The Washington Blade; Friday, January 10, 1997
Lisa Keen

Sodomy and suicide?

As Notre Dame law professor Douglas Kmiec explained it in an American Bar Association preview of the two cases, the Supreme Court's 1986 ruling in Bowers v. Hardwick directed lower courts to "refrain from recognizing previously unrecognized liberty interests." In that case, the Supreme Court said there was no liberty interest for two people of the same gender to engage in sex together and, thus, states could ban same-sex sexual relations. Some people believe the "right to die" is such an "unrecognized liberty interest" and that states can ban physicians from helping terminally ill patients to hasten their deaths.

And that was the question before the Supreme Court Wednesday: whether states can ban terminally ill patients from having a physician help hasten their deaths by prescribing a "lethal medication." Such laws in two states were under scrutiny Wednesday: one from Washington state and one from New York. Each was challenged by a group of three terminally ill patients; three of the six plaintiffs were people with AIDS, all of whom have already succumbed to the illness.

In Washington v. Glucksberg, the U.S. Court of Appeals for the 9th Circuit ruled that a patient's ability to determine the time and manner of his or her death is a fundamental right implied in the Constitution's 14th Amendment promise that no one shall be denied "life, liberty or property, without due process of the law." It struck down Washington state's ban on assisted suicide as a burden to this right. The 9th Circuit also ruled that the ban was a violation of the 14th Amendment's guarantee of equal protection of the laws because it kept patients from hastening their deaths in one way (assisted suicide) but not another (withdrawal of life-support equipment).

The 2nd Circuit struck down a nearly identical law in the New York case Vacco v. Quill based on the equal protection argument alone.

In two hours of vigorous questioning Wednesday, the justices seemed reluctant to intervene in the issue. Justice David Souter (a Bush appointee) repeatedly asked for empirical evidence that would guide the court in determining how much to weigh the risk that allowing physician assisted suicide might lead to "slippage" that would result in involuntary deaths. Chief Justice William Rehnquist (Nixon-Reagan) and Justices Sandra Day O'Connor (Reagan) and Ruth Bader Ginsburg (Clinton) seemed concerned that striking down the bans would throw the courts into the role of approving regulations to govern the use of physician-assisted suicide. Justice Antonin Scalia (Reagan appointee) questioned how the court might extend the right to die for patients with physical illnesses and "on the threshold of death" and not for people who have "terrible emotional suffering" or who might be in horrible pain for 10 years before they die.

In a commentary Tuesday in the Wall Street Journal, Harvard medical professor Ezekiel Emanuel argued against physician-assisted suicide, saying that studies have shown that most patients who have sought euthanasia did so because of their psychological suffering -- their feelings of depression and hopelessness -- not because of their physical suffering.

There are very few studies to indicate how many people with AIDS ask their physicians to give them drugs to use in ending their lives. But in the British medical journal The Lancet last February, researchers reported that in a study of 131 Gay men who succumbed to AIDS in the Netherlands, 22 percent used physician-assisted suicide and an additional 13 percent made other "medical decisions ending life."

Justice Stephen Breyer (Clinton appointee) referred to statistics that indicate that more than 25 percent of terminally ill patients die in pain, even though medical science has the ability to limit that to only 1 to 2 percent of patients.

Lambda Legal Defense and Education Fund submitted a friend of the court brief in conjunction with New York City's Gay Men's Health Crisis in support of physician-assisted suicide. The AIDS Action Council and the Association for Gay, Lesbian and Bisexual Issues in Counseling also joined briefs in support of assisted suicide.

The Clinton administration, represented Wednesday by Acting Solicitor General Walter Dellinger, argued against physician-assisted suicide. Dellinger argued that "the systemic dangers" of allowing the procedure are "dramatic." Those dangers include such things as health insurance officials implementing plans that recognize "the least expensive treatment [for seriously ill patients] is always lethal medication."

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