Weighing The Right To Die

IT'S BEEN 20 YEARS SINCE THE FAMILY of Karen Ann Quinlan fought a momentous legal battle for the right to take her off a respirator. The "right to die" movement touched off by her case gave rise to living wills, the right to refuse unwanted treatment, how-to suicide books and Dr. Jack Kevorkian. Now the country is facing the next profound step, one that could be as divisive--morally, medically and legally--as abortion: do terminally ill patients have a constitutional right to a doctor's aid in committing suicide?

This week the Supreme Court will hear two right-to-die cases that have moved through the legal system with remarkable speed for an issue of such import. Last spring, within a month of each other, two federal appellate courts struck down laws in New York and Washington state banning physician-assisted suicide. (At least 40 other states have similar laws.) The appeals courts ruled that a person terminally ill and mentally competent has a constitutional right to receive lethal drugs from a doctor to hasten death. The two cases were brought by a Seattle patients' rights group called Compassion in Dying, seven physicians and six terminal patients--who later died from diseases including AIDS and cancer. Kevorkian has no connection to these cases.

Emotion dominates discussion of assisted suicide, but the issue will play out before the Supreme Court as a constitutional clash between personal autonomy and the state's interest in preserving life. "I don't see this as suicide," says Dr. Timothy Quill, the lead plaintiff in the New York case. "These people feel their self is being destroyed by their illness. They view death as a form of self-preservation." Opponents, an ideologically eclectic group ranging from the Clinton administration to the Roman Catholic Church, are equally adamant that assisted suicide--even when voluntary and done by a patient's own hands--would cross the moral border into state-sanctioned killing.

Proponents will have the luxury of advancing several legal arguments, based on different rulings by the two appeals courts. First they will argue, as the San Francisco-based Ninth Circuit declared in an expansive ruling, that assisted suicide is a "fundamental right" protected by the 14th Amendment's due-process clause--which traditionally means the state needs compelling reasons to deprive "any person of life, liberty or property." What counts as a fundamental liberty? This is where the nine justices get to read what they want into the Constitution. Supporters of assisted suicide, echoing the high court's 1992 ruling reaffirming abortion, said matters involving "the most intimate and personal choices" are protected under the 14th Amendment. What can be more personal, supporters contend, than the decision to end one's life in its final, painful days?

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Maybe so, but opponents deride the abortion analogy as irrelevant. They want the court to apply a different, more conservative test of what constitutes a fundamental right: is the prospective right deeply rooted in the "traditions" of the nation, as the court once spelled out? In that test, they contend, assisted suicide flunks. Suicide has long been scorned (even if it's no longer illegal) and assisted suicide outlawed.

If the court wants to refrain from declaring a new right, supporters might have an easier argument under the more modest New York ruling. The Second U.S. Circuit Court of Appeals based its decision on the 14th Amendment's equal-protection clause. In 1990 the Supreme Court recognized a constitutional right to forgo unwanted medical treatment. The Second Circuit found no rational distinction between allowing patients on life support to have a doctor pull the plug to hasten death, and providing lethal medication to dying patients.

Opponents see a moral line--between an active act by a physician to kill and passively letting nature take its course so that the underlying disease causes death. Others, like Michigan law professor Yale Kamisar, fear that obliterating the line would open the constitutional door for doctors to prescribe lethal drugs even to patients without terminal illnesses.

The heart of the states' argument is their traditional ob-ligation to protect vulnerable groups like the elderly and the poor. They contend that such patients--who may have treatable depression or pain--might be coerced into assisted suicide by cost-conscious family members or their doctors. But Harvard law professor Laurence Tribe, who will argue the New York case, says the answer is to regulate against potential abuses, not to shut off a con- stitutional right. Indeed, many doctors already assist in their patients' suicides clandestinely. If the public is afraid of "unleashing Kevorkian's clones on the world," he says, the existing laws don't work, either. (Kevorkian has never been convicted of a crime.)

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For court watchers the case is significant beyond matters of life and death. The decision, not expected until summer, could allow the Rehnquist court to step out and expand the notion that new rights can be read into the 14th Amendment. But the more likely course for this relatively conservative court is to deny any right to assisted suicide--and in so doing sharply restrict the right to privacy. That would be equally momentous, because it could signal a chipping away of the constitutional underpinning of Roe v. Wade, the case that legalized abortion. Little wonder this week's argument will be watched so nervously by liberals and conservatives alike.

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