Life Watch: In the Chambers of Judge Reinhardt

Among the notable surprises of 1995 were two pro-life judgments that emanated, from of all places, the federal courts. Both were in the Ninth Circuit on the West Coast. One opinion was written by Judge John Noonan, an accomplished scholar, and a powerful writer in the pro-life cause before he was appointed to the bench by President Reagan. Noonan had written for a panel of three judges in overturning the judgment of a lower court, and reinstating the ban, in the state of Washington, on assisted suicide (Compassion in Dying v. Washington).

The other decision, recounted in these pages last September, involved a law in Oregon that removed the legal barriers to assisted suicide for people who were “terminally ill.” In that case (Lee v. Oregon) Judge Michael Hogan actually engaged the Constitution to strike down the law, as a species of discrimination against people who were terminally ill and distinctly vulnerable to the pressure to end their lives. Two opinions, especially striking because they were so discordant with the themes sounded and the judgments reached these days by federal courts. And both judgments were swept away in a single stroke by a larger panel of the court of appeals at the beginning of March.

The operation was skillfully performed by Judge Stephen Reinhardt, a Carter appointee, a seasoned liberal Democrat, who has transferred his political arts to the courts. Strictly speaking, the case involved an appeal from Noonan’s judgment in Compassion in Dying v. Washington, and that was the only case that the court of appeals had before it, to affirm or overturn. The case from Oregon had come along this past August, well after Compassion in Dying had been argued. But that decision by Judge Hogan seemed to cast up another barrier to the project of assisted suicide. As the court put it, that decision was yet another “legal obstacle” to the doctrine it was trying to put in place now. Judge Reinhardt disposed of that obstacle simply by declaring, with the voice of authority, that Judge Hogan had “clearly erred.” And his error? Judge Hogan had held that the law on assisted suicide removed from the terminally ill the protections that the law cast about all other people, in protecting them from schemes to “assist” and promote their deaths. But the mistake, for Judge Reinhardt, ran to the root: This was not a disability for the terminally ill, but a blessing or a benefit. “In short,” wrote Reinhart, “[Judge Hogan in Lee] treats a burden as a benefit and a benefit as a burden.”

The original action was brought by patients who were at the edges of their lives and by physicians who claimed that they were threatened with prosecution if they helped their patients end their lives. One physician, Peter Shalit, described the condition of one of his patients:

[He] lingered in the hospital for week, his lower body so swollen from oozing Kaposi’s lesions that he could not walk, his genitals so swollen that he required a catheter to drain his bladder, his fingers gangrenous from clotted arteries. [His] friends stopped visiting him because it gave them nightmares.

That the sight of sick patients may be sickening is nothing that should stir surprise. It rather accords with common sense or with the reaction we would commonly expect. What I find persistently surprising though, is the fact that this country has drawn to the care of the sick an array of nurses, residents, and doctors who tend to these patients every day and yet are not repelled by them: instead of seeing, as Dr. Shalit saw, a case of oozing Kaposi’s lesions, these people simply see a man, afflicted with illness. Remarkably, they do not reduce the man to his malady. And still less do they find, as a ground for ending his life, the fact that his condition is so deeply disturbing to his friends.

The inclination of the doctors is to deal with the problem by relieving the pain, not by extinguishing the bearer of the pain. At times, they may supply a regimen of drugs that has the patient passing away under a gentle “snow.” But in the traditional understanding, they see themselves, rightly, as ministering to the patient and not acting for the purpose of bringing about his death. But that traditional distinction is derided in the opinion by Judge Reinhardt, along with other distinctions that have mattered in the past. Most notable here is the difference between the refusal of treatment by the patient and his plea for active help in hastening his death. In Reinhardt’s understanding, the first virtually entails the second. For the root of it all is the autonomy of the person, or that “liberty interest” in controlling the decision that is the most “delicate, personal, important, or final,” the decision on “how and when one’s life shall end.” In the presence of that cardinal premise, it is hard to treat as anything other than disingenuous the distinctions that Reinhardt still affects to treat seriously. And chief among them would be the distinction between prescribing, for a patient’s own use, the drug that will end his life and allowing a physician to administer those drugs directly to a patient too infirm to administer them to himself. Indeed, Reinhardt intimates quite as much with a wink from the bench: it may indeed be “difficult,” he allows, “to make a principled distinction” between these two forms of dispatching a patient. The distinction ends once we have conceded the main premise, that the patient has a “right” to order his death for reasons he regards as sufficient.

The feigned attempts to limit, or hedge in, the administration of death are revealed in time to be unavailing because they are undone by the very logic of a “right”: If I have a right to end my life, then I should have a right to engage someone as the “agent” of my rightful purpose if I cannot accomplish the end on my own. In that way, the law moves to the doctrine of “substituted judgment”: Uncle Julius is not in a position to make his own wishes known because he is in a comatose (or nearly comatose) state. Why should he deprived then of the “right” that is accorded to other patients, to be quit of a life they now find burdening for themselves and their relatives? In this way, through the logic of a right, we move from the right of the patient to take his own life to the right to make other people into accomplices in the taking of his life. And then finally, the right is transferred to other people to take the lives of relatives who have been too laggard or reticent in making their wishes known. In this manner, as Judge Beezer notes in dissent, the Dutch managed to move from a policy of “voluntary euthanasia” to a situation that produced, in 1990, 1,000 cases of “involuntary euthanasia.”

Reinhardt labors to suggest a rather narrow decision, carefully framed, taking account of many plausible interests of the state in discouraging the assistance to suicide. But he offers, artfully, a facade of moderation to cover a judgment that is radical at its core. The state might insist on a regimen of therapy to ensure that a patient is not choosing death out of depression. Or it might insist on more witnesses to establish that the decision was truly voluntary. Or, then again, it may not. The court, it is clear, will not be pressing along those lines. But we can predict that the judges will be testing severely any procedures that create an “undue burden” for patients who are seeking to exercise this new “liberty interest.”

The decision is supposedly confined to the “terminally ill,” but that is a condition notoriously subject to faulty estimates and hazy boundaries. And will this new license really be confined, as the courts suggest, to older people in their declining years? Reinhardt draws repeatedly from the fount of Roe v. Wade and the right to abortion, and commentators have already pointed out the connection to children: why should the same benefits not be accorded to newborn infants, afflicted with spina bifida or other conditions that promise already to shorten their lives? After all, if the parents withhold corrective surgery in these conditions, it could truly be said that the illnesses of the children are “terminal.” And that, too, as the dissent points out, is a difference that would be, for Judge Reinhardt, a distinction that no longer matters.

Reinhardt takes curious note of the concern that decisions of this kind will remove the underpinnings of respect for life. But he remarks, with a serene flourish, that the same overheated things were said about abortion and proved so baseless: “The legalization of abortion has not undermined our commitment to life generally; nor . . . has it led to widespread infanticide. Similarly, there is no reason to believe that legalizing assisted suicide will lead to the horrific consequences its opponents suggest.” The problem simply dissolves in a wash of serenity if one merely supposes that the 1.3 million abortions performed each year do not destroy human lives or infants. In that case, the engines of abortion can keep moving while the judges look out and see, on the landscape, no discernible signs of infanticide. What seems to pass the understanding of Judge Reinhardt is that we are no longer taking readings to gauge whether we are on a “slippery slope.” His own decision is itself the telling sign that we have arrived at the “terminal” state of that slippery slope: our jurisprudence is now anchored in a radical disrespect for life, and our leading jural minds have detached the notion of “autonomy” from the moral framework that once established its meaning and coherence.

From this decision of the appellate court in the Ninth Circuit, there is only one path of appeal, and that is to the Supreme Court. But a Court now containing Justices Breyer and Ginsburg offers no ground of hope. At a certain point, pro-lifers will have to break themselves from the romantic haze that still engulfs some of them when it comes to the political parties and finally take notice of facts too plain to be ignored any longer. The judges overruled in these cases were appointed by Ronald Reagan. The antilife decisions have come from the Carter appointees, with reinforcements supplied by Bill Clinton. Many Catholic bishops are still attached, in their “social agenda,” to the liberalism of the Democrats. And they persist in their attachment even as that liberalism is steadily denied and undermined by the Democratic appointees to the courts as they address abortion and the life issues. If there are pro-lifers who still affect to be puzzled by the differences between the parties, even as they come to the threshold of a presidential election, someone should provide them with a kind of Sesame Street kit, to instruct them in the rudiments of political sobriety. And they can begin with the difference between Up and Down, Life and Death.

By

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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