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Opinion Judge Amy Coney Barrett and the future of physician-assisted suicide

Supreme Court nominee Amy Coney Barrett speaks during her confirmation hearing in the Senate Judiciary Committee on Oct. 14. (Demetrius Freeman/The Washington Post)

Other issues created more controversy during her confirmation hearings, but one of the insufficiently appreciated effects of Judge Amy Coney Barrett’s elevation to the Supreme Court could be to fortify existing high court doctrine on physician-assisted suicide and euthanasia, specifically a 23-year-old precedent denying that terminally ill patients have a constitutional right to either one.

The public appears increasingly sympathetic to such laws, but Barrett would join Justices Neil M. Gorsuch and Brett M. Kavanaugh as Trump appointees who, as of the time they were nominated, had given implicit but clear indicia that they would vote no on a “right to die,” just as all nine justices did in the 1997 case of Washington v. Glucksberg.

Gorsuch published a book in 2006 questioning European euthanasia laws and defending then-existing state laws in the United States prohibiting doctor-assisted suicide. Kavanaugh served as a top official in the Bush administration as it tried to block physicians from prescribing lethal dosages under Oregon’s assisted-suicide law.

And Barrett co-wrote a 1998 law review article in which she distinguished the dilemmas Catholic judges might face in following church teachings against capital punishment, as well as what she called a more “absolute” doctrine banning abortion and euthanasia, which “take away innocent life.”

Gorsuch, Kavanaugh and Barrett would join three conservatives, John G. Roberts Jr., Samuel A. Alito Jr. and Clarence Thomas, whose records imply support for Glucksberg. Its essential holding was that the emerging norms of autonomy and dignity embodied in the right-to-die movement were not “deeply rooted in this Nation’s history and tradition” and could not define a fundamental right.

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A court staffed by Hillary Clinton might have viewed that precedent differently, especially since the holding in Glucksberg is not necessarily popular: Though physician-assisted suicide and euthanasia are controversial and opposed on principle by devout Catholics (of which Barrett is one), polls show that most Americans support legalizing them.

The Supreme Court has reversed itself on social issues — state bans against consensual intimacy between same-sex partners being a good example — before. And in 2015, Canada’s Supreme Court ruled that that country’s Charter of Rights and Freedoms mandated not only physician-assisted suicide but also doctor-provided euthanasia — even though the same court had reached the opposite conclusion 22 years earlier.

Stare decisis, the legal principle that past rulings should usually be left to stand, is “not a straitjacket that condemns the law to stasis,” the Canadian court noted, and a new “matrix of legislative and social facts” had to be considered.

On the whole, though, Americans, including proponents of a right to die, are probably better off leaving Glucksberg as settled law.

That’s because, while not required to allow physician-assisted suicide, the states are also not forbidden to legalize it, per a 2006 ruling, Gonzales v. Oregon, in which the Supreme Court rebuffed the Bush administration’s attempt to treat that state’s doctors who prescribed lethal doses under state assisted-suicide law as violators of the federal Controlled Substances Act.

Eight of the 50 states and D.C. have permitted physician-assisted suicide, by statute or referendum. (In one, Montana, the state Supreme Court decreed it as a matter of state law, and legislators have tried, unsuccessfully so far, to overturn that ruling.)

The combined effect of the Glucksberg and Gonzales cases is this: If there is to be a right to die in the United States, democratic processes in the states and, possibly, Congress will establish its contours, not the lapidary phrases of a Supreme Court opinion.

The resulting body of law will enjoy greater legitimacy by virtue of its having been arrived at by politically accountable lawmakers through open debate — and its being subject to amendment or repeal should experience reveal unanticipated new challenges or unintended consequences.

Surely the history of Roe v. Wade and its repercussions — political and legal — shows the risks of shifting the discussion of all such nuances into the federal judiciary, especially when the underlying issue involves sensitive questions surrounding the beginning, and end, of life.

Support Barrett or oppose her, she had a point when she wrote, in a 2013 law review article on stare decisis: “The public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”

Barrett’s mentor, the late Justice Antonin Scalia, dissented in Gonzales, on the grounds that federal controlled-substance law requires barbiturates be used for a “legitimate medical purpose,” which, in his view, could not possibly include physician-assisted suicide. (Roberts and Thomas joined Scalia’s opinion.)

For the court to adopt Scalia’s view — to overrule Gonzales while retaining Glucksberg — would tilt the current legal balance against physician-assisted suicide and euthanasia, another reason to focus on Barrett’s assertion, at the hearing, that “no one should assume” she will always do what Scalia would have.

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