Zac Halden

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Brittany Maynard took her own life on a cold November morning at the young age of twenty-nine.[1] Brittany had been battling brain cancer and had undergone multiple surgeries to remove her tumor.[2] However, when she learned that the surgeries did not free her from illness, she chose another way to deal with her illness: physician assisted-suicide (PAS).[3] She chose assisted-suicide to avoid medical care that would have ended her quality of life.[4] Additionally, the treatment would have only extended her life for another several months.[5] Brittany did not want to die, but when someone is faced with choosing between two paths to death Brittany asked herself, “Who has the right to tell me that I don’t deserve this choice?”[6]

Two cases were brought before the Supreme Court in 1997 that dealt with PAS.[7] Plaintiffs in those cases made constitutional arguments to secure a right to die.[8] In both cases, the Court ruled that there exists no such right to die.[9] In 2006, however, a case was decided that, in essence, overturned these decisions.[10] Currently, there is no Supreme Court precedent to prevent a federal law from being enacted that would require states to allow the practice of PAS. Further, there still exist other constitutional arguments to be made for a right to die that were not made in the 1997 cases.[11]

This Note analyzes the PAS cases heard by the Supreme Court in order to explain how a federal PAS law could be developed. First, my Note examines the 1997 rulings, Washington v. Glucksberg and Vacco v. Quill. In Glucksberg, patients brought suit against the state of Washington.[12] They argued that the law prohibiting PAS violated their due process rights.[13] In the second case, Vacco, which was decided the same year, raised an equal protection argument.[14] This suit was brought by physicians who argued that a New York ban on PAS violated their right to practice.[15] In both cases, the Supreme Court denied that there existed any constitutional rights that related to PAS and ruled in favor of the defendants.[16] Yet, in 2006 another PAS case was heard: Gonzales v. Oregon.[17]

In Gonzales the Supreme Court finally ruled in favor of PAS.[18] Unfortunately, the Court avoided addressing constitutional questions and decided the case on statutory interpretation grounds instead.[19] Despite this avoidance, Gonzales effectively overruled the two previous PAS cases. In Gonzales, the court ruled that physicians in Oregon may prescribe a life-ending medication to their terminally-ill patients, which means that terminally-ill patients may legally pursue PAS as a way to end their suffering.[20]

So far, Oregon is the only state to adequately provide state law outlining PAS. Thus, terminally-ill patients living in the other forty-nine states lack the opportunity to choose how to deal with their illnesses. Currently, the decision has already been made for them. Those suffering in states lacking PAS are sentenced to live out their lives in “tremendous amounts of physical and emotional pain.”[21]

In Brittany Maynard’s last public statement, she asked why anyone should be able to choose how she died.[22]  To answer Brittany: There is no reason anyone should be able to choose how another dies. A federal law would ensure that all terminally-ill patients are presented the same option of choice. Furthermore, this statute is permissible because the Commerce Clause grants Congress the authority to require states to pass PAS laws.

The Commerce Clause allows for a federal PAS state law because medication is a commodity. It is bought and sold. Congress has the power to regulate commerce “among the several States.”[23] Therefore, the prescription of life-ending medication falls under the purview of the Commerce Clause and can, thus, be governed by Congress. Furthermore, the court in Garcia stated that “the political process ensures that laws that unduly burden the States will not be promulgated.”[24] Laws that prohibit PAS unduly burden the terminally-ill patients that are governed by those laws. Moreover, individual autonomy of terminally-ill patients outweighs any state interest in forbidding PAS. Individual autonomy is respected by U.S. rule of law and provides a strong ethical context in which to discuss PAS.

Congress has been primed to pass PAS legislation through Supreme Court rulings and constitutional provisions. These, in concert with public demand, have set a perfect stage on which to provide terminally-ill patients a right to die. A federal law on PAS would allow all terminally-ill patients the same right that Brittany was able to exercise – a right that allowed her to pass away at a time of her choosing, in a place of her choosing. Brittany ended her final public statement in the following manner:

When my suffering becomes too great, I can say to all those I love, “I love you; come be by my side, and come say goodbye as I pass into whatever’s next.” I will die upstairs in my bedroom with my husband, mother, stepfather and best friend by my side and pass peacefully. I can’t imagine trying to rob anyone else of that choice.[25]

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] Brittany Maynard, My Right to Death with Dignity at 29, CNN (Nov. 2, 2014), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).

[8] Id.

[9] Id.

[10] Gonzales v. Oregon, 546 U.S. 243 (2006).

[11] See e.g. Robert W. McGee, Suicide is a Property Right; Assisted Suicide is a Contract Right, Comment. L.& Pub. Pol. 36, 40 (1997) (discussing suicide as a property right);

[12] Glucksberg, 521 U.S. 702.

[13] Id.

[14] Quill, 521 U.S. 793.

[15] Id.

[16] Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).

[17] Gonzales v. Oregon, 546 U.S. 243 (2006).

[18] Id.

[19] Brian T. Yeh, Cong. Research Serv., RL33120, Gonzales v. Oregon: Physician-Assisted Suicide and the Controlled Substances Act (2005). 

[20] Gonzales, 546 U.S. 243.

[21] Brittany Maynard, My Right to Death with Dignity at 29, CNN (Nov. 2, 2014), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html.

[22] Id.

[23] U.S. Const. art. 1, § 8, cl. 3.

[24] Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

[25] Brittany Maynard, My Right to Death with Dignity at 29, CNN (Nov. 2, 2014), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html.