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WASHINGTON, Jan. 8 -- By the end of two intense hours of Supreme
Court debate today over whether the Constitution gives terminally
ill people a right to doctor-assisted suicide, it was clear that
the Justices were fascinated by the issue and deeply engaged by
the arguments -- but at the same time eager to keep the Court
out of yet another momentous question of life and death.
''Everything you've said, it seems to me, could go on in a legislative
chamber,'' Justice Ruth Bader Ginsburg told Kathryn L. Tucker,
a Seattle lawyer arguing that Washington State's law against assisted
suicide violates the due process rights of terminally ill patients
who want a doctor's help in dying in a ''humane and dignified
manner.''
Justice David H. Souter asked Ms. Tucker, ''Why shouldn't we conclude
that as an institution, we are not in a position to make the judgment
you want us to make?'' Referring to the consequences of opening
the door to doctor-assisted suicide, Justice Souter said, ''It
would just be guesswork.''
Although the doctrinal jargon of due process and equal protection
was sprinkled throughout the argument, this was a Supreme Court
session notable for the proportion of plain English that was spoken.
The Justices wanted theory, but they were also hungry for facts.
They sat as judges but appeared to feel themselves very much participants,
on a human level, in a far-reaching societal debate.
''This is an issue every one of us faces, young and old, male
and female, whatever it might be,'' Justice Sandra Day O'Connor
said at one point. And Justice Ginsburg, whose mother died of
cervical cancer at the age of 47, said, ''Most of us have parents
and other loved ones who have been through the dying process,
and we've thought about these things.''
Yet this was not a policy forum, but a legal argument before a
Supreme Court that is years past any desire to find itself at
the frontiers of constitutional law. The lawyers asked the Justices
to weigh terminally ill patients' interest in avoiding uncontrollable
pain against the states' interest in protecting life. But the
Justices' concern often appeared to be the Court's own interest
in avoiding the vulnerability that comes from folding into the
Constitution a claimed right that society has not fully embraced.
Justice Souter, observing at one point that ''20 years ago, we
weren't even reading about this,'' said, ''Maybe the Court should
wait until it could know more.'' That led Justice Ginsburg to
ask whether it was merely a question of ''just waiting'' -- the
issue, she said, might be whether the Court should endorse the
concept of doctor-assisted suicide ''now or ever.''
''This case raises the basic question of who decides,'' Justice
Ginsburg said. ''Is this ever a proper question for courts to
decide?''
The Justices are scheduled to rule on the matter before the end
of the term in late June or early July. The Court agreed three
months ago to take up the issue after two Federal appeals courts,
ruling almost simultaneously last spring in suits brought by doctors
and their terminally ill patients, struck down criminal prohibitions
against assisted suicide in the states of Washington and New York.
These were the first Federal appellate rulings on the question,
and both states filed appeals.
Dennis C. Vacco, New York's Attorney General, argued the New York
appeal, Vacco v. Quill, No. 95-1858. William L. Williams, senior
assistant attorney general of Washington, argued that state's
appeal, Washington v. Glucksberg, No. 96-110.
The Clinton Administration entered the cases on behalf of the
states. Solicitor General Walter Dellinger argued in both cases
today.
In contrast to the states' lawyers, who urged the Court to find
that there was no constitutional right at stake, Mr. Dellinger
urged the Justices to recognize that terminally ill people have
a ''liberty interest'' in not having the state prevent their relief,
through doctor-assisted suicide, from ''severe pain and suffering.''
However, he said, the states' interest in ''affirming the value
of life'' and protecting vulnerable patients should be given even
greater weight, and the prohibitions should be upheld.
''The systemic dangers are dramatic'' in a society that allows
doctor-assisted suicide, Mr. Dellinger said. ''The least costly
treatment for any illness is lethal medication,'' he added.
The distinction between the Clinton Administration's view and
the states' position is more than merely academic. A finding by
the Court that a ''liberty interest'' is at stake would sweep
the question of regulating doctor-assisted suicide within the
ambit of the 14th Amendment, which prohibits the states from depriving
''any person of life, liberty, or property, without due process
of law.'' It would commit the Court to a kind of ongoing constitutional
supervision of the question.
How to define the substantive reach of the due process clause
is perhaps the most profound constitutional debate on the Court
today, and the Justices are likely to be sharply divided over
this approach even if all or most agree that the state laws should
be upheld.
''A liberty interest tosses this whole matter back to this Court,''
said Justice Antonin Scalia, the Court's most outspoken opponent
of announcing new due process rights. His tone was sarcastic.
''I suppose proclaiming a liberty interest is cost-free,'' he
said. Several months ago, in a speech at Catholic University here,
Justice Scalia said it was ''absolutely plain that there is no
right to die.''
He challenged Laurence H. Tribe, a Harvard Law School professor
who was arguing on behalf of the plaintiffs in the New York case
that ''when facing imminent and inevitable death,'' a person has
the right ''not to be forced to be a creature of the state'' and
to ''have some voice'' in the way the ''final chapter of life''
unfolds.
''This is lovely philosophy,'' Justice Scalia said. ''Where is
it in the Constitution?''
In a 1990 decision, Cruzan v. Missouri Department of Health, the
Court used a liberty-interest analysis to conclude that people
have a right to avoid unwanted medical treatment, including treatment
that is keeping them alive.
The meaning and relevance of that precedent were much discussed
today.
In striking down New York's prohibition against assisted suicide,
the United States Court of Appeals for the Second Circuit ruled
that it violated the 14th Amendment's guarantee of equal protection
because it allowed the state to treat differently two categories
of terminally ill people: those on life-support systems, who have
a right under state law as well as under the Cruzan decision to
have the equipment withdrawn, and those who have no machinery
to disconnect and who are denied the ability to hasten their deaths
by prescribed medication.
Mr. Tribe said the distinction drawn under New York law not only
was arbitrary, but also was based on a ''fantasy'' that there
was a sharp demarcation in medical terms between the two groups
of patients. Justice Anthony M. Kennedy said the distinction was
between active intervention in the case of assisted suicide and
''nature taking its course'' for those who die after the withdrawal
of equipment, but to that argument Mr. Tribe said, ''None of these
patients is in a state of nature.''
Mr. Tribe said that terminally ill patients whose life-support
equipment is removed are often placed in a deeply sedated condition,
in which they die under medical supervision.
Attorney General Vacco, arguing the state's appeal, said the Constitution's
equal protection guarantee was ''not implicated at all'' in the
way New York treats the two categories of terminally ill patients
because those who withdraw life support are ''merely asserting
the right to be let alone,'' while those who seek assisted suicide
want a third party's help in killing themselves.
In the Washington case, the United States Court of Appeals for
the Ninth Circuit, which sits in San Francisco, based its decision
not on equal protection, but on the due process guarantee, finding
a ''liberty interest in choosing the time and manner of one's
death.''
Mr. Williams, representing Washington, said the decision denied
the state the ability to maintain ''a clear line between physicians
as healers and curers and physicians as instruments of the death
of their patients.''
Ms. Tucker, representing the plaintiffs in the Washington case,
said judicial intervention was needed because ''ours is a culture
of denial of death'' in which the ordinary political process could
not work to protect the rights of terminally ill people. Referendums
to establish doctor-assisted suicide narrowly failed in Washington
in 1991 and in California in 1992; in a 1994 referendum, voters
in Oregon approved an assisted-suicide law, which has been blocked
in Federal court.
Chief Justice William H. Rehnquist asked Ms. Tucker why her clients'
constitutional claim included a doctor's assistance in suicide
rather than simply the right to kill themselves.
Ms. Tucker replied that her terminally ill clients -- all of whom
died early in the litigation -- wanted ''a peaceful, humane, dignified
death'' through medication for which a doctor is the ''gatekeeper.''
Justice Scalia asked why Ms. Tucker had limited her constitutional
claim to people with terminal illnesses. Why, he asked, would
someone faced with 10 years of ''terrible suffering'' not have
a similar right?
The dying patient ''does not have a choice between living and
dying,'' Ms. Tucker replied. ''The dying process has begun,''
and the patient has a choice only of controlling the manner of
death.
''I have to tell you, the dying process of all of us has begun,''
Justice Scalia said.
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