Assisted Suicide Is a Slippery Slope

By Larson, Edward J. | Insight on the News, August 29, 1994 | Go to article overview

Assisted Suicide Is a Slippery Slope

Larson, Edward J., Insight on the News

There is a saying among attorneys that "bad facts make bad law." This adage has always applied to arguments for legalized mercy killing. It perfectly fits the recent federal district court ruling in Compassion in Dying vs. Washington, in which Judge Barbara Rothstein of Seattle held that certain people have a constitutional right to receive a doctor's help in committing suicide. If upheld, this unprecedented decision would undermine all state laws against assisted suicide and euthanasia. As it stands, it illustrates how focusing on a few compelling individual cases for physician-assisted suicide -- which provide the "bad facts" -- can produce a legal ruling that is likely to harm many more people than it helps.

In this lawsuit, three terminally ill Washington residents challenged their state's law against assisted suicide, which is similar to statutes in most American jurisdictions. Like other states, Washington does not outlaw suicide or attempted suicide. Rather, the law at issue broadly proscribes aiding or causing the suicide of another. Nothing in the statute targets physicians as actors or the elderly, terminally ill or those in pain as recipients. It protects life and discourages suicide without regard to the victim's condition. It covers confused teenagers and depressed 40-year-olds as well as the infirm.

Restrictions against assisted suicide have been the norm in Western civilization for more than 1,500 years, and have always applied in Washington state. Although the long history and widespread acceptance of a ban against assisted suicide do not necessarily prove its wisdom, they certainly suggest that such restrictions do not so intrude upon our traditionally protected personal liberty as to violate our constitutionally protected right to privacy. Better evidence for the wisdom of this age-old ban comes from its current viability. In its present form, the Washington law reflects the relatively recent influence of the Model Penal Code, which was crafted by the leading criminal law scholars of the mid-20th century.

The drafters of the Model Penal Code considered the arguments in favor of decriminalizing assisted suicide, but ultimately decided to retain that traditional feature of Anglo-American criminal law. In the commentary to the code, the drafters noted that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim."

In the past 30 years, following the publication of the Model Penal Code, eight states passed new statutes specifically outlawing assisted suicide and 11 other states, including Washing-ton in 1975, revised their existing statutes. Just three years ago, Washington voters rejected a ballot measure, sponsored by the same organization that instigated the present lawsuit, that would have amended the law so as to permit physician-assisted suicide.

Before Rothstein's recent decision, there was no hint in any published judicial opinion that laws against assisted suicide were unconstitutional. Indeed, contrary to the implications of her decision, the U.S. Supreme Court in its 1990 decision involving the right to die, Cruzan vs. Director, suggested they were constitutional. In her decision, Rothstein wrote, "In Cruzan, the Supreme Court considered whether a competent person has a constitutionally protected liberty interest in refusing unwanted, life-sustaining medical treatment.... In his majority opinion, [Chief] Justice [William H.] Rehnquist acknowledged that this principle`may be inferred from our prior decisions.'" She added, "The question then becomes whether a constitutional distinction can be drawn between refusal or withdrawal of medical treatment which results in death, and the situation in this case involving competent, terminally ill individuals who wish to hasten death by self-administering drugs prescribed by a physician. …

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