Vol. 10 No. 6 (June 2000) pp. 369-371.

LETHAL JUDGMENTS: ASSISTED SUICIDE AND AMERICAN LAW by Melvin L. Urofsky. Lawrence: University Press of Kansas, 2000. 176 pp.

Reviewed by Richard Pacelle, Department of Political Science, University of Missouri-St. Louis.

This study of the one of the most difficult legal and ethical issues is Professor Melvin Urofsky's second contribution to the Landmark Law Cases and American Society series. This is a brief but thorough and clearly written analysis of the historical, ethical, policy, and legal issues surrounding the right-to-die and physician assisted suicide. This is a book that should be readily accessible to students of public policy, American politics, and public law. It is interesting and important on a number of levels. The book is a case study that illustrates a wide array of political science and legal concepts such as federalism, agenda setting, issue evolution, the dynamic relationship between different issue areas, the influence of public opinion, and the reciprocal influences of law on society.

Proponents of a right-to-die and assisted suicide seek the "good death" and the chance to exert some control over their final days. They desire a death with dignity and an escape from final days in pain. It is an issue that will increasingly affect families as medical advances continue to prolong life. Opponents, on the other hand, have tradition, religious doctrine, the Hippocratic Oath, and political muscle on their side. Professor Urofsky makes no secret of his preferences. He would like to see the Court recognize a liberty interest for assisted suicide.

It has long been argued that American law floats on a sea of religious principles. Urofsky demonstrates that this adage is particularly true in this area of law. The religious taboo against suicide increasingly found itself institutionalized into laws limiting the right to die or prohibiting assisted suicide. The author does an excellent job of laying out the emergence and evolution of the right-to-die issue in American politics. In the best tradition of the agenda setting literature, Urofsky discusses how the right- to-die issue emerged, faded, and then reemerged and ultimately metamophosized into questions of assisted suicide. The author examines changing public sentiment and how technology has altered the nature of the ethical and policy questions. The analysis even contains a comparative dimension as the author considers the more liberal laws of the Netherlands.

Urofsky carefully distinguishes the right-to-die by failing to take life-sustaining treatment from assisted suicide, which requires the active participation of a doctor. However, Urofsky demonstrates that these legal distinctions shroud the more striking similarities between the two procedures. The practical line between refusing or withholding treatment and actively helping a patient die is often very gray. The legal line to date has been bright red. The issue moved from the

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types of concerns that spawned the Karen Ann Quinlan and Nancy Beth Cruzan cases to the influence that Dr. Jack Kevorkian has had on the law. Issue wise, the active intervention of a doctor in helping a terminal patient raises more difficult questions for the medical community to support and the courts to decide. Assisted suicide has been much more controversial and expressly forbidden by the American Medical Association, the most powerful medical organization. As Alexis de Tocqueville would no doubt predict, the policy concerns eventually got translated into legal questions. Urofsky details a number of the important lower court cases that helped move the issue to the forefront.

The courts had to find a jurisprudential niche for the issue and that certainly structured its development. The legal issue, of course, could not be separated from its controversial foundations: privacy, reproductive rights, and substantive due process. Reproductive rights played a major role in the Supreme Court's development of a policy to govern right-to-die concerns. The right-to-die issue surfaced in front of a Supreme Court that was increasingly less tolerant of privacy as a constitutional right and disinclined to second- guess state legislatures. The claim that the right-to-die should be a liberty interest under the Due Process Clause and that the Court should declare state laws unconstitutional was a difficult argument to advance on a number of levels.

Urofsky examines the difficulty right to die issues pose for the Court: such issues involves rapidly advancing technology, has ethical and religious underpinnings, asks the Court to substitute its judgment for elected officials, is based on controversial legal principles, has the strong influence of public and specialized opinion, and involves the influence of societal trends on the law. In the context of what the author calls "judicial politics," he considers the two decisions correct. He concludes that the Court did not want to revisit the firestorm that accompanied ROE v. WADE (1973). Still, Urofsky is critical of the Supreme Court's decisions on substantive grounds, claiming that the analysis ignored modern realities and placed the jurisprudence in a context that was a century old. He finds the lower court decisions that the Supreme Court reversed more persuasive.

The major focus of the last full chapter is the two recent Supreme Court decisions on assisted suicide: WASHINGTON v. GLUCKSBERG (1997) and VACCO v. QUILL (1997). The lower courts relied heavily on CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990) and PLANNED PARENTHOOD v. CASEY (1992), the abortion decision, in declaring the Washington and New York laws forbidding physician assisted suicide unconstitutional. Urofsky shows the legal and political distinctions between CRUZAN and the assisted suicide cases. Urofsky takes the reader through the oral arguments and the questioning by the justices. On attitudinal grounds, the Court that decided the GLUCKSBERG and QUILL cases was different. Three of the proponents of a liberty interest had left the Supreme Court. On legal grounds, the Court drew a distinction between the state's interest in limiting the right-to-die and the state's authority to restrict physician assisted suicide.

The Supreme Court upheld the states' laws, ruling that there was no constitutional right to physician assisted suicide. The Supreme Court rejected a liberty interest in assisted suicide and held that the state had a significant interest in

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preventing potential abuse. The decision was not surprising, but the apparent unanimity of the Court was. Urofsky describes the opinion of the Court, authored by Chief Justice William Rehnquist, as "formulistic" (p. 149) and "rather simplistic" (p. 143). The opinion was devoid of the emotion that is such a part of the issue. On the other hand, according to Urofsky, the concurring opinions, particularly the one written by David Souter, were "more interesting and nuanced" than the majority opinion. Souter's opinion was more personal and sensitive to the weight that these issues placed on doctors and patients. Souter's opinion has broader importance because it lays out a historical analysis and standards for defining a liberty interest. As is sometimes the case, Urofsky expects that Souter's concurring opinion will eventually be legitimated and become the dominant voice of the Court on the issue.

Ultimately, federalism is important to this issue for two reasons. First, the current Supreme Court expresses great deference to state legislatures. This was evident in the decisions on the state laws banning assisted suicide. Second, this deference provides some hope for proponents of physician-assisted suicide. As Justice Brandeis argued, federalism is valuable as a laboratory for policy experimentation. Indeed, Oregon voters passed a referendum that allows physician assisted suicide. Both sides in the debate are carefully monitoring the results of that policy. And that is important because despite the Supreme Court's ruling that allowed the states to prevent assisted suicide, a number of the justices offered the view in concurring opinions that this is far from settled law at this point.

CASE REFERENCES:

CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 497 U.S. 261 (1990).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).

ROE v. WADE, 410 U.S. 113 (1973).

VACCO v. QUILL, 117 S.Ct. 2293 (1997).

WASHINGTON v. GLUCKSBERG, 117 S.Ct. 2258 (1997).


Copyright 2000 by the author, Richard Pacelle.