Within the next six to seven weeks, the United States Supreme Court will reject the merits of two "right-to-die" cases brought before it earlier this year, but the headline "Supreme Court rejects right to die" won't be the end of the story, said David Garrow, visiting professor of law, who gave the Presidential Distinguished Lecture. Speaking on campus April 28 on the future of the right-to- die movement, Garrow predicted that the Court will reverse two lower court appellate victories from New York and Washington state "by something on the order of eight to one if not nine to nothing."
Despite the fact that the Supreme Court decision to reverse these right-to-die cases will likely be a "divided majority" without five votes for "any decisive, single constitutional position," that fact will not be emphasized, said Garrow. "However, it's going to be tremendously misleading if people believe that what happens several weeks down the pike is indicative of the way things are headed, because it isn't."
Potentially much more important, said Garrow, could be a case based on state constitutional provisions that will come before the Florida Supreme Court May 8. The case is being handled by a husband-and-wife legal team, one of whom is Emory Law School alumna Florence Snyder Rivas. "If the Rivases succeed in Florida," said Garrow, "I think we will see a rather rapid pattern of independent state constitutional grounds cases being put forward in a whole succession of states" such as Montana, Hawaii and Alaska, all of which have "good state constitutional language."
Another pivotal development will be the implementation of a state referendum in Oregon that allows mentally competent patients to make end-of-life decisions in the case of terminal illness. Garrow said that the measure "is quite well drafted and extremely detailed in its discussion of process and guarantees concerning competence and terminal diagnosis." Despite repeated attempts by national right-to-life lawyers to block the initiative from taking effect, those efforts will continue to fail, Garrow predicted, and the measure will take effect by late this year. That development alone, he said, "will have an utterly transforming impact on the way this issue is debated and perceived in this country."
Surprisingly, the Florida case, like those litigated in New York and Washington by attorney Kathryn Tucker, "was literally put together by three or four people," said Garrow. "This is not a mass movement; this is not coming out of organizations with tremendous dues-paying memberships." All the important right-to-die cases so far have been "litigation achievements that have been put together by string and tape," he said, adding that he is amazed that "so few people with so very modest a set of resources could bring this to the level of visibility it has achieved in the last six months."
One individual who has had particular impact on the debate, said Garrow, is Marcia Angell, executive editor of the New England Journal of Medicine. He credits her with enabling Timothy Quill, the medical doctor who's the lead plaintiff in the New York state case, "to achieve a level of national prominence and stature on this issue that without her particular role would not have come to pass." Garrow likened Angell's role to that of Alan Guttmacher, the physician who helped make abortion liberalization "a professionally proper and openly discussible issue in medical circles."
In West Coast states, "where public awareness of these questions is vastly greater than anything that exists in . . . the East Coast urban belt," right-to-die efforts also have been pushed forward by a relatively small group of activists. The modesty of the movement is best illustrated in Washington state, where a group named Compassion in Dying wants "to make face-to-face, end-of-life counseling available to terminally ill patients all across the country. . . Their idea is to make their group into a national Planned Parenthood Federation-type organization of locally based chapters that would provide patient services." For these activists, said Garrow, "getting cases to the Supreme Court or getting initiatives on the ballot are only means to an end. Their focus is not on political change but on patient services." As for the future of such groups, much depends on their ability to secure major financing, said Garrow, which could still go either way.
One aspect of the right-to-die debate that is unlikely to change anytime soon is the reluctance of lawmakers to get involved. Even with "public opinion poll after public opinion poll" showing majority support for "guaranteed choice for terminally ill, end-of-life decision-making," said Garrow, "you can find only the tiniest smattering of elected officials who are even willing to touch 'right-to-die' legislation." He adds that the lag between official and public sentiment on the issue "is perhaps the most central crux of the entire upcoming dynamic."
With right-to-die activists unable to succeed in the federal courts, legislatures reluctant to get involved, and juries unwilling to convict even recognized radicals such as Jack Kevorkian, it's possible that the future of the right-to-die issue will remain in the hands of individual doctors and patients, said Garrow. "Popular public opinion may increasingly lead the medical profession, doctor by doctor, towards liberalizing and in practice legalizing something that may in most of America remain criminally prohibited for at least a few decades ahead."
-Elaine Justice