Lifewatch: Going to the Promised Land

The news came in the first days of August, as a group of Diocesan pro-life leaders were assembling in Orlando: a federal judge had struck down a “ballot initiative”, approved by the voters of Oregon last November, the so-called Death with Dignity Age.

The promoters of euthanasia had suffered a dramatic defeat in 1992, with a referendum on assisted suicide, just when they had appeared to be on the threshold of success. But such was their dedication to the cause of death that they persisted, and they would present to the public this time a measure that seemed to be fashioned from the most exquisite moderation. Measure 16 would merely carve out a special permission for the “terminally ill,” to obtain from their doctors a prescription for drugs in a dosage that would dispatch them.

But behind this facade of moderation, the Act planted premises that would overturn the understandings long settled in the law on suicide and the vocation of doctors. In fact, the plans were already in place for a strategy of litigation that would begin to draw out the radical implications contained in this limited first step.

Yet, all of these plans were cut off in a stroke by Judge Michael Hogan of the Federal District Court in Oregon. For the pro-lifers there was a wave of elation on hearing the news; but then came the moment of sitting down to a careful reading of the opinion. And there I would have to report that there is good news and bad — but with a possibility of redemption: From the portents of trouble with this opinion there may spring, eventually, news even more superlative yet.

The good news: This would seem to be the first time that a federal judge has invoked the Constitution for the sake of protecting the people who would be marked as the prime victims of euthanasia. With Judge Hogan’s move, the Constitution could be used now to protect patients from activist judges, as well as from legislative majorities that would install policies of euthanasia.

But then the bad news: If this step succeeds, if it is confirmed in doctrine, it threatens to produce the most serious rupture between the pro-life movement and their allies among conservative jurists and lawyers, the people who fill the Department of Justice and the federal bench under Republican Administrations. Some of them have been deeply engaged recently in defending the rights of the voters in Colorado and Cincinnati to limit their own legislatures on the matter of gay rights. Here, as in other instances, that right had to be defended against activist judges.

The conservative jurists and writers have begun in recent years from a profound distrust of judges, especially federal judges, flexing their interpretive genius to extract new meanings from the Constitution. In this respect, the conservatives have been heirs to the New Deal, with its strong prejudice in favor of the power of voters and legislators, at all levels, to govern, and even make massive mistakes, as long as those mistakes can be corrected ultimately by the people at the polls.

For lawyers tuned to this temper, the opinion by Judge Hodag will set off warning bells and buzzers. It is likely also to set off tremors of uncertainty because—to put it gently—the writing is not exactly a model of elegance. I fear that readers are likely to scratch their heads when they encounter this pivotal point late in the opinion:

The court finds that there is no set of facts under which it would be rational for terminally ill patients under Measure 16 to receive a standard of care from their physicians under which it did not matter whether they acted with objective reasonableness, according to professional standards.

Judge Hogan’s argument, hidden in this language, is that the State has removed, for the “terminally ill,” the kinds of protections that would come into play for everyone else against the danger of suffering death, even at their own hands. For everyone else who contemplates suicide, a doctor may be authorized to hold the patient for treatment, for as many as five days, to be sure that he is not simply in the throes of a depression. But under Measure 16, a doctor may judge, in a less than rigorous way, that the patient is terminally ill; and if he has no reason to believe that the patient is impaired in his judgment, he could prescribe pills and set him on the path to self-killing, without the need to check his own diagnosis or seek counseling for his patient.

And yet, it does not always require deep arts of counseling to determine that a patient may be consoled or made more comfortable with measures short of death. Here, then, in Judge Hogan’s estimate, lies the constitutional fault, a violation of the principle contained in the Equal Protection Clause: “Measure 16 withholds from terminally ill citizens the same protections from suicide the majority enjoys… [T]he very lives of terminally ill persons depend on their own rational assessment of the value of their existence, and yet there is no requirement that they be evaluated by a mental health specialist.”

Judge Hogan may have placed an injudicious confidence in the body of science that is expounded by the “mental health specialist,” and in this case, it may distract people from the principled grounds of the judgment. Daniel Robinson has already warned us on this point amply in his writings on the “insanity defense”: There is every reason to doubt that psychiatrists command a science that allows them to gauge, any more clearly than the rest of us, just when people are “impaired” in their judgment. The conservative jurists may point out that Hogan is simply willing to prescribe more and more procedures whenever the law makes it easier to do something that he thinks should be made harder to do. And yet, there may be plausible reasons, in public policy, to lessen these burdens on occasion. We may have an interest, for example, in encouraging certain drugs to be developed and diffused more quickly in the market. We may decide then consciously to lessen the burdens of proof, or the kinds of stringent regulations that discourage the development of new drugs.

The partisans of suicide do not show the same, finicky concern about the procedure because they do not start with the assumption that there is something irrational about suicide. Hogan assumes that self-killing is immanently irrational, but he has not offered any argument on the root of that matter. He dresses his argument in the concern for procedure, but evidently he takes it as an axiom of our law and moral judgment that life is a good, that it is to be chosen over death. If it were not, then the babysitter, faced with a fire in the house, could just as plausibly choose, for her charges, the “good” of death as the good of life. In Hogan’s understanding, there must be principled reasons for justifying the choice of death for certain persons. In the same measure, there must be principled reasons before we withdraw, from any class of persons, the kinds of safeguards that the law erects in other instances to protect people from the taking of life, even at their own hands. We would hardly be warranted in taking the life of another person because he happens to be depressed or suffering pain; and if those reasons are not good enough in principle, they cannot justify a killing, even if the victim happens to be oneself.

It seems to come as a curious surprise to conservative commentators on the law that the Constitution does provide some guidance in raising these kinds of questions. If the laws of a State permitted members of a racial minority to be lynched, no one would have much doubt that the Constitution would help us raise a challenge to that state of affairs. We could plausibly ask why the protections of the law have been withdrawn from a whole class of people on the basis of race. And in the same way, we could raise a comparable  question in regard to abortion: How could the law recede from the protection of a whole class of human beings on the basis of attributes that could not justify the taking of their lives — namely, “looks,” size, “viability,” or the estimate of whether these persons happened to be “wanted”? When we begin raising questions of that kind, we establish the ground to do far more than return the question of abortion to the separate States. We remind ourselves of the ground on which the judges may aptly use the Constitution to protect unborn children even from legislators, but especially from activist judges, at the local level.

For many conservative jurists, we speak here heresy or treason. But that is exactly where Judge Hogan’s opinion leads. And if our political friends, on and off the bench, do not scuttle it, if his judgment is sustained by the courts of appeal, it would establish the jural ground for something that runs well beyond the overturning of Roe v. Wade. Stumbling, not overly touched with gifts of expression, and not joined yet by any of his more celebrated colleagues, a federal judge somehow found his way to hallowed ground.


Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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