In a case symbolizing a historic moral Rubicon for Americans, the United States Supreme Court yesterday heard arguments about according individuals the right to end their lives, if they choose to do so. The case has enormous implications for families, and the medical, legal and religious communities. Depending on one's view, legalizing suicide could help end the terrible suffering of many patients - or promote an inexorable slide toward a cheapened sense of life. Yesterday, the normally tranquil high court building was a near-mob scene in anticipation of perhaps the most important case of the year - with reporters, advocates, and lawyers jamming the halls during the intense two-hour argument. Across the street, members of Congress held a bipartisan press conference stating an intent to forbid any federal funds for doctor-assisted suicide if the court approves it.
Questioning by the nine justices centered on two issues: Do Americans have a constitutional right to take their own lives? And, is there a difference between inducing death by refusing medical treatment and enlisting a physician to actively administer a lethal drug or treatment?
An important 1990 Supreme Court ruling (Cruzan v. Director) found that persons can be removed from life-support systems if they desire. But that allowance has never extended to pro-active assisted suicide.
Justices yesterday focused on the balance between liberty interests of the individual and the responsibility of the state. Justice Antonin Scalia and Chief Justice William Rehnquist seemed dubious of creating a constitutional right. "It's just like abortion isn't it? Pretty soon the states will all make their own rules, if you leave it up to them," said Justice Rehnquist. Justice Scalia asked, "Why should someone with 10 years of illness have more rights than someone who is ill today?" And asked how physical and emotional illnesses could be described in a context of legal rights. The so-called right-to-die issue has come before the high court, and the US public, with lightening speed. Only two years ago the issue seemed restricted to the unpredictable headlines of the disbarred doctor from Michigan, Jack Kevorkian, who has overseen nearly 50 suicides.
But last March a sweeping Ninth US Court of Appeals ruling found an new right - not just for physician assisted suicide, or euthanasia when patients are diagnosed as terminally ill, but a bona fide right to die, whenever. Using privacy-right reasoning from Roe v. Wade, Judge Stephen Reinhardt articulated a right to "determine the time and manner of one's own death."
One month later, in April, New York's Second US Court of Appeals ruled to support assisted suicide. The New York opinion did not find a fundamental right to die. But it did find that under equal protection, there is not a substantial legal distinction between unplugging a life support system, and asking a doctor to prescribe life-ending drugs. In doing so, they overturned federal district Judge Thomas Griesa, who argued that euthanasia has no "historic recognition as a legal right under the Constitution."
Prior to that, says legal scholar Thomas Marzen in a recent law review article, "the virtually universal pre-1980 consensus" is summarized in a 1933 Florida Supreme Court ruling: "No sophistry is tolerated ... which seeks to justify self-destruction as commendable or even a matter of personal right."
So in less than a year, the two cases, Vacco v. Quill and Washington v. Glucksberg, are before the high court. Some 60 "friend-of-the-court" briefs have been filed on behalf of hundreds of groups and religious and academic leaders. Supporters range from the Gray Panthers to Americans for Death with Dignity, to coalitions of state legislators, and five prominent American philosophers; opponents include 23 states, the American Medical Association, the Christian Legal Society, and Roman Catholic, Jewish, and nursing coalitions.
"The issue of abortion percolated for years before Roe v. Wade," says Yale legal historian Robert Burt. "The 'right to die' has come overnight."
Advocates feel the "liberty interest" in allowing individual decisions on life and death outweigh any broader issues. The argument is partly one of dignity, and partly of choice. They rely heavily on the language of the 1990 Cruzan decision: That ending one's life "involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." Some 40 percent of the states already have laws allowing "living wills" that direct medical authorities not to put patients on life support if they are not competent to make that decision. "Some want to end their lives when they think that living on ... would disfigure rather than enhance the lives they had created," argues New York University law professor Ronald Dworkin.
"The choice is too personal, too emotional, too spiritual for the government to interfere," says legal scholar Barbara McDowell, who wrote a brief on behalf of 36 religious groups. "Some people feel that once life loses its meaning, it no longer has its spiritual content, and people feel they can no longer practice their faith." As for the American Medical Associations objections, the Ninth Circuit pointed out that two decades ago the AMA said that performing abortions was a violation of the Hippocratic oath, a position it no longer takes.
Euthanasia opponents rely heavily on a complex set of "slippery slope" arguments. That is, assisted suicide will help a small group but have vastly more damaging and unintended long term effects. Lawyers for New York say the development of managed care in medicine means "there is a danger that the quick death offered by legalized suicide will be preferred to costly treatment." AMA officials argue that the historic trust of doctors will be jeopardized if physicians "promote life and health on some occasions, and to act deliberately to bring about death on others."
Again, if the Ninth Circuit rationale holds, it appears that individuals could legally commit suicide whenever they were depressed - they would not need to wait for a diagnosed terminal illness. Moreover, why, if the issue is one of rights, does the suicide act need to be achieved through doctors? Why would it require a doctor alone to help an individual facilitate the exercise of rights? A majority in the religious community oppose euthanasia, often on the grounds that over time, the relationship between the healthy and the sick will take on an irreligious and uncharitable tone - forcing the sick to submit to arguments of euthanasia during their greatest weakness. "The effect of maximizing freedom [to die] ... may be to make it more difficult for the sick - the dependent, those whose lives seem out of control - to refuse the question of death, harder to justify their existence," says Allen Verhey, professor of religion at Hope College in Holland, Mich.
"There are major differences between the right to refuse medical treatment and the right to physician assisted suicide," states a document from 50 professors and theologians at the Boston University School of Public Health. "The right to refuse treatment is rooted in the history and traditions of this country." Outside the court, protesters from the pro-euthanasia Hemlock Society faced off with "Not Dead Yet," a group of disabled persons. Both sides felt the issue was being controlled by economic interests. "Organized religionists, doctors, and insurance companies have a stake in keeping us alive," said Bob Strand, a retired federal worker. "We deserve autonomy."