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The "Right to Die": Constitutional and Statutory Analysis

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Publication Date: September 2005

Publisher(s): Library of Congress. Congressional Research Service

Series: 97-244

Topic: Law and ethics (Ethics)


In the spring of 2005, national attention was drawn to a series of court and legislative actions regarding the withdrawal of nutrition and hydration from a Florida patient, Theresa Schiavo, who had suffered severe brain damage. For a summary of r e l e v a n t factual and legal events surrounding this case, see [] and CRS Report RL32830, The Schiavo Case: Legal Issues. This case brought new scrutiny to the "right to die" issue. Although the popular term "right to die" has been used as a label to describe the current political debate over end-of-life decisions, the underlying issues include a variety of legal concepts, including, suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process).

Exercising one or another of these "rights to die" may have drastically different legal consequences: some currently have no legal consequence, some are a violation of common-law, some are a violation of statute, some may have contractual consequences, some may result in an action such as civil confinement, some are currently protected by legislation, and some may be protected by the United States Constitution. This report examines the legal status of the five distinct issues: 1) suicide, 2) passive euthanasia, 3) assisted suicide, 4) active euthanasia, and 5) palliative care.

The report examines the history of how each of these issues has been treated and evaluates the constitutional right of a person to pursue these courses of action. It addresses state law regarding living wills, advance medical directives, and how these types of decisions are made regarding persons who have left neither. The report addresses congressional powers and existing federal statutes that are implicated in these issues, such as the Patient Self-Determination Act, the Assisted Suicide Funding Restriction Act, and the Controlled Substances Act. It then addresses bills introduced in the 109th Congress, S. 539 and H.R. 1151, both entitled the "Incapacitated Persons Legal Protection Act of 2005;" a bill passed by the House, H.R. 1332, "The Protection of Incapacitated Persons Act of 2005;" a bill passed by the Senate, "For the Relief of the Parents of Theresa Marie Schiavo;" and a similar bill passed by the House and Senate, S. 686. This last bill was signed by the President and became P.L. 109-3.

The report notes that current state regulations prohibiting assisted suicide have been upheld by the Supreme Court, and that similar prohibitions against active euthanasia are likely to be upheld against constitutional challenge. The Due Process Clause of the Fourteenth Amendment, however, appears to limit a state's ability to regulate passive euthanasia (termination of medical treatment). Finally, palliative care may ultimately be found to be protected by the Fourteenth Amendment, but the possible abuse of such care may raise policy concerns.