Los Angeles Times (Home Edition) - Friday June 27, 1997 Page A-1
David G. Savage; Times Staff Writer

By voting unanimously to reverse two lower court decisions that had declared such laws unconstitutional, the justices refused to grant Americans a constitutional "right to die."

However, their ruling did not preclude states from passing laws that would establish such a right; in fact, five of the nine justices suggested they might support such a claim in the future.

The landmark ruling in effect guarantees that the national debate over how and when terminally ill patients can die will continue for some time. It also assures that the Supreme Court will not lead the way.

The court's cautious approach to the "right-to-die" issue stands in sharp contrast to its active intervention in the abortion controversy. Twenty-four years ago, it abruptly announced a new constitutional right to abortion in Roe vs. Wade. That decision has been widely criticized ever since, even by some who support the right it established.

By leaping ahead of the public and announcing a "fundamental right" to abortion, the high court undercut the move in many states to gradually revise the 19th century laws against abortion. That decision has loomed over virtually everything the high court has done since then, and is the reason for one of the court's unwritten rules: When in doubt, do not create new rights.

In Thursday's decision on doctor-assisted suicide, the court clearly followed its own rule.

As Chief Justice William H. Rehnquist noted in his opinion for the court, many of the laws against suicide and assisted suicide were written in the 19th century. In 1874, California lawmakers made it a felony for any person to "deliberately aid or advise or encourage another to commit suicide," he pointed out.

"The states are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other issues," Rehnquist said. For the court to rule now that there is a "fundamental right" to assisted suicide, "we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state," he said.

A broad, new right to die could also have dreadful and unforeseen consequences, the chief justice said, arguing that "the poor, the elderly and disabled persons" could become victims of "abuse, neglect and mistakes" by doctors, relatives or hospital workers.

Oregon Law Remains Up in the Air

Thursday's decision leaves intact the few state laws against assisted suicide except for in Oregon, where voters in 1994 approved a right to "hasten death" for the terminally ill.

That law has not taken effect because of court challenges, and Oregon's voters will be given a chance to revoke the right this fall. Leaders of the American Medical Assn., the Catholic Church and President Clinton were among those praising the court's decision to reject a constitutional right to die.

Clinton called it "a victory for all Americans. It prevents us from going down a very dangerous and troubling path on this difficult and often agonizing issue."

Cardinal Bernard Law of the U.S. Catholic Conference said the court "displayed wisdom and restraint" in upholding the laws that "recognize that healers must not be agents of death."

Disappointed with the outcome, lawyers for the Lambda Legal Defense Fund, the gay -rights group, called the ruling "cruel" because it will prevent terminally ill people from "ending their unbearable suffering."

A lawyer who represented the doctors who challenged the legal ban on assisted suicide said she was pleased the court left the states free to recognize a right to die.

"I believe more and more individual states will choose to recognize a person's right to die with dignity. It's just going to take longer," said New York attorney Carla Kerr.

Ruling Is Open to Interpretation

Certainly the high court's decision is open to differing interpretations.

On the one hand, the court unanimously rejected a broad claim that all laws against assisted suicide are unconstitutional.

But only five justices signed Rehnquist's opinion, and Justice Sandra Day O'Connor, the crucial fifth, wrote a separate opinion that seemed to endorse a limited right to die for people in great pain.

"I agree there is no generalized right to commit suicide," O'Connor wrote, but she said she might support a dying person's claim to "obtain relief from the suffering that they may experience in the last days of their lives."

Justices Ruth Bader Ginsburg and Stephen G. Breyer endorsed O'Connor's view. Meanwhile, Justices John Paul Stevens and David H. Souter wrote separate opinions suggesting that, as Stevens put it, a "hastening death" in some situations might be "entitled to constitutional protection."

Still, for now, the court stressed these momentous decisions should be made in the first instance by the people and their elected representatives, not by unelected judges.

"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide," said Rehnquist, whose wife died in 1991 after a long battle with ovarian cancer. "Our holding permits this debate to continue, as it should in a democratic society."

Seven years ago, the court took a small step toward allowing dying or comatose patients to end their lives.

Confronting the sad case of a Missouri woman who suffered irreparable brain damage in an auto accident, the entire court agreed that all patients have a "right to refuse medical treatment," even if this results in immediate death.

This means doctors can stop life-sustaining care or even shut off a breathing machine, so long as the patient's wishes are clearly known, the court said in Cruzan vs. Missouri.

On Thursday, the justices refused to extend that right the next step to allow doctors to affirmatively "hasten death" at the patient's request.

"The distinction between letting a patient die and making that patient die" is understood in the fields of medicine and law, Rehnquist said, and it is certainly not so "arbitrary and irrational" as to be unconstitutional.

The U.S. 2nd Circuit Court of Appeals in New York had struck down that state's ban on assisted suicide on the grounds it was arbitrary and unfair to some dying persons.

The Supreme Court reversed that ruling in Vacco vs. Quill, 95-1858.

Separately, the U.S. 9th Circuit Court of Appeals based in San Francisco had struck down Washington's law against assisted suicide on the grounds it denied dying patients the right to "liberty."

Lower Court Explored Changing Attitudes

In a long opinion that explored the changing attitude toward dying, Judge Stephen Reinhardt of Los Angeles had argued that advances in medical technology both preserved life and, sometimes, also preserved the agony of death. These days, many people spend their last days in institutional settings hooked up to machines and with little control over their bodies or their fate.

"One result has been a growing movement to restore humanity and dignity to the process by which Americans die," Reinhardt wrote.

Speaking for the appeals court, he said the Constitution should protect the right of a "competent, terminally ill adult" to choose "a dignified and humane death."

Reinhardt, a prominent liberal, favors a broad and evolving notion of constitutional rights.

By contrast, Rehnquist insists that these rights be narrowly defined, based on the nation's history and tradition. Otherwise, he says, judges end up making the laws, not the people.

His opinion for the court in Washington vs. Glucksberg, 96-110, overturned the 9th Circuit's decision.

PHOTO: The justices of the Supreme Court are approaching the conclusion of a week of packed with key rulings.; PHOTOGRAPHER: Associated Press; PHOTO: Dr. Timothy Quill, who challenged New York state's ban on physician-assisted suicide, talks to reporters in Rochester, N.Y., after the ruling.; PHOTOGRAPHER: Associated Press; PHOTO: American Civil Liberties Union Legal Director Stefan Presser, left, looks on during a news conference as William Devlin of the Philadelphia Family Policy Council criticizes the Supreme Court's Internet ruling as a victory for child molesters, pedophiles and the ACLU.; PHOTOGRAPHER: Associated Press

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