No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. -The 14th Amendment, U.S. Constitution
When America's founders ratified the 14th Amendment due process and equal protection clauses in 1868, they most likely never anticipated that 129 years later it would become the basis for a claimed "right to die." To the contrary, when the amendment was enacted, assisted suicide was banned in most states, a body of law that essentially still remains in place to this day.
During the past several years, however, in a dramatic about-face that altered centuries of jurisprudence, proponents of physician-assisted suicide for mentally competent, terminally ill patients were able to convince two U.S. Courts of Appeal that the bans violated the 14th Amendment, and that state laws in Washington and New York outlawing the practice should be struck down.
But in a long-awaited decision that culminated often anguished public debate and agonizing over moral and ethical concerns, the U.S. Supreme Court in June reversed the opinions handed down by the 2nd and 9th Circuit Courts of Appeal and held unequivocally that there is no constitutional "right to die." Yet, despite the unanimous rulings in Washington et al. v. Glucksberg et al. (Case No. 96-110) and Vacco, Attorney General v. Quill et al. (Case No. 95-1858), the controversy over physician-assisted suicide will now spread, as each of the 50 states becomes a separate battleground. Chief Justice William H. Rehnquist, writing for the court, said as much.
"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide," he said. "Our holding permits this debate to continue, as it should in a democratic society."
The reason the controversy will survive the high court rulings is because the states were given the go-ahead to enact laws outlawing assisted suicide, but were not prevented from passing legislation that would permit the practice. Ultimately, the court said that whether a person has a right to die is not a constitutional issue, but rather a personal one, subject to prohibition or regulation as each state sees fit.
Rehnquist, who also wrote the majority opinion in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 833 (1992), the landmark case that established a constitutionally protected right to refuse lifesaving treatment, is no stranger to the suffering of a terminally ill patient. In 1991, his wife of 38 years, Natalie, died of ovarian cancer after a nine-year battle with the disease. "Natalie wouldn't have had her death hastened," said Ruth Sawday, Natalie's sister, in a telephone interview reported in a June 1997 New York Newsday article. "She never would have had doctor-assisted suicide." Nevertheless, Sawday also said that while she never discussed the issue with the chief justice, she didn't know whether his wife's death affected his decision-making, calling him a "thinker unto his own."
In striking down the Washington and New York laws that prohibited assisted suicide, both Courts of Appeal relied heavily on Cruzan, reasoning that hastening death with medications prescribed by physicians was essentially no different than the constitutionally protected right to refuse lifesaving treatment. The 9th Circuit ruling in Compassion in Dying v. Washington, 79 F.3d 790,798 (1966), for instance, found after weighing and balancing the liberty interests "in controlling the time and manner of one's death" that there is "a constitutionally recognized 'right to die.'"
The Supreme Court, however, rejected the Appellate Courts' expansive interpretation of Cruzan, drawing a sharp distinction between committing suicide and exercising the right to refuse treatment.
"The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct," Rehnquist wrote. "In Cruzan itself, we recognized that most States outlawed assisted suicide-and even more do today-and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide."
The distinction is exactly the one the American Medical Association hoped the court would make. "We were very pleased with the court's decision," said Thomas Reardon, M.D., and Oregon physician who is the chairman of the AMA's board of trustees. "We feel they made a distinction between letting a patient die and the active taking of a life or killing a patient, and that's a very important distinction."
In 1994, voters in Reardon's home state of Oregon passed Measure 16 by a narrow 51 percent margin, becoming the only state in the nation to approve state-regulated physician-assisted suicide for the mentally competent terminally ill. Implementation of the law has been tied up in the courts, however, and this November voters will see the issue on the ballot again after the legislature approved yet another initiative dealing with the issue.
Reardon said that opponents of physician-assisted suicide are gearing up for the coming battle this fall, and have organized strong opposition to the new initiative. In the previous election, the Oregon Medical Association remained neutral on the issue, but has since come out against Measure 16.
Psychiatrists and other mental health practitioners who conduct competency evaluations prior to a physician-assisted suicide will be plagued by novel ethical issues, Reardon predicted. The same questions that surround a physicians' mental status evaluation prior to imposition of a death penalty will have to be answered before a psychiatrist can say that a person is sane enough to commit suicide.
For six former presidents of the American Psychiatric Association, however, "not all suicide is a sign of mental illness, although in most cases it is." In a three-page statement released publicly in April 1997, former APA presidents Henry W. Brosin, M.D. (1967), Lawrence C. Kolb, M.D. (1968), Judd Marmor, M.D. (1975), Paul J. Fink, M.D. (1988), Lawrence Hartmann, M.D. (1992) and Mary Jane England, M.D. (1995), announced their support for "physician aid in dying" so long as there were "safeguards for patients and physicians."
Saying it is "wrong to turn our back" on suffering, terminally ill patients, the psychiatrists added that "we cannot agree that all pain can be successfully treated, nor that because suffering can be redemptive it must be endured." They said that by giving patients the promise of physician aid in dying, desperate suicides while a patient is still capable could be prevented, thereby prolonging life.
The APA Board of Trustees in March decided to support the AMA in its stance against assisted suicide, and filed an amicus curiae brief encouraging the court to permit laws banning the practice. According to the statement by the six former APA presidents, however, the decision "was made in relative haste without debate among the membership or even the assembly."
E. James Lieberman, M.D., a Washington, D.C.-based private practice psychiatrist and spokesperson for the former presidents, acknowledged that the statement was distributed to all 20 surviving past APA presidents, but that only six would sign it. He heads a 10-person discussion group that includes five psychiatrists called ELI-standing for End of Life Issues-which meets informally to discuss death-and-dying matters. Although he recognizes that there is strong opposition to physician-assisted suicide, he also said there are some patients whose interests are not being served by the ban and that further analysis of the pros and cons are warranted.
Jerry Wiener, M.D., a professor of psychiatry at George Washington University Medical School and a former APA president, said that the vast majority of the board of trustees voted to support the AMA position. "That doesn't mean there won't be further discussion and debate about this within the APA, because that's the nature of the process," he said, "but the board in its majority vote did reflect the majority of the membership. If that's not the case, as a board we well know we will find out otherwise."
Justice Sandra Day O'Connor, who concurred in the majority opinion, predicted that the discussion will continue nationally, too.
"There is no reason," she wrote, "to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure."
Among the state interests that are appropriately served in banning assisted suicide, the Supreme Court said, is "preventing suicide, and+studying, identifying and treating its causes." Making physician-assisted suicide legal "could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses."