Supreme Court Test of Suicide Ruling Sought

Laying the groundwork for a major constitutional confrontation, the state of Washington declared Monday that it will appeal a groundbreaking federal appeals court decision permitting physician-assisted suicide.

Washington Atty. Gen. Christine Gregoire said she will ask the U.S. Supreme Court to take up the emotion-laden question because it is “a watershed issue of public policy that requires the review and analysis of our nation’s highest court.”

The move temporarily blocks enforcement of an 8-3 decision handed down just three weeks ago by the U.S. 9th Circuit Court of Appeals in San Francisco. It held that a mentally competent, terminally ill adult has a constitutional right to utilize a doctor’s assistance in hastening his or her death.

The action ignited a storm of protest from religious leaders, as well as from doctors and hospitals, even as supporters of assisted suicide applauded the decision as an act of compassion that allows the terminally ill to die without prolonged pain and suffering.

But on Monday, Gregoire said the substantive basis of Washington’s appeal--to be filed within 30 days--would not involve moral issues, but questions of states’ rights.

In a formal public statement, Gregoire reiterated Washington’s position that the state should be able to make public policy in this arena, not the federal judiciary.

“Throughout this litigation, we have defended the statute passed by the Legislature, and sought to protect the ability of our Legislature--or the people directly through the initiative process--to change the law,” Gregoire said. “That will be the basis of our appeal.”

Washington’s legal ban on physician-assisted suicide, which the 9th Circuit decision would void, has been on the books since 1854.

Legal scholars on both sides, as well as the Roman Catholic Church, which has a historic interest in the euthanasia question, predicted that the high court probably will accept the case when its next term begins in October, although it could take the case before its current term ends June 30.

Under the court ruling, Americans in the nine Western states covered by the 9th Circuit decision have a constitutional right to seek assisted suicide, while those in the other 41 states do not. One of the covered states is California, which has a law that is essentially the same as Washington’s. When faced with such a clear dispute on an issue of constitutional law, the Supreme Court usually must intervene to resolve the dispute.

But legal scholars disagreed over whether the high court would uphold or overrule the 9th Circuit.

Kathryn L. Tucker, the Seattle lawyer who represented the plaintiffs challenging the Washington prohibition against assisted suicide, said she was not surprised that state officials decided to appeal. “They’re doing their job--to defend the legislation of the state.”

She said the plaintiffs--four Washington physicians and a nonprofit organization called Compassion in Dying--would urge the Supreme Court to let the 9th Circuit decision stand without review. However, she said she thought that it was likely that the nation’s highest court would hear the case.

“Our view is that this is a very strong case to present the issue and the 9th Circuit decision is a strong, powerfully written opinion. Our anticipation is that if review is granted, the decision would be affirmed,” Tucker said.

University of Michigan constitutional law professor Yale Kamisar, an expert on the assisted-suicide issue, agreed that the Supreme Court would take the case. But he predicted that the 9th Circuit decision would be reversed.

“I really don’t see five votes on the Supreme Court to sustain the decision,” Kamisar said. “First of all, the decision said there is no distinction between cutting off life supports and active intervention to promote or bring about death. . . . Modern medicine could not function without the right to terminate life support. There is no comparable need to assist a patient in committing suicide.”

Meanwhile, some of the nation’s most powerful religious organizations, including the National Conference of Catholic Bishops and the National Assn. of Evangelicals, renewed their vows Monday to file their own briefs with the high court if it takes the case.

“This [9th Circuit] decision is so sweeping in its assault on numerous traditional legal distinctions that it truly demands appeal,” said Richard Doerflinger, associate director of the Secretariat for Pro-Life Activities of the National Conference of Catholic Bishops.

Doerflinger said Washington’s decision to appeal on the grounds of states’ rights was “wise.” He noted that Washington was among 13 states whose legislatures or voters have rejected adoption of assisted-suicide laws over the past several years.

“It’s not as though [assisted suicide] has been sweeping the country by popular will,” Doerflinger said.

Just last week, Cardinal Bernard Law of Boston, chairman of the Catholic bishops’ pro-life activities committee, said the church will try to form alliances with hospitals and doctors, as well as other religious groups, to fight any attempts to expand euthanasia in state legislatures or Congress.

Forest Montgomery, counsel for the National Assn. of Evangelicals’ public affairs office in Washington, D.C., said his organization will file a brief supporting the state of Washington’s appeal.

“We are very concerned about any laws that in any way diminish the sanctity of life,” Montgomery said.

In handing down its ruling three weeks ago, the 9th Circuit limited its ruling to apply only to physician-assisted suicide under narrowly defined circumstances involving a competent, terminally ill adult. The court’s opinion did not affect the prohibition on assisting suicide in other situations.

The case was originally decided by a trial court in 1994 when U.S. District Judge Barbara Rothstein in Seattle declared the Washington prohibition unconstitutional. She said it violated the due process clause of the U.S. Constitution.

Last year, a three-judge panel of the 9th Circuit Court of Appeals reversed her, stressing that “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.”

Then, on March 6, a larger panel of 9th Circuit judges reinstated Rothstein’s decision by the 8-3 vote.

Times staff writer David G. Savage in Washington contributed to this story.