Is It A Wonderful Life?

MOST LEGAL revotions are anything but swift. Often, the only thing that moves slower than constitutional law is the judges who administer it. Desegregation, First Amendment freedoms, even the reach of congressional power--all these facts of modern life in the United States took decades of litigation to achieve. But the courts occasionally surprise. That's what's happened in less than a month in the right-to-die debate. Two influential federal appeals courts, using different legal theories, have dramatically expanded the ability of terminally ill patients to kill themselves and immunized the physicians who help them. Though the historic decisions technically apply only to several states, they may embolden other courts and eventually cast doubt on the laws of all states. Currently, 32 states explicitly prohibit assisted suicide and almost all the rest outlaw it under general homicide statutes.

Forget Dr. Jack Kevorkian, now on trial for the third time. While crusader Kevorkian dons Tory wigs in the courthouse and mixes his brew of poisons--he's been present at the suicides of 27 individuals since 1990, but has never been convicted of anything-his significance in the national debate over assisted suicide has suddenly waned. The fight now is among appellate judges, and the next battleground is likely to be the U.S. Supreme Court late this year or early next. If the high court agrees to hear either case, it could set up a moral struggle not seen since the days of Roe v. Wade.

Last week the Second U.S. Circuit Court of Appeals in Manhattan weighed in. It ruled that New York state's manslaughter statute couldn't be used to prosecute doctors who prescribe lethal drugs to terminally ill patients who ask for them and then use them to commit suicide. "What interest can the state possibly have in requiring the prolongation of a life that is all but ended?" the judges wrote. "And what business is it of the state ... to interfere with a mentally competent patient's right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life?"

Such philosophizing aside, the court's legal reasoning was still narrow. It did not find that assisted suicide was a constitutional right, but only that New York failed to honor the constitutional guarantee of equal protection of the law. Why? Patients on life-support equipment are allowed to hasten their deaths by instructing doctors to turn the equipment off. But patients wanting lethal medication are denied it. Any distinction in the way a person chooses to end his own existence is irrational, the court said, and therefore couldn't justify unequal treatment. In theory, the New York Legislature could now go back and ban any assistance to suicidal patients that would hasten death, and that might be constitutional.

It wouldn't be on the West Coast. Last month the Ninth Circuit appeals court in San Francisco issued a far broader ruling. Striking down a Washington-state law, the court declared physician-assisted suicide to be a fundamental constitutional right protected by the 14th Amendment's guarantee of "liberty." Of course, that amendment makes no mention of the right to marry or have children or get an abortion, but the Supreme Court has read them into the Constitution. Indeed, the Ninth Circuit, one of the most liberal courts in the country, cited Roe v. Wade repeatedly in its ruling. "The decision how and when to die," the judges said, "is one of the most intimate and personal choices a person may make in a lifetime, a choice central to personal dignity and autonomy."

Those broad juridical strokes, which conservatives call "making the law, not interpreting it," enraged some of the judges on the Ninth Circuit. "The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia," wrote Judge Andrew Kleinfeld in dissent, "while all great questions would be decided by the judiciary."

One of the great things about being on the Supreme Court is that you get to choose your own docket. So it's hardly certain the justices will take either right-to-die appeal. Yet particularly for those justices still mad they couldn't muster the votes to overturn Roe v. Wade in 1992--Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist--these cases give them the chance to raise doctrinal bell all over again. For them, a judicially invented right to die should be no more acceptable than a judicially created right to an abortion.