Boot-Strapping Down a Slippery Slope in the Second and Ninth Circuits: Compassion in Dying is Neither Compassionate Nor Constitutional

Abstract

INTRODUCTION|In 1996, two federal appellate courts at opposite ends of the Nation concluded that the terminally ill have a constitutionally protected right to physician-assisted suicide. In Compassion in Dying v. Washington, the United States Court of Appeals for the Ninth Circuit held that physician-assisted suicide is a liberty interest found within the Due Process Clause of the Fourteenth Amendment. In Quill v. Vacco, the United States Court of Appeals for the Second Circuit agreed with the Ninth Circuit's conclusion, but disagreed with its analysis, maintaining instead that this right derives from the Equal Protection Clause by virtue of the fact that terminally ill persons on life-support are afforded opportunities to hasten death unavailable to terminally ill persons not on life-support.|According to these courts, then, the purported right to physician assisted suicide is found in the Fourteenth Amendment to the United States Constitution. This right allegedly flows from the privacy rights developed in the early marriage and procreation cases and from the penumbras of the Bill of Rights. By repeated expansion, the United States Supreme Court has interpreted the Constitution to include a parent's right regarding child rearing and education, a right to contraception, a right to marriage, and eventually a right to abortion. Now the right is purportedly being expanded to include physician-assisted suicide...