Monday, April 21, 2008

Give Me Dignity or Give Me Death

In a blog post last week on the Supreme Court decision in the lethal injection case, Baze v. Rees, I drew a parallel between the Court's approach to medical evidence there and its approach in last year's Partial Birth Abortion Ban Act decision in Gonzales v. Carhart. Both rulings, I said, showed a willingness to defer to legislatures on medical judgments, even where serious doubts are raised that the legislative judgment rests on medical grounds. In my latest FindLaw column I draw another parallel between Baze and Carhart. Both cases, I note, permit interests in "dignity" to prevail over more tangible interests---avoidance of excruciating pain in one case, avoidance of health risks in the other.

Here I'll note an irony on which I don't dwell in the column. It seems that dignity only counts as a constitutionally significant interest in the Supreme Court's jurisprudence when offered as a ground for opposing a rights claim. For example, in Cruzan v. Director, Missouri Dep't of Health, the Justices rejected the claim that Missouri's requirement of clear and convincing evidence of a patient's desire to be taken off life support in order for such support actually to be terminated, violated the patient's fundamental right. Although a concurrence by Justice O'Connor and the dissent emphasized that the patient's interest was an interest in a death with dignity by the patient's own lights, the lead opinion omitted all discussion of a dignified death. The closest that Chief Justice Rehnquist's opinion came to recognizing the nature of the patient's dignitary interests was in rejecting them: "we think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy," the late Chief Justice wrote, "and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."

It is tempting to conclude that "dignity" is simply a weasel word used by the Court when convenient to cover the lack of real interests at stake. But I would resist that temptation. Whether or not one agrees about the conclusion in any particular case, we certainly know what someone means when she says that some way of living or dying lacks dignity. The problem, in other words, is not that "dignity" is an empty vessel but that the Court has been using the concept selectively to further particular substantive conceptions of justice without forthrightly acknowledging as much.

So, should we take dignity seriously? Yale Law Professor Reva Siegel thinks so. She has a new article forthcoming in the Yale Law Journal that tries to reconcile the dignity talk in Gonzales v. Carhart with dignity talk going in the other direction in Planned Parenthood v. Casey, where the joint opinion describes the constitutional right to decisions regarding family formation as "choices central to personal dignity and autonomy." (Siegel's draft does not appear to be available online, although a piece of the argument overlaps with another of her articles, forthcoming in the Duke Law Journal.) As an exercise in doctrinal synthesis and exegesis, Siegel's project strikes me as important. Whether it proves to be a descriptively accurate account of where the Court goes with "dignity" remains to be seen (and Siegel herself does not claim to be offering her synthesis as a prediction of future decisions).

Posted by Mike Dorf