Right to Die Denied
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MARGARET WARNER: To understand the verdict, we turn to New York Attorney General Dennis Vacco, who defended his state’s ban on physician-assisted suicide before the Supreme Court, and Harvard Law School Professor Laurence Tribe, who urged the high court to overturn the New York law. And Attorney General Vacco, what is going to be the practical impact of this ruling in your state and in others?
DENNIS VACCO, New York Attorney General: Well, I hope that the practical impact of this ruling is that it forces us as a nation to now start contemplating more practical ways of treating pain. We need to move off of the position that we are now in where we’re almost inviting people to choose between intractable pain on the one hand, and physician-assisted suicide on the other hand.
My hope, Margaret, is that what this case now does as the debate goes appropriately back to the states is that it moves us very aggressively in the direction of better pain management, better palliative care, and better laws, and better medical procedure to allow palliative care to be more available to patients, better hospice care, better medical access, as well, to all Americans. So it’s my hope that we get off the debate about physician-assisted suicide and more appropriately get on to the topic of what are we going to do alleviate pain. Even more Americans who are dying we should be working and striving to eliminate and alleviate the pain.
MARGARET WARNER: Prof. Tribe, do you think that’s going to be effective, this ruling to move the debate away from physician-assisted suicide?
LAURENCE TRIBE, Harvard Law School: Well, I think properly defined, Margaret, the debate has never really been about suicide of any kind. We’re not talking about people who for existential reasons decide to end their life. We’re talking about people who, as Justice O’Connor pointed out in her current opinion, people who at the very end of life suffer either enormous unbearable pain or terrible despair, and that she made clear that the question of whether such people might have a constitutional right to be assistants of a physician in administering medication that might even hasten their death is really an open one, not resolved in this case. And I want to stress, a point that Stuart Taylor made in the introduction to this piece, when he said that the court left a window open, it’s a very important window, and it wasn’t left only by the concurring opinions of Justice O’Connor and Justice Stevens and Justices Souter and Breyer and Ginsburg, it was less by Chief Justice Rehnquist, himself, because in an important footnote at the end of each of the two cases, the one from Washington and the one from New York, the Chief Justice said that whether certain applications of these laws might impose an intolerable intrusion on personal freedom in particular cases is still an open question.
And that’s really all I thought was conceivable in this case. We were not arguing that in general the state of New York or the state of Washington cannot outlaw assisted suicide. We weren’t even challenging these laws as written. We were saying there are circumstances in which these laws cannot constitutionally be enforced in full. And that remains an open question. I obviously would like the court to have offered more guidance than it did, but it fundamentally did not just what Attorney General Vacco says, not just putting the matter back in the states for debate, but also as Justice Stevens pointed out, it left open the possibility of future litigation under the federal Constitution in particular cases.
MARGARET WARNER: Attorney General Vacco, do you agree with that, the door is still very much open?
DENNIS VACCO: I think that the door is certainly open.
MARGARET WARNER: Or the window, as Stuart put it.
DENNIS VACCO: The window or the door is open certainly for this debate to continue at the legislature level in each of the states, but I think that Prof. Tribe, respectfully–I don’t mean to re-argue this case–but I think that he understates the argument that he made so eloquently before the Supreme Court that the court rejected. They did try using some very graphic imagery–I mean, I don’t know if you can find six plaintiffs–the individuals I’m speaking of and not the physicians–but I don’t think that you can find six more individuals in America who could suffer any more intolerable or intractable pain and they used the examples of these six individuals to attack the laws and try to change the lay of the land and to knock these laws out in Washington and the State of New York, and they didn’t succeed, and certainly while the window is open at a policy level, I think that from the court perspective, even in the concurring opinions, the court is–is–it didn’t nearly reflect the current status of the law in medical practice. The sedation piece that Prof. Tribe speaks of and, indeed, alluded to in his argument, is something that we have long embraced, that the–the notion of dual effect that you can medicate someone to treat the pain, even if that medication ultimately brings about the death of that individual–the court just really in the concurring opinions recognizes the potent effect of the dual effect theory. And I think that that’s always been available, was available to the plaintiffs in this case–they were certainly afforded the ability to the same type of medication, even if it brought about their death that Prof. Tribe now says is a new vista as a result of the concurring opinions in this case. I don’t think the lay of the land legally or medically has been substantially changed here.
MARGARET WARNER: All right. Prof. Tribe, is that where the families of the terminally ill and terminally ill are left now? Is that the option, only option, left then if this is the direction they want to go, that is, requesting so much morphine or pain relieving drugs that it does kill them; that it’s that direction?
LAURENCE TRIBE: The court was very careful, Margaret, not to decide exactly which of the various possible windows are, in fact, open as a constitutional matter. With all respect to Attorney General Vacco, I’m not running away from what I asked the court to do; I did ask it to do more than it did. But what it did was to say that not only are the families of the terminally ill free to argue for legislative reform or for a change by referendum, they also may be able to make arguments that these laws are unconstitutional–the chief justice was explicit about it; so were the others–free to argue that these laws are unconstitutional as applied to their cases.
MARGARET WARNER: Let me interrupt you for one minute.
LAURENCE TRIBE: Sure.
MARGARET WARNER: Just to raise something I’m not clear on. You did have six plaintiffs, though they’ve died. Why weren’t their cases, as the attorney general mentioned, enough of a case for the court?
LAURENCE TRIBE: Well, obviously, I thought that they were, but the fact that they were dead gave the court a rather convenient way of saying, well, we don’t really have before us concrete applications of this law that are being challenged, and we don’t have to decide that issue; all we have to decide is that as a general matter, the law is constitutional. And that proposition, that in general the law is constitutional, I fully agree with.
What we tried to argue was that given the kinds of horrific personal experiences that some patients had suffered, just as the attorney general concedes, that they were typical of a class of people with respect to whom these laws are unconstitutional, and the U.S. Supreme Court didn’t tell us yes or no to that question. It simply said we don’t have to decide whether these laws would be unconstitutional as applied to any sub-category of cases. They obviously–they were obviously eager not to cross that fateful bridge before they had to.
DENNIS VACCO: After six months, it’s not surprising that Prof. Tribe and I continue to disagree. I don’t believe that what the Supreme Court said, particularly in Justice Rehnquist’s decision, is that they were not going to decide this issue. They clearly indicated that this was not a matter of constitutional prerogative; that this was not a constitutionally embraced issue, but particularly under the equal protection argument, and they even rejected the due process argument that Prof. Tribe and Kathryn Tucker articulated to the court. So I think that Prof. Tribe really does–in view of this 9-0 decision–really does overstate the importance of this decision to his argument.
MARGARET WARNER: Attorney General–
LAURENCE TRIBE: Can I just say, Margaret–
MARGARET WARNER: Yes.
LAURENCE TRIBE: –that I don’t deny that a nine to nothing ruling against the position argued is a defeat but if the attorney general would just read Footnote 13 of the Chief Justice’s opinion in this case, you’ll see that what he just said was wrong.
MARGARET WARNER: All right. Attorney General, do you agree with what Stuart Taylor said earlier, which is that there was nothing in this decision that necessarily would have anything to do with the case if say the state legislature passed the opposite kind of law; that is, the Oregon voters have allowing physician-assisted suicide?
DENNIS VACCO: Margaret, actually what was a portion of my argument that this was not a matter that should be handed down to the American public from the Supreme Court, but in other words or in another fashion should rise up from the laboratories of the states, as Justice O’Connor has referred to, to the legislature’s mistake, and it’s entirely possible that within the confines of my term in office if the New York state legislature passes a regime of physician-assisted suicide, I might one day find myself defending that statute before the United States Supreme Court. This is where the debate now belongs, in the legislatures, and I think that if we keep it in the legislative process, that it’s going to be more focused on treatment of pain and less focused on this notion of rights to die and similar issues.
MARGARET WARNER: Prof. Tribe, do you agree that that is maybe the way to move this argument now?
LAURENCE TRIBE: I think that’s the primary way, but I also do want to stress that in some states there may well be an attempt to prevent doctors from applying a level of pain medication that is almost certain to bring about death. And one thing that certainly is clear from today’s decision is that any such restriction on a patient’s freedom would be under a very serious constitutional cloud, and that is not something that we knew with any confidence before the court spoke today.
MARGARET WARNER: Attorney General, briefly, what do you think the message is to doctors in this–from this ruling?
DENNIS VACCO: Well, I think that the message is that they need to continue to be very aggressive in treating pain but be very careful not to kill the patient in the process; that their objective needs to be to alleviate the pain. And there is, indeed, a distinction between letting someone die and making someone die, and physicians need to be very careful on that regard. And I think that this is an appropriate bright light. The court, indeed, itself, said that this line that we have drawn and we have accepted for a long time is a rational line, and I think that it’s appropriate that it stays right where it is.
MARGARET WARNER: And Prof. Tribe, how do you think doctors will read this?
LAURENCE TRIBE: Well, I think doctors will continue to remain in a degree of confusion and I’m afraid that they will continue to do in a clandestine way what ought to have been brought out into the open and regulated. They will continue to use the morphine drip and high levels of sedation knowing that for patients in terminal agony this is going to produce death but also fearing to consult with other doctors and really to do it in an open and above board way. And I think that’s regrettable. Hopefully, legislative and other forms of change will relieve that pressure.
MARGARET WARNER: All right. Well, thank you very much, Attorney General Vacco and Professor Tribe.