Jack Kevorkian: Born-Again Ninth Amendment Activist

Posted in Law and Politics by Mike Sacks on July 15, 2010

When Jack Kevorkian went to prison for assisting suicides, he didn’t find God.  He found the Ninth Amendment.

This documentary is in the background while I’m working on some other projects, and my ears pricked up when he mentioned the constitutional revelation that prompted his quixotic congressional run in 2008 with the late Justice Arthur Goldberg as his spiritual guide.

The Court, however, is not sympathetic.  It dispatched Kevorkian’s earthly calling, assisted suicide, in 1997; denied certiorari in 2004 to Kevorkian’s own appeal of his conviction; and has barely uttered a word about the Ninth Amendment since Goldberg’s 1965 Griswold concurrence, spare for a little Scalian brush-off in 2000.

(h/t Josh Blackman for reminder of Scalia’s take on the Ninth.  For those more interested in the Amendment, see Josh’s December post on current Ninth Amendment scholarship divides.)

UPDATE: Just peeked at Kevorkian’s denied SCOTUS petition for certiorari to see his Ninth Amendment argument.  It’s pretty paltry.  He seems to have thought much more about it since submitting the petition, or, more likely, his lawyers thought making the case to the Court was a waste of time.  This is the entire section:

As a threshold matter, the District Court erroneously determined that Dr. Kevorkian’s claim of a violation of the Ninth Amendment was procedurally defaulted on the basis that such issue was purportedly not properly placed before the Michigan Court of Appeals. In fact, this issue was properly put before the Michigan Court of Appeals, but the Michigan Court of Appeals nonetheless deliberately and wrongfully ignored the issue. Specifically, Dr. Kevorkian clearly stated that his Constitutional claim is based uponboth the Ninth and Fourteenth Amendments jointly. In fact, the Michigan Court of Appeals did render an opinion on the merits regarding Dr. Kevorkian’s position under the Fourteenth Amendment which included intertwined aspects of the Ninth Amendment. Because Dr. Kevorkian’s claim for relief in his Habeas Petition is premised upon the intertwined aspects of both the Ninth and Fourteenth Amendments, and the Michigan Court of Appeals did in fact address the merits of Dr. Kevorkian’s position, there can be no procedural default because the Michigan Court of Appeals did rule upon such issue.

Although the District Court determined that no violation of the Fourteenth Amendment had occurred on the basis that there is no constitutional right to commit euthanasia, Dr. Kevorkian never asserted a right to commit euthanasia as a basis for his appeal.  Instead, Dr. Kevorkian expressly asserted only a right of the patient to be free from unbearable and irremediable pain and suffering, which right can be asserted by a treating physician when the treating physician is accused of a crime as a result of his actions in aiding the patient in obtaining medical treatment for unbearable and irremediable pain and suffering, which treatment is constitutionally permitted. Washington v. Glucksburg, 521 U.S. 702, 737 (O’Connor, J., concurring), 791-792 (Breyer, J., concurring) (1997). Indeed, the clear precedent of this Court approves of “aggressive palliative care,” such as the care provided by Dr. Kevorkian. Id. at 745,750-751 (Stevens, J., concurring).

One Response

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  1. Joe said, on July 17, 2010 at 9:24 am

    Perhaps, this can be put on a double bill with the Al Pacino film.

    The 9A really amounts to substantive due process — Goldberg’s opinion in effect joined the two. Randy Barnett does have a couple interesting collections of essays and documents on the amendment. I read one — fascinating really to read pre-Griswold law review articles on the subject. Well, maybe it’s just me.

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