January 9, 1997 in Nation/World

High Court Skeptical About Right To Die Justices’ Reaction To Assisted Suicide Arguments Suggests They Would Rather Leave It Up To Legislatures

Jan Crawford Greenburg Chicago Tribune
 

Faced with one of the most controversial and far-reaching issues in recent times, the Supreme Court responded skeptically Wednesday to passionate arguments that the dying have a right to a doctor’s help in committing suicide.

With hundreds of demonstrators marching in the cold outside, most of the justices expressed doubts about arguments that the Constitution guarantees a so-called right to die.

In their questioning, however, they acknowledged the seriousness and broad impact of the issue, which, as Justice Sandra Day O’Connor said, “every one of us faces, young or old, male or female.”

“Maybe the individual hasn’t thought about it, but most of us have parents, loved ones, and … (their) dying experience forces us to deal with these things,” said Justice Ruth Bader Ginsburg.

That said, many of the justices, including Ginsburg and O’Connor, seemed to suggest that the matter should be left up to the voters and the states. Most states prohibit assisted suicide.

“You’re asking us, in effect, to declare unconstitutional the laws of 50 states,” Justice Anthony Kennedy told a lawyer who was urging the court to strike down bans on assisted suicide.

Only Oregon has approved doctor-assisted suicide, but a court has blocked the law from taking effect there.

Before the court are laws in New York and Washington state that ban assisted suicide and recently were ruled unconstitutional by two federal appeals courts. Those states are asking the court to reverse those rulings, which were based on different legal theories. Neither of the theories seemed to garner much support from the justices.

One federal appeals court ruled that the Washington law violates the Constitution’s due process clause because, it said, the terminally ill have a protected interest in dying.

The appeals court in New York ruled that the state’s law violates the equal protection clause because it treats people in similar situations differently: The state allows dying patients to decline medical treatment in an effort to hasten death, but it prohibits dying patients from accepting a doctor’s assistance in an attempt to accomplish the same thing.

William Williams, senior assistant attorney general of Washington, told the justices he believes state legislatures have the authority to approve physician-assisted suicide, but he insisted that the federal Constitution does not require states to do so.

The states’ overwhelming opposition to the practice appeared to weigh heavily on the justices, many of whom suggested that courts are ill-equipped to decide an issue that is as much about morals and ethics as it is about the law.

“Surely the legislatures have a much greater capacity to absorb those arguments than we do,” Kennedy said.

The hard questions the justices raised during two hours of arguments Wednesday illustrated the difficulty of the legal issues involved.

Though opponents of the state bans argue that only the terminally ill have a constitutional right to doctor-assisted suicide, the justices repeatedly asked why the Constitution would not grant others the same right.

What about people not on death’s doorstep, but facing 10 years of agonizing pain, asked Justice Antonin Scalia. And, he wondered, what about people with terrible mental pain?

“Why is it limited to those on the threshold of death?” Scalia asked.

Because, said Kathryn Tucker, a lawyer representing Washington doctors challenging the law, “the dying process is already under way” for the terminally ill.

Responded Scalia, “I can tell you the dying process of all of us is under way.”

Scalia later asked a similar question of Harvard Law professor Laurence Tribe, who is representing New York doctors challenging the law.

Tribe said individuals should have “the liberty, when faced with imminent and inevitable death, not to be forced by the government to endure a level of pain and suffering that one can endure only when unconscious.”

Scalia, in what appeared to be a sarcastic remark, asked, “Is all this in the Constitution? This is lovely philosophy.”

Tribe defended the New York appeals court ruling that if states allow dying patients to refuse medical treatment, they should also allow the terminally ill to take medication to hasten death. The Supreme Court in 1990 acknowledged that a dying person may have a right to refuse medical treatment.

The justices appeared concerned that if the court were to recognize a right to die, it would have to wrestle with those and other issues in coming years. Beyond the issue of deciding which kind of patient has a right to die, for example, other justices seemed concerned about whether doctor-assisted suicide would quickly lead to euthanasia.

“There’s no doubt what would happen,” O’Connor said of a ruling recognizing a right to die. “It would result in a flow of cases through the court system for heaven knows how long.”

Tucker argued that legislative process couldn’t adequately deal with the issue because “people in our society do not deal with their own mortality until they’re confronting death.”

Ginsburg, however, noted that most people confront the issue when a friend or relative suffers a fatal illness.

Justice David Souter said that in previous cases, the court has been more willing to step in if the political process is shutting out certain groups and denying them fair representation.

“(Here), everybody is in the same boat,” Souter said. “If you’re right about the denial of death, that denial simply reflects the way we are.”

Tucker also urged the court to get involved because, she said, the terminally ill and others seeking a right to die generally are not activists. But the scores of briefs filed in the case, as well as the throngs of protesters who filled the front steps of the court, belied that argument.

Despite the cold Wednesday morning, dozens of people marched with signs saying, “We support physician aid in dying.” Dozens of others, most in wheelchairs, countered with brightly colored signs emblazoned with “Not dead yet,” or, “Your mercy is killing me.”

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