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High court expresses concerns about physician-assisted suicide


WASHINGTON (BP)–The U.S. Supreme Court, pondering one of
the most hotly debated issues of recent years, greeted calls for legalizing physician-assisted suicide with some apparent doubt in oral arguments Jan. 8.

Justices from across the ideological spectrum seemed to
express skepticism about upholding lower court rulings striking down state bans on assisted suicide during two consecutive hours of arguments. While the justices repeatedly interrupted attorneys inside the packed chamber, opponents and supporters of assisted suicide fervently expressed their positions in front of the court building.

A decision in the case is not expected before June.

The unusual, back-to-back arguments of two cases on the same issue resulted from highly 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.

In October, the justices announced they would review the appeals courts’ rulings, thrusting the high court into a national debate which has been marked by the crusading of Jack Kevorkian. Kevorkian, a Michigan pathologist, has become a household name in recent years for promoting the practice while assisting in more than 40 suicides. Kevorkian’s name was not mentioned during the arguments, even by assisted-suicide advocates, at least some of whom see him as a hindrance to their cause.


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, asked Tucker in the opening hour 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 one. Oregon voters approved physician-assisted suicide in 1994, but the law is being contested in the courts.

If Tucker’s position were upheld, it would produce a “flow of court cases” for an extended time, Associate Justice Sandra Day O’Connor told her.

Tucker 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.

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 ….”

Associate Justice David Souter asked Williams and acting U.S. Solicitor General Walter Dellinger to help him determine how to weigh the concerns expressed that legalizing assisted suicide will result in the involuntary deaths of some.

“No American jurisprudence has ever recognized
physician-assisted suicide” as legal, said Dellinger, who argued for the Clinton administration in opposition to assisted suicide in both cases.

In the second hour of arguments, New York Attorney General Dennis Vacco said the state does not agree that it “must remain neutral” when one of its citizens decides to help another kill herself.

Both Vacco and Williams acknowledged their state
legislatures could choose to legalize assisted suicide, but
neither had done so.

Harvard law professor Laurence Tribe, defending assisted suicide, told the justices 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 seemed pleased afterward.

“I’m cautiously optimistic that there are at least five
votes, maybe seven, for upholding the right of states to prohibit the killing of terminally ill people,” said Steve McFarland, a lawyer with the Christian Legal Society, which filed a friend-of-the court brief.

“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. …So if both of them can’t buy fundamental interest, and if the rest of the court follows them with the idea that, ‘Hey, we have … experimentations (in all the states) out there. We are not at a point of steamrolling all of them just when palliative care is
coming into the fore over a few anecdotes or a Harvard law
professor’ — that’s just not going to cut it.”

Will Dodson, the Southern Baptist Christian Life
Commission’s 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.”

Based on reports he received, Dodson said, “The reaction of the justices during oral arguments 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? In this case, the signal seemed to be that the court is not going to abuse its authority like it did in Roe v. Wade (which legalized abortion) and numerous cases in recent years.

“It may well be that the rising tide of public sentiment against judicial activism is having an influence on the Supreme Court,” Dodson said. “If the Supreme Court erroneously holds that there is a constitutional right to commit suicide, it will likely create the public outcry necessary to reverse the court’s anti-constitutional abuse of its power.”

The Christian Life Commission signedonto friend-of-the-court briefs filed in both cases by the United
States Catholic Conference.

The Roe v. Wade opinion was not mentioned by name, even
though some observers, especially opponents of assisted suicide, have compared it with the assisted suicide cases. The situation is not unlike the abortion debate in the late 1960s and early 1970s. In 1973, the Supreme Court issued Roe and a companion decision, making abortion for a variety of reasons throughout pregnancy the national law, invalidating many state anti-abortion acts in the process.

Outside the court building, 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.

Even Quill said the disabled protesters have a point.

“I think it’s a legitimate fear,” the assisted suicide
advocate said outside the court. “It’s also a legitimate fear for people who are on life supports. I think cost containment forces could force people to stop life supports. So we need similar kinds of safeguards for cessation of life supports to make sure that nobody’s being coerced, that it is their choice to discontinue if they’re going to discontinue, that it’s never discontinued because of inadequate pain treatment or other social forces.”

Nancy Dickey, chairman of the American Medical Association, which filed a brief opposing assisted suicide, 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 is Washington v. Glucksberg. The
Second Circuit case is Vacco v. Quill.