SUICIDAL JURISPRUDENCE

It is apparent from the written opinions these two cases have produced that the justices — each for different reasons — were alarmed by what they were being asked to do here. What would it have meant for the Supreme Court to find, as the Second and Ninth U.S. Circuit Courts of Appeal had found, that the Fourteenth Amendment protects the “right” of mentally competent, terminally ill patients to murder themselves with poison prescribed by their doctors? In law and medical practice, there would have been no way to restrict this new right. “Mentally competent” and “terminally ill” are subjective and elastic designations. And special medical privileges could not have been restricted to the designees. The rest of us, the incompetent or not- yet-terminal, would have gotten our euthanizing hemlock, too.

So we may be momentarily grateful for the Supreme Court’s nervousness about all this. But we may be grateful for nothing else. The justices have done incoherent, shabby work on assisted suicide. Their reasoning — if that’s the word for it — cannot retard the nation’s slow but continuing cultural embrace of death. In important respects, in fact, the court has now welcomed that embrace, and — as the majority opinion has it — urged “this debate to continue.” Fine words. Except that “this debate” continues in one direction only: toward the grave.

In the assisted-suicide cases, the justices had an insoluble problem. It can be summed up in a single word: abortion. In its 1992 Casey ruling, decided by a 5-4 vote, the court identified the “heart” of American liberty as the ability “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” No general restriction of the abortion right, the Casey majority concluded, was consistent with this alleged principle. But assisted-suicide proponents soon asked a telling question: If the constitutionally protected “mystery” right means a mother may kill her unborn child, how then can the court not conclude that it also means she may kill herself? The court cannot so logically conclude, of course. A rigorous denial of the “right to die” would require the justices at least partially to deny the right to abortion.

Which these justices are not about to do. Only three Casey dissenters, Rehnquist, Scalia, and Thomas, remain on the court. Four members of the Casey majority remain, as well: O’Connor, Kennedy, Souter, and Stevens. And President Clinton has appointed two presumably pro-Casey jurists, Ruth Bader Ginsburg and Stephen Breyer, to the court. There are now six pro- choice Supremes, in other words. So to fashion even a bare majority against assisted suicide without throwing itself into renewed chaos over abortion, the court must pretend that Casey barely exists.

Chief Justice Rehnquist, writing for the majority in Washington v. Glucksberg, performs this charade. He cites Casey and quotes its wildly expansive “mystery” language in a brief and totally inscrutable passage. Yes, he acknowledges, the court has thereby located the abortion right and many other rights of personal autonomy in the Fourteenth Amendment. But that fact “does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.” And it does not mean that the Fourteenth Amendment protects suicide. Why? Because the Supreme Court says so, that’s why. And it now wishes to be left alone about the matter, thank you very much.

This is enough to win the signature of Justice Kennedy, who doesn’t bother to explain how it is that Americans enjoy a “right to define one’s own concept of existence” — his words — but can be prevented by state law from defining themselves to death. Rehnquist’s sleight of hand is also enough for Justice O’Connor. She writes a separate concurring opinion of haiku-like opacity. “Death will be different for each of us,” begins the first of her four paragraphs. “In sum,” begins the last, “there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives.” One would have thought a resolution of that question was precisely the point of the exercise. But Justice O’Connor says no, without much elaboration.

Justice Ginsburg, in a one-sentence concurring opinion, announces that she ” substantially” agrees with Justice O’Connor. Justice Breyer is a bit less restrained. He thinks there may well be something “roughly like a “right to die with dignity,'” a right that might force a very different Supreme Court result under slightly different circumstances in the future. Justice Stevens goes Breyer a few steps further. After extensively quoting his own past dissents — and reprinting John Donne’s “no man is an island” meditation of 1624 — Stevens reports that he is already satisfied suicide is sometimes ” entitled to constitutional protection.” And he as much as predicts that a future plaintiff will succeed with that claim before the court.

It is left to David Souter to forecast the arguments by which the Supreme Court might someday reach such an astounding result. Souter writes a gigantic concurring opinion in Glucksberg, one designed to advance what he calls a Fourteenth Amendment jurisprudence of utmost care and case-by-case precision. You can’t be arbitrary if you have enough lawreview articles and footnotes at your disposal, he apparently believes.

Oh, but you can, as Souter’s tortured opinion makes clear. Despite the Hippocratic Oath and 700 years of history, he says he will “accept” the contention that deliberately lethal injections are “consistent with standards of medical practice.” Despite more than 200 years of American law, he says there is a constitutionally significant liberty interest in suicide. And he says he will reserve the right to declare that interest “fundamental” at some later date. The states must give “reasonable legislative consideration” to a relaxation of their existing laws against “voluntary” murder, Souter insists. And Souter will be watching. “Sometimes,” he mutters ominously, “a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims.”

So it’s back to the states, all nine justices agree, with one degree of enthusiasm or another. But state law is proving itself virtually helpless against the Heaven’s Gate sensibility now spreading like a fungus across the land. The morning the Supreme Court’s assisted-suicide decisions were handed down, a central Florida jury acquitted Dr. Ernesto Pinzon-Reyes of first- degree homicide. Pinzon-Reyes had injected a 70-year-old terminal cancer patient, Rosario Gurrieri, with a lethal dose of potassium chloride — in full view of that patient’s assembled family, against their wishes and without Gurrieri’s assent. Later the same day, 40-year-old Janis Murphy of Henderson, Nevada, turned up dead in a Southfield, Michigan, motel room. Ms. Murphy had complained of “chronic fatigue syndrome.” But an autopsy found no evidence of disease. Cause of death: carbon-monoxide poisoning. Janis Murphy’s “doctor”: Jack Kevorkian, who has eluded repeated attempts at criminal prosecution, despite having killed at least 45 people since 1990.

Back to the states, indeed. The Supreme Court, for its own short-term political convenience, has punted on assisted suicide. And in the process, the court has clearly signaled how it might handle exactly the same football the next time around. Three justices — Breyer, Stevens, and Souter — have written formally “concurring” opinions that are for all practical purposes dissents. They’re not ready to endorse the right to die. Yet. Three more justices — O’Connor, Ginsburg, and Kennedy — have taken thoroughly inexplicable positions. Even the three stalwarts — Rehnquist, Scalia, and Thomas — have trimmed their sails. This is not a solid fortress, to put it mildly. With another Clinton Supreme Court appointee or two, today’s 9-0 assisted-suicide decisions could easily get turned into 5-4 or 6-3 votes the other way.

That would be a horror, to be sure. But things are plenty bad already. And the court has just made them worse.

David Tell, for the Editors