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6/26/97 High court upholds state bans of physician-assisted suicide

WASHINGTON (BP)–The U.S. Supreme Court struck a blow against physician-assisted suicide June 26, unanimously upholding two state laws which make it a crime for doctors to give life-ending drugs to terminally ill patients who are mentally competent yet want to die. The monumental decision was written by Chief Justice William H. Rehnquist, whose wife died in 1991 after a long battle with ovarian cancer. Physician-assisted suicide, Rehnquist wrote, conflicts with “our nation’s history, legal traditions and practices.” At issue were controversial decisions by federal appeals courts last year. In March, the U.S. Ninth Circuit Court of Appeals in California overturned a Washington law, saying there is a “constitutionally protected liberty interest in determining the time and manner of one’s own death.” In April, a three-judge panel of the Second Circuit Court struck down New York’s law prohibiting physician assistance in a suicide, ruling there is no difference between the prescribing of drugs for a suicide than the withdrawal of artificial life support. The Second Circuit based its opinion on equal protection rights in the Constitution’s 14th Amendment, rejecting the Ninth Circuit’s rationale, which found a right to commit suicide in the 14th Amendment’s due process clause. Reaction to the Supreme Court’s stance against physician-assisted suicide included applause and cheers at the American Medical Association’s convention in Chicago. The AMA had filed a brief opposing physician-assisted suicide. Richard Land, president of the Southern Baptist Ethnics and Religious Liberty Commission, noted: “It is reassuring to have the Supreme Court affirm what the civilized part of Western civilization has always affirmed, which is that doctors should not be assisting people in killing themselves. There is not a constitutional right to kill yourself.” The Southern Baptist Ethics and Religious Liberty Commission had signed onto friend-of-the-court briefs opposing physician-assisted suicide filed in both cases by the United States Catholic Conference. “May this ruling provide a fatal blow to the pro-assisted suicide movement, which puts all Americans at risk,” bioethics analyst Carrie Gordon of the Focus on the Family ministry said in a prepared statement. “Our elderly, dependent and disabled citizens should breath a collective sigh of relief as the Supreme Court affirms their right to life and protects them from the inevitable pressure to ‘choose’ assisted suicide, even when they do not want to die,” Gordon said. “What people who are suffering need and deserve,” she added, “is adequate medical care and pain management to meet their physical and psychological needs.” The issue is often seen through the media lens of Jack Kevorkian, the crusading Michigan pathologist who has assisted in more than 40 suicides. Kevorkian’s name was not mentioned during January oral arguments before the Supreme Court, even by assisted-suicide advocates, at least some of whom see him as a hindrance to their cause. The Associated Press quoted Kevorkian’s attorney, Geoffrey Fieger, as saying the Supreme Court decision would not deter Kevorkian from helping more people die. According to Land, “When we start allowing medical doctors to become dispensers of death, then we’re on the slippery slope that has already been experienced by the Germans from 1933-45 and is now being experienced with dramatic effect by the Dutch.” Land said a recent article in the Journal of the American Medical Association, for example, documents the Dutch experience “from allowing doctors to assist with suicide, to pressuring doctors to assist with suicide, to then allowing doctors to kill patients without their permission. In less than a decade, the Dutch have traversed this path. “When one Dutch doctor was asked how he felt when he committed euthanasia, he replied, ‘It’s hard the first time,'” Land recounted. “We must do all we can to assure that there never is a first time in the United States. The Supreme Court’s ruling today helps to build a fire break against America beginning a steep decent on this particularly lethal slippery slope.” Although authoring the June 26 decision, Rehnquist also had written a 1990 Supreme Court decision that terminally ill people can refuse life-sustaining medical treatment. In his June 26 opinion, however, Rehnquist drew a distinction between a doctor assisting in a patient’s suicide and respecting a patient’s right to refuse treatment for a terminal disease. Beyond the Supreme Court, the physician-assisted suicide issue remains alive in Oregon, where voters narrowly approved the practice in 1994. But the law is both tied up in the courts and is slated for a statewide vote in November on whether to rescind it. In April, Congress passed a bill barring the use of federal funds for any doctor-assisted suicide. Earlier in June, a 12-member panel related to the National Academy of Sciences issued a report stating too many Americans are denied a chance to die well because of inadequate care and lack of understanding of their needs. And, the panel said, too many people die in pain even though effective painkillers are available. Their report, “Approaching Death: Improving Care at the End of Life,” called for, among other things, medical educators to put as much emphasis on teaching doctors to deal with death as they do with birth. In two consecutive hours of oral arguments Jan. 8, justices from across the ideological spectrum repeatedly interrupted attorneys inside the packed chamber with questions reflecting doubts about legalizing physician-assisted suicide. The justices voiced many of their concerns to Kathryn Tucker, the attorney for assisted suicide advocate Harold Glucksberg, a Washington state physician. Associate Justice Antonin Scalia, a leading conservative on the high court, for example, asked Tucker why assisted suicide would be “limited to those on the threshold of death?” “I hate to tell you, but the dying process for all of us has begun,” Scalia said. It seems the “person facing 10 years of pain” has a stronger argument than someone near death, he told her. “Isn’t it possible,” asked Associate Justice Ruth Bader Ginsburg, a liberal, that a person in pain could say for several days he wants to die but doesn’t receive help in committing suicide and later say, “I’m glad I didn’t” get help? Associate Justice Anthony Kennedy told Tucker she is asking the high court to overturn the state laws of all 50 states except Oregon. Meanwhile, William Williams, senior assistant attorney general of Washington, said the state has a three-fold interest in opposing assisted suicide: the protection of life; the prevention of abuse and undue influence; and the regulation of the medical profession. The state has an interest in keeping “a clear line between physicians as healers … and as instruments of death … .” “No American jurisprudence has ever recognized physician-assisted suicide” as legal, said acting U.S. Solicitor General Walter Dellinger, who argued for the Clinton administration in opposition to assisted suicide in both cases. Tucker, defending assisted suicide in the January oral arguments, told the justices the decision was a “profoundly personal” one that needed to be voluntary. Assisted suicide should be permitted because it is a constitutional question of “bodily integrity, decisional autonomy and the right to be free of unwanted medical treatment,” she said. Harvard law professor Laurence Tribe, meanwhile, contended the liberty interest in the case is the “liberty, when faced with imminent and inevitable death, not to be forced” by the government into accepting unbearable pain that can be relieved only by being unconscious. The terminally ill should have the freedom “not to be a creature of the state,” Tribe said. Tribe represented Timothy Quill, a Rochester, N.Y., internist who supports assisted suicide. Opponents of assisted suicide had seemed pleased after the oral arguments. “The intellectual heads of the court are Souter on the left and Scalia on the right. Both of them were absolutely apoplectic at the idea that you could draw the line at terminal illness,” said Steve McFarland, a lawyer with the Christian Legal Society, which filed a friend-of-the court brief. Will Dodson, the Southern Baptist ERLC legal counsel and director of government relations, said, “It is inconceivable to me that anyone could look at the Constitution and find a right to kill yourself, much less to have someone help you do it.” Dodson also reflected, “The reaction of the justices … appeared to be that this is too much even for most of them to swallow, but, then again, who would have ever thought that a majority of people who are supposedly trained to think critically would have found the right to kill an unborn baby in the Constitution either?” Outside the court building in January, a disability rights group gathered to protest against assisted suicide. Not Dead Yet, a national organization formed last year to oppose the practice, gathered at least a couple of hundred strong. The protesters, many in wheelchairs, held homemade signs and frequently chanted, “We want to live.” Meanwhile, a much smaller group marching under the banner of the pro-euthanasia Hemlock Society quietly demonstrated in favor of assisted suicide. “People with disabilities know that there is a very real problem in a culture which says, ‘We aren’t going to give you a right to health care, but we will give you a right to assisted suicide.’ We know where that leads,” Diane Coleman, cofounder of Not Dead Yet, said from her wheelchair. “It’s already been proven in The Netherlands that what starts out as voluntary assisted suicide for the terminally ill becomes involuntary euthanasia for people with disabilities who are not terminally ill.” Opponents of assisted suicide have pointed to The Netherlands as an example of what may happen if physician-assisted suicide is legalized. According to statistics from 1990, about 50 percent of deaths caused by physicians in that European country are done without the patient’s permission. Nancy Dickey, chairman of the American Medical Association, said after the arguments Americans have been given a false choice by assisted-suicide advocates. “The decision our society must make is not between physician-assisted suicide or a ‘horrible death,'” she said in a written statement. “But rather, with adequate pain control and quality medical care, life is to be valued and its quality maximized until death occurs.” The Ninth Circuit case was Washington v. Glucksberg. The Second Circuit case was Vacco v. Quill.