Substantive due process under the Fifth Amendment is a complicated area of law. Since these rights are not explicitly stated in the Constitution, the Supreme Court has had to parse out what privacy rights are essential to a person’s “life, liberty, or property.” One such right is medical privacy, discussed in detail below.
“No person shall…be deprived of life, liberty, or property, without due process of law;”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Although the popular term “right to die” has been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance, right to die could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician.
There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.1 On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health,2 the Court, rather than directly addressing the issue, assume[d] that a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.3 More importantly, however, a majority of the Justices separately declared that such a liberty interest exists.4 Yet, it is not clear how actively the Court would seek to protect this right from state regulation.
In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be clear and convincing evidence of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or anyone but the patient herself in making this decision.5 Thus, in the absence of clear and convincing evidence that the patient had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration.6
Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients but also to severely incapacitated patients whose condition has stabilized.7
The Court made clear in a subsequent case, Washington v. Glucksberg,8 that it intends to draw a line between the withdrawal of medical treatment and more active forms of intervention.
In Glucksberg, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with utmost care before breaking new ground in the area of liberty interests.9 The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases,10 noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.11
The recognition of liberty rights for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others.12 A state, however, cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.13 Moreover, a person who is constitutionally confined enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.14 Influential lower court decisions have also found a significant right to treatment15 or training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints16 although the Supreme Court’s approach in this area has been tentative.
For instance, in Youngberg v. Romeo, the Court recognized a liberty right to minimally adequate or reasonable training to ensure safety and freedom from undue restraint.17 Although the lower court had agreed that residents at a state mental hospital are entitled to such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit,18 the Supreme Court found that the plaintiff had reduced his claim to training related to safety and freedom from restraints.19 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts must defer to professional decision-making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.20 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures.21
The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks,22 the Court upheld a Kansas law that allowed civil commitment without a showing of mental illness, so that a defendant diagnosed as a pedophile could be committed based on his having a mental abnormality that made him likely to engage in acts of sexual violence. Although the Court minimized the use of this expanded nomenclature,23 the concept of mental abnormality appears both more encompassing and less defined than the concept of mental illness. It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior.24
Still other issues await exploration.25 Additionally, federal legislation is becoming extensive,26 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests that the Due Process Clause protects.27
1. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) (We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death).
2. 497 U.S. 261 (1990).
3. 497 U.S. at 279.
4. See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting).
5. 497 U.S. at 286.
6. A State is entitled to guard against potential abuses that can occur if family members do not protect a patient’s best interests, and may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. 497 U.S. at 281–82.
7. There was testimony that the patient in Cruzan could be kept alive for about 30 years if nutrition and hydration were continued.
8. 521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected an argument that a state which prohibited assisted suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment.
9. 521 U.S. at 720.
10. E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty interest in terminating pregnancy).
11. A passing reference by Justice O’Connor in a concurring opinion in Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty interest in seeking pain relief, or palliative care. Glucksberg and Vacco, 521 U.S. at 736–37 (Justice O’Connor, concurring).
12. These principles have no application to persons not held in custody by the state. DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no due process violation for failure of state to protect an abused child from his parent, even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker).
14. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Thus, personal security constitutes a historic liberty interest protected substantively by the due process clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) (Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental actions).
15. In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court had said that due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. Reasoning that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala), enforced, 334 F. Supp. 1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff’d in part, reserved in part, and remanded sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 422 U.S. 563 (1975).
16. The Court acknowledged that the word habilitation did not have a precise meaning but had been used to refer to programs that train persons with intellectual disabilities to acquire needed skills. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) ([T]he principal focus of habilitation is upon training and development of needed skills.)
18. 457 U.S. at 318 n.23.
19. 457 U.S. at 317–18. Concurring, Justices Blackmun, Brennan, and O’Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with. Id. at 325. Chief Justice Burger rejected any protected interest in training. Id. at 329. The Court had also avoided a decision on a right to treatment in O’Connor v. Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision recognizing the right and thereby depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days later the Court denied certiorari to another panel decision from the same circuit that had relied on the circuit's Donaldson decision to establish such a right, leaving the principle alive in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S. 364, 373 (1986) (dictum that person civilly committed as a sexually dangerous person might be entitled to protection under the self-incrimination clause if he could show that his confinement is essentially identical to that imposed upon felons with no need for psychiatric care).
20. 457 U.S. at 323.
21. E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create problems with respect to injunctive relief as well. Cf. New York State Ass’n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). The Supreme Court has limited the injunctive powers of the federal courts in similar situations.
22. 521 U.S. 346 (1997).
23. 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding that a state cannot hold a person suffering from a personality disorder without clear and convincing proof of a mental illness).
25. See Developments in the Law: Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982), the Court had before it the issue of the due process right of committed mental patients at state hospitals to refuse administration of antipsychotic drugs. An intervening decision of the state’s highest court had measurably strengthened the patients’ rights under both state and federal law and the Court remanded for reconsideration in light of the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981).
26. Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94-103, 89 Stat. 486, as amended, 42 U.S.C. §§ 6000 et seq., as to which see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981); Mental Health Systems Act, 94 Stat. 1565, 42 U.S.C. §§ 9401 et seq.
See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). On the question of procedural due process rights that apply to civil commitments, see The Problem of Civil Commitment, infra.