Constitutional Opinions / Shameless in Seattle
Eastland, Terry
CONSTITUTIONAL OPINIONS Shameless in Seattle by Terry Eastland W hatever you may think of Jack Kevorkian, the Michigan "Doctor of Death," he's less of a threat to the Constitution than a federal...
...When that declared right cannot be found in the text or history of the Constitution, as occurred in Roe, the decision is likely to be less respected, and the loss of the right to self-government even more sharply felt, especially when the issue involves deeply held moral beliefs...
...to commit physician-assisted suicide...
...Yes, suicide...
...Casey upheld four of five state abortion regulations, but its historical importance lay in a subtle doctrinal change it introduced...
...ft-s-sion in Dying," whom Rothstein characterized as a provider of "support, counseling and assistance to mentally competent, terminally ill adults considering suicide...
...Rothstein expressed her confidence that the Supreme Court, presented with a new case, would reaffirm Rehnquist's "tentative conclusion in Cruzan...
...It was left to Scalia to say that the Constitution protects no such right and that the court should have announced "clearly and promptly that the federal courts have no business in this field...
...But they had something else to work with: the Supreme Court's 1992 decision in Planned Parenthood v. Casey, which proved to be the real inspiration for Rothstein's ruling...
...or aids another person to attempt suicide...
...State: ZIP...
...While opinions written by Republican appointees proved useful clay in Rothstein's hands, it must be said that this judge demonstrated more than a little arrogance of her own...
...She drew again on Casey's specific language: "The decision of a terminally ill person to end his or her life 'involves the most intimate and personal choices a person may make in a lifetime' and constitutes a 'choice central to personal dignity and autonomy.— For reinforcement Rothstein turned to another recent Supreme Court decision, Cruzan v. Director, Missouri Department of Health (1990...
...Quoting from the "heart of liberty" passage in Casey, Rothstein was quick to agree with the plaintiffs...
...The country would have been far better off had the Supreme Court in Roe stayed its hand and permitted the people of the states to decide abortion policy...
...Had the Roe lawsuit been brought even three years ago, the plaintiffs would have doubtless contended that the mushy, unenumerated privacy right encompasses not only abortion but also physician-assisted suicide...
...It is axiomatic that once judges declare a constitutional right, the people are no longer free to decide the issue democratically...
...These liberals are well aware of the damage to representative government done by Roe and are loath to see a repeat on another divisive moral issue...
...Thus, for Rothstein, the only question was whether you can distinguish constitutionally between a right to refuse treatment without which a person dies and a right to physician-assisted suicide...
...A more modest judge would have been troubled by such a cavalier denial of the constitutional right to self-government...
...To ensure that the right to democratic self-government is retained on issues of life and death, the Supreme Court might have to reverse Judge Rothstein (if her case is appealed all the way up...
...Sensible liberals aren't cheering Rothstein, and indeed the Washington Post editorialized that her decision "is an unprecedented extension of the law, and a dangerous one...
...The plaintiffs in Rothstein's court read Casey's joint opinion as capaciously as Scalia warned, asserting, ,as Rothstein put it, "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice...
...CONSTITUTIONAL OPINIONS Shameless in Seattle by Terry Eastland W hatever you may think of Jack Kevorkian, the Michigan "Doctor of Death," he's less of a threat to the Constitution than a federal district judge sitting in Seattle, Washington...
...A more modest judge would have waited for the Supreme Court to address explicitly the question of a constitutional right to physician-assisted suicide...
...In that event, Justices Kennedy, Souter, and O'Connor would have a chance to place some limits on the generous definition of liberty they declared in Casey...
...Mail this form with check payable to: The American Spectator, 2020 N. 14th St, Suite 750, Arlington, Virginia 22201...
...71 58 The American Spectator July 1994...
...Writing for the majority, Chief Justice William Rehnquist '(both a Nixon and Reagan appointee) did not quite declare such a right but conceded that it "may be inferred from our prior decisions...
...In a breathtaking display of judicial activism, Rothstein became the first federal judge ever to declare that the Constitution protects a right to physician-assisted suicide...
...Unfortunately for conservatives, her opinion does not provide a politically unambiguous target...
...It is one thing for a lower court judge to follow Supreme Court precedents, quite another for one to makesuch a controversial and unprecedented ruling...
...Asked(one more time) to consider overruling Roe, the court, in an unusual joint opinion written by Reagan appointees Anthony Kennedy and Sandra Day O'Connor and Bush appointee David Souter, not only affirmed Roe's "central holding" but went on to move the abortion right from shaky constitutional footing—privacy—to seemingly firmer ground: the word "liberty" as it is found in the Fourteenth Amendment, which declares that no state may "deprive any person of life, liberty, or property, without due process of law...
...On May 3—one day after a Michigan jury acquitted Kevorkian of charges that he had violated a state law prohibiting physician-assisted suicide—Judge Barbara Rothstein took it upon herself to strike down a similar Washington state law...
...And Rothstein couldn't...
...T7F Casey involved "a woman's right to choose abortion" and did not address the liberty interest at stake in a terminally ill person's choice to commit suicide, she nonetheless called Casey's pronouncement on liberty "highly instructive and almost prescriptive on the latter issue...
...And the country will be better off, with respect to suicide and "mercy killing," if the Supreme Court allows the people of the states to determine their own policies—which, the state of Washington now excepted, is precisely what has been happening, as witness the workings of the democratic process in California, Oregon, and Michigan, among other states...
...If anyone still thinks that political conservatism has put a halt to judicial activism, Rothstein's decision in Compassion in Dying v. State of Washington offers sobering evidence to the contrary...
...This was the case in which the court was asked to declare that a competent person has a constitutionally protected "liberty interest" in refusing unwanted, life-sustaining medical treatment including artificially delivered food and water essential to life...
...While acknowledging that The American Spectator July 1994 57 Grey T-Shirt with green logo PRICE: $18.45 (price includes shipping and handling) (add $.50 for each additional shirt) SIZES: Available in Large or X-Large r The American Spectator Please send the following: L Black T-Shirt /white logo $ XL Black T-Shirt /white logo L Grey T-Shirt /green logo XL Grey T-Shirt /green logo Sub-Total VA residents add 4.5% sales tax Total Enclosed $ Name: Address: City...
...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...
...Bear in mind that their lawsuit did not argue against this statute merely on the basis of the "right of privacy" that the Supreme Court first announced in 1965 and employed in 1973 in Roe v. Wade (written by Nixon appointee Harry Blackmun) to invalidate fifty state laws regulating abortion...
...The plaintiffs included three terminally ill patients (two of whom died after filing), five doctors who treat such patients, and a group calied "C...
...I'm not sure they'd actually do that, but I haven't given up hope...
...Rejecting original constitutional meaning, Casey defined "liberty" in sweeping terms: [Tlhe 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...
...Although a Democrat appointed in 1980 by Jimmy Carter, Rothstein based much of her argument on the judicial handwork of Supreme Court justices appointed by Republican presidents...
...The law they challenged reads: "A person is guilty of promoting a suicide attempt when he knowingly causes Terry Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center in Washington, D.C...
...Roe precipitated a bitter cultural war that still continues, Casey notwithstanding...
...In a withering dissent, Justice Antonin Scalia (for the record: a Reagan appointee) pointed out that under this definition "liberty" could encompass "homosexual sodomy, polygamy, adult incest, and suicide...
...Moreover, the statute Rothstein invalidated had been on the books 140 years, and less than three years ago the people of Washington had voted in a referendum against physician-assisted suicide...
...The liberty interest protected by the Fourteenth Amendment," she declared, in a passage worthy of Kennedy, O'Connor, and Souter, "is the freedom to make choices according to one's individual conscience about those matters which are essential to personal autonomy and basic human dignity...
Vol. 27 • July 1994 • No. 7
