The Constitution at the Threshold of Life and Death: A Suggested Approach to Accommodate an Interest in Life and a Right to Die

Abstract

In the past fifteen years, the United States Supreme Court has decided three cases in which it tentatively began to explore what the United States Constitution has to say about issues that are popularly described as the "right to die." In this article, I suggest that the current state of constitutional analysis does not provide for an effective mechanism for securing an individual's "right to die," at least not without undervaluing a state's interest in the preservation of human life should a state choose to take such a position.

In the article, I suggest that it is possible to adopt a means of balancing the competing interests of the individual and of the state in such a way as to do service to both of them. I propose that the Court adopt a balancing standard modeled generally on, but by no means identical to, the curent constitutional mechanism under which infringements on a woman's right to have an abortion during the period prior to fetal viability are judged. In other words, I propose the adoption of an undue bruden standard similar to that articulated in Casey.

In the article I explain why the current state of affairs is deficient. Thereafter, I explore the undue burden standard I propose, explaining how it would address the deficiences in current law as well as cure many of the problems identified with the Casey standard itself. Finally, I apply the standard to several scenarios.

I ultimately conclude that adopting the standard I propose is justified dispite the risks associated with it. I also conclude, however, that those risks do not warrant the maintenance of the standard in other areas, including with respect to abortion.

JEL Classification: K00, K19, K39, K41