Commenter Richard Riley brings up an interesting point I haven’t seen mentioned before: Justice Scalia’s concurrence in Cruzan v. Missouri Dep’t of Health, 497 U.S. 261 (1990), has some pretty forceful language rejecting a proposed constitutional difference between regulating activity and inactivity. The issue in Cruzan was not the scope of Federal power, to be sure, as it is in the individual mandate litigation. Rather, the issue was whether there is a constitutional right to refuse medical treatment to prolong one’s life. The state has long had the power to regulate suicide, and Cruzan tried to distinguish suicide from refusing medical treatment on the ground that the former was “action” and the other was “inaction.” In other words, Cruzan argued that the state can regulate activity but has no power to regulate inactivity. In his concurring opinion, Justice Scalia rejected the proposed distinction:
The second asserted distinction . . . relies on the dichotomy between action and inaction. Suicide, it is said, consists of an affirmative act to end one’s life; refusing treatment is not an affirmative act “causing” death, but merely a passive acceptance of the natural process of dying. I readily acknowledge that the distinction between action and inaction has some bearing upon the legislative judgment of what ought to be prevented as suicide though even there it would seem to me unreasonable to draw the line precisely between action and inaction, rather than between various forms of inaction. It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction but between those forms of inaction that consist of abstaining from “ordinary” care and those that consist of abstaining from “excessive” or “heroic” measures. Unlike action vs. inaction, that is not a line to be discerned by logic or legal analysis, and we should not pretend that it is.
But to return to the principal point for present purposes: the irrelevance of the action-inaction distinction. Starving oneself to death is no different from putting a gun to one’s temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide’s conscious decision to “pu[t] an end to his own existence.” 4 Blackstone, supra, at *189. See In re Caulk, 125 N.H. 226, 232, 480 A. 2d 93, 97 (1984); State ex rel. White v. Narick, W.Va. , 292 S.E. 2d 54 (1982); Von Holden v. Chapman, 87 App. Div. 2d 66, 450 N.Y. S. 2d 623 (1982). Of course the common law rejected the action-inaction distinction in other contexts involving the taking of human life as well. In the prosecution of a parent for the starvation death of her infant, it was no defense that the infant’s death was “caused” by no action of the parent but by the natural process of starvation, or by the infant’s natural inability to provide for itself. See Lewis v. State, 72 Ga. 164 (1883); People v. McDonald, 49 Hun 67, 1 N.Y. S. 703 (1888); Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E. 2d 644, 647 (1948) (collecting cases); F. Wharton, Law of Homicide 134135, 304 (2d ed. 1875); 2 J. Bishop, Commentaries on the Criminal Law 686 (5th ed. 1872); J. Hawley & M. McGregor, Criminal Law 152 (3d ed. 1899). A physician, moreover, could be criminally liable for failure to provide care that could have extended the patient’s life, even if death was immediately caused by the underlying disease that the physician failed to treat. Barrow v. State, 17 Okla. Cr. 340, 188 P. 351 (1920); People v. Phillips, 64 Cal. 2d 574, 414 P. 2d 353 (1966).
It is not surprising, therefore, that the early cases considering the claimed right to refuse medical treatment dismissed as specious the nice distinction between “passively submitting to death and actively seeking it. The distinction may be merely verbal, as it would be if an adult sought death by starvation instead of a drug. If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other.” John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-582, 279 A. 2d 670, 672-673 (1971); see also Application of President & Directors of Georgetown College, Inc., 118 U.S. App. D.C. 80, 8889, 331 F. 2d 1000, 10081009 (Wright, J., in chambers), cert. denied, 377 U.S. 978 (1964).
Pretty interesting. In my view, no one should think that this passage from Cruzan proves that Justice Scalia will reject an action/inaction distinction in the Commerce Clause setting. Obviously, there are several ways to distinguish this from the Commerce Clause context. There is no common law definition at work in the Commerce Clause setting. And from Justice Scalia’s well-known perspective, constitutional limitations on the Commerce Clause are necessary while Due Process limitations on regulating medical care are illegitimate. Still, I think the passage does suggest that the proposed action/inaction distinction devised for the individual mandate litigation is trickier than its proponents suggest — and that the difficulties will not be lost on Justice Scalia.