Issue: Whether Washington state’s prohibition against “causing” or “aiding” suicide violates S.D.P. as applied to a mentally competent, terminally ill adult patient’s right “to commit physician-assisted suicide.”
Take a look at page 686 where the Court talks about the ‟established method of substantive-due-process analysis.”
The Court says that the Plaintiff challenging a law as infringing a fundamental right under S.D.P. must meet a two-part test as a ‟threshold requirement” – P.687
First, he must show that the liberty he is asserting is objectively ‟deeply rooted in this Nation’s history and tradition.” (p. 686)
Second, a ‟careful description” of the “asserted fundamental liberty interest” (p. 686) is required to ensure that it is truly history and tradition that provide the guideposts for the Court’s analysis and to ‟rein in the subjective elements that are necessarily present in due-process judicial review.” (p.686)
So, in Glucksberg, we ask whether ‟suicide and assisted suicide” are deeply rooted in our history and traditions, and not whether ‟personal autonomy over intimate decisions affecting one’s human dignity” is deeply-rooted. The second inquiry is simply too vague to produce accurate historical guideposts.
Notice however that a specific historical inquiry often may discover a fundamental right.
‒ Is the right to refuse invasive medical treatment deeply-rooted in our history and traditions? See P. 687
‒ How about the right of a terminally ill patient to obtain medical relief from intense pain and suffering, even if the pain medication might hasten death? See O’Connor concurrence at P.691
Notice that Glucksberg was decided in 1997 and Obergefell in 2015. Apply Glucksberg to the argument that S.D.P. protects a fundamental right to same-sex marriage? Objectively deeply-rooted in American history and tradition?
Here is how Justice Kennedy defends treating same-sex marriage as a fundamental right:
He notes that although "it cannot be denied that this Court's cases describing the right to marry as a fundamental right presumed a relationship involving opposite-sex partners...[t]he Court, like many institutions, has made assumptions defined by the world and time of which it is a part." (p. 597) However, although the "limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest." (p. 599). Kennedy avoids Glucksberg by asserting that "it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy." (p. 599). Basically, he says Glucksberg applies to physician-assisted suicide as a liberty, but not to other fundamental rights analysis.
But here is how Justice Alito responds in his dissent:
To prevent five unelected Justices from imposing their personal vision of liberty upon the
American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg . . . . And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, . . . (Alito, J., dissenting) . . . .
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental. (p. 610)
Which of these positions is the law today in the wake of Dobbs? Is Glucksberg a ticket for one train only--for physician-assisted suicide--or is it the governing test for discovering fundamental rights under SDP?
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