Mendacity, Thy Name is Compassion and Choices

by Wesley J. Smith

Over twenty years of anti euthanasia advocacy, I have come to realize that many activists on the other side care little for the truth, or indeed, facts. They just want to win!

Here’s a current example: Two of the country’s premier suicide “aid in dying” pushers–Barbara Coombs Lee and Kathryn Tucker–claim in an article that a Supreme Court case to constitutionalize assisted suicide which Tucker lost unanimously, actually created a constitutional right to take a lethal amount of drugs to alleviate suffering.

First some background: In 1997 Kathryn Tucker challenged New York’s law outlawing assisted suicide on behalf of assisted suicide doctor Timothy Quill, along with another case seeking to invalidate Washington’s law against assisted suicide (Washington v. Glucksberg).

Tucker’s goal was to obtain an assisted suicide Roe v. Wade. She failed utterly, with two 9-0 decisions–rare unanimity in the Supremes.

Of particular interest to this post, Vacco v. Quill rejected Tucker’s argument that refusing unwanted life-sustaining medical treatment is the same thing as assisted suicide, even though such refusal can lead to natural death. 

But look how Lee and Tucker spin that ruling about a case out of Pennsylvania of a woman accused of assisting the suicide of her father by handing him a jar of morphine pills. From, “One Woman’s Future Depends on AG Kane’s Constitutional Consistency”(my emphasis):

As attorneys, we agree it is unethical to defend unconstitutional laws. It follows that Kane’s office should also not pursue a case that impinges on an individual’s constitutional rights. That’s why her office should drop an unsupportable assisted suicide case against a Philadelphia woman. Her preliminary hearing is today. Barbara Mancini was present when her 93-year-old, terminally ill father ingested morphine to relieve his agony. In a perversion of justice, the state filed assisted suicide charges against Barbara in the death of her father, Joe Yourshaw, who lived in Pottsville.

In 1997, the U.S. Supreme Court recognized that dying patients have a constitutional right to as much medicine as needed to relieve their pain even if it advances the time of death. The Court’s finding came in two landmark cases, Washington v. Glucksberg and Vacco v. Quill, both brought by Compassion & Choices’ predecessor organization, Compassion in Dying. 

Justice Sandra Day O’Connor puts it this way in her often quoted concurring opinion in Washington v. Glucksberg “…a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death.”

Hold on now. As attorneys, surely Lee and Tucker know that a concurring opinion is not the rule of the case. In other words, it is not binding on Pennsylvania law enforcement.

Moreover, O’Connor wasn’t creating a constitutional doctrine, but merely noting existing law. That’s why Lee and Tucker used the ellipses in front of O’Connor’s quote–to hide the context and thereby mask the true meaning of the statement.  Here’s the full quote from her short concurring opinion in Quill, the case in question (my emphasis):

The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. In this light, even assuming that we would recognize such an interest, I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide.

Thus, O’Connor’s statement merely summarized the then–and now–existing law. (I represented the International Anti-Euthanasia Task Force–now, the Patients Rights Council–one of the amici that filed briefs in both cases.) It did not set forth any constitutional doctrine. (The quote in Glucksberg is identical.) Meaning, it is flatly dishonest to contend that the “Supreme Court recognized that dying patients have a constitutional right to as much medicine as needed…”

Here’s what the Court actually ruled 9-0 in Vacco v. Quill (my emphasis):

This Court has also recognized, at least implicitly, the distinction between letting a patient die and making that patient die. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990), we concluded that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions,” and we assumed the existence of such a right for purposes of that case, But our assumption of a right to refuse treatment was grounded not…on the proposition that patients have a general and abstract “right to hasten death, but on well-established, traditional rights to bodily integrity and freedom from unwanted touching. In fact, we observed that “the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.”Cruzan therefore provides no support for the notion that refusing life-sustaining medical treatment is “nothing more nor less than suicide.”

Logic and contemporary practice support New York’s judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.

That’s the binding rule of the case. Period.

Vacco v. Quill most certainly did not rule that patients have a right to be made dead as a way of relieving their suffering. In fact, to the contrary.

Nor did it rule that people can take “as much medicine as needed” to alleviate suffering. The wasn’t what the case was about.

I don’t know the facts of the PA prosecution. If the ill father took morphine as prescribed and accidentally died, the daughter clearly has a factual defense. But the prosecution is certainly constitutional under the Vacco decision–and the mendacious Lee and Tucker know it.