Euthanasia Could Be Next Supreme Court Battleground

While four states have affirmatively legalized the dangerous practice of doctor-prescribed suicide, and legislative efforts continue to expand that number, an even greater threat may be posed by the United States Supreme Court. We are in a situation, with the current Supreme Court vacancy, under which whoever gets to appoint the new justice can definitively shift the High Court’s ideological balance.

Before Justice Antonin Scalia’s untimely death, it was widely recognized that on many issues, including abortion, the Court had been divided 4-4 with Justice Anthony Kennedy often providing the deciding vote. Replacing Scalia with a justice holding an opposite perspective would typically lead to either 5-4 or 6-3 rulings on such issues.

Euthanasia could be among them.

As brief background, nearly every state across the country has long had a law protecting against assisting another in a suicide. There has been on ongoing attempt by pro-euthanasia advocates in the U.S., as a first step, to carve out an exemption that says your doctor can give you a lethal prescription to take home and overdose on if you meet several scant legal requirements.

The primary organization behind these efforts is Compassion and Choices, or C&C (formerly the Hemlock Society). While those at C&C are seeking to legalize much broader euthanasia, it has made a strategic decision to begin with this thin-edge-of-the wedge approach.

Currently, doctor-prescribed suicide is legal in Oregon, Washington and Vermont, and it may have some legal immunity in Montana, due to a court decision. Doctors can start writing lethal prescriptions in June in California.

The 2016 election season will have decades-long ramifications on what direction the Supreme Court takes this country. The issue of assisting suicide could come before the High Court.

It is critical to realize that the word “court” has become largely a misnomer. While the Supreme Court does indeed exercise judicial functions in a number of cases with low-ideological content—settling contract and patent issues, for example—when it comes to making “constitutional” rulings the body has gradually come to act more and more like a “Supreme Legislature.”

Whereas in past decades, presidential candidates often eschewed so-called litmus tests for how their appointees would vote on specific issues, instead talking generally about “judicial philosophy,” today those in both parties talk openly about a laundry list of positions anyone they’d nominate would have to take.

For example, it is clear as daylight that if the Scalia vacancy is filled by a President Obama, Clinton or Sanders, there will be five votes on the nine-member body to strike down essentially all limits on or regulations of abortion, ranging from the Hyde Amendment through informed consent and parental involvement laws to the Partial-Birth Abortion Ban. Justice Ruth Bader Ginsburg contends that any law touching abortion differently than, say, prostate surgery invalidly constitutes “sex discrimination.”

For a summary of expected changes from a self-described “liberal” constitutional law professor, Erwin Cherminsky, see here.

Less widely discussed is that the issue of assisting suicide will almost inevitably again come before the High Court. Few may remember the justices did address the issue almost 20 years ago.

In 1997, the U.S. Supreme Court in the case of Washington v. Glucksberg, unanimously rejected the claim that there was a constitutional “right” to assist suicide. But many of the concurring Justices suggested they agreed only because there was not yet enough evidence to show that states could not rationally fear abuses.

Moreover, in one concurring opinion in Glucksberg, then-Justice John Paul Stevens made a point of saying that he did not intend to “foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.”

In addition to this open-ended invitation to bring a case in the future, Supreme Court Justices have also indicated that they like to look at trends.

In the 2005 Roper v. Simmons case (an unrelated juvenile death penalty case), the Court wrote, “It is not so much the number of … States [changing their laws] that is significant, but the consistency of the direction of the change.” Despite their misleading nature, official reports from California, Oregon and other states where euthanasia is legal could in the future be cited to assert that fear of abuses has become irrational. The Justices could conclude they would no longer allows states the constitutional latitude to prevent assisting suicide.

So while you might not live in one of the states where doctor-prescribed suicide is legal, if more states join the ranks of California, Oregon, Washington and Vermont—and above all if 2016 sees the election of a president and Senate likely to use the next Supreme Court vacancy to nominate and confirm a Justice sympathetic to euthanasia—there is the real risk the U.S. Supreme Court might well follow the Supreme Court of Canada recent decision holding there is a federal constitutional right to assist suicide.

The Carter v. Canada decision did not limit itself to those said to be “terminally ill.” It mandated legalized assisting suicide for anyone who “has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” “Irremediable,” the court stressed, “does not require the patient to undertake treatments that are not acceptable to the individual.”

Moreover, while the ruling on its face only applied to “a competent adult person who … clearly consents to the termination of life,” the court hinted that it may later hold that surrogates have the right to kill people with disabilities who cannot speak for themselves and who have never asked to die. Having dismissed any distinction between rejecting life-preserving treatment and direct killing on the grounds that both hasten death, the court noted, “In some cases, [decisions to reject life-saving treatment] are governed by advance directives, or made by a substitute decision-maker.”

Whether in one sweeping decision or through a carefully paced step-by-step series, an ideologically committed Supreme Court majority might well echo the Canadian court in ultimately stripping states of their legislative discretion. They would no longer be able to protect those with Alzheimer’s disease or other judgment-impairing mental disabilities from being killed at the direction of their relatives, guardians or perhaps “ethics committees” at health care facilities presently often empowered to cut off treatment and assisted feeding for those under their care who have no one to speak for them.

Presidential candidate Hillary Clinton has called assisting suicide “an appropriate right to have.” In her first campaign question on the issue in a town hall in February, Politico reported “she said, ‘It is a crucial issue that people deserve to understand from their own ethical, religious and faith-based perspectives.’ Clinton added that she wants to examine what other countries, like the Netherlands, have experienced after enacting laws.”

In February of this year, Clinton’s rival, Senator Bernie Sanders (I-Vt.), speaking at a Seniors Decide Forum hosted by the Leadership Council of Aging Organizations, said that terminally ill patients “have the right to make that decision for themselves,” in response to a question on “aid-in-dying.” The clip can be found here.

With the composition of the Supreme Court in the balance, it is more urgent now than ever before to raise awareness and fight back on this important issue. We must tell our elected officials that killing the patient must never be condoned as a reasonable “solution” to human problems!