This article discusses the right to assisted suicide, a right not derived from anything explicit or implied in any textual provision of the Constitution. It is a right derived from the two underlying political philosophies, which form the basis of the entire U.S. Constitutional enterprise: John Locke's Social Contract and Civic Republicanism. In Part I, this article discusses Glucksberg's fundamental rights analysis. So much has been written about this case that this article will limit comments to briefly adding thoughts as to why, given the combination of the Court's motivation, both institutional and pragmatic, in approaching this case, and its methodology for analyzing fundamental rights, a nine to zero decision was fairly predictable, even in this difficult, emotionally compelling case. Part II gives more consideration to the equal protection claim. Those entering the debate in Vacco v. Quill regarding whether there is an equivalence between terminating life support (which the law permits) and assisted suicide (which the law forbids), have done so in a rather conclusory fashion, whether contending for" or against" equivalence. Many entering the debate also have failed to explicitly question whether, even if what we condone in end-of-life care cannot be morally distinguished from assisted suicide, there may be meaningful distinctions in policy of which the law may properly take into account. A detailed equal protection analysis of legally accepted medical practices in end-of-life care-pulling the plug, refusing treatment, the principle of double effect, and terminal sedation is, therefore, appropriate. In Part III, this article discusses the Social Contract theory and Civil Republicanism. I explain why the combination of these political philosophies underlying the Constitution provide people like my father, both past the age of Social Security retirement and incapable of ever again participating in the political process, with a right to end their lives.
John B. Mitchell,
My Father, John Locke, and Assisted Suicide: The Real Constitutional Right, 3 IND. HEALTH L. REV. 45