Since 1994, when Oregon legalized assisted suicide, the procedure by which a physician provides lethal drugs to a terminally ill patient so that the patient may end his own life, proponents have pushed for greater access to it. Through legislation, they have had success. In 2023, Hawaii and Washington shortened the waiting time between the request for assisted suicide and dispensing the lethal drugs. This May, Delaware became the eleventh jurisdiction to legalize assisted suicide through legislation. However, assisted suicide advocates have consistently struggled to use the courts to create a right to suicide. They have only had success through the courts in the 2009 case, Baxter v. State. In Baxter, the Montana Supreme Court held that a physician charged with homicide for providing assisted suicide drugs could raise a defense that the patient consented.
By and large, however, courts have declined to recognize a right to assisted suicide. In 1997, the U.S. Supreme Court ruled in Washington v. Glucksberg that the Constitution does not contain a Fourteenth Amendment Due Process right to assisted suicide. The Court then ruled in Glucksberg’s companion case, Vacco v. Quill, that assisted suicide is dissimilar to the fundamental right to decline medical care, and, thus, the Equal Protection Clause of the Fourteenth Amendment, which requires that government treat people in the same manner as others similarly situated, does not stop states from regulating assisted suicide. In 2017, the New York Court of Appeals ruled in Myers v. Schneiderman that there is no right to assisted suicide in New York’s Constitution. Five years later, the Massachusetts Supreme Court ruled in Kligler v. Attorney General that the Massachusetts Declaration of Rights does not contain a right to assisted suicide.
The courts have also consistently limited the practice of assisted suicide from expanding into euthanasia or infringing upon conscience rights. For instance, in 2023, a California District Court in Shavelson v. Bonta held to a narrow definition of assisted suicide, rather than change the definition to include euthanasia of persons with disabilities who cannot self-administer the lethal drug. Expanding this definition would allow physicians to directly administer lethal drugs to cause a patient’s death. The limited definition helps prevent disability discrimination and thus protects both patient autonomy—the right of a patient to make choices about medical care; and informed consent—a patient’s agreement to a treatment only after a complete understanding of all the factors associated with it. That same year, two lawsuits, Lacy v. Torrez and Christian Medical and Dental Association v. Bonta, ended in New Mexico and California in favor of freedom of conscience. These outcomes reaffirm that medical professionals may avoid participating in an assisted suicide if they object to it on moral, religious, or ethical grounds.
These failures for the assisted suicide front have prompted them to use a new strategy. Rather than focus on legalizing suicide through the courts, they have begun using the courts to challenge the residency requirements in states that permit assisted suicide. These requirements limit access to assisted suicide by requiring patients to show proof of residency in the state before obtaining a lethal prescription. When states stop enforcing residency requirements, the way is opened for death tourism, where patients travel to a state to obtain assisted suicide. Two recent cases, backed by the same group, have met with success in the courts.
In 2021, the assisted suicide front filed Gideonse v. Brown to combat Oregon’s residency requirements. The plaintiffs alleged that residency requirements violated the U.S. Constitution’s Privileges and Immunities Clause, which ensures that states respect the fundamental rights of all citizens, whether they are their own citizens or those of another state, and the Constitution’s Commerce Clause, specifically regarding the authority of states to regulate interstate commerce. In 2022, the case was settled in the plaintiffs’ favor, with Oregon agreeing not to enforce the residency requirements. This decision paved the way for the Oregon Legislature to remove these requirements in the following legislative session and put even more people at risk for assisted suicide.
Also in 2022, assisted suicide proponents filed Bluestein v. Scott, seeking to remove residency requirements in Vermont. Plaintiffs again alleged that the residency requirements violated the U.S. Constitution’s Privileges and Immunities Clause, the Commerce Clause, and the Equal Protection Clause of the Fourteenth Amendment. In 2023, the case was settled in the plaintiffs’ favor when Vermont state officials agreed not to enforce the state residency requirements against the plaintiffs. Shortly after this ruling, Vermont’s Legislature removed the requirements entirely.
Two cases currently undergoing litigation are using the same arguments as the Oregon and Vermont lawsuits. In New Jersey, assisted suicide activists filed Govatos v. Murphy in an attempt to overturn residency requirements. However, the New Jersey District Court dismissed the case, finding the claims unsupported by the U.S. Constitution and U.S. Supreme Court caselaw. Assisted suicide proponents have appealed the case to the Third Circuit Court of Appeals, where it is being considered.
Most recently, the assistant suicide lobby has filed a complaint against Colorado officials over the state’s residency requirements. McComas v. Polis raises the same issues as were involved in the Vermont, Oregon, and New Jersey cases. As yet, the case is in an early stage, and it is unclear how the Colorado District Court will rule. However, the New Jersey ruling is a positive sign that states can uphold residency requirements against the assisted suicide front.
In the assisted suicide battle which is currently raging throughout the U.S., it is vital that state laws defend life. By looking to the courts, which have almost always recognized that a right to assisted suicide does not exist, the states can avoid crafting legislation which creates such a right. If they have already legalized assisted suicide, states must defend the conscience rights of individuals as New Mexico did in Lacy v. Torrez. New Jersey’s experience shows the states that by remaining firm they can win in the courts and defend life. If the states will defend their residency requirements and the courts will uphold them, it will be a step toward the time when all life will be cherished, from conception to natural death.
