(en) The US SCt. supports "death-with-dignity"

Lyn Gerry (redlyn@loop.com)
Sat, 25 Oct 1997 16:50:37 +0000

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An analysis of recent US Supreme Court decisions on the "right-to-die" by Michael P

------- Forwarded Message Follows ------- Date: Sat, 25 Oct 1997 16:36:37 -0700 (PDT) From: MichaelP <papadop@peak.org> Subject: The US SCt. supports "death-with-dignity"

@@ In the New England Journal of Medicine -- October 23, 1997 -- Volume 337, Number 17, someone has revisited (in two articles) the US Supreme Court's decisions on assisted suicide -- Washington v. Glucksberg, 117 S. Ct. 2258 (1997) and Vacco v. Quill, 117 S. Ct. 2293 (1997).

The titles are: "The Supreme Court and Physician-Assisted Suicide -- Rejecting Assisted Suicide but Embracing Euthanasia", at http://www.nejm.org/public/1997/0337/0017/1236/1.htm and "The Supreme Court Speaks -- Not Assisted Suicide but a Constitutional Right to Palliative Care" at http://www.nejm.org/public/1997/0337/0017/1234/1.htm

Here is a summary:

The opinions were written by the Chief Justice on 5-4 decisions; the narrow majority holding was that there is no US Constitutional right to physician-assisted suicide. Justice O'Connor was one of the 5 majority.)

In their comments the minority 4 justices joined Justice O'Connor in holding that the US Constitution requires all states to ensure that their laws do not obstruct the provision of adequate palliative care, especially for the alleviation of pain and other physical symptoms of people facing death. By authoritatively pronouncing that terminal sedation intended for symptomatic relief is not " covert physician-assisted suicide", a five-justice majority has expressly licensed an aggressive practice of such care.

This is not just some footnote; though neither side in the two cases had presented that issue it seems that Justice O'Connor made it a requirement for her concurrence in the "assisted-suicide" ruling.

She joined Rehnquist's opinions -- thus providing the necessary fifth vote along with Justices Scalia, Kennedy, and Thomas ----on the basis of a quite specific understanding. In the second paragraph of her opinion, she observed,

"The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death.... In this light,... I agree that the State's interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide."

She repeated this observation; the clear implication is that if a future case were presented to the Court in which there was a "dispute" about the existence of state legal barriers to adequate palliative care, then this would be the "quite different" and "considerably stronger" argument that could lead her to a different result. This was what the minority judges concurred with in their individual statements.

One implication is that physicians may not be punished by the state, or by Licensing Boards-- armed with their patients' constitutional right to adequate palliative care, physicians could protect themselves in judicial forums against state regulatory boards ignorant or dismissive of the evidence that high-dosage prescriptions of opioids for treating pain and other distressing symptoms are safe, effective, and appropriate.

Another implication is that other obstructions, such as "mechanisms for financing care [that] impede good end-of-life care and... frustrate coordinated systems of excellent care,"require legislative attention. If state legislature refused to address such obstructive elements of their laws, or give them only perfunctory attention, they would be guilty (in Justice Souter's words) of "legislative foot-dragging," of failing to recognize "the high degreeof importance, requiring a commensurate justification" with reference to the "claims raised by the patients and physicians" in challenging the prohibitions. Such states would (in Justice Breyer's words) "infringe directly upon... the core of the interest in dying with dignity," which involves "medical assistance, and the avoidance of unnecessary and severe physical suffering."

A Supreme Court majority has thus provided an unexpected but strong and very welcome directive requiring states to remove the barriers that their laws and policies impose on the availability of palliative care; it's not the same as approving physician-assisted suicide, but permitting conduct that may foreseeably hasten death but is intended for other important purposes, such as the relief of pain or other symptoms goes a long way to ensure a dignity for the terminally-ill in their dying.


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