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


egarber said...

In your Findlaw piece, you write:

Several of the opinions, including the plurality opinion of Chief Justice Roberts, pointed out that pancuronium bromide is routinely used by physicians in assisting patients to hasten their deaths in the Netherlands, where physician-assisted suicide is lawful.

It's somewhat Interesting that Roberts accepted international practice as a standard, given that conservatives harshly criticize the use of law/ethics outside the U.S. when it comes to the Eighth Amendment. Is Roberts more open to international benchmarks than others, I wonder -- or is this an example where it was only ok because it argued *against* further protections for the individual?

Sherry F. Colb said...

Very interesting point by egarber. My understanding of Chief J. Roberts's reliance on the Netherlands practice is not that he is invoking international standards to show that the use of a particular drug is therefore not cruel and unusual punishment for Eighth Amendment purposes. I believe he is instead invoking the practice to make the point that sobek made a while back -- that because the entire purpose of euthanasia is to spare a person a painful dying process, the fact that pancuronium bromide is one component of the euthanasia process anywhere (whether in the Netherlands or somewhere inside the U.S.) provides some evidence that the use of this drug is compatible with a humane death. The problem, of course, is that its use in euthanasia in the Netherlands is quite different from its use in lethal injection in the U.S., as the Dorf column explained, so the generalization from one context to the other seems not to work so well.

egarber said...

The problem, of course, is that its use in euthanasia in the Netherlands is quite different from its use in lethal injection in the U.S., as the Dorf column explained, so the generalization from one context to the other seems not to work so well.

Right. If used in other places under strict rules -- expert medical oversight, etc. -- that might cut the other way (as Mike points out in his article). Yes, it CAN be used painlessly, but it requires safeguards that are noticeably absent in many U.S. states as they carry out death sentences.

Sobek said...

"The problem, of course, is that its use in euthanasia in the Netherlands is quite different from its use in lethal injection in the U.S...."

Yes, they are different, but in a way that strengthens the U.S. government's argument, not weakens it.

In a death penalty case, the goal is death, with dignity as a constraint on means. In assisted suicide, the goal is dignity, with death as the approved means. Because in the latter case dignity is the primary concern, the means used will necessarily be more likely to produce dignity than where dignity is at best a secondary concern.

On a different but related topic, I wonder whether anti-death-penalty litigants are shooting themselves in the foot with certain modern legal tactics. Two current approaches are 1) increased use on DNA to prove a death row inmate's innocence, and 2) focus on the means of execution as a reason to abandon that means.

To the extent either or both of these approaches succeed, two legitimate objections to the principle of the death penalty disappear -- we become less likely to execute innocent people, and we become less likely to do so in an inhumane manner.

Should death penalty opponents take a more absolutist position in their legal maneuvering, to avoid undermining their ultimate goals?

JustWondering said...

I have not read Cruzan for a while, but my understanding is that the interest Cruzan had in refusing unwanted medical care was not about death necessarily so much as it was about the refusing medical care itself. Which seems hard to see as anything other a dignitary interest, given that physically, the medical care was providing a benefit. In other words, the harm Cruzan suffered was the imposition of (physically beneficial) medical care over her (dignitary?) interest in deciding for herself whether she wanted the care.

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