Easing the Passing

One issue that will certainly be at the center of public controversy in the next few years is whether physicians should be authorized to participate actively in ending their patients' lives. While the issue has arisen sporadically before, three events in May underscore its central position. The first and most widely noted--but ultimately the least interesting or significant--was Dr. Jack Kevorkian's acquittal on 2 May of assisting Thomas W. Hyde, Jr., to commit suicide in the doctor's battered 1968 Volkswagen bus. Kevorkian, who has helped twenty people die since June 1990, was charged under a statute enacted in 1992 specifically to stop his activities. At the trial, for the first time, Kevorkian argued the prosecution was in error because Hyde's death had occurred while the VW van was still in Oakland County and not--as the indictment charged--on Belle Isle, a Detroit island park in Wayne County where he disclosed the death to police. The trial judge instructed the jury that unless it found beyond a reasonable doubt that the death had occurred in Wayne County, it would have to acquit. In comments after the trial, jurors stated they could not reach agreement on this point. The meaning of the "not guilty" verdict was further clouded because Kevorkian argued that his actions came within the exclusion in the statute for the administration of medications with the intent of relieving pain, even if the treatment does hasten death. Rather than stand on what was obvious--that he had provided carbon monoxide, which has no known analgesic value, solely as a means of causing death--Kevorkian claimed that he did it to ease Hyde's pain. An indication of the importance of this argument can be seen from one juror's comment, "I believe he did this to relieve this man's pain and suffering, even though it was wrong to help someone commit suicide." As University of Michigan law professor Yale Kamisar commented, "The jury was obviously badly confused."[1] Compassion in Dying In muddying the waters, Kevorkian's attorney won his client an acquittal but removed any precedential value from the Hyde case. In contrast, an opinion handed down the next day by the Chief United States District Judge for the Western District of Washington faced the issue of physician assistance in suicide head on.[2] The case was brought by "three terminally ill patients, five physicians who treat terminally ill patients, and Compassion in Dying, an organization which provides support, counseling and assistance to mentally competent, terminally ill adults considering suicide." The plaintiffs challenged the Washington State statute that makes it a felony knowingly to aid another person in committing suicide, but "only insofar as it bans physician-assisted suicide by mentally competent, terminally ill adults who knowingly and voluntarily choose to hasten their death." On cross motions for summary judgment, Judge Barbara J. Rothstein declared the law unconstitutional because it violated two Fourteenth Amendment rights of this group of patients in two ways. First, it placed an "undue burden" on the exercise of a protected liberty, and second, it violated the light to equal protection by treating this group differently from patients who are permitted to die by refusing life-sustaining treatments. Judge Rothstein's decision holds great national significance because forty-four states now have statutes or common law making it a crime to aid suicide. But this is not to say that it is a good decision. Quite the contrary, it represents faulty constitutional analysis, inappropriate lawmaking process, and unwise policy. In concluding that the Washington statute violates the due process clause, the court relies primarily on the Supreme Court's decisions involving reproductive liberty. From these it derives two points. Analogizing to the 1992 abortion decision, Planned Parenthood v. Casey, Judge Rothstein argues that "the decision of a terminally ill person to end his or her life |involv[es] the most intimate and personal choices a person may make in a lifetime' and constitutes a "choice central to personal dignity and autonomy. …