Life Watch: The News from America

At the end of June, the Supreme Court came forth with a unanimous judgment in rejecting a “right to assisted suicide.” The decision in Washington v. Glucksberg had been expected since the oral argument months earlier had indicated rather clearly the inclinations of the justices. Still, with matters pending, I happened to leave the country before the decision was released, and the news had to make its way to me in Italy. But as Damon Runyon used to say, “a story goes with.”

When our younger son, Jeremy, was an undergraduate at Georgetown, I had pressed him to make a trip to Italy, perhaps even to stay for a semester at the villa held by the university at Fiesole, in the outskirts of Florence. But he could never quite find the occasion for an extended trip. Now, however, he had finished his doctorate in economics, he had landed a new job, and while he was waiting to move, he was in a rare state of “transition.” I had not been back to Italy in eight years, and so this seemed the moment to give Jeremy his first visit. But so fired was he now with the interest in going that he was propelled to fly off on his own, ten days before I could join him. And with the brashness, or the special nerve, of young people in our own time he proceeded to rent a car and make his way, on his own, to the mountains and then to the sea, without speaking a word of Italian. That progress was made possible, of course, by the fact that over the past dozen years, English has been diffused even more widely throughout Italy. For the Italians and other Europeans, it seems to have become the second language. This new state of affairs rather undercuts the efforts of some of us earnest, old-fashioned folk who feel obliged at least to try to speak first in Italian. Of my own efforts several years earlier, I had embellished some notable stories: I had told the waiter that I was trying to find the sugar, and he thought I wanted to “try” his “mother-in-law.” Zucchero? Suocera? With my accent, it may be hard to make out the shading. I was tempted at times to apologize with an old line of Victor Borge’s, roughly reworked: “É vostra lingua; sto soltanto usandola.” Or, “It’s your language; I’m only using it.”

But the new presence of English was brought home more dramatically in the hotels. Not only had the rooms now added television, but some of the hotels were hooked up to cable carrying CNN. When in Rome, I wished to have news of the Romans; but anyone wishing to be plugged back into the United States could now have familiar American faces reporting the news from back home. Yet, not exactly. It was the news from America that was thought to be of interest to an audience in Europe. And so, while we were in Tuscany, we could hear the reports of the stock market, the death of Jimmy Stewart, and the escapades of Mike Tyson biting ears. But of the decisions of the Supreme Court very little; and of a major decision on assisted suicide, nothing. That discrete omission I took to be quite telling. The men and women who run CNN claim to be nothing if not tuned to the ways of the world and a sense of the things that truly count. In their estimate, apparently, the stock market counts. But they do not accord a comparable weight to a decision of the Supreme Court, shaping the relation between the law and the regulation of life and death. The value of the dollar abroad is one thing; but the terms of principle on which Americans live their lives is not thought to be an issue of the same moment, or of the same burning significance.

From the first accounts filtering to Europe, it appeared that the Supreme Court had been unanimous in rejecting a “right to assisted suicide.” But behind that unanimous front there were many shadings of opinion, and the judgment was far more unstable than it appeared. The justices were well aware that none of the litigants near death, who were pressing their “rights” in this case, had been deprived of the death they had sought. They had not been compelled to suffer pain; they had as much medication as they sought and they had, at all times, the freedom to reject any treatment they could not abide. If there was any “right,” then, left to be declared, it would have to depend on circumstances so rare that they had not shown up yet in any case.

At the same time, the justices had been made quite aware of the experience in the Netherlands. A policy of “voluntary euthanasia” had managed to produce, in 1990, about a thousand cases of doctors ending the lives of patients without an explicit request. This report usually brings a mild jolt of surprise, and yet the experience follows quite readily from the logic of a moral judgment: Once it is understood that it would be justified and rightful to deliver certain patients from their condition (perhaps patients in a comatose state), why should other comatose patients be deprived of this “good” because they are too impaired to make their preferences known? The doctors already were candid enough to admit that it may not be possible to cabin such a “right” to patients in a terminal condition. For one thing, doctors have been widely off the mark in their estimates of how long their patients had to live. And besides, the logic of this right could not readily be confined to patients near death. Once doctors are licensed to dispatch patients who wish to be quit of their lives, why should they withhold that “good” from patients who simply bear the strong desire to have it? The justices seemed quite aware then that they could be generating vast hazards throughout the landscape if they pronounced in this case a sweeping, new right.

And yet, at least four of the justices were not willing to let the matter pass from their hands. In one way or another, Justices O’Connor, Stevens, Souter, and Breyer signaled a willingness to return to the problem if someone, somewhere in the territory of the United States, were made to suffer, against his will, a lingering, painful death. Four justices were willing to signal, then, a restless willingness to move instantly in the opposite direction. And that sense of things was amplified in the rhetoric. The rhetorical play, the inventiveness, the casting about for the right metaphor, were all on the side of the justices who were trying to render more plausible, or attractive, the reasons for hastening death. In contrast, there was no comparable effort on the other side to draw out the implications of “unalienable” rights: to point up again the moral limits on the freedom to choose or the things that people may not rightly “alienate” or waive, even in the name of their freedom. There was a fleeting reference to this notion in the plurality opinion of the Court, sustained by five justices (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas). But that understanding was quickly passed by as the plurality cast its argument along other lines, and that framing of the argument made a profound difference.

The question before the Court was whether there was a constitutional right to assisted suicide; and in weighing that question, Chief Justice Rehnquist began “by examining our Nation’s history, legal traditions, and practices.” In that vast inventory of experience, the laws that forbade suicide, or the assistance to suicide were no innovation. The ban on suicide ran back to the common law, and in almost every state, as Rehnquist remarked, the ban on suicide had expressed “the States’ commitment to the protection and preservation of all human life.” To this ground of the law, he could then annex all of those considerations that argued powerfully against any attempt, overly clever, to create subtle exceptions: a concern for the poor or the elderly, who might come under pressure to curtail their care, or a concern even to guard the integrity of the medical profession—to keep doctors from being converted into killers.

But then the chief justice made it clear that he was not ranking or confirming these interests. They were merely a collection of plausible concerns that could be invoked by a state—and then again, they could just as legitimately be discarded. As the Court framed the problem, a state might decide, with a comparable legitimacy, to recede from “the protection and preservation of all human life,” and to shape its policy instead to the end of easing the path of doctors in aiding the suicide of their patients.

The Court, then, did not make an argument in principle for the protection of human life, or explain why the Constitution might cast up barriers to any state that sought to lower the protections of life. The justices appealed instead to “historicism” and to the habits of our tribe: There is, in the Constitution, no right of assisted suicide, because a right of that kind has never been recognized in the laws or conventions of our people, in any epoch of our experience together as a nation. And yet the same kind of argument had been made even more forcefully on the matter of abortion. But that appeal to “tradition” quickly dissolved; it melted into nothingness when it confronted the question of why it should be respected, here and now, against the claim of any person to govern her own body. When that question is pressed again on the right to die, the conservatives will be compelled to come forth with something more substantive, something closer to a principle that can explain the rightness, and the necessity, of protecting human life.

But the cast of the opinion itself revealed, quite dramatically, the unwillingness of the conservative justices to offer that kind of argument. What was revealed then, once again, was the moral diffidence that stands at the core of conservative jurisprudence. Good people, with good reflexes, produced on this occasion a welcome result. But the justices could not offer a deeper, moral account as to why that judgment was justified and rightful. And in the absence of that account, this was a decision that could burn brightly for a while with a hopeful flame, but then, with a diminishing light, extinguish itself.

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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