The Miami Herald, Inc.; Saturday, February 1, 1997
Lori Rozsa; Herald Staff Writer

The ruling marks the first time any state judge in the nation has supported doctor-assisted suicide, and propels Florida to the forefront of one of the most emotionally divisive issues in the nation.

Jupiter doctor Cecil McIver should be able to give Charles Hall a lethal dose of medication and be present when Hall takes the dose, without fear of prosecution, Circuit Judge S. Joseph Davis ruled.

The state has no right to interfere with that decision and to force "the prolongation of Mr. Hall's pain and suffering," the judge wrote.

But within two hours of the ruling, the state appealed, which stays the decision and bars McIver from taking any action to help Hall die.

"This is just the first step in the process of getting it to the Florida Supreme Court," said Assistant Attorney General Michael Gross.

McIver and Hall sued the state, saying an 1868 law that made it a crime for anyone to help another person commit suicide was unconstitutional because of the Florida Constitution's explicit right to privacy.

McIver said Davis' decision will lift Hall's spirits, because it gives him an option of a comfortable death rather than having to endure a long, painful ending.

`A victory for logic'

"We're dealing with the terminal illness of a fellow man. This is not cause of jubilation," McIver said after hearing the ruling. "That aside, it is a victory for logic, morality, and justice in this country."

Hall, 34, listened to Davis read his decision over the telephone, because he was too ill to travel from his home in central Florida to West Palm Beach.

Davis said his approval of the physician-assisted suicide applies only to Hall and McIver. But he "invited" the state Legislature to enact laws that deal with "the individual's constitutional right to determine his or her course of medical treatment, including the option to hasten his or her death."

Robert Rivas, the attorney representing McIver and Hall for the ACLU and the Hemlock Society, said that's exactly what should happen.

"We intended this as a giant wake-up call to the Legislature," Rivas said. "The Legislature needs to deal with this issue, instead of making the courts grapple with it on a case-by-case basis."

Davis, from Seminole County, was assigned the case when Palm Beach County judges found their schedules too full. He said that before he took the case, he had given the issue of assisted suicide "very little thought" and didn't have an opinion on it, except that he might not choose that option himself.

He acknowledged the significance of his opinion, and also the controversy it's likely to stir.

`I may be criticized'

"I may be criticized for it," Davis said before announcing his decision. "I'm sure I'm going to be."

In his 25-page order, Davis referred to the state law that allows terminally ill patients to ask that all artificial life support be withdrawn so they can die.

"Yet, medication to produce a quick death, free of pain and protracted agony, are prohibited," Davis wrote. "This is a difference without distinction. In those cases where a competent, terminal patient chooses to hasten his death, the state has little interest in preventing this type of suicide."

Davis' decision comes 18 days after a week-long nonjury trial. Hall and McIver were originally joined in the lawsuit by two other terminally ill patients, but both died before the case went to trial.

Hall testified, in wrenching detail, of the pain he suffers from the numerous illnesses brought on by AIDS. He contracted the disease 16 years ago from a blood transfusion.

A third bout of pneumonia prevented him from being in West Palm Beach Friday. While it's unknown when Hall's condition will deteriorate to the point that he'll want McIver's help in dying, Rivas said this current illness is very serious.

"He's lived through pneumocystis pneumonia twice. The doctors said he should not be so hopeful this time," Rivas said. "He is very ill."

Davis' decision comes as the U.S. Supreme Court considers two other right-to-die cases, from New York and Washington.

But Rivas said no matter what the high court decides, the Florida case won't be affected because it was argued on a different basis -- the state's constitutional right to privacy.

"The state has a clear interest in preserving life," Davis wrote, "but not at the unbridled expense of individual autonomy in matters concerning a person's medical treatment decisions."

But a Broward doctor says the right to privacy should not be the sole issue in the debate.

Issues of assisted suicide

"There are issues of assisted suicide which go beyond privacy. They go to the whole physician-patient relationship," said Dr. Glenn R. Singer, associate director of pulmonary medicine at Broward General Medical Center. "They go to the problems we're facing because of economic forces in medicine. They go to the problems of physician training with [pain management]."

Harvard law professor Laurence Tribe expects the case to have limited national impact.

"It might well have persuasive force, but there is only so much that one lower court judge can do in moving the behemoth of American law," said Tribe, who represented doctors challenging the New York ban on physician-assisted suicide.

"I would be surprised if there would be any assisted suicides by this ruling," said Kenneth Goodman, director of the University of Miami Forum for Bioethics and Philosophy. "What's most significant in my eyes is that a court is ready to say there's a right."

A South Miami doctor with a large HIV practice praised the ruling.

"I'm pleasantly shocked," said Dr. Karen Raben. "I think it's very pro-patient and pro-doctor-and-patient."

Herald Staff Writer Peggy Rogers and the Associated Press contributed to this report.

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