Euthanasia put under legal microscope

US Supreme Court grapples with debate that could rival abortion in intensity as elderly population grows
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The Independent Online
The US Supreme Court this week directly grapples for the first time with a social issue that may soon rival abortion here in divisiveness and intensity of passion: the right of a doctor to help terminally ill patients end their own lives.

Two appeals are the focus of oral arguments before the nine high court justices tomorrow. They have been brought by the states of Washington and New York, seeking to overturn rulings by local federal courts that their respective bans on doctor-assisted suicide violated protections of individual freedom laid down by the 14th Amendment of the US Constitution.

But the debate reaches far further, on to the most delicate terrain of medicine, law and ethics, in an age when the number of elderly people is growing as inexorably as the cost of sophisticated new treatments to prolong their lives. The court will rule some time this summer. Few such judgments have been as hard to predict in advance, and few as keenly awaited.

The US does not compare with the Netherlands, where doctor-assisted suicide is tolerated, or Australia's Northern Territory, where euthanasia was legalised by a 1995 law. But over the last quarter century, it has been edging in that direction.

In 1976, after a legal struggle which transfixed the country, the parents of Karen Ann Quinlan were allowed to disconnect their comatose daughter's life-support system. Fifteen years later, the court endorsed a person's right to refuse medical treatment, a step which contributed to today's widespread practice of "living wills" in which an individual stipulates that if he is incapcacitated by terminal illness, his life should not be artificially prolonged by high-tech (and often ruinously expensive) procedures.

But, as the two states now in the front line insist, refusing treatment is one thing, the deliberate administering of lethal drugs or gases quite another. Indeed, 49 of the 50 states have laws specifically banning doctor- assisted suicide.

That however has not deterred the retired physician Jack Kevorkian, who during the 1990s has helped around 50 mostly terminally ill patients take their lives. Dr Kevorkian, "Dr Death" to his foes but to at least as many a pioneering hero, has stood trial three times for illegally assisting in suicide but juries on each occasion refused to convict him.

On the other hand, a "friend of the court" letter, urging the nine justices to uphold the ban, was the last public act of Cardinal Joseph Bernadin, Archbishop of Chicago, before his death last November. The establishment of a new "right" to die "will endanger society and send a false signal that a less than `perfect' life is not worth living", wrote the universally respected leader of American Catholics.

That remains the position of the religious community. This stand is moreover buttressed by a separate argument extending far beyond the Church, that a doctor's duty is to preserve life, not to conspire in ending it.

Once granted that right, it is contended, it is a short and slippery slope to unscrupulous doctors actually encouraging people to die - and thence to a de facto process of triage, the killing-off of patients considered too expensive or inconvenient to treat.

Hence the debate which now rages, dividing even spokesmen for hospices, whose very business is the comfort and dignity of the dying. The wish to hasten death can be a "rational and competent choice", says a "friend of the court" brief from the Coalition of Hospice Professionals. Not so, says the National Hospice Association, life is not "all but ended" because of a terminal illness. "The state has an interest in preserving life," even in those cases.

Such differences, almost certainly, will be mirrored within the court. The avowedly conservative Justices Clarence Thomas and Antonin Scalia can be expected to side with Washington and New York states. All probably will hinge on the views of the three or four traditionally centrist justices, who in 1993 ruled against a challenge to a woman's right to have an abortion.