In the most morally laden judicial decision since Roe vs. Wade, two U.S. appeals courts (for the 2nd and 9th Circuits) have within the last five weeks struck down as unconstitutional laws banning physician-assisted suicide. There are two issues at stake here: (1) Should physician-assisted suicide be permitted? And (2) should judges be deciding the issue? The first is a difficult question. The second is not.
In this column and elsewhere I have argued that permitting doctors to kill their patients is a bad idea, however compassionate the motives, principally because the erosion of the taboo against physician-assisted suicide will inevitably lead to abuses. But whatever my private view and whatever the private view of the robed eminences of the 2nd and 9th Circuits, is this not an issue which a democratic people ought to decide themselves?
Have these judges learned nothing from Roe vs. Wade? The United States is the only country in the Western world that has legalized abortion not by popular vote or legislative action but by judicial fiat. The result has been 25 years of social and political turmoil.
Having disenfranchised a democratic people on one of the fundamental moral issues of our time, the courts are now bent on doing it again. Not a single country in the world (save Holland) permits doctors to help patients kill themselves. Now judges have decreed that America will be such a country, indeed that the Constitution demands that America be such a country.
It is not as if the people have neglected the issue. Since 1991, three states have held referendums on the question. California and Washington voted narrowly to retain the ban, Oregon voted even more narrowly to lift it.
Well, they can forget their votes. Judge Stephen Reinhardt and the 9th Circuit Court in San Francisco have decided the issue for them. Congratulating his own steely self-discipline, Reinhardt writes: “We must strive to resist the natural judicial impulse to limit our vision to that which can plainly be observed on the face of the document before us,” meaning the Constitution. And resist he does, heroically. In a manifesto longer than the Unabomber’s, Reinhardt embraces a “dynamism of constitutional interpretation” and proclaims a constitutional “right to die” lodged, lo, undiscovered all these years right under our noses in the “liberty interest” of the Due Process Clause of the 14th Amendment.
(Question: If the liberty interest mandates permitting assisted suicide, how can one justify the current drug laws? If the state may not impinge on your liberty to make yourself dead, how can it impinge your liberty to make yourself high?)
The prize for judicial presumption, however, goes to Judge Guido Calabresi of the 2nd Circuit in New York for his opinion concurring that the current laws banning assisted suicide must be thrown out but for a different–and revealing–rationale: They must go because they are obsolete. They were originally enacted at a time when suicide was either a crime or considered a “grave public wrong.” Now that suicide is considered neither, he says, the assisted suicide laws make no sense. Calabresi grants that the Constitution and its history do not clearly render these statutes invalid. But that deters him not a bit. He would throw them out anyway until the New York Legislature comes up with new assisted-suicide laws sporting more modern rationales.
Are democratically enacted laws to be stricken until a new moral exegesis can be cooked up to satisfy a judge’s personal ethics? Judges rule on the constitutionality of laws, not their currency.
Calabresi presumes that the people of New York retain their prohibition against physician-assisted suicide out of absent-mindedness. Yet he himself notes that in 1994 a task force of doctors, bioethicists and religious leaders organized at the request of then-Gov. Mario Cuomo concluded (unanimously, mind you) that the laws against physician-assisted suicide should be retained. Yet Calabresi carries on as if no one other than he has bent his mind to the problem.
Calabresi is a Clinton appointee. Judge Roger Miner, who wrote the 2nd Circuit’s majority opinion, was appointed by Reagan. The 9th Circuit majority (1 Kennedy, 5 Carter, 2 Reagan appointees) is similarly ecumenical. Which proves that judicial imperialism is a bipartisan occupational disease.
Is it too much to hope that the Supreme Court will put a stop to it? It would do a great service to the democratic character of this country by reviewing these cases, overturning them, and remonstrating against the breathtaking arrogance of these imperial judges. It might begin by quoting from the dissent of the 9th Circuit’s Andrew Kleinfeld: “That a question is important does not imply that it is constitutional. The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary.”
