The Legal Logic of Euthanasia
by Michael M. Uhlmann
Critics of <Roe v. Wade> have long contended that the principles
used to justify abortion would soon or late be used to justify
other forms of medical killing such as voluntary and, eventually,
involuntary euthanasia. Slippery slope arguments are often
overdone, but the fact remains that virtually every argument for
taking a human life in utero can be applied to a human life ex
utero, including yours and mine. Is the person "unwanted"?
Medically compromised? Unwilling or unable to lead a "meaningful"
life? A heavy economic burden? A hindrance to another's health or
happiness? Abortion advocates, of course, dismiss the analogy as
so much tendentious rabble-rousing, definitely not the sort of
thing serious people should take seriously. A woman's "right to
choose" bears no relation to euthanasia, and only a fool or a
demagogue would argue otherwise.
That that suggests about the U.S. Court of Appeals for the Ninth
Circuit, I do not know, but its March 6 opinion in <Compassion in
Dying v. State of Washington> turned precisely on the point that
abortion and assisted suicide share a common rationale. That
rationale will be found, the court said, in the liberty guarantee
of the Due Process Clause of the Fourteenth Amendment ("No State
shall . . . deprive any person of life, liberty, or property
without due process of law"). Citing abundant Supreme Court
precedent, the court pointed out that liberty is an evolving
concept whose content cannot be limited by historical
understanding, customary usage, or, for that matter, the words of
the Constitution itself. Although the specific content of one's
"liberty" at any given time may be difficult to assess, we know at
least this much: choices central to personal autonomy are also
central to liberty under the Fourteenth Amendment. A right of
autonomy broad enough to cover a woman's right to kill her
offspring, declares the Ninth Circuit, is broad enough to cover
(at the very least) a terminally ill person's right to determine
the time and manner of death. And thus it is that the American
Proposition, which began with the declaration that all men are
endowed by their Creator with an unalienable right to life, now
means that they are also endowed (by whom it is not clear) with
the right to die.
Two weeks after the Ninth Circuit's decision, what had been done
with abandon in San Francisco was done more carefully-and perhaps
more seductively-in New York City. There, the Second Circuit Court
of Appeals handed down its decision in <Quill v. Vacco,> a case
brought by three doctors against New York State's ban on assisted
suicide. The court struck down the law as applied to terminally
ill patients, but refused to follow the Ninth Circuit's reliance
upon the Due Process clause. Instead, Judge Roger Miner ruled that
the prohibition violated the Fourteenth Amendment's Equal
Protection Clause ("No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws"). Precisely
because it is less abstract and high-flown than the Ninth
Circuit's embrace of autonomy, the implications of the Second
Circuit's opinion may seem less radical. The "softer" language of
equal protection, however, cannot mask the fact that precious
little room is left for states to assert their traditional
interest in protecting human life. In either circuit, the most
vulnerable of patients are now at risk.
The Ninth Circuit's case grew out of a complaint filed by four
doctors and three terminally ill patients against a Washington
State statute making it a crime to knowingly cause or aid an
attempted suicide. A federal district court, Judge Barbara
Rothstein presiding, noted a long line of Supreme Court cases
protecting "personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and
education." She was particularly impressed by the Court's
reasoning in <Planned Parenthood v. Casey>, the 1992 case that
sustained the result in <Roe v. Wade> while refabricating the
entire constitutional argument on which it had rested. <Casey>
cashiered Harry Blackmun's right-to-privacy rationale, which had
hovered in the constitutional air for nearly two decades without a
satisfactory textual landing spot. Henceforth, the right to abort
was to be understood as a liberty interest under the Due Process
Clause, which included (so the plurality opinion of the Supreme
Court said) "the right to define one's own concept of existence
and to make the most basic decisions about bodily integrity."
As a tour de force of semantic gymnastics, <Casey> has few equals
in the annals of modern jurisprudence; it is, next to <Roe>
itself, perhaps the starkest reminder of the extent to which our
Constitution has become, at the hands of the Court, a thing of
almost infinite plasticity. Indeed, it was precisely the open-
ended and mushy quality of <Casey's> language that Judge Rothstein
found so comforting when she analogized the right to die to the
right to abort. She cited as "highly instructive and almost
prescriptive" a passage from the <Casey> decision:
These matters, including the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the
Fourteenth Amendment. 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. Beliefs about these
matters could not define the attributes of personhood were they
formed under compulsion of the State.
Critics call this the "Mystery Passage." But Judge Rothstein
thought it ideally suited to her purposes, and who could blame
her? If indeed choices "central to personal dignity and autonomy"
are what lie at the heart of the liberty protected by due process
of law, how can it be said that a terminally ill person's decision
to end his or her life is any less "intimate and personal" than
the decision to have an abortion? Judge Rothstein, believing she
was following the implications of High Court logic, became the
first federal judge to find the right to die in the Constitution.
Not all of her colleagues agreed. On the first of two appeals to
the Ninth Circuit, Judge Rothstein's opinion ran into a three-
judge panel headed by the formidable John Noonan, a prolific
author and scholar who has spent a lifetime studying common,
canon, and natural law. Judge Noonan completely demolished the
ruling. Whatever the Court may have intended by its <Casey>
language, he said, one simply cannot excise it from context and
apply it willy-nilly to facts that were not even remotely at issue
in the case. Judge Rothstein conveniently ignored the fact that
virtually all states forbade assisted suicide, either by express
statute or well-settled common law precedent-which fact the
Supreme Court noted without reservation in the one case it has
heard dealing, albeit peripherally, with a so-called "right to
die." Rothstein further failed to distinguish between suicide and
refusing treatment, a distinction long recognized in medical
practice, justified by an extensive and sophisticated literature,
and endorsed by every important medical society in America. She
radically underestimated the potential risk that licensed killing
would pose to the poor, the elderly, and the handicapped, for whom
the Fourteenth Amendment ought to be particularly solicitous. In
short, Judge Rothstein's invention of a constitutional right to
die was dangerous as a matter of policy and unfounded as a matter
of law. "Unless the federal judiciary is to be a floating
constitutional convention," Noonan added, "a federal court should
not invent a constitutional right unknown in the past and
antithetical to the defense of human life that has been a chief
responsibility of our constitutional government."
There was more to Noonan's opinion, but you get the idea.
Unfortunately, the tale did not end there. Those who are enamored
of floating constitutional conventions are also the Energizer
Bunnies of constitutional litigation. After regrouping, the
plaintiffs filed an <en bane> appeal (a motion to have the case
heard by a larger group of judges from the same court). Their
motion was granted and the case reargued before eleven judges (not
including the first three), who voted eight to three to reverse
Noonan and reinstate Rothstein's ruling. This time the pen was
wielded by Judge Stephen Reinhardt, a sharp-tongued liberal
activist only too happy to discover new rights in the penumbras,
emanations, and hitherto undiscovered corners of the Constitution.
In his 109-page dissertation, Judge Reinhardt seeks to do for
assisted suicide what Harry Blackmun tried (but failed) to do for
abortion: fix a place for it in the Constitution, but in such a
way as to obscure its radical implications. To the legally
uninitiated, Reinhardt's conclusion will appear to be the
inexorable fulfillment of a legal process that began decades, if
not centuries, ago and flows ever so naturally and gradually out
of recent Supreme Court precedent. It is a clever piece of work,
designed both to give the newly minted right a plausible
historical pedigree and to demonstrate its similarity and
proximity to already recognized constitutional guarantees.
Reinhardt clearly wishes to convey the impression that he is
advancing the law only a tiny millimeter beyond where it had
rested yesterday. He also wants to box the Supreme Court (where
this case will almost certainly end up) with the logic of its own
precedent.
Reinhardt's opinion may seduce those who are unwilling to pay
close attention. He begins by noting the agonizing nature of the
decision before him and the necessity of prudent caution. No
radicals here, just some compassionate judges trying to do their
sworn duty as they wrestle with their consciences and empathize
with the suffering of others. There are no easy answers to such a
complicated problem, he says. Clearly, a balance will have to be
struck between individual rights and the interest of the state in
protecting life. In pondering just where and how to strike that
balance, Reinhardt says he is marvelously struck by "the
compelling similarities" between this case and the abortion cases:
both involve matters of life and death; both arouse similar moral
and religious passions; in both, the strength of the state's
interest may vary with the circumstance (age of the fetus in one,
mental and physical condition of the patient in the other); and
both raise fundamental questions about an individual's right of
choice. There is one other similarity, he claims: as with abortion
before legalization, assisted suicide is widely although secretly
practiced.
The message is, if they are going to do it anyway, what possible
purpose, other than the further misery of suffering patients, will
be served by our continuing to forbid it? (If that sounds
familiar, it's because the same argument was made twenty-five
years ago in the early stages of the battle over legalized
abortion.)
Having analogized assisted suicide to abortion (and thereby segued
into a body of law that can be ever so flexibly adopted to his
purposes), Judge Reinhardt undertakes an historical exegesis of
opinions about the ethics and legality of suicide. About the best
that can be said of his effort is that it would be laughable were
the subject not so grave. As with Harry Blackmun's bowdlerized
history of abortion laws, in <Roe v. Wade>, Judge Reinhardt's
abridged intellectual history seeks to show that there never was
any real consensus on the subject and that much opposition to
suicide is based on foolishness or hypocrisy. Legal prohibitions
against assisted suicide have no genuine intellectual foundation;
they are but the arbitrary moral sentiments of prior eras that
make no binding claim upon us. We have no choice but to make our
own rules for our own time.
With the stage thus set, Reinhardt returns to the jurisprudence of
the abortion cases and concludes that denying a terminally ill
patient the right to assisted suicide may work an even greater
injustice than "forcing a woman to carry a pregnancy to term." And
just in case you miss the point, he then recounts the gruesome
details attending the death of an AIDS patient. The example stirs
our compassion, as it should, but hardly settles the moral or
legal question of assisted suicide in the way Reinhardt obviously
thinks it does.
He fashions the final brick in his constitutional edifice by
turning to the Supreme Court's opinion in <Cruzan v. Director>, a
1990 case brought by parents who wished to remove the life-
sustaining feeding tube from their daughter, a patient in a
persistent vegetative state. The Missouri Supreme Court denied
permission because there was no "clear and convincing, inherently
reliable evidence" that the patient would have wished such a fate
for herself. On appeal, the U.S. Supreme Court affirmed the
Missouri judgment but drew up far short of recognizing a right of
individual patient autonomy. The most that can be said is that the
Court's decision presumed for the sake of discussion a competent
patient's right to decline food and water, but did so without
examining the implications of such a right or its constitutional
status.
Consider now what Judge Reinhardt does to <Cruzan>: (1) he cites
it as if the Supreme Court had already ruled that there was a
constitutional guarantee to refuse life-terminating treatment; (2)
he notes that the Court expressed no objection per se to the
removal of Nancy Cruzan's feeding tube; (3) he thus concludes that
the High Court has implicitly recognized a due process right to
bring about one's own death. That's the kind of reasoning that
used to get you into trouble in legal method courses during the
first year of law school for failing to distinguish between the
actual holding of a case and the obiter dicta of the judges. If
<Cruzan> had in fact held what Reinhardt says it held, he would
not have had to write a 109-page opinion to justify his own
ruling.
At every turn, Reinhardt gives the appearance of being led to his
conclusion by the logic of governing precedent, but upon closer
examination his reasoning is little more than ex post facto
rationalization of a conclusion already arrived at. Thus, he
provides us with a generic history of recent constitutional
jurisprudence as it relates to liberty interests under the
Fourteenth Amendment, but emphasizes only those features that tend
to make the Constitution a servant of autonomous individualism. He
serves up a Procrustean history of suicide and the laws against
it, but only to suggest the absence of persuasive argument. He
craftily recasts the one case decided by the Supreme Court that is
even arguably on point. And of course he wraps himself in the
logic and rhetoric of the abortion cases, especially <Casey,>
because they make of the Constitution an open-ended invitation to
enact a postmodernist rights agenda.
Judge Reinhardt does one more thing: he dismisses as improvident,
antiquated, or unwarranted all of the traditional arguments
asserted by medical professionals, courts, and legislatures
against assisted suicide. He is particularly dismissive of
arguments making use of the slippery slope, even as he unwittingly
makes them credible. Throughout his opinion, Reinhardt is at pains
to note that the right he is carving into constitutional stone is
carefully circumscribed. Specifically, he says (sometimes) that
the right will be limited to mentally competent, terminally ill
adults seeking to determine the time and manner of their death.
The particular examples he cites reinforce the same impression.
Then a startling passage occurs:
Our conclusion is strongly influenced by, <but not limited to>,
the plight of mentally competent, terminally ill adults. We are
influenced as well by the plight of others, <such as those whose
existence is reduced to a vegetative state or a permanent and
irreversible state of unconsciousness.> (Emphasis added.)
That's the kind of language that could get a person killed.
Precisely. Those two sentences, which may end up being the most
important in the opinion, send a chill up the spine. All the talk
about the limited and completely voluntary nature of the right now
appear as so much dissembling. Clearly the compassion of the
courts is going to reach far and wide under the new dispensation,
even unto those who cannot speak for themselves because they are
"in a vegetative state or a permanent and irreversible state of
unconsciousness."
As amended by the Plight Passage, <Casey> and <Cruzan> taken
together now have the power to erase the line between voluntary
and involuntary death. You will want to choose your doctors
carefully, particularly with respect to their attitudes toward
suicide and the use of the medical profession in hastening death.
Doctors are not inherently less virtuous than the rest of us, but
they are conspicuously more powerful. No one knows for sure what
the medical world will be like once the legal shackles against
assisted suicide are removed, but we can guess. The example of the
Netherlands is not reassuring. About twenty years ago, the Dutch
"reformed" their laws against assisted suicide, and the latest
data from Holland now confirm what was once only a dark suspicion:
thousands of patients a year are now being killed without their
consent by doctors.
You may even want to choose your relatives with care. Much common
and statutory law has been erected over the centuries on the
possibility that some of your family may love you less than they
love your possessions. Once Reinhardt's Rule gets set in law, you
will have to take very special care about who will be attending to
the details of your hospital stay.
Close students of the Supreme Court will tell you that they could
see this coming: <Compassion in Dying> is only the first of many
cases based on claims of autonomous individualism that the Court
invited with its loose and grandiose <Casey> language. It is also
the logical culmination of a process that began some decades ago
when the Court untethered itself from the text of the Constitution
and began to sit like an omniscient council of elders uniquely
empowered to intuit and act upon the aspirations of the people.
Central to this Court-led revolution is the idea that the
Constitution is in a state of more or less perpetual evolution,
whence it follows that judges need not be bound by the precise
words of the document, or by prior precedent, or by settled
historical meaning. Once this predicate of a Plastic Constitution
has been conceded, it is child's play for Reinhardt and his
colleagues to reach the conclusion they do. To them, it is simply
irrelevant that no federal judge (prior to Rothstein) had ever
before found a right to die in the Due Process Clause, just as it
is irrelevant that every state in the union, save one, forbids
assisted suicide. What appears to be supremely relevant is that
the <Casey> language incorporates the concept of autonomous
individualism and places it at the center of the liberty interests
said to be guaranteed by the Constitution.
Though the Second Circuit did not follow the Ninth Circuit's
metaphysical flight into autonomous individualism, its own
decision, based on the Equal Protection clause, and apparently
safer, may in fact be more dangerous. Generally speaking, the
Equal Protection clause requires that similarly situated people
must be treated alike. If members of the affected class are
treated differently, the state must provide and defend a rational
basis for the distinction.
In the case at hand, Judge Miner and his colleagues determined
that the relevant class was "all competent persons who are in the
final stages of fatal illness and wish to hasten their deaths."
Under New York law, patients may legally refuse treatment and
authorize the withdrawal of life-support systems, including
nutrition, even in those instances where such steps would
undoubtedly hasten death. To ban assisted suicide, however, means
that some members of the class, i.e., those who wish to hasten
their deaths with the help of their physicians, are being treated
differently. Because he could not find that the state had
demonstrated a legitimate state purpose in making such a
distinction, Judge Miner ruled that an unconstitutional
discrimination had taken place. In short, New York's distinction
between passive and active measures was a distinction without a
difference.
It is worth noting that Judge Miner's inability to parse that
distinction was not shared by the New York State Task Force on
Life and the Law, a twenty-four member commission appointed by
Governor Cuomo in 1985 to advise on questions of biomedical
ethics. In 1994, the Task Force recommended unanimously <against>
the legalization of assisted suicide and said why in an
exceptionally thoughtful two hundred-page report. Few states have
ever provided a more cogent explanation for any public policy, and
none has ever furnished a more coherent defense of the ban against
assisted suicide. If the Task Force Report couldn't pass muster
with the Second Circuit, it is virtually impossible to think of a
rationale that would.
Be that as it may, Judge Miner's reasoning may be more attractive
to the Supreme Court than Judge Reinhardt's aggressive candor, and
that is exactly what makes it more dangerous. There is precious
little to prevent an expansion of Judge Miner's logic. Given the
class interests as he defined them, and given his dismissal of the
Task Force Report, what "rational basis" might the state have for
restricting the right of assistance to doctors? And what is the
"rational basis" for limiting the class to those who are
"terminally ill" or to mentally competent adults? It is only a
matter of time before non-doctors, non-terminally ill patients,
and guardians of incompetent individuals will be arguing that
state restrictions violate <their> equal protection rights. And
there is little if anything in the Second Circuit's rationale that
can stop such a progression.
Perhaps anticipating just such a possibility, Judge Guido
Calabresi joined in the court's conclusion while departing from
its reasoning. In a lengthy concurrence, he invited New York to
enact new laws against assisted suicide. He also implied that to
analyze the issue as if it were solely one of class discrimination
was a subterfuge that begged important underlying questions. It is
a slim reed that Calabresi extends, but he is at least open to the
possibility that the state might be able to demonstrate-in a way
he thought it had not adequately done-a sufficient rationale for
prohibiting doctors from killing.
What will the Supreme Court do with all this? There are both
political and legal reasons why it may not want to address this
issue at this time, and both cases could be sent back for further
adjudication. On the other hand, when the two most important
federal circuits in the country have taken on an issue of this
gravity, the Court may find itself duty-bound to provide
definitive constitutional guidance. In the event, the justices are
going to find themselves in a bit of a pickle. Judge Miner's
cautious, essentially procedural approach may appear to offer a
"safe" way out because it denies that patients have a substantive
right to die while permitting them to exercise such a right in
fact. On the other hand, if the Justices embrace the substantive
approach of Reinhardt and Company, they could put themselves in
the middle of a passionate political and moral controversy every
bit the equal to the one they generated with <Roe v. Wade>. No
matter which way the Court goes, it will risk opening another door
to the bottomless pit of constitutional litigation based on claims
of individual autonomy, whether it is called by that name or not.
In short, unless the Court is prepared to think about this issue
with greater care than was evinced by the Ninth and Second
Circuits-and there is little in its opinions of late to suggest
that it has the moral imagination to do so-the question will be
not how far we slide down the slippery slope of legally sanctioned
killing, but how fast.
MICHAEL M. UHLMANN a Washington attorney, is Senior Fellow at the
Ethics and Public Policy Center, where he is currently completing
a book on assisted suicide.
This article appeared in the June-July 1996 issue of "First
Things." To subscribe write First Things, Dept. FT, P.O. Box 3000,
Denville, NJ 07834-9847, 1-800-783-4903. Published monthly except
bimonthly June/July and August/September for $29.00 per year.
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