EUTHANASIA HORROR

That can’t happen here, most American proponents of “rational suicide” insist. We certainly hope not, because the question is no longer purely speculative. On March 6, an 8-3 majority of the Ninth U.S. Circuit Court of Appeals struck down that portion of a Washington state statute establishing felony punishment for anyone who “knowingly… aids another person to attempt suicide.” The Constitution, the Ninth Circuit held, protects a “liberty interest” in “life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths,” so long as they request and receive it from licensed doctors. These are circumstances essentially identical to the euthanasia guidelines enshrined in Dutch law.

An extraordinary opinion, to say the least. Over more than 100 pages, Judge Stephen Reinhardt mounts an exhaustive defense of this new constitutional ” right to die.” A long line of American privacy jurisprudence, he writes, has placed limits on a state’s ability to intrude in any number of individual decisions: about marriage, procreation, child-rearing and education, intercourse and contraception, pregnancy, and abortion. These are all “highly personal and intimate” decisions “of great importance to the individual. “And few decisions can be more personal, intimate, or important “than the decision to end one’s life, especially when the reason for doing so is to avoid excessive and protracted pain.”

Judge Reinhardt makes particular use of the Supreme Court’s abortion decisions, beginning with Roe v. [Vade and ending with the 1992 description (in Planned Parenthood v. Casey) of abortion as a right “central to personal dignity and autonomy.” He adds the hypothetical acknowledgment made in the 1990 Cruzan v. Missouri decision that constitutional protections would include the right to refuse life-sustaining medical treatment. And from all this, he infers a generalized “liberty interest” in “controlling the time and manner of one’s death” with help from a physician.

Judge Reinhardt is mighty pleased with the cleverness of his opinion. “! think this may be my best ever,” he tells the IVall Street Journal. But the judge misses the manifold irony of his own argument. How can a person’s right to the death of his choosing heavily depend on Supreme Court abortion rulings — when those rulings deny that the rights they advance involve any person’s death at all? The Casey decision permitted states to scale back some recently identified “rights” while protecting their bedrock precedent in Roe. So how can Casey sustain a major expansion of privacy rights in violation of the greatest precedent of them all — the precedent that says the right to life of any recognized citizen is unalienable, not to be surrendered or transferred in whole or part? Even to a doctor.

And how, for that matter, might the Cruzan decision support the new right to an artificially induced and quickened medical death? That particular case appears to grant an almost opposite right: to have the feeding tube removed from an otherwise fatally afflicted comatose patient. In other words, to reject artificial medical intrusions in favor of a natural death. Judge Reinhardt denies this distinction, as he must to secure his conclusion.

And here, it should be acknowledged, the Supreme Court may already have given up part of its power to overrule him. A constitutional right to one sort of suicide (however limited) may imply a constitutional right to any and all suicides, lest the Constitution dissolve into horribly obvious contradictions. If the high court acknowledges a right to reject life-saving food and water, Justice Scalia has already noted, then there must be some steady constitutional principle “whereby, although the state may insist that an individual come in out of the cold and eat food, it may not insist that he take medicine; and although it may pump his stomach empty of poison he has ingested, it may not fill his stomach with food he has failed to ingest.”

There can be no such principle, of course, and Justice Scalia’s steely logic suggests that the Constitution should remain entirely silent on the question of suicide. Quite apart from the Constitution, however, there does remain a serious bright line in medical tradition between palliative care that might carry a predictably increased risk of death and a procedure whose only pur- pose is death itself. It is a bright line involving the physician’s intent. Once that line is breached — and Judge Reinhardt breaches it with something close to enthusiasm — then we are quickly pushed down a greased slope to medical nihilism.

The Ninth Circuit decision allows doctors to write prescriptions designed primarily and directly to kill. On what clear basis can this new authority ever be limited? If a patient has a right to suicide with help from a physician, surely he has a right to all the help he might conceivably need. Judge Reinhardt himself concedes as much: that “the patient may be unable to self-administer the drugs and that administration by the physician… may be the only way the patient may be able to receive them.” He is not bothered by this prospect. Medical “assistance” in suicide becomes active euthanasia.

And for whom? What does it mean to restrict access to euthanasia only to the “terminally ill” and those “competent” to make the necessary request? Terminal illness is an elastic designation; it encompasses diagnoses that often involve a life expectancy of five or ten years. “Competence” is an equally meaningless limitation. No doctor could “responsibly” agree to a patient’s request for euthanasia unless that doctor believed the life involved no longer to be “worth it.” But if a physician has the legal power to make such awesome judgments about “competent” patients, on what grounds could we deny him the same authority over “incompetent” ones? American courts already allow the termination of life support to patients who are neither terminally ill (paraplegics, for example) nor competent (the comatose). Judge Reinhardt declines to identify any difference in principle between such a halt to medical intervention and actual, deliberate euthanasia.

This way lies the “rational suicide” crowd’s biggest public relations embarrassment, Jack Kevorkian — an insanely death-obsessed quack whose ” prescription” for his “patients” is automobile exhaust, a substance with no known analgesic or other healing property. This way also lies the Netherlands, which having taken a Ninth Circuit4ike plunge long ago, has now proved itself unable, in practice or in law, to restrain its doctors within that court’s wished-for, tidy boundaries.

Judge Reinhardt, nothing if not confident in his own judicial omniscience about the matter of life’s least knowable moment, dismisses all such concerns, most of them out of hand. “It should not be diffcult for the state or the [medical] profession itself to establish rules and procedures” necessary to ensure that legalized euthanasia does not produce social or cultural harm. The Hippocratic Oath — whosefirst promise is “I will neither give a deadly drug to anybody if asked for it, nor will ! make a suggestion to this effect” — he mocks outright. That oath also proscribes abortion, of course. But “the ethical integrity of the medical profession remained undiminished” once abortions were widely performed, he says. And fears that legalized abortion ” would lead to its widespread use as a substitute for other forms of birth control… have, of course, not materialized.” How’s that again?

No worry grounded in caution or tradition is sufficient to deter a judge determined to bring the benefits of suicide to his countrymen, it appears. According to Judge Reinhardt, his colleagues on the bench “are certainly not obligated” to delay such a gift “in order to satisfy the moral or religious precepts of a portion of the population.” There are American lives that are simply taking too much time to end, and time is of the essence. For a ” terminally ill adult who ends his life in the final stages of an incurable and painful degenerative disease, the decision to commit suicide is not senseless, and death does not come too early.” And where suicide is concerned, apparently, time is money. Reinhardt’s court is “reluctant to say that … it is improper for competent, terminally ill adults to take the economic welfare of their families and loved ones into consideration.”

In at least two cases in the past year, Dutch courts have upheld the immunity from punishment of doctors who openly acknowledge having killed, on request of the parents, babies born with disabilities. Could this happen here? In one critical respect — with the issuance of Judge Reinhardt’s ghastly, appalling decision — it has already begun.

David Tell, for the Editors