End of Life Options Constitutional Analysis
Constitutional Fundamental Rights
In the US, rights which are specifically identified in the US Constitution and enumerated in the Bill of Rights are considered to be fundamental rights. Allegations of encroachments on our fundamental rights receive the highest level of review in US courts.
Two fundamental rights which directly impact our autonomy and rights of self-determination, and therefore our ability to determine and direct our own healthcare, are our liberty right and our right to privacy. Most healthcare and end of life rights that we currently have are defined under and rooted in these two fundamental rights.
While our liberty right is specifically identified in the Constitution, our right to privacy has been established through constitutional analysis. The Court has held that the right to privacy is an extension of our liberty right, and is therefore a fundamental right; however, the correctness of this analysis is still hotly debated and the scope of what constitutes protection from the right and whether the right should be considered as fundamental is still at issue.
The Due Process Clause of the 5th and 14th Amendments which states that no one shall be “deprived of life, liberty or property without due process of law,” protects individuals from state legislation that infringes on their “privileges and immunities” under the federal Constitution. An analysis of a right under this clause concerns interpretation of a fundamental right under the US Constitution, and whether an unenumerated right should be considered as extending from that fundamental right.
Our liberty right has long been interpreted to include other unenumerated rights which naturally extend from our liberty right and are considered to be fundamental rights because they are deemed to be “implicit in the concept of ordered liberty” and deeply rooted in our nation’s history and traditions. Among these rights are our right to privacy and bodily integrity.
Other unenumerated rights which have historically been considered as fundamental rights are: freedom from imprisonment; the right to contract; to work; to worship; to drive; rights of interstate travel; to acquire useful knowledge; procreate, marry and establish a home; the rights of parents to have custody and direct parenting of their own children; the right to enjoy privileges essential to the pursuit of happiness; and the right to vote.
Right to Privacy
One of the first and most important rights that has been established which most concerns our healthcare, is the right to bodily integrity and freedom from restraint. This right allows individuals to be free from intrusions on their bodies against their will, and from arbitrary and capricious government actions that ‘shocks the conscience.’ This right is rooted in the 4th Amendment and the fundamental right to privacy.
While this right was formerly established in1965 in Griswold v. Connecticut , the concept of the right to privacy was first raised by Justice Brandeis in his article, “The Right to Privacy” which advocated for the “right to be let alone.” Griswold created new fundamental rights under the liberty right, a category of rights related to the right to privacy and autonomy. Privacy rights being considered as fundamental rights was a significant development in the path to establish the right to determine and direct our own medical care.
The right of privacy is derived from several Bill of Rights guarantees and the “penumbras and emanations” articulated in Griswold, which collectively create a right to privacy. These are rights related to sex, marriage, family, child-bearing and child-rearing. In one case, US v. Windsor, the Court found that the Due Process Clause also protects dignity, not just privacy.
The “penumbras and emanations” were met with sharp dissent and their legitimacy and authority have been strongly debated through the years. However, since Griswold, three significant cases, relying on the right to liberty under the Due Process Clause and not the penumbras, have extended the right to privacy to establish that:
- the right to privacy inheres in the individual, not the marital couple (Eisenstadt v Baird, 1972);
- the right to privacy includes a woman’s right to have an abortion founded in a rule of personal autonomy and the concept that a state’s interest in protecting life falls short of justifying any override of individual liberty (Roe v. Wade, 1973); and
- the right to privacy extends to “persons of the same sex [who choose to] engage in … sexual conduct.” (Lawrence v. Texas, 2003).
Through the years, the US Supreme court has found an implied right to privacy in the US Constitution under the Due Process Clause, the penumbras and emanations of the liberty right, and the personal protections expressly stated in the 1st, 3rd, 4th, 5th and 9th amendments. They have found that right to extend to the right of a “zone of privacy,” the right to purchase and use birth control, the right to receive an abortion, and the right to family relations, including relatives living together and parents’ rights to direct education.
The right to privacy has not been extended to same sex marriage, but laws against it have been held to be irrational (Zablocki v. Redhail, 1978). There has also been no finding of a fundamental right to engage in adult consensual sexual activity but laws against may be irrational if they interfere with autonomy. All sodomy laws are irrational (Lawrence) but states may prohibit adultery, incest, bestiality, bigamy because they have been held not to be irrational because the individual liberties at stake are potentially harmful to others.
The Right to Direct Your Own Medical Treatment
The patient’s right for medical assistance in dying
Everyone has a right to direct their own medical treatment. Patient self-determination, autonomy, is a fundamental right, a protection found in the right to liberty Everyone is entitled to make their own decisions about the medical care they receive, within the boundaries of the law, and there is a legal presumption that they are competent to do so until a court of law determines otherwise.
Since the mid-1970’s, the legal landscape of healthcare rights in the US has been continually evolving. Two landmark cases yielded laws that recognize and authorize things like advance directives, durable powers of attorney for health care and living wills: Karen Ann Quinlan’s case (1976) resulted in the first State Supreme Court level decision regarding end-of life decision making. (NJ Supreme Court); and Nancy Cruzan’s case (1990) resulted in the first U.S. Supreme Court decision on this issue.
Together, these two rulings:
Then, in 1998, the case of Terri Schiavo arose in Florida and sparked a national debate about the right to die – or as it was being framed, the “right to life.” Since Shiavo had not designated a surrogate to speak for her, the battle waged long and hard over who held her decision making authority. In spite of 14 appeals, and state and federal executive orders to keep her alive, her feeding tube was finally removed in 2005. The outcome of the Shiavo decision is that without clear and convincing evidence of the incapacitated patient’s wishes, the law does not allow for the withdrawal of life-sustaining treatments.
Physician’s right to provide assistance in dying:
Federal Healthcare Rights
Patient Self-Determination Act of 1990
The purpose of the Patient Self-Determination Act is to inform patients of their rights regarding decisions about their medical care and to ensure that healthcare providers communicate with their patients to ensure that patients are aware of and understand these rights. It requires healthcare facilities, agencies, programs and organizations to (1) inform patients of their healthcare rights under State law; (2) indicate in a person’s medical record whether they have executed and advance directive; (3) not discriminate against people who have advance directives; (4) ensure compliance with State law regarding advance directives; and (5) educate staff and community on issues concerning advance directives.
Patient’s Bill of Rights
As a patient in a hospital or medical office in the US, you have certain rights regarding your healthcare. There are laws in place to enforce those rights and protect you. It is important to know your rights, keep yourself informed, and participate in your healthcare.
The American Hospital Association (AHA) adopted the Patient’s Bill of Rights in 1973 and revised them in 1992. It is a list of 15 rights you have as a patient when you are at a hospital or medical office.
They were enacted to ensure that patients at US hospitals received fair treatment and encouraged to take part in their healthcare. Their goal is to promote respect for patients and providers and to improve delivery of effective patient care. You or your caregiver have the freedom to exercise any of these rights when you are in any hospital in the US. If you believe at any point that a provider has violated your rights, ask to speak to the hospital’s patient advocate or ombudsman.
In 2010, President Obama announced the ACA Patient’s Bill of Rights that includes a set of protections applying to health coverage, creates a foundation of patients’ rights in the private health insurance market, and puts Americans in charge of their own health.
The Patient’s Bill of Rights, among other things, gives you the right to:
You have the right to receive treatment that might benefit you and you can reject curative treatment that may not be benefitting you at any time. When offered a treatment ask what the benefits and risks are, whether the doctor would accept the treatment him/herself, if in your situation, and why, and if there are alternative options and the benefits and risks of those options.
You have the right to have any treatment, including life-sustaining treatment such as a feeding tube, respirator, antibiotics or dialysis withheld or withdrawn at any time. This is your decision as long as you have decision making capacity. If you have a health care agent, that person may be able to make those decisions for you.
You have rights regarding palliative care. Palliative care is available to anyone at any state of health to prevent and relieve suffering and address symptoms, and to provide the best quality of life for you and your family.
You may request palliative sedation if you are close to dying, have symptoms which cannot be controlled, are suffering terribly as a result. You also have the right to voluntarily stop eating and drinking which is usually a peaceful way of dying and can be done in conjunction with hospice and palliative support.
Other Federal Healthcare Rights
- Health Information Privacy – Health Insurance Portability and Accountability Act (HIPPA) – The Privacy Rule under HIPPA gives you rights over your health information.
- Clinical Trial Participant Rights – The National Institute of Health also published a (NIH) Patient Rights – List of 12 rights you have as a volunteer participating in clinical trials
- R. 647, Oct. 29, 2019: House bill on Palliative Care education and information, Part D of Title VII of the Public Health Service Act (42 USC 249 et. seq.) as amended by inserting after section 759
- EMTALA: the right to emergency medical and childbirth services without the precondition of payment or proof of insurance. Note that while you have a right to receive these emergency services, they are not provided for free, only without the precondition of payment
Other State Actions on MAiD
Almost every US jurisdiction criminally prohibits assisting another person to commit suicide and these laws are deeply rooted in our nation’s history. While most states have only general statutes, six states, including Georgia, (AL, AK, GA, ID, OH, RI) have laws expressly against MAID. In the years to come, the work will continue across many other states to establish MAID as a constitutional right, founded in our right to liberty under which we have defined a right to privacy and autonomy, and dignity, and it is each person’s right to determine their own individual definition of dignity.
In 2020, Georgia was one of twenty other states to introduce a MAiD bill.