For the past few weeks, while the country waited to hear who would be nominated to the Supreme Court, a series of lower court decisions was being laid down, one case after another, like stepping stones, leading directly to the door of the courthouse.
Whoever sits on the highest bench is going to be there when one of the most sensitive issues arrives: the issue of doctor-assisted suicide. The question will come bearing all the moral weight and political heat of the issue of abortion. The decision may be as famous and as fractious as Roe vs. Wade.Two courts have now issued absolutely opposite opinions about the constitutional right to assisted suicide. One of these courts was in Michigan, where the Jack Kevorkian story is the longest running saga of our public ethics class.
On May 2, Kevorkian was acquitted of breaking a law specifically written to stop him. After watching an emotional videotape that showed Thomas Hyde, in advanced stages of amyotrophic lateral sclerosis, pleading to die, the jury refused to convict Kevorkian of wrongdoing for heeding that plea.
Days later, the state appeals court struck down the so-called Kevorkian law, on a technicality. But the same 2-to-1 majority on the appeals court went on to declare that there is no constitutional right to suicide or to assisted suicide. "Liberty and justice will not cease to exist if a right to commit suicide is not recognized," wrote Judge Thomas Fitzgerald.
This is the exact opposite of what a federal district court judge in Seattle had decided days earlier. There, Judge Barbara J. Rothstein struck down a 140-year-old state ban on assisted suicide, saying that the law violated the 14th Amendment by restricting a person's liberty.
"There is no more profoundly personal decision," she wrote "nor one which is closer to the heart of personal liberty than the choice which a terminally ill person makes to end his or her suffering and hasten an inevitable death." So the sides are joined with more cases to come.
There are some 30 states that make it illegal to help someone commit suicide. In opinion polls, the public is in favor of letting doctors aid the terminally, painfully ill who want to die. But at the voting polls, they have publicly rejected initiatives that would make it legal.
Indeed, in Washington state, some of the same people who brought their case to the ballot in 1991 and lost brought their case to the court in 1994 and won.
Judge Rothstein's opinion leaned heavily on the Supreme Court's abortion decisions. But the analogy to abortion is not just a legal one. It's a political one.
Americans are at the same point in the debate over suicide, assisted suicide, the right-to-die and euthanasia that we were in the debate over abortion in the early 1970s. We're at the beginning.
Ethicists and advocates may have done a great deal of thinking about suicide, but the image in the public mind is still largely like the one in Thomas Hyde's videotape. It's the portrait of a painfully, terminally ill person. It's us. It's the people we love.
We haven't yet traversed all the slippery slopes around this territory. Nor have we wrestled, compromised, argued our way in public through a list of safeguards.
We have only begun to discuss when and who and under what circumstances which patients should get the help of which doctors. When is pain truly uncontrollable? What's terminal? Who needs a doctor's help in dying and who needs our help in living?
These questions are being explored in places like Michigan, where a legislative commission is meeting, and in Oregon, where careful advocates have produced a ballot initiative.
But in America, the courts continually pre-empt public debates. In our court of first resort, we frame so many - too many - questions in the language of rights, and then duel to the death over those rights.
Two decades ago, the Supreme Court issued the abortion decision. But Harry Blackmun's compromise didn't mute the controversy. We entered into a 20-year abortion war in which a scorched earth policy replaced the search for common ground.
Now we are about to scrutinize Blackmun's successor. In the days ahead, measure the humanity as carefully as his mind. Because there are cases making their way inexorably to his doorstep. And the furor over the end of life could be every bit as intense as the furor over the beginning of life.