Glucksberg, the Putative Right to Adequate Pain Relief, and Death with Dignity

Abstract:     
Language in concurring opinions in Glucksberg and Vacco, the 1997 Supreme Court cases regarding assisted suicide, has prompted commentators to infer an emerging constitutional "right to be free of unnecessary pain and suffering at the end of life." This article analyses the relevant language in those opinions and considers the implications of that language for the legal bounds of aggressive palliative care.

The article points out tensions between the Justices' assumptions about available pain relief techniques and traditional criminal law doctrine concerning end-of-life palliative care. Despite those tensions, the Justices' expressions are likely to impel recognition of a "necessity" defense for use of risky pain relief treatment and for use of some forms of terminal sedation. The article examines the likely shape of that defense and assesses the legality of one ultimate form of terminal sedation -- deep sedation accompanied by withholding of artificial nutrition and hydration. One conclusion is that the forms of aggressive palliative care either explicitly sanctioned or implicitly encouraged by the 1997 opinions will go some distance (though not the complete way) toward assuring a modicum of dignity in the dying process.

Accepted Paper Series