Next January, the Supreme Court will review two lower federal court rulings granting constitutional protection to physician-assisted suicide. In the first case, the question to be decided is whether the Due Process Clause guarantees the right of a terminally ill patient to commit suicide and, if so, whether that includes the right to be assisted in the act. In the second case, the question is whether a state unfairly discriminates by allowing terminally ill patients on life support to cease treatment, while denying to patients not on life support the right to active physician assistance in ending their lives. Few opinions of the Court in this or any other term have been freighted with greater gravity: what could be more important than the determination of the rule by which society determines who shall live and who shall die?
In anticipation of the Court’s decision, the print media and the airwaves are going to be filled with heart-rending stories about anguished patients wishing to hasten their exit from this world. We’ll hear, too, from avuncular doctors who want to help them, and from legal advocates who rail against laws that “force” people to stay alive. The issue is going to washed in bathos, and a lot of otherwise sensible people are going to be bamboozled into thinking that prohibitions against assisted suicide are foolish and harsh. For those who want to keep their heads straight, here’s a partial list of important reminders:
(1) Apart from the merits of the issue, is this something you want decided by the courts, or should the moral sense of the people be permitted to operate through legislative enactment? Judges have already shackled our ability to protect unborn children. Should they be empowered to rewrite the rules governing life and death generally?
(2) Whose rights are we talking about anyway, the patient’s or the doctor’s? Although the issue is most often framed in terms of a patient’s “right to die,” what’s ultimately at stake is whether the law ought to approve the private use of lethal force by one person against another. The law has historically—and wisely—set its face against placing the power of life and death into private hands. Indeed, the only exception is killing in self-defense, which requires a stringent evidentiary test to be successfully asserted. Now we are being asked to make a broad special exception for doctors. But why should they, and they alone among all classes of citizens, be granted such an extraordinary power? Is it because they possess knowledge of deadly potions that others cannot acquire, or because we wish to convince ourselves that killing done by people with white coats and syringes really isn’t killing?
(3) Both cases pending before the Supreme Court dismiss the distinction between killing and allowing to die. Their reasoning seems to be that a terminally ill patient is going to die anyway, so what difference does it make if he goes soon rather than late? The distinction, however, has an ancient pedigree in medicine, law, and ethics, and once the line is erased, there’s no logical stopping point. If doctors are licensed to dispense death, is there a good reason to deny similar authority to spouses and relatives? Further, why does the patient have to be terminally ill? If the will of the patient is the determining factor, an even more compelling case can be made for those who suffer from painful, debilitating, but non-fatal disease. Shouldn’t they have an equal right to die? And what about those who are for one reason or another mentally afflicted and cannot speak for themselves? Why shouldn’t their “right to die” be exercised by a surrogate decision-maker? The list of questions is endless—and endlessly alarming. But once medicated killing is authorized, we will have lost a principled ground for halting its spread to ever larger categories of perpetrators and victims.
(4) You will hear lots of talk from the proponents of assisted suicide that we can guard against abuse through tightly drawn procedural regulations. Don’t believe it for a minute. It’s been tried in the Netherlands, yet medical killing goes on in ever increasing numbers and in ever more daring ways. The reason isn’t hard to divine: the privacy and intimacy of the doctor-patient relationship erects an almost impossible barrier to outside scrutiny and policing. Doctors effectively control all the evidence, and the lately departed aren’t around to complain.
No one familiar with the Supreme Court’s track record in recent years has much optimism about the outcome in the pending cases. Then again, perhaps the prospect of numerous Kevorkians running around loose may be too much even for the Justices. Oremus.