Honorable Mention  – Brand Legal Group’s Second Legal Scholarship.

While this essay was not a winner of our second Legal Scholarship it was one of the only to speak to topic of physician assisted suicide.  We offer it to our readers as an Honorable Mention, and thank Ashlyn Darden of University of Florida Levin College of Law, where she is a J.D. student.

Before reading this essay, it is important to note that this is NOT written or endorsed by Brandon Legal Group, and does not represent legal advice.  The following document is a submission for our Legal Scholarship program, and is presented here only as an “honorable mention”.

Physician-Assisted Suicide and the Right to Die in Florida

Without argument the decision to die is one of “the most intimate and personal choices a person may make in a lifetime.” This language was used in Planned Parenthood v. Casey to describe the decision to get an abortion, the decision to get an abortion like the decision to “die with dignity” is a decision that is deeply related to personal dignity and autonomy, which is why Florida should allow physician-assisted suicide. 505 U.S. 833 (1992).  Like banning abortions for women, banning physician assisted suicide has a far reaching effect on terminally ill patients, especially as a ban of physician-assisted suicide doesn’t only prohibit one way of dying for terminally ill patients. These patients’ do not have any other way to end their lives as otherwise healthy people would. In some cases, banning physician-assisted suicide also prevents doctors from prescribing drugs like morphine that many terminally ill patients need to cope with their pain and suffering but can also lead to a hastened death. In  Cruzan v. Director, Missouri Department of Health the Court decided that it was constitutional to take away life sustaining treatment even if it would hasten death, by allowing this,  they outlined the liberty interest in deciding one’s own time and method of death and therefore there is no question of whether there is a liberty interest in deciding the circumstances of one’s death. 497 U.S. 261 (1990).  This liberty interest can be applied to legalizing physician-assisted suicide because as Cruzan’s medical treatment was taken away to make her death quicker, the patients’ using physician-assisted suicide would be seeking the same result with a slightly different method.  In the concurring opinion of Glucksberg by Justice Breyer he states that the “right to die” should be a “right to die with dignity” and this kind of “death with dignity” would encompass the personal control of being able to choose the time and method of one’s death in order to avoid extreme pain and suffering.  The Supreme Court decided to leave the issue open for debate in the public sphere because they feared that declaring it constitutional would make it untouchable in terms of regulation and debate but this is not the case as seen by other constitutional rights such as abortion and the death penalty which have been declared constitutional but still inspire healthy debates and discourse.

In deciding whether physician-assisted suicide should be legal in Florida, the interests of the terminally ill patients and the interests of the state must be weighed against each other. The preservation of lives is a legitimate government interest but there is also a liberty interest in deciding one owns death as seen in Cruzan.  This liberty interest does not exclude regulation of physician assisted suicide nor does it expand the “right to die” to nonterminally ill patients as stated in the majority opinion of Washington v Glucksberg, 521 U.S. 702 (1997). By instituting regulation, Florida could provide well-proportioned safeguards. The Majority in Glucksberg goes against precedent when they state that “the state may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia” and when they hypothesize that “if suicide is protected as a matter of a constitutional right, it is argued, every man and woman in the United States must enjoy it.”  In Roe v. Wade the Supreme Court declared that abortion was a constitutionally protected procedure but in both Roe and Casey the court stated that abortion can be regulated by the states even though it is a constitutionally protected practice and so applied to physician assisted suicide, the states could regulate and provide safeguards but a complete ban of this procedure should be unconstitutional on account of the liberty protection under the Fourteenth Amendment Due Process clause. An example for Florida to follow could be Oregon which has successfully instituted a statute that provides ample safeguards from patient’s depression or coercion. Physician-assisted suicide is not an easy procedure to obtain, there are many requirements and responsibilities that a physician and the patient have to follow pursuant to Oregon’s Death with Dignity Act. For example, Florida could require the patient to receive two identical diagnosis of a terminal illness and require the patient to go through a mental evaluation. Oregon’s successful regulation of physician-assisted suicide has shown that many concerns legislators have about physician-assisted suicide are not valid. There is relevant and significant weight behind Florida’s interest in protecting lives, whether terminally ill or not but no matter how extensive this weight may be it cannot exceed the states right to regulate the medical profession in addition to the patient’s right to hasten their death with medicine prescribed to them by their physician. Therefore, Florida should institute legislation to legalize physician-assisted suicide.

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