Supreme Court to Tackle Doctor-Assisted Suicide

WASHINGTON — This week, the Supreme Court takes up what could prove to be the most momentous constitutional issue of the decade: whether the dying have a right to get medical help in ending their lives.

If the answer is yes, the final chapter of life could be rewritten for millions of Americans. Rather than suffer a death of unrelenting pain and misery, they could choose a quick, humane end, say right-to-die advocates.

But while the supporters of this foresee a future of “death with dignity,” foes are warning of a possible nightmare scenario in which the aged, the disabled and the feeble-minded are put to death by their doctors. The specter of Nazi Germany and its experiments in state-authorized euthanasia is repeatedly invoked.

Even if control were kept in the patient’s hands, opponents say, the availability of assisted suicide could change how we think about death. In a time of an aging population and tight medical budgets, the right to die could soon become “a duty to die,” they say.

This fierce clash of fundamental beliefs about life, death and the law is reflected in an outpouring of legal briefs that is unmatched in the high court’s history, except for the abortion battles of the 1970s and 1980s. The 65 friend-of-the-court briefs addressing the right-to-die issue are second only to those in a 1989 Missouri case that tested whether the Roe vs. Wade decision on abortion rights should be overturned, according to the court clerk’s office.

Religious and medical groups, advocates for the disabled, state officials, civil libertarians, coalitions of law professors and the Clinton administration have all filed briefs explaining their views on assisted suicide.

On Wednesday, the justices will hear two hours of oral argument regarding two cases that focus on the issue, one from Washington state, the other from New York. On Friday, the nine members of the court will vote behind closed doors and begin work on writing opinions.

Both cases turn on the deceptively simple words of the Constitution’s 14th Amendment. It says no state may “deprive any person of life, liberty or property without due process of law, nor deny to any person . . . the equal protection of the laws.”

In Washington vs. Glucksberg, 95-110, the court will consider whether a state violates a dying person’s right to “liberty” by prohibiting that person from getting help to die. The U.S. 9th Circuit Court of Appeals, based in San Francisco, said the “liberty” wording gives a terminally ill person a right to request a lethal dose of medication.

*

The second case is Vacco vs. Quill, 95-1858. It pits New York Atty. Gen. Dennis Vacco against Timothy Quill, a Rochester physician threatened with prosecution for having helped a patient end her life.

The U.S. 2nd Circuit Court of Appeals, based in Manhattan, said New York’s law against assisted suicide violates the “equal protection” clause because it treats dying people differently, depending on their care. The law allows those on life-support systems to ask their doctor to “pull the plug,” but prohibits a terminally ill person from asking for medical help to bring about death.

If either legal theory is upheld by the high court, the decision would nullify laws in California and other states that make it a crime for a doctor, care-giver or relative to “aid” someone in ending his or her life.

Even a right to assisted suicide limited only to “mentally competent, terminally ill adults,” if upheld by the high court, would demand an array of new regulatory laws and alter medical practice nationwide.

The issue of assisted suicide has gained national attention largely because of Dr. Jack Kevorkian, who has been repeatedly tried and acquitted under Michigan law for aiding his patients in killing themselves.

Kevorkian does not figure directly in the Supreme Court battle, however, and right-to-die advocates have tried to distance themselves from the retired Michigan pathologist.

In briefs to the Supreme Court, the two sides in the legal battle not only have presented sharply different views of assisted suicide but also have espoused contrasting approaches to interpreting the Constitution.

State officials, in their briefs, have made the following arguments for reversing the appeals court rulings:

First, the Constitution should be interpreted according to history and tradition. When the 14th Amendment was written and ratified in 1868, no one thought it created a “right to assisted suicide.”

For a federal court to announce such a wholly new individual right now marks “a radical departure from our nation’s legal traditions,” said Washington Atty. Gen. Christine O. Gregoire.

Second, if individuals or groups want to change the law, they should do it through state legislatures or ballot initiatives, not through the federal courts. (Most of the high court justices, seven of whom were appointed by Republican presidents, are likely to give weight to this argument. In the aftermath of the Roe vs. Wade ruling in 1973, the high court was strongly criticized for declaring abortion a constitutional right, rather than allowing the states to gradually change their abortion laws in response to changing attitudes.)

Finally, a right to assisted suicide, once declared, cannot be limited just to the terminally ill, opponents say. What about a person with Alzheimer’s disease, or someone with a painful chronic illness, or a quadriplegic who insists on dying? And if assisted suicide is a legal choice that must be honored, what about a healthy teenager who declares a desire to end life? Foes say the nation should not start down this dark path because there is no end in sight.

*

Arguing for the right to “hasten death” are Harvard University law professor Laurence H. Tribe and Seattle attorney Kathryn L. Tucker. They represent a group of terminally ill patients and their doctors.

In their briefs, they have made the following arguments:

First, look at the plight of these dying people. One plaintiff was a 76-year-old widow, a former high school teacher in New York who was being slowly suffocated by a huge, cancerous tumor in her throat. She could not chew or swallow; it was extremely painful to cough or yawn.

“I believe it is my right to die peacefully and comfortably when I am terminally ill and suffering intolerably,” she said in a statement filed with the lawsuit.

Another story recounts a Seattle AIDS patient who had been so racked by pain and disfigured by his disease that his friends had nightmares after seeing him. He too begged his doctor to help him die.

The state should not have the power to “force a patient to endure a painful and dehumanizing dying process. It is fraught with cruelty to the patient and anguish to loved ones,” Tucker wrote.

Second, the Constitution tips the scales in favor of the individual over the state in highly personal matters. They cite the words of Justices Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter in a 1992 opinion: “It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

And third, right-to-die advocates say the abuses of assisted suicide can be better controlled by bringing the process into the open and enacting new regulatory laws, rather than driving the process underground.

*

How will the cases be decided?

Because of the lingering unease with the Roe vs. Wade opinion, most legal experts have guessed that the current Supreme Court will be reluctant to declare a right to assisted suicide, a ruling that would surely set off a new round of controversy.

This view is bolstered by the fact that such established entities as the American Medical Assn., the Catholic Church and the Justice Department have urged the justices to reject such a right.

If their past opinions are a guide, the justices are likely to reject the equal-protection theory adopted by the New York court.

Usually, the high court has invoked the equal-protection clause only when laws make distinctions among classes of people based on factors such as race, gender, ethnicity or, most recently, sexual orientation.

Virtually any law can be attacked for treating people differently. Tax laws set higher rates for those with higher incomes. Motor vehicle laws allow those 16 years old, not 15, to drive a car.

Laws that make such distinctions are almost always upheld, so long as the state can offer a “rational basis” for the measure.

The “liberty” theory adopted by the 9th Circuit, however, may stand a better chance of winning the high court’s approval, especially if O’Connor, Kennedy and Souter adhere to the words of the opinion they delivered in 1992. They said then that “choices central to personal dignity and autonomy” should be left to the individual.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

On the Docket

The Supreme Court has a busy two weeks ahead. Besides the two cases on assisted suicide that will be heard Wednesday, the court will listen to arguments in four other high-profile cases. They are:

* Paula Jones: Can President Clinton refuse while in office to answer to a sexual-harassment lawsuit filed by Paula Jones, a former Arkansas state employee who says she was crudely propositioned by him in a Little Rock, Ark., hotel room? No, said the U.S. 8th Circuit Court of Appeals. Clinton’s lawyers are urging the justices to overturn that ruling on the grounds that a sitting president is too busy to deal with a civil suit now. (Clinton vs. Jones, 95-1853; to be heard Jan. 13.)

* Child Support: Can millions of custodial parents who are not receiving their child-support payments sue state agencies for failing to collect the money? Yes, said the U.S. 9th Circuit Court of Appeals, because the states are getting federal funds to do the job. Lawyers for Arizona, California and most other states are asking the high court to overturn that decision. (Blessing vs. Freestone, 95-1441; to be heard today.)

* Drug Tests: Can Georgia force all of its candidates for state office to take drug tests? Yes, said the U.S. 11th Circuit Court of Appeals, relying on earlier high court rulings that upheld such tests. Libertarian Party candidates challenging the rule say the state cannot make such demands without some suspicion that the persons are drug users. (Chandler vs. Miller, 96-126, to be heard Jan. 14)

* Sexual Assault: Can a state judge who sexually assaults women in his chambers be prosecuted under federal law for violating their rights? No, said the U.S. 6th Circuit Court of Appeals in throwing out a 25-year prison term given to Tennessee judge David Lanier. Justice Department prosecutors say a rape, just like a prison beating, violates the victim’s constitutional rights. (U.S. vs. Lanier, 95-1717, to be heard Tuesday.)