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Compassion in Dying, Issue 7

Winter 1997

Our Day in Court

By Barbara Coombs Lee, Executive Director

On January 8, 1997, the Supreme Court heard arguments on both Compassion in Dying cases, now called Vacco v. Quill and Washington v. Glucksberg. The standard wisdom coming from Court watchers is that the Court will not rule in our favor. But we should remember that pundits' predictions of Supreme Court rulings often prove wrong. When oral arguments are over the Justices retire to their chambers and plumb the depths of the issues before them. They read and re-read the briefs, and no doubt they reflect on their own life experience.

Therefore, we at Compassion are not making any predictions about the Court's ruling, which is not expected until June or July. As Susan Dunshee states elsewhere in this newsletter, regardless of the Court's eventual ruling, we are confident that the right to choice at the end of life is self-evident.

As I read through the transcripts I am struck that, together with evidence of concern over abuse and risks, there is also evidence of the Justices' intense examination of the issues and an understanding of the arbitrariness of current law. Here are some interchanges that have not been widely reported in the press.

Glucksberg was the first case, and Assistant Attorney General of Washington, William C. Williams, argued that Washington's law prohibiting assisted suicide does not violate its citizens' liberties. Justice Ginsburg pressed for the notion that a liberty could be recognized and balanced against the state's interest in protecting life.

Mr. Williams, in the Cruzan case, the Court recognized a liberty interest and yet it upheld restrictive legislation. . . . So couldn't one take the same approach here, there is a liberty interest, but because of the risks and dangers involved, considerable state regulation is permissible?

Mr. Williams agreed, but argued that recognizing the liberty would limit the "flexibility"of the states to deal with a complicated area.

Later the Chief Justice returned to the point of regulation versus an absolute ban.

Well, it would be very difficult to assume a liberty interest and rule in your favor in this case, would it not? Because if we assume a liberty interest but nonetheless say that, even assuming a liberty interest, a state can prohibit it entirely, that would be rather a conundrum.

Justice Scalia added some sarcasm to the discussion:

I suppose that proclaiming a liberty interest is cost-free so long as you can proclaim them and then say, however they can be outweighed by various social policies adopted by the states.

Walter Dellinger, the United States Solicitor General, joined arguments for the states on behalf of the Clinton Administration. His brief argued exactly what the Chief Justice had just said was a "conundrum" -- a Constitutional liberty interest, the exercise of which may be totally prohibited by state law.

These last questions, of course, really should be addressed by you because it's your brief that takes the position that there is a liberty interest, but nonetheless, the law should be upheld. . . . What precisely is the liberty interest you urge us to recognize?

We urge you to acknowledge that a person states a cognizable liberty interest when he or she alleges that the state is imposing severe pain and suffering or has adopted a rule which prevents someone from the only means of relieving that pain and suffering.

Mr. Dellinger went on to explain that, in his view, "the critical issue is the state's overwhelming interest" in affirming the value of life. He went on to cite the report of the New York State Task Force on Life and the Law for the proposition that, if legal, doctors would abuse the privilege by not following procedures. The Task Force asserts that, by its nature, medical practice cannot conform to a regulatory framework.

My hope is that this line of inquiry will lead the Justices to the ultimate question of whether criminalizing physician assisted dying actually does serve the states' interest in promoting life, given the unregulated, covert assistance that is acknowledged and condoned by the New York Task Force and others. Add to this the violent, premature deaths chosen by those who fear waiting until they cannot act on their own, and the conclusion is unavoidable that criminalization works against the goal of preserving life and preventing abuse.

When Kathryn Tucker spoke, various Justices shot questions and challenges to her regarding the nature of the liberty, why it should be limited to the terminally ill, whether there is enough experience or data to properly weigh the risk of abuse against an individual's right to choose, and whether the question shouldn't be left entirely to the states. Ms. Tucker held her own with grace and perseverance, boldly staying on course and refusing to be distracted. She was repeatedly pressed on why the Court should find fault in state laws, and she summed up nicely.

I think the final point that I will address to the Court on why we should not simply leave this to the legislative process is perhaps the most important point, and that is that this Court has never left to the legislative process the protection of vital liberties, and the liberty at issue in this case is certainly of a vital and substantial nature.

Next came arguments related to the equal protection claim asserted in Quill, argued by Attorney General Vacco for New York and Professor Laurence Tribe for Compassion respondents. The question was whether the state of New York irrationally discriminates against terminally ill individuals who are not on life-support systems, because, unlike those who are, they may not enlist the aid of their physicians to hasten their deaths.

Mr. Vacco began by drawing a distinction between the "right to be free from battery," and the right to have "physicians help (patients) kill themselves." But the Court demonstrated an awareness that the real question is more complex.

But, if we had just those two neat categories, this might be an easier case; . . . But we're told in this wealth of briefs that there are things in between that go on, like sedation for pain . . . And that increasing the morphine, say, is not rationally distinguished from giving a person a pill.

A point of controversy emerged about the treatment known variously as "barbiturate coma," and "terminal sedation," in which persons with uncontrollable symptoms are sedated to unconsciousness while they await a death from dehydration or respiratory depression. Justice Ginsburg returned to the question:

General Vacco . . . train your attention on what has been described as the worst case, it's been called barbiturate coma . . . you render a person unconscious, you withdraw nutrition and water, and it goes on for days and days and the person finally shrivels up and dies, and that, we're told, is permissible and goes on in hospitals in New York?

At first Mr. Vacco denied this is a recognized treatment.

. . . the suggestions that the death is brought upon by virtue of a coma coupled with the termination of nutrition and hydration is simply wrong.

But the question I'm asking is . . . we're told that this treatment, that inevitably will lead to death, will do so in a matter of days, not hours. And how is that rationally distinguishable from a pill that will work?

Later Sandra Day O'Connor made a similar point.

What if what's given is some form of sedation and the person has asked to be relieved of life support systems and so the sure consequence of sedation will be an earlier death?

Then, if the purpose is to bring about death as opposed to treating the symptoms of the pain --

It's to alleviate pain but with the certain knowledge that it will hasten the death.

But Mr. Vacco sidestepped the question, answering, not about a case of "certain knowledge" but "if there is a risk of death, pursuant to the principle of double effect, that is not criminal conduct in the State of New York."

Several of the Justices also questioned the state's assessment of a higher risk justifying the distinction between withdrawing treatment and prescribing lethal medication.

May I ask you, General Vacco, kind of a basic question? Many of the arguments are that there are the same risks involved in pulling the plug and physician-assisted suicide, both in terms of making sure what the patient wants and making sure there are no abuses. In your view, could the New York legislature have decided in the cases of terminating life-support equipment, to totally forbid it for the same reasons that they totally forbid the assisted suicide?

I don't believe the legislature could constitutionally prohibit the ability of a patient in the end stages of their life to refuse treatment.

That was the wrong answer, as far as Justice Scalia was concerned.

Just a patient in the end stages of their life. Can the state, if someone goes on a hunger strike and wants to die to protest something or other, can the state force-feed that person?

Yes, Justice Scalia.

I see. So you're drawing the same line that was drawn in the last argument, that there's something special about the last hours of death that creates a liberty interest.

When Mr. Vacco tried to say the distinction was one of a medical treatment that violates bodily integrity versus force-feeding, he was caught short by the Chief Justice.

It seems odd that your bodily integrity is violated by sticking a needle in your arm but not by sticking a spoon in your mouth.

Thus the point was made that the critical distinction is whether or not one is terminally ill, not whether one has a tube or machine that can be withdrawn. Yet the state makes that distinction only to discriminate against terminally ill persons who have no devices to discontinue.

Professor Tribe's mind races ahead, and when his turn came, his examples were sometimes hard to follow. The Justices will need to think through his reasoning at some length, but his points are powerful. New York allows for state intervention if the intent of an otherwise healthy person withdrawing treatment is to commit suicide, with an example of force-feeding a healthy young man.

It was the arbitrariness of the following scheme in New York law that the Second Circuit thought was irrational. The scheme was that . . . if you're not terminally ill, the state allows an invasion of the body in those cases where you're trying to kill yourself . . . But what happens when someone is terminally ill and dying, even if it is undisputed that the reason the person says, no blood transfusions, take out the tube, is to commit suicide. At that point the state says, we don't care about your reason, the technology is what makes the difference.

Is it a technique or is it the distinction between action and inaction?

It is the distinction between these two different kinds of action, the action that is requested of someone, operate on me to take out the tube, and the action, please give me a lethal prescription, that operates irrationally.

Finally, Mr. Tribe also was asked to define the liberty at stake.

I think the liberty is, when facing imminent and inevitable death, not to be forced by the government to endure a degree of pain and suffering that one can relieve only by being completely unconscious. Not to be forced into that choice, that the liberty is the freedom, at this threshold at the end of life, not to be a creature of the state but to have some voice in the question of how much pain one is really going through.

Several Justices commented on the high quality and useful character of the many briefs presented. It is clear they will be studied and analyzed at length. Our deep appreciation goes out to the law firms which gave so generously of their time and intellect to produce both our respondents' briefs and many fine amici briefs. It has been a monumental effort, of which our supporters can be immensely proud.

Lead Attorney for Respondents:
Kathryn Tucker, Seattle
Attorneys representing Respondents, pro bono:
Carla Kerr, New York
Professor Laurence Tribe, Cambridge
Attorneys representing Amici curiae, pro bono:
Edward C. Dumont, New York
(Coalition of mental health professionals)
Ronald Dworkin, New York
(Coalition of legal philosophers)
Robert Free, Seattle
(Coalition of surviving family members)
Brian Goebel, Washington, DC
(Coalition of religious organizations. leaders and scholars)
Martin R. Gold, New York
(Coalition of bioethicists)
Douglas A. Berman, New York
(Coalition of civil rights advocates)
Sylvia A. Law, New York
(Women's rights groups)
Kathryn Kolbert, New York
(Center for Reproductive Law & Policy)
Gerry A. Rosenberg, New York
(Coalition of hospice professionals)
Ronald A. Lindsay, Washington, DC
(Humanist groups)
Michael C. Dorf, New York
(Coalition of state legislators)
Charles H. Baron, Boston
(Coalition of law professors)
Andrew I. Batavia, Miami
(AIDS groups and prominent americans with disabilities)
Nicholas J. Boyle, New York
(American Medical Student Association and medical professionals)
Page Barnes, San Francisco
(Death with Dignity groups)

Supporters Attend Church Service in the Nation's Capitol

On Tuesday, January 7, 1997, the evening before arguments were presented to the United States Supreme Court, supporters of physician aid-in-dying gathered for prayer and remembrance at Christ Church Capitol Hill, in Washington D.C. The service was sponsored by The Death with Dignity Education Center in cooperation with Compassion in Dying and was led by Episcopal priests from opposite sides of the country. The Reverend Dr. Lawrence Falkowski, who co-chaired the Task Force on Assisted Suicide of the Diocese of Newark, came from the Holy Trinity Episcopal Church of West Orange, New jersey. Joining him was Reverend Donald Stewart Miller from the Church of St. Matthew, San Mateo, California.

The service was held for families and friends to remember and honor loved ones whose deaths have led us to confront the challenges of assuring Compassion, dignity, and self-determination for all dying persons. It also served as a time of serenity and reflection amid the intensity and frenetic pace of activities around the Supreme Court arguments.

The service began with opening prayers and invocations affirming the beauty of life and the individual nature of every person's spiritual beliefs. To reflect this diversity, the service centered on an ecumenical conceptualization of a supreme being and included the chanting of the Hebrew prayers by Stanley Fisher. Following two touching and personal homilies by the Reverends Falkowski and Miller, the congregation joined them at the alter to hold hands and sing Amazing Grace.

While Compassion in Dying has not pressed arguments of religious liberty in its landmark cases, the point is made that the manner in which one chooses to die arises from deeply held values and convictions related to the meaning of life, God, and eternity. Our attitudes toward suffering, redemption, and Compassion are also shaped by our religious beliefs. One can make a rational argument that laws banning aid-in-dying enforce a particular religious doctrine, while criminalizing other, equally authentic, beliefs.

A Message to Our Supporters

By Susan Dunshee, President

During this period of time between Compassion's "day in court" and the announcement of the Justices' decision some months hence, I want to reassure patients and their families, as well as all of our supporters, about the potential outcomes. Winning would, of course, be great. However, many in the death with dignity movement feel that we have won already just by the tremendous public airing of this issue, the press and media attention it has already garnered, and the enormous sense of momentum within the movement itself.

Should the Justices back away from finding a Constitutional basis for this liberty, we will not be deterred. Compassion in Dying will proceed with its active patient work, will pursue its plans for expansion, and will contribute to any efforts in Washington State to bring physician aid in dying to our citizens. If death with dignity can only be achieved in a state-by-state changing of the laws which prohibit it, so be it. One way or another, this cause will prevail.

All of us who work for and believe in death with dignity know in our hearts that this is an inalienable, personal right. When terminal illness brings us to the last chapter of our lives, we do have the right to determine the circumstances, the time, the place of our dying. We do have the right to request from our physicians safe, effective medications to ease our passage; we do have the right to have our loved ones present, serene in the knowledge that they will be free from any potential harassment. We do have the right to choose for ourselves what we are willing and able to endure, and what suffering and indignities we will spare ourselves and our families.

As I begin my fourth year as President of Compassion in Dying, I feel tremendous optimism about our future. The organization is stronger, more focused, more united than ever. We are posed to extend our reach and to share the model of patient care and family support which we have developed. We invite you to enlarge your own commitment to this cause. There is much for all of us to do. If you have a personal story to tell about this issue, now may be the time to come forward. If you know of others who are ready to add their voices to the dialogue, perhaps they can be encouraged to do so. Write your legislators about your feelings on this issue. Have a discussion with your doctor and be sure that he or she shares your views. Speak up, speak out. Volunteer. Send money. Together, we will prove that the death with dignity movement in this country is unstoppable.

Achievement Award Goes to Compassion Pioneer

A board of judges that includes Ted Danson, Morris Dees, and Gloria Steinem has named Compassion's former Director, Ralph Mero, as recipient of a Citizen Activist Award from the Gleitsman Foundation. The Gleitsman Foundation encourages individual dedication and commitment by recognizing the achievement of people initiating social change. It hopes to stimulate others to realize they too can make a difference and work to correct problems facing society, thereby improving the quality of life for us all. We applaud the Gleitsman Foundation for its awareness of this important issue.

New Reports From Netherlands Reveal No Slippery Slope

The November 28 issue of The New England Journal of Medicine carries three articles with the latest data from the Netherlands on physician assisted dying. Together, they confirm that physicians in that country provide assisted death in a careful, responsible manner, and the practice is not escalating.

Euthanasia and assisted suicide are performed in fewer than a third of those who request it. Together, they still comprise a very small proportion of all deaths -- 3.5%. This represents a very modest rise since 1990, when the reported incidence was 2.7%. Other means of assisted death, including administration of pain medication in doses large enough to hasten death and decisions to forgo treatment, also increased slightly over the last five years.

Much attention has been focused on those patients for whom life is ended without the patient's explicit request at the time. This group accounted for .8% of all deaths in 1990 and .7% of deaths in 1995. In about half these cases, either the decision was discussed with the patient earlier in the illness or the patient had expressed a wish for euthanasia if suffering became unbearable. Ninety-five percent of the time the physician discussed the decision with colleagues, nursing staff or relatives. One third of these patients had less than one day estimated to live; 90% had less than a week. A reasonable explanation for the existence of this small group is that some people very near death and exhibiting great suffering are also too sick to make a request for assistance. In the United States, they might be subject to terminal sedation by their physicians, a practice which is considered legal here, yet is entirely unreported and unregulated.

An editorial accompanying the articles is written by the Journal's Executive Editor, Dr. Marcia Angell. Dr. Angell concludes: "Are the Dutch on a slippery slope? It appears not. As far as we can tell, Dutch physicians continue to practice physician-assisted dying only reluctantly and under compelling circumstances."

Oregon's Death With Dignity Act Still Stalled

It was July 9, 1996, when a three-judge panel of the 9th Circuit heard oral arguments in Portland, Oregon, on the challenge to that state's newly passed Death with Dignity Act (the Act). National Right to Life brought suit shortly before the Act was to go into effect. They claimed that to allow terminally ill, mentally competent adults to request a prescription from their physician to end life in a humane and dignified manner discriminates against the terminally ill and violates the Constitution's Equal Protection clause. The premise of the suit is that the Act deprives terminally ill individuals of state intervention to prevent a suicide, should they seek to hasten an imminent death.

The federal district court in Eugene, Oregon, was receptive to the Right to Life arguments and enjoined Oregon from implementing the Act. At the appellate court hearing, it appeared that the judges of the 9th Circuit were less receptive and more inclined to view the Right to Life suit as improper meddling. One judge asked James Bopp, Right to Life Counsel, whether his case wasn't just a "hypothetical fantasy" of imminent harm arising from the new law.

Those who attended the hearing expected a relatively quick ruling, that would dismiss the case on the threshold issue of standing. But still Oregon waits, now 6 months after the hearing and a full two years after the law was to go into effect. The longer the wait, the stronger is the speculation that the judges of the 9th Circuit are waiting for the Supreme Court to rule on the Compassion cases.

If the Supreme Court affirms Compassion's victories and declares that states must recognize the right to choice and control at the end of life, then it follows that states may pass laws such as Oregon's. But if the Court overturns the Compassion rulings, the question theoretically remains whether a state may enact such a law. It seems unfair that the people of Oregon, who mustered the political will to pass a good law, should be forced to wait until the Supreme Court decides whether the state was obligated to do what it did or merely permitted to do so. We join those in Oregon who anxiously await a ruling to implement the Oregon Death with Dignity Act, which will allow physicians in the state to do, in an open and forthright environment, the kind of counseling Compassion in Dying now does quietly.

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This article was provided by Compassion in Dying.