What 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 banc appeal (a motion to have the case reheard 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.