[Congressional Record Volume 142, Number 59 (Thursday, May 2, 1996)]
[Senate]
[Pages S4642-S4643]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         RIGHT TO DIE DECISIONS

  Mr. DOLE. Mr. President, one of the most profound and sensitive 
issues facing our society today is whether doctors should be allowed to 
assist in the suicide of their patients.
  On this issue, I happen to share the view of the American Medical 
Association that doctors who are sworn to be life-givers, should not 
act as life-takers, and that the licensing of doctors to administer 
death is ``fundamentally inconsistent with the pledge physicians make 
to devote themselves to healing and to life.''
  I recognize that there are those who do not share this point of view. 
But the process we use to work out such disagreements and come to a 
social consensus is called democracy. I will vigorously defend the 
right of every fellow citizen to disagree with me, but I will also 
defend the constitutional process by which our laws are made. The 
people, through their elected Representatives, should be the ones to 
decide whether to permit or to prohibit physician-assisted suicide. It 
is a give and take of meaningful public debate that enables our 
democratic society to examine complicated social issues and, hopefully, 
reach a consensus that enjoys broad popular support.
  In recent weeks, however, two influential Federal courts--the ninth 
circuit of appeals on the west coast and the second circuit court of 
appeals on the east coast--have determined that the U.S. Constitution 
flatly prohibits the States from outlawing physician-assisted suicide.
  The ninth circuit ruled that individuals have a liberty interest in 
controlling the time and manner of our deaths and that a Washington 
State law prohibiting assisted suicide was, therefore, a violation of 
the due process clause of the 14th amendment. In a more narrowly drawn 
opinion, the second circuit declared that a similar New York State law 
outlawing physician-assisted suicide violates the 14th amendment's 
equal protection clause. In fact, I think in the Washington case it was 
due process; also the liberty clause.

  These decisions, like others in recent years, have the unfortunate 
effect of substituting the judgment of unelected Federal judges for the 
democratic process. If the ninth circuit's decision purporting to find 
a fundamental right to physician-assisted suicide is upheld by the 
Supreme Court, then all meaningful public debate on this issue would 
effectively be cut off. All of the moral and ethical concerns on both 
sides would, with a single stroke, be replaced with a judicial fiat. 
The only citizens whose voices matter in such a decision would be the 
judges themselves. As columnist Charles Krauthamer writes: ``Not a 
single country in the world (save Holland) permits doctors to help 
patients kill themselves. Now judges have declared that America will be 
such a country, indeed that the Constitution demands that America be 
such a country.''
  I yield to no one in my respect for the role of the judiciary in 
preserving our fundamental liberties. On occasion, judges may even be 
required to strike down a legislative act because it clearly conflicts 
with fundamental freedoms and guarantees of equal protection set forth 
in our Constitution. This is part of the genius of our system, the 
fundamental check on the legislative and executive branches created by 
the Framers of the Constitution.
  But what would the Framers say of these decisions or others like 
these? Does anyone doubt that they would be astonished to learn that 
the Constitution prohibits the people from prohibiting physicians from 
administering death? At some point, the legal arguments advanced by our 
judges to strike down an otherwise valid legislative act must be 
examined in the light of common sense.
  In creating a new constitutional right to kill oneself with a 
physician's help, the unelected members of the ninth circuit, judges 
appointed by both Democratic and Republican Presidents, have taken it 
upon themselves to deny millions of their fellow citizens the 
opportunity to address this sensitive and morally charged issue through 
the democratic process. That is the denial of a fundamental right that 
would have made the Framers shake with anger. They did not fight so 
hard to win and preserve the freedom of self-government simply to 
abandon that freedom to unelected judges.

  As one judge who dissented from the ninth circuit's decision 
observed: ``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 could decide 
trivia, while all the great questions would be decided by the 
judiciary.''
  In recent days, I have highlighted the enormously influential role 
that judges play in the daily lives of the American people. Today, 
Federal judges micromanage hospitals, schools, police and fire 
departments, even prisons. Federal judges have unilaterally raised 
property taxes, and now they have struck down popularly enacted laws on 
the theory that physician-assisted suicide is no less than a right 
guaranteed by the Constitution.
  The Constitution is a precious legacy. It was precious when it 
emerged as that ``miracle in Philadelphia.'' Americans of all 
generations have made it more precious by fighting an dying to defend 
it. These sacrifices were not made so that Federal judges with life 
tenure could warp the meaning of the Constitution to fit their own 
political agenda or personal beliefs. When that happens, judicial 
review becomes an expression of tyranny, no longer the guarantee of 
liberty intended by the Framers.
  On the admittedly difficult issue of physician-assisted suicide, I am 
prepared to trust the American people. The American people, not a small 
group of unelected judges seeking to dispense their own superior moral 
wisdom, should be the ones deciding whether assisted suicide is 
consistent with the values our great country does, and should 
represent.
  Mr. President, I ask unanimous consent that opinion pieces by Charles 
Krauthamer and E.J. Dionne be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Apr. 12, 1996]

                       Deciding on Life or Death

                        (By Charles Krauthammer)

       In the most morally laden judicial decision since Roe v. 
     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. Two 
     issues are at stake here: (1) Should physician-assisted 
     suicide be permitted? And

[[Page S4643]]

     (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 that a democratic people ought 
     to decide themselves?
       Have these judges learned nothing from Roe v. 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 referenda 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 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 constitutionally 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 Gov. Mario Cuomo concluded (unanimously, mind you) 
     that the laws against physician-assisted suicide should be 
     retained. Yet Calabresi carriers 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 opinions, 
     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.''
                                                                    ____


         [From the International Herald Tribune, Apr. 16, 1996]

                On Dying in America: A Quiet Revolution

                         (By E.J. Dionne, Jr.)

       Washington. Thanks to two court decisions, the people of 
     the United States are hurtling down a road they did not 
     choose and have grave doubts about pursuing. The decisions, 
     by the 9th U.S. Circuit Court of Appeals on the West Coast 
     and the 2d Circuit on the East Coast, abruptly struck down 
     laws prohibiting doctor-assisted suicide.
       It all happened without a full national debate, without any 
     consultation of patients or doctors. These judges decided 
     there ought not be a national dialogue on what is one of the 
     most difficult ethical, moral and practical decisions 
     confronting modern medicine. They were sure they knew better 
     than the rest of us.
       What needs to be recognized is that this is not some small 
     legal step. These decisions, if kept in force, will 
     revolutionize the way we Americans think about dying. They 
     will hugely increase the pressures on the very ill to agree 
     to kill themselves, utterly transform the relationship 
     between doctors and patients and create gaping loopholes for 
     abuse.
       It is especially chilling that these decisions come up as 
     the country is moving rapidly into managed-care health plans 
     where all the incentives are to cut costs. What easier way to 
     cut costs than to create subtle pressures on patients to kill 
     themselves? Of course there is no managed-care plan out there 
     that would ever do such a thing consciously--one hopes so, 
     anyway. But as medical care for the very ill becomes more and 
     more expensive, it is naive to pretend that such pressures 
     will never arise.
       That is why those who call themselves liberal should not 
     rush to the cause of assisted suicide just because the battle 
     flag of ``a liberty interest'' has been raised. One of the 
     most badly needed protections in America's increasingly 
     complicated health system is to insulate individuals from 
     bureaucratic pressures when they make the hardest decisions 
     of their lives.
       Many doctors vigorously oppose assisted suicide precisely 
     because they want their own missions to remain clear and 
     unequivocal. The American Medical Association worries that 
     assisted suicide is ``fundamentally incompatible with the 
     physician's role as healer and care-giver.'' Medicine is, as 
     the medical ethicist Leon Kass put it, ``an inherently 
     ethical activity.'' The doctors we admire most are those 
     who keep their ethical obligations in the forefront. We 
     ought not transform their ethical role without debating 
     what such a change would mean. This choice cannot be 
     thrust upon us, of a sudden, by courts claiming higher 
     ethical wisdom.
       The confusion created when judges decide this issue by fiat 
     is illustrated by the fact that the two courts reached their 
     decisions for entirely different constitutional reasons. The 
     2d Circuit judges said laws against assisted suicide violated 
     the 14th Amendment's equal protection clause, since the law 
     permits one class of people to end their lives by withdrawing 
     treatment but requires another class to stay alive because it 
     denies them suicide.
       This gives the concept of ``equal protection'' a chilling 
     twist. It is a terrible leap to declare that withdrawing 
     support is exactly the same as helping a patient commit 
     suicide. In the first case, we are acknowledging that great 
     medical advances permit us to trump nature and keep people 
     alive long after they would otherwise have died. In the 
     second, we are taking active measures to kill people. Surely 
     this is not a line we should erase casually.
       The 9th Circuit, on the other hand, relies on the liberty 
     protections of the 14th Amendment. ``At the heart of liberty 
     is the right to define one's concept of existence, of 
     meaning, of the universe and of the mystery of human life,'' 
     wrote Judge Stephen Reinhardt. Well, sure, But what is at 
     stake here is the relationship of the individual to the 
     medical system. What needs arguing is whether liberty will 
     actually be enhanced by giving doctors Q and hospitals and 
     HMOs Q new powers over life and death.
       One cannot escape the suspicion that we have here an 
     outcome in search of a rationale. The goal is to legalize 
     assisted suicide and the judges rummage around for 
     constitutional language to justify the goal.
       This is no easy issue. Modern medicine can keep people 
     alive far longer now than in the past. It's fair to debate if 
     more people may now suffer more pain in the last stages of 
     life, and what that should mean for the practices of 
     medicine. But the courts should not decide this for us.

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