For two hours Wednesday morning, the Supreme Court will publicly confront its most profound constitutional issue since the abortion cases that have so sharply divided justices from 1973 to 1992.
The question - whether a doctor, or anyone else, has a right to help desperately ill patients kill themselves - is fraught with ethical, religious and legal dilemmas and has heightened the intense debate over how Americans cope with death.
It’s a debate that embraces such subjects as living wills, the so-called right to die, nursing homes, the hospice movement and Dr. Jack Kevorkian, the crusader for doctor-assisted suicide who has helped more than 40 people die.
The Supreme Court justices are expected to splinter over the far-reaching question of physician-assisted suicide, just as millions of Americans are.
While the court has ruled that dying patients have the right to refuse unwanted medical treatment, 44 states make it a crime to help others hasten their deaths. Only Oregon has a law that permits dying patients to obtain medicine to end their lives, but a federal judge has blocked the law from taking effect.
The justices’ decision, expected by July, will determine whether these laws stand and whether doctors across the country can help people die.
So far, advocates of assisted suicide, aided by the posthumous voices of patients in anguish, have prevailed in the courts.
One of the cases involves Dr. Peter Shalit, who practices medicine in Seattle and is a clinical instructor at the University of Washington School of Medicine.
One of his patients, a man with AIDS, “lingered in the hospital for weeks,” Shalit recalled, “his lower body so swollen from oozing Kaposi’s lesions that he could not walk, his genitals so swollen that he required a catheter to drain his bladder, his fingers gangrenous from clotted arteries.”
The patient “begged for assistance in hastening his death,” Shalit recalled. The doctor said he wanted to grant the patient’s request but could not do so because Washington state law forbade doctor-assisted suicide.
So, Shalit said, the patient “died after having been tortured for weeks by the end-phase of his disease.”
But for all the sympathy such stories evoke, they are not the whole story.
Kathleen Foley, an expert in pain control at New York’s Sloan-Kettering Cancer Center, says suicide requests “commonly … dissolve with adequate control of pain and other symptoms.”
The major hurdle for the justices will be the fundamental question of containment: Is it possible to limit a constitutional right to assisted suicide in order to minimize abuses? Can it be confined to terminally ill, competent patients who seek the help of physicians, rather than, say, deeply depressed people who ask a relative to help them die?
Judge Stephen Reinhardt, writing for the federal appeals court for eight Western states and Hawaii, concluded the Washington law unconstitutionally barred physicians from prescribing life-ending drugs for use by terminally ill, competent adults who want to hasten their deaths.
Such a patient has strong constitutional interest in “choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent,” Reinhardt said.
The second case, Vacco vs. Quill, comes from New York, where another federal appeals court struck down a state law against doctor-assisted suicide for different reasons.
The poignant personal stories of dying patients are unlikely to be heard in the Supreme Court on Wednesday. The justices will focus instead on constitutional questions.
The Washington and New York cases turn on the application of a single sentence: the 14th Amendment’s provision that no state shall “deprive any person of … liberty … without due process of law, nor deny … the equal protection of the laws.”
Does “liberty” include a right to hasten one’s own death with medical help? Do state laws deny “equal protection” by allowing some patients to refuse medical treatment that would keep them alive, while barring others from dying with a doctor’s assistance?
Both sides are expected to try to exploit the Supreme Court’s recent tendency to uphold states’ rights.
William Williams, senior assistant attorney general for Washington, New York Attorney General Dennis Vacco, and U.S. Solicitor General Walter Dellinger, speaking for the Clinton administration, will urge the justices not to recognize any constitutional right of individuals to end their lives.
They will ask the court to allow each state legislature to decide the assisted-suicide issue for itself.
Laurence Tribe, a Harvard University constitutional scholar, and Kathryn L. Tucker, attorney for Compassion in Dying, will advocate a limited constitutional right to doctor-assisted suicide, suggesting that the court leave it to the states to provide the necessary safeguards.
The Supreme Court has ruled in only one “right to die” case. By a 5-4 vote in 1990, the justices said that a patient able to make decisions has a constitutional right to refuse unwanted medical treatment.
But the court allowed states to preserve the life of an incompetent person in the absence of convincing proof that the patient would have wanted to die.
That ruling has been viewed both as a victory for individual rights and a triumph for the states.