STUART TAYLOR: That’s exactly what it’s about. And a patient–the lower courts held it would–this right would only apply if the patient was terminally ill and mentally competent, and that the patient would administer the medication him or herself. This case, it relates to large issues of other kinds, but strictly speaking, that’s what it’s about.

ELIZABETH FARNSWORTH: Okay. We just heard about the case in Washington State. Tell us about the New York case.

STUART TAYLOR: In the New York case it was rather similar–three doctors who want to be able to help their patients end their lives with dignity and with less pain. And three patients who were terminally ill and wanted that kind of help and who have all died since the litigation began sued to strike down a New York law that bars anyone from assisting in a suicide, anyone including a physician. All 50 states have laws like this, unless one accepts Oregon, which recently repealed it by referendum, but that’s tied up in litigation. In any event, that case went up to the U.S. Court of Appeals for the 2nd Circuit, and they struck down the law in a three-nothing vote, but by a different rationale, a substantially different rationale than the 9th Circuit and the case we just heard about.

The 2nd Circuit judge, who wrote the opinion, Roger Minor, a Reagan appointee, by the way, rejected the logic the 9th Circuit had adopted in an opinion by Steven Reinhardt, a very liberal Carter-appointed judge, and said we don’t find a due process liberty right. He said the Supreme Court has shown some reluctance to go too far in lawmaking by inventing new rights, and we think that would go too far; however, you got to the same result by looking at the equal protection clause of the Constitution. And his reasoning went like this: the state of New York and many states recognize a right for a patient to terminate life support systems, to bring on his own death by telling the doctor pull the plug.

We think, said Judge Minor, that that situation is not rationally distinguishable from the patient who isn’t on a life support system but is in agonizing pain and wants to die and wants the doctor to give him a pill or an injection or prescribe something so that he can end his own suffering. In essence, he found that there’s a discrimination in New York law between allowing people to pull the plug but not allowing people to get doctors’ assistance in prescribing lethal medication. And on that basis he struck, the 2nd Circuit struck down the New York law.

ELIZABETH FARNSWORTH: That’s one precedent the Justices could look at, their decision that allowed pulling the plug, so to speak. What other precedents could they be looking at and using to make this big decision?

STUART TAYLOR: Well, pulling the plug is largely thought to be a constitutional right now based on a 1989 decision, Nancy Cruzan Vs. Missouri, in which five of the Justices seemed to say, although the opinions were a little murky, that there’s something like a constitutional right to refuse medical treatment, including refusing life support systems or pulling the plug. The–there are no other right-to-die type precedents the Supreme Court has decided. As we said earlier, the abortion precedents are an important part of the analysis here because they represent the farthest extension the court has been willing to take so far down the road of looking at the vague reference to liberty in the due process clause of the 14th amendment and using that to create rights that had never been recognized. And, in fact, in this case, as in the original abortion case, they’re being called upon to strike down the laws of just about every state in these practices of the law throughout history.

ELIZABETH FARNSWORTH: What arguments did you hear today?

STUART TAYLOR: Well, the arguments, first at bat were the states, the attorney general of New York, Dennis Vaco, and William Williams, who’s an assistant attorney general from Washington, saying in essence why their law should be reinstated and why the lower courts were wrong. And the essence of their argument was that recognizing a right to doctor-assisted suicide, particularly a constitutional right, which freezes it in stone in a way so that the states can’t change it, goes against a traditional respect and state interest in protecting life, which is a paramount constitutional interest, and opens up large possibilities of abuse of families, doctors, insurance companies, perhaps pressuring people to take lethal medication to avoid costs, to avoid suffering, so that maybe we wouldn’t really hold the line at terminal illness or at competent people. Maybe people would be pushed into this by cost pressures and the like, and erasing a longstanding ethical line between a right to refuse unwanted medical treatment, a right to be left alone, in essence, and on the other hand, a right to have a doctor actually actively help you kill yourself.

ELIZABETH FARNSWORTH: And what about the other side, what was that argument?

STUART TAYLOR: The various groups seeking assisted suicide represented by Kathryn Tucker, who we saw earlier, and Lawrence Tribe, a law professor at Harvard Law School, and a Supreme Court litigator, who is attacking the New York law, the essence of their argument was that at the very heart of constitutionally protected liberty is the right to make intimate individual choices in the most important phases of life. And they stress the abortion precedents in this regard. And they say what could be more important than the choice as to how to die for a terminally ill patient, particularly when that that is combined with the understandable desire to avoid dying in agonizing pain. And they say that the Constitution ought to protect that right. They also stress that they think the state laws are outmoded and irrational in allowing people to have the plug pulled and to die in suffering, or in what Mr. Tribe called a barbiturate coma induced by what he called terminal sedation. Apparently, according to him it’s a widespread practice, to put people basically in a coma through sedation so that when they’re starved to death by having the plug pulled, they won’t suffer too much. And he stressed that if that’s allowed, I mean, why should we have a barbaric thing like that going on, was part of his suggestion, when it could be done so much more, with so much more dignity and so much less pain, simply by giving a lethal medication.

ELIZABETH FARNSWORTH: Could you tell from the Justices’ questions how they were leaning?

STUART TAYLOR: I think you could get some feeling for it. I wouldn’t venture a continent prediction in a case of this importance. I don’t think–I think they’re going to be thinking about it and talking it, and I wouldn’t be surprised if they talked about this case more than about most. But you could certainly sense from the questioning that the Justices in the middle who the plaintiffs really need to get the votes of in order to establish a right to physician-assisted suicide, Justice O’Connor, Souter, Ginsburg, and Kennedy, for example, all had very great concerns about opening Pandora’s box, about creating a new constitutional right, opening up a huge realm of very difficult questions as to what’s terminal illness, what if somebody wants to come in who’s depressed and 46 years old and in pain but not about to die and says hey, I have a right to end my suffering too? They also, all four of the people I mentioned, stressed that in Justice O’Connor’s words this is an issue that affects all of us. This isn’t something that just affects some discreet minority like a racial minority somewhere that might not be fairly represented in the democratic process. Why can’t we leave it to the legislatures to work this out? They know more about it than we do. They are more flexible than we are. Their laws can be changed from year to year. Our constitutional precedents are supposed to be of some permanence, and so I had the sense that it’s a very up hill battle for those seeking to establish a right to physician-assisted suicide.

ELIZABETH FARNSWORTH: Well, Stuart Taylor, thanks very much.

STUART TAYLOR: Thank you.

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