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Physician-Assisted Death: An Essay on Constitutional Rights and Remedies

NCJ Number
Maryland Law Review Volume: 55 Issue: 2 Dated: (1996) Pages: 292-342
S A Law
Date Published
51 pages
This article addresses two important issues of constitutional law, whether statutes criminalizing assisted suicide violate the liberty and privacy rights of terminally ill people and whether criminal laws against physician-assisted suicide violate constitutional rights of some but not all people they affect.
The first part of the article considers the substantive constitutional question of whether assisted suicide should ever be regarded as an aspect of constitutionally protected liberty and privacy. It concludes that, while State criminal bans on assisted are defensible in many situations, criminal laws that punish individuals who help others hasten death sometimes violate liberty and privacy interests of people who seek help in dying. The second part of the article examines ways in which constitutional issues associated with physician-assisted death come before courts, including as defenses to criminal prosecution, individual claims, and class actions. It argues that defenses to criminal prosecution and individual claims for declaratory and injunctive relief are not adequate to protect constitutional liberties articulated in the first part of the article. The third part of the article addresses remedial choices confronting a judge who is persuaded by the reasoning of the first two parts of the article: that a law banning physician- assisted suicide is unconstitutional as applied and that defenses to criminal prosecution or individual claims for declaratory and injunctive relief are insufficient to protect constitutional liberties. This part demonstrates how remedial concerns shape the definition of substantive rights and concepts of justiciability, explores available remedial choices, and suggests factors judges should consider in fashioning remedies. 260 footnotes