Euthanasia Puts Its Best Foot Forward

The American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1994 as part of a special issue imagining what the legal world might look like in 2009.

Lawrence Robbins had to stretch to find support in Supreme Court precedent., but he made the most of the facts in the Court’s second active-euthanasia case involving Alzheimer’s disease. The lawyer put the monkey on the justices’ backs at the February 4 argument in Madison v. California by implicitly floating this question:

What would you have done differently if you had found yourself in my client’s position?

Robbins seemed 10 have at least four votes leaning his way throughout – Chief Justice Kathleen Sullivan and Justices Ruth Bader Ginsburg, Jose Cabranes, and Webster Hubbell. California attorney general Jim Sutton and amicus Richard Taranto, representing the National Association of Attorneys General, got a friendly reception from Justice Antonin Scalia, Clarence Thomas, Frank Easterbrook, and J. Harvie Wilkinson III. That left Justice Sandra Day O’Connor once again seeming 10 relish her role as noncommittal swing Vote.

Robbins pitched his argument to O’Connor from the opening sentence: “Only this Court now stands between m;, 68-year-old client. Florence Madison, and 20 years in prison for committing Iwo deeply moral acts of love – acts very much like those hypothesized by the concurrence [of O’Connor, in 2006] in Jackson v. New York.

“Eight years ago, in 2001, my client did what she had to do to prevent her husband from blowing out his brains with a shotgun: She promised to spare him the kind of wretched, lingering death that he had watched his mother endure. In exchange for his agreement to forgo suicide, she promised to help him die with dignity if and when he had declined into such a state of living death that – by his own reckoning – he would have nothing left to live for.

“Six years later, in 2007, after seeing her husband suffer more than he could bear, my client kept her promise. Our submission today is that the Eighth and Fourteenth Amendments prohibit the state from sending her to prison for making that promise, or for keeping it.”

In jumped Scalia: “You say ‘help him die: but this wasn’t really ‘helping,’ was it? Didn’t your client do it all by herself by shooting a lethal dose of morphine into a patient who was incapable of expressing any wish at all ?And isn’t that precisely the kind of active euthanasia that Jackson held to be unprotected by the Constitution?”

“We don’t believe this case is governed by the Jackson plurality opinion.” responded Robbins. “In fact, we rely on the dissent and Justice O’Connor’s concurrence for the proposition that a majority of this Court’s members have suggested that a person in my client’s situation cannot constitutionally be subjected to long-term imprisonment for her actions. In this case, Florence Madison has been sentenced to 20 years without parole despite undisputed evidence that she prolonged her husband’s life by six years – most of which she spent caring for him – by preventing him from killing himself in 200I. And in the end, she did no more than necessary to carry out her husband’s clearly slated wish, to honor her own promise, and to end his palpable suffering. With the Court’s permission, I will briefly illustrate these points.”

The courtroom monitors IiI up, showing Florence Madison with her now-deceased husband. William, a prominent San Diego lawyer, and his brother Alex, all gathered in the Madisons’ living room. Gazing steadily into the camera, William Madison said this:

“We are making this video recording to reconfirm the essential terms of my written living will, and my beloved wife’s Morally Binding Covenant in Consideration of Agreement to Forgo Suicide, which we have signed today. I am 63 years old and of sound mind. Genetic tests and other medical evidence confirm that I will probably begin showing clear symptoms of hereditary Alzheimer’s disease over the next five years, and will decline progressively into a quasi-vegetative state. I believe I am showing early symptoms already, including uncharacteristic memory lapses and difficulty spelling familiar words.

“I saw my mother at this stage. Then I watched her mind fade away through the last years when she could experience happiness. And then I watched her linger in apparent misery for three years after she had settled into a quasi-vegetative state – unable to care for herself.,to communicate, to recognize loved ones. I have made it clear to my wife that I am unwilling to start slipping down that path unless she will guarantee me an exit.

“Specifically. I vowed that I would kill myself by shotgun between today – January 6, 2001 – and December 31, 2001, while I can still be confident of my ability to do so, unless my wife would promise to carry out my wishes as specified in my living will. She has now made that promise, with great reluctance, because she knows it is the only way to prevent my suicide. Specifically, she has promised to end my life if and when my Alzheimer’s disease progresses to the point that I cannot communicate my wishes, recognize any family member, feed or dress myself, walk, or go to the bathroom unassisted, as those terms are defined under the ‘Living Death’ heading in my living will.

“If and when that time comes, at my insistence, my wife will inject me with the entire vial of morphine that I have this day given her. even if it is a…

Editor’s Note: The litigants referred to in this story are fictitious character.

Lawrence Robbins had to stretch to find support in Supreme Court precedent., but he made the most of the facts in the Court’s second active-euthanasia case involving Alzheimer’s disease. The lawyer put the monkey on the justices’ backs at the February 4 argument in Madison v. California by implicitly floating this question:

What would you have done differently if you had found yourself in my client’s position?

Robbins seemed 10 have at least four votes leaning his way throughout – Chief Justice Kathleen Sullivan and Justices Ruth Bader Ginsburg, Jose Cabranes, and Webster Hubbell. California attorney general Jim Sutton and amicus Richard Taranto, representing the National Association of Attorneys General, got a friendly reception from Justice Antonin Scalia, Clarence Thomas, Frank Easterbrook, and J. Harvie Wilkinson III. That left Justice Sandra Day O’Connor once again seeming 10 relish her role as noncommittal swing Vote.

Robbins pitched his argument to O’Connor from the opening sentence: “Only this Court now stands between m;, 68-year-old client. Florence Madison, and 20 years in prison for committing Iwo deeply moral acts of love – acts very much like those hypothesized by the concurrence [of O’Connor, in 2006] in Jackson v. New York.

“Eight years ago, in 2001, my client did what she had to do to prevent her husband from blowing out his brains with a shotgun: She promised to spare him the kind of wretched, lingering death that he had watched his mother endure. In exchange for his agreement to forgo suicide, she promised to help him die with dignity if and when he had declined into such a state of living death that – by his own reckoning – he would have nothing left to live for.

“Six years later, in 2007, after seeing her husband suffer more than he could bear, my client kept her promise. Our submission today is that the Eighth and Fourteenth Amendments prohibit the state from sending her to prison for making that promise, or for keeping it.”

In jumped Scalia: “You say ‘help him die: but this wasn’t really ‘helping,’ was it? Didn’t your client do it all by herself by shooting a lethal dose of morphine into a patient who was incapable of expressing any wish at all ?And isn’t that precisely the kind of active euthanasia that Jackson held to be unprotected by the Constitution?”

“We don’t believe this case is governed by the Jackson plurality opinion.” responded Robbins. “In fact, we rely on the dissent and Justice O’Connor’s concurrence for the proposition that a majority of this Court’s members have suggested that a person in my client’s situation cannot constitutionally be subjected to long-term imprisonment for her actions. In this case, Florence Madison has been sentenced to 20 years without parole despite undisputed evidence that she prolonged her husband’s life by six years – most of which she spent caring for him – by preventing him from killing himself in 200I. And in the end, she did no more than necessary to carry out her husband’s clearly slated wish, to honor her own promise, and to end his palpable suffering. With the Court’s permission, I will briefly illustrate these points.”

The courtroom monitors IiI up, showing Florence Madison with her now-deceased husband. William, a prominent San Diego lawyer, and his brother Alex, all gathered in the Madisons’ living room. Gazing steadily into the camera, William Madison said this:

“We are making this video recording to reconfirm the essential terms of my written living will, and my beloved wife’s Morally Binding Covenant in Consideration of Agreement to Forgo Suicide, which we have signed today. I am 63 years old and of sound mind. Genetic tests and other medical evidence confirm that I will probably begin showing clear symptoms of hereditary Alzheimer’s disease over the next five years, and will decline progressively into a quasi-vegetative state. I believe I am showing early symptoms already, including uncharacteristic memory lapses and difficulty spelling familiar words.

“I saw my mother at this stage. Then I watched her mind fade away through the last years when she could experience happiness. And then I watched her linger in apparent misery for three years after she had settled into a quasi-vegetative state – unable to care for herself.,to communicate, to recognize loved ones. I have made it clear to my wife that I am unwilling to start slipping down that path unless she will guarantee me an exit.

“Specifically. I vowed that I would kill myself by shotgun between today – January 6, 2001 – and December 31, 2001, while I can still be confident of my ability to do so, unless my wife would promise to carry out my wishes as specified in my living will. She has now made that promise, with great reluctance, because she knows it is the only way to prevent my suicide. Specifically, she has promised to end my life if and when my Alzheimer’s disease progresses to the point that I cannot communicate my wishes, recognize any family member, feed or dress myself, walk, or go to the bathroom unassisted, as those terms are defined under the ‘Living Death’ heading in my living will.

“If and when that time comes, at my insistence, my wife will inject me with the entire vial of morphine that I have this day given her. even if it is arguably illegal to do so at that point in time. My brother Alex has promised 10 act in my wife’s stead in the event that she becomes incom-

petent to keep her promise, or fails or refuses to keep it.” At this point in the video, Florence and Alex Madison affirmed that they understood William’s wishes and would honor them.

“If any are disposed to fault this covenant or its fulfillment,” added William Madison – gazing through the years into the eyes of the justices – “they should understand that their complaint is with me, for extorting my wife’s promise – not with her for giving it.”

Easterbrook Jumps In

The Court’s vast chamber was silent for a moment. Then, as Robbins moved into the evidence of William Madison’s suffering in his last year, Justice Easterbrook broke in:

“In light of the state’s claim that the defendant had reason to doubt that her husband would in fact commit suicide in 2001, and that a nurse saw him smile repeatedly in 2007 in the days preceding his death, isn’t jackson right on point?”

“No, Your Honor, and I would like to give you four very specific reasons,” Robbins replied. The veteran Supreme Court advocate was gambling – successfully – that this lead-in would deter further interruptions while he took his best shot at winning over O’Connor.

First, Robbins noted, in this case the trial judge had refused to instruct the jury that it must acquit unless it found either thai the defendant had known the suicide threat to be a sham, or that she had knowingly administered the lethal injection before her husband had reached the “living death” condition specified in his living will. So for purposes of this appeal, there was no reason to doubt (or to suppose that the jury had doubted) either that Florence had believed the suicide vow, or that she had waited for as long as she thought she could in good conscience before administering the lethal injection.

Second, as the O’Connor concurrence had noted, unlike William Madison’s living will, the one at issue in the landmark New York case of Tanya Jackson had not clearly specified under what conditions her life should be ended. Nor had her vague threats of suicide crystallized into an unmistakable vow to do the deed by a certain date unless her husband would promise her death with dignity later on.

Third, the government’s health care controls had, Robbins claimed, “effectively barred William Madison by government fiat from getting drug therapy for his condition, and thus forced on him, and consequently on his wife, the crucial dilemma of choosing between lingering decline, early suicide, and the course that William ultimately chose.”

This point was detailed in the defense brief: Under the health care cost control and rationing regulations, it was unlawful to sell insurance coverage for AlzStop, the costly drug that appears to delay the onset of Alzheimer’s disease for as much as ten years in some cases. And in order to make it prohibitively expensive for all but the richest of the rich to buy therapies unavailable to the poor, Congress had slapped 200 percent taxes on direct sales of drugs like AlzStop to individuals. As a result, William Madison would have had to pay $800,000 a year for AlzStop, rapidly depleting the family’s savings; this he had refused (despite his wife’s urging) to do.

And fourth, Robbins said, “the defendant in Jackson was sentenced only to community service and a fine. My client will spend the next 20 years in prison if this Court affirms. Such an outcome, we submit, would not only violate the due process rights established in Armstrong v. Maryland [the 1997 “right to die” decision, extending constitutional protection to passive euthanasia], hut also would amount to cruel and unusual punishment under the logic of Justice O’Connor’s concurrence in Jackson.”

At that point O’Connor (who appeared to be reading a prepared question) spoke up: “Didn’t the Jackson concurrence say merely that life without parole might be a cruel and unusual sentence for a family member who acts to end grievous suffering? And how does that fit this case?”

“The hypothetical in the Jackson concurrence,” replied Robbins, “appears to be illustrative of the larger point that it would be unconstitutional to subject anyone to prolonged imprisonment for ending an incompetent loved one’s suffering pursuant to the terms of a living will.

“In any event, the evidence here shows that my client believed her husband was suffering grievously. And her sentence is the substantial equivalent of life without parole. She will be in prison until she is 88 years old unless she gets relief from this Court. It is hard to imagine a punishment more ‘cruel and unusual’ than to condemn a woman to die in prison – or at best to see her grandchildren grow up through prison bars – for what our amici and many other civilized person, consider to be an act of consummate morality.”

(While the jury had acquitted Madison of murder, convicting only on the lesser charge of voluntary manslaughter, it had had no inkling that this conviction would carry a 20-year-mandator minimum sentence without parole. It was Florence Madison’s second conviction for a “crime involving serious use of violence” as defined in California’s so-called Two Strikes, Twenty Years statute: Madison’s first “strike” had been her misdemeanor guilty plea to tossing a rock through a window in 1969, during an antiwar rally at the University of California at Santa Barbara.)

After parrying a question from Justice Thomas – who broke his usual silence to ask whether there were any eighteenth century common law precedents or other evidence that the framers of the Eighth Amendment had meant to bar imprisonment for active euthanasia – Robbins closed with a quotation from Justice William Brennan, Jr.’s 1990 dissent (since adopted by the Court) in Cruzan v. Missouri:

“Each of us has an interest in the kind of memories that will survive after death … not only a normal interest in minimizing the burden that her own illness imposes on others, but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition.

The meaning and completion of her life should be controlled by persons who have her best interests at heart – not by a state legislature concerned only with the ‘preservation of human life.'”

California Sites Jackson

Jim Sulton, the California attorney general. spent his time on an unremarkable rehash of Jackson and an unconvincing effort to insinuate that greed had motivated Florence Madison’s “rapid acquiescence” in her husband’s refusal, in 2002, to spend $400,000 for a six-month course of AlzStop. Sutton also stressed that by ending William’s life in 2007, Florence had saved $120,000 a year in nursing home costs. He had to acknowledge, however, that the defendant had inherited nothing from her husband; he had sought to preempt any impugning of her motives by making her an irrevocable gift of most of his assets in 2001, leaving the rest of his estate to their three grown children.

Sutton also stressed the testimony of a nursing home attendant that William Madison did not appear to he suffering most of the time, and that he had opened his eye, and smiled at least twice during the week before his wife had “killed the poor man.”

“That’s the same attendant who claimed a $20,000 bounty under the California Whistle-Blower Incentive and Protection Act for reporting the morphine overdose to the police. isn’t it?”” Justice Cabranes inquired. It was.

Taranto, for the National Association of Attorneys General, effectively probed the weakest links of his adversary’s constitutional argument. “As sad as the defendant’s plight may be.” Taranto said, “the forum in which to ‘present claims for sympathy is her pending petition for gubernatorial clemency. What the defendant seeks from this Court is nothing less than creation of unconstitutional right to kill.

“The Constitution recognizes no such right, and any holding to the contrary would be utterly unprecedented and impossible to confine to unusual cases like the one now before the Court. It would invite a flood of purported mercy killings and pseudo-mercy killings by persons whose motivations range from misguided pity to the desire to expedite inheritances.”

Ginsburg interjected: “Do you dispute the petitioner’s claim that she had to do what she did to carry out the promise on which her husband had insisted to dissuade him from suicide?”

“We do not at this stage dispute that the defendant believed that her promise was necessary to avert suicide,” responded Taranto. “But this was obviously not a lawful contract, and neither state law nor, certainly, the Constitution imposed upon her any duty, or gave her any right, to carry out her promise by committing the serious crime of homicide.

“This case is governed by the plurality opinion in Jackson ,” added Taranto, “which says in the clearest of terms that whatever may be the scope of the constitutional ‘right to die,’ there is no constitutional right to kill. .. , Nor can the due process clause be stretched to incorporate the fine distinctions of the Death with Dignity Society’s Draft Report on Moral Covenants to Avert Premature Suicide, as petitioner and her amici ask this Court to do.”

Taranto dismissed Madison’s “cruel and unusual punishment” argument as foreclosed by a long line of Eighth Amendment decisions including Williams v. Texas in 1996, which upheld a mandatory minimum sentence of life without parole for a homeless man with no record of violence; he had been convicted under a “three-time loser” law of shoplifting a winter coat after having previously, at the age of 16, burglarized a television and a boom box from the homes of two neighbors while they were at work.

“Justice O’Connor’s dicta in Jackson.” Taranto contended, “said only that might violate the Eighth Amendment to impose a sentence of life without parole upon a person who practiced active euthanasia to end a loved one’s ‘prolonged, agonizing suffering.’ The decedent’s suffering in this case, if any, was apparently episodic and may well have ended before the lethal injection. A ruling for the defendant here would invite active euthanasia in cases in which the evidence that the decedent had been suffering is tenuous or nonexistent.”

“I don’t guess you would say there was no suffering in this case, would you?” interjected Justice O’Connor, for whom Taranto had clerked long ago. He conceded the point. Her follow-up question, which the lawyer did not answer directly, came as close as O’Connor ever does to tipping her hand: “And I don’t suppose,” she asked, “that we could uphold the sentence in this case, could we, without signaling to people like William Madison that suicide might be their only way out?”