Moral Issues Don’t Belong In Court

It was not hard to tell which way the wind was blowing in the U.S. Supreme Court last week as the issue of physician-assisted suicide came before the justices. It was blowing with gale force right toward Congress and 50 state legislatures. It blew so strongly that the eddies touched the doorstep of every American who can vote.

When the Supreme Court rules this summer on the constitutionality of prohibiting doctors from deliberately helping terminally ill patients who want to die, it will tell all of us this is a moral question that ought to be resolved at the referendum ballot box or in the state legislature - not in a courtroom.

It is not for lack of interest on the part of the justices that they are very likely to throw physician-assisted suicide right back in the lap of legislators or voters. The members of the high court listened carefully to the arguments presented by attorneys representing groups of doctors and terminally ill patients in the states of New York and Washington as they asked that laws in these states banning physician-assisted suicide be struck down as unconstitutional. The justices peppered the attorneys with questions. But almost every question asked showed just how ill at ease they are with the idea that the Constitution speaks clearly about a matter that is so terribly murky.

Justice David Souter asked repeatedly why any court would have the experience necessary to decide whether the need to protect life was outweighed in some cases by the suffering of a terminally ill patient.

Sandra Day O’Connor worried that getting the Supreme Court involved in the issue would guarantee “a flow of cases through the court system for heaven knows how long” as courts would be asked to decide what constitutes terminal illness, how the competency of those making requests to die should be assessed, how long those making requests should be asked to wait before being allowed to die and many other similar questions.

Justices Anthony Kennedy and Ruth Bader Ginsburg were skeptical that courts were in a better position than legislatures to decide the fate of the dying. And Justices Antonin Scalia and Souter expressed no confidence that it would be possible to draw a line around assisted suicide that confined its scope to relieving pain.

The judicial caution and skepticism are completely warranted. Whatever your view is about the desirability of allowing doctors to help their patients die when asked to do so, there is no reason to think the Constitution provides much in the way of support for your position.

The Constitution, and the courts that have interpreted it, posit rights to liberty, privacy and equal protection. But only a remarkably loosejointed judicial contortionist could find a way to stretch and bend these concepts into a ruling that permits or bars states from regulating what doctors can do to their patients with lethal drugs and potions.

The Constitution, as most of the justices seem to recognize, is silent on whether contemporary physicians faced with requests from patients ridden with terminal illnesses and facing the prolongation of their lives by an incredible arsenal of medical technology can honor the requests of those who say that when the writing is on the wall they would like to choose when to inscribe the last sentence.

But the justices are also well aware that constitutional silence does not mean that the rest of us have to be quiet when it comes to debating physician-assisted suicide.

The proper settings for resolving whether a system can be constructed to ensure that doctors can kill patients in limited circumstances without abusing that power are: the church basement, the corporate boardroom, around the water cooler, in the classroom, on the subway platform, on the floor of Congress and in the halls of state legislatures.

If the national agony over abortion teaches us anything, it is that courts are a lousy place to resolve issues that are fundamentally ethical rather than legal.

Imposing answers to thorny moral quandaries ought to be an option of last resort in a democracy. The best way to build societal consensus is to let fundamental questions of ethics be sorted out through the political, not the judicial, process. This is especially so with the question of assisted suicide.

Most of us still do not really understand what is at stake in the legalization of assisted suicide. Although having the option to die when one is in extreme pain and terminally ill sounds reasonable, terminal illness is a vague concept and extreme pain a state that no dying person should need to escape by suicide.

A society that has done an inadequate job of insisting its doctors and nurses deliver adequate pain control to the dying, that leaves too many of its citizens facing the prospect of bankruptcy and misery paying for institutional care that is often dreadful at best, and that cannot find the compassion and money to make sure that each of us has the right to basic health-care treatment from a doctor is not yet ready to grant the power of homicide to its healers. Which is not to say that day should never come.

But the only way to guarantee that the interests of those most directly affected by the legalization of physician-assisted suicide - the dying, the disabled and the demented - are adequately protected is to put their fate in the hands of those who pull the levers in the voting booths or legislatures, rather than those who wield gavels in courtrooms.

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