IS THERE A RIGHT TO DIE?

By DAVID VAN BIEMA

Whatever one thinks about the Supreme Court's landmark Roe v. Wade decision of 1973, there can be little doubt of its judicial aggressiveness. At the time, the abortion issue, although hardly unsung, had been debated fully in only a few state legislatures. By grabbing the case, locating a previously unspecified right to abortion in the Constitution and telling the states to respect that right, the Justices effectively defined the issue and pre-empted a legislative solution. The result: the court was stuck particularizing its position for the next 20 years.

The last set of jurists one would expect to emulate that bravura act is the current, cautious Rehnquist panel. Yet last fall, with apparent gusto, it took on an explosive moral and ethical issue that energizes many of the same parties as abortion--and which has yet to be completely hashed out by elected officials. This Wednesday the court will hear arguments on two right-to-die cases, Vacco v. Quill and Washington v. Glucksberg. If they wish to, the Justices can take the opportunity, as suggested by assisted-suicide proponent Timothy Quill, to "establish landmarks" for tackling the controversy. Or, perhaps more prudently, they will find a way to fudge it.

The issue--whether doctors, forsaking the Hippocratic oath, should be allowed to prescribe lethal doses of medication or actively help mortally ill patients end their lives--has been moving toward center stage at least since 1990, when the court, in Cruzan v. Missouri Department of Health, established a patient's right to be taken off life support. In 1991, Quill, a New York physician, wrote in a medical journal about assisting a suicide. Meanwhile, retired Michigan pathologist Jack Kevorkian began a string of assisted or supervised deaths that now stands at 46. Three times Michigan authorities charged Kevorkian with murder, and thrice juries cleared him. Oregon voters seemed of similar mind when, in 1994, they passed a referendum allowing assisted suicide, and a nationwide Gallup poll in April showed that a 75% majority favored allowing doctors to end the lives of the terminally ill. Yet several other states have batted down Oregon-like initiatives.

The high court will deliver its opinion on a pair of federal appeals-court decisions supporting the practice. Last spring Ninth Circuit Judge Stephen Reinhardt wrote a fire-breathing opinion to overturn Washington's assisted-suicide ban on behalf of three plaintiffs who had already died naturally. Choosing a dignified death, Reinhardt asserted, was a constitutional right under the 14th Amendment's due-process protection of personal liberties and the principle of privacy defined in the court's abortion rulings: "A competent, terminally ill adult" should not be forced to endure "a childlike state of helplessness, diapered, sedated, incompetent."

A month later, a panel of the Second Circuit Court of Appeals voided a similar New York law, although less emphatically. The Second Circuit found no "cognizable" right to die in the Constitution, but ruled the current state of affairs unfair under the Equal Protection clause. If someone on life support can have a doctor kill him or her (by pulling a plug), the court reasoned, why deny the service to a terminally ill patient not attached to a machine? The high court will review the two cases together.

There are inarguably some for whom a Roe-style affirmation of a suicide liberty would seem a blessing. They are described eloquently in books by Quill (who is also party to the Second Circuit case) and right-to-die crusader Betty Rollin and in Judge Reinhardt's opinion. He tells of a 34-year-old lymphoma patient in excruciating pain who jumped from a Seattle bridge when denied his physician's help to die, and of an 84-year-old who, to spare his family criminal charges, went alone into his basement and blew out his brains with a shotgun.

Since the high court took the cases, however, scores of organizations have filed amicus briefs, many cautioning against letting tales of individual anguish obscure important principles. Conservative religious groups, ranging from Southern Baptists to Orthodox Jews to Muslims, stress that life is God's alone to give and take. (In fact, several liberal denominations that took the opposing "choice" side in the abortion wars have decided to sit this case out.) Some doctors' groups stress that would-be suicides would reconsider if American medicine used drugs more liberally for pain management.

But the most compelling arguments warn that approving assisted suicide would set off an inexorable, countrywide slide toward euthanasia--and the transformation of the bedside angel of medical mercy into an agent of corporation-encouraged death. New York Attorney General Dennis Vacco, who will defend his state's law before the court, will argue the difference, "logically, legally and historically," between withdrawal of treatment and active suicide assistance. If the latter shifts from a crime to a liberty, he says, "we have the prospect of managed-care organizations saying it's cheaper to pay for assisted suicide than to pay for treatment or life-sustaining devices." Fifty-three groups of health professionals have signed an American Medical Association brief supporting the suicide bans. Some of them cite a government report from the Netherlands, where assisted suicide is commonplace but heavily regulated, listing 1,000 cases in 1990 in which lives were terminated without a specific request (how many of those involved ethically troubling circumstances was unspecified).

Laurence Tribe, the Harvard law professor who, along with Seattle attorney Kathryn Tucker, will argue against the bans before the court, replies, "I am worried about abuse [of assisted suicide]. I don't want people to be pressured, and I don't want the right to become a duty. But I'm convinced the worst thing we can do, if we're worried about that danger and the slippery slopes, is to act like ostriches and ignore the way we withdraw feeding tubes or apply terminal sedation." Polls indicate that a fifth of all doctors and nurses have actively helped end a patient's life; there is no knowing how many families take the matter into their own hands with greater or lesser efficacy. "The only way to shrink the lawless zone and to reduce the ghoulish lone rangers with their death machines," Tribe maintains, "is to go our way." Retreating from Reinhardt's sweeping affirmation, Tribe says he will seek to establish a "limited constitutional principle" supporting regulated practice.

Even this, apparently, is too much for the Clinton Administration. Last November, Solicitor General Walter Dellinger filed two briefs supporting the state bans. Besides the fact that the President spoke out against assisted suicide during his 1992 campaign, the Justice Department may be worried that Reinhardt's linking of the right to die to abortion rights gave the high court a new opportunity to undermine Roe.

Indeed, most court watchers find it hard to believe that the current crop of Justices has called up the two cases in order to sustain Reinhardt. University of Chicago law professor Cass Sunsteen predicts that the Justices will reverse the appellate courts and leave the question up to the states, at least for now. A.E. Dick Howard, a constitutional expert at the University of Virginia, noting the court's recent fragmentation on issues of privacy and autonomy, predicts a "murky, inarticulate decision likely to be very imprecise about the bounds of one's right to end one's life."

But expressing a sentiment held by many regarding this case, he adds, "That might not be too bad. When issues like this are still taking shape, the political and ethical and religious aspects are so elusive, perhaps the law ought to be slow in providing the final answer."

--Reported by Elaine Lafferty/Los Angeles, Viveca Novak/Washington and Richard N. Ostling/New York

With reporting by ELAINE LAFFERTY/LOS ANGELES, VIVECA NOVAK/WASHINGTON AND RICHARD N. OSTLING/NEW YORK