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  •   Excerpts From the Supreme Court Oral Argument on Physician-Assisted Suicide

    The Washington Post
    Thursday, January 9, 1997; Page A16

    Following are excerpts from the oral arguments before the Supreme Court yesterday on doctor-assisted suicide in the twin cases of Washington v. Glucksberg and Vacco v. Quill.

    William L. Williams, senior assistant attorney general of the state of Washington: We are here today representing the people of the state of Washington to defend their legislative policy judgment to prohibit assisted suicide. . . . The issue here today is whether the Constitution requires that the social policy developed by Washington voters must be supplanted by a far different social policy, a constitutionally recognized right to physician-assisted suicide that is contrary to our traditions and overrides the important state interests that are served by the Washington statute. . . .

    Respondents offer a line that is unstable and inconsistent with the concept of ordered liberty. It is inconsistent with liberty in three respects. First, it is limited to a very few of our citizens. Secondly, those few must justify their exercise of this so-called constitutional right. Thirdly . . . this right, if it is to be exercised at all, if it is to be recognized at all, must be closely regulated. And their equal protection argument demonstrates just how unstable the line is, because they suggest that flowing from this court's assumed recognition of a right to refuse treatment in the Cruzan case, there is a seamless stream of constitutional rights that flows from that decision.

    Justice Ruth Bader Ginsburg: In the Cruzan case, the court recognized a liberty interest and yet it upheld restrictive legislation. . . . So couldn't one take the same approach here, there is a liberty interest, but because of the risks and dangers involved, considerable state regulation is permissible?

    Williams: . . . The problem that that would create by recognizing a liberty interest is that many states are considering whether to move the line by legislation -- in fact, our sister state of Oregon has done just that. . . . A recognition of a liberty interest may limit their flexibility to deal with this complicated area. We agree that, even if you find the existence of a liberty interest, that the same important state interests that were present in Cruzan are present in this case and would justify the statute nonetheless. . . .

    Justice Sandra Day O'Connor: What are the state interests you would argue support the law here in the event that a liberty interest is recognized?

    Williams: There are three important state interests that are involved. The first one is life, which includes the state's interest in . . . preventing suicide. And, in the hierarchy of constitutional value, certainly the protection of life is the highest. . . . The second one is to prevent abuse and undue influence, and certainly the risk is higher in the physician-assisted suicide context than it is in the refusal of treatment context. And thirdly, there is a strong interest in regulating the medical profession. Precisely because physicians have the capacity to injure or perhaps cause the death of their patients, 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. . . .

    Chief Justice William H. Rehnquist: It would be very difficult to assume a liberty interest and rule in your favor in this case, would it not? Because if we assume a liberty interest but nonetheless say that, even assuming a liberty interest, a state can prohibit it entirely, that would be rather a conundrum.

    Williams: . . . I disagree to this extent: I believe the state, the same important state interests that were implicated in the Cruzan case are implicated here but more strongly. . . .

    Rehnquist: But in Cruzan what we were dealing with was a state rule that said you had to prove a certain thing by clear and convincing evidence. Here we're not dealing with any sort of an evidentiary rule, we're dealing with an outright prohibition.

    Williams: That's correct. . . .

    Justice Antonin Scalia: I suppose that proclaiming a liberty interest is cost-free so long as you can proclaim them and then say, however they can be outweighed by various social policies adopted by the states. We can say there's a liberty interest in murdering people, however it's outweighed by the state's interest in preserving the lives of its citizens. I guess we could do that, couldn't we?

    Williams: That's true. . . . The other point I was going to make . . . there is the Oregon Employment Security Division versus Smith case, the peyote case, where the court there, involving a much stronger interest, the First Amendment free exercise of religion, nonetheless upheld an absolute ban on the use of drugs because of the state's important interest in its drug enforcement policies. . . .

    Walter E. Dellinger, acting solicitor general of the United States:

    Justice Sandra O'Connor: . . . It's your brief that takes the position that there is a liberty interest, but nonetheless, the law should be upheld.

    Dellinger: That is correct. . . . We think it's not critical to the case, but we urge you to acknowledge that a person states a cognizable liberty interest when he or she alleges that the state is imposing severe pain and suffering or has adopted a rule which prevents someone from the only means of relieving that pain and suffering. This is a narrow liberty interest. . . . [W]e do not agree with the 9th Circuit's conclusion that there is a general liberty interest in dying. . . . States have long had laws that affirm the value of life by prohibiting anyone from promoting or assisting a suicide and I believe that no one disputes the constitutionality of those laws as a general matter. The actual question before the court is whether the Constitution compels an exception to those laws here. In our view it does not. . . . While the individual stories are heartrending . . . it's important for this court to recognize that, if you were to affirm the judgments below, lethal medication could be proposed as a treatment, not just to those in severe pain, but to every competent terminally ill personal in the country.

    Justice David H. Souter: . . . I don't know how to weight this probability and this risk. Help me out on that.

    Dellinger: . . . No American jurisdiction has ever recognized physician-assisted suicide as a lawful practice. So that there's no experiential basis for the conclusion that there could be adequate safeguards to protect those who are suffering from depression and who may request lethal medication because of untreated depression. . . .

    Souter: . . . [T]hat might be a . . . perfectly legitimate argument for saying that . . . the court should wait until it can know more. . . . before it passes ultimate judgment.

    Dellinger: In light of the multiple uncertainties we refer to in our brief, it would be I think a grave mistake for the court to impose on 50 states such a marked transformation that had never been tried by even a single state.

    Scalia: But you say . . . there is a liberty interest which . . . tosses the whole matter into this court so that it's up to us to decide whether indeed the states are right or wrong that this is a dangerous practice. And, if we think they're wrong, then . . . the liberty interest must prevail. . . .

    Dellinger: Yes. . . . I would refer you [to] the New York state task force address. . . . [T]hey note that one can deposit ideal cases in which all recommended safeguards would be satisfied: Patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive, committed family and doctor. Yet the reality of existing medical practice in doctors' offices and hospitals cannot generally meet these expectations. . . . The systemic dangers are dramatic. The least costly treatment for any illness is lethal medication. And the medical profession tells you in briefs. . . . that we have a system in which we are struggling to try to provide proper treatment for pain and for depression. Someone who is not treated for pain is not in a position to make the kind of decisions they need to be forced to make here.

    Kathryn L. Tucker on behalf of those seeking to allow physician-assisted suicide in Washington: . . . This case presents the question whether dying citizens in full possession of their mental faculties at the threshold of death due to terminal illness have the liberty to choose to cross that threshold in a humane and dignified manner. . . .

    Rehnquist: . . . [T]here is not an issue here. . . . [I]t's that they want assistance from a physician to do it, that's what we're arguing about.

    Tucker: That's correct. . . . And the reason why we are focused on that is because these dying patients want a peaceful death, they want a humane death and they want a dignified death. And, in order to access that kind of death they need the assistance of their physician. . . .

    Scalia: . . . [W]hy is it limited to those on the threshold of death? I mean suppose . . . the doctor says you're going to be in terrible pain for 10 years. . . . Why shouldn't I have the right to suicide.

    Tucker: . . . [A] patient who is confronting death . . . has a very different choice than the one you posit. This individual does not have a choice between living and dying. This dying patient whose dying process has begun and is underway, this individual has only the choice of how to die. Will that death be brutal, will that death be peaceful.

    Ginsburg: . . . [W]hat about the person who is in such agony that that person is not able to assist in her own suicide so she needs the doctor or the nurse to administer the lethal dose. Isn't that person in a more sympathetic situation than the one you're describing?

    Tucker: . . . [Y]ou are describing someone who just can't bring themself to do it. . . . Self-administration does address an important state concern here, and that's the concern of voluntariness. We agree that this decision should always rest with the individual and that it should be authentic and voluntary. And to require the individual to not only make this choice but then to take the final act, we believe assures voluntariness in an important way.

    Scalia: And you are saying that the state can tell individuals that they may not take their own life.

    Tucker: Yes . . . absolutely.

    Scalia: . . . I don't understand what the limit is. . . .

    Tucker: The terminally ill patient does not have the expectation of a continued life beyond this very short interim before death. Certainly the patient . . . that would choose to endure that period of suffering before death and find it enjoyable and find it fulfilling should be permitted to make that choice, and many will make that choice. . . . But for some patients, based on their values and beliefs formed over a lifetime, that additional quantum of suffering is intolerable to their personhood. . . . This I think will enable me to respond to the solicitor general's comment that what we're dealing with here is simply a liberty interest in avoiding pain and suffering. That absolutely trivializes the claim. We have a constellation of interest, each of great constitutional dimension. Yes, there is the interest in avoiding pain and suffering. . . . The second in the constellation of interest is decisional autonomy, and the third in the constellation that has bearing here is the interest in bodily integrity. Each of those separate interests is of constitutional dimension and each has bearing here. . . .

    Ginsburg: . . . You said formed over a lifetime. That's surely not part of your calculus, it could be someone who never thought a moment about this but is in terrible agony and would fit your terminal in your terminal illness category. . . . Isn't it possible that such a person could at one time, even for a period of days, say I want to die, I want to die, and didn't get the assistance, lives on, and says I'm glad that I didn't do that. . . .

    Tucker: That's possible. . . . I do think that it would be permissible for the state . . . to impose a waiting period. . . . We are asking simply that this court recognize the vital liberty interest at stake and that it is a protected choice but not asking this court to engage in legislation, we are not asking this court to promulgate a code for regulation of the practice. We do think it should be left to the states.

    Rehnquist: You're not asking that now. But surely that's what the next couple of generations are going to have to deal with, what regulations are permissible and whatnot if we uphold your position here.

    Tucker: I think not. . . . We think it's appropriate for that experimentation to occur in the states. There is substantial consensus as to what form of regulation would be appropriate.

    O'Connor: . . . There is no doubt that . . . if we upheld your position, it would result in a flow of cases through the court system for heaven knows how long. I wanted to ask you whether it should enter the balance of state interests versus the interests of the patient here, that this is an issue that every one of us faces, young or old, male or female, whatever it might be. And all of us who are citizens and authorized to vote can certainly participate through that process in the development of state laws in this area. . . .

    Tucker: I take your point . . . but I do think that we are dealing with an issue, the literature is extensive on this, that ours is a culture of denial of death. And that people in our society do not deal with their own mortality until confronted with their death and because of that I do think we have some concerns that the political process would not be expected to work in a usual fashion. . . .

    Souter: . . . If, in fact, you are right about the pervasiveness of the denial of death, that denial simply reflects the way we are. And it seems to me that it's a perfectly legitimate reflection when it finds its way into the legislative process. Is there a flaw in that reasoning?

    Tucker: Well, I think what I was getting at . . . is that because there's the denial and people do not confront mortality until faced up against it, you do not have an activist component that is able to address that in the legislative process. When a patient is on their death bed, they don't have the ability to become politically active. . . .

    Justice Anthony M. Kennedy: . . . [I]t's a matter of defining the liberty. And this is a question of ethics and of morals and of allocation of resources and of our commitment to treat the elderly and infirm. And surely legislators have much more flexibility and a much greater capacity to absorb those kind of arguments and make those decisions than we do. You're asking us in effect to declare unconstitutional the law of 50 states.

    Tucker: We're asking this court to simply recognize the vital nature of this liberty and to leave to state experimentation the regulatory process and the state --

    Dennis Vacco, attorney general of New York state: The question in this case is whether the state must remain neutral in the face of a decision of one of its citizens to help another kill herself. The 2nd Circuit below said yes, as a matter of equal protection. It is New York's view, however, that the Constitution does not require this to be the case.

    Indeed, equal protection is not implicated at all in this case. Patients who withdraw from life support are not similarly situated to terminally ill people who are seeking physician-assisted suicide.

    Ginsburg: . . . The distinction that the 2nd Circuit fastened on was the terminally ill person who says no more life supports, I want to die, and the person who wants a pill that will achieve the same end. So let's narrow it to what that court was dealing with and tell us why that court was wrong.

    Vacco: . . . The people . . . are not similarly situated. In the first context the individual who is at the . . . end stages of their life as the 2nd Circuit defined it, are exercising their right . . . to refuse treatment. That right which has been recognized for centuries as springing from the common law, the right of being free from bodily interference, the right to be free from battery, [the] right to be let alone.

    On the contrary, and in contrast, are those individuals who are not asserting a right, that is . . . their rights to bodily integrity, but instead attempting to assert, as the plaintiff respondents in this case are claiming, that there is some right to have a third party, in this instance physicians, help kill themselves. And we believe that these two acts are clearly distinguishable. . . .

    Ginsburg: You say you've distinguished the drugs at the last hour or hours of life. But we're told that this treatment, whatever you want to call it, that inevitably will lead to death, will do so in a matter of days, not hours. And that that goes on. And how is that rationally distinguishable from a pill that will work --

    Vacco: . . . It's rationally distinguishable because it is consistent medical practice. . . . Providing drugs specifically and solely for the purpose of killing someone has never been embraced by the medical profession.

    Souter: . . . I take it you mean that, once you accept the right of a patient to withdraw all life support including hydration and feeding, then the only way to prevent excruciating pain as the person nears death is with these extraordinarily high dosages of painkiller that induce coma. . . .

    Vacco: Yes. And indeed the subsequent administration of the palliative care drugs is consistent with the long-standing notion of the double effect, that the drugs in that instance are not being administered for the purpose of causing the death, they are administered in the context of the post refusal or post withdrawal of treatment palliative care of the patient. . . .

    Souter: Is . . . the reason you draw the line ultimately between ending the life support and the affirmative act of giving the pill, is it essentially a line that depends on the argument for risk of abuse?

    Vacco: The principal . . . justification indeed, one of the most compelling reasons, state interest, is the risk of abuse. And that abuse is going to manifest itself in a variety --

    Souter: Well, why isn't there a risk of abuse that those who might stand to profit or at least themselves risk further discomfort by an early death for a person on life support will try to coerce or persuade that person to end life support when it really isn't a voluntary decision, why isn't that a risk?

    Vacco: . . . There is no question that in certain instances there is an overlapping of the risk of abuse. But we believe in the context of physician-assisted suicide. The risk of abuse is far greater. . . .

    Souter: Is it far greater with respect to those who, in fact, are truly terminally ill? Or is it far greater because it affects a broader class than the terminally ill?

    Vacco: It's for both reasons. . . . Who is to define terminally ill, how do we define it with such certainty? . . .

    Acting Solicitor General Dellinger: The issue that is raised with more saliency in New York is that even if the state may, as a general matter, legitimately prohibit the granting of lethal medication, the fact that these state permit practices that are in the respondents' view medically, ethically, and morally indistinguishable from lethal medication requires that these states also do that.

    We do not agree that the states' interest in prohibiting lethal medication is lessened by the fact that the state permits competent terminally ill adults to refuse unwanted medical treatment. There is an important common sense distinction between withdrawing artificial support so that a disease will progress to its inevitable end and providing chemicals to be used to kill someone. . . . The historic distinction between killing someone and letting them die is so powerful that we believe that it fully suffices here. . . .

    Ginsburg: . . . If you could, deal with the argument that's been made about winks and nods, that all of this is really a great sham because physician-assisted suicide goes on for anybody who is sophisticated enough to want it.

    Dellinger: . . . We looked and we don't know what the evidentiary basis is for that.

    We do not know any basis for the conclusion that pain medication's being deliberately offered in excess of what is necessary to relieve pain in order to cause death.

    Oral argument of Laurence H. Tribe on behalf of those seeking to allow physician-assisted suicide in New York: . . . What happens to people as they degenerate is that they are given all kinds of treatments and they accept them, and this idea that at the end you're either in this closed class of people who luckily have a plug that can be pulled, or you're in some other group, is a fantasy. Every case, or virtually every case --

    Kennedy: Well, I suppose it's based on the distinction between allowing events to take their own course and third-person intervention, which the law has recognized in the law of torts and in most of its other substantive areas for centuries.

    Tribe: None of these patients is in a state of nature. They're in a hospital or a hospice. And they're receiving chemotherapy, radiation, bone marrow transplants.

    Kennedy: Yes. But when a person on a life support system wants the systems discontinued, she is not committing suicide, which is what you said earlier. She is not doing that, she's allowing nature to take its course.

    Tribe: If I could explore nature just for a moment. Of course, it's up to the state of New York how to characterize whether she's committing suicide. But . . . the government's characterization can't control the constitutional analysis. . . .

    Justice Stephen G. Breyer: . . . However you define the liberty interest, there are tremendously difficult procedural questions of what would be the safeguards of voluntariness, a much more difficult question . . . than what you might think. And how do you decide terminal condition. And what about the relationship of laws like double effect and all of that area. . . . What's your response to the proposition that these different groups, interacting with the legislature, are far more suited . . . to come up with an answer than a court writing a constitutional provision.

    Tribe: . . . It seems to me that what we have here, setting aside the issue of liberty for the moment, and I don't understand frankly the solicitor general's position it can be a "now you see it, now you don't" liberty. . . . In a sense there are 50 laboratories out there. The famous state laboratories of Justice Brandeis. . . . These laboratories, however, are now operating largely with the lights out. They're operating with the lights out because it's not just New York. What I've described is as far as I've been able to determine through research of the law of at least 35 or maybe 40 states. . . . In all of these states what they do, and it's a logic that collapses on itself, is they combine two understandable principles.

    One principle is you can medicate someone to make them comfortable, to reduce their pain even when you are pretty sure -- or even when you know, as long as that's not your real intent -- that it will hasten their death.

    The other principle is that a person has the right to say, no, don't give me that feeding tube. Once I've got it, it may be hard to take it out, and anyway, leave me alone. You combine these two and the logic so remarkably collapses in the case of terminal sedation, which is overwhelmingly documented everywhere in the country, it's not some sneaky practice. . . .

    Justice John Paul Stevens: Tell us what you think the liberty interest is.

    Tribe: The liberty interest in this case is the liberty, 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. Not to be forced into that choice, that the liberty is the freedom, at this threshold at the end of life, not to be a creature of the state but to have some voice in the question of how much pain one is really going through.

    Souter: Why does the voice just arrive when death is imminent?

    Tribe: The court's jurisprudence has identified, I think for good reason, that life, though it feels continuous to many of us, has certain critical thresholds: Birth, marriage, child-bearing. I think death is one of those thresholds. That is, it is the last chapter of one's life after all. . . .

    © Copyright 1997 The Washington Post Company

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