From Same-Sex ‘Marriage’ to a Constitutional Right to Die?

Today I was stopped dead in my tracks over yet one more consequence of the Supreme Court’s ruling on marriage in Obergefell. What stopped me was the fact that it had nothing do to with marriage. Instead, the marriage decision just might result in one of Tennessee’s pro-life laws being ruled unconstitutional.

The pro-life law in question is the prohibition in Tennessee of physician-assisted suicide. The constitutionality of that law is now being challenged in a Davidson County Chancery Court. Oral arguments were recently made and briefs are being filed. The brief I was reading cited the Obergefell opinion as authority for the proposition that there is a constitutional right to physician-assisted suicide (PAS).

If you’re like I was when I read that, you’re thinking, “What does a constitutional right to same-sex “marriage” have to do with whether Tennessee’s law on physician-assisted suicide is unconstitutional? How does a constitutional right to same-sex “marriage” give rise to a constitutional right to die?” Great question. Let me answer that.

Didn’t the Supreme Court Already Reject This Right?

In a 1997 case, the United States Supreme Court ruled in Washington v. Glucksberg that there was no constitutional right to physician-assisted suicide. So, you say, “Shouldn’t that settle the issue, then?”

You might think so, but remember that in the 1972 case of Baker v. Nelson, the Supreme Court said that a lawsuit for same-sex “marriage” didn’t even present a “federal question,” let alone give rise to a constitutional right. Forty-three years later, the Court said the Constitution evolved while we were sleeping and that same-sex “marriage” was a constitutional right.

If Baker didn’t “bind” the Supreme Court on the issue of marriage, there is no reason to think it will be bound by Glucksberg either. In fact, the reason the physician-assisted suicide proponents cited Obergefell is because it effectively overruled the reasoning in Glucksberg.

How Obergefell Changed the Constitution on PAS

Here is a very shorthand way of explaining what I mean. Glucksberg said that new constitutional rights must be somehow firmly rooted in our history before the Supreme Court will recognize them. Assisted suicide was not firmly rooted in our history, and so Glucksberg said there was no constitutional right to it.

But that “history thing” set up a barrier to the current Supreme Court “finding” a new constitutional right to same-sex “marriage.” After all, same-sex “marriage” was not firmly rooted in our history.

Thus, the Obergefell Court had to scrap the Glucksberg notion that rights had to be tied to history, and so they did. In its discussion of Glucksberg, this is what the Obergefell Court said about the “restriction” on new rights:

“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

In other words, the “past”—meaning history—doesn’t matter. That’s why Justice Roberts said in his dissenting opinion in Obergefell that “the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process.”

There you have it. The barrier that might have existed to prevent a court from now finding a constitutional right to physician-assisted suicide no longer remains!

Were the Disabled Wasting Their Breath?

Last month I listened with great interest to the impassioned speeches of advocates for the physically and mentally disabled against a bill that would repeal our law against physician-assisted suicide. They explained and offered examples showing how easy it would be for them to become victims in a culture that condoned physician-assisted suicide.

Like those who may feel like we wasted our breath defending marriage in our state’s laws, they may find themselves feeling the same way when the courts finish with this lawsuit. The law that protects them may also prove, by judicial magic, to be unconstitutional.

Did Only Marriage ‘Die?’

I hope this helps more of us see that what Justice Scalia said in his dissent is really true, namely, that as bad as the marriage “result” was, even worse was the rationale of the majority. Our cultural understanding of marriage may not prove to be the only thing that died in June.

The Court’s rationale made our ability to govern ourselves and exist as a nation of sovereign states subject to the whims of this unelected “committee of nine lawyers” we call the Supreme Court. Self-government, state’s rights, and the Tenth Amendment may have died, too. They were, for sure, put on life support.

But that’s not all that may have died. If the Court overrules our laws against physician-assisted suicide, it may just be your right to live that gets overruled if someday you get too old, too costly, or too infirm.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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