If last week's federal court "right-to-die" ruling is allowed to stand, what will it mean to you and me?
A new medical specialty - the euthanist? Independent euthanasia clinics? Patients being subtly encouraged to consider suicide by managed-care cost-cutters?The U.S. Ninth Circuit Court of Appeals was clear and emphatic when it ruled fatally ill patients have a constitutional right to ask a doctor to speed up their deaths. But it still left us with questions about how doctor-assisted suicide would play itself out in real life.
That "we" includes several hundred dying people who don't see why they must continue to suffer.
The court ruled, 8-3, that the Constitution gives a competent, dying adult a strong "liberty interest" in a "dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness - diapered, sedated, incompetent."
The ruling struck down a 140-year-old Washington state law that makes it a crime to help anybody commit suicide.
Judge Stephen Reinhardt, author of the opinion, wrote, "If broad general state policies can be used to deprive a terminally ill individual of the right to (decide when and how to die), it is hard to envision where the exercise of arbitrary and intrusive power by the state can be halted."
Citing "gruesome alternatives," Reinhardt told of a 34-year-old man who had been in severe pain from AIDS-related cancer for months, but couldn't get a fatal dose of medicine because his doctor feared prosecution.
Finally the man jumped to his death from a Seattle bridge.
The people asking questions about the decision are narrowly divided. Assisted-suicide referendums have recently been defeated in Washington and California by a 5 percent margin. Oregon voted "yes" by an equally narrow margin 15 months ago, but a federal court injunction is blocking it.
Some of the questions being asked this week:
- Who would the decision effect? Technically, it will effect people in only the nine western states where the appeals court has jurisdiction. But it can be cited in arguments in other courts.
- How would it change doctors' practice? There should be no change for those opposed to speeding up a patient's death. No health care giver would be required to go against conscience.
For the 60 percent of doctors who say it could be an act of compassion - especially the 20 percent who admit quietly doing it already - it would mean they could discuss the options openly with patients and families, without fear of criminal prosecution.
- What would it mean in the 30 states where assisting in a suicide is a crime? The appeals court called on those states to rewrite these laws so they wouldn't apply to competent dying patients.
- Would it affect Oregon's assisted-suicide law? Judge Reinhardt wrote that his colleagues disagree with the federal judge blocking that law. The Oregon attorney general's office is filing an emergency motion asking the appeals court to lift the injunction immediately.
- Would the elderly and disabled be in danger? Some think so, including at least one of the dissenting appeals judges. David O'Steen of the National Right to Life Committee has told a reporter, "The ruling means euthanasia won't be voluntary, which threatens every grandmother, grandfather, and medically dependent or disabled person."
This is a common charge, but it appeals to fear, not fact.
- How would it be governed? The guidelines all call for a mentally alert adult, certified by two doctors as terminally ill or in intractable pain, asking repeatedly for death - at least once in writing. There is no room for a surrogate decision-maker of any kind - neither the state nor a loving next-of-kin.
- Will the conservative Supreme Court uphold this ruling? It could, but nobody's predicting. In April the Supreme Court refused to consider, in the case of Dr. Jack Kevorkian, whether there is a constitutional right to suicide. In a 1990 decision affirming the constitutional right of patients to refuse treatment, it specifically ruled out active assistance in dying. The Reinhardt decision argues that the two are alike.
The conservative Supreme Court last year upheld the landmark abortion decision, Roe vs. Wade. The Ninth Circuit last week leaned strongly on comparisons between the right to die and the right to abortion.
If the Supreme Court upholds this decision, either confirming it or refusing to hear the case, the date - March 6, 1996 - will be in the history books. It will be like the anniversary of Roe v. Wade: Some will curse it, and some will be deeply thankful. But they won't forget it.
(Bruce Hilton, director of the National Center for Bioethics, has been an ethics consultant to doctors, hospitals and patients since 1972. He welcomes your letters via Compuserve (70523,1071) or America Online (Ethctee).