*1The Last Samurai, at 2:16:45–2:16:55 (Warner Bros. 2003) (demonstrating that when life inevitably concludes, how one lived his life is far more important than how it ended).
Introduction
The inevitability of death is one commonly met with fear, depression, and anxiety, but by one way or another, all life must end. 2Atara Wertentheil, Death Is Inevitable: Learning How Not to Fear It, Long Island Psych. PLLC (July 30, 2022), https://perma.cc/SGM4-WES3. If death is natural, then “[w]hat’s wrong with death . . . ? What are we so mortally afraid of,? Why can’t we treat death with a certain amount of humanity and dignity . . . ?” 3 Patch Adams, at 1:41:21–1:41:31 (Universal Pictures 1998). Philosophers contemplated these and similar questions relating to suicide throughout history.4See Univ. of Utah, The Ethics of Suicide Digit. Archive, https://perma.cc/FF4A-D4UA (last visited Jan. 17, 2024). Plato, for example, condemned the act and suggested it be punished by denying the actor the normal burial rites practiced at the time; however he allowed for four exceptions, including what he referred to as “extreme and unavoidable personal misfortune.”5Michael Cholbi, Suicide § 2.1, Stanford Encyclopedia Phil., https://perma.cc/XCA7-2U23 (last updated Nov. 9, 2021). In Anglo-American history, the common law forbade suicide outright and punished those who committed it.6Washington v. Glucksberg, 521 U.S. 702, 711–12 (1997). Jurisdictions repealed these laws because they impacted the actor’s family who were already suffering the loss of their loved one, rather than the actor.7Id. Discussion on how the law and society address suicide changed over time and continues to do so.8See generally id. at 710–18. In 1868, the passage of the Fourteenth Amendment to the U.S. Constitution afforded all citizens the right to the due process of law, both federally and in every state.9National Archives, 14th Amendment to the U.S. Constitution: Civil Rights (1868), Milestone Doc., https://perma.cc/5DK7-XERA (last modified Mar. 6, 2024). The plaintiffs in Washington v. Glucksberg advocated that one particular form of suicide, physician-assisted suicide (“PAS”), was protected under the Fourteenth Amendment’s due process clause.10521 U.S. at 705–06. The U.S. Supreme Court disagreed.11Id. at 735. In Kligler v. Attorney General, this same claim was brought under the Massachusetts Declaration of Rights.12Kligler v. Attorney General, 198 N.E.3d 1229, 1236–37 (Mass. 2022). The Massachusetts Supreme Judicial Court (“SJC”) aligned its decision with the U.S. Supreme Court.13 Id.
This Comment argues that in deciding Kligler v. Attorney General, the SJC incorrectly concluded that PAS is not protected by due process because the SJC’s analysis focused on suicide itself rather than a more generalized right.14Id. at 1252–59. Part I of this Comment discusses important components of substantive due process and current legal trends regarding end-of-life decisions. Part II looks at the background, analysis, and holding of Kligler v. Attorney General. Part III shapes the substantive due process analysis for PAS. Finally, Part IV applies this analysis.
I. Background
A. Substantive Due Process Determines Whether a Right is Fundamental
The ratification of the Fourteenth Amendment to the U.S. Constitution guaranteed due process under the law to individuals facing action from state governments.15 National Archives, supra note 9. The Amendment, in part, reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”16U.S. Const. amend. XIV, § 1. As in most topics concerning constitutional law, the interpretation of this clause is both routinely complicated and politically tumultuous.17See, e.g., Namrata Verghese, What the Hell Is Substantive Due Process Anyway?, Rewire News Grp. (May 25, 2022, 12:25 PM), https://perma.cc/7TVF-BM7G. Cases concerning the Due Process Clause are categorized into two sects: procedural due process and substantive due process.18Vasquez v. Commonwealth, 119 N.E.3d 717, 728 (Mass. 2019). Only substantive due process is at issue in Kligler v. Attorney General.19Kligler v. Attorney General, 198 N.E.3d 1229, 1253 (Mass. 2022).
Substantive due process determines whether a right is fundamental in order to offer it stronger protection from government intrusion.20Id. at 1248; Commonwealth v. Simmons, 863 N.E.2d 549, 556 (Mass. 2007). Fundamental rights are “so important for individual liberty that they should be beyond the reach of the political process.”21Cornell L. Sch., Fundamental Right, Legal Info. Instit., https://perma.cc/559J-2ZV5 (last updated Mar. 2023). For this reason, statutes that touch upon these rights are only valid if they survive strict scrutiny.22Moore v. E. Cleveland, 431 U.S. 494, 499–500 (1977); Kligler, 198 N.E.3d at 1248. That is, the statute must be narrowly tailored to achieve a compelling government interest.23Moore, 431 U.S. at 499; Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). Laws are otherwise reviewed under lower standards, mainly intermediate scrutiny, meaning the laws must be “substantially related to the achievement of” an important governmental objective24M. v. Superior Court, 450 U.S. 464, 489 (1981). or under rational basis review, meaning they are “rationally related to a legitimate state interest.”25City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
The U.S. Supreme Court considers a right fundamental when it is carefully defined and both “‘deeply rooted in [the] Nation’s history and tradition[s]’ and ‘implicit in the concept of ordered liberty.’”26Glucksberg, 521 U.S at 721 (quoting Moore, 431 U.S. at 503 (1977) and Palko v. Connecticut, 302 U.S. 319, 325 (1937)). These rights are either enumerated, such as those in the Bill of Rights, or are not specifically stated but implied.27Nathan S. Chapman & Kenji Yoshino, The Fourteenth Amendment Due Process Clause, Nat’l Const. Ctr., https://perma.cc/3RGY-QJFH (last visited Jan. 17, 2024). Implied rights are carefully defined in the sense that they are applicable to specific situations.28See id. For instance, the fundamental right of unmarried couples to use contraception, the right of interracial couples to marry, and other similar rights are all carefully defined.29Id. To meet the history requirement, the right must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”30Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Courts look to both legal precedent and common law to make this determination.31Kligler v. Attorney General, 198 N.E.3d 1229, 1249 (Mass. 2022). Finally, a right is considered implicit in ordered liberty when neither liberty nor justice could continue without it.32Id. The rights contained within the first ten amendments to the U.S. Constitution, for example, are so essential to liberty and justice that the nation could not function without them.33Christopher R.J. Pace, The Disorderly Origin of ‘Ordered Liberty’, 86 Tex. Bar J. 30, 30 (2023). In some cases, the Court did not rely solely on history but rather took a comprehensive approach, examining modern precedent in addition to history since groups that asserted their rights as fundamental were previously marginalized and thereby prevented from participating in the Nation’s history as it unfolded.34Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (discriminating views cast on LGBTQ+ community prevented participation in democratic process). The comprehensive approach is designed to include reasoned judgment.35Kligler, 198 N.E.3d at 1249. Reasoned judgment allows courts to determine whether a right is fundamental through philosophical, political, and moral reasoning without the limitation of history.36Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. Rev. 63, 66 (2006). Massachusetts now follows the comprehensive approach.37Kligler, 198 N.E.3d at 1251.
B. Two Major Cases Address Fundamental Rights at Life’s End
Substantive due process cases concern “the most intimate and personal choices a person may make in a lifetime.”38Planned Parenthood v. Casey, 505 U.S. 833, 923 (1992). For cases raising these issues, death is not an uncommon concern.39See, e.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 267–268 (1990); Washington v. Glucksberg, 521 U.S. 702, 707 (1997). In Cruzan v. Dir., Mo. Dep’t of Health, the parents of Nancy Beth Cruzan sought to withdraw life-preserving medical treatment once she had no chance of recovering from a persistent vegetative state following a car crash.40497 U.S at 267. The U.S. Supreme Court deemed the right to refuse medical treatment as fundamental.41See id. at 269, 278. The Court based its reasoning in common law battery and the precedent of informed consent.42Id. at 269. Battery is the unlawful touching of another without consent which carries the notion that every individual has the right to control what is done to her body.43Id. The Court emphasized this right by quoting Union P. R. Co. v. Botsford,44141 U.S. 250, 251 (1891). which stated “‘[n]o right is held more sacred . . . than the right of every individual to the possession and control of his own person, free from all restraint or interference of others.’”45Cruzan, 497 U.S. at 269 (quoting Union P. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The Court found that the reasoning underpinning battery and informed consent made the right to refuse medical treatment fundamental, and it agreed with several states that previously addressed the issue.46 Id. at 269–270. Refusing medical treatment, however, is not the same right as the one asserted in Kligler v. Attorney General.47Compare Kligler, 198 N.E.3d 1229, with Cruzan, 497 U.S. 261 (distinguishing the right to refuse treatment from PAS).
The U.S. Supreme Court reviewed whether PAS was a fundamental right under the U.S. Constitution in Washington v. Glucksberg.48521 U.S. 702, 705–06 (1997). Respondents, a collection of physicians and their patients, brought an action to invalidate the State of Washington’s ban on PAS.49Id. at 707–08. In reviewing the claim, the U.S. Supreme Court dove into the long history of prohibition and punishment of suicide found throughout the common law’s history, laws of the American Colonial period, and legal precedent in the United States.50Id. at 708–19. This history also embodies a near complete prohibition on assisting another in committing suicide.51Id. A review of current trends showed that attitudes were changing as Americans lived longer and are more likely to die from chronic diseases.52Id. at 716. However, most jurisdictions prohibited PAS when Washington v. Glucksberg was decided.53Id. at 719. Without foundation in legal history, PAS could not be fundamental under the Supreme Court’s narrow approach.54Glucksberg, 521 U.S. at 728.
The respondents also claimed that PAS was an extension of the Court’s protection of personal autonomy.55Id. at 723–24. This contention was raised under the Court’s establishment of the right to refuse medical treatment and the right to an abortion.56Id. at 723–26. Both rights are related to intimate personal choices and are therefore fundamental.57 Id. at 726–27. The Court found neither the reasoning nor history of these rights to be applicable to PAS.58Id. at 727–28.
C. Physician-Assisted Suicide is Defined as a Regulated Option in End-of-Life Care
The holding of Washington v. Glucksberg kept the right to PAS in the forefront of the political process.59See id. at 735. Oregon, by ballot initiative, was the first to legalize PAS in 1994.60Gonzales v. Oregon, 546 U.S. 243, 249 (2006). Since then, ten other jurisdictions legalized PAS.61States Where Medical Aid in Dying Is Authorized, Compassion & Choices, https://perma.cc/AUC8-96AT (last visited Jan. 17, 2024). “[PAS] occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”62Opinions on Caring for Patients at the End of Life, AMA Ass’n, https://perma.cc/A9AP-ZG29 (last visited Jan. 17, 2024). Access to PAS is limited in each legalizing jurisdiction by three requirements: “(1) terminal illness through a prognosis of having 6 months or less to live, (2) competence and intact judgment, and (3) voluntariness.”63Rebecca A. English et al., Physician-Assisted Death: Scanning the Landscape: Proceedings of a Workshop ch. 2, at 9 (2017). These statutes may also include detailed procedures in exercising this right.64See Or. Rev. Stat. §§ 127.800–127.995 (2023). For example, Oregon requires patients to make two oral statements to their physician separated by fifteen days; make a written request signed in front of two witnesses; wait for their physician and a consulting physician to confirm the diagnosis, the prognosis, and that the patient is capable; possibly undergo a psychological evaluation; be made aware of alternatives; and potentially contact their next-of-kin.65Id.
As the right remains on the political table, “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of [PAS].”66Washington v. Glucksberg, 521 U.S. 702, 735 (1997). Supporters of legalization often cite “respect for patient autonomy and relief from suffering.”67Lydia S. Dugdale et al., Pros and Cons of Physician Aid in Dying, 92(4) Yale J. Biology & Med., 747, 748 (2019). Those in opposition argue that allowing PAS will harm vulnerable groups, violate medical ethics, and hinder the goal of preserving human life.68Id.; Glucksberg, 521 U.S. at 731.
II. The Court’s Opinion in Kligler v. Attorney General
In Kligler v. Attorney General, the SJC held that substantive due process under the Massachusetts Declaration of Rights does not afford citizens the right to PAS.69Kligler v. Attorney General, 198 N.E.3d 1229, 1237 (Mass. 2022). The SJC reviewed potential issues of standing and actual controversy with the plaintiffs’ claims but ultimately decided to address the constitutional issue because of its importance to the public.70Id. at 1246–47.
A. Facts and Procedural History
Two plaintiffs, Roger Kligler and Alan Steinbach, brought this action.71Id. at 1238. Kligler is a retired physician diagnosed with stage four, metastatic prostate cancer.72Id. Although he had not yet received a six-month prognosis and may live for years to come, Kligler proactively sought the asserted right to PAS.73Id. Steinbach is a licensed physician with terminally ill patients who wish to consider PAS.74Id. at 1238. The Attorney General for Massachusetts and the District Attorney for the Cape and Islands district were the defendants in the case.75Kligler, 198 N.E.3d at 1238. Neither defendant committed to not prosecute individuals engaging in PAS.76Id.
In October of 2016, the plaintiffs sought a declaration that applying involuntary manslaughter against people who engage in PAS violates due process.77Id. at 1238–39. In particular, plaintiffs were concerned that engaging in PAS would subject them to charges of involuntary manslaughter.78Id. They also sought an injunction barring the defendants from bringing charges against participating physicians.79Id. Specifically, the plaintiffs “contend[ed] that terminally ill patients with six months or less to live have a constitutional right to receive a prescription for lethal medication in order to bring about death at a time and in a manner of their choosing.”80Id. at 1236.
The Superior Court granted the defendants’ motion for summary judgment on the due process claim because the Court found no fundamental right to PAS exists within the Declaration of Rights and the applicable criminal laws survive under rational basis review.81Kligler, 198 N.E.3d at 1239. On appeal, the SJC reviewed the case denovo.82Id.
B. The SJC’s Analysis and Holdingy
The SJC held that the Massachusetts Declaration of Rights does not protect PAS as a fundamental right.83Id. at 1259. In its substantive due process analysis under the Fourteenth Amendment to the U.S. Constitution and Articles I, X, and XII of the Massachusetts Declaration of Rights,84U.S. Const. amend. XIV; Mass. Const. arts. I, X, XII. the SJC applied the comprehensive approach.85Kligler, 198 N.E.3d at 1251. The SJC chose this approach because it allows for interpretation under modern standards as opposed to a historic approach which could deprive marginalized groups of their rights.86Id. at 1251–53. Further, the Massachusetts Declaration of Rights may provide protection for more rights than the U.S. Constitution.87Id. at 1251.
Addressing the historical treatment of suicide first, the SJC found that not only was suicide never a protected right, but it was frequently seen as a societal problem.88Id. at 1253–54. Although many jurisdictions repealed laws punishing suicide, the SJC noted such repeals were done in an effort to spare the loved ones additional pain and punishment.89Id. The bar on suicide means that assisting someone in the commission of the act is also barred, regardless of whether the contemplator asked and regardless of her proximity to death.90Id. at 1254–55. Beyond the legal field, PAS never enjoyed acceptance from society or the medical profession, the Court reasoned.91Kligler, 198 N.E.3d at 1255. The SJC noted that ten states and the District of Columbia passed legislation protecting PAS but that no appellate court declared it a constitutional right.92Id.
As part of this comprehensive approach, the SJC also examines whether modern precedent makes the right fundamental.93Id. In responding to an argument raised by Plaintiff Steinbach, the SJC compared PAS with the right to refuse medical treatment and determined that the two were not analogous.94Id. at 1255–56. The SJC found that although the right to privacy protects many interests and is not conclusively defined, PAS is not included.95Id. at 1256–57.
Having aligned with neither historic treatment nor modern precedent, the SJC ruled that PAS is not a fundamental right.96Id. at 1259. Without this status, the application of manslaughter to PAS was reviewed under the rational basis standard and passed constitutional muster.97Kligler, 198 N.E.3d at 1248, 1261.
Analysis
The SJC correctly decided that neither the right to refuse medical treatment nor the effect of equal protection under the law warrants a right to PAS. However, the Court still reached the wrong conclusion when determining whether PAS is protected because the Court’s analysis did not accurately follow the comprehensive approach. If it had, the Court would have deemed PAS as fundamental.
III. Shaping the Substantive Due Process Analysis of PAS
A. Physician-Assisted Suicide Cannot Be Deemed Fundamental Through Direct Comparison with the Right to Refuse Medical Treatment
Proponents of PAS often look to cases concerning the right to refuse medical treatment for support. The pivotal argument is that “refusing unwanted medical treatment and [PAS] are both means to the same end” and should therefore receive the same level of protection.98Katherine A. Chamberlain, Note, Looking for a “Good Death”: The Elderly Terminally Ill’s Right to Die by Physician-Assisted Suicide, 17 Elder L.J. 61, 89 (2009). While this argument is true, and certainly not without logic, it overlooks the substantial differences between the two types of end-of-life decisions. When death results from a patient’s refusal of medical treatment, neither the patient nor the physician causes the death; rather both “passively allow[ed] a person to die of a disease.”99Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 273 (1990). PAS, on the other hand, requires a prescription for the lethal medication.100Kligler, 198 N.E.3d at 1237. The physician plays an active role in assisting the patient’s death instead of allowing nature to run its course.101See Washington v. Glucksberg, 521 U.S. 702, 753 (1997) (Souter, J., concurring). The difference is “between ‘killing’ and ‘letting die.’”102Vacco v. Quill, 521 U.S. 793, 806 (1997) (citing N.Y. Pub. Health Law § 2989(3) (McKinney 1994)).
This distinction between refusal of medical treatment and PAS lies not only in the conduct of the physician but also in the patient making the choice. Even though many cases surrounding the refusal of medical treatment and PAS debate the role of the physician, the main focus is on the individual’s right to either conduct.103See, e.g., Glucksberg, 521 U.S. at 708; Cruzan, 497 U.S. at 271–75. Although proponents of PAS may argue that establishing the right to refuse medical treatment should syllogistically establish the right to PAS because of the ends, the difference in means do not allow this syllogism.
Further, the right to refuse medical treatment is not solely vested in the right to privacy but also the right to be free from unwanted bodily interference, relating back to common-law battery and informed consent.104Cruzan 497 U.S. at 268, 305 (1990). This reasoning is not applicable to PAS because the patient is in control of what treatment she receives by asking for the prescription and taking the medication herself. Patients seeking PAS are not subject to treatments against their will and thus cannot claim battery. As such, the reasoning for accepting the right to refuse medical treatment as a fundamental right is too different to be applicable to PAS.
B. The Equal Protection Clause Does Not Protect Physician-Assisted Suicide
Proponents of PAS also argue that the conduct is protected under the Equal Protection Clause. This claim arises from the belief that terminally ill patients who enjoy the right to refuse life-sustaining medical treatment to hasten death are similarly situated but differently treated from those who would take advantage of PAS to do the same. The proponents argue that both have exceptionally limited time left to live but only one group is allowed to hasten death.105Chamberlain, supra note 98, at 77–78. Again, the claim looks to the ends to justify the means.
The argument’s fatal flaw is simply that “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.”106Vacco, 521 U.S. at 800. Terminally ill patients who may hasten their death by the refusal of medical treatment and those who may only hasten their death through PAS are similarly situated. They are similar because people in both groups have reached the end of their lives as a result of illness; however, neither group is treated differently because all have the right to refuse medical treatment and none are entitled to PAS.
Differing treatment is essential to an equal protection claim and without it, the claim fails.107Doe v. Acton-Boxborough Reg’l Sch. Dist., 8 N.E.3d 737, 746 (Mass. 2014). In the case here, the SJC correctly decided that equal protection was not violated because the plaintiff did not identify any differential treatment.108Kligler v. Attorney General, 198 N.E.3d 1229, 1261 (Mass. 2022).
C. The SJC Did Not Follow the Comprehensive Approach in Deciding Whether Patients Were Entitled to Physician-Assisted Suicide Under Substantive Due Process
Near the outset of their due process analysis, the SJC discussed both the narrow and comprehensive approaches used by the U.S. Supreme Court to determine whether an asserted right is fundamental.109 Id. at 1248–51. The SJC declared that Massachusetts courts are to employ the comprehensive approach because the narrow approach “does not adequately protect the rights guaranteed by the Massachusetts Declaration of Rights.”110Id. at 1251. The comprehensive approach allows courts to use reasoned judgment by asserting “a more generalized framing of the right at issue” and by “augment[ing] history with modern precedent.”111Id. at 1252. Despite its declaration to do so, the SJC did not adequately employ the comprehensive approach.112See id. at 1253–59.
The SJC did not frame the right at issue generally but rather viewed it as an alleged right to commit suicide “because the right at stake does not implicate any equality concerns.”113Id. at 1253. The comprehensive approach was previously used at the federal level instead of the narrow approach when the group asserting the right was one historically discriminated against, hence the equality concern.114Kligler, 198 N.E.3d at 1250. While the narrow approach could be used in the Commonwealth for the same specific purpose, the Court set the comprehensive approach, alone, as the standard.115Id. at 1251. The failure to analyze a more generalized right, like privacy, tainted the process because the Court chose the wrong starting point by addressing it as PAS instead of privacy or autonomy.
While history is only instructive, the SJC’s analysis of it overwhelmingly and correctly points to suicide’s prohibition from English common law through much of American history.116Id. at 1253–55. However, the historical analysis discusses no substantive rights or PAS’s possible relation to them.117Id. PAS, were it deemed a right, would be a right to a specific act, not “a more generalized framing of a right.”118Id. at 1252; see generally Suicide, Black’s Law Dictionary (2nd ed. 1910) (“Suicide is the willful and voluntary act of a person . . . .”).
The comprehensive approach allows the Court to determine whether a right is fundamental in “light of [the Court’s] whole experience and not merely in that of what was said a hundred years ago,”119McDuffy v. Sec’y of Exec. Office of Educ., 615 N.E.2d 516, 555 (Mass. 1993) (quoting Missouri v. Holland, 252 U.S. 416, 443 (1920)). and it allows for the Massachusetts Declaration of Rights to be “‘adaptable to changing circumstances and new societal phenomena.’”120Kligler, 198 N.E.3d at 1251 (quoting Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 974 n.6 (Mass. 2003)). The SJC’s modern precedent discussion was inadequate because it focused on suicide’s relevance to rights debated in similar cases nearly half a century ago.121Compare id. at 1256 (citing Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626, 627 (Mass. 1986) and Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 423–28 (Mass. 1977)). The rights to refuse medical treatment and to privacy are still good law, but the problem is not with the rights themselves so much as with the Court’s failure to apply them to “‘changing circumstances and new societal phenomena.’”122Kligler, 198 N.E.3d at 1252 (quoting Goodridge, 798 N.E.2d at 974). The Court did not comply with the comprehensive approach because it did not discuss the effect of changes in society.123See id. at 1255–59. Neither same-sex marriage nor interracial marriage would be enjoyed today but for the Court’s dismissal of history in favor of what modern society deems to be fundamental.124See Goodridge, 798 N.E.2d at 966–67; Loving v. Virginia, 388 U.S. 1, 8–9 (1967). Determining whether the changes in and views of modern society are sufficient to find the right to PAS is necessary.
The SJC noted that similar cases in other jurisdictions declined to place PAS under the category of fundamental rights in more recent years.125Id. at 1258. These cases are persuasive but should neither substitute the modern precedent component nor be determinative of whether terminally ill patients are entitled to PAS in the Commonwealth. Other jurisdictions are missing key components of the Massachusetts analysis because they do not necessarily follow the same approach, do not have the same legal history or Declaration of Rights, and do not likely discuss the changes and opinions of current society in the Commonwealth. The significance of fundamental rights in each of the fifty-one or so societies comprising the nation indicates that each jurisdiction should undertake an independent analysis of whether a right truly is fundamental.
IV. Physician-Assisted Suicide Should Be Protected as a Fundamental Right
A. Physician-Assisted Suicide is a Fundamental Right Under Substantive Due Process
As “the proper analysis for identifying fundamental rights under the Massachusetts Declaration of Rights is the comprehensive approach,” this Comment will review the asserted right accordingly.126Kligler v. Attorney General, 198 N.E.3d 1229, 1267 (Mass. 2022). Given the aforementioned issues with the Court’s analysis, the following discussion will review PAS with appropriate changes, particularly analyzing the right under a more generalized format in light of modern precedent.
B. Historical Analysis Does Not Support the Claim That Physician-Assisted Suicide is a Fundamental Right
In following a more generalized format, the U.S. Supreme Court would likely view the asserted right not as an entitlement to PAS but as a part of the broader right to privacy.127See, e.g., Obergefell v. Hodges, 576 U.S. 644, 649 (2015) (establishing same-sex marriage within the broader right to marry rather than right to same-sex marriage). The right to privacy extended its coverage to the right to refuse medical treatment in both Cruzan v. Dir., Mo. Dep’t of Health128497 U.S. 261, 270 (1990). and Superintendent of Belchertown State Sch. v. Saikewicz.129370 N.E.2d 417, 424 (Mass. 1977). Further, “the decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment”; therefore, if PAS were to fall under a generalized right, it would be that of privacy.130Washington v. Glucksberg, 521 U.S. 702, 725 (1997).
Debate over the right to privacy dates back to long before its finding by the U.S. Supreme Court.131See Griswold v. Connecticut, 381 U.S. 484, 485 (1965); Olmstead v. United States, 277 U.S. 438, 455 (1928); Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196–197 (1890) (arguing right to privacy is the result of and evidenced by developments in law). A textual examination of the U.S. Constitution’s Bill of Rights or the Massachusetts Constitution’s Declaration of Rights would yield no finding of the right to privacy explicitly.132U.S. Const. amend. I–X; Mass. Const. art. 1–30. Yet judicial interpretation found this right located implicitly within the penumbra of those rights guaranteed in the Constitution.133Griswold, 381 U.S. 479, 483. The right to privacy, as a more generalized form, incorporates particularized rights such as the right to purchase and use contraception, to refuse medical treatment, and to choose whether to have an abortion.134See, e.g., Griswold, 381 U.S. 479 at 485–86; Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387, 390 (Mass. 1981); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977). Some fundamental rights are “older than the Bill of Rights – older than our political parties, older than our school system,”135Griswold, 381 U.S. at 486. and are thus deeply rooted in the history and traditions of the nation.136Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The asserted right to PAS, however, was never considered as one of the more particularized rights under privacy and was therefore kept out of past legal precedent.137 Id. at 723–24. Consider Washington v. Glucksberg,where the Court noted that the right to privacy is fundamental and that rights under it are fundamental as a result; but because suicide did not fall under privacy, it could not be deemed fundamental.138See id. at 761–62.
Without placement in privacy, an alleged right to PAS must be deeply rooted in history and tradition on its own to be deemed fundamental.139Id. at 721. Massachusetts, as explained in Kligler v. Attorney General, never statutorily or constitutionally permitted suicide.140198 N.E.3d 1229, 1253–55 (Mass. 2022). Unlike many other rights under privacy, “it has never enjoyed similar legal protection.”141Glucksberg, 521 U.S. 702, 725. The prohibition of suicide far precedes the Commonwealth’s founding in 1788, and the effects of its prohibition continue well into today. Any claim that suicide is deeply rooted in the history and traditions of Anglo-American, statutory, or constitutional law in the Commonwealth is against the overwhelming weight of the evidence proffered in Kligler v. Attorney General.142198 N.E.3d 1229, 1253–55.
The historical analysis is an ill omen for establishing the right to PAS. However, this asserted right is not alone in lacking positive historical treatment;143See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015); Lawrence v. Texas, 539 U.S. 558, 571–572 (2003). hence, the SJC declared the comprehensive approach to be the standard for due process analysis in Massachusetts.144Kligler, 198 N.E.3d at 1251.
C. Reasoned Judgment Places Physician-Assisted Suicide Under the Right to Privacy and Deems it Fundamental in Light of Societal Changes
Other, more particularized rights to privacy also lack roots in both history and tradition.145See, e.g., Obergefell, 576 U.S. at 664; Lawrence, 539 U.S. at 571–72. However, the vehicle of reasoned judgment, which may determine that a right is fundamental “even if it has not been recognized explicitly in the past,”146Kligler, 198 N.E.3d at 1249. finds these rights within privacy because of their significance.147See, e.g., Obergefell, 576 U.S. at 664. The same reasoning holds true for PAS.
The right to privacy concerns preventing the disclosure of personal matters and, more notably here, the freedom to make certain important decisions.148Whalen v. Roe, 429 U.S. 589, 599 (1977). Under the latter thrust of this generalized right, the SJC decided cases which afforded fundamental interests in abortion and the refusal of medical treatment.149See, e.g., Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387, 397 (Mass. 1981); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 427 (Mass. 1977). The Court reasoned that the right to privacy covered the refusal of medical treatment because, for example, the right “is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life.”150Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977). While the right to refuse treatment is not directly comparable to PAS,151Id. the right to privacy covers both end-of-life decisions because each expresses the aforementioned sanctities, albeit in different ways. These sanctities also provided reason to apply the right to privacy for the right to an abortion, in the case of Moe v. Sec’y of Admin. & Fin.152417 N.E.2d at 398–99. The SJC noted that “the value of life as so perceived is lessened . . . by the failure to allow a competent human being the right of choice.”153Moe, 417 N.E.2d at 399; accord Saikewicz, 370 N.E.2d at 425–26. This statement reflects the understanding that failing to allow competent adults the opportunity to make decisions free from government intervention hinders the fundamental right to privacy as a whole. Given the unparalleled importance in deciding when to end one’s life and given that the right to privacy protects important choices of self-determination, the right should extend to cover PAS.
Regardless of whether PAS is covered by the right to privacy, modern precedent and society point to the practice’s fundamental nature. “The provisions of our Constitution are, and must be, adaptable to changing circumstances and new societal phenomena.”154Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 974 n.6 (Mass. 2003). For this reason, the courts may look to recent experience instead of the views of those living one-hundred years ago.155Kligler, 198 N.E.3d at 1251–52. For instance, life expectancy has increased over recent years but healthy life expectancy has not kept up because of “declining mortality rather than reduced years lived with disability.”156GHE: Life Expectancy and Healthy Life Expectancy, WHO, https://perma.cc/5V4A-GY3X (last visited Jan. 17, 2024). A majority of deaths in recent decades resulted from chronic illnesses; however, Americans are living longer now while suffering from these illnesses.157Mark T. Hughes & Thomas J. Smith, The Growth of Palliative Care in the United States, 35 Ann. Rev. Pub. Health 459, 461 (2014). As people live longer with chronic illnesses, they not only suffer but face both greater expenses and a greater need for support; neither of which are readily available.158Id. These hardships place a great burden on terminal patients and their families, who, without the option of PAS, have no choice but to suffer. The great irony here is that while the Commonwealth repealed punishment for suicide because it only punished the person’s family, it still prohibits PAS despite causing the family the same harm.159Kligler, 198 N.E.3d at 1253–54. Society has also experienced a change in opinion. Over seventy percent of Americans are in favor of PAS, a number which has steadily increased over the years.160Jen Allen et al., Americans’ Attitudes Toward Euthanasia and Physician-Assisted Suicide, 1936–2002, 33 J. Socio. & Soc. Welfare 5, 13 (2006). The support today is equivalent to those currently in favor of same-sex marriage, which the U.S. Supreme Court established as a fundamental right nearly a decade ago.161Justin McCarthy, U.S. Same-Sex Marriage Support Holds at 71% High, GALLUP (June 5, 2023), https://perma.cc/5HA3-9M5R. The Court in Obergefell v. Hodges counted same-sex marriage’s acceptance through legislative and judicial measures in several states as evidence of its prevalence in modern society.162576 U.S. 644, 662 (2015). Similarly, legalization of PAS in ten states points to its prevalence in modern society.163States Where Medical Aid in Dying Is Authorized, supra note 61. The circumstances, public opinion, and modern legal precedent point to the fundamental importance of PAS in the present.164Kligler v. Attorney General, 198 N.E.3d 1229, 1252 (Mass. 2022). The current views of the general public and PAS’s prevalence in modern legal precedent closely mirror those which factored into the establishment of same-sex marriage as fundamental.165See Obergefell, 576 U.S. at 662; McCarthy, supra note 161. Reasoned judgment and modern precedent require that the right to PAS be viewed in the same way.
D. The Right to Physician-Assisted Suicide Outweighs the State’s Compelling Interests
While Kligler v. Attorney General concerns manslaughter,166198 N.E.3d at 1237. the state interests often addressed in PAS cases are fairly universal.167See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728-29 (1997). The Tenth Amendment to the U.S. Constitution reserves police powers in the states.168U.S. Const. amend. X. Police powers are summarized as the ability to enact laws in the interest of public safety, health, morals, and the general welfare.169Police Power, Britannica, https://perma.cc/8UA6-C89P (last updated May 25, 2023). Governmental interests drive legislation and come in varying levels of importance.170Robert T. Miller, What is a Compelling Governmental Interest?, 21 J. Mkts. & Morality 71, 81 (2018) (identifying levels of interest: compelling, rational, and important). Legislation touching upon fundamental rights must be narrowly tailored to serve a compelling interest.171Id. at 79.
Several state interests are at play here. The most prominent is the preservation of human life. This interest is practically explicit within the police powers. Suicide, being naturally and obviously contradictory to the preservation of life, is an act the state is well within its power to prevent where possible. However, the circumstances and situations to which PAS are applicable are unique from other forms of suicide.172See, e.g., Kligler v. Attorney General, 198 N.E.3d 1229, 1254 (Mass. 2022). The most significant difference being that PAS, when permitted, is only allowed for terminally ill patients with six months or less to live.173See, e.g., id.; Or. Rev. Stat. 127.800 § 1.01(12) (2023). In these cases, the patients wish to end their lives not because of mental illness or other reasons often responsible for suicide, but because they seek to end “their suffering with a dignified death.”174Chamberlain, supra note 98, at 79. In Superintendent of Belchertown State School v. Saikewicz, the SJC considered factors under which a patient could take action resulting in his death.175370 N.E.2d 417, 422–23 (Mass. 1977). These factors included immediate suffering, quality of life, and the chance of recovery.176Id. at 422. As terminal illnesses cannot be cured, the chance of recovery seems incredibly low.177What is a Terminal Illness?, Marie Curie (Apr. 4, 2022), https://perma.cc/5ZJ4-GTC9. Further, quality of life is often the primary and only focus available as the patient is unable to recover. End-of-life care usually emphasizes “peace of mind, comfort, and spiritual understanding.”178Anita L. Stewart et al., The Concept of Quality of Life of Dying Persons in the Context of Health Care, 17 J. Pain & Symptom Mgmt. 93, 98 (1999). Patients seeking the option of PAS often do so for peace of mind.179Kligler v. Attorney General, 198 N.E.3d 1229, 1238, 1243 (Mass. 2022). While some patients may not suffer physically,180Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 422 (Mass. 1977). many suffer mentally as “psychological distress, particularly depression, anxiety, fear, and worry [are] prevalent in patients who are dying.”181Stewart, supra note 178, at 100. These issues apply here and favor allowing the same kind of conduct.182Compare Kligler, 198 N.E.3d at 1237, 1261 (considering issues of patients seeking PAS), with Saikewicz, 370 N.E.2d at 422 (considering issues of patients seeking to refuse medical treatment). Justice Stevens, in his Washington v. Glucksberg concurrence, noted that even though “the State’s interest in the contributions each person may make to society outweighs the person’s interest in ending her life, this interest does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die.”183521 U.S. 702, 736 (1997) (Stevens, J., concurring). While all lives are equal under the law,184U.S. Const. amend. XIV. the compelling nature of the state’s interest in preserving life is greatly diminished when the quality of life, avoidance of suffering, and chance of recovery are so absent. Many terminally ill patients may not experience these issues, but for those who do, the option to exercise their right to PAS should be established.
Two other commonly cited interests are maintaining the ethics and “integrity of the medical profession,” as well as “protecting vulnerable groups,” such as those who are disabled to the point where they cannot speak.185See generally Chamberlain, supra note 98, at 83. Turning first to the latter, and disregarding that the potential “abuse of a legal right is not sufficient to justify withholding that right,”186David Benetar, A Legal Right to Die: Responding to Slippery Slope and Abuse Arguments, 18 Current Oncology 206, 206 (Oct. 2011), https://perma.cc/PZF9-UAN8. statutes legalizing and regulating PAS provide numerous safeguards to protect against abuse.187See, e.g., Or. Rev. Stat §§ 127.800–127.995. These safeguards are and should be left to the discretion of the legislature. Adjacent to the jurisdiction of the court, and of relevance here, are the integrity and ethics of the medical profession. The SJC noted that the American Medical Association and other prominent medical groups do not support the establishment of PAS.188Kligler v. Attorney General, 198 N.E.3d 1229, 1258 (Mass. 2022). After all, 2,000 years of medical ethics are dismissed when a physician aids in one’s death.189Id. This evidence that the medical community in the U.S. opposes the conduct is strong but not absolute as many in the field seek its legalization.190See, e.g., Joshua Pagano, Medical Aid in Dying Allows for a Focus on Living, Psychiatric Times (Jan. 7, 2022), https://perma.cc/QWN5-GUTS; Chris Haring, Medical Aid in Dying as an End-of-Life Option Offers Death with Dignity, Death with Dignity (Mar. 29, 2023), https://perma.cc/55Q7-YEWD. As early as 1977, the SJC recognized that a physician’s perceived duty to make every effort to prolong life may not be in line with “the best interests of the patient.”191Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 423 (Mass. 1977). Oftentimes, the efforts deployed to keep people alive longer only extend suffering, increase economic harm, and separate families from their loved ones in the final days of the patients’ lives.192Id. at 423–24 (quoting Howard P. Lewis, Machine Medicine and Its Relation to the Fatally Ill, 206 JAMA 387 (1968)). The possibility of abuse and challenges to the medical ethics of PAS are strong and well-merited. Yet neither are compelling enough to impede this fundamental right.
The SJC should have held that PAS is a fundamental right and requires laws interfering with it to be narrowly tailored to achieve compelling state interests.193Contra Kligler v. Attorney General, 198 N.E.3d 1229, 1259 (Mass. 2022). The preservation of life is obviously an exceptionally compelling interest, but it must be narrowly tailored when balanced against the right to PAS. A person is liable for involuntary manslaughter when she intentionally causes the death of another in a wanton or reckless manner.194Kligler, 198 N.E.3d at 1242. Laws around the country permitting PAS are narrowly tailored to restrict the permissive conduct and thus safeguard against manslaughter.195Compare Or. Rev. Stat. §§ 127.800–127.995 (2023), with Kligler, 198 N.E.3d at 1242 (regulating PAS may impose liability for manslaughter where regulations are not followed). When a physician fails to follow the proper protocol, said physician creates a substantial risk that the patient’s choice on whether to die cannot be accurately determined, and, as a result, she may be liable for manslaughter.196See Kligler, 198 N.E.3d at 1242. This interest is compelling, but the narrow tailoring of laws permitting PAS remove it as a concern.
Conclusion
The SJC, in Kligler v. Attorney General, declined to establish PAS as a fundamental right.197198 N.E.3d at 1255. In reaching this decision, the Court correctly chose to apply the comprehensive approach to substantive due process analysis but failed to follow through with it. The Court did not frame the right in a generalized format and did not apply reasoned judgment.198See id. at 1253–59. If the SJC had analyzed PAS in accordance with the selected approach, they would hold the right as fundamental. Still, the Court was correct to conclude that neither the right to refuse medical treatment nor the equal protection of law apply to PAS.
The state has compelling interests in the preservation of life, medical ethics, and the prevention of abuse.199Washington v. Glucksberg, 521 U.S. 702, 708–709, (1997); Chamberlain, supra note 98, at 83. However, each of these interests are insufficient when compared to the comfort, peace of mind, and chance for relief that PAS offers terminally ill patients who are not only deprived of all hope but who suffer greatly in the end.
