"In the hands of the people:" recent victories of the death-with-dignity movement.

During recent months, right-to-die advocates have begun to see the results of 25 years of social, political, and legal struggle. Looking back at my July/August 1993 Humanist column announcing the formation of Compassion in Dying, I realize the incredible progress which has been made. Serving at the time as the organization's founding president, I wrote of our deliberations, our plans, and our hopes. But none of us could have foreseen the recent landmark events that have resulted from the dedicated efforts of educational organizations, legal advocates, tireless volunteers, generous financial supporters, and courageous individuals within the death-with-dignity movement.

Victory I

A major victory has been achieved with the ruling of the Ninth Circuit Federal Appeals Court striking down Washington State's law against "aiding" a suicide. This challenge by three dying patients and four Washington State doctors, initially sponsored by Compassion in Dying, was reheard en banc by 11 appellate court judges for the Ninth Circuit Court in October 1995. On March 6, 1996, by a vote of eight to three, the court held that the law violates the human rights of terminally ill, mentally competent adults who want the option of assisted death.

Federal Appeals Court Judge Stephen Reinhardt, principal author of the majority opinion, declared:

Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.

For someone, like myself, enamored of court rulings on issues bearing upon individual liberties, reading this 100-plus-page document may well prove to be a once-in-a-lifetime experience. There is nary a word too many or too few; no argument against physician-aid-in-dying unexamined or unrefuted; no point unsupported with meticulous care in extensive footnotes; no relevant legal precedent undocumented; no part of the historical framework omitted. In short, this is the most beautifully crafted and eloquent court ruling I've ever read. All of us who have worked for and supported the right to die with dignity in America have ample reason to rejoice in this eloquent declaration of human freedom and autonomy. However, the Washington state attorney general's office is apparently not of the same opinion; it has already announced the state's intention to appeal the case to the U.S. Supreme Court.

Victory II

In two separate trials in March and May of this year (his second and third, respectively), Dr. Jack Kevorkian was acquitted of charges stemming from his continuing efforts to help the terminally ill or those suffering from acute chronic pain put an end to their agony. Defense attorney Geoffrey Fieger successfully argued in both cases that his client's intent as a physician was to relieve intolerable suffering and that, for the people who requested Kevorkian's assistance, death was the only way to do so.

A measure of the state's willingness to stretch the rules in its efforts to stop Kevorkian was the fact that, after unsuccessfully prosecuting him under a law that was specifically passed to convict him, it reached back, in the third trial, to a 200-year-old unwritten "common law" prohibition against assisting suicide. This "common law," established centuries ago in Europe, was conveniently "upheld" by a Michigan Supreme Court decision in order to give the state another shot at putting Kevorkian in jail.

During testimony in his second trial, Kevorkian revealed more of his personal feelings than he has at any previous time:

My desire always is to aid the suffering human being as I would any suffering entity. When I wince at their suffering, I must do something. Even if I didn't wince, as a physician I must do something. It is never nice to see a human life ended. But when the agony ends, it ameliorates what I feel.

After his acquittal in March, Kevorkian was asked whether the jury's decision made him feel free to continue assisting suicides. Kevorkian responded: "I have always been free to do so and will continue to do so as long as I have my personal liberty." (This was no empty rhetoric, as it turned out: Kevorkian defiantly assisted a suicide while his third trial was still in progress!) Kevorkian went on: "This is the very essence of human autonomy, something that goes way beyond a so-called right, and I am honored as a healer to help any suffering patient whose condition medically warrants it."

Kevorkian also told reporters that assisting suicides for the rest of his life is not his aim: "What I really want is to set up a clinic and a research facility where we can get some good for humanity out of all this. I am a researcher at heart. My only wish is that some other doctors would be brave enough to join me."

Having carefully followed Kevorkian's late-life career and the responses of those who condemn him, I have learned one thing in particular: nothing is more feared or hated by those who hold established power than a genuinely righteous person--a person who knows he or she is right, who doesn't need or seek their approval, and who absolutely refuses to pay homage to their "superior" wisdom and authority. I believe that history will remember Jack Kevorkian as the truly great man he is. Future generations will look back at the appalling suffering of the dying in our time with the same horror we feel when looking back at barbaric "medical treatments" such as bleeding with leeches or inflicting circular burns over the entire bodies of those afflicted with certain "nervous disorders."

Victory III

On April 2, 1996, in 2uill v. New York, the Federal Appeals Court for the Second Circuit struck down two state laws prohibiting assisted suicide. Judge Roger J. Miner, writing for the majority, asked:

What interest can the state possibly have in requiring the prolongation of a life that is all but ended? And what business is it of the state to require the continuation of agony when the result is imminent and inevitable? The answer to these questions: None.

Predictably, New York State authorities have already announced that this decision, too, will be appealed to the Supreme Court.

I'm astonished by the number of national columnists and media pundits who have responded to these events with blatant fear-mongering. They actually seem to believe that we've been forced down this treacherous road by militant federal judges who have imposed these decisions on us quite suddenly without a full national debate and without the consultation of patients or doctors. Many say that the federal court system should not be permitted to issue rulings on such matters. These legal reforms, they say, should be left up to individual state legislatures!

Where have these people been living for the past 25 years? How could they be unaware of the vigorous national--and international--dialogue about this issue during that time? How could they not know that both these suits were brought by patients and doctors? For that matter, how could they have missed three aid-in-dying initiative attempts undertaken by the citizens of California, the 1991 grass-roots campaign for the Death with Dignity Initiative 119 in Washington State (supported by 47 percent of the state's voters), the Death with Dignity Act passed by Oregon voters in 1994, the intense public discussion generated by the media's sensationalistic coverage of Dr. Jack Kevorkian's every move, or the thousands of column inches (especially during the past five years) devoted to every aspect of this issue in newspapers, magazines, books, and prestigious medical journals nationwide?

For anyone who cares to look objectively into the opinions of the American public on this issue, there is evidence of increasing support revealed by numerous credible surveys. To name just two: the latest survey of doctors in Washington State found that over 50 percent supported the option of aid-in-dying for the terminally ill, and one recent public-opinion poll shows that 73 percent of American citizens agree.

The truth is self-evident: this profoundly intimate human-rights issue has finally become so compelling to the American people that the courts have had no choice but to address it. Judge Reinhardt acknowledges as much in the Ninth Circuit Court ruling when he writes:

In this case, by permitting the individual to exercise the right to choose, we are following the constitutional mandate to take such decisions out of the hands of government and to put them where they rightly belong: in the hands of the people.

No one proposes to force anything upon those who choose not to confront this issue and take responsibility for their fate. But a great many of us have labored for years to secure our human right to make a different choice.

It remains to be seen whether the Supreme Court will decide to hear either or both of these cases. Similar challenges are being brought in other states, which increases the likelihood that the High Court may consolidate and accept them. The current composition of the Court makes some of us extremely nervous about this possibility. It is conceivable that these nine justices could, in fairly short order, overturn 25 years of grassroots activism and destroy any hope of legal reform well into the foreseeable future. Personally, I believe that the best out-come for us would be for the Supreme Court simply to let these federal court decisions stand without comment. Then the next phase of our work can begin without further delay: the formidable task of helping to craft implementation procedures (with appropriate safeguards) through the legislative process.

We were in desperate need of the clarity and focus of these federal court decisions and the jury exonerations of Dr. Kevorkian. They have established a solid foundation upon which to build. As Judge Reinhardt wrote:

The Constitution and the courts stand as a bulwark between individual freedom and arbitrary and intrusive governmental power. Under our constitutional system, neither the state nor the majority of the people in a state can impose its will upon the individual in a matter so highly central to personal dignity and autonomy.

We couldn't ask for a better statement of principle as we continue our work to gain the ultimate civil right: the right to die with dignity, in our own time and on our own terms.