It can be foolhardy, of course, to predict the court’s ruling based on the tenor of its questions. But the Rehnquist Court has never been eager to create new constitutional rights, and this case, overflowing with moral ambiguities, doesn’t scream out as an exception. Call it the post-abortion syndrome–fear of finding a new right that creates never-ending court battles. All the justices (save Clarence Thomas, who rarely asks questions) were skeptical that a fundamental right to lethal medication can be found in the Constitution. Justice Antonin Scalia, already on record as opposing any right to die, was primed to ridicule that expansive interpretation. After Harvard law professor Laurence Tribe, representing physicians and patients challenging the ban on assisted suicide, argued that a person facing imminent death should “have some voice” in deciding how to die, Scalia shot back: “That is a lovely philosophy. Where is it in the Constitution?”
The case reached the Supreme Court because two federal appellate courts last year had, in fact, found constitutional rights to assisted suicide. The circuit courts struck down state laws banning the practice in Washington and New York (at least 40 states have similar laws). The Ninth Circuit, based in San Francisco, tied the right to the court’s earlier abortion decisions, declaring assisted suicide to be a fundamental right protected by the 14th Amendment’s guarantee of “liberty.” Kathryn Tucker, arguing against the Washington law, told the court that the right of terminally ill people to hasten their deaths flowed out of the Constitution’s protection of personal autonomy and “bodily integrity.”
But even justices who might favor assisted suicide as a matter of policy, like Ruth Bader Ginsburg, Anthony Kennedy and David Souter, seemed to suggest that it was too novel–and its impact too uncertain–for the court to now usurp state legislatures. “Maybe the court should wait until it could know more,” said Souter, who wondered about potential abuses such as coerced suicides. And they seemed troubled by the prospect of spending the rest of their days trying to explain a far-reaching decision. For instance, Ginsburg asked, should non-terminally ill patients be permitted to hasten their deaths? And, Scalia asked, why shouldn’t the person who faces “terrible pain” for 10 years be allowed to choose assisted suicide? “Surely legislators have a much greater capacity to absorb those kind of arguments and make those decisions than we do,” said Kennedy.
Tucker, taking the brunt of the justices’ attack, argued that the court needn’t worry that permitting assisted suicide would open the door to patients without terminal illnesses. The constitutional right “ripens,” she asserted, only when a patient is ter- minal. Tucker tried another tack that appeared to get no farther. She suggested the court should intervene because American culture is characterized by a “denial of death” that freezes the normal political process. Replied Souter, “That denial simply reflects the way we are.”
The court is expected to rule by summer. But regardless of the decision, supporters of assisted suicide say public opinion is moving in their direction. Just two days after the arguments last week, criminal charges against Dr. Jack Kevorkian in Michigan were dropped in the deaths of 10 people. The prosecutor said a jury simply wouldn’t convict Kevorkian. And, supporters said, it was likely that the Supreme Court would decide that states at least have the power to enact laws legalizing assisted suicide. That would allow Oregon, the only state with such a law, to begin the learning curve of legalized assisted suicide. After a few years, said Charles Baron, a professor at Boston College Law School, “the court won’t see the “parade of horribles’ that opponents talk about.” Then again, maybe it will.
