Omaha, Nebraska
Fall 1997
Volume 9, Number 1

Pulling the Plug on Assisted Suicide?

Joseph Allegretti
Yossem Professor of Legal Ethics

In 1996, two federal courts found a new "right to die." Previously, patients had the right to refuse or terminate treatment; now, for the first time, American courts found that terminally ill patients had the right to obtain life-ending prescriptions from their doctors. The right to terminate treatment was transformed into a right to physician-assisted suicide (PAS).

Although the two courts came to the same conclusion, they reached it by different routes. In Quill, the Second Circuit struck down New York's prohibition on PAS by finding a violation of the equal protection clause. The court held that New York violated this standard because it did not treat all competent dying patients alike. Those who were being kept alive by artificial life-supports could have the machines withdrawn, thereby hastening their death, but those who were not on lifesupports were not allowed to hasten their death by taking drugs prescribed by their physicians.

In Glucksberg, the Ninth Circuit struck down Washington's law against assisted suicide as it applied to PAS. The court relied not on the equal protection clause but on the right to liberty protected by the due process clause of the Constitution. The court held that dying patients have the right to control the timing and manner of their death, and that this right outweighs any state interest in prohibiting PAS.

The two courts did not merely hold that a state could legalize PAS, but that a state must permit it. States could regulate PAS, said the courts, but not forbid it. In this way, the decisions bore a resemblance to the Supreme Court's decision in Roe v. Wade, which held that a state must allow abortion under certain circumstances.

In July 1997, the United States Supreme Court reversed both lower decisions by votes of 9-0. Both opinions were written by Chief Justice Rehnquist.

In Quill, the Court held that a state could prohibit assisted suicide yet allow a dying patient to refuse life-sustaining treatment. The Court found a number of legitimate reasons for the distinction. A patient who refuses life-sustaining treatment dies from her underlying illness, but a patient who takes pills prescribed by her physician dies not from her disease but from the medication. Furthermore, a doctor who honors a patient's decision to stop treatment intends only to honor her patient's wishes, not to kill her. The same is true of a doctor who prescribes painkilling drugs which might have the unfortunate side-effect of hastening death. On the other hand, a doctor who assists in a suicide clearly intends that her patient die.

In Glucksberg, the Court examined the history of American law and found that suicide and assisted suicide have always been disapproved of or outlawed. In light of this history, the Court concluded that there was no fundamental right to PAS. The Court then went on to find a number of legitimate reasons why a state could outlaw PAS. These include the state's interests in preventing suicide and preserving life, maintaining the integrity of the medical profession, and protecting vulnerable groups (such as the poor and the elderly) from prejudice, abuse, and coercion. The Court also expressed concern that if PAS was allowed it might be extended to those who were not competent, or not terminally ill, and might even lead to patients being killed without their consent (which, said the Court, is already happening in the Netherlands).

At first glance, one could hardly imagine a more complete victory for the opponents of PAS. After all, the Supreme Court reversed both lower courts and did so without a single dissent! The two unanimous decisions might be read as a complete and categorical rejection of PAS. And yet . . . Chief Justice Rehnquist made it clear that the Court's decisions do not forbid a state from legalizing PAS. "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality, of physician-assisted suicide.

Our holding permits this debate to continue, as it should in a democratic society."

Several other justices underscored this point. Justice O'Connor expressed hope that the democratic process would strike the proper balance between the rights of dying patients and the legitimate interests of the state. Justice Stevens indicated that it would be appropriate, even desirable, for states to experiment with different approaches to PAS.

Thus, we are probably entering an era of state-by-state battles over the legality of PAS. In these debates, there will be two issues to decide. The first is whether the existing state laws against PAS should be changed. If a state decides to legalize PAS, a second question will have to be faced: How should PAS be regulated to avoid abuses, coercion, and the like? Despite their victory in the Supreme Court, I suspect that those who oppose PAS will have their work cut out for them. Public opinion polls show a solid majority in favor of PAS in at least some circumstances (although, as we know from the abortion debate, survey results vary markedly depending upon the precise words of the question). One state, Oregon, has already approved a referendum legalizing PAS, although the law is tied up in the courts. More states might follow.

I have one suggestion for those who will enter the fight over PAS. In the upcoming debates, we should keep in mind what is really at stake. The fundamental issue is not about PAS but about us - who we are as a people, what values we hold dear, how we think of death and how we honor life, how we see our responsibilities towards each other, especially towards the sick, the dying, and the marginalized. What would it mean for us as a society to declare that doctors who cannot cure can kill? Would that vindicate patient rights--or undermine the rights of us all? Who are we? What do we stand for? That's a question no Supreme Court and no state legislature can decide for us.