Supreme Court to Decide Issue of Right to Die

The Supreme Court announced Tuesday that it will decide whether Americans who are terminally ill have a right to get help from their doctors and family members to end their lives.

The so-called right-to-die question, to be argued early next year, is probably the most far-reaching constitutional issue to come before the court since abortion.

In its 1973 abortion ruling, the court declared that the Constitution’s guarantees of a right to liberty includes a right of privacy that gives pregnant women the right to choose abortion. Now, the justices will decide whether the right to liberty or the Constitution’s equal-protection clause also include a dying person’s freedom to get medication that will hasten death.

The issue comes to the high court amid a growing national debate about how Americans die. Until the middle of this century, most people died at home, usually surrounded by their families. Today, recent studies have found, about 85% of Americans die in hospitals, nursing homes or other institutions. Because of medical advances, many people have been kept alive for months or years, despite illnesses that otherwise would have been fatal.

But this medical progress has set off something of a backlash. Many who have watched friends or loved ones linger in agony have voiced doubts about the price of this progress.

In reaction, many have tried to take control of their dying days by filing “advance directives” or “living wills.” Others have insisted on dying at home, rather than in an institution.

The most controversial step is for a patient to seek help to shorten his or her dying days with a fatal dose of medication.

“Now that the court has gotten involved, all these issues are going to move to center stage,” said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania. “We’re going to have a yearlong national seminar on dying and assisted suicide.”

While public sentiment about the dying process has been changing, the law has not.

Suicide is no longer deemed a crime, but at least 44 states, including California, make it a felony to aid or encourage another person to commit suicide. This means that doctors and family members can be charged with a crime if they help a patient or relative end his life.

Prosecutions are rare, although New York state lawyers threatened to bring charges against Rochester physician Timothy Quill after he wrote about helping a patient die. His case is one of two that will be heard by the Supreme Court.

Both cases began with a small Seattle group known as Compassion in Dying. The group was made up of retirees, AIDS activists and physicians who had volunteered to counsel persons who were terminally ill. In some instances, the volunteers sat with patients who had taken large doses of barbiturates in efforts to end their lives.

In 1991, the group tried and failed to win a state ballot initiative that would have made it legal to help dying persons end their lives.

Three years ago, the group filed a lawsuit in federal court in Seattle challenging laws that target assisted suicide as unconstitutional. The first suit was filed on behalf of three dying patients and several physicians, who complained that they were barred from aiding such patients. Later, a second suit was filed in New York on behalf of Quill and other physicians there.

Earlier this year, both lawsuits resulted in victories.

The U.S. 9th Circuit Court of Appeals based in San Francisco ruled that the Constitution’s guarantee of individual liberty protects “competent, terminally ill adults who wish to hasten their deaths.”

“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 government, both state and federal, and to put them where they rightly belong, in the hands of the people,” wrote Judge Stephen Reinhardt for an 8-3 majority.

The U.S. 2nd Circuit Court of Appeals in New York reached the same result but by a different route. It ruled that the state’s law unfairly discriminates among terminally ill persons. Doctors now can end the lives of those on life-support systems by agreeing to their requests to withdraw treatment but cannot take steps to hasten the deaths of those who are not on life support. Those circumstances violate the guarantee of “equal protection of the laws,” the appeals court said in a 2-1 vote.

Both states appealed, and the high court agreed to hear both cases (Washington vs. Glucksberg, 96-110, and Vacco vs. Quill, 95-1858) in late January.

Among legal experts, the conventional view is that the Supreme Court will reverse both rulings and reject the right to die. Conservatives say that the court should not “create new rights” in the Constitution and thereby do an end-run around the political process.

“This looks like a bald-faced example of judges making law on their own. I think it is extremely likely they will be reversed,” said University of Chicago Law Professor Michael McConnell, referring to the lower court rulings.

Columbia University Law Professor Michael Dorf, a recent court clerk, said, however, that a majority of the justices may be willing to uphold a right to die when it is narrowly limited to the terminally ill. “You won’t see a broadly written opinion that goes either way,” he said.

Unlike with abortion, there is no “innocent human life” in this case whose interests must be protected by the state, Dorf said.