Death After Dobbs

Abstract

Courts have recognized that decisions about medical care near the end of life enjoy both common law and constitutional protections since the 1970s, when patients, their families, and the medical establishment invited legal input into those intensely private discussions. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court famously “strongly assumed” that substantive due process protected decisions to withhold or withdraw such treatment as arising from a fundamental liberty interest. Beginning on June 24, 2022, however, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization prompted concern over whether substantive due process protection for end-of-life decision-making would disappear. Barring total annihilation of substantive due process, federal constitutional protection of end-of-life medical decisional liberty will, at a minimum, continue to exist to the same extent it does now. The Dobbs Court emphasized that it had not overruled a line of substantive due process cases involving personal decisions other than abortion, thus preserving arguments that the Federal Constitution protects end-of-life medical decisional liberty writ large as a fundamental right. Even applying the test of Dobbs, the Court’s “strong assumption” remains valid after Dobbs, so decisions to reject life-sustaining treatment will continue to enjoy the same, if not more, constitutional protection they enjoyed before Dobbs. Some advance directives face greater scrutiny, however, and it seems clear that medical aid in dying will continue to rely on state law as a source.