We are pleased to share a piece composed by one of our 2016 James Wilson Fellows, Kevin LeRoy, “To Fight Assisted Suicide in the Courts, Stop Arguing Federalism.” In this article published at The Federalist, Mr. LeRoy makes the case that lawyers arguing against physician assisted suicide ought to step back from making a procedural argument against the practice along the classic lines of federalism, but instead incorporate a substantive defense of the intrinsic value of human life as the foundation of their argument.
“Glucksberg is unique among the high-profile fundamental rights cases like Roe, Casey, and Obergefell. Unlike those latter three cases, Glucksberg is an example of the court doing what it was designed to do: if a right is not protected by the Constitution, as originally understood, then any recognition of that right belongs to the people and their state governments.
“When the next physician-assisted suicide case comes, we will need to litigate differently than we have for past fundamental-rights cases like abortion and same-sex marriage. For those cases, our strategy was predominantly one of federalism. We argued that the right to end the life of a fetus or the right to marriage as a genderless institution was nowhere to be found in the federal Constitution. Therefore, the power to grant such rights did not lie with the Supreme Court.
“We have one option when the next case comes. We need to argue that the states are right to ban physician-assisted suicide because life is better than death, even in the face of terminal illness. We need to argue that physician-assisted suicide is not death with dignity. (Indeed, if it were, then not choosing death by suicide in the face of terminal illness is at best a missed opportunity, and at worst undignified.) We need to be prepared to argue that states that permit this practice are wrong.”
Read the whole piece here.