c. 1997 Religion News Service

UNDATED _ The “right-to-die” question to be argued before the U.S. Supreme Court on Wednesday (Jan. 8) is not whether Oregon can permit doctor-assisted suicide, but whether Washington, New York and other states can continue to ban the practice.

The High Court will hear arguments for a new, constitutionally protected right enabling terminally ill, mentally competent patients to end their lives from coast to coast.

Don’t expect the nine robed justices to agree. The Court rarely recognizes “new” constitutional rights. Most Court watchers say the majority is more apt to let states decide the issue for themselves, one-by-one.

Oregon already has decided.

In 1994, 51 percent of the voters approved Measure 16, “The Oregon Death With Dignity Act.” It gave patients with six months or less to live the option of taking life-ending drugs.

Enactment of the law has been delayed by a court injunction. But legal experts say it’s only a matter of time until that is lifted and Oregon enhances its reputation as a pioneer, willing to go where no state has gone before.

A constitutional right to doctor-assisted suicide would accomplish through a single judicial edict what has been impossible to achieve legislatively, except in Oregon.

Whenever assisted-suicide bills have been introduced in statehouses across the country, the American Medical Association, the Roman Catholic Church and other groups have successfully lobbied against them.

In Western states, right-to-die advocates have tried the initiative process. But with the exception of Oregon, those attempts have also failed.

“It’s a huge effort to put together a campaign and finance a campaign,” says Kathryn Tucker, a Seattle-based attorney who worked on an initiative rejected by 54 percent of Washington voters in 1991.

After that, Tucker turned to Plan B, the courts. With the help of a Seattle non-profit organization, Compassion in Dying, she filed suits in Washington and New York questioning the constitutionality of the laws in those states.

Circuit courts on opposite coasts ruled in her favor, sending the issue, as planned, to the U.S. Supreme Court. The position of conservative Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas appears clear. Other justices see the Constitution as an evolving document.

It is “absolutely plain that there is no right to die,” Scalia said Oct. 18 at Catholic University’s School of Philosophy. He noted “there were laws against suicide” when the Constitution was written.

Scalia goes so far as to assert that courts should not recognize any constitutional rights, such as the right to abortion, that did not exist when the Constitution was drafted.

According to Seattle University law professor Annette Clark, Justice Sandra Day O’Connor “will be tempted” to vote for doctor-assisted suicide while fellow centrists Anthony Kennedy and David Souter, who voted with O’Connor in the Casey decision, “could go either way.”

She says Justice Ruth Bader Ginsburg is difficult to peg, while Justice Stephen Breyer leans against assisted suicide. Only Justice John Paul Stevens is a certain “yes” to vote for the new right.

“My guess is 6-3 in favor of the state of Washington,” says Clark. “But that’s just a guess.”

Robert Destro, a law professor at Catholic University of America and an expert on autonomy, says the Supreme Court lacks the “guts” to hand right-to-die forces a clear victory.

Instead, he says, the Court will give the nation “a mealy-mouth balancing test” attempting to affirm both the rights of the individual and the rights of states to protect life.

Larry Palmer, a Cornell University law professor who has written widely on medical ethics, predicts a rejection of a new right to die.

According to Palmer, “the court is saying this is political.”

If that is true, the issue of doctor-assisted suicide will be kicked back to the states, for the people to decide.

MJP END RNS