Wednesday, April 16, 2014

Suicide, Speech, and the Constitution

by Sherry F. Colb

My column on Justia's Verdict this week analyzes a Minnesota Supreme Court decision, State v. Melchert-Dinkelholding that the First Amendment precludes the criminal prosecution of someone for advising or encouraging another person to commit suicide, although the freedom of speech does tolerate a prohibition against someone assisting another in committing suicide, even with words.  The issue arose in a case in which the defendant had reached out to two suicidally depressed people over the Internet by falsifying his identity (as a compassionate female nurse who also planned to commit suicide) and urging the two people to kill themselves by hanging in front of a web-cam, so the defendant/convict could watch.  Ultimately, both of the defendant's targets did kill themselves.

The majority remanded the case to the trial court to clarify whether the conviction of Melchert-Dinkel rested on impermissible grounds (the advising and encouraging of another's suicide) or permissible grounds (the assistance of another's suicide).  A dissent maintained that the statute was necessarily unconstitutional as applied to the defendant, even if he was assisiting a suicide, because his assistance (or encouragement or advising) would have consisted exclusively of speech.

My column takes issue with some of the reasoning in the Minnesota Supreme Court's opinion and ultimately concludes that the majority was wrong.  Towards the end of my discussion, I raise the possibility that the state court might have been wrong not only in striking down the ban on encouraging or advising a suicide but also in upholding the ban on assisting a suicide.  In this post, I would like to say a bit more about that point.

One can potentially assist a person who wishes to commit suicide in a number of ways.  The suicidal individual, for example, might not have access to lethal doses of medications, and the person assisting the suicide (if a medical professional, for instance), could provide those doses to the suicidal individual.  The "assistant" could also explain to the suicidal person who does not know how to commit suicide painlessly that one effective and painless method involves _____ (with the knowledgeable person filling in the blanks).  Yet another manner of assisting could take the form of presence:  someone who very much wanted to commit suicide but was too fearful to do so in isolation might be assisted by a friend or doctor or relative who visits the suicidal person's home and sits with him as he ends his own life.

In each of these cases, the person who "assists" a suicide makes it easier for someone who wants to kill herself or himself to do so, by providing the means, the necessary information, or the comfort of company. I believe that suicide ought in some cases to be a constitutionally protected option, under controlled circumstances, for someone who no longer wishes to live:  such situations might include that of a person who is in tremendous pain that simply cannot be effectively relieved to the patient's satisfaction or that of a person suffering from an illness that will progressively rob him of memory and movement.  In other words, I believe that the U.S. Supreme Court got it wrong in the case of Washington v. Glucksberg, where it upheld a law prohibiting physician assistance in dying.

If one accepts, as I do, the proposition that the law should not categorically bar doctors from helping a person commit suicide in all circumstances, then one necessarily believes that a suicide is not always (as it so often is) a lawless act in which other people necessarily have no legitimate role to play.  It follows from this view that explaining to a person who wishes to commit suicide how one would go about carrying out the plan is, at least sometimes, the sort of speech that should receive constitutional protection.  That is, speaking in order to inform a person who is contemplating the exercise of a constitutional right about how to go about exercising the right ought itself to be a protected form of speech.

Accordingly, at least in some situations, applying a prohibition against "assisting" a suicide to speech could well be thought to violate the First Amendment.  And even if the two people who killed themselves in the Minnesota case were not among those with a constitutional right to commit suicide, it might still be inappropriate to ban speech explaining how someone would go about killing himself or herself, given the possibility of "chilling" the speech of those legitimately providing useful information to those exercising a constitutional right.  The majority in Melchert-Dinkel should therefore perhaps have struck down, instead of upholding, the section of the Minnesota statute prohibiting assistance of suicide, as applied to speech.

Contrast this with speech that "encourages" or "advises" suicide.  Assume that a particular person is feeling extremely depressed and miserable because he has been sick for a long time, is bed-ridden, and is in almost constant pain and emotional distress.  Assume now that instead of informing him of an effective method for painlessly ending his own life, his friend positively advises or encourages him to do so.  She might, for example, say "You have been feeling dreadful for months now, and you keep saying you wish you were dead, so you really should go ahead and end your life.  You said that you want to, so what are you waiting for?  You want to wait and keep suffering?  Just do it already."  That would represent advising or encouraging a suicide.

While explaining how to go about committing suicide can represent a legitimate and protected form of speech, pressuring someone to commit suicide is something quite different.  Such advocacy, rather than providing helpful information, essentially pushes someone who, by hypothesis, is very vulnerable and has yet to make up his mind, to go ahead and make an irreversible decision.  Pressuring a person to commit suicide, either by "advising" it as a good option or by "encouraging" the person who is reluctant, would seem to represent a form of incitement to imminent violence.  Though a person should have the option of ending his life in some circumstances, in other words, the decision is always so significant that no one other than the person himself should be making that choice.

To provide a very different but potentially useful analogy, many people who regard abortion as a constitutionally protected choice (including me) believed that Rust v. Sullivan was wrongly decided.  The Court in Rust upheld a rule that prohibited doctors receiving Title X (medicaid) funding from providing information about abortion to pregnant patients.  At the same time, however, the very same pro-choice advocates would likely have supported a rule that prohibited doctors from pressuring pregnant women to terminate their pregnancies.  Doctors should not be telling their patients that they should terminate a pregnancy (advice that, unfortunately, I know of some doctors readily giving when genetic testing reveals an anomaly in a fetus), as such advice or encouragement is plainly coercive, particularly for a person in trying and stressful circumstances.

The same is true, of course, for a person contemplating suicide.  For such a person, information is valuable and important in helping them make a choice that truly reflects their wishes.  But pressure is entirely unwelcome.  Someone thinking about killing himself or herself is often going to be suffering tremendously, experiencing great fear and loneliness, and hoping for someone else to make the decision for him or her. Whether that person is an unscrupulous voyeur like Melchert-Dinkel or a compassionate doctor, however, the decision -- if it is permissible at all -- should remain squarely with the patient, with no pressure brought to bear from external sources.  What Melchert-Dinkel did was wrong and nearly inexplicable, and what made it so was that he pushed two people in pain to end their lives for his amusement, not the fact that he explained how one could go about hanging oneself.  In my view, the Minnesota Supreme Court therefore got it exactly backwards.