Assisted Suicide, Morality and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

Abstract

Laws that criminalize assisted suicide should be struck down under the First Amendment’s Establishment Clause. These laws fail the secular purpose strand of the Lemon test and the anti-coercion strand that Lee v. Wiseman established under the accommodation test. While it is true that laws against assisted suicide don’t involve performance of a religious ritual, they codify a highly specific interpretation of Christian doctrine. This article uses an historical analysis to demonstrate that prohibitions against suicide and assisted suicide emerged from a conception of Christianity that defined actions as moral only if they served a higher purpose. In the modern world, this conception has been replaced by a rival morality centered on individual self-fulfillment, which accepts rather than condemns an individual’s decision to end his or her life under certain circumstances. The advent of the new morality clarifies the specificity of the prior morality and highlights its religious origin. Based on this analysis, it seems clear that according to an historically and contextually established definition of religion in our contemporary society (the only defensible type of definition) laws against assisted suicide are efforts to compel obedience to a particular religious ideology, and should be struck down on that basis.