When is it right to die?

May 18, 1994|By Ronald Dworkin

A LAWSUIT decided in Seattle this month may well become the Roe vs. Wade of euthanasia.

Striking down a 140-year-old Washington State law, Federal District Court Judge Barbara Rothstein declared that as long as they are competent, terminally ill patients have a constitutional right to enlist a willing doctor's help in killing themselves. She decided, that is, that laws against assisted suicide, which exist in almost every state, are unconstitutional.

Once again, the courts are at the center of a bitter moral and religious controversy. Americans have been arguing about euthanasia for decades. Voters in two states, Washington and California, have rejected measures legalizing euthanasia in fairly close votes. Another such measure is expected to be on the ballot in Oregon later this year.

In Michigan, a special statute was passed to stop Dr. Jack Kevorkian from helping patients to die, but this month a jury refused to convict him of violating that statute even though he virtually admitted he had.

If Judge Rothstein's decision, or a similar one, is upheld in the Supreme Court, the Constitution will pre-empt part of this sprawling debate. Every state will have to recognize that though it can regulate doctor-assisted suicide, it can't prohibit it altogether.

That result will outrage millions of conscientious citizens who think euthanasia an abomination in any form.

Judge Rothstein said her decision on euthanasia was "almost" compelled by the Supreme Court's 1992 decision in Planned Parenthood vs. Casey, which reaffirmed Roe vs. Wade. In that case, the court declared: "Matters involving the most intimate and personal choices a person may make in a lifetime . . . are central to the liberty protected by the 14th Amendment. 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."

Judge Rothstein observed, correctly, that the freedom of a competent dying person to hasten his or her own death falls under that description at least as clearly as does the right of a pregnant woman to choose abortion.

Many opponents of euthanasia try to distinguish the two issues by appealing to a "slippery slope" argument. They say, for example, that voluntary euthanasia will so habituate doctors to killing that they may begin executing sick, old, unwanted people whose care is expensive but who plainly want to live.

This contradicts common sense. Of course doctors know the moral difference between helping people who beg to die and killing those who want to live. If anything, ignoring the pain of terminal patients pleading for death rather than trying to help seems more likely to dull a doctor's humane instincts.

Some critics worry about the practice in the Netherlands, where doctors have given lethal injections to unconscious or incompetent terminal patients who did not explicitly ask to die.

But Judge Rothstein's opinion applies only to assisted suicide, which demands an explicit request, and even if a legislature were to allow for such injection for patients incapable of taking pills or killing themselves in some other humane way, it could stipulate that an explicit request was still essential.

A more plausible version of the slippery-slope argument worries that if euthanasia is legalized, dying people whose treatment is expensive or burdensome may ask for help in committing suicide only because they feel guilty, and that family members may perhaps try to coax or shame them toward that decision.

But states plainly have the power to guard against requests influenced by guilt, depression, poor care or financial worries.

The main plaintiff in the Washington State case, the group Compassion in Dying, offers to assist only terminal patients who have repeated their request three times and have expressed no ambivalence or uncertainty.

States also have the power to discourage distasteful, near assembly-line suicides such as those arranged by Jack Kevorkian. Patients go to him, and juries acquit him, only because there is no better alternative.

No set of regulations can be perfect. But it would be perverse to force competent people to die in great pain or in a drugged stupor for that reason, accepting a great and known evil to avoid the risk of a speculative one.

In 1990 the Supreme Court held that states must respect some form of "living will" that allows people to specify in advance that certain procedures not be used to be keep them alive, even though patients could be coaxed or shamed into signing such documents.

Some doctors already engage in a covert practice that is much more open to abuse than a scheme of voluntary euthanasia would be. They deliberately give dying patients fatal doses of painkilling drugs. But nobody thinks that this is a good reason to withhold all dangerous painkillers from terminal patients in torment.

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