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.