suicide.[1] The case Washington v. Glucksberg declared there was no fundamental right to assisted suicide.[2] Glucksberg denies countless patients, suffering from terminal illness, a dignified end to their suffering.[3]

            The Court in Glucksberg decided there is no historical recognition of the right to assisted suicide.[4] The Court reasoned that since there is no historical practice of physician-assisted suicide in the United States, assisted suicide is not a fundamental right protected by the Due Process Clause of the 14th Amendment.[5] The decision in Glucksberg viewed fundamental rights through a narrow historic lens, leading the Court to conclude assisted suicide is not a fundamental right.[6]

This Note compares the reasoning in Glucksberg with other Supreme Court cases concerning fundamental rights. As this Note shows, the Court wrongly decided Glucksberg and there should be a fundamental right to assisted suicide in the United States. Other Supreme Court cases concerning fundamental rights usually view an asserted right from a broader perspective to determine if the asserted right is fundamental. The Glucksberg court refused to follow this precedent, and instead decided to only evaluate whether physicians have practiced assisted suicide historically.

            In Part I, this Note discusses fundamental rights jurisprudence and the Glucksberg decision. Then in Part II, this Note compares the Glucksberg decision to other fundamental rights cases. This Note compares the reasoning in Glucksberg with three other fundamental rights tests: (1) the broad historic test which looks to see if a fundamental right has been a generally acknowledged practice in the United States;[7] (2) the changing conscience of society test which looks to see if the American conscience demands that the Court recognizes a new right as fundamental;[8] and (3) the penumbra of rights test, which looks to see if a newly asserted right lies in the “realm” of some other Constitutional right.[9] Finally, Part III proposes a new test that the Supreme Court should use in evaluating whether a right is fundamental. This new test consists of a 3-prong approach that utilizes each of the three fundamental rights tests discussed in Part II.

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[1] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[2] Id.

[3] See Guy Maytal & Theodore A. Stern, The Primary Care Companion to the Journal of Clinical Psychiatry 299, 300 (2006) (reporting that loss of dignity is the most common reason for cancer patients to desire death); Gabriella Marchant, Rhys’s Final Wish, ABC News, https://www.abc.net.au/news/2021-04-29/rhys-habermann-and-voluntary-euthanasia/100062384 (updated April 28, 2021) (describing how a terminally ill teen had to film his final moments before suicide to ensure his family would not be liable for his death).

[4] Glucksberg, 521 U.S. at 722.

[5] Id.

[6] Id. at 728.

[7] Loving v. Virginia, 388 U.S. 1, 12 (1967).

[8] Obergefell v. Hodges, 576 U.S. 644, 670 (2015).

[9] Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

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