States to Become Forum for Fight Over Assisted Suicide
By Roberto Suro
The battle over the rights of the dying now shifts to the states in the wake of yesterday's Supreme Court decision, according to legal experts who predict a new round of contentious and emotional debate.
In upholding New York and Washington state statutes that outlaw physician-assisted suicide, the court resolved some major constitutional issues, but it very deliberately left it to state governments to decide upon a broad and growing assortment of questions that arise when people under medical treatment must come to terms with death.
"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide," Chief Justice William H. Rehnquist said in the unanimous decision in the Washington state case. "Our holding permits this debate to continue, as it should in a democratic society."
Although 42 states in addition to New York and Washington have laws that criminalize assisted suicide, Rehnquist noted that 30 different bills to weaken those bans have been brought before state legislatures over the past two years. None of those proposals have been enacted, and they appear more indicative of the disquiet surrounding this issue than anything else.
Physician-assisted suicide is illegal in Maryland and the District. In Virginia, one of only five states where the law has been silent on the subject, the General Assembly this year gave initial approval to a measure that would outlaw assisted suicide, but the law will not take effect unless lawmakers reenact it next year.
The voters of one state, Oregon, have enacted a law by referendum that allows certain forms of physician-assisted suicide, but it has been stopped from taking effect pending the outcome of court challenges.
Advocates on both sides of yesterday's decisions immediately braced for further controversy.
"We must now mobilize in all 50 states to fight efforts to legalize direct killing of the vulnerable through state courts, state legislatures and referenda," said David N. O'Steen, executive director of the National Right to Life Committee.
Following the court decisions, "The door is not only open to dialogue but to vigorous legislative efforts," said Barbara Coombs Lee, who heads Compassion in Dying, the advocacy organization that sponsored the court challenges to the New York and Washington state laws.
Broad assaults on laws like the ones upheld in yesterday's decisions were already unlikely and now are even more improbable, according to many experts. "The prospects for the [further] legalization of physician-assisted suicide are zero as a practical matter," said Ezekiel Emanuel, a professor at Harvard Medical School who opposes such legalization if broadly applied. "It is not going to happen in the federal courts after these decisions, and you don't see politicians rushing to embrace it, quite the opposite."
More likely, the next stage of the debate will focus on specific medical practices. Among them is the administering of potentially lethal doses of painkillers to terminally ill patients. In his majority opinion in the New York case, Rehnquist indicated that this is acceptable even if the patient dies so long as the physician's intent was to ease pain not to cause death. Other justices in concurring opinions indicated they might disapprove of efforts by states to limit the administration of painkillers.
"This decision leaves the gray area intact," said Timothy Quill, the physician who challenged the New York law.
Just yesterday, a Florida jury acquitted a physician, Ernesto Pinzon, who was accused of murdering a terminally ill patient with massive doses of morphine. Pinzon successfully argued that he was only trying to relieve his patient's pain. While the laws against assisted suicide have not halted these practices, the danger of winding up in court like Pinzon could lead to the next legal challenge of state bans.
Rather than contest a state's entire law, a physician might question how it applies to the treatment of a particular patient. Similarly, legislative efforts may also begin focusing on the relatively small number of people in the last stages of life who can get no relief from suffering through normal care, said Laurence H. Tribe, the Harvard law professor who argued against the state bans in the cases before the Supreme Court.
"State legislatures have not focused on that sub-category," he said, and lawsuits challenging the way assisted-suicide bans are applied to such exceptional cases are most likely to succeed.
However with yesterday's decisions, Tribe said, the difficulty of mobilizing support for a referendum like the one that produced Oregon's law is greater.
Recent surveys show that public opinion is considerably fragmented on this issue. A Washington Post poll taken last year found that 50 percent of the respondents believed doctor-assisted suicide should be legal, while 40 percent said it should be illegal and 9 percent were undecided. The sentiment in favor of legalizing the practice was strongest among men, the middle-aged, the affluent and people living on either coast. The sharpest division was on racial grounds with blacks overwhelmingly opposing legalization.
But the issue may never arise again as a simple question of whether assisted suicide is legal or illegal. "My opinion is that the issue has peaked," said Emanuel.
And instead of broad legal and legislative debates, Emanuel said, "The center of attention will shift to questions of how we provide better care, better pain management and better care for the families of dying patients, and that is really where I think it should be."
© Copyright 1997 The Washington Post Company