In the 1990s, 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-accelerated death as a constitutional right. (Full disclosure: I wrote and filed an amicus judicial brief with the Supreme Court against this effort as counsel for the International Euthanasia Task Force, now the Patients’ Rights Council. ) The effort failed, with the Supreme Court ruling 9-0 in Glucksberg versus Washington (1997) that there is no right to assisted suicide in the US Constitution.
An unexpected turn
Now, in a turn that could not have been anticipated at the time, Glucksberg provided the main precedent to invalidate deer as a bad constitutional law. Of Dobbs vs. Jackson (emphasis mine):
We hold this deer and Casey must be cancelled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which Roe and Casey’s defenders now primarily rely – the Due Process Clause of the fourteenth amendment. This provision was retained to guarantee certain rights which are not mentioned in the Constitution, but such a right must be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of ordered liberty.” Washington v. Glücksberg. . .
In deciding whether a right falls into one or another of these categories, the Court has long considered whether the right is “deeply rooted in [our] history and tradition” and if he is essential to our nation’s “ordered liberty plan”.” . . . Glücksberg. . . And in conducting this investigation, we have engaged in a careful analysis of the history of the law in question. . . .
Thus, in Glucksbergwhich held that the Due Process Clause does not confer a right to assisted suicide, the Court reviewed over 700 years of “Anglo-American common law tradition”, 521 US, to 711, and clarified that a fundamental right must be “objectively, deeply rooted in the history and tradition of this Nation.”
In analyzing the history of the unlisted claim to a right to abortion, the majority found it utterly flawed.
As the Court warned in Glucksberg“[w]must . . . exercise the utmost caution whenever we are asked to innovate in this area, lest the freedom protected by the due process clause be subtly transformed into political preferences of the members of this Court.” 521 US, at 720 (internal quotes and citation omitted).
Although a pre-acceleration abortion was not in itself considered a homicide, it does not follow that abortion was permitted at common law – let alone that abortion was a legal right. see Glucksberg521 US, p. 713 (deletion of “harsh common law penalties did not amount to acceptance of suicide”).
The essential conclusion is that the right to abortion is not deeply rooted in the history and traditions of the Nation. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal penalties persisted from the earliest days of the common law until 1973. The Court in deer could have said about abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bractonbut our laws have always condemned and continue to prohibit, [that practice].” 521 United States, to 719.
So, in a haughty attempt to impose assisted suicide on the nation in the same way as abortion had been, euthanasia activists instead laid the groundwork for a deerit is erasure. The irony is quite remarkable.
Transferred to The Corner.