Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

“Because they present issues of such profound spiritual importance and because they so deeply affect individuals’ right to determine their own destiny, the abortion and right-to-die cases have given rise to a highly emotional and divisive debate. In deciding right-to-die cases, we are guided by the Supreme Court’s approach to the abortion cases…which provide powerful precedent…”

“Those who believe stronly that death must come without physician assistance are free to follow that creed; be they doctors or patients. They are not free, however, to force ther views, their religious convictions, or their philosophies on all the other members of a demoncratic society, and to compel those who differ to die painful, protracted, and agonizing deaths.”

Compassion in Dying v. State of Wash.,

U.S. Court of Appeals (9th Cir. 1996)

Physician Assisted Suicide

Approximately 40 states currently criminalize doctor-assisted suicides. Although the Michigan pathologist Dr. Kevorkian has been attracting international notoriety for his persistent challenges to Michigan’s law, right-to-die organizations in many other states have been quietly challenging in federal courts the constitutionality of physician-assisted suicide bans. Regrettably, their efforts have finally met some success.

For the first time in history, two influential federal appellate courts have struck down laws prohibiting physician-assisted suicide in the states of Washington and New York. Both of these controversial decisions were appealed, and the Supreme Court is poised to decide next spring whether medical doctors may prescribe lethal drugs for their “terminally ill” patients who want to end their lives by committing suicide.

Although both federal appellate courts struck down the doctor-assisted laws as unconstitutional, they did so for different and perhaps contradictory reasons. Moreover, both cases utilized novel constitutional theories that may be rejected by the conservative Justice on the Supreme Court, but most likely adopted by the more liberal majority.

The Washington Case

In Compassion in Dying v. State of Washington, the federal appellate court, admittedly following the precedent established by the earlier Supreme Court abortion cases (see quote above), discovered a new “substantive due process right” or “liberty interest” — the “right to control the time and manner of one’s death.”

Like the decision of whether or not to have an abortion, the decision how and when to die is one of “the most intimate and personal choices a person may make in a lifetime; a choice central to personal dignity and autonomy.” A competent terminally ill adult has a strong liberty interest in choosing a dignified and humane death… Prohibiting a terminally ill patient from hastening his death may even have a more profound effect on that person’s life than forcing a woman to carry a pregnancy to term.

In addition to- finding “powerful” precedent in the abortion cases, the court also looked to the landmark 1989 Cruzan case in which the U.S. Supreme Court ruled that there is a constitutionally protected liberty interest in terminating unwanted medical treatment:

. . . the Court majority clearly recognized that granting the Cruzan family’s request to remove the tubes through which Nancy Cruzan received nutrition and hydration would lead inexorably to her death. Accordingly, we conclude that Cruzan, by recognizing a liberty interest that includes a refusal of artificial provision of life-sustaining food and water, necessarily recognizes a liberty interest in hastening one’s own death.

Thus, claiming to follow the lead of the Supreme Court which recently discovered “implicit” in the Constitution the right to privacy (abortion cases) and the right to terminate unwanted medical treatment (Cruzan), this court introduced yet another fundamental Constitutional right – the right-to-die. But what about the state’s historical interest in preserving life?

State’s Interest in Preserving Life Outweighed

The court conceded this newly-discovered, fundamental due process right must nonetheless be balanced against the state’s historical interest in preserving life in general. However, the state’s interest in preserving life, the Court ruled, is not always controlling:

Although the state’s interest in preserving life may be unqualified, and may be asserted regardless of the quality of life at issue, it is not always controlling. Nor is it of the same strength in each case. To the contrary, its strength is dependent on relevant circumstances, including the medical condition and wishes of the person whose life is at stake.

The court went on to hold that here the individual’s fundamental right to control the time and manner of his death prevails, because the state’s general interest in preserving life is “dramatically diminished” if the person involved is terminally ill and expresses a wish to die. The court also examined other interests asserted by the state: prevention of suicide; avoidance of undue influence by third parties who wish the patient dead; avoidance of the adverse effect of the suicide on children and other family members; the integrity of the medical profession; and other adverse consequences. The court reasoned, however, that none of these governmental interests outweighs the individual’s newly-discovered right-to-die with the assistance of his physician.

The New York Case – No Right-to-Die

Another federal appellate court recently faced a similar suit in New York, where the doctor plaintiffs likewise challenged their state’s law criminalizing physician assisted suicide. Facing the identical issue of whether terminally ill patients have a constitutional right-to-die, the court, contrary to the Washington case, refused to identify a new fundamental right:

The right to assisted suicide finds no cognizable basis in the Constitution’s language or design…. We therefore decline the plaintiffs’ invitation to identify a new fundamental right-to-die, in the absence of a clear direction from the Supreme Court whose precedents we are bound to follow.

Denial of Equal Protection

Although the New York court declined to invent a new Constitutional right-to-die as did their colleagues in the Washington case, the New York court nevertheless accomplished the same result by striking down the state law as violative of another section of the Constitution – the Equal Protection Clause. The Equal Protection Clause requires government to treat in a similar manner all individuals who are similarly situated, and any state legislation which does otherwise must be “rationally related to a legitimate state interest.”

The court noted that New York and many other states, although outlawing doctor-assisted suicide, do nevertheless permit competent patients to refuse unwanted medical treatment such as lifesaving nutrition and hydration. This, the court ruled, is a distinction without a difference:

It seems clear that New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life support systems are allowed to hasten their deaths; but those who are similarly situated, except for previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed [lethal] drugs. This is violative of the Equal Protection Clause of the 14th Amendment.

No State Interest in Preserving Life

The Court noted, however, that this denial of equal protection must be weighed against the state’s interest in preserving life. But here the state’s interest was found wanting:

But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? And what business is it of the state to require the continuation of agony when the result is imminent and inevitable? What concern prompts the state to interfere with a mentally competent patient’s right to define his own concept of existence, of meaning, of the universe, and of the mystery of human life? None.

Conclusion

These two federal appellate court decisions striking down physician- assisted suicide laws now existing in forty states should be very troubling for the Reformed Christian. Both cases noted but effectively ignored centuries of English and American common law that criminalized suicide and assistance to suicide.

As was predicted by conservative Constitutional scholars, the Supreme Court abortion decisions are bearing fruit as precedent to establish ever more the autonomy of the individual over against the sanctity of life and the state’s interest in preserving life. What is now apparently paramount to the federal courts is the individual’s “right to define his own concept of existence, of meaning, of the universe, and of the mystery of human life” (quoting from Planned Parenthood v. Casey, a 1992 Supreme Court abortion decision).

Regrettably, it appears that the U.S. is now heading down the same road as the Netherlands, where physicians notoriously practice not only assisted suicide, but non-voluntary euthanasia whenever the patient’s “quality of life” does not measure up to their standards. Unless the U.S. Supreme Court overrules .these two decisions next spring, Dr. Kevorkian and his allies will have achieved a frightening victory in this country.