[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.
____________________