It has become somewhat of a platitude that society's ability to solve technological and scientific problems has far outstripped its ability to solve its moral dilemmas. Indeed, one finds philosophers continuing to wrestle with the same problems Aristotle faced, while science charges forward, making discovery after breathtaking discovery. Never has this disparity in progress become so clear as in the recent Supreme Court cases Washington v. Glucksberg and Vacco v. Quill, which take up the issue of whether terminally ill, mentally competent individuals have a constitutional right to commit physician-assisted suicide.

I review the Court's decisions in a number of ways. In section I, I summarize the opinions of the various justices. Section II analyzes the approaches to determining the existence of a due process liberty interest employed by Justices Rehnquist and Souter. I attempt to show that a more general approach might support a liberty interest in a right to die more than a strict historicist approach. To that end I review the basic principles behind the Constitution as set forth by John Locke and examine recent court cases that may support future attempts to argue for a right to die. Section III analyzes the two differing views on equal protection in the cases of those wishing to commit physician-assisted suicide posed by Scalia and Rehnquist. The analysis concludes that the distinction between one who refuses life-support and one who seeks assisted-suicide may be irrelevant. It is difficult at best to draw important distinctions between the two that require different reactions on the part of the state. In section IV I leave thcase law for a more philosophical discussion. I pose the question: Does physician-assisted suicide necessarily offend the sanctity of life? I find the answer largely depends on one's definition of life. The more exclusive the definition the more of a moral possibility physician-assisted suicide becomes.

In 1975 Washington State passed a law making it a felony to promote, to knowingly cause, or to aid another person in committing or attempting suicide. A group of physicians and terminally ill patients brought suit in district court, claiming that the law violated the due process clause of the fourteenth amendment, which the movants asserted protects a liberty interest held by mentally competent, terminally ill individuals to commit physician-assisted suicide. The district court ruled in favor of the physicians and patients, agreeing that the law placed an undue burden on the exercise of the asserted liberty interest. On appeal, the Ninth Circuit Court of Washington, found for the physicians and patients. The court held that the Constitution protects, through the due process clause, a liberty interest in controlling the time and manner of one's death. Therefore, the Washington law was unconstitutional. The Supreme Court, however, reversed the lower court's ruling in an opinion written by Chief Justice Rehnquist, with whom Justices O'Connor, Scalia, Kennedy and Thomas joined at least in part. In the opinion of the Court, Chief Justice Rehnquist employs an historicist test to determine if, in fact, the due process clause recognizes a liberty interest in committing suicide and thus physician-assisted suicide¹. The due process clause of the Fourteenth Amendment states "nor shall any State deprive any person of life liberty or property without due process of law". Rehnquist finds the Washington law constitutional, basing his opinion on answering the question, does the due process clause protect a right to commit suicide. He asserts the history and traditions of the United States do not support any such right, using four important pieces of evidence. First, he notes that for over 700 years Anglo-American law has disapproved of suicide and assisted-suicide. Furthermore, Sir William Blackstone, whose Commentaries formed the basis for jurisprudence in the United States until the 20th century, calls suicide "self murder" and places it among the most severe crimes².

Second, when the Constitution was written the colonies all had adopted laws against suicide. Third, when the Fourteenth Amendment was adopted in 1868 it was a crime in most states to assist suicide. Fourth, many states (including Washington and California) recently have reaffirmed, through the legislation or referenda, rejections of assisted suicide. In short, nothing within our legal traditions or historical practices supports a right to die. Indeed, history and tradition support the opposing claim. Additionally, Rehnquist argues that the state has a compelling interest in preserving human life in preventing suicide in any form, as well as in protecting the physician's role as a healer.

Rehnquist cites Palko v Connecticut, arguing that extending substantive due process must only be for the sake of protecting rights or liberty interests that are "so rooted in the traditions and conscience of our people as to be ranked fundamental."³ He therefore comes to the conclusion, given the evidence that a review of our traditions produces, that "we are confronted with a consistent and almost universal tradition that has long rejected the asserted right(to assist suicide), and continues explicitly to reject it today, even for terminally ill, mentally competent adults." ⁴ Tradition and history simply do not support a right to commit assisted suicide and thus the right or liberty interest is not protected by the due process clause.

Justice O'Connor, joined by Justice Ginsburg, concurs in the judgment in part, but writes separately to note that the law does not on its face prevent a terminally ill individual from hastening her death. Noting that the question the case poses is whether a terminally ill, mentally competent, suffering individual has a constitutional interest in "controlling the circumstances" of her own death, O'Connor finds the question unpressing as long as palliative care remains an option. As long as no legal barriers exist to obtaining medication to alleviate suffering, to a point of unconsciousness hastening death, then there is no need to decide whether the law offends the asserted right.

Justice Stevens also concurred in the judgment but had a much more open mind to recognizing the liberty interest in certain cases. He agrees with the Court that the liberty interests protected by the due process clause excludes a categorical right to assisted suicide. However, an asserted right to patient-physician assisted suicide may prevail over a state statute that only outlaws physician-assisted suicide. Nonetheless, since the patients in the case had died, the question the Court faces is whether the Washington statute is unconstitutional in all cases of assisted-suicide. Stevens was unwilling to claim that it is.

Justice Souter's concurring opinion presents a different test for determining due process liberty interests than Rehnquist's. Although their tests differ, Souter argues that the liberty interest in the case, even if it does exist, cannot outweigh Washington's interest in preserving human life. Citing the lack of evidence on physician-assisted suicide's effects, and the Netherlands' difficulties in successfully regulating a very limited form of sanctioned physician-assisted suicide, he asserts that the state can prohibit assisted-suicide until more is known. The legislatures of the several states, he claims, are a much more appropriate venue for discussing and researching the issue of assisted-suicide than the courts.

Justice Breyer also concurs in part with the opinion of the Court and in part with O'Connor. He splits from both by claiming that a right to die with dignity and without pain lies at the core of the definition of a liberty interest. However, the question before the Court would be different if the law targeted drugs and other forms of palliative care that may both ease a dying patient's pain and hasten her death.

The opinions of the justices hold for Vacco v. Quill as well. A New York criminal statute made it a felony to aid another to attempt or commit suicide. The respondents claimed that the statute violated the equal protection clause of the Fourteenth Amendment. The clause states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". Since New York allowed those who were being kept alive artificially to refuse such treatment, thereby bring about their own deaths, the respondents argued that the legal distinction between those who wish to die by refusing treatment and those who wish to die by through physician-assistance violates the equal protection clause, by applying a different standard to those similarly situated.

Rehnquist wrote the opinion of the Court citing primarily from the Glucksberg opinion, which addresses the equal protection claim. Rehnquist notes four factors. First, the New York statute infringes on no fundamental rights and involves no suspect classifications. Second, the distinction made by the two laws is consistent: all individuals are prohibited from assisting suicide; all individuals can refuse life-support treatment. Third, a logical distinction exists between assisting a suicide and letting another die naturally. Fourth, even if a distinction did exist, the state has a strong interest in prohibiting suicide in any form.

The two approaches differ in the level of generality of, and the deference granted to, traditional legal practices of the states. Rehnquist looks to the practice itself to determine if history has protected or condemned it. Souter sees tradition as less solid, as something that has changed and can be changed. Additionally, he emphasizes the "basic values" rather than the practices themselves. Although the historicist approach denies any right to commit assisted suicide, a more general approach might yield that such a right may exist.

The principles supporting the decisions of recent constitutional cases and the principles behind the Constitution have the potential to support an asserted liberty interest in committing assisted suicide. The principles of personal autonomy and bodily integrity free from state intrusion have received historical approval from the Court and the ideas underlying the Constitution.

The Constitution is based largely upon the ideas of John Locke, the seventeenth century British philosopher, who asserted the existence of absolute natural rights held by every human being. Government does not grant these rights, but rather individuals give up some of their natural rights in order for the government to protect their lives, liberty and property⁵. Although Locke specifically denies a right for an individual to commit suicide, the major thrust of his work argues that individuals have rights protecting their autonomy and property⁶. Government intrusions can only be legitimated by the consent of the governed; the government has no independent right to contravene individuals' rights other than those they freely give up. These ideas of freedom from government intrusion show up clearly in throughout the Constitution, but especially within the Bill of Rights. Recent Supreme Court opinions reaffirm Locke's basic principles of protection of personal autonomy and bodily integrity. In Griswold v Connecticut (1965) Justice Douglas writing for the Court asserts that laws prohibiting the use of contraceptives is unconstitutional⁷. More importantly, he proposes a doctrine of unenumerated rights. Although there is not specific right in the Constitution to use a contraceptive, Douglas argues that the spirit behind the Bill of Rights, specifically the first, third, fourth and fifth amendments, creates a right to privacy from government intrusion within the home. The amendments composing the Bill of Rights, he claims, have penumbras that give them practical meaning and substance, without which even the most horrifying government intrusions might be legitimate. Griswold supports a principle of individual autonomy in personal and private acts through its assertion of a right to privacy.

The Court also reaffirmed a right to personal autonomy, and a more specific right of bodily integrity, in the case of Skinner v Oklahoma (1942). The Court found an Oklahoma law calling for the sterilization of certain repeat felons unconstitutional. Justice Jackson argues that there are limits to state intrusion into the bodies of its citizens. "There are limits to the extent to which a...majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority-even those who have been guilty of what the majority define as crimes." ⁸ The Court recognized a right to be free from state intrusion into the bodies of individuals, claiming such an intrusion contradicted the "dignity and personality" inherent to each person, even criminals.

The Court continued its protection of personal autonomy and bodily integrity in the cases over abortion: Roe v Wade (1973) and Planned Parenthood v Casey (1992)⁹. In Roe the Court determined that the "right of privacy, whether it be found in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action...or...in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a decision whether or not to terminate the pregnancy."¹⁰ The Court in this case was willing to extend Constitutional protection to an unenumerated right to an abortion. The opinion of the Court in Casey affirms the holding in Roe.

The Court today reaffirms the long recognized rights of privacy and bodily integrity. State restrictions on abortion violate a woman's right of privacy into two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity. Further, it deprives a woman of the right to make her own decision about reproduction and family planning. Restrictive abortion laws deprive her of basic control over her life¹¹. In both cases the Court at least implicitly, if not explicitly, supported a right to bodily integrity that deserves strong protection from the government rather than casual abridgment.

The most relevant case to assisted-suicide in recent years is Cruzan v Director, Missouri Department of Health¹². Although the ruling of the Court denied Nancy Cruzan's parents the right to take their daughter, who was in a permanently vegetative state from a car accident, off life-support, the Court did not forbid such a right categorically. State governments, the Court concluded, could require the next of kin to present "clear and convincing evidence" that the incompetent individual wished to refuse life support in the event he or she could not survive without it.

In sum, although the Court in Glucksberg and Quill argued against a historical right to suicide, future Courts could legitimately disagree and overturn the decision. Certainly one must look to a higher level of generality than the historicist approach allows in order for these principles to be compelling. The case law affirms a right to bodily integrity, especially over private and personal decisions. Although Cruzan seems the closest analog to Quill and Glucksberg, Justice Blackmun's assertion in Casey that "compelled continuation of a pregnancy" violates a woman's right to privacy and bodily integrity might serve future assisted-suicide cases to a more successful degree. Future Courts may be willing to support the argument that if state governments cannot compel women to continue a pregnancy, then they ought not have the power to compel the mentally competent, suffering, and terminally ill to continue life against their wishes. The logical step is formidable, but not to the degree to make the two assertions completely unrelated. Casey also presents a more forceful argument in that it allows individual control over the body, whereas the other cases (save Cruzan) simply prohibit state intrusion. Cruzan seems unlikely to help future assisted-suicide cases in that the Court's decision allows one to refuse life but not choose death as the respondents in Glucksberg and Quill desire. The distinction between refusing life and choosing death seems superficially compelling. I analyze the distinction in terms of Rehnquist's opinion in Quill and Scalia's concurring opinion in Cruzan in the next section.

Unlike Glucksberg, the respondents in Quill argue that a physician-assisted suicide ban, when viewed in light of the right to refuse life-sustaining medical treatment granted in Cruzan, violates the equal protection clause of the fourteenth amendment. The respondents do not claim a substantive right but rather that the law treats those similarly situated unequally. Rehnquist does not agree. He asserts that "everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no on is permitted to assist a suicide¹⁰." He goes on to argue that laws that apply to all without distinction do not violate the equal protection clause¹¹. Furthermore, the difference between removing life-sustaining treatment and physician-assisted suicide is one of intent, he claims, that the Court has traditionally found relevant. "The law has long used actors' intent or purpose to distinguish between two acts that may have the same result¹¹." A doctor who removes or does not apply life-sustaining treatment, based on the patient's wishes, intends only to honor the patient's wishes. A doctor who assists a suicide however, intends primarily to bring about the death of the patient. Therefore, state governments may legitimately distinguish between the two acts without violating the equal protection clause.

Justice Scalia in his dissenting opinion in Cruzan argues that the distinction between assisted-suicide and refusing life-support is meaningless. He uses the following examples to illustrate his point. "It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the oncoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing¹²." Scalia attacks the distinction as one between action and inaction, and argues that the distinction treats essentially identical acts differently. The argument aims at the heart of Rehnquist's argument, who has defended vehemently that those similarly situated, let alone those identically situated, ought to be treated in a similar manner¹³.

Scalia's argument appears more compelling than Rehnquist's. Intent obscure the fact that those who refuse life-support and those who choose assisted-suicide will end their own lives. Given the two values opposed in the situation, bodily integrity against a state interest in preserving life, intent is irrelevant and the two situations should be viewed as identical. If the state has an interest in preserving life, then it is irrelevant what individuals intend by their actions: would the state not interfere if my factory killed thousands through pollution, even though my intent was to produce some kind of good?

In the present case the choices of the terminally ill are presented. What difference, if any, exists between a terminally ill patient who refuses life-support and one who seeks physician-assistance in hastening her death? In this specific case both are clearly aiming at ending their own lives. In the vast majority of these cases both will make the choice that they do because they no longer wish to go on living, that circumstance has made their lives no longer worth living. This problem brings us to the final section of the essay on the sanctity of life: does physician-assisted suicide necessarily offend it? The section leaves the discussion of case law to rest and takes up a more philosophical question posed by the recent decisions.

Does a ban, or even partially or limited restrictions on, physician-assisted suicide truly respect the sanctity of life? The answer seems obvious to some, that any law keeping more citizens alive than would be if the law did not exist, but not everyone sees the answer as so clear. Ronald Dworkin is one such individual, and his discussion of physician-assisted suicide is helpful¹⁴.

The analysis will conclude that physician-assisted suicide may not always offend the sanctity of life, depending on how one defines life.

I begin with a discussion of what constitutes life. For many the answer is too clear to warrant discussion at all: if my heart is beating and I breathe, whether through my own power or that of a machine, I am alive. I might completely brain-dead, unable to think, to have feelings or to react to, and interact with, the outside world, and still be alive. This definition is compelling for a number of reasons. First, it provides everyone, including the law, with an efficient bright-line test: my heart is beating or it isn't, I am breathing or I'm not. Courts do not have to go through the difficulty of examining voluminous evidence to see if a number of certain criteria obtain. Second, the inclusive definition requires that all fitting the criteria be treated equally, that the life of an individual in a permanently vegetative state has the same value as a conscious individual. The inclusive definition prohibits distinctions that might lead to the devaluation of certain persons that less inclusive definitions would allow.

Another definition is more subjective¹⁵. Life might be defined as a state in which individuals have the opportunity to act on their desires and long-term plans. Or, more specifically, life is a state in which individuals can make meaning out of their existence. The definition raises immediate problems. At what point does an individual lose the opportunity to act on her long-term plans and desires? Who decides when an individual no longer has such an opportunity? Each individual? The government? If left to individuals to decide if in fact they are alive, then applying law becomes particularly difficult. A bed-ridden, terminally ill patient may claim that she is unable, due to her illness, to make meaning out of her existence and therefore wishes to finish the life that her illness has already in fact ended. She finds the limbo between the end of meaningful life and biological death intolerable. Should the law allow her to commit assisted-suicide, but not another patient wishing to end biological life, although in great pain and terminalll, who admits that he still has the capacity for leading a meaningful existence, to die?

The first definition is not entirely satisfactory either. Individuals in a permanently vegetative state, who cannot see, hear, speak, taste or smell; who cannot think or have feelings; who cannot walk, read, or swallow food; who must be periodically washed and groomed, how can they be considered to be alive? They lack the ability to perform so many basic human acts, even many basic animal acts. The difference between their state of existence and ours is staggering. Indeed the only common bond is a beating heart and functioning lungs. It seems quite odd, given their inanimate state, to call their state of existence "life", to group their state and our state under the same heading.

If one takes a less inclusive definition of life, then the possibilities for allowing assisted-suicide increase. Attaching life to people, or defining them as alive, gives their existence more moral significance than without the distinction. We punish those who defile corpses less severely than those who perform the same acts on the living. This point however, is rather uninteresting. What seems more pressing is what acts constitute transgressions on the sanctity of life.

Imagine a terminally ill woman, lying in her hospital bed, moaning day after day after day, as the ravages of particularly painful disease take hold and cause her to suffer greatly. She has built up a tolerance to all pain-killers like many of the terminally ill; she is in too much pain to do anything (read, watch TV, carry on an extended conversation, walk)but wait for the disease to finish with her. She pleads for her life to end, day after awful day. Who among us, I ask, could watch her suffer, to be unwilling to help her hasten her own death? Are we really honoring the sanctity of life by keeping her alive in her wretched state? What possible end, what value do we uphold, by letting an innocent woman suffer¹⁶? Is life as an idea or concept really supported by keeping her from a death she desires? Dworkin quotes Nietzsche in a compelling passage. "'In a certain state it is indecent to live longer. To go vegetating in cowardly dependence on physicians and machinations, after the meaning of life, the right to life, has been lost, that ought to prompt a profound contempt in society.' He said he wanted 'to die proudly when it is no longer possible to live proudly¹⁷.'" He endorses the importance of the meaning of life and how illness may end its meaning. These questions just return us however, to the definition of life. If life is simply a pumping heart and breathing lungs, then a move to end life cannot but offend the sanctity of life: A living person finds her life intolerable and ends it. If life is an active pursuit of desires and goals, which the illness and suffering preclude, then an assisted-suicide may in fact reinforce the sanctity of life. By asserting that any existence outside of the state in which one can pursue desires and goals is not worth living, the value existence inside the state (life) is given increased value.

Perhaps the best way to assess the definitions of life is on a more personal level. Many of us would like to believe that our lives are more than just a beating heart and functioning lungs.

We share these traits with animals, and yet nearly all of us treat their lives with less value than our own¹⁸.

We would like to think that we are important and valuable for more than just physiological characteristics.

There must be a distinguishing characteristic beyond basic physiology that gives our lives more value than that of animals. It may lie in our ability to make life-plans or in our capacity to think abstractly. The discussion quickly becomes quite metaphysical, and I leave such discussion to those more qualified than I.

In sum, what the essay shows is that we are just beginning to untangle the problems science and medicine present us by having the capacity to extend life far beyond its natural course. It compels us to ask questions about our traditions, values and definitions of ourselves and the lives we lead. The Supreme Court rulings present not an end to, but rather signal the beginning of, a debate that has all the markings of protracted controversy.