Midway through last week’s oral arguments before the Supreme Court on assisted suicide, a strange thing happened. Hearing the skeptical and probing questions of the justices, it began to sink in that the Supreme Court might actually decline to invent a new fundamental right.
Following the argument, one reporter asked me, “What will happen now?” To his bewilderment, I simply reminded him of the statement from the constitutional convention that “in America, the people are King.”
My own prediction is that the Court will decline to sanction assisted suicide–perhaps even unanimously. We, the people–a phrase that has a certain familiar ring to it–will then be left to navigate the ethical dilemmas posed by a medically prolonged life and the somewhat heightened possibility of labored death.
What are the choices open to us as a democratic people? In the popular mind, they are believed to mirror those tendered to the court; state legislative assemblies could decide to either grant a right of assisted suicide or not. From a moral standpoint, however, the states have only one choice: to continue, as they overwhelmingly do now with one exception, to refuse to recast doctors as killers.
By a very narrow margin, Oregon voters in 1994 approved a highly limited form of physician-assisted suicide. The Oregon initiative was enjoined, however, by a trial judge on the theory that every state has a constitutional obligation to defend life equally. Allowing terminal patients to kill themselves as a result of undetected mental illness, insufficiently supervised physicians, self-interested relatives or inadequately controlled pain, reasoned the court, puts them on an unequal footing with citizens in other medical contexts.
The Oregon case is destined to go higher. Ironically, it’s first stop will be the 9th Circuit Court of Appeals, which fashioned the assisted suicide right. So how the Supreme Court writes its opinion becomes important.
If the opinion to be released in the spring allows the states to make any choice–for or against assisted suicide–the Oregon decision mandating the equal protection of all life will be in trouble.
Unlike the Oregon trial court, none of the advocates before the Supreme Court last week defended life without qualification. The lawyers for Washington and New York argued merely that the Constitution was silent. President Clinton’s solicitor general, Walter Dellinger, made an even weaker claim by assuming the existence of an implied “liberty interest” to kill oneself, outweighed only by the possibility of mistake or abuse.
Strategically, the opposing sides avoided an unconditional defense of human life because all knew that the court had been severely compromised by the abortion cases. The Ninth Circuit appellate judges grasped this, too, which largely explains why they felt free to create a right of assisted suicide in the first place. “There are compelling similarities between right-to-die and abortion cases,” wrote the appellate court. The assisted suicide advocates agreed, arguing that there was “no principled way” to distinguish abortion from assisted suicide.
They’re right. There is no principled way. There is only obfuscation. For example, the solicitor general merely asserted that abortion is unique, involving a woman’s personal autonomy. But this played directly into the hands of the assisted suicide advocates who urged that “the end of one’s life is more personal and significant than a decision regarding reproduction.”
And if that did not make the analogy plain enough, the right-to-die crowd went one better. Yes, they said, abortion is unique, but in a way that advances assisted suicide since “the interest of the separate life that is aborted has no counterpart in the decision of a dying person.”
The moral claim of the innocent unborn haunted the Supreme Court last week. When Justice Ruth Bader Ginsburg, a strong abortion proponent, questioned whether the court could fashion waiting periods or other regulations to avoid irrevocable error, the court–knowingly or not–was confessing its own. Unlike the abortion hubris that declared when life begins, Justice David Souter ruminated with respect to life’s end that “maybe the court should wait until it can know more.”
The likely outcome in the assisted suicide case is a victory for democracy and judicial restraint, but it is also more. When Justice Anthony Kennedy observed that the court will not “declare unconstitutional the law of 50 states,” it was as if previously unheard cries would not let the court make the same mistake twice. Lost generations of grandchildren were seemingly shielding the fragile last moments of their grandparents.
It’s now up to the people to safeguard all human existence. If we fail, the court may be unable to evade the ultimate question of whether this nation reveres the “unalienable right to life” or the democratic embrace of its destruction.
In scripture, it is written, “It is I (the Lord) who brings both life and death.” The people in America may be King. Will we possess the wisdom to know we are not God?
