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  •   Justices Skeptical of Assisted Suicide

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, January 9, 1997; Page A01

    Taking on one of the most important constitutional questions of the decade, the Supreme Court yesterday expressed grave concerns over the implications of declaring that dying patients have a right to a doctor's help in committing suicide.

    During the solemn two-hour hearing, the justices pursued not just legal questions, but evolving societal attitudes, the role of modern medicine, their own personal experiences and moral considerations that thread through the emotional issue. In the end, it appeared a majority would not vote to establish a right to physician-assisted suicide.

    As hundreds of demonstrators gathered on the white marble plaza outside the courthouse, many of them in wheelchairs and carrying signs that read "Not Dead Yet," the justices took up a pair of cases that could ultimately alter the way the legal system recognizes the right to die in America.

    Although the issue had been simmering for some time, it burst onto the national agenda when two appeals courts, one from each coast, upheld a right to doctor-assisted suicide. Officials from the two states involved in those rulings, New York and Washington, have brought the twin cases to the Supreme Court, hoping for a ruling that would overturn the lower courts and uphold a state's right to ban assisted suicide.

    In a time of advancing medicine and an aging population, the issue has captured the public's attention in a way that few legal questions do, dividing the medical community, legal scholars and the terminally ill, who appear to have the most at stake. Scores of people, some of whom had camped out in frigid temperatures in hopes of claiming one of the 50 seats available to the public, were turned away before the arguments began.

    "Most of us have parents or other loved ones, and we've lived through a dying experience that forces us to think about these things," Justice Ruth Bader Ginsburg said at one point.

    The Supreme Court first addressed the question of a right to die in 1990, when in the case of a Missouri woman thrust into a vegetative state by a car accident, the court ruled that a person has a constitutionally protected right to refuse unwanted medical treatment. But that ruling involved the rather passive withdrawal of artificial life supports in a case brought by the parents, who wanted to disconnect their daughter's feeding tube.

    Yesterday's question poses a more difficult dilemma and puts the physician in the active role of bringing on death by providing the lethal injection or other means of ending a patient's life. If the Supreme Court were to uphold lower court rulings finding a constitutional right to physician-assisted suicide, states would be able to regulate the practice but not ban it, as a majority now do.

    A decision in the paired cases will be handed down before the court recesses this summer.

    This is not an issue of simply "choosing to die," Chief Justice William H. Rehnquist noted. "It's that they want assistance from a physician to do it, that's what we're arguing about."

    Justice David H. Souter, one of the justices more inclined to protect issues of personal privacy, suggested that it might be too soon for the high court to assess the risks of making assisted suicide legal or to weigh patients' interests in being free of pain and suffering. "It may be impossible for a court to assess that sensibly for a long time until there is more experience out in the world," he said.

    The state of Oregon has approved a law legalizing physician-assisted suicide, but that law is tied up in the courts.

    Those who advocate a right to physician-assisted suicide, including some doctors, say that cancer patients, AIDS patients and others who are terminally ill should not have to suffer through a painful death. An individual's right to privacy, they say, should guarantee the choice to speed death with drugs or other methods prescribed by a doctor. In other words, people should have a choice in their own death.

    Those who oppose this view, including the Clinton administration and the Washington and New York state officials arguing the case, voice an overriding interest in protecting life and say assisted suicide would be abused by unscrupulous doctors and greedy relatives. They say it could force depressed or misguided patients into an irreversible choice.

    The arguments yesterday had nothing to do with retired Michigan pathologist Jack Kevorkian, who has assisted in about 50 reported suicides. But the specter of his dubious work has added to concerns of abuse.

    Virtually all of the justices expressed some skepticism over the idea of establishing a right to physician-assisted suicide, and their doubts covered all variety of issues. Some asserted a legal argument that the high court's prior rulings did not lead logically to a right to assisted suicide. Some asked the advocates of this practice why only the terminally ill should have such a right. And, they asked, how would legislatures and lower courts work out the breadth of that right and under what circumstances it would be permitted? Rehnquist said the court could be headed toward legal and legislative turmoil not unlike that surrounding abortion.

    "So you're going to have those factions fighting it out in every session of the legislature," he said. Justice Sandra Day O'Connor added, with concern, that "It would result in a flow of cases through the court system for heaven knows how long."

    Last year, lower appeals courts struck down state laws in Washington and New York that banned assisted suicide, though they reached their decisions by drawing on different legal arguments. The 2nd U.S. Court of Appeals ruled that because New York allows people to sign waivers refusing artificial life support, it violates the 14th Amendment's equal protection guarantee to people who want to speed death through a prescription for fatal drugs. In the Washington case, the 9th U.S. Circuit Court of Appeals found a right to assisted suicide in the liberty protection of the 14th Amendment, similar to the privacy right the high court found for abortion.

    Appealing that ruling, William L. Williams, senior assistant attorney general of Washington, opened the arguments by asserting that the wishes of Washington voters who put a ban on assisted suicide in place should not be usurped by the courts.

    He justified the ban by saying it would protect life and prevent abuse by doctors or family members who might exert undue influence over dying people.

    "Precisely because physicians have the capacity to injure or perhaps cause the death of their patients," Williams said, "the state has an important interest in maintaining a clear line between physicians as healers and curers, and physicians as instruments of death of their patients."

    Kathryn L. Tucker, representing those challenging the Washington state ban, told the court that for some patients the only option for a "humane death" is with a doctor's help.

    She argued that the right to die arises from a constitutional protection of "bodily integrity," personal autonomy and a right to be free of unwanted pain and suffering.

    "This . . . has to do with one's own body, one's own medical care, and suffering in the face of death. And that brings it within [a realm] . . . this court has indicated the government may not enter," she said referring to past privacy-related decisions.

    But Ginsburg, for one, was skeptical that the 1990 ruling could be extended to forbid bans on assisted suicide. Ginsburg also questioned why, if such a right to assisted suicide exists, it should cover only the terminally ill, a "narrow class."

    Tucker said the constitutional right "only ripens or matures" when a patient is near death. She also rejected the suggestion that the right should cover someone who is terminally ill but who cannot administer her own death-inducing drugs.

    Justice Antonin Scalia, the justice who has most vocally expressed his distaste for the idea of assisted suicide, scoffed at the notion that it could be left to the government to decide what illnesses are worse than others or to weigh the relative severity of terminal and emotional pain.

    "Why can't a society simply determine as a matter of public morality that it is wrong to kill yourself just as it is wrong to kill someone else?" he asked. "What in the Constitution prevents that moral judgment from being made in this society's laws?"

    Representing New York, Attorney General Dennis C. Vacco said the lower court improperly failed to differentiate between patients who withdraw from life support systems and terminally ill people seeking physician-assisted suicide. The latter group, he said, is claiming "some right to have a third party, in this instance physicians, help kill themselves."

    Laurence H. Tribe, who represented the challengers to the New York law, countered that when it comes to the rights of the terminally ill states must not distinguish between unplugging a respirator or giving lethal medication.

    He said individuals have a personal liberty interest "when facing imminent and inevitable death, not to be forced by the government to endure a degree of pain and suffering that one can relieve only by being completely unconscious."

    Perhaps reflecting the difficulty of his argument and the intensity of the day, Harvard law professor Tribe, a longtime observer of the court and its law, mixed up the two female justices, mistakenly referring to Ginsburg as O'Connor. He quickly apologized.

    Justice Stephen G. Breyer said he was worried that reports say "that only between 1 percent or 2 percent of possibly all people need die in pain. But 25 percent or more do die in pain. . . ."

    Solicitor General Walter E. Dellinger, who represented the Clinton administration in support of the states, responded, "The fact that 25 percent unnecessarily die in pain shows the task awaiting the medical profession, but it's not a task that calls for the cheap and easy expedient of lethal medication."

    © Copyright 1997 The Washington Post Company

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