Justice Souter, Empathy, and the Medical Relationship

Bryan Hilliard, Ph.D.

In the last week of April, Justice David Souter announced his retirement as Associate Justice of the U.S. Supreme Court. In praising his service on the Court, President Barack Obama noted Justice Souter’s temperament, character, and capacity for empathy; indeed, President Obama said he would search for a nominee who exhibited “empathy” to replace Justice Souter. Less than three weeks later, President Obama expressed his belief that he had found someone with this and other admirable character traits when he nominated Judge Sonia Sotomayor, currently serving on the U.S. Court of Appeals for the Second Circuit.  
            Justice Souter’s retirement at the end of this term, Judge Sotomayor’s impending appearance before the Senate Judiciary Committee, and references—some approving, some disdainful—to empathy as one qualification for serving on the High Court should prompt us to reconsider Justice Souter’s jurisprudence and temperament in cases involving medical decisions at the end of life. If empathy, sympathy, sensitivity, and the like are anywhere desirable, surely it would be in the context of judicial determinations over whether discussions and subsequent actions between physicians and their patients regarding end-of-life treatment options are protected from state intrusion and in drawing conclusions concerning the outer parameters of that protection. How sympathetic, if one can measure such things, was Justice Souter to the plight of terminally ill, suffering patients who requested assistance from their physicians in hastening death? Do we detect empathy by Justice Souter toward the asserted liberty interest in the meaningful doctor-patient relationship claimed by physicians and their dying patients? I would argue that we indeed detect on the part of Justice Souter a willingness to empathize with suffering patients and with the physicians who seek to address that suffering, and that this empathy is well placed.
            We received a hint, of course, of Justice Souter’s capacity to feel and apply empathy for physicians and their patients, as well as for the unique relationship that forms between them, early in his tenure. In their plurality opinion announcing the judgment of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833, 851, 1992), Justices O’Connor, Kennedy, and Souter wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” In affirming the central holding of Roe v. Wade that women have a liberty interest protected by the Due Process Clause of the Fourteenth Amendment to make decisions in consultation with a physician to terminate pregnancy, the plurality was recognizing, at least in part, a legitimate role for respecting autonomy and dignity in constitutional adjudication. The plurality also recognized and reaffirmed what Justice Blackmun, in his majority opinion in Roe knew all too well: the relationship between a physician and patient is a significant and intimate one, deserving of substantive protection against state intrusion. Indeed, physicians and patients enjoy a liberty interest in their relationship—a medical relationship that has a long tradition in American history and law.  
            Five years after the plurality opinion in Casey and almost twenty-five years after Roe, Justice Souter took the opportunity to remind his colleagues on the Court as well as the State of Washington of the immense constitutional and moral significance of the medical relationship. Before the Court in Washington v. Glucksberg was a challenge to a Washington law prohibiting assistance in suicide brought by physicians and competent, terminally ill, suffering patients. The Court was unanimous in its judgment, announced by Chief Justice Rehnquist, that assistance in committing suicide was not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Several Justices, however, took exception to the Chief Justice’s reasoning; Justice Souter’s concurring opinion is particularly instructive in its willingness to empathize with the plight of physicians and terminally ill patients, an empathy that prompts him to recognize and appreciate the special significance of the medical relationship.
Justice Souter’s understanding of the liberty interests at stake surrounding regulation of abortion allows him to draw analogies between doctor-patient interactions involving reproductive freedom and considerations of the permissibility of physician-assisted suicide. In both instances, the right to bodily integrity and autonomy is integral to the “accepted tradition of medical care” (Glucksberg, 779). As with the abortion act, physician-assisted suicide requires the assistance and counsel of a physician. Being forced to employ one’s own devices to end suffering and indignity that may accompany the end of life, as with terminating a pregnancy without assistance from a physician, leads to inhumane treatment and devastating consequences for all involved.    
Contradicting the reasoning of other Justices set forth in previous decisions—consider Justice Scalia’s characterization of medical practice and the proper goals of medicine in his dissenting opinion in Gonzales v. Oregon—Justice Souter presents an expanded and nuanced interpretation of the proper role of the physician. After admitting that no consensus exists in the medical profession regarding physician-assisted suicide, he asserts that physician counsel and assistance in hastening the deaths of terminally ill, suffering patients is “consistent with standards of medical practice” (Glucksberg, 753). Frankly, this is an astounding observation. All too often, in their decisions implicating the doctor-patient relationship and the practice of medicine, the Justices assert a one dimensional view of the physician as simply a healer, one whose only goal is curing disease. Contrary to this view, Justice Souter observes that “…the good physician is not just a mechanic of the human body whose services have no bearing on a person’s moral choices, but one who does more than treat symptoms, one who ministers to the patient” (Id, 779). Terminally ill, adult, suffering patients who seek assistance in hastening their deaths are seeking release from suffering, dignity at the end of life, and the chance to die without becoming a burden to self and loved ones. The medical relationship is valued precisely because there exists the “idea of the physician as serving the whole person” (Id). Defending his conception of the medical relationship further, Justice Souter cites Griswold v. Connecticut for the proposition that decisions between physician and patient are of an intimate nature.
Ultimately, Justice Souter votes to uphold the Washington statute. However, one still gets the sense that his empathy for terminally ill, suffering patients as well as his recognition of the significance of the medical relationship informs his acceptance (albeit lack of support) of the Washington law. Justice Souter observes that there is a “recognized state interest in the protection of non-responsible individuals and those who do not stand in relation either to death or to their physicians as do the patients whom respondents describe” (Id, 782). Justice Souter recognizes as legitimate several state interests in proscribing physician-assisted suicide, but one has the sense that his recognition is at best reluctant. He seems genuinely concerned about coercion, abuse, financial pressures, and the very real possibility that the act of physician-assisted suicide will be undertaken without establishment of a meaningful medical relationship. At this time, factual disputes and uncertainty over the effectiveness of legislative initiatives to address possible abuse force the conclusion that states have interests—interests that are rational and non-arbitrary—in preventing physician-assisted suicide.
            Justice Souter is well aware that physician-assisted suicide is an “emerging issue” and that, as a result, “reasonable legislative consideration” by the states must be permitted to move forward. But Justice Souter is quite explicit in acknowledging that competent, adult, terminally ill patients who voluntarily request medical assistance and physicians who wish to offer such assistance might one day prevail in their claim that physician-assisted suicide is a liberty interest protected by the substantive due process clause of the Fourteenth Amendment. One could indeed imagine, given the historical significance of the medical relationship, that laws prohibiting physicians from assisting their patients in realizing a dignified and painless death could be found to impose an “arbitrary imposition” on patients and doctors and be a “purposeless restraint” of the doctor-patient relationship.
With laws and ballot initiatives allowing physician-assisted suicide spreading beyond Oregon, voters, state legislatures, and medical professional organizations face challenges in articulating and justifying the kinds of assistance physicians may offer their competent, terminally ill, suffering patients. Part of this challenge, as Justice Souter articulated so well, concerns how best to characterize the rights and liberties at stake. Will Sonia Sotomayor face questions regarding her view of the constitutional status of the medical relationship and the degree to which the state or federal government may permissibly interfere with that relationship? No doubt, she will be asked broad questions regarding the constitutionality of abortion and physician-assisted suicide. If Judge Sotomayor is willing, she can certainly reframe these questions and, with a little persistence, invite the Senate Judiciary Committee and the American public to focus not on specific acts, but rather on what constitutes the proper understanding of the doctor-patient relationship. Justice David Souter, with his insistence on empathy and nuanced reasoning, has shown Judge Sotomayor the way.