“Administration Asks Court to Reject Assisted Suicide,” the headlines ran after Acting Solicitor General Walter Dellinger filed on November 12, 1996 the Justice Department’s amicus curiae briefs urging the Supreme Court to uphold the states’ authority to prohibit physician-assisted suicide. Said to represent the President’s personal views, the briefs seemed to mean that Clinton”despite his veto of the partial-birth abortion bill”was willing to take at least one firm pro-life stand. More, by asking the Supreme Court to strike down the Ninth Circuit’s opinion in favor of assisted suicide (which cited the Court’s own abortion jurisprudence more than sixty times), the briefs also seemed to mean that the Clinton Administration was willing to grant that there are limits to further expansion of the abortion right. Read carefully, however, the briefs tell a different story. Claiming that the states should be free to make exceptions to their criminal codes in order to accommodate the assisting of suicides, the Solicitor General declares no moral or even political disapproval of the practice. Neither does he attempt to draw a boundary to the abortion right. On the contrary. Vehemently denying any relation between abortion and physician-assisted suicide, he argued that abortion must be insulated from anything that might weaken or challenge it in the two assisted-suicide cases now under review. Somehow, the Clinton Administration had managed once again to fake in one direction while going in another, had managed once again to get the press to report a strong moral position while actually providing the means to weaken it. The first of the two cases now before the Supreme Court concerns a Washington State law prohibiting physicians from granting patient requests for help in dying. That law was declared unconstitutional by the Ninth Circuit Court in an en banc opinion written by Judge Stephen Reinhardt. The Administration’s brief in Compassion in Dying begins by actually conceding what seems to be the point at issue: that individuals have a “constitutionally cognizable liberty interest” in demanding that physicians assist them in a way that every state except Oregon now outlaws. “That liberty interest encompasses an interest in avoiding not only severe physical pain, but also the despair and distress that comes from physical deterioration . . . . The liberty interest at issue here is still implicated at the point at which avoiding severe pain or suffering and ending life coalesce.” Of course, if individuals have a legitimate interest in killing themselves as a means for avoiding despair and distress, the obvious question is why state governments shouldn’t be compelled to change their laws to recognize the interest. And if the interest is “constitutionally cognizable,” why shouldn’t state-licensed physicians be allowed to assist in its fulfillment? In answer, the Clinton Administration offers only one argument: the sufficient counter-interest the states have in protecting unwilling patients. “The view that there should be an exception to the State’s general policy of protecting life for cases in which a competent, terminally ill adult voluntarily requests life-ending medication strikes a responsive chord in many people. At this point in history, however, a state could responsibly conclude that creating such an exception would endanger persons who are not competent to seek lethal medication, persons whose decision to seek lethal medication is not truly voluntary, or those persons who are not in fact terminally ill.” “State legislatures undoubtedly have the authority to create the kind of exception to assisted suicide fashioned by the court of appeals,” the Solicitor General quickly adds, lest he be thought to oppose the idea of physician-assisted suicide. “But there is no constitutional basis for imposing that exception on all the states.” If the Supreme Court justices follow the logic of the Solicitor General’s analysis, they will arrive at something like this: The federal courts do not need to discover any new constitutional right to assisted suicide, for the states already have sufficient authority to make exceptions to the general applicability of their laws against homicide, customizing their protections to allow some citizens to kill other citizens. Though the U.S. Constitution does not “at this point in history” demand that they exercise it, the states already possess the authority to regard the voluntariness of assisted suicide as a reason to exempt the practice from their criminal codes. If this seems to be an inversion of both equal protection and traditional legal views in which the voluntariness of a lethal act was precisely what made it murder, that’s because it is”and the Clinton Administration deserves no praise for resisting physician-assisted suicide. Even more interesting and less praiseworthy things happen, however, when the Solicitor General’s briefs turn to the issue of abortion. The second case before the Supreme Court concerns a New York State law”declared unconstitutional by the Second Circuit Court of Appeals”distinguishing between what doctors do while passively allowing a patient to die and what they do while actively causing a patient’s death. Though the Ninth and Second Circuits reached their decisions on different grounds (and thus prevented the cases from being consolidated), both courts agreed that an interest in assisted suicide appears to derive directly from the Supreme Court’s prior decisions concerning abortion. Harvard Law School professor Laurence Tribe (who appeared for the plaintiff in the New York case) recently submitted a brief reminding the Court that the abortion right is only one example of a more general right of individual autonomy. Where the abortion right allows the intentional killing of what many people regard as an unwilling victim, Tribe reasonably points out, “this case directly involves no life apart from that of the individual making the personal choice””and thus “involves state interests of less weight than those at stake in Casey .” The law professors and lower courts have pinned the Supreme Court with its own logic. If the Court should reject assisted suicide in these two 1997 cases, serious wiggling will be necessary to save the abortion decision in the 1992 Planned Parenthood v. Casey from being compromised along the way. For the impartial connoisseur of legal argument, the most fascinating moment in the Clinton Administration’s briefs must come when they attempt to ensure that the Casey right to define the “concept of existence, of meaning, of the universe, and of the mystery of human life” will continue to guarantee abortion no matter what decision the Supreme Court comes to on assisted suicide. Asserting that “the right to choose an abortion implicates a constellation of liberty and equality rights of fundamental importance that are not implicated” by the assisted-suicide cases, the Solicitor General is hard pressed to explain the difference. His clearest argument revolves around the indisputable fact that everyone dies but only women become pregnant. Citing the Casey dictum that “a woman’s suffering is too intimate and personal for the State to insist . . . upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture,” he contends that a woman’s “suffering” is “unique to the human condition””and thus triggers a higher standard of protection than the suffering of terminally ill patients. The logical result of this attempt to save Casey seems to be that only women have the right to define the “mystery of human life,” though one hopes that’s not a result even members of the Clinton Administration would be willing to accept. What they demonstrably are willing to accept, however, is a jurisprudence that pits citizens against their legislators. Because everyone must die, the Solicitor General observes, the terminally ill are not a “discrete or insular minority.” Dying is neutral with regard to religion, race, gender, and sexual persuasion. Unlike restrictive abortion laws, which fall uniquely upon women, laws prohibiting assisted suicide will fall even upon male members of state legislatures: though not all legislators must face the chance of becoming pregnant, “all legislators must face the possibility that they will one day suffer from a terminal illness.” This line of reasoning does not rule out further expansion of the right to define one’s own “concept of existence.” It seems, in fact, an argument tailor-made for gay rights”since all that’s necessary to expand the Casey decision in almost any direction is a complaint that a “discrete or insular minority” is being made to suffer restrictions on its liberty because of some special feature (of person or behavior) not shared by the majority of the legislators. To observe the probable effect of this reasoning, one need only recall that in the Romer v. Evans case last spring the Supreme Court overturned Colorado’s Amendment 2 on the grounds that its framing and passage could only have been motivated by an unconstitutional animus against gays. In the November 1996 issue of First Things I argued that the Supreme Court has so expanded the list of fundamental rights, and has developed so many different ways to nullify state laws, that it needn’t invent any new rights. Its repertoire is complete and all that remains is a more modest, case-by-case use of equal protection to expand the scope of these rights. I believe this is just what the Solicitor General is proposing in his amicus briefs. Several states, along with such prestigious institutions and lobbies as the American Medical Association, have filed briefs against physician-assisted suicide. It is unlikely that they will give up litigation in the event of a judicially discovered right to die. And if the right to die depends upon Casey , every subsequent challenge to physician-assisted suicide would be a challenge to the abortion right upon which it is founded. The Clinton Administration’s first response to this situation is to protect the Court’s repertoire of abortion rights from damage by the political fallout of the debates in the states. And its second response is to keep the door open for the expansion of equal-protection jurisprudence in the line of the Romer decision. Its third and most clever response, however, is to urge the Court to send the question of assisted suicide back to the states with a line of reasoning that greatly weakens the obligation of states to protect their citizens from homicide”and at a time in which (thanks to the long train of prior Supreme Court usurpations of state authority) the states are astonishingly ill-trained in how to go about protecting their citizens. The headlines that depicted the Clinton Administration as having drawn a line on a controversial moral issue were simply mistaken. But the moral is not simply that we shouldn’t believe everything we read in the newspapers. If the Court follows the Solicitor General’s reasoning, we will not merely preserve all the present abortion jurisprudence and expand it to a profusion of “discrete or insular minority” rights, but we will also get physician-assisted suicide. True, we won’t get it as the result of an explicitly declared right, but we will get it, and in the same way the Netherlands got its murderous euthanasia industry: through a series of judicially endorsed “exceptions” to the general applicability of the criminal code, by courts weakening old rights while garnering praise for not discovering new ones.
Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.