Culture & Ethics
How Euthanasia Activists Laid the Groundwork for Overturning Roe
Back in the ’90s, the assisted-suicide movement tried to convince the Supreme Court to impose a Roe v. Wade–style decision for their cause that would circumvent the democratic process by imposing doctor-hastened death as a constitutional right. (Full disclosure: I wrote and filed an amicus brief in the Supreme Court against that effort as a lawyer for the International Anti-Euthanasia Task Force, now the Patients Rights Council.) The effort failed, with the Supreme Court ruling 9–0 in Glucksberg v. Washington (1997) that there is no right to be found in the United States Constitution to assisted suicide.
An Unanticipated Turn
Now, in a turn that could not have been anticipated at the time, Glucksberg provided the primary precedent for striking down Roe as bad constitutional law. From Dobbs v. Jackson (my emphasis):
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg. . .
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” . . . Glucksberg . . . And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue. . . .
Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of “Anglo-American common law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition.”
Analyzing the history of the unenumerated claim of a right to abortion, the majority found it wholly wanting.
As the Court cautioned in Glucksberg, “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” 521 U.S., at 720 (internal quotation marks and citation omitted).
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Cf. Glucksberg, 521 U.S., at 713 (removal of “common law’s harsh sanctions did not represent an acceptance of suicide”).
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].” 521 U.S., at 719.
So, in a hubristic attempt to force assisted suicide on the nation in the same way abortion had been, euthanasia activists instead laid the groundwork for Roe’s obliteration. The irony is quite remarkable.
Cross-posted at The Corner.