Does the Fourteenth Amendment to the Constitution guarantee a right to doctor-prescribed poison for mentally competent, terminally ill patients who want a speedier death? Last year, the nation’s two largest federal circuit courts of appeals, the Second and the Ninth, answered yes and invalidated felony prohibitions against physician-assisted suicide in the states of New York and Washington. In certain circumstances, these courts said, assisted self-murder must now be enshrined with life, liberty, and property as a protected right.
If this whole idea appalls you — as it certainly should — last Wednesday morning’s Supreme Court session offers at least some atmospheric comfort. Attorneys for New York and Washington, joined by solicitor general Walter Dellinger on behalf of the Clinton administration, were at the lectern to seek reversals of the appeals court judgments. They did okay. Lawyers on the opposing side had a very rough time of it. Seattle’s Kathryn L. Tucker, counsel for the Washington physician-assisted-suicide advocates, and Harvard’s Laurence H. Tribe, her counterpart in the New York case, were both met with bluntly skeptical and frequently sarcastic questioning from the bench. Most of the justices are clearly eager to avoid entangling the Constitution in this matter.
Good luck. Given its own misguided Fourteenth Amendment rulings, there is no obvious way for the Supreme Court to decide that physician-assisted suicide is not constitutionally required. Yes, it seems likely that the justices, after fumbling around in their own precedential muck, will find a way to vacate the Second and Ninth circuit decisions and reinstate the antisuicide laws of New York and Washington. It will be a welcome ruling. But it will also mean that the only thing standing between current law and a regime of widespread, unregulated euthanasia in America is an ad hoc edict by a handful of judges in Washington. Surely we can and must do better than this.
Two possible constitutional rationales for physician-assisted suicide are at issue here. One involves the Fourteenth Amendment’s equal-protection clause, which requires state laws to treat similarly situated people in a similar manner unless some legitimate public purpose can be cited to justify a difference. New York’s criminal code makes aiding or promoting a suicide illegal. But New York law also allows competent citizens the right to hasten their own demise by refusing medical treatment and ordering the removal of life-support systems. So New York doctors may assist competent, terminally ill patients who have suicidal intent so long as those patients are on a ventilator or feeding tube. But if those patients are not on a ventilator or feeding tube, they are denied comparable assistance: a dose of lethal medication. The laws of all 50 states now work roughly this way. And they violate the equal protection clause, according to proponents of physician- assisted suicide.
The risks states usually cite to justify criminalization of doctor-provided poison — that it will damage the integrity of the medical profession, that it will prove difficult to regulate, that it will be used unfairly against the poor and the handicapped — are as nothing to the “death with dignity” crowd. In a Supreme Court brief filed on behalf of six self-described “moral and political philosophers,” Ronald Dworkin explains that worrying over the possibility that vulnerable patients might ever be pressured into suicide is not just unnecessary, but wrong. “Even people who are dying have a right to hear and, if they wish, act on what others might wish to tell or suggest or even hint to them,” he writes, “and it would be dangerous to suppose that a state may prevent this on the ground that it knows better than its citizens when they should be moved by or yield to particular advice or suggestion.”
Dworkin has elsewhere proposed that the government prevent its citizens, for their own good, from hearing too much candidate-financed political debate on television and radio A 30-second ad is apparently more dangerous to your health, and less constitutionally protected, than an insurance agent’s request that you kill yourself. Dworkin is a fool.
But the Second Circuit agrees with him. And were the Supreme Court ever to accept this interpretation of the equal-protection clause, all manner of horrors would quickly ensue — as a direct and inevitable consequence of settled law. If there is no constitutionally significant difference between assisted suicide and the withdrawal of life support, a right to assisted suicide cannot be restricted to terminally ill people. Throughout the United States, the doctrine of informed consent grants anyone, not just the terminally ill, a right to refuse life-saving measures. The Second Circuit’s reasoning would grant them an additional right to poison. And not only them. Incompetent patients — infants, the retarded and mentally ill, people with Alzheimer’s — would gain similar new “benefits.” Most state laws give surrogates and guardians the authority to end life support to incompetent individuals whether or not those individuals have ever expressed a desire to die in such circumstances. Poisoning these unfortunates would be quicker. And legal.
Exactly the same ghastly results would follow were the Supreme Court to accept the second justification for physician-assisted suicide it heard last Wednesday, this one based on the Fourteenth Amendment’s due process clause. In its 1992 Planned Parenthood v. Casey decision, the Supreme Court used ” substantive due process” theory in crafting a fundamental right to define ” one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Last year, without much intellectual trouble, the Ninth Circuit decided that this liberty includes the right to control “the time and manner of one’s death” — and that a ban on physician-assisted suicide could not survive constitutional scrutiny. Since state courts generally establish that incompetent citizens, through their guardians, must have the same rights as competent citizens, a right to physician-assisted suicide would be a right to nonvoluntary euthanasia.
This due process argument will not be so easy for the Supreme Court to dismiss. Laurence Tribe has informed the justices that if their Casey decision “is to remain defensible as a principled explication of protected liberty,” they must uphold the circuit courts. Rejecting a due-process-based right to assisted suicide, Tribe insists, “would render this Court’s decision in Casey itself vulnerable to repudiation.” He has a point.
It is on Casey‘s shoulders that the American abortion right now rests. So which will it be, abortion and euthanasia — or neither? The Clinton administration hopes to evade this choice, for plainly political reasons. In his briefs to the Supreme Court, Walter Dellinger was forced to acknowledge ” a constitutionally cognizable liberty interest in avoiding the kind of suffering” experienced by people who want physician-assisted suicide — an interest that must be derived in large part from Casey. At the same time, to protect the abortion right from its own logical outgrowth — from the damage of public association with euthanasia — Dellinger was forced to argue that states like New York and Washington may entirely ban the exercise of this newly identified liberty interest in assisted suicide. It’s an odd sort of American liberty that may never be enjoyed. It’s a preposterous argument.
To get out of this pickle, the Supreme Court may well adopt some version of Dellinger’s reasoning, to be sure. But the increasingly hideous distortion of American law by “substantive due process” and the constitutionalized abortion right will remain. The solution? Eventually, the abortion right must go. In the meantime, we must fashion a federal judiciary that is not inclined to use substantive due process against common logic, settled tradition, and the democratic deliberations of ordinary voters and their representatives.
How? Politicians in Washington like to decry the application of philosophical litmus tests to judicial nominees — litmus tests like the one that felled Robert Bork’s appointment to the Supreme Court. “No more Borks,” we’re all supposed to say. Baloney. The Fourteenth Amendment is out of whack. Lives now depend on its correct interpretation. A Republican Senate reviewing Democratic judicial nominees must finally take off its dainty white gloves and press this point home hard. Bork away, gentlemen.
David Tell, for the Editors
