ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Monday, January 6, 1997 TAG: 9701060098
SECTION: EDITORIAL PAGE: A-6 EDITION: METRO
COLUMN: GEORGE F. WILL
SOURCE: GEORGE F. WILL
WEDNESDAY morning, a momentous event of 1997 will begin to move toward a summer climax. This will occur in the ornate chamber where, 24 years ago this month, the seeds of the event were sown.
The Supreme Court will hear arguments defending two lower courts' decisions in which judges discovered in the Constitution a right to physician-assisted suicide. Will the court be appropriately dismayed by the use to which its abortion reasonings have been put?
At issue is not proper public policy about an individual's involvement in ending his or her life. Rather, the issue is whether judges will use the Constitution as a pretext for pre-empting, as was done regarding abortion policy, and with comparable consequent public bitterness, democratic deliberation and decision about a complex question involving grave consequences for everyone.
Last March, the 9th U.S. Circuit Court of Appeals overturned a Washington state law making it a felony to assist a suicide attempt. That court said its ruling was merely an extension of the ``common thread'' of the Supreme Court's abortion decisions. But that thread is snarled.
In 1965, the court held that a Connecticut law banning the sale or use of contraceptives unconstitutionally violated a right not hitherto explicitly affirmed, a right of privacy. The court grounded this right in society's stake in the institution of marriage, ``an association that promotes a way of life a harmony of living a bilateral loyalty.'' Note well: The court invested the privacy right with constitutional gravity for an institutional reason, not so that individuals could make whatever choices they pleased regarding sex.
However, in 1973, in Roe vs. Wade, the court said the privacy right is really about an individual's right to choose. The court made abortion a choice free from interference by husbands or parents. And by 1992, in another abortion case, the court, declaring abortion a right central to ``autonomy,'' gaseously said, ``At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.''
Last March, the 9th Circuit Court cited that effusion in declaring a constitutional right to make ``decisions that are highly personal and intimate, as well as of great importance to the individual.'' Such as the decision to end one's life. Whether or not (by the implication of the 9th Circuit's ``standards'') one is terminally ill, or one's helper in suicide is a physician.
But, then, why not also declare constitutionally sacrosanct a decision - personal, intimate, important - to use heroin? Or to practice consensual incest or polygamy? Who is to gainsay a person's - or a judge's - contention that such practices accord with his definition of existence, or meaning, or the universe, or life's mystery? Has constitutional reasoning been so degraded that judges can use such words as scythes to mow down laws across the continent, and (regarding physician-assisted suicide) to overturn ethical and prudential norms more than two millennia old?
In April, the 2nd U.S. Circuit Court of Appeals found New York's law against assisted suicide an unconstitutional denial of equal protection of the laws. Its reasoning: Persons on life-support systems have a statutory right to terminate such treatment, so a ban on assisted suicide discriminates against terminally ill persons who are not on life support and therefore cannot similarly choose fatal withdrawal of treatment.
The Supreme Court should hold that there is a legitimate state interest in the distinction (drawn by most states) between passive measures to allow nature to take its course with a dying patient, and actively empowering physicians to use medical instruments, such as drugs, to cause death as a ``therapeutic option.''
The court would spare itself, and all federal courts, the agony of regulating the unregulable were it simply to say: The Constitution is silent regarding suicide. Laws proscribing assistance for suicide were common when the Constitution was ratified, and many have been recently reaffirmed, so this is none of the federal judiciary's business.
Then 50 state legislatures can proceed with the increasingly urgent task of educating themselves and the public through deliberations about the dangers attendant upon erasing the distinction in the preceding paragraph. Those dangers include unpredictable, but certainly insalubrious, changes in the relationship between doctors, patients and patients' families in an era when the technology and finances of medicine multiply the ethical conundrums of serious protracted illness, particularly late in life.
Today's court has a penchant for casting every complexity in terms of individual rights and for bandying notions of constitutionally protected ``autonomy.'' It should master that penchant lest it further strengthen, as it did 24 Januarys ago, the culture of casual killing.
- Washington Post Writers Group
LENGTH: Medium: 88 linesby CNB