High Court, 24 Years After Roe, Again Holds Life in the Balance
BY William Murray
January 5, 1997 Issue | Posted 1/5/97 at 1:00 PM
TWO CASES—Compassion in Dying v. Washington and Quill v. Vacco—scheduled for oral argument before the Supreme Court on Jan. 8 could result in a landmark ruling on physician assisted suicide, observers say.
“We think this will be the Roe v. Wade of euthanasia,” said Walter Weber, an attorney with the American Center for Law and Justice, a Washington-based conservative legal defense group that wrote an amicus or friend of the court brief that argues that states can outlaw assisted suicide.
Weber and other opponents of a right-to-die hope the court will not issue a sweeping ruling that would legalize physician assisted suicide in the country, as Roe v.Wade did for abortion in 1973. Such a ruling would sharply limit voters' abilities to shape euthanasia-related laws in the states.
“Whatever they rule will have wide implications,” said Mark Chopko, general counsel for the National Conference of Catholic Bishops in Washington, which also filed an amicus brief. “For them to rule that there's a broad, unlimited right to choose death.… I just don't see that.”
While there's a remote chance the Supreme Court will throw out the cases because the two people who sued for the right-to-die are already dead, most observers think the justices will hear the cases. With Ruth Bader Ginsburg and Steven Breyer relatively new to the bench and Anthony Kennedy, Sandra Day O'Connor and David Souter forming a swing vote on abortion-related issues—which bear some similarities to the right-to-die cases—few observers were willing in the weeks leading up to the hearings to predict how the Supreme Court will rule.
Lawrence Tribe, the Harvard University Law professor who is representing the right-to-die groups in the two cases, filed a 50-page brief that Richard Doerflinger, the associate director for the National Conference of Catholic Bishops (NCCB) pro-life directorate, called “forcefully argued, but pretty incoherent.” Tribe, according to Doerflinger, wrote that terminally ill people represent a special group of humans who deserve the right to kill themselves.
“That puts them in a second class ghetto,” said Doerflinger. “The dynamics of the suicide of the terminally ill are thought of as fundamentally different” from that of able-bodied people. “When someone [able bodied] wants to commit suicide, it's considered a mental problem, but when a terminally ill person wants to die, it's considered a rational decision.” Such reasoning, Doerflinger argued, only reveals society's prejudice against the terminally ill and the value of their lives.
He added that a right-to-die law would have to impose an “arbitrary” term that defines terminal illness. “If it means people who are 50 percent or more likely to die within six months, then you're dealing with some people who will be alive for years.” If it's people who are 90 percent or more likely to die within that time frame, he said, “almost all will be dead the next day.”
Carl Anderson, vice president for public policy with the Knights of Columbus in Washington, said that two lower courts came to the same conclusions in both cases by using different logic. The 9th Circuit Court ruled in its Compassion in Dying decision that Washington state's law against assisted suicide was unconstitutional because the court ruled that, like abortion, assisted suicide is an “intimate and personal choice,” he said.
The Center for Reproductive Law and Policy in New York wrote an amicus brief favoring physician-assisted suicide, while asserting, however, that there are significant differences between the rights to abortion and euthanasia. “There are issues of bodily integrity and autonomy as well as participation in society and the life of the world” that make unborn children fundamentally different from terminally ill people, said Kathryn Kolbert, as attorney with the organization.
In the Quill case, according to Anderson, the 2nd Circuit argued that just as New York residents can reject treatment to hasten death, to deny them the means to hasten death would be unlawful. To the 2nd Circuit Court, said Anderson, denying terminally ill people the right to suicide is a violation of the Constitution's equal protection clause. The Knights of Columbus, a Catholic men's organization with 1.5 million members, filed a joint amicus brief on the cases along with the National Catholic Office for Persons with Disabilities.
Most major medical organizations, including the American Medical Association, filed amicus briefs arguing that the Supreme Court should uphold states' laws banning assisted suicide, according to Dan Avila, an attorney with the Indianapolis-based National Legal Center for the Medically Dependent and Disabled. Several Protestant religious groups filed briefs opposing euthanasia, and two Orthodox Jewish organizations also filed briefs opposing physician assisted suicide.
But numerous groups supporting physician-assisted suicide—including the American Civil Liberties Union, the Council for Secular Humanism, the Hemlock Society, and the Unitarian Universalists—also filed friend of the court briefs, said Avila.
Should the Supreme Court rule that physician-assisted suicide is a legal right, then it would take at least one or two decades of judicial decisions to clarify that right, according to Anderson. He predicted that more jurisprudence would come about from such a decision than has been produced in the wake of the Roe v. Wade decision.
Even more ominous than the threat of legal ambiguity and the stain on the Supreme Court's reputation, would be the threat such a ruling would pose for the most powerless in American society, opponents of assisted suicide say. Paraphrasing fellow Catholic Alan Keyes, a radio show host and former ambassador who ran for the Republican presidential nomination in 1996, attorney Weber said: “People will begin to ask, ‘When is grandma gonna do the right thing?”’ and commit suicide.
“Opening the door to [physician-assisted suicide] would bring substantial economic and social pressure on the disabled and elderly” to kill themselves because other people would consider them burdens, said Weber. He predicted such an outcome if the justices engage in “hand wringing and anguished questions about what to do about ending the suffering of the mentally handicapped and terminally ill,” during their questioning of Tribe scheduled for Jan. 8.
Racial minorities and the handicapped might also be “shortchanged and put at risk by pressure on the medical and health care system,” since they are typically underserved by health insurance, said Anderson. He predicted that a Supreme Court ruling favoring physician-assisted suicide could open the floodgates to third-party decision making to hasten the deaths of mentally incompetent people.
The late Cardinal Joseph Bernardin filed a brief with the Supreme Court arguing that he had a compelling interest in the case not only as a pastor but as a terminally ill man. “He showed the value of living life and giving life,” said the NCCB's Doerflinger.
“People who are terminally ill do the most important work of all. Everything is stripped away from them,” Doerflinger added. “They face the big human questions [such as] the ultimate existence of God, the meaning of life and relationships with other people. Many people are unprepared to face these issues because they haven't dealt with them during their lives. They need support from other people,” rather than the tacit consent that they should kill themselves.
To show its support for the terminally ill and other groups that would be adversely affected by a decision favoring euthanasia, the National Catholic Office for Persons with Disabilities is sponsoring a vigil at 10 a.m. on Jan. 8, on the steps of the Supreme Court in Washington. The Supreme Court is expected to rule on the two cases by June.
William Murray is based in Kensington, Md.
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