One of the unintended consequences of Justice Anthony Kennedy’s decision for the majority of the Supreme Court finding a constitutional right to marry, has been a renewed discussion of whether there is likewise a constitutional right to determine the timing of a person’s death. Before his own death, Dr. Jack Kevorkian generated numerous headline stories as he assisted people in Michigan, Washington State, and elsewhere, who had terminal and painful conditions, to arrange their own deaths with his assistance.
Many constitutional scholars have commented already that by not resting his reasoning on anti-discriminatory grounds, but on a fundamental right, Justice Kennedy may have encouraged interest groups to establish more fundamental rights. The “right to die” could be in the forefront of their efforts.
It is an interesting coincidence that in January of 2015, D.C. Councilmember Cheh introduced a “Death with Dignity Act of 2015” bill in the District of Columbia Council. That bill is Legislation No. B21-0038. Of course, the bill, establishing a right only for District of Columbia residents, if passed, would not constitute a Constitutional right. However, it was the rapid expansion of jurisdictions that recognized same-sex marriage that seemed to encourage Justice Kennedy and the majority to feel comfortable in finding a fundamental right to marry. Only three states (Washington, Oregon, Vermont) now have laws permitting physician-assisted death in terminally ill cases. If B21-0038 passes in the District of Columbia, and other states join in, that movement could propel the country to another fundamental right.
The bill before the D. C. Council, therefore, could have wider implications than it seems.