U.S. Court Strikes Down N.Y. Ban on Assisted Suicide

In another victory for advocates of a constitutional right to die, the U.S. appeals court in New York on Tuesday struck down that state’s law barring doctors from helping terminally ill persons end their lives.

In a 3-0 ruling, the appeals court said it made no sense to allow doctors to end the lives of those who are hooked up to respirators, while requiring them to preserve the lives of other terminally ill patients who are not on life-support systems.

This discrimination by law violates the Constitution’s equal protection guarantee, the appeals court said, because it “is not rationally related to any legitimate state purpose.”

“Physicians do not fulfill the role of ‘killer’ by prescribing drugs to hasten death any more than they do by disconnecting life-support systems,” wrote Judge Roger J. Miner of Albany, N.Y.

Three doctors and three dying patients--one with cancer and two with AIDS--brought the lawsuit challenging New York’s ban on assisted suicide as unconstitutional.

The 36-page opinion in their favor strengthens the fast-evolving constitutional right to die in two ways.

First, the opinion adopts a second reason--discrimination--for striking down state laws that bar all doctor-assisted suicides. This approach is grounded in a long line of Supreme Court decisions forbidding different treatment for people in similar situations.

By contrast, the U.S. 9th Circuit Court of Appeals for nine Western states, including California, relied on previous abortion rulings last month when it decided Americans have a right to personal liberty and privacy that gives them--rather than the government--the right to decide to end their suffering when they are terminally ill.

Judge Stephen Reinhardt of Los Angeles, writing for the 8-3 majority, quoted from Supreme Court rulings upholding the privacy right.

Harvard law professor Laurence H. Tribe said that the equal-protection argument may stand up better in the Supreme Court.

“While I find much to admire in Judge Reinhardt’s opinion, this [equal protection] provides a more modest and narrow path for getting there. There is something utterly arbitrary and unintentionally cruel in condemning some competent terminally ill patients to continue their suffering because they have not been put on respirators,” said Tribe, who supports the “right to die.”

Secondly, Tuesday’s opinion emerged from a more conservative appeals court and was written by an appointee of former President Reagan, meaning that now both conservative and liberal judges have upheld a right to die.

Miner, 61, was appointed as district judge by Reagan in 1981 and elevated to the appeals court in 1985. He was joined in the ruling by former Yale Law School Dean Guido Calabresi, an appointee of President Clinton, and senior U.S. District Judge Milton Pollack, who was appointed by former President Johnson.

“We are elated at this second sweeping civil rights victory for terminally ill patients who wish to have . . . assistance in hastening death . . . to end their suffering,” said Ralph Mero, executive director of Compassion in Dying, a Seattle-based group that sponsored the legal challenges in New York and Washington state.

But others remain opposed to the idea of a right to die. Opponents include the Catholic Church and the American Medical Assn. Leaders of both groups questioned the authority of judges to nullify long-standing laws that forbid assisted suicide.

Dr. Nancy Dickey, AMA president, said doctors draw a sharp distinction between using technology to keep alive a dying person and actively using drugs to end a patient’s life.

“Stepping over that line [to assist a suicide] is not in the best interest of patients or society,” she said.

Tuesday’s ruling almost assures that the Supreme Court will take up the issue within the next year.

The 9th Circuit Court ruling declares that a constitutional right to die exists in the nine Western states, including California. Attorneys for Washington state said they would appeal to the Supreme Court by June.

The 2nd Circuit ruling extends the right to die to include New York, Connecticut and Vermont.

“It’s the population of about half the country between these two decisions,” said Kathryn Tucker, an attorney for the right-to-die advocates.

The lead plaintiff in the New York case, Dr. Timothy E. Quill, was investigated by a grand jury after he published an article in 1991 in the New England Journal of Medicine in which he described giving barbiturates to a dying cancer patient. The three patients included George Kingsley, a 49-year-old publishing executive with AIDS; William A. Barth, a 28-year-old fashion editor, also with AIDS; and a 76-year-old cancer patient known as Jane Doe. All have since died.

On the other side, the Michigan Supreme Court has said that no right to die exists in American law. It has upheld that state’s move to prosecute retired pathologist Jack Kevorkian for aiding terminally ill patients in ending their lives.

Yale Kamisar, a University of Michigan law professor opposed to the right to die, said he continues to believe the Supreme Court will not strike down the traditional state laws against assisted suicide. “But I must confess I’m less sure of my position than I was a month ago,” he said.

Both USC constitutional law professor Erwin Chemerinsky and attorney Tucker said they thought the 2nd Circuit had taken a more conservative approach that might be easier for the Supreme Court, particularly Justice Ruth B. Ginsburg, to accept than the 9th Circuit rationale.

“Looking forward to possible Supreme Court review, I would say that the 2nd Circuit has done us a favor by applying the alternative constitutional ground that wasn’t reached by the 9th Circuit,” Tucker said.

Added Chemerinsky: “The fact that the 2nd Circuit ruled on equal protection might be important at the Supreme Court, at least in terms of Justice Ginsburg’s vote. Ginsburg has been very hostile to protecting unenumerated substantive rights under the due process clause. I think she is much more likely to find a right to physician-assisted suicide under equal protection than under due process.”

Although Miner based his decision on equal protection, rather than due process, in some key respects his ruling paralleled that made by Reinhardt. In particular, Miner, like Reinhardt, rejected the contention that there is a meaningful legal distinction between withdrawing life support and hastening the death of a terminally ill, mentally competent patient by prescribing medicine. Opponents of physician-assisted suicide, including the AMA, maintain that this is a critical distinction.

“There is nothing ‘natural’ about causing death by means other than the original illness or its complications,” Miner wrote. “The withdrawal of nutrition brings on death by starvation, the withdrawal of hydration brings on death by dehydration, and the withdrawal of ventilation brings about respiratory failure. By ordering the discontinuance of these artificial life-sustaining processes or refusing to accept them in the first place, a patient hastens his death by means that are not natural in any sense.”

Miner added: “The writing of a prescription to hasten death, after consultation with a patient, involves a far less active role for the physician than is required in bringing about death through asphyxiation, starvation and/or dehydration. Withdrawal of life support requires physicians or those acting at their direction physically to remove equipment and, often, to administer palliative drugs which may themselves contribute to death. The ending of life by these means is nothing more nor less than assisted suicide.”

Additionally, like Reinhardt, Miner said the interest of the state in preserving life diminished the closer a person is to death.

“At oral argument and in its brief, the state’s contention has been that its principal interest is in preserving the life of all its citizens at all times and under all conditions,” Miner noted. “But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? Surely the state’s interest diminishes as the potential for life diminishes. . . . And what business is it of the state to require the continuation of agony when the result is imminent and inevitable?”

As to the issue of whether sick people might be pressured into ending their lives prematurely, Miner said that this had not been a problem when it was done by withdrawing life support and that “there should be” no problem with hastening death through a physician prescribing medicine.

“In any event, the state of New York may establish rules and procedures to assure that all choices are free of such pressures,” he wrote.

The decision reversed a ruling by a federal trial judge in New York.

Carla A. Kerr, the New York attorney who was co-counsel for the plaintiffs, said: “We’re very, very gratified. This is a significant step toward establishing the right to die with dignity.”