Following the Supreme Court’s unprecedented acceptance of three abortion cases, and for the first time a case involving the withdrawal of life-sustaining medical treatment in the upcoming 1989 Term, this article addresses the so-called right to die. Specifically, as in Cruzan v. Director, Missouri Department of Health, whether the federal constitutional right of privacy extends to decisions, made on behalf of permanently unconscious patients, to have life-sustaining medical treatment discontinued and, if so, whether a state’s interest in the sanctity of life can override the patient’s privacy right? This article argues that on doctrinal as well as policy grounds, no such right should be recognized as a matter of federal constitutional law.
Part I of the article reviews the Supreme Court's privacy decisions, with a special emphasis on the abortion decisions, and concludes that current privacy doctrine does not extend to medical decision-making on behalf of PVS patients. Part II considers whether there are reasons for recognizing a "fundamental right" that is protected by the federal constitution to refuse life-sustaining medical treatment for PVS patients. Part II concludes that, as important as it is to develop a response to the problem of incompetent patients that is ethically, legally, and medically acceptable, strong arguments nonetheless militate against such a move by the Supreme Court and in favor of continued state sovereignty over this issue at this time.
Maryland Law Review
Thomas Wm. Mayo, Constitutionalizing the Right to Die, 49 Md. L. Rev. 103 (1990)