Appeals Court Won’t Review Suicide Ruling

Despite two blistering dissents, a federal appeals court in San Francisco on Wednesday declined to review its landmark decision holding that mentally competent, terminally ill adults have a constitutional right to hasten their deaths with the assistance of a physician.

The action by the U.S. 9th Circuit Court of Appeals clears the way for the state of Washington to move forward with its effort to get the U.S. Supreme Court to review the controversial March 6 decision. Washington Atty. Gen. Christine Gregoire had announced earlier that she would go to the Supreme Court, but that process was delayed after a 9th Circuit judge asked that all 24 active 9th Circuit judges review the decision in Compassion in Dying vs. Washington.

The March decision held, by an 8-3 vote, that Washington’s law making physician-assisted suicide a felony is a denial of due process of law under the 14th Amendment to the federal Constitution.

The ruling, written by Los Angeles Appellate Judge Stephen Reinhardt, effectively struck down similar statutes in seven other Western states that are part of the 9th Circuit. On Wednesday, two conservative appellate judges lambasted the majority in the earlier decision for creating a new constitutional right without any justification.

“No magician--not David Copperfield, not even Harry Houdini--can produce a rabbit from a hat unless the rabbit is in the hat to begin with,” wrote Judge Stephen S. Trott of Idaho.

“With all respect,” Trott’s dissent said, Reinhardt, “has in fact succeeded in pulling a nonexistent liberty interest out of thin constitutional air, a liberty interest that does not exist in the document itself.”

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

Trott emphasized that the significance of the case “has far more to do with our role and power as federal judges than with the merits or desirability of physician-assisted suicide. The issue most deserving of attention is whether we have exceeded our lawful interpretive power to remind the democratic process what it can and cannot do.”

Along the same line, Judge Diarmuid F. O’Scannlain of Oregon noted that in 1991 Washington residents rejected an initiative legalizing physician-assisted suicide.

O’Scannlain also chastised the majority of his colleagues for declining to reconsider the decision. “By our failure to convene the full court to rehear this case, a mere one-third of the 24 active judges eligible to vote has been empowered to strike down criminal laws, not just in Washington,” but also in Alaska, Arizona, California, Hawaii, Idaho, Montana and Nevada, he wrote.

The March decision reinstated a 1994 ruling by U.S. District Judge Barbara Rothstein in Seattle. She agreed with the contentions of four physicians and Compassion in Dying, a nonprofit organization that provides support and counseling to terminally ill adults considering suicide, that Washington’s law making assisted suicide a felony imposed an undue burden on people seeking to hasten their death with the help of a doctor. Her decision was overruled 2 to 1 by the 9th Circuit Court of Appeal, setting the stage for the later 8-3 decision.

Initial appeals of a federal trial judge’s decisions are heard by three-judge panels. If a majority of the judges of a circuit agree to do so, a panel decision can be reviewed by all the judges in the circuit. However, the 9th Circuit, the largest in the nation, has a different procedure. Since the 9th Circuit was expanded from 13 to 23 judges in 1979, the court has been authorized to have 11-judge panels hold en banc reviews.

The circuit’s judges grant en banc review to only a minuscule number of cases--about a dozen out of 4,500 cases a year--according to Cathy Catterson, the court’s chief clerk.

Moreover, this case marked only the third time there had been a request for a review by all the circuit’s judges, and none of those requests has been granted. Because of the way such issues are handled, there is no written opinion explaining why the majority of 9th Circuit judges declined further review.

However, USC constitutional law professor Erwin Chemerinsky said he thought Wednesday’s decision “is much more about procedure than substance. Even judges who may disagree with the March ruling don’t want to create the precedent of the entire court sitting as a whole. Otherwise, you wouldn’t have finality after an en banc ruling because there would be the possibility of another hearing.”

To buttress his point, Chemerinsky noted that Judge Robert Beezer of Seattle, who wrote the lead dissent to Reinhardt’s opinion, did not dissent on Wednesday, nor did Judge John Noonan of San Francisco, who authored the original 9th Circuit opinion upholding Washington’s law. Chemerinsky also noted that since there is a high likelihood that the U.S. Supreme Court will take the case, several 9th Circuit judges probably thought further review by the circuit would be “needless work.” Washington’s initial brief to the Supreme Court is due July 5.