Imagine it’s 1967. Abortion, except in rare cases, is illegal everywhere in the United States. You can’t imagine that in 45 years abortion will be one of the most contentious political issues in America, and that virtually everyone in the country will be touched by it. If someone describes this future to you, and you ask how it can be avoided, he says, “We need to prevent Roe v. Wade.” And you have no idea what he’s talking about.
In 2012, Roe v. Wade is happening again, this time on the subject of doctor-prescribed suicide. As yet there is no court case, but the machinations to prepare the way for such a case have already begun.
We have learned all too well over the last 40 years just what Roe v. Wade is — perhaps the most devastating bit of judicial activism in U.S. history, resulting in the death of more than 50 million pre-born human persons. The judges of the Supreme Court found, lurking in the emanations and penumbras of the Constitution, a right to abortion. Forty years later, the many efforts to reverse the Roe decision have all been rebuffed, with the Supreme Court reaffirming Roe on several occasions.
Keep in mind the history of abortion legalization in the U.S., starting with Colorado in 1967, then New York, California, Oregon, Washington, North Carolina, and several other states, for a total of 17 that legalized abortion in at least some circumstances before Roe. It was against this background of change in state laws that abortion advocates brought carefully prepared cases to court in states where abortion remained illegal. Roe v. Wade and Doe v. Bolton were decided on the same day in 1973, effectively rendering null and void all state laws restricting abortion at any point in the pregnancy.
A similar strategy has been under way on euthanasia and doctor-prescribed suicide for over three decades, albeit with somewhat less success. Hundreds of attempts have been undertaken to make it legal for doctors to prescribe lethal doses of drugs to their patients since the 1980s, though to date only two ballot initiatives have succeeded, in Oregon in 1994 and in Washington in 2008. In addition, in 2009 a Montana supreme-court decision did not find doctor-prescribed suicide to be illegal under state law. This fall a ballot initiative will be voted on in Massachusetts, and while it may seem like just another blip on the radar screen, there is good reason not to be complacent.
In a 1997 Supreme Court decision, Washington v. Glucksberg, Justice Sandra Day O’Connor, in her concurring opinion, argued that “states are presently undertaking extensive and serious evaluation of physician-assisted suicide. . . . In such circumstances, ‘the challenging task of crafting appropriate procedures for safeguarding liberty interests is entrusted to the “laboratory” of the States in the first instance.’”
So what has happened in the “laboratory” of the states since 1997? Except in Washington and Montana, there has not been much movement, but not for lack of trying. Governor Peter Shumlin of Vermont made legalizing doctor-prescribed suicide a central promise during his 2010 campaign, but a savvy opposing effort by a diverse coalition of groups in Vermont held it off for the legislative sessions of 2011 and 2012. Close on the heels of this effort comes the ballot initiative in Massachusetts.
That effort is the most serious threat in some time. There are two reasons that it is potentially a turning point for proponents of physician-assisted suicide. First, now that the “Oregon Plus One” strategy has succeeded in Washington and Montana, advocates want to keep the momentum going, and the Northeast is the most sympathetic region. And second, no state has yet legalized doctor-prescribed suicide through its legislature. The recent defeats in Vermont, despite the insistence by the advocacy group Compassion and Choices (the snappily rebranded Hemlock Society) in December 2010 that “everyone interested in Death with Dignity should turn their eyes toward Vermont,” prove that passage of such a fundamental restructuring of the doctor-patient relationship is extremely challenging even in the friendliest of neighborhoods. And there are only two states in the sympathetic Northeast with a ballot-initiative process: Maine and Massachusetts. An effort to legalize doctor-prescribed suicide by ballot initiative was defeated in Maine in 2000, making another attempt there difficult. So Massachusetts is the last, best hope for advocates of doctor-prescribed suicide to break the Pacific Northwest quarantine.
What happens if the Massachusetts ballot effort passes in November? Doctor-prescribed suicide would almost certainly be legalized in Vermont’s next legislative session, in 2013, on its coattails. Connecticut and New York, each of which has seen three legalization attempts in its legislature in the last decade, can expect to have bills reintroduced: A symposium on the issue in New York City scheduled for just after the election, on November 16, 2012, makes clear that New York is a high-priority target for Compassion and Choices. And one of the western states, perhaps New Mexico, along with Hawaii, will be much closer to legalization after the Massachusetts bump. California, which has seen three legislative attempts since 2004, will see a serious fight as well.
Now let’s look a few years down the line, when advocates bring the case of an individual in, say, Alabama who, being terminally ill, desperately wants his doctor to provide a lethal prescription. When that case proceeds to the Supreme Court, what will a look at the “laboratory” show? Suicide as a medical treatment was made legal in Washington in 2008, Massachusetts in 2012, Vermont and New York in 2013, and New Mexico in 2014. This looks like an “emerging consensus,” doesn’t it?
Compassion and Choices uses O’Connor’s “laboratory” comment as its lodestar. The briefs are no doubt already drafted; they just need the insertion of a heart-wrenching story. After all, as the Court noted in Roper v. Simmons in 2005, when it comes to deciding if there is an “emerging consensus,” “it is not so much the number of these States that is significant, but the consistency of the direction of change.”
Stopping doctor-prescribed suicide in Massachusetts may well be our last chance to prevent the Roe v. Wade of suicide as a medical treatment. The lesson of the last 40 years is clear: Fight now, not later.
— Greg Pfundstein is the executive director of the Chiaroscuro Foundation.