Vol. 9, No. 3, Pg. 32. An Opportunity Slipping By: Why Lawyers Should Speak Up About Physician Assisted Suicide.

• Author: By Stephen P. Williams

South Carolina Lawyer

1997.

Vol. 9, No. 3, Pg. 32.

An Opportunity Slipping By: Why Lawyers Should Speak Up About Physician Assisted Suicide

32AN OPPORTUNITY SLIPPING BY: Why Lawyers Should Speak Up About Physician Assisted SuicideBy Stephen P. WilliamsLawyers now have an outstanding opportunity to positively assist in the second wave of this debate. Their training and background, as well as their traditional role in society, make them ideally suited to assist terminally ill patients in assuring their interests are heard and protected.

For some years, debate has occurred in the medical community among physicians, patients, medical ethicists, religious leaders and others about whether physicians should be allowed by law to assist their patients with a most difficult patient request - assistance in ending their lives. The U.S. Supreme Court has now decided the constitutional parameters under which the debate will continue. Washington v. Glucksberg, No. 96-110, and Vacco v. Quill, No. 951858 (June 26, 1997).

The latest decisions of the court assure that debate will ensue in the "laboratory of the states." Lawyers now have an outstanding opportunity to positively assist in the second wave of this debate. Their training and background, as well as their traditional role in society, make them ideally suited to assist terminally ill patients in assuring their interests are heard and protected.

FOURTEENTH AMENDMENT LIBERTY INTERESTS

In Washington, four physicians from Washington state who occasionally treated terminally ill patients maintained they would assist patients in ending their lives if not for Washington's statute forbidding their assistance. In 1994, the physicians, three terminally ill patients and a nonprofit group called Compassion in Dying filed suit in federal court seeking a ruling that the statute, Wash Rev. Code 9A.36.060(1)(1994) was unconstitutional on its face. Compassion in Dying v. Washington, 850 F.Supp. 1454 (W.D. Wash. 1994).

The plaintiffs asserted the existence of a "liberty interest," protected by the Fourteenth Amendment's due process clause, in a right to commit suicide with the assistance of a physician. The federal district court agreed, finding the statute placed an undue burden on the exercise of the liberty interest. The court further declared physician assisted suicide to be a liberty interest protected by the Fourteenth Amendment. A panel of the Ninth Circuit Court of Appeals reversed the lower court, finding no court of final jurisdiction had ever declared that a right to assisted suicide was a liberty interest protected by the U.S. Constitution.

On rehearing, the Ninth Circuit, sitting en banc, reversed the panel's decision and affirmed the district court. Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995). The state appealed, and the U.S. Supreme Court granted certiorari.

The Supreme Court reversed, noting the overwhelming majority of states have consistently condemned and continue to prohibit assisting suicide. The Court pointed out its continued reluctance to expand the concept of substantive due process. The analysis of assisted suicide failed the longstanding framework of constitutional inquiry concerning due process in that the alleged right to assisted suicide, according to the Court, is not an interest deeply rooted in the nation's history and tradition nor

34was there a careful description of the asserted fundamental liberty interest.

The issue of physician assisted death is not as, simple as it would seem. Evidence shows South Carolina physicians have wrestled with the problem since at least 1878.

Rejecting the due process claims, the Court reviewed its decisions in Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), and concluded the alleged right to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause.

The Court found Washington's ban on assisted suicide is rationally related to legitimate government purposes, including preventing suicide and studying and identifying the causes of suicide; protecting depressed or mentally ill persons from untreated pain; protecting...