by Wesley J. Smith
Back in the ’90s, the assisted-suicide movement tried to convince the Supreme Court to impose a Roe v. Wade– styledecisionfortheircausethatwouldcircumventthedemocraticprocessbyimposingdoctor-hasteneddeath as a constitutional right. (Full disclosure: I wrote and filed an amicus brief in the Supreme Court against that effort as a lawyer for the International Anti-Euthanasia Task Force, now the Patients Rights Council.) The effort failed, with the Supreme Court ruling 9–0 in Glucksberg v. Washington (1997) that there is no right to be found in the United States Constitution to assisted suicide.
Now, in a turn that could not have been anticipated at the time, Glucksberg provided the primary precedent for striking down Roe as bad constitutional law! From Dobbs v. Jackson (my emphasis):
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg. . . .
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” . . .Glucksberg . . . And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue. . . .
Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of “Anglo-American common law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition.”
Analyzing the history of the unenumerated claim of a right to abortion, the majority found it wholly wanting.