Contributor, The Volokh Conspiracy

George Skelton (L.A. Times) writes in support of a California assisted-suicide bill, arguing that part of the reason is “religious liberty.” As best I can tell, Skelton’s argument is that people who don’t share some religious groups’ opposition to assisted suicide should be able to make their own decisions about whether to help someone end his life, based on whatever reasons they choose to use. That’s a plausible political and policy argument for the bill, but if the focus is on the religious motivations for broad suicide bans, it wouldn’t work as a legal argument: There’s no establishment clause problem with laws that implement their backers’ religiously based moral beliefs, whether about assisted suicide, abortion, opposition to discrimination, endangered species, labor relations, and so on. (Some such laws may violate other rights, such as the right to free speech, the right to abortion, the right to sexual autonomy, and so on, but the Supreme Court in Washington v. Glucksberg (1997) held that there is no constitutional right to assisted suicide.)

But what if someone sincerely believes that he is obligated by his own religion, or at least motivated by that religion, to assist suicide? What if, for instance, he believes that the parable of the Good Samaritan commands him to help his patient, or his wife, or anyone else to escape pain — or what they feel to be indignity — by helping them end their lives? (Assume that the target of this help wants to die, is in pain and is already near death. And assume that we’re in a state that forbids assisting suicide.) This argument has been made before, and indeed in a court case, Sanderson v. People (Colo. Ct. App. 2000). That case rejected the claim, but only because it was brought under the free exercise clause, which doesn’t mandate religious objections from generally applicable laws:

In summary, we conclude § 18-3-104(1)(b) is a valid, religiously-neutral, and generally-applicable criminal statute that prohibits conduct a state is free to regulate. Employment Division, Department of Human Resources v. Smith. Thus, while we do not question the sincerity of Sanderson’s religious beliefs, we agree with the trial court that there was no evidence Sanderson could have proffered regarding the importance of assisted suicide to his belief system which would exempt him, or his designated third persons, on First Amendment grounds from the provisions of the statute.

But what of the more than half the states that either have state Religious Freedom Restoration Acts (RFRA), or have state constitutional religious freedom guarantees that state courts have interpreted as generally providing religious exemptions? (See here for a handy map.) In those states, someone who is religiously compelled (or likely even religiously motivated) by a religion could easily show that the ban on assisted suicide “substantially burdens” his religious beliefs: The ban prohibits him from doing what, by hypothesis, his religion requires or at least counsels. He would therefore be entitled to an exemption unless the government could show that denying the exemption passes “strict scrutiny” — is the “least restrictive means” of serving a “compelling government interest.” How would that play out?

1. If the government has a compelling government interest in protecting life, period (or at least protecting life that isn’t threatening another with death or serious bodily injury), then barring all assisted suicide would be the least restrictive means of serving that interest. Courts would then have to decide whether this interest is indeed always compelling, or whether it loses its compelling character when a person wants to die, is in pain and is already near death.

Now the Supreme Court in Glucksberg was asked to resolve this question, but it had no need to, because it held that the due process clause doesn’t require “strict scrutiny” of restrictions on assisted suicide. Because of that, it simply held that bans on assisted suicide are justified by a legitimate government interest. But religious exemption rules require courts to consider whether the interest isn’t just legitimate, but compelling. Is it?

Note that in state RFRA states, by the way, if a court concludes that there’s no compelling interest in protecting all life — including the lives of those who want to die, are in pain and are near death — and the state legislature disagrees with that judgment, the legislature can just amend the RFRA to make clear that it doesn’t apply to assisted suicide law. (In states whose state constitutional provisions have been interpreted as generally mandating religious exemptions, such a revision of a state court decision would require a constitutional amendment instead.) And this might make some courts more willing to carve out this sort of exemption, because they aren’t interfering with the legislative will embodied in a general ban on assisting suicide. Rather, they’re just implementing the legislative will embodied in the RFRA, and leaving it open to the legislature to revise that decision if it so wishes.

2. But say the government says that it has a compelling government interest in preventing people from being pressured into giving up their lives, and that a total ban on assisted suicide is the least restrictive means of preventing such pressure. The unfortunate fact, the government argues, is that assisted suicide can often be in the interest of the dying person’s relatives. A person’s terminal illness can take a tremendous emotional toll on his loved ones, who have the grief of watching their relative die added to the inevitable grief that would follow his death. It can take up a lot of their time. It can take up their money, if they are paying for the person’s care (which is especially common for spouses). And even if the dying person is paying for his health care out of his own pocket, this expense depletes the estate that the person will leave to his relatives.

Of course, for many relatives all this will be outweighed by the value of having the dying person around as long as possible, even if the dying person is incapacitated or even unable to communicate. But it’s quite clear that some fraction of the relatives — and even if it’s a small fraction, it can number in the millions — would prefer that the dying person die quickly and cheaply. And this is especially so given the human capacity to rationalize: People who find that a relative’s assisted suicide will be in their interests can quickly persuade themselves that it would be in the relative’s interest, too.

Once assisted suicide stops being a crime and becomes a choice, some family members may start pressuring their dying relatives to commit assisted suicide; and this pressure is made easier by the fact that for many dying people, the constant support and affection of their relatives — and the assurance that their relatives want them to live as long as possible — is their only reason to keep living. Pressuring a healthy person to commit suicide is very hard, and usually requires physical coercion, since healthy people generally have a lot to live for. Pressuring a dying person can be much easier, especially if the family can put on a relatively united front.

Sometimes the pressure can be overt: nagging the dying person, telling him how selfish he is for not choosing assisted suicide, and threatening to cut off contact if he doesn’t make plans for committing suicide some time in the near future. Presumably only the cruelest people will do this, but there are some such. But it can also be subtler: suggesting assisted suicide as a means of avoiding pain or indignity, occasionally talking about how hard a lingering death can be on the family (especially on, say, young grandchildren, rather than the complainer himself), hinting about the financial problems that the disease is causing the family, and becoming more and more reluctant to spend time with the dying person.

What’s worse, this subtle pressure can happen even while the relatives are denying to themselves that they actually want the person to die. Even some otherwise decent people, suffering from the strain of a loved one’s terminal illness, can find themselves doing this, especially if they are resentful of what they start to see as the dying person’s selfishness.

If assisted suicide were not a legal option, the dying person might have continued living, and might even have enjoyed his family’s affections: When people know that they have no choice but to endure emotional or financial problems, such as those caused by a relative’s death, they often do the best they can. But once assisted suicide becomes just another choice, those same families might subtly or overtly threaten to withdraw their affections, and the ill person may find life no longer worth living.

One possible response is that there can always be safeguards that verify that the choice to commit assisted suicide is really voluntary and without pressure. But what would the safeguards be? Medical examinations are unhelpful: Doctors can tell whether a person is terminally ill or in serious pain, but not whether his family is nagging him into killing himself. Examinations by psychiatrists and social workers may also not work: Presumably if a person has decided on assisted suicide, even as a result of family pressure, he won’t frustrate this plan by admitting everything to the psychiatrist.

Moreover, it’s not even clear exactly what the psychiatrist would be looking for. The line between impermissible pressure and mere insensitivity, nagging, selfishness, frustration, despair, or grief is very hard to draw. Maybe a psychiatrist may catch the cases where the family overtly said “Promise to commit assisted suicide within a month, or else we will just completely stop talking to you,” but even this is hard to do, and subtler pressure may be even harder to clearly identify.

Finally, outlawing the pressure is, for a similar reason, just not an option. It’s hard to see how one can criminalize withholding one’s affection, berating a dying person for his perceived selfishness, or trying to persuade someone (even for the most selfish of reasons) to exercise their constitutional right. Perhaps there might be less restrictive means, the government would argue, of preventing undue pressure from doctors or from health-care funders, because that pressure is more likely to manifest itself in tangible demands (though maybe not). But there aren’t any means, short of a total ban on assisted suicide, for effectively preventing family members’ subtle psychological and emotional pressure that would lead people who would rather live (if assisted suicide weren’t an option) into choosing death.

What are courts to make of that argument? Is there a compelling interest in preventing such emotionally or psychologically pressured choices (even if not forcibly coerced choices) in favor of suicide? Does this interest, and the government’s theory about how there are no less restrictive means of serving the interest, justify the intrusion on religious objectors’ religious freedom (assuming, again, that we’re in a state that protects the presumptive freedom to act according to one’s religion, unless the government’s banning the action is the least restrictive means of serving a compelling government interest)?

A complicated question, which I expect that courts might well be turning to soon, especially given the extra publicity and credibility given to religious objection claims by recent cases such as Hobby Lobby.