1. Constitutional Law II Medical Treatment / Right to Die

2. Fall 2006Con Law II2 Framing the Analysis 1. Do persons have a fundamental right to: A.State-funded medical services? B.Refuse life-saving medical treatment? C.Physician-assisted suicide? 2. When does regulation/classification of the right amount to a denial or deprivation? 3. Is the state interest compelling? (ENDS) 4. Is the challenged regulation (MEANS) narrowly tailored to promote the ENDS?

3. Fall 2006Con Law II3 A. State-funded medical services Mahrer v. Roe (1977) For poor women, State funds childbirth, but not (non-therapeutic) abortions General rule:  Failure to fund (or otherwise facilitate) the exercise of a fundamental right is not a “deprivation” of it There are no “positive” rights under DP; only “negative” Equal protection rule:  Rights can also be “fundamental” for EP purpose There are some (few) “positive” rights under EP (eg, educat’n) Harris v. McRae (1980) Extends Mahrer to medically-necessary abortion

4. Fall 2006Con Law II4 2001

5. Fall 2006Con Law II5 Framing the Analysis Is there a fundamental right to terminate one’s own life? Right to refuse life-sustaining medical treatment Right to physician-assisted suicide Other medical rights issues Right to state-funded medical care Right to palliative treatment  medical marijuana

6. Fall 2006Con Law II6 B. Refuse medical care? Cruzan v. MO Health Dept (1990) Nancy Cruzan in Persistent Vegitative State  Parents (“next friend”) sue hospital to remove feeding tubes from comatose daughter  Claim: Forced feeding, hydration & respiration (life sustaining treatment) violates Cruzan’s: Right to Die Right to Refuse Treatment which substantive due process formulation is more appropriate?

7. Fall 2006Con Law II7 Cruzan v. MO Health Dept (1990) How should the SDP right be framed? Gen’l rule 1: court should not decide issues that aren’t before them  State the issue in as narrow a way as would permit the court to decide the case Gen’l rule 2: avoid unprincipled distinctions  if there is no principled distinction between different formulations of the right, the court should state it in broader terms – avoids uncertainty and litigation Right to die (in abstract, or if terminally ill) Right to refuse unwanted medical treatment

8. Fall 2006Con Law II8 Cruzan v. MO Health Dept (1990) Right to Refuse Unwanted Medical Care Rehnquist (using an originalist approach) finds:  right to refuse touching in the informed consent doctrine (unconsented touching = battery) O’Connor (concur) (Broad Textualism)  Liberty/Privacy (from penumbras) = bodily autonomy  Invasion of the body in a literal sense Applying Strict Scrutiny Compelling ENDS: preserving life Necessary MEANS: proof of patient’s desire  Court upholds tough evidentiary requirements Living will California Advance Health Care Directive ActCalifornia Advance Health Care Directive Act

9. Fall 2006Con Law II9 Terri Schiavo Law “RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO” Section 1 - The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

10. Fall 2006Con Law II10 C. Washington v. Glucksberg (1997) How should right be framed? Right to defines one’s existence Right to die Right to physician-assisted suicide Right of terminally ill person in great pain to end her own life  If the right is for a terminally ill person to end her own life, and the state prohibits assistance, then that would be analyzed under the “undue burden” (“deprivation”) test (See last paragraph, p. 679) broader narrower

11. Fall 2006Con Law II11 Washington v. Glucksberg (1997) How should right be found? Rehnquist adopts modified originalism  practices at time of adoption both illuminated and... modified by history and tradition assisted suicide criminalized at common law serious debate currently underway in legislative bodies re-examining the prohibitions O’Connor  right may be broader than found by majority (i.e., terminally ill patient avoiding pain while dying), but  not presented in this “facial case” because these patients have access to sufficient drugs NB: Reqhnquist’s version of “deeply rooted in history and tradition” not quite as narrow as Scalia’s fn.6

12. Fall 2006Con Law II12 Facial vs. As-Applied Challenges Facial Facial: the law, in all of its applications, is incap- able of being applied in a constitutional manner Examples: legislature lacks power to enact; stated interests are inadequate; law has “chilling effect” As-Applied As-Applied: the law, while const’l in some respects, is unconst’l when applied to these facts Examples: laws applied in a discriminatory manner; zoning law that deprives viable use in specific case; Which is this? Law prohibiting assisted suicide not facially unconst’l If applied to bar paliative care, might be unconst’l, but  Not presented here because plaintiffs have access to drugs

13. Fall 2006Con Law II13 Washington v. Glucksberg (1997) Stevens (concur): Rejects Rehnquist’s originalism, in favor of Far broader and more basic concept of freedom  right to dignity; to define one’s own life constitutional as applied here, but may not be elsewhere Breyer (concur): Rejects narrow construction of right, in favor of right to die with dignity  personal control over one’s manner of death

14. Fall 2006Con Law II14 Washington v. Glucksberg (1997) Souter (concur): Interpretivist method  textualism (broad? narrow?) +  traditions (both adopted & rejected) Degree of Scrutiny  variable: state’s interest/means must match the importance of the right Justice Marshall advanced a similar approach in Rodriguez v. San Antonio:  Sliding scale: The further from a core textual right, the lesser showing needed by the state  Has this been adopted in practice, if not in theory? Isn’t Souter’s approach more sensible? Variable rights & scrutiny?

15. Fall 2006Con Law II15 Washington v. Glucksberg (1997) 1. Claim (C): Distinguishing Cruzan  Formalistic distinction between refusing treatment and demanding treatment is recognized by C.L. 2. Deprivation Not as applied to these cases? 3. Legitimate State ENDS Preservation of human life  even against person’s wishes, because those wishes are often influenced by extrinsic factors In construing the state laws as not (as applied) depriving a fundamental right, has the court re- written those laws?

16. Fall 2006Con Law II16 Washington v. Glucksberg (1997) 3. Legitimate State ENDS Integrity of medical profession Protection of vulnerable groups  elderly, disabled, impecuniary Avoidance of euthanasia  termination of life (for greater good) w/o consent  Souter believes this outweighs petitioners’ interests 4. Rational MEANS Banning vs. regulating is reasonable  avoids risk of error, other pressures

17. Fall 2006Con Law II17 Vacco v. Quill (1997) Right to die in equal protection context Withholding life-sustaining treatment (ok) vs. administering life-ending drugs (barred) Fundamental rights under EP vs. DP Somewhat easier to find, but not often Not here State’s legitimate interest: preserving life Rational means (of the classification) Based on causation

18. Fall 2006Con Law II18 Gonzales v. Oregon (2005) State permits “death with dignity” for terminally-ill patients  with procedural safeguards Any fundamental rights affected? Can Feds preempt this state law? If federal law prohibits the use of drugs for it Ninth circuit ruled that DoJ exceeded delegated power in promulgating regs.  Oregon v. Ashcroft, 368 F.3d 1118 (9 th Cir 2004) S.Ct. granted certiorari.

19. Fall 2006Con Law II19

20. Fall 2006Con Law II20 The “Mercitron”