Suicidal Jurisprudence
Suicidal Jurisprudence Afive-justice majority of the Supreme Court, in a pair of physician-assisted-suicide cases decided June 26, has declined to proclaim a generalized "right to die" in the...
...And he says he will reserve the right to declare that interest "fundamental" at some later date...
...One would have thought a resolution of that question was precisely the point of the exercise...
...Three justices—Breyer, Stevens, and Souter—have written formally "concurring" opinions that are for all practical purposes dissents...
...No general restriction of the abortion right, the Casey majority concluded, was consistent with this alleged principle...
...The rest of us, the incompetent or not-yet-terminal, would have gotten our euthanizing hemlock, too...
...But an autopsy found no evidence of disease...
...They're not ready to endorse the right to die...
...And special medical privileges could not have been restricted to the designees...
...It is apparent from the written opinions these two cases have produced that the justices—each for different reasons—were alarmed by what they were being asked to do here...
...The court cannot so logically conclude, of course...
...Murphy had complained of "chronic fatigue syndrome...
...But things are plenty bad already...
...It is left to David Souter to forecast the arguments by which the Supreme Court might someday reach such an astounding result...
...This is not a solid fortress, to put it mildly...
...Suicidal Jurisprudence Afive-justice majority of the Supreme Court, in a pair of physician-assisted-suicide cases decided June 26, has declined to proclaim a generalized "right to die" in the Constitution...
...She writes a separate concurring opinion of haiku-like opacity...
...Back to the states, indeed...
...In important respects, in fact, the court has now welcomed that embrace, and—as the majority opinion has it—urged "this debate to continue...
...It can be summed up in a single word: abortion...
...Cause of death: carbon-monoxide poisoning...
...And he as much as predicts that a future plaintiff will succeed with that claim before the court...
...Which these justices are not about to do...
...Pinzon-Reyes had injected a 70-year-old terminal cancer patient, Rosario Gurrieri, with a lethal dose of potassium chloride—in full view of that patient's assembled family, against their wishes and without Gurrieri's assent...
...In law and medical practice, there would have been no way to restrict this new right...
...What would it have meant for the Supreme Court to find, as the Second and Ninth U.S...
...And it now wishes to be left alone about the matter, thank you very much...
...Death will be different for each of us," begins the first of her four paragraphs...
...But that fact "does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected...
...You can't be arbitrary if you have enough law-review articles and footnotes at your disposal, he apparently believes...
...Justice Breyer is a bit less restrained...
...In its 1992 Casey ruling, decided by a 5-4 vote, the court identified the "heart" of American liberty as the ability "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life...
...The justices have done incoherent, shabby work on assisted suicide...
...With another Clinton Supreme Court appointee or two, today's 9-0 assisted-suicide decisions could easily get turned into 5-4 or 6-3 votes the other way...
...In sum," begins the last, "there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives...
...Sometimes," he mutters ominously, "a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims...
...Despite more than 200 years of American law, he says there is a constitutionally significant liberty interest in suicide...
...Fine words...
...Yes, he acknowledges, the court has thereby located the abortion right and many other rights of personal autonomy in the Fourteenth Amendment...
...So we may be momentarily grateful for the Supreme Court's nervousness about all this...
...Circuit Courts of Appeal had found, that the Fourteenth Amendment protects the "right" of mentally competent, terminally ill patients to murder themselves with poison prescribed by their doctors...
...And President Clinton has appointed two presumably pro-Casey jurists, Ruth Bader Ginsburg and Stephen Breyer, to the court...
...So to fashion even a bare majority against assisted suicide without throwing itself into renewed chaos over abortion, the court must pretend that Casey barely exists...
...Justice Ginsburg, in a one-sentence concurring opinion, announces that she "substantially" agrees with Justice O'Connor...
...Janis Murphy's "doctor": Jack Kevorkian, who has eluded repeated attempts at criminal prosecution, despite having killed at least 45 people since 1990...
...Except that "this debate" continues in one direction only: toward the grave...
...But we may be grateful for nothing else...
...Even the three stalwarts—Rehnquist, Scalia, and Thomas—have trimmed their sails...
...But assisted-suicide proponents soon asked a telling question: If the constitutionally protected "mystery" right means a mother may kill her unborn child, how then can the court not conclude that it also means she may kill herself...
...After extensively quoting his own past dissents—and reprinting John Donne's "no man is an island" meditation of 1624—Stevens reports that he is already satisfied suicide is sometimes "entitled to constitutional protection...
...So it's back to the states, all nine justices agree, with one degree of enthusiasm or another...
...Ernesto Pinzon-Reyes of first-degree homicide...
...The Supreme Court, for its own short-term political convenience, has punted on assisted suicide...
...He cites Casey and quotes its wildly expansive "mystery" language in a brief and totally inscrutable passage...
...Despite the Hippocratic Oath and 700 years of history, he says he will "accept" the contention that deliberately lethal injections are "consistent with standards of medical practice...
...In the assisted-suicide cases, the justices had an insoluble problem...
...Because the Supreme Court says so, that's why...
...Three more justices—O'Connor, Ginsburg, and Kennedy—have taken thoroughly inexplicable positions...
...But state law is proving itself virtually helpless against the Heaven's Gate sensibility now spreading like a fungus across the land...
...And the other four justices have joined them in a unanimous vote to uphold broad prohibitions against assisted suicide in the state laws of Washington and New York...
...He thinks there may well be something "roughly like a 'right to die with dignity,'" a right that might force a very different Supreme Court result under slightly different circumstances in the future...
...Mentally competent" and "terminally ill" are subjective and elastic designations...
...Later the same day, 40-year-old Janis Murphy of Henderson, Nevada, turned up dead in a Southfield, Michigan, motel room...
...And it does not mean that the Fourteenth Amendment protects suicide...
...Souter writes a gigantic concurring opinion in Glucksberg, one designed to advance what he calls a Fourteenth Amendment jurisprudence of utmost care and case-by-case precision...
...Rehn-quist's sleight of hand is also enough for Justice O'Connor...
...A rigorous denial of the "right to die" would require the justices at least partially to deny the right to abortion...
...And in the process, the court has clearly signaled how it might handle exactly the same football the next time around...
...Four members of the Casey majority remain, as well: O'Connor, Kennedy, Souter, and Stevens...
...Chief Justice Rehnquist, writing for the majority in Washington v. Glucksberg, performs this charade...
...The morning the Supreme Court's assisted-suicide decisions were handed down, a central Florida jury acquitted Dr...
...This is enough to win the signature of Justice Kennedy, who doesn't bother to explain how it is that Americans enjoy a "right to define one's own concept of existence"—his words—but can be prevented by state law from defining themselves to death...
...Only three Casey dissenters, Rehnquist, Scalia, and Thomas, remain on the court...
...That would be a horror, to be sure...
...And Souter will be watching...
...Justice Stevens goes Breyer a few steps further...
...David Tell, for the Editors...
...The states must give "reasonable legislative consideration" to a relaxation of their existing laws against "voluntary" murder, Souter insists...
...There are now six pro-choice Supremes, in other words...
...And the court has just made them worse...
...Oh, but you can, as Souter's tortured opinion makes clear...
...Their reasoning—if that's the word for it—cannot retard the nation's slow but continuing cultural embrace of death...
...But Justice O'Connor says no, without much elaboration...
Vol. 2 • July 1997 • No. 43
