The euthanasia follies - court rulings on assisted suicide - Editorial

Commonweal, June 3, 1994

Two courts have declared for physician-assisted suicide. On May 2, a Michigan jury acquitted Dr. Jack Kevorkian, who had been indicted on a charge of assisting the suicide of a thirty-year-old man suffering from a degenerative nerve disease. A day later, a federal district court judge in Seattle found unconstitutional a Washington State law prohibiting assisted suicide, including physician-assisted suicide. While the Kevorkian trial seemed in news reports to combine an episode from a soap opera with snippets from a high school debate--a tear jerker seasoned with sophomoric reasoning--the federal court decision is another matter.

The confusions of the Kevorkian trial--as confusing perhaps to the jurors as to the rest of us--call the acquittal into question. Dr. Kevorkian certainly assisted Thomas Hyde in dying, but apparently not on the site where the body was found. This technicality, which police and prosecutor might have dealt with beforehand, the judge ruled exculpatory. Dr. Kevorkian, who otherwise plays the role of principled advocate for physician-assisted suicide, chose in this trial both to rely on the venue technicality and to blur the issue of assisted suicide by claiming he was merely helping Mr. Hyde to control his pain; as evidence he offered a video of the suicided man asking to have his pain relieved. Seeming to have little solid instruction in the law from either judge or prosecutor and weeping on the dead man's behalf, the jurors decided that if he died in the process of trying to control his pain that was okay with them. So much for the rule of law in the state of Michigan.

But this ill-conceived effort at jury nullification pales in light of the decision announced the following day, May 3, by Federal Judge Barbara Rothstein. Her decision not only legalizes euthanasia but declares it a constitutionally protected right. In an exercise of judicial nullification, she overturns the decision of Washington State voters in 1991 to vote against Initiative 119 which favored physician-assisted suicide. Furthermore, the judge collapses any distinction between allowing to die and direct killing by finding no constitutionally meaningful difference between the withdrawal of life-sustaining medical treatment and the provision of the medical means to end life in the case of terminally ill, competent patients. In effect, the judge rules, there is no legal difference between removing a respirator and injecting a lethal overdose of morphine.

The judge finds warrant for her opinion in the Fourteenth Amendment support given Roe v. Wade by the Supreme Court in Planned Parenthood v. Casey, where it was dealing with a woman's right to choose an abortion: "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." Judge Rothstein finds the argument in Casey "almost prescriptive" on the matter of allowing a terminally ill person to have physician assistance in committing suicide.

The unrelenting logic of Judge Rothstein, s decision verges on the simplistic. Charles Krauthammer aptly observes: "This is not a slippery slope. It's a cliff" (Washington Post, May 13, 1994). Having enunciated this newly found constitutional right, the judge also cavalierly dismisses objections that the right will be claimed by others than the suffering, competent, terminally ill who request that a physician kill them. After all, if this is "a right to define one's own concept of existence, of meaning, of the universe," why isn't it a right, given time and human proclivities, that will be claimed by others suffering but not terminally ill; why isn't it a right that will be visited upon still others--incompetent, poor, old, or nonproductive? Judge Rothstein did make one defensible decision. She let the current law stand pending appeal. We dare to hope that the Supreme Court, which has had to perform a high wire act to preserve Roe--the most flagrant example of legislating from the bench--will correct Judge Rothstein's logic and her folly.