2022 was a bad year for substantive due process claims in American constitutional law. The low point came in Dobbs v. Mississippi, when the U.S. Supreme Court took a sledge hammer to decades of precedent that had established reproductive freedom as a fundamental right under the 14th Amendment.
In his Dobbs opinion, Justice Samuel Alito insisted that Roe v. Wade was “egregiously wrong” in part because the right to abortion was not “deeply rooted in this Nation’s history and tradition.”
2022 also marked the 25th anniversary of a case that helped prepare the way for Alito’s cramped constitutional vision—Washington v Glucksberg. In Glucksberg, the Court refused to recognize the right to assistance in suicide as a fundamental right because it also was not “deeply rooted in this Nation’s history and tradition.”
But in the years since Glucksberg, courts in Montana and California have recognized such a right under state law.
If Montana and California courts can do it, why not courts in Massachusetts where I live?
After all, Massachusetts is one of the bluest of blue states, so I had high hopes when its highest court was asked last March to recognize a right to assistance in suicide under the Massachusetts Declaration of Rights.
Reuters reported that during oral argument the court “appeared open to legalizing medically assisted suicide in the state as justices questioned why terminally ill patients do not have a constitutional right to control when and how they die.”
My hopes were buttressed by scholars, commentators, and even a Justice of the U.S. Supreme Court who have claimed that state constitutions and state constitutional traditions could be bastions of liberty and progressive federalism at a time when the U.S. Supreme Court seems inhospitable to many rights claims.
As Justice William Brennan noted in a 1977 contribution to Harvard Law Review, “More and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased. This is surely an important and highly significant development for our constitutional jurisprudence and for our concept of federalism.”
Couldn’t my home state see that logic? Politics suggest that it should have.
A 2012 study concluded that the Massachusetts Supreme Court was the 11th most liberal state supreme court in the country. And the Commonwealth is known nationally for its historic rulings on same-sex marriage, criminal justice reforms, and racial justice
But Republican Governor Charlie Baker has named all of the Justices on the Court during his two terms in office. And those appointments are consequential.
The Boston Globe notes that Baker has produced “a centrist court — or, to some, a notably unideological one — that has already begun to reflect the moderate Republican’s own preference for pragmatism, collaboration, and, sometimes, caution.”
Still, I was deeply disappointed when, on December 19, that court decided that if I become terminally ill, I won’t be able to end my life my way, with the assistance of a physician.
But before looking more closely at its reasoning, it is worthwhile revisiting Glucksberg, which was a touchstone for the Massachusetts ruling.
In Glucksberg, the Supreme Court was asked to rule on the constitutionality of a Washington state law that made “[p]romoting a suicide attempt” a felony. The law said: “A person is guilty of [that crime] when he knowingly causes or aids another person to attempt suicide.”
The petitioners, including four physicians, three terminally ill patients and a non-profit, death with dignity organization, argued that the liberty protected by the Fourteenth Amendment’s Due Process Clause includes “a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.”
They won in a federal district court, and that decision was affirmed by the U.S. Court of Appeals for the Ninth Circuit sitting en banc.
Rereading the Ninth Circuit opinion written by Judge Stephen Reinhardt only deepened the sense that I have been let down by my state supreme court.
Reinhardt acknowledged that the issue of assisted suicide “raises an extraordinarily important and difficult issue…. It requires us to confront the most basic of human concerns-the mortality of self and loved ones—and to balance the interest in preserving human life against the desire to die peacefully and with dignity. “
But he concluded that “there is a constitutionally-protected liberty interest in determining the time and manner of one’s own death.” He held “that insofar as the Washington statute prohibits physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths, it violates the Due Process Clause of the Fourteenth Amendment.”
Alas, the Supreme Court gave short shrift to Reinhardt, in what one legal scholar labeled a “tragically wrong” decision.
Chief Justice William Rehnquist said that the Due Process Clause only “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’
Not surprisingly, he found that looking at “our Nation’s history, legal traditions, and practices demonstrates that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years.”
Rehnquist offered a familiar, judicial piety when he concluded, “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”
Because Glucksberg’s focusing on history and tradition dooms any hope for recognizing a right to assistance in suicide, I initially was pleased to see that the Massachusetts Supreme Court rejected that approach for adjudicating substantive due process claims under the state constitution.
Justice Frank Gaziano, writing for the majority, adopted what he called “a more comprehensive approach” to substantive due process adjudication.
Following that approach, judges should use “reasoned judgment to determine whether a right is fundamental, even if it has not been recognized explicitly in the past, guided by history and precedent.” And, in a Reinhardt-like gesture, Gaziano warned that “the exercise of reasoned judgment cannot be reduced to a mechanical formula.”
He seemed to give the back of his hand to Rehnquist and Alito when he said that their approach held the recognition of new rights hostage to what Gaziano called “the bigotry that too often haunts our history.”
But then, in a surprising move, he turned right back to that same kind of historical narrative. Channeling Rehnquist, Gaziano stated flatly that “There is little question that, throughout history, American society has not regarded suicide, in any form, as an individual right.”
As I read that sentence I could see the right I long for slipping away. A few pages more of references to how suicide has been “regarded” and things only got bleaker.
Along the way, Gaziano belabored the now widely criticized distinction between the right to refuse medical treatment and physician-assisted suicide. He completed his evisceration of the right to assistance in suicide, or death with dignity, by genuflecting to “long standing opposition to suicide” and the “absence of modern precedent” supporting “medical intervention that causes death.”
Then, going full Rehnquist, Gaziano held out a vision of the democratic process, often unrecognizable even in Massachusetts, where the question of whether I can have the assistance of a physician to ease my death could be resolved through “informed…robust debate and thoughtful research by experts in the field.”
News reports suggest that state legislators plan to introduce a bill in the forthcoming state legislative session that would allow Massachusetts to join the ten other states and the District of Columbia where medical aid in dying is legal. Similar bills have been introduced without success every year for the last decade. We will soon see whether Gaziano’s vision of democracy will bring death with dignity to this state.
In the meantime, it is fair to say that 2022 was a bad year for substantive due process not just at the national but in Massachusetts as well.