Diffusion and Diversity: Federalism and the Right to Die in the Fifty States

Right-to-die issues—from the right to have life-sustaining treatment withdrawn to the right to assisted suicide—are becoming important sources of state policy activity. Without much federal instruction, some state courts have constructed a general consensus position for other courts to follow using the federal Constitution to legitimize their decisions. State legislatures have accomplished less. Statutory diversity was the rule until recently, with legislatures passing a rich variety of generally conservative rules. Lately, with the pressure from rights-oriented interest groups and professional organizations, state legislators have been edging closer to the more liberal pattern of policy charted by judges of the state supreme courts. Policymaking that applies to assisted suicide may be expected to follow the same pattern: the federal government will remain silent while the state courts take the lead using the U.S. Constitution as ammunition. The state legislatures can be expected to trail behind, catching up to the courts only after statutory diversity is found wanting.