Revisiting the constitutional right to Palliative Care
Katherine Irene Pettus, PhD, a political theorist, was invited to write this commentary on April 18th. She is currently writing a book on Palliative Care and Public Policy for SUNY Press to be published in 2013)
New state laws aimed at curbing opioid access in regions experiencing what the mainstream media calls the “prescription drug abuse epidemic” may run afoul of Supreme Court dicta on the right to pain relief. It could well be time for palliative care and pain activists to strategize how to get the Court to revisit its dicta in “Glucksberg,” one of the two 1997 “physician assisted suicide” cases that generated a surprising side effect, a constitutional right to palliative care and pain relief.
At the turn of the twentieth century, two cases challenging state laws in Washington and New York criminalizing physician assisted suicide made it to the Supreme Court. The 9th and 2nd Courts of Appeal, respectively, had agreed with plaintiffs (dying patients) that the state laws were unconstitutional and violated their “liberty interest” to die with the aid of a physician. The two states’ attorneys general appealed and the Rehnquist Supreme Court heard the cases: Vacco v Quill (New York) and Washington v Glucksberg.
All nine justices, in separate opinions, ruled to reverse the appeal courts’ rulings, finding no constitutional right to physician assisted suicide. What interested commentators and scholars at the time though, and what seems to have been forgotten in the latest panic over painkillers, is that five of the justices (O’Connor, Ginsburg, Breyer, Stevens, and Souter) stated clearly that patients have a right to pain relief and that state laws should not inhibit access to palliative care. They based the right in the “inherent dignity of the person.” Although all the Justices who carved out this putative “right to palliative care” did so specifically in the context of end of life care and terminal pain, there is no logical reason why the right should be limited to the dying: why it should not be extended to the non-terminal person in pain. A person’s inherent dignity and right not suffer severe pain does not kick in just because she is dying. Or…just because she is not actively dying does not mean she should have to suffer the torments of unrelieved pain.
The Justices did not address the issue of rights of non-terminal pain patients because the 1997 challenges were narrowly focused on terminal suffering and assisted suicide. Five Justices stated that they only signed on to Rehnquist’s opinion denying a constitutional right to PAS because the patients had access to good palliative care both in New York and Washington. This fact allowed those Justices to reject the patients’ claims that only physician assisted suicide would end their terminal suffering, allow them to maintain their dignity, etc.. The existence of good palliative care, much to the relief of palliative care activists, averted the ruling that would have made the right to assisted suicide a constitutional one, rather than leaving it up to the states to decide whether or not to legalize and regulate it. Chief Justice Rehnquist’s federalism won the day, and Washington and Oregon voters have since legalized physician assisted suicide. Clearly this is not the same as making access to PAS a constitutional right.
Justice Breyer uttered the key phrase that is relevant for our current set of circumstances wherein state and federal laws and regulations are restricting physician and patient access to opioids. The restrictions are de facto (because physicians are afraid to prescribe for any number of reasons, from fear of prosecution to lack of adequate education) and de jure (the direct result of new laws and regulations): “Were the legal circumstances different–for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life–then the law’s impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And as JUSTICE O’CONNOR suggests, the Court might have to revisit its conclusions in these cases.” (My italics.)
As is often true of some of the most interesting Supreme Court cases, the tantalizing bits are in the footnotes. Chief Justice Rehniquist’s final footnote stated that the Court would consider a “more particularized challenge” to the state law, but that it would have to be “quite different than the ones advanced [in this case].” As Yale Law professor Robert Burt observed in an article written just after the decision was released, “The clear implication of Justice O’Connor’s repeated observation is that if a future case were presented to the Court in which there was a “dispute” about the existence of state legal barriers to adequate palliative care, then this would be the “quite different” and “considerably stronger” argument that could lead her to a different result.
Of course Justices O’Connor, Souter and Stevens have since retired from the Court, but Justices Ginsberg and Breyer are still there. Justice Breyer’s separate opinion also stated that a strong argument could be made for the existence of a “constitutional right to die with dignity” which “at its core” would involve “personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering.” Moreover, “were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain on the end of life – then the law’s impact upon serious and otherwise avoidable physical pain (accompanying death) would be more directly at issue. And as Justice O’Connor suggests, the Court might have to revisit its conclusions in these cases.” Three Justices (O’Connor, Ginsburg, and Breyer) specifically concluded that judicial intervention would become necessary “were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life.”
As Burt points out, constitutional rights trigger judicial scrutiny. If indeed Americans enjoy a right to palliative care as the Glucksberg dicta imply, states that inhibit the ability to exercise that right do so at their own risk. Theoretically, the existence of a right to palliative care would protect physicians who prescribe opioids for “legitimate” pain patients from prosecution and over-regulation by state medical boards. I say “theoretically” because a right must be vindicated, claimed, on the ground, in order to be actualized. Moreover, Justice Souter’s opinion stated that the Court would also scrutinize “legislative foot-dragging” in states whose laws and regulations that inhibit patients’ rights to good palliative care. These would include expensive or prohibitive insurance premiums or co-pays for pain medication. States with barriers to good palliative care would, in Justice Breyer’s words “infringe directly upon…the core interest of dying with dignity,” which involves “medical assistance, and the avoidance of unnecessary and severe physical suffering.”
Again, no rational argument can be made to justify limiting the right to avoid “unnecessary and severe physical suffering” only during the last moments, days, or weeks of life. If beneficiaries of this right to palliative care have a core interest in dying with dignity, surely they also have a core interest in living with dignity until they actually die. Lawyers who would oppose such an argument would have to prove that physicians can pinpoint the exact moment “dying” begins, in order to start the clock on when pain medication would become legally available.
Justice Stevens cited an early Supreme Court ruling in Casey to situate his decision in the a larger narrative: “Avoiding intolerable pain and the indignity of living one’s final days incapacitated and in agony is certainly “at the heart of [the] liberty . . . to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Casey, 505 U.S. at 851.)
And Frank Brennan, arguing for palliative care as an international human right, claims that “just as severe pain at the end of life presents an indignity that violates the protected liberty interest, one can make a strong argument that a life with continuous, chronic severe pain is also a life without dignity, and consequently, without liberty.”
It’s time for palliative care and pain activists to respond to the open invitation of the five Justices in Glucksberg to bring the Court a different set of facts to review about the availability of pain relief. It does not have to be an assisted suicide case. No doubt there are examples of state laws that are inhibiting the provision of palliative care in the current atmosphere. A compelling case could be built around how these laws are affecting patients’ rights on the basis of the Glucksbergdicta. The work is to systematically chronicle the situations and then find a suitable test case. There will be plenty of pushback and noisy debate, but rational arguments, precedent, and the sheer volume of human suffering involved may well prevail in the deliberative setting of the court.
 Burt, Robert A. (1997) “The Supreme Court Speaks, Not Assisted Suicide but a Constitutional Right to Palliative Care” New England Journal of Medicine, 10/23/1997 and Trehan, Ashley Bruce (2007) “NOTE: Fear of Prescribing: How the DEA Is Infringing on Patients’ Right to Palliative Care” 61 U. Miami L. Rev. 961; Cantor, Norman (2001) “Glucksberg, the Putative Right to Adequate Pain Relief, and Death With Dignity, Vol. 34, No. 3, HOSPLW Pg. 301
 Justice Breyer, in Washington v Glucksberg No. 96-110 521 U.S. 702; June 26, 1997, Decided
 See Beth Packman Weinman (2003):”Freedom from Pain Establishing a Constitutional Right to Pain Relief,” Journal of Legal Medicine, 24:4, 495-539
 Brennan, Frank F. (2007) “Palliative Care as an International Human Right” Journal of Pain and Sympton Management, vol. 33, 5 494.