THREE STRIKES: IS AN ASSISTED SUICIDE RIGHT OUT?

By Barry A. Bostrom, J.D.

Editor's note. Issues in Law & Medicine is a peer-reviewed professional journal published three times a year by the National Legal Center for the Medically Dependent & Disabled, Inc. and the Horatio R. Storer Foundation, Inc. Published since 1985, Issues is devoted to providing technical and informational assistance to attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions.

The summer 1999 edition of Issues in Law & Medicine takes an in-depth look at the volatile issue of physician-assisted suicide, specifically the constitutional issues raised and decided in recent state and federal court cases.

The featured article, written by attorneys James Bopp, Jr., and Richard E. Coleson, demonstrates the futility of attempting to find a constitutional "right" to physician-assisted suicide, whether in the federal Constitution or state constitutions.

Bopp and Coleson take as their subject matter the U.S. Supreme Court's 1997 decisions in Washington v. Glucksberg and Vacco v. Quill and the Florida Supreme Court's 1997 Krischer v. McIver holding. Although proponents of assisted suicide have attempted to interpret the precedents established in a positive light, a careful analysis reveals that it is extremely unlikely that any constitutional right to assisted suicide will be recognized.

Washington v. Glucksberg and Vacco v. Quill were challenges to the state bans against physician-assisted suicide established by Washington state and New York state, respectively. Plaintiffs sought to persuade the High Court that a federal constitutional right to assisted suicide could be found lurking in prior Supreme Court cases dealing with the constitutional rights to privacy, contraception, abortion, and the refusal of life-sustaining treatment.

But in a pair of 9-0 decisions, the Supreme Court held that there was a clear distinction between voluntary withdrawal of life-sustaining treatment from a person who has a terminal condition and a positive act to terminate a person's life. Since suicide was illegal in all states until modern times, and since assisted suicide has always been illegal under state law, the Court concluded that there was no fundamental right to suicide itself, and by extension, no fundamental right to assisted suicide.

These are important precedents indicating that other state bans on assisted suicide are also constitutional, and that any challenge to them by assisted suicide proponents will fail.

Proponents of physician-assisted suicide tried a different tactic in the 1997 Florida case of Krischer v. McIver. There they looked to the state constitution to supply this "right" in order that Charles Hall, who had AIDS, would be allowed to have Dr. Cecil McIver assist him in suicide.

This strategy made sense. Florida has an express privacy right in its state constitution which has sometimes been more broadly construed than similar provisions of the federal Constitution. But in a 5-1 decision, the state Supreme Court said no.

In its July 17, 1997, decision, the court framed the issue this way: "[W]hether Mr. Hall has the right," under "Florida's guarantee of privacy," to have Dr. McIver "assist him in committing suicide." The court decided that Mr. Hall did not have a right to assisted suicide because (1) "the state has an unqualified interest in the preservation of life" ; (2) "the state also has a compelling interest in preventing suicide"; and (3) "the state has a compelling interest in maintaining the integrity of the medical profession."

The justices found that there was no right to assisted suicide under the state constitution. Even if there were, the court added, there were three state interests sufficiently compelling to permit state prohibition of assisted suicide.

To use a baseball analogy, these three decisions denying that there is a right to assisted suicide in either the federal Constitution or in a state constitution mean that proponents have struck out in their quest to use the courts to establish a right to assisted suicide. But that, of course, does not mean that proponents will pick up their bats and go home.

Their most likely recourse is to try to pass legislation permitting assisted suicide. But all such efforts to date have been unsuccessful. One way around reluctant state legislatures is the ballot initiative process, like the one used in Oregon to legalize assisted suicide.

But the Bopp/Coleson article explains why the initiative process is inappropriate in the assisted-suicide context. For example, unlike state legislators, voters will rarely take the time to investigate the facts and debate them. Moreover, assisted suicide votes on referenda are susceptible to sound-bite rhetoric devoid of the essential facts on assisted suicide and the effect on vulnerable persons, including persons who are terminally ill, persons on life support, and persons with disabilities.

The authors suggest that in order to protect vulnerable persons, federal legislation should be drafted to ban assisted suicide nationwide. (See Action Alert, page 15.)

The Verbatim section of the journal is the full text of the June 4, 1999, Planned Parenthood of Wisconsin v. Doyle decision. This case is the first federal court decision to uphold the constitutionality of a state statute banning partial-birth abortion.

Two years ago, the state of Wisconsin passed a ban on partial-birth abortions, referred to by the court as D&X (dilation and extraction). Partial-birth abortions are frequently done after viability, and may be done even when the baby is near full term.

This abortion technique is characterized by the delivery of the child feet first up to and including the shoulders, the use of surgical scissors to pierce the skull, and the suctioning out of the child's brains causing death. To facilitate removal of the baby's corpse, his or her skull is then crushed. The Wisconsin ban on the gruesome procedure was challenged by Planned Parenthood of Wisconsin and certain abortionists who defended the procedure as good medicine.

Wisconsin's ban forbids any person from intentionally performing a "partial-birth abortion." The ban defines partial-birth abortion as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes delivery of the child." Violation of the ban is a class "A" felony.

The ban also creates civil liability. It authorizes the father of the child aborted by the partial-birth abortion technique to sue for damages. This right also extends to parents of the woman, if she is a minor. The father or parents may sue even if the woman consented to the abortion, as along as they themselves did not consent.

Planned Parenthood of Wisconsin and the abortionist plaintiffs argued that the ban was unconstitutional because (l) it did not have an exception allowing pre-viability infants to be aborted; (2) it did not have an exception where the partial-birth abortion was necessary to save the life of the mother; (3) it was unconstitutionally vague-that is, its definitions were not clear enough to inform abortionists of what acts would constitute a violation of the ban. Thus, the ban's civil and criminal penalties were unconstitutional.

However, Judge John Shabaz of the United States District Court for the Western District of Wisconsin disagreed. He upheld the ban on essentially four grounds.

First, "the Act need not make an exception for cases in which the fetus is not yet viable at the time of the abortion," he said, because "the Act serves several compelling state interests, including the preservation of maternal health, potential life, and morality." Second, "the Act need not contain an exception for cases in which a D&X procedure is necessary for the preservation of the mother's health" because the trial testimony showed that partial-birth abortion is never medically necessary to preserve the health or save the life of the mother.

Third, Shabaz held, "the Act is not vague" because the "plaintiffs' alleged confusion concerning the meaning of the Act [and its definition of partial-birth abortion] is a demon of their own creation." Fourth, the act's criminal and civil sanctions are constitutional because the act is constitutional.

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Mr. Bostrom is executive editor of Issues in Law & Medicine.