In March the U.S. Court of Appeals for the Ninth Circuit decided that a Washington statute which prohibited physician-assisted suicide was unconstitutional (Compassion in Dying v. State of Washington). Less than a month later, the U.S. Court of Appeals for the Second Circuit declared unconstitutional an 1881 New York law which prohibited assisting suicide (Timothy E. Quill v. Dennis C. Vacco).
Judge Stephen Reinhardt, who wrote the decision in the Washington case, started his argument with the protection of liberty in the due-process clause of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Citing a passage from Planned Parenthood v. Casey (the 1992 Supreme Court decision regarding abortion) which said that "choices central to personal dignity and autonomy" are "central to the liberty protected by the Fourteenth Amendment," Reinhardt judged that the liberty protected in that clause must include the liberty to choose death, at least when a competent patient is terminally ill, suffering, and requesting a prescription from a physician to hasten death.
The Second Circuit was invited by plaintiffs down a similar path, but it declined "to identify a new fundamental right." Instead Judge Roger Miner turned to the equal-protection clause of the Fourteenth Amendment, deciding that the New York law which prohibited assisted suicide was a violation of that clause because it "does not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths."
Those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated except for the previous attachment to life-sustaining equipment are not allowed to hasten death by self-administered prescribed drugs.
The court held, in effect, that there is no important or legally relevant difference between refusing life-prolonging medical treatment and requesting lethal prescriptions, between withholding (or terminating) unwanted medical treatment and prescribing drugs to hasten death, between allowing to die and assisting in suicide.
This rejection of the traditional distinction between killing and allowing to die also helped clear the legal ground for Judge Reinhardt, for he found a precedent for his new liberty interest in the 1990 opinion of the Supreme Court concerning Cruzan v. Director, Missouri Department of Health. In that opinion Chief Justice William Rehnquist wrote, "We assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." That is a precedent, of course, only if there are no important distinctions between refusing life-prolonging medical treatment and requesting lethal drugs, between allowing to die and killing.
These twin decisions were reached by different paths, paths which, while breaking new ground legally, are well born within medical ethics. Judge Reinhardt's argument emphasizes liberty, makes individual autonomy trump over every other moral argument, and understands self-determination to include a right to self-destruction. Judge Miner's argument rejects the distinction between suicide and refusing treatment, between killing and allowing to die.
The distinction between suicide and refusing medical treatment, or between killing and allowing to die, is a "traditional" one, but I do not hold that against it. In medicine the tradition was initiated by those Hippocratic physicians who acknowledged the folly of attempting to preserve the life of a patient "overmastered" by disease. in law this tradition has been a part of the common-law prohibitions of suicide and assisted suicide. This distinction was invoked in all legislative initiatives on behalf of the patient's right to refuse treatment. …