Washington v. Glucksburg, new
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Washington v. Glucksburg (1997) 
I.                    Facts:  A Washington State law provides that "a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide". Such assistance is regarded as a felony. However, the state also enacted a "Natural Death Act" in 1979 that stipulates that the withholding of life sustaining equipment does not constitute suicide.

II.                 Issue & Holding:  Is Washington's statute against assisted suicide in violation of the Due Process Clause of the 14th Amendment? No.

III.               Arguments (Rehnquist): Rehnquist makes a backward looking argument.  He searches for a historical reason why assisted suicide might have constitutional protection and cannot find one. 

a.       History/Ethos: For 700 years, the Anglo- American common-law tradition has regarded suicide as an unlawful act. While overtime, punishment for the act has been reduced, this has only occurred out of concern for the suicide's family. Continued until today, suicide has been seen as a grievous act as indicated in State legislation.

b.      Precedent:  Distinguishes Cruzan from Glucksburg. These are two distinct issues and they get decided as so.  Substantive and Due Process Rights are limited to fundamental rights "deeply rooted in this nation's history and tradition."

                                                               i.      In Cruzan the Court upholds the constitutionally protected right of a competent person to "refuse lifesaving hydration and nutrition."  This precedent comes from the common-law tradition personal autonomy; a person can choose to consent to help or not.

                                                             ii.      In Glucksburg, the question is whether a person has a constitutionally protected right to actively commit suicide.  The Court employs Rational Basis Review and finds that there is no traditional state interest in the right to commit suicide.  On the other hand, as noted in Cruzan, there is a legitimate state interest in life.  Justices insist that biological life as such may be protected. 

                                                            iii.      Doctrinal, argument of stare decisis ("to stand by things decided"): "To hold for respondents, we would have to reserve centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state"

c.       Consequential: in the Netherlands assisted suicide is connected to euthanasia.  This evidence suggests that there is a slippery slope, and if we don't find a right to euthanasia, we should not take the path leading to it.

IV.              Concurring/Dissenting:

a.       Souter has a different type of analysis than the majority because he differs on where the argument should take place.  Due to the link he draws between Harlan's opinion in Poe v. Ullman, his argument appears a bit more consistent with Casey than that of O'Connor and Kennedy.  Souter views tradition as important, but he sees tradition as evolving.  Today there is an increased tolerance of suicide, and Souter refers to specific cases.  He, however, is worried  that assisted suicide will become voluntary/involuntary euthanasia. (see pages 1584-5) 
V.                 Significance:  Glucksberg puts limits on substantive due process rights.  Companion Case: Vacco v. Quill

a.       O'Connor basically writes that the political process will work itself clean.

b.      Rehnquist sees no fundamental rights, just rationality review.  He says that the state has an interest in the public perception of the medical profession.

c.       Stevens makes a facial argument, and states that something may be constitutional in many applications, but not all.  The way he values life is closer to the way that Dworkin does---"individual freedom"

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