Contrary to the startling opinion of appellate Judge Stephen Reinhardt for the U.S. 9th Circuit Court of Appeals in San Francisco, there is no constitutional right to commit suicide. Neither the foundational principles of the American republic nor the common law sustain Reinhardt's reasoning. The U.S. Supreme Court has shown little hesitancy in reversing this judge in the past, and for the sake of a culture and a community increasingly scarred by senseless death, the court should do so again.
The Reinhardt opinion arose in a case challenging a Washington statute that makes it a crime to promote the suicide of another. An appellate panel earlier rejected the challenge, but Reinhardt reversed that decision with the proposition that the right to choose death is simply an aspect of personal choice.
Nominally, the Reinhardt opinion is limited to the terminally ill, but once the right to take one's life is claimed as a matter of personal liberty, it will prove difficult to limit. The category of terminally ill, itself, is vague at its core. A terminal illness can vary from days to years with AIDS and some forms of cancer. Other illnesses related to heart disease are curable with a transplant; are they terminal illnesses? There is much wisdom in the sentiment that life itself is a terminal condition.
Reinhardt's newly minted suicide right has no support in the two centuries of our constitutional existence. It is a prime example of judicial lawmaking unknown to the common law and antithetical to human life. The Declaration of Independence declares life an "unalienable right." And unalienability precisely means that life is incapable of being forfeited or transferred by anyone.
Beyond its distortion of the Constitution and disregard of the "self-evident" truths in our declaration of national purpose, the invented suicide right is a serious affront to the democratic process. In this, it is not surprising that Reinhardt finds his principal support in the rulings on abortion. However one may feel about that emotional issue, it is plain that the intervention of federal judges here, as there, imperiously preempts the democratic decision-making of state and local governments, a majority of which treat assisting suicide as a crime, not a liberty.
Tragically, the existence of the putative suicide right puts enormous psychological pressure on the elderly and the disabled. We do what the doctor orders, and as a New York commission found, "Once the physician suggests suicide or euthanasia, some patients will feel that they have few, if any alternatives, but to accept the recommendation."
This is especially true of the poor. Pain can be a strong encouragement for suicide, and the poor have far less means of alleviating severe pain. In these days of reduced public expenditure, there is but a short distance between the false proclamation of a personal suicide right and the generalized calculation that this might well reduce the overall cost of public assistance.
The law has always recognized a right to be let alone in the sense of allowing each of us to avoid infliction of medical procedures against our will. Faith traditions differ as to when medical assistance can be morally declined, with many drawing the line at extraordinary care of no benefit to the patient. But neither the law nor morality has ever likened the informed withdrawal or withholding of useless or extraordinary medical treatment with assisted suicide.
The doctors and family members who seek the right to take the lives of others no doubt are motivated by a desire to end horrendous suffering. In this, they act out of compassion. But compassion is not the totality of life. Indeed, compassion can lead to tragedy when it is unguided by the common sense of the common law and restraining virtue. Reinhardt proclaims himself for freedom. But freedom untethered from responsibility is license--even, apparently, license to kill.