A MATTER OF LIFE AND DEATH : JUSTICES DEBATE ASSISTED SUICIDE.

Byline: Aaron Epstein Knight-Ridder Tribune News Wire

The crusade for doctor-assisted suicide, which has generated an impassioned and profound nationwide debate about nothing less than life and how it ends, appeared to falter badly Wednesday in the Supreme Court.

During two hours of brisk legal arguments, the justices repeatedly battered advocates of assisted suicide with forceful comments demonstrating the justices' anguish over the magnitude - and the risks - of permitting doctors to hasten the deaths of mentally competent, terminally ill patients.

Although predictions of court outcomes are risky, the majority of the justices appeared inclined to uphold state bans on physician-aided suicide.

If that happens, the controversy - perhaps the most significant to reach the high court since the abortion cases - would not end, but would shift to legislatures in the 50 states and to Congress.

If, on the other hand, the court endorses an unprecedented but limited constitutional right to assisted suicide, it would change the way many Americans die. Patients in agony and facing certain, imminent death could legally obtain lethal injections or drugs from their doctors.

Some of the justices have suffered the anguish of terminal illnesses in their own families. Chief Justice William Rehnquist's wife, Natalie, died in 1991 after a long battle with ovarian cancer. Justice Anthony Kennedy's sister, Nancy, died in 1980 of liver cancer.

The assisted-suicide issue is one of the most magnetic disputes to reach the high court in recent years. Hundreds of individuals and groups filed briefs, people lined up for hours to get seats, demonstrators on both sides of the issue paraded outside the court and more than 100 reporters covered the event.

Some of the justices' observations during the arguments showed concern that legalizing assisted suicide might find unintended victims and could not be controlled.

But, as usual, the justices were less concerned with the moral, ethical and religious aspects than the legal ones. Underlying their comments were recurrent themes of the conservative court: A reluctance to create new constitutional rights. An inclination to defer to the states. An unwillingness to invite a new flood of lawsuits.

Justice Sandra Day O'Connor observed that approving assisted suicide and leaving regulation to the states ``would result in a flow of cases through the court system for heaven knows how long.''

That path, Rehnquist said, would lead to ``constitutional problems in every case,'' as the abortion experience shows.

Justices David Souter, Antonin Scalia and Ruth Bader Ginsburg expressed similar concerns. Souter said courts might lack the knowledge at this point to weigh rationally the states' interest in preserving life against an individual's right to avoid suffering.

It may be, he told Kathryn Tucker, a Seattle lawyer for Compassion in Dying, the group spearheading the right-to-die movement in the Northwest, that ``as an institution we are not in a position to make the judgment now that you want us to make.''

When Harvard Law Professor Laurence Tribe, arguing for assisted suicide, said state legislatures have studied the subject like ``50 laboratories . . . operating with the lights out,'' Justice Anthony Kennedy rhetorically inquired:

``Do they have less light than we do?''

And when Tucker urged the court to protect individual liberties rather than bow to state legislatures, Kennedy brusquely replied:

``But you're asking us, in effect, to declare unconstitutional the laws of 50 states.''

All 50 states currently ban assisted suicide. Oregon has a new law that permits dying patients to obtain medicine to end their lives, but a federal judge blocked that law from taking effect.

In the two cases argued Wednesday, the Supreme Court will rule by July on the constitutionality of state laws in Washington and New York that ban assisted suicide.

Federal appeals courts 3,000 miles apart struck down those bans for different reasons.

A California-based court found in the 14th Amendment's guarantee of ``liberty'' an individual right of mentally able, terminally ill patients to hasten their deaths with a physician's assistance.

Judges in New York found it unconstitutionally discriminatory for states to permit some patients to die by requesting a cutoff of life-saving medical treatment, while forbidding others to die with a doctor's help.

Tucker, the lawyer for Compassion in Dying, urged the court to rule that dying people have a right to choose a ``dignified'' and ``humane'' death - and be entitled to assistance to carry out that choice. That right, she said, would be based on an individual's freedom to make personal decisions about his or her own body.

Scalia and Ginsburg asked how such a right could logically be limited to individuals on the threshold of death or those whose pain is purely physical.

Why, Scalia asked, couldn't the right be exercised by someone who has been in ``terrible pain for 10 years'' or has endured ``severe emotional suffering?''

Asked Ginsburg: ``Where should we draw the line?''

Individuals who are not terminally ill could recover and enjoy a rich and fulfilling life, Tucker replied. When patients are on the verge of certain death, she replied, their claim to individual autonomy is at its height and the state's interest in protecting life is at its lowest.

However, Acting Solicitor General Walter Dellinger, arguing against assisted suicide on behalf of the Clinton administration, said there would be no adequate safeguards to prevent a right to assisted suicide from being used to kill depressed people or dying patients whose pain is under control.

In a brief submitted to the court, Dellinger said assisted suicide could easily take the lives of people who aren't competent to request lethal medication, whose request is not truly voluntary, who are not terminally ill, whose pain hasn't bFeen adequately treated, or who are under pressure from relatives eager to cut health costs or end a loved one's debilitated existence.