🚀 go-pugleaf

In the New England Journal of Medicine -- October 23, 1997 -- Volume 337,
Number 17, someone has revisited (in two articles) the US Supreme Court's
decisions on assisted suicide -- Washington v. Glucksberg, 117 S. Ct. 
2258 (1997) and Vacco v. Quill, 117 S. Ct. 2293 (1997). 

The titles are: "The Supreme Court and Physician-Assisted Suicide --
Rejecting Assisted Suicide but Embracing Euthanasia", at
http://www.nejm.org/public/1997/0337/0017/1236/1.htm
 and "The Supreme Court Speaks -- Not Assisted Suicide but a
Constitutional Right to Palliative Care" at
http://www.nejm.org/public/1997/0337/0017/1234/1.htm


Here is a summary:

The opinions were written by the Chief Justice on 5-4 decisions; the
narrow majority holding was that there is no US Constitutional right to
physician-assisted suicide. Justice O'Connor was one of the 5 majority.)

In their comments the minority 4 justices joined Justice O'Connor in
holding that the US Constitution requires all states to ensure that their
laws do not obstruct the provision of adequate palliative care, especially
for the alleviation of pain and other physical symptoms of people facing
death. By authoritatively pronouncing that terminal sedation intended for
symptomatic relief is not " covert physician-assisted suicide", a
five-justice majority has expressly licensed an aggressive practice of
such care. 

This is not just some footnote; though neither side in the two cases had
presented that issue it seems that Justice O'Connor made it a requirement
for her concurrence in the "assisted-suicide" ruling. 

She joined Rehnquist's opinions -- thus providing the necessary fifth vote
along with Justices Scalia, Kennedy, and Thomas ----on the basis of a
quite specific understanding. In the second paragraph of her opinion, she
observed,

"The parties and amici agree that in these States a patient who is
suffering from a terminal illness and who is experiencing great pain has
no legal barriers to obtaining medication, from qualified physicians, to
alleviate that suffering, even to the point of causing unconsciousness and
hastening death.... In this light,... I agree that the State's interests
in protecting those who are not truly competent or facing imminent death,
or those whose decisions to hasten death would not truly be voluntary, are
sufficiently weighty to justify a prohibition against physician-assisted
suicide." 

She repeated this observation; the clear implication is that if a future
case were presented to the Court in which there was a "dispute" about the
existence of state legal barriers to adequate palliative care, then this
would be the "quite different" and "considerably stronger" argument that
could lead her to a different result. This was what the minority judges
concurred with in their individual statements. 

One implication is that physicians may not be punished by the state, or by
Licensing Boards-- armed with their patients' constitutional right to
adequate palliative care, physicians could protect themselves in judicial
forums against state regulatory boards ignorant or dismissive of the
evidence that high-dosage prescriptions of opioids for treating pain and
other distressing symptoms are safe, effective, and appropriate. 

Another implication is that other obstructions, such as "mechanisms for
financing care [that] impede good end-of-life care and... frustrate
coordinated systems of excellent care,"require legislative attention. If
state legislature refused to address such obstructive elements of their
laws, or give them only perfunctory attention, they would be guilty (in
Justice Souter's words) of "legislative foot-dragging," of failing to
recognize "the high degreeof importance, requiring a commensurate
justification" with reference to the "claims raised by the patients and
physicians"  in challenging the prohibitions. Such states would (in
Justice Breyer's words) "infringe directly upon... the core of the
interest in dying with dignity," which involves "medical assistance, and
the avoidance of unnecessary and severe physical suffering." 

        A Supreme Court majority has thus provided an unexpected but
strong and very welcome directive requiring states to remove the barriers
that their laws and policies impose on the availability of palliative
care; it's not the same as approving physician-assisted suicide, but
permitting conduct that may foreseeably hasten death but is intended for
other important purposes, such as the relief of pain or other symptoms
goes a long way to ensure a dignity for the terminally-ill in their dying. 


MichaelP