Physician aid in dying: within some of our lifetimes?

On June 26, 1997, in a pair of unanimous decisions, the U.S. Supreme Court upheld the right of states to ban assisted suicide and declared that terminally ill Americans have no protected right under the U.S. Constitution to physician aid in dying. In so ruling, the Court struck down two decisions from New York and Washington State appellate courts (the jurisdictions of which represent one-third of the American population) that had declared a constitutional right to physician aid in dying for terminally ill, mentally competent adults.

Now advocates of physician-assisted suicide must address several fundamental questions. What did the justices actually say? What does this decision mean in terms of its practical application? And, perhaps most critical, where do we go from here?

I posed these questions to a number of those directly involved in the Supreme Court case, as well as to some other leaders in the right-to-die movement. Brief excerpts from some of their responses follow.

Said Kathryn Tucker, the Seattle attorney who directed the Washington State challenge from its inception:

Well, we didn't make the touchdown, but we carried the ball some distance down the field.... I believe that the next focus of the right-to-die movement should be on seeing that Oregon's proposed physician-assisted suicide statute is approved and implemented. Then we can put to rest many of the ridiculous predictions of our opponents by demonstrating that such laws can be implemented responsibly and safely.

We agreed that the High Court did clearly answer the question: Do terminally ill Americans have a generalized, inherent right under the Constitution to receive physician aid in dying? The Court's unanimous answer was no. And we agreed on the crucial question the Court did not answer: Might certain individual mentally competent, terminally ill patients have a right to request and receive physician-assisted suicide?

We disagreed about whether the first state assisted-suicide law would face legal challenges from our opponents. Tucker feels that, in view of the High Court's encouragement to the states to experiment with such laws, opposing forces would see the futility of a challenge and forego it. I, on the other hand, feel certain that the National Right to Life Committee will have little choice. Failing to aggressively challenge any law legalizing physician-assisted suicide would put its financial support base at serious risk. When one also considers the limitless coffers of the Roman Catholic Church and the American Medical Association's growing alarm at this threat to the power and control of doctors, it seems to me a foregone conclusion that every possible avenue of legal challenge to physician aid in dying will be pursued.

Tucker correctly reminded me that, technically, we also have another option -- one she doesn't feel could be successful "for a while." We can bring challenges against bans on assisted suicide under state constitutions. The state constitutions of both California and Washington would be well suited for this sort of challenge, as both have long been recognized to provide greater privacy protection than that covered by the U.S. Constitution. Just such a challenge is, in fact, now being attempted in Florida. So far, a lower court has ruled that the state has no business prolonging the "pain and suffering" endured by Charles Hall, an AIDS patient. The case is now on appeal to the Florida Supreme Court. Winning a case such as this one would, of course, further the cause. But in practical application, the ruling would apply only to this individual patient.

Barbara Coombs Lee, executive director of Compassion in Dying, declared:

Tell right-to-die supporters not to abandon hope, as there is more good in the Court's decision than bad. It is true that we have failed to establish a recognized constitutional right to assisted suicide and that this decision does not provide immediate help to suffering patients who want to end their agony. But in this decision, the Court clearly recognized the needs of dying people and authorized the future use of rather extraordinary measures to meet them. Clearly, five justices would probably have been willing to go further if the case had been differently structured. We have a long campaign ahead in which we must directly engage three formidable opponents: the Roman Catholic Church, the National Right to Life Committee, and the American Medical Association.

Tom Preston, a Seattle cardiologist and one of the doctor plaintiffs in the Washington challenge, was not heartened. "I think we're going to see more and more doctors edging closer to this," he said. "But they must still be very cautious, so it will continue to be done covertly." I had to agree that, in practical application, we can expect little, if any, positive change as a result of this Court decision. In fact, it may even have a negative and chilling effect on the medical community.

Faye Girsh, executive director of Hemlock USA, said:

We are disappointed but not surprised by the Court's decision. For Hemlock, it's back to business as usual. Since 1988, we have been attempting to introduce responsible legislation on a state-by-state basis. At least nineteen state legislatures have introduced physician aid in dying legislation, several of which are still pending. The Oregon initiative will be on the ballot again in November, hopefully to repeat their former success and become the first state to change the law through the legislative process.

When I asked my friend and colleague Susan Dunshee, president of Compassion in Dying, what she would like to say to her group's supporters in the wake of the decision, her answer was immediate. "Tell them to be of good cheer," she said. "We will forge ahead. If we must win this right state by state, then so be it. I have every confidence that we will see legalized assisted suicide for the terminally ill in this country within some of our lifetimes."

During the course of these conversations, I was also reminded of several devastating things the High Court could have done but didn't. The justices could have easily set the cause of death with dignity back thirty years by seizing the opportunity to create a federal ban on physician-assisted suicide. (Some right-to-die activists, indeed, had feared that taking this issue to the current Court might lead to just such a disaster.) Instead, the justices were genuinely sympathetic, even encouraging legislative experiments and future legal challenges.

Several of the justices revealed a belief that all terminally ill patients have access to palliative treatment to end pain, even if it also leads to death. (We must be sure to address the concept of unrelievable pain in any future challenges.) Justice Stephen Breyer, in particular, revealed a shocking naivete, writing that it is unnecessary to protect dying patients from state laws banning assisted suicide because "there is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths." Thus he concludes, "The laws before us do not force a dying person to undergo that kind of pain." After several readings, I'm convinced that Breyer's insulated viewpoint also encompasses a sincere belief that assisted suicide is currently available and being routinely performed. (This would tend to confirm the unsettling impressions of several Seattle observers who attended the oral arguments in January 1997, that the justices' comments and questions revealed a dangerous lack of general knowledge about the issues involved.)

But to make matters worse, William Rehnquist and several other justices gave legitimacy to some of the claims of our opponents by writing of their concerns about "the slippery slope," "a possible slide towards voluntary and perhaps involuntary euthanasia," the state's right to prevent "Netherlands-style euthanasia," the possible applications to the disabled, and a problem of coerced assisted suicide.

All the written opinions drew a sharp line between the right to refuse treatment and the right to request help in dying. "Letting" people die is permissible; actively hastening death, even at their express request, is not.

Since five of the opinions invited legislative reform, a review of the current status of Oregon's Measure 16 is in order. Opponents have asked the Supreme Court to hear a challenge to its constitutionality during the Court's next term. It is unlikely, however, that the Court will choose to do so. Meanwhile, the Oregon legislature has invoked its power to call a special election scheduled for this coming November), asking voters to repeal the initiative they passed in late 1994. Everyone agrees that this will become a campaign of unprecedented ferocity as groups opposing the measure pump tremendous amounts of money into the effort to defeat it.

If state laws banning assisted suicide (currently on the books in forty-four states) are to be changed legislatively, either a determined citizenry will have to gather the thousands of signatures needed to put the issue on statewide ballots (in states which have an initiative process) or state legislators will have to display unprecedented courage by wading into a highly charged emotional issue to rewrite state laws. The former would require tremendous resources and probably shouldn't be attempted in the near future, and the latter seems very unlikely. By whatever method this is achieved, we must be prepared for the legal challenges which will then ensue.

No other state is currently considering legislation similar to that of Oregon, but twenty-one state legislatures this year considered bills dealing with pain treatment for dying patients, and the AMA has introduced a long-overdue major palliative care initiative. We realize that these advancements are significant. Improvements in education and treatment are essential, but they will not be sufficient. There will always be patients whose suffering cannot be adequately alleviated and who prefer to end their lives rather than prolong their suffering.

As for myself, on the one hand, I am aghast and dismayed that the Supreme Court has unanimously decided that controlling the time and manner of one's own death does not belong among the constitutional freedoms enjoyed by Americans -- that, in Rehnquist's words, "This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults." It is heartbreaking to review the two previous circuit court rulings (both reversed by this decision), as each is a rare and eloquent statement in defense of the ultimate human right to die with dignity, as well as a declaration of a constitutional right of Americans to do so.

On the other hand, since I have always been among those who have had grave reservations from the beginning about appealing an assisted suicide challenge to the current Supreme Court, I am tremendously relieved -- and more than a little surprised -- that the justices did not deliver a blow of far greater damage to our cause.

Nonetheless, we must face the fact that the task of striking down or legislatively eliminating state laws banning assisted suicide won't be any easier now that the Court has unanimously upheld them. And if the terminally ill have no fundamental liberty interest in controlling their deaths under the Constitution, on what solid basis can we defend state legislation permitting assisted death whenever it is legally challenged by our opponents?

The fact that the three original dying plaintiffs had already died compelled the Court to rule on the broad notion of an individual constitutional right that outweighed states' rights to pass laws banning assisted suicide. But how can we mount a legal challenge on behalf of dying individuals (as the justices specifically suggest) and not encounter this problem again?

I also believe there is reason for legitimate concern that this ruling could lead to chaos as fifty states try to grapple with this sensitive issue in a myriad of ways. Of course, the democratic process itself is messy and somewhat chaotic. But the sheer magnitude of human suffering which hangs in the balance creates a particularly difficult situation.

As Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, said:

The Supreme Court, when it refused to recognize a right to assistance in dying, flung open the door to what will become a prolonged, heated societal debate about the morality of assisted suicide. I see this not as the end of anything, but as the beginning of what is going to take years to work through.

We will, of course, continue this struggle until we win. I think ten years is a reasonable estimate of the minimum amount of time it will now require to secure legal physician aid in dying in a few states. I realize that this is not an unusually long time relative to the historical progress of major social change. But I can't seem to stop thinking about every one of those years, months, weeks, days, and hours in terms of the human suffering and deterioration they will contain.

The continued participation and support of the humanist and freethought movements will be crucially important as we enter the new century. I confess that I'm having difficulty aspiring to Dunshee's exhortations to "be of good cheer," but I'll make up the difference in an attribute possessed in abundance by humanists and freethinkers: relentless determination. I trust that others of like mind will do the same.

Barbara Dority was the founding president of Compassion in Dying and is currently vice-president and newsletter editor of the Hemlock Society of Washington State. She is also president of Humanists of Washington and executive director of the Washington Coalition Against Censorship.