ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Sunday, January 5, 1997 TAG: 9701060106
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: HOLLY YEAGER HEARST NEWSPAPERS
In his final week of life, Chicago Cardinal Joseph Bernardin, then dying of cancer, wrote the nine U.S. Supreme Court justices and urged them to reject the notion that dying people have a right to doctor-assisted suicide.
``Creating a new right to assisted suicide will endanger society and send a false signal that a less than `perfect' life is not worth living,'' Bernardin wrote last November.
But this week a group of doctors will tell the high court that, in effect, there is such a right. They are challenging state laws in New York and Washington that forbid them to prescribe life-ending drugs to mentally competent but terminally ill people who want to die.
An emotional national debate has simmered for several years over the issue, mainly because of the activities of Dr. Jack Kevorkian, a Michigan pathologist who has admitted helping at least 45 people commit suicide since 1990.
But the doctors in the cases that will be argued Wednesday say they are not like Kevorkian. They have treated their patients for long periods, they say, unlike the Michigan doctor, who sees patients only at the end of their lives. The physicians in the cases also insist they would help only mentally competent and terminally ill patients, and they question whether all of Kevorkian's patients fit both categories.
Federal appeals courts sided with the doctors last year and struck down the New York and Washington state laws. Officials of those states have appealed the decision, and the Supreme Court must now decide whether the Constitution guarantees a right for terminally ill people to kill themselves with a doctor's help.
The court ruled in 1990 that individuals have a constitutional right to refuse, or turn off, life-sustaining medical treatment. But all states have laws on the books, or traditions in common law, making it a crime for someone to help people end their lives.
In New York, three physicians, led by Dr. Timothy E. Quill, a Rochester internist, challenged the statute that makes doctor-assisted suicide a felony. They were joined in the case by three terminally ill patients - two with AIDS and one with cancer - who have since died.
In court papers, one of the patients, George Kingsley, who died in 1994, said, ``My informed, rational choice is that my death from AIDS - when I reach the point where there is nothing more that medical science can do to halt the advance of my disease and I am living with intolerable pain and suffering - be as swift, painless and dignified as possible.''
The doctors argued that they should be able to prescribe drugs to competent, terminally ill patients to prevent ``prolonged suffering if and when their suffering becomes intolerable.''
In agreeing with the physicians, the 2nd U.S. Circuit Court of Appeals in New York cited a section of the 14th Amendment that guarantees ``equal protection of the laws.'' There is no difference between physician-assisted suicide and refusal of life-sustaining medical treatment, the appeals court said.
But in briefs filed with the Supreme Court, lawyers for New York argued that there is a ``distinction between acts that artificially sustain life and those that artificially end life.'' The difference is ``reflected in medical practice and medical ethics, which generally permit withdrawal of treatment but forbid a physician's assistance in a patient's suicide.''
In the Washington case, four doctors also charged that their state's law making assisted suicide a felony was unconstitutional. In addition to the ``equal protection'' argument, they said the 14th Amendment's guarantee of liberty applies to ``life-shaping decisions that individuals make about their bodies and futures.''
A court brief said one of the doctors, Abigail Halperin of Seattle, watched helplessly as a patient who had terminal breast cancer ``rejected living her final days in a dependent and undignified manner'' and asked for ``medications she could take to hasten her death.''
Halperin, according to the brief, ``was forced to reject this request. The patient suffocated herself by securing a plastic bag over her head.''
Halperin and the other Washington doctors were joined in the lawsuit by three other patients - one with cancer, one with AIDS and the third with emphysema - who have also died.
The 9th U.S. Circuit Court of Appeals in San Francisco agreed with the doctors, holding that the 14th Amendment includes ``a liberty interest in choosing the time and manner of one's death.''
In their appeal, Washington state's lawyers noted that the Supreme Court has recognized getting married and using contraceptives as constitutionally protected ways to control the makeup of one's family. ``But other means to that end - polygamy and infanticide, for example - are not the subject of constitutional protection,'' the lawyers wrote, adding that physician-assisted suicide belongs in that category.
The state's lawyers also said there is nothing in the nation's history or tradition that makes physician-assisted suicide a fundamental right.
In a ``friend-of-the-court'' brief on behalf of New York and Washington, the Clinton administration argued that the states' interest in protecting life can outweigh an individual's right to avoid pain and suffering.
In another brief, the American Medical Association also backed the states. ``Permitting a physician to certify a patient as belonging to a death-eligible class, and then to assist that patient in taking his or her life, is incompatible with the physicians' healing role,'' the association said.
But Death With Dignity, a San Mateo, Calif.-based nonprofit group that works with terminally ill patients, argued that mentally competent, terminally ill adults have ``a right to choose a peaceful, pain-free and dignified death.''
In a brief filed on behalf of the doctors, the group said, ``Unlike the traditional `suicide' the terminally ill person who seeks physician aid in dying does not have the primary goal of ending his life - nature has taken care of that.'' Such a person ``wants to end his suffering by shortening the dying process. No state has a legitimate interest in prolonging the suffering of the dying.''
Herman Schwartz, a law professor at American University in Washington, D.C., predicted that the Supreme Court will not side with the doctors and overturn the states' bans on assisted suicide.
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