By Burke J. Balch

Director, NRLC Dep't of Medical Ethics

The federal Court of Appeals for the Second Circuit April 2 struck down New York's law protecting against assisting suicide in a 3-0 ruling. If the reasoning of Quill v. Koppell is upheld by

the U.S. Supreme Court, it threatens the no voluntary killing of people with disabilities who have never asked to die.

The decision, which New York Attorney General Dennis C. Vacco immediately said would be appealed, follows on the heels of another federal appellate decision March 6, in the Ninth Circuit, to similar effect.

The opinion by a panel of the Second Circuit, whose jurisdiction covers Connecticut and Vermontas well as New York, ruled that the protective law is not "rationally related to any legitimate state interest." Noting the state had claimed an interest "in preserving the life of all its citizens," the court said that instead "the state's interest lessens as the potential for life diminishes," and that there is only a "greatly reduced interest of the state in preserving life" for one who is terminally ill.

The Second Circuit said the New York law violates the equal protection clause of the Constitution's Fourteenth Amendment, because people with terminal illness are allowed to reject lifesaving medical treatment, but are not allowed to have doctors directly kill them.

Nonvoluntary Killing

While the Ninth circuit decision explicitly said that "surrogates" could make the decision to kill incompetent people, the Second Circuit tried to claim that its decision does not mandate on-voluntary killing. However, the logic of its reasoning inescapably leads to that result.

The Second Circuit, acknowledging that no voluntary euthanasia occurs in the Netherlands where assisting suicide has been effectively legal for years, nevertheless wrote, "The plaintiffs here do not argue for euthanasia at all but for assisted suicide for terminally ill, mentally competent patients, who would self-administer the lethal drugs. It is difficult to see how the relief the plaintiffs seek would lead to the abuses found in the Netherlands." But the issue is not what the plaintiffs happened to seek in this groundbreaking litigation, but what result the rationale for the Second Circuit decision would have when no voluntary killing is sought by others.

The Second Circuit dismisses as irrational and unconstitutional the distinction between rejection of treatment and direct killing. But on April 2 a court ruling in Pennsylvania brought to 25 the number of states the law currently allows other people, so-called surrogates, to decide to cut off or prevent lifesaving treatment for incompetent patients who have never said, one way or the other, whether they wanted to reject such treatment. If it is unconstitutional to treat direct killing differently than rejecting treatment, it follows that under the Second Circuit's reasoning these states have no constitutional choice but to allow surrogates to order the direct killing of incompetent patients who have never said they want to be killed.

At present in every state, a competent person has virtually an absolute right to reject life-saving treatment, no matter what the person's physical condition may be. Indeed, it is unlawful battery to impose a medical treatment on a competent patient without the patient's informed consent.

If there is no constitutionally acceptable difference in the way the state may treat treatment rejection and lethal prescriptions, then anyone who has the right to reject treatment - - essentially

any conscious adult who is not a prisoner and has not been deemed incompetent - - must have an equal right to be directly killed by a doctor on request.

Putting the two results together, it follows that under the logic of the Second Circuit decision, people who are not terminally ill but who have mental disabilities or illness, or children with disabilities, can be put to death by their guardians or other surrogates.

How Long Until Involuntary Euthanasia?

While no voluntary euthanasia means death imposed on an incompetent person who has never said, one way or the other, whether he or she should be killed, involuntary euthanasia means death posed on someone who while competent has clearly and explicitly stated a desire not to be killed.

In the context of denial of lifesaving treatment, food, and fluids, many doctors and ethicists have published articles claiming that they should be able to withhold them from patients health care providers deem to have a poor "quality of life" against the express will of the patients and their families. Virginia in 1992 passed a statute authorizing such involuntary denial of treatment, and the American Medical Association recently designated a task force to make recommendations concerning doctors' authority to do so.

If the Supreme Court does not reverse the decisions of the Second and Ninth Circuits, it is not a slippery slope this nation has embarked upon, but a precipitate cliff into the abyss.

(For five fact sheets on assisting suicide and euthanasia, as well as articles analyzing the court rulings, send a self-addressed business envelope with $.78 in postage to: NRLC

Euthanasia Fact sheets, 419 Seventh St. N.W., #500, Washington, D.C. 20004-2293.)