Florida court recognizes right to die under state constitution.

A Florida judge recently became the first state jurist to recognize a constitutional right to die--an issue at the center of one of the most eagerly awaited U.S. Supreme Court decisions in years.

The question before the Supreme Court is whether the federal Constitution grants a person the right to end his or her own life with the help of a physician. But the Florida court, considering the plea of a dying man suffering the late stages of AIDS, declared unequivocally in January' that under certain circumstances, the state constitution's privacy' amendment affords a right to physician-assisted suicide.

"The state has a clear interest in preserving life, but not at the unbridled expense of individual autonomy in matters concerning a person's medical treatment decisions," wrote Circuit Judge S. Joseph Davis Jr. (McIver v. Krischer, No. CL-96-1504-AF (Fla, Palm Beach County Cir. Ct. Jan. 31, 1997).)

Davis held that under the circumstances of the case, Florida's law prohibiting assisted suicide violates both the state constitution's privacy provision--one of the strongest in the nation--and the U.S. Constitution's guarantee of equal protection. The judge noted that doctors may legally disconnect life-support systems at the request of terminally ill patients and may prescribe medication to ease their suffering after feeding tubes have been removed.

"Yet, [prescribing] medication to produce a quick death, free of pain and protracted agony, [is] prohibited. This is a difference without a distinction," Davis wrote. "In those cases where a competent, terminal patient chooses to hasten his death, the state has little interest in preventing this type of suicide."

Davis issued an injunction barring the state attorney from prosecuting Dr. Cecil McIver if he ultimately provides the plaintiff, 35-year-old Charles Hall, with a fatal dose of medication to end his life. He emphasized that the decision applies only to Hall, "a competent adult who is terminally ill, imminently dying, and acting under no undue influence."

Florence Rivas of Boca Raton, one of Hall's attorneys, said the state constitution "goes about as far as you can go" in protecting individual privacy. "The voters said they wanted the government off their backs and out of their lives, and the Florida Supreme Court has taken that pretty literally," said Rivas. She and her husband, Robert Rivas, represented Hall and McIver in cooperation with the American Civil Liberties Union of Florida.

The state immediately appealed the decision. The appeals court certified the case directly to the Florida Supreme Court, where oral arguments are scheduled for May 8.

The appeal triggered an automatic stay of the ruling, which Davis vacated, saying Hall is not likely to live until the appeal is resolved. Leaving the stay in place, Davis said, would force Hall "to suffer a miserable and degrading death, deprived of that more dignified and comfortable end to which he is now legally entitled." The supreme court reinstated the stay, meaning McIver for now is still barred from helping Hall commit suicide.

Because the Florida court found a right to die in the state constitution, Davis's ruling--if upheld on appeal--would remain valid even if the U.S. Supreme Court finds no such federal right. The High Court's decision was pending at TRIAL press time. (Glucksberg v. State of Washington, No. 96-110, and Vacco v. Quill, No. 95-1858 (U.S. argued Jan. 8, 1997).)

RELATED ARTICLE: Correction

"Law and the Laboratory: Genetic Research Prompts Concerns About Bias" (TRIAL, Mar. 1997, at 12) incorrectly quoted Karen Rothenberg of the University of Maryland School of Law as saying the Health Insurance Portability and Accountability Act of 1996 does not apply to self-funded health plans. Rothenberg said that as a federal law, the act applies to all group health plans, including ERISA plans. Also, only a few state laws on genetic discrimination in health insurance apply exclusively to the sickle-cell gene trait. TRIAL regrets the errors.