Postman on Politics
Chief political reporter David Postman explores state, regional and national politics.
April 10, 2008 9:06 AM
Posted by David Postman
A state Supreme Court deeply divided over the Washington Constitution’s right to privacy ruled this morning that prison officials can force-feed inmates who refuse to eat or drink.
The court was ruling on an appeal filed by Charles R. McNabb who was force-fed at the Airway Heights Corrections Center near Spokane in 2004. He had not eaten voluntarily for more than five months before that while in the Spokane County Jail. But at Airway Heights, prison staff force-fed him through a tube in his nose for several days. After that, McNabb resumed eating voluntarily.
McNabb sued the state, saying it was his right to refuse nutrition and to let his fast “to take its course.”
The Department of Corrections argued that it had compelling reasons to force food and nutrition to keep McNabb alive.
The lead opinion, upholding a Court of Appeals decision, was written by Justice Mary Fairhurst and signed by justices Susan Owens, James Johnson and Bobbe Bridge, acting as a pro-tem.
Fairhurst wrote that the state constitution’s privacy provisions in Article I section 7 does give someone the right to refuse force-feeding. But in McNabb’s case, the state’s interest in keeping him alive “outweigh his right to refuse artificial means of nutrition and hydration.”
In the words of McNabb, "'[m]y only wish is for my personal decision not to eat to be respected and to be left in peace for my fast to take its course.'" Br. of Appellant at 2 (quoting CP at 7). Therefore, death resulting from McNabb's refusal of artificial means of nutrition and hydration will consummate his intent to die. Under these circumstances, the State has a compelling interest in preventing McNabb's intentional death.
We find that McNabb has a limited right of privacy as an incarcerated individual but the State's interests in orderly administration of the prison system, preservation of life, prevention of suicide, and maintenance of the ethical integrity of the medical profession outweigh McNabb's limited right.
Justice Barbara Madsen wrote a concurrence saying agreeing with the result of the lead opinion but disagreeing with the balancing test Fairhurst spelled out.
Prisoners who are otherwise healthy have no right to refuse artificial means of nutrition and hydration in an effort to end their lives.
The extraordinary intervention in this case was initiated only when medical staff issued a written determination that McNabb's health was threatened. McNabb has no right to starve himself to death by refusing sustenance while in the custody of the State -- this is not a privacy right that citizens of the state hold or expect to hold.
The concurrence was also signed by Chief Justice Gerry Alexander and justices Charles Johnson and Tom Chambers.
Justice Richard Sanders dissented, saying that McNabb had the right to refuse nutrition. He says force-feeding is a “practice tantamount to torture.”
The lead opinion incorrectly frames the privacy interest at stake as the right to suicide. This case is no more about the right to suicide than Lawrence v. Texas, was about the right to sodomy. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone."
Even more disturbing than the lead opinion's "balancing" of our privacy right against some majoritarian government bias is the concurrence's conditioning our right to privacy on the existence of a terminal illness. Concurrence at 1. The right to bodily integrity, the inner sanctum of all that is "private," is absolute under our state constitution; there is no basis to conclude terminally ill people have any superior right to bodily integrity than nonterminally ill people. The concurrence's notion to this effect is abhorrent to our tradition of equality.
By extension, does this mean the State could force a woman with a life-threatening pregnancy to submit to an abortion? Or could the State force an inmate who contracted lung cancer after years of smoking to undergo chemotherapy? Technically, both of these "conditions" were "set in motion" by the individual. And yet, forcing an abortion or cancer treatment upon an inmate is unthinkable to most. Likewise, since the State's interest in preventing suicide is based on theological doctrine, its constitutional validity is questionable.
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