By Mike Dorf
My latest Verdict column addresses the legal issues surrounding the forced feeding of detainees at the Guantanamo Bay prison. I conclude that the courts probably will not order authorities to stop the forced feedings, even as I raise serious questions about the wisdom of the policy. Here I want to explore some related questions about non-prisoners.
My conclusion in the column rests on both jurisdictional and substantive obstacles faced by any lawsuit to enjoin forced feedings (including analysis of cases that already have failed). The starting point of my substantive analysis is the assumption--made by a majority of the Supreme Court in the Cruzan case--that a competent free adult has the right to refuse medical treatment, including food and water.
No discussion of Cruzan would be complete, however, without also noting that seven years later, in the Glucksberg case, the Court drew a constitutional act/omission distinction. Thus, whereas the Court in Cruzan assumed that there is a constitutional right to refuse medical treatment even if the result is death, in Glucksberg the Court held that there is no constitutional right to "actively" terminate one's own life.
The hunger strike at Gitmo is an attempt to exercise the Cruzan right rather than the Glucksberg non-right, but a lawsuit aimed at preventing forced feeding will likely fail on the merits (if a court reaches the merits) because courts give substantial deference to prison authorities so that as a practical matter, the government has a lesser burden for infringing rights of prisoners (and other detainees) than for infringing the rights of persons on the outside.
Nonetheless, if we imagine a hunger strike by a non-prisoner, it's pretty clear that absent a demonstration that the hunger striker is incompetent, he or she would have the legal right to starve himself or herself to death. In a separate opinion in Cruzan, Justice Scalia objected to the assumption of a constitutional right to starve oneself to death, given the long tradition of laws forbidding suicide. In light of that tradition, he thought that there could be no constitutional right to refuse medical treatment that encompassed cases of suicide. But he was out-voted and it was clear, at least at the time of Cruzan, that in a case involving a competent patient who clearly expressed the desire to "pull the plug," five Justices would have found a constitutional right to do so.
I co-authored an amicus brief and helped the lawyers for the (ultimately losing) plaintiffs in Glucksberg. In arguing for a right to physician-assisted suicide, we tried to offer the Court a narrow ground for ruling in our favor: The right, we claimed, need only be made available for end-stage terminally ill patients. The Court rejected this limitation. It mostly rested its holding on an act/omission distinction, but, as in Cruzan, the majority in Glucksberg also validated a state interest in valuing all human life, even the lives of the terminally ill. The Court also noted that people who are terminally ill often are suicidal because of untreated but treatable depression. Whatever one thinks of the particular arguments, looking back on the pattern of cases now, the results strike me as at least ironic and perhaps even perverse.
Suppose two people:
(1) Terry is terminally ill and suffering from some terrible condition for which there is no fully effective palliative care available; perhaps she has symptoms (like shortness of breath) that do not respond to anaesthetic or perhaps doctors fear to give her sufficient anaesthetic to treat her pain because doing so could open them to charges of assisting suicide. Cruzan and state common law rights to refuse medical treatment permit Terry to starve herself to death, a process that could take weeks but do not permit a doctor or anyone else to give her a lethal dose of medicine. We may further assume that Terry is too weakened by her condition to kill herself using means already at her disposal (by, say, hanging herself with her bedsheets).
(2) Devon is a physically healthy 25-year-old who is very depressed because of a recent breakup with his girlfriend. He wants to kill himself. Under state laws like the one upheld in Glucksberg, Devon cannot legally obtain assistance killing himself but he doesn't need such assistance because he is healthy. He can shoot himself, hang himself, jump off a bridge, whatever. Should he attempt one of these methods and grievously wound but not immediately kill himself, he can even refuse lifesaving interventions from medical personnel, relying on the right assumed in Cruzan and recognized under state common law.
Accordingly, under the law as it stands, there is a de facto right to "active" suicide for people capable of killing or mortally wounding themselves without assistance, but not for people who are so incapacitated by disease as to be unable to kill themselves without assistance. That is a difficult line to justify.