Assisted Deaths Ruled Legal : 9th Circuit Lifts Ban on Doctor-Aided Suicide

For the first time in U.S. history, a federal appeals court on Wednesday ruled 8-3 that a mentally competent, terminally ill adult has a constitutional right to utilize a doctor’s assistance in hastening his death.

Stepping boldly into “a controversy that may touch more people more profoundly than any other issue the courts will face in the foreseeable future,” the U.S. 9th Circuit Court of Appeals in San Francisco held that the Washington law that makes physician-assisted suicide a felony is a denial of due process of law under the 14th Amendment to the federal Constitution.

“A competent, terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incompetent,” appellate Judge Stephen Reinhardt of Los Angeles wrote in his majority opinion. “If broad general state policies can be used to deprive a terminally ill individual of the right to make that choice, it is hard to envision where the exercise of arbitrary and intrusive power by the state can be halted.”

Reinhardt’s analysis relies heavily on language drawn from U.S. Supreme Court abortion cases because the issues have “compelling similarities,” he wrote.

The decision, which may become the Roe vs. Wade of “right to die” jurisprudence, is applicable in nine western states, including California. This means that California’s ban on assisted suicide, which is comparable to Washington’s, is also unconstitutional.

Enhancing its magnitude, Wednesday’s ruling states that in addition to doctors, others “whose services are essential to help the terminally ill patient obtain and take” medication that will hasten death are covered by the decision and thus are not to be prosecuted. They include pharmacists who fill the prescriptions and family members who assist the patient.

The three judges in the minority wrote separate dissents. The lengthiest was by Robert Beezer of Seattle, who contended that Reinhardt incorrectly extrapolated from prior abortion rulings and predicted that the decision would have negative consequences for society.

Washington officials said they are considering an appeal to the U.S. Supreme Court.

USC constitutional law professor Erwin Chemerinsky said he thought the possibility of Supreme Court review is high because of the sweeping nature of the ruling.

“It is a dramatic change in the law in allowing people to not only refuse medical treatment but to take affirmative steps to hasten the end of life,” Chemerinsky said. “Potentially, this decision affects all of us someday.”

Although the decision has no immediate impact on the pending criminal trial of Dr. Jack Kevorkian in Michigan, its rationale would provide a strong defense for the conduct of Kevorkian, who has become a lightning rod nationally in the debate over the merits of physician-assisted suicide. Kevorkian has filed a constitutional challenge to California’s assisted suicide ban in Los Angeles federal court and a judge has deferred action pending the 9th Circuit’s ruling in the Washington case.

The ruling immediately intensified the controversy over assisted suicide. Praise came from civil libertarians and AIDS organizations and criticism from the American Medical Assn. and the Catholic Church.

Abortion Rulings Cited

Wednesday’s ruling reinstates a 1994 decision by U.S. District Judge Barbara Rothstein in Seattle. She agreed with the contentions of three terminally ill patients, four physicians who regularly treat such patients and Compassion in Dying, a nonprofit organization that provides support, counseling and assistance to mentally competent, terminally ill adults considering suicide. Rothstein found that Washington’s law violated due process and placed an undue burden on people seeking to hasten their death with the help of a doctor. (The three patients died while the case was pending.)

Nearly a year later, Rothstein’s ruling was overturned 2 to 1 by a panel of 9th Circuit judges, whose majority opinion stressed, “in the 205 years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction.”

Soon thereafter, the plaintiffs’ attorney, Kathryn L. Tucker of Seattle’s Perkins Coie, persuaded the 9th Circuit to grant a rehearing before a larger panel of judges, setting the stage for Wednesday’s ruling.

“I’m really pleased by the decision,” Tucker said Wednesday.

William L. Williams, Washington’s senior assistant attorney general, said his office will take a while to decide whether to appeal to the Supreme Court. “Obviously, we’re disappointed. . . . The court seemed to understand that as difficult an issue as it is . . . it belongs to the people through the initiative or through their elected representative.”

Writing for the majority, Judge Reinhardt acknowledged the decision’s gravity:

“This case raises an extraordinarily important and difficult issue. It compels us to address questions to which there are no easy or simple answers, at law or otherwise. It requires us to confront the most basic of human concerns--the mortality of self and loved ones--and to balance the interest in preserving human life against the desire to die peacefully with dignity. People of good will can and do passionately disagree about the proper result, perhaps even more intensely than they part ways over the constitutionality of restricting a woman’s right to have an abortion.”

In a lengthy and scholarly opinion, Reinhardt acknowledged that the liberty interest recognized by the majority “must be weighed against the state’s legitimate and countervailing interests, especially those that relate to the preservation of human life.”

But Reinhardt said the state’s interest in preserving life “is not always controlling.”

“As the laws in state after state demonstrate, even though the protection of life is one of the state’s most important functions, the state’s interest is dramatically diminished if the person it seeks to protect is terminally ill or permanently comatose and has expressed a wish that he be permitted to die without further medical treatment. . . . When patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the state’s interest in forcing them to remain alive is clearly less compelling.”

Reinhardt said the Supreme Court’s 1992 decision in Planned Parenthood vs. Casey, which upheld the basic right to legalized abortion established by Roe vs. Wade, provided “a powerful precedent” for Wednesday’s decision.

“The fundamental message of that case,” Reinhardt wrote, “lies in its statements regarding the type of issue that confronts us here: ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment.’ ”

Reinhardt added, “Like the decision of whether or not to have an abortion, the decision how and when to die is one of ‘the most intimate and personal choices a person may make in a lifetime,’ a choice ‘central to personal dignity and autonomy.’ ”

Reinhardt frequently cited Supreme Court Justice Sandra Day O’Connor’s opinion in the Planned Parenthood case, including passages that argue that the reach of the due process clause has expanded numerous times since it was enacted in 1868.

The majority also relied on the Supreme Court’s 1990 Cruzan decision that permitted the withdrawal of life-sustaining medical assistance under some circumstances. “We conclude that Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one’s death.”

Dissenting Opinion

Beezer, based in Seattle, wrote the dissent on what he called “one of the most difficult, divisive and heart-wrenching issues” facing the courts and American society today.

“Given the tremendous advances in 20th century medical technology and public health, it is now possible to live much longer than at any time in recorded history,” Beezer wrote. “We have controlled most of the swift and merciful diseases that caused most deaths in the past. In their place are a host of diseases that cause a slow deterioration of the human condition: cancer, Alzheimer’s disease and AIDS are but a few.

“This change has forced us to step back and reexamine the historic presumption that all human lives are equally and intrinsically valuable,” Beezer stressed. “Viewed most charitably, this reexamination may be interpreted as our struggle with the question whether we as a society are willing to excuse the terminally ill for deciding that their lives are no longer worth living. Viewed less charitably, the reexamination may be interpreted as a mere rationalization for housecleaning, cost-cutting and burden-shifting--a way to get rid of those whose lives we deem worthless.”

Beezer said that this dilemma ought to be resolved by the nation’s citizens, either in the voting booth or in the legislature, on a state-by-state basis. “To declare a constitutional right to physician-assisted suicide would be to impose upon the nation a repeal of local laws,” he said.

Thirty-three states have statutes formally prohibiting such suicides. The District of Columbia and 10 other states have banned them by case law. The law is unclear in six states, according to Choice in Dying, a New York-based information group. In 1994, Oregon voters enacted the only statute in the nation permitting physician-assisted suicide. But a federal trial judge ruled it unconstitutional last year, a decision that is currently on appeal, as is a federal court ruling in New York that rejected a suit similar to the one filed in Washington.

To support the majority’s position that the Washington law imposed an undue burden on terminally ill patients and those seeking to help them end their lives, Reinhardt quoted declarations submitted under oath by the four physician plaintiffs. For example, Dr. Peter Shalit said that he wanted to help a terminal AIDS patient who “begged for assistance” to hasten his death, but Shalit felt he could not act because of the Washington law.

Shalit said his patient “lingered in the hospital for weeks, his lower body so swollen from oozing Kaposi’s lesions that he could not walk, his genitals so swollen that he required a catheter to drain his bladder, his fingers gangrenous from clotted arteries. Patient Smith’s friends stopped visiting him because it gave them nightmares. Patient Smith’s agonies could not be relieved by medication or by the excellent nursing care he received. . . . He died after having been tortured for weeks by the end-phase of his disease.”

Reinhardt said that although the Washington statute deterred physicians from prescribing drugs for the purpose of hastening death, it had not necessarily deterred the patients who requested drugs from committing suicide by other means.

In this regard, Reinhardt cited the declaration of a woman who said her terminally ill father killed himself in a secretive and lonely fashion in order to spare his family from possible criminal charges if they helped him hasten his death. She described her father’s death this way:

“When he realized that my family was going to be away for a day, he wrote us a beautiful letter, went down to his basement, and shot himself with his 12-gauge shotgun. He was 84. . . . My son-in-law then had the unfortunate and unpleasant task of cleaning my father’s splattered brains off the basement walls.”

‘The Right to Choose’

In essence, the majority framed the issue as removing the government from an intensely personal sphere.

“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 the government, both state and federal, and to put them where they rightly belong, in the hands of the people,” Reinhardt wrote.

In this regard, Reinhardt wrote that “until relatively recently, while physicians routinely helped patients to hasten their deaths, they did so discreetly because all such assistance was illegal.”

Beginning about 20 years ago, Reinhardt noted, “a series of dramatic changes took place,” which gave individuals greater control in how and when they die, “in part as a result of legal actions and in part as a result of a growing recognition by the medical community and society at large that a more enlightened approach was essential.”

A 1976 case first drew national attention to these issues. The New Jersey Supreme Court ruled unanimously that the mechanical respirator keeping Karen Anne Quinlan alive could be disconnected if her attending physicians and a panel of hospital officials agreed that there was “no reasonable possibility” that she would recover from extensive damage she suffered when she suddenly stopped breathing a year earlier.

The same year, California became the first state to legalize by statute a patient’s right to refuse life-prolonging treatment when the state Legislature enacted the Natural Death Act, which permits “living wills,” a directive requesting that a doctor withhold or withdraw certain life-sustaining treatment.

In reality, Reinhardt said that numerous doctors, at the request of their patients, have gone further by utilizing morphine drips to relieve pain in dosages sufficiently high that death was inevitable. Reinhardt chided the American Medical Assn. for maintaining what he called a specious distinction between permissible “double effect” procedures--pain alleviation leading to death--and impermissible “single effect” procedures--prescribing medicine with the direct intent of causing death at the patient’s request.

Reinhardt’s analysis of those developments led him to one of the most crucial elements of the ruling. He rejected the Washington attorney general’s contention that there is a significant legal distinction between withdrawing life-sustaining medical assistance such as a respirator or a feeding tube and the prescription or administration of life-ending medication.

“The line between commission and omission is a distinction without a difference now that patients are permitted not only to decline all medical treatment, but to instruct their doctors to terminate whatever treatment, artificial or otherwise, they are receiving,” Reinhardt wrote. “In disconnecting a respirator, or authorizing its disconnection, a doctor is unquestionably committing an act; he is taking an active role in bringing about the patient’s death.”

Dissenter Issues Warning

Reinhardt, a staunch liberal appointed by President Jimmy Carter, was joined by seven other judges. Five--James Browning, Procter Hug, Mary Schroeder, Betty Fletcher and Harry Pregerson--were appointed by Democratic presidents and two--Charles Wiggins and David Thompson--appointed by Republican presidents. All three dissenters--Beezer, Ferdinand Fernandez and Andrew Kleinfeld--were appointed by Republican presidents.

Beezer warned at the end of his dissent that Wednesday’s ruling could create a death-oriented culture. “If physician-assisted suicide for mentally competent, terminally ill adults is made a constitutional right, voluntary euthanasia for weaker patients, unable to self-terminate, will soon follow,” he predicted.

“After voluntary euthanasia, it is but a short step to a ‘substituted judgment’ or ‘best interests’ analysis for terminally ill patients who have not expressed their constitutionally sanctioned desire to be dispatched from this world,” Beezer wrote. “This is the sure and inevitable path. . . . It is not a path I would start down.”

Beezer asserted that the poor and minorities would be particularly vulnerable to pressure to end their lives early. His opinion quotes the 1994 New York State Task Force on Life and the Law which came out against sanctioning physician-assisted suicide:

“It must be recognized that assisted suicide and euthanasia will be practiced through the prism of social inequality and prejudice that characterizes the delivery of services in all segments of society, including health care. Those who will be most vulnerable to abuse, error or indifference are the poor, minorities and those who are least educated and least empowered.”

Reinhardt took issue with virtually all of Beezer’s positions. “The argument that disadvantaged persons will receive more medical services than the remainder of the population in one, and only one area--assisted suicide--is ludicrous on its face,” he wrote.

“Nor is it likely that the disabled will be pressured into committing physician-assisted suicide. Organizations representing the physically impaired are sufficiently active politically and sufficiently vigilant that they would soon put a halt to any effort to employ assisted suicide in a manner that affected their clients unfairly.”

Reinhardt acknowledged that the risk of undue influence from “callous, financially burdened or self-interested relatives” or other individuals who have influence over an infirm or elderly person is real. However, he said that risk already exists and that Wednesday’s decision “would not increase that risk unduly.”

The state of Washington could deal with the risks and protect its legitimate interests “by adopting appropriate, reasonable and properly drawn safeguards,” Reinhardt wrote.

For example, he said the state might require witnesses to ensure voluntariness, reasonable, though short, waiting periods to prevent rash decisions, and second medical opinions to confirm a patient’s terminal status and also to confirm that the patient has been receiving proper treatment.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Right to Die Arguments

A federal appeals court struck down Washington’s ban on doctor-assisted suicide, declaring that the terminally ill have a constitutional right to a dignified and humane death.

MAJORITY

“There is a constitutionally protected liberty interest in determining the time and manner of one’s own death.”

--Judge Stephen Reinhardt

DISSENT

“If physician-assisted suicide for mentally competent, terminally ill adults is made a constitutional right, voluntary euthanasia for weaker patients, unable to self-terminate, will soon follow.”

--Judge Robert Beezer

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Briefs Supporting the Ruling

Man whose wife had a heart condition and suffocated herself: “She had to die alone. I was denied my right to be with her when she died. This is not right . . . A person has the right to control the conditions of their death as much as they have the right to control the conditions of their living.”

Woman whose father had lung cancer and shot himself: “This was a brutal and awful experience for my children and me. I felt a great deal of loss, anger and remorse about a system that would not allow my father to die gracefully and with dignity.”

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States Affected

At right, the nine states affected by the U.S. 9th Circuit Court’s ruling on doctor-assisted suicide.

ALASKA

ARIZONA

CALIFORNIA

HAWAII

IDAHO

MONTANA

NEVADA

OREGON

WASHINGTON

Sources: Times saff and wire reports