c. 1997 Religion News Service
UNDATED _ For most of human history in the West, a life was not one’s own. A human being belonged to king or country and, above all, to God.
On Wednesday (Jan. 8), the U.S. Supreme Court will consider a challenge to that notion, as it hears arguments on whether the terminally ill have a constitutional right to kill themselves with the help of a doctor.
The case, involving Washington and New York state laws, could be to doctor-assisted suicide what the Roe vs. Wade decision was to abortion.
If the Court agrees human beings are autonomous, the individual _ not church, state or the forces of nature _ will have final say over life and death.
To Washington state attorney general Christine Gregoire, it’s not just a question of individual rights but of “changing our complete culture.”
“It opens a whole new way of looking at things,” she says.
Opponents of doctor-assisted suicide argue that if the Constitution gives freedom to end life with the help of a doctor, then it may also safeguard the right to take hallucinogenic drugs, engage in prostitution or fight a duel.
Right-to-die proponents say if freedom doesn’t include the right to end one’s life with the help of a doctor, it will threaten abortion rights, contraceptive rights and the right to raise children according to one’s own standards.
A decision against assisted suicide risks “cutting the roots out under the tree of liberty,” says Harvard law professor Laurence Tribe, who may make the same argument Wednesday as he stands before the Supreme Court.
“You can’t have a flourishing tree that has one branch with abortion and another branch with contraception and no roots. The roots have to say the state can’t take away from you so much of your liberty that you become a mere creature of the government.”
Five years ago the Supreme Court proclaimed that the Constitution gives individuals the right to define their “own concept of existence.” But the Court, and the nation, may be unprepared to follow that logic to its end.
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The word “autonomy” comes from the Greek “auto,” for self, and “nomos,” for law. “Personal autonomy” suggests a person who is a law unto himself.
But to the Greeks, being disconnected from community was the worst of fates. And even though the pagan societies of ancient Greece and Rome condoned suicide, they considered it a community matter.
Athenians, for example, could not commit suicide without permission of the Senate. A man who stabbed himself in anger was, in Aristotle’s opinion, treating the state unjustly.
Early Judaism and Christianity held that God has power over life and death. To dampen an excessive zeal for martyrdom, the early Catholic Church threatened to excommunicate or deny funeral rites to those who killed themselves.
On assisted suicide, Augustine, the 5th-century Christian theologian, was emphatic: “It is never licit to kill another: even if he should wish it, indeed if he request it because, hanging between life and death, he begs for help in freeing the soul struggling against the bonds of the body and longing to be released; nor is it licit even when a sick person is no longer able to live.”
English common law of the Middle Ages regarded God as the author of human life and the king, God’s earthly representative, as its steward. As legal scholar Sir William Blackstone wrote in his 1765 Commentaries, a suicide offended both God and the king, “who hath an interest in the preservation of all his subjects.”
Rationalist philosophers of the 18th century proclaimed the autonomy of man. Acting on the new ideas, the French revolutionary regime of 1790 abolished the law against suicide.
But the early American states remained true to English common law, confiscating family property if the owner committed suicide. That practice was abandoned, along with laws criminalizing suicide, by the end of the 19th century.
Still, most states retained laws against assisting in suicide, treating it as a form of homicide.
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“Historically, states have had great power to regulate behavior,” notes Seattle University law professor Annette Clark. “It would be a fundamental shift to say that states don’t have that power.”
It would also threaten the view that “we the people” share a heritage of values _ both religious and secular _ called the common good.
“The modern world has got to take account of the fact that religion no longer has the hold it once did,” says Derek Humphry, a euthanasia activist and the author of the best-selling book, “Final Exit.”
Humphry and other proponents of doctor-assisted suicide often express hostility to fixed values. Michigan’s Dr. Jack Kevorkian, who has helped more than 40 people kill themselves, says our problems stem from a commitment to “eternal ethics.”
Kevorkian calls himself “an absolute autonomist,”a proponent of the right to “do and say whatever you want to do and say at any time you want to do or say it, as long as you do not harm or threaten anybody else’s person or property.”
Ninth Circuit Court of Appeals Judge Stephen Reinhardt, whose lengthy justification of a right to die is one of two opinions under review by the Supreme Court this week, also promotes an individualistic freedom to choose.
He says people of faith have a right to follow their own creed but they are not free “to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted and agonizing deaths.”
Reinhardt’s constitutional justification for assisted suicide is the Due Process Clause of the 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law …”Reinhardt emphasizes liberty, not life.
In this century, the Supreme Court has ruled that the 14th Amendment also protects personal decisions about marriage, procreation, family relationships, child rearing and education, intercourse, contraception, and abortion.
For Reinhardt, though, the clincher is two recent Supreme Court decisions that, taken together, establish what looks to him like a clear precedent for a constitutional right to die.
The first, Cruzan vs. Missouri Dept. of Health (1990) recognized the right to terminate unwanted medical treatment, even when death is the inevitable result.
The second, Planned Parenthood vs. Casey, a 1992 abortion case, elevated the principle of personal autonomy to a controversial new orthodoxy in a 5-4 ruling.
The most intimate and personal choices, the Supreme Court wrote, “choices central to personal dignity and autonomy,” are protected by the 14th Amendment. Citizens, the court said, have a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Wednesday’s case for doctor-assisted suicide hinges in large part on that paragraph in the Casey decision. Kathryn Tucker _ an attorney for the Seattle-based Compassion in Dying _ will join Harvard’s Tribe in persuading the Court to extend its own logic.
What choice could be more personal and existential than the decision to end your own life?
In an interview, Tucker, a self-described agnostic, acknowledges this is a “religiously charged issue,” with denominations taking strong stands on both sides. But echoing Judge Reinhardt, she says the law should not reflect faith or a communal philosophy.
“While I agree people should be able to hold those views, they shouldn’t be able to apply them to others,” says Tucker.
Pope John Paul II disagrees. Last year, in his encyclical letter “On the Value and Inviolability of Human Life,” he lamented the apparent triumph of the notion of autonomy in contemporary life.
The pope decried the trend to demand legal justification for what he regards as attacks on human life, “as if they were rights,” and to acknowledge, in law, the “autonomy of individual consciences.”
Gregoire, Washington’s attorney general, makes a similar point in her brief, without invoking religion.
She writes that “the issue of physician-assisted suicide is a value judgment between respecting the autonomy of some versus protecting the lives of all.”
Instead of making assisted suicide a constitutional right, the Court, she says, should leave the matter for individual states to decide. In 1994, Oregon voters passed the nation’s first law legalizing doctor-assisted suicide. A court injunction has blocked implementation, at least for now.
“The Oregon experience could serve as a laboratory for the nation,” says Gregoire. “But Oregonians ought to be allowed to change their minds if it doesn’t work.”
Gregoire worries that the autonomy principle threatens the common good. “We pride ourselves on our individual rights, but how far do we go?”
Proponents argue if a line is to be drawn, it shouldn’t exclude doctor-assisted suicide. About half the general public and many doctors appear to agree.
Separate polls this year by The Washington Post and the National Conference of Catholic Bishops show 50 percent of Americans favor legalizing assisted suicide. In November 1994, Oregonians voted to approve Ballot Measure 16 to make doctor-assisted suicide legal.
Last February, a survey of Oregon physicians who treat dying patients showed 60 percent favor doctor-assisted suicide in some cases. A 1994 survey of Washington doctors showed similar results, despite the American Medical Association’s staunch opposition to assisted suicide.
MJP END RNS
