By Daniel Avila
If the Florida High Court decides that the "privacy amendment" to the Florida Constitution forbids state authorities from banning suicide assistance, then look for euthanasia advocates to file similar law suits in other states with similar provisions. Fourteen states besides Florida recognize a broad right of privacy - Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Louisiana, Massachusetts, Minnesota, Montana, New Jersey, South Carolina, Washington and West Virginia.
It isn't likely that the U.S. Supreme Courts long-awaited rulings on assisted suicide will hinder the state courts. In the federal cases of VACCO VS QUILL and WASHINGTON VS CLUCKSBERG, the nations high court will decide whether a right to assisted suicide is protected by the U.S. Constitution. But even if the majority of justices rule that no such federal right exists, (this article was written prior to the rendering of a decision by the U.S. Supreme Court, see main page for full decisions.) the courts of Florida and the other states will still be free to mandate assisted suicide under their own state constitutions. In fact, some Justices of the U.S. Supreme Court may even encourage the State courts to take such an approach. That's why euthanasia advocates hope that the Florida Supreme Court will boost their cause by recognizing a privacy right to obtain suicide assistance in Florida - thereby triggering a chain reaction of similar state court rulings across the country.
Will the Florida High Court oblige? The answer depends largely on how it interprets the privacy amendment to the Florida constitution, which establishes the "right to be let alone" in matters concerning a person's "private life".
What does the "right to be left alone" mean? In a Jan. 31, 1997 ruling currently on appeal to the Florida Supreme Court, Palm Beach Circuit Court Judge S. Joseph Davis held that Charles Hall, a 35 year old restaurant manager, who acquired AIDS from a blood transfusion, had a state constitutional right to obtain a prescription for a legal drug overdose from his physician, Dr. Cecil McIver. The Judge ordered the local prosecutor, Barry Krischer, to refrain from threatening McIver with prosecution under Florida's criminal ban against assisting another's "self-murder."
The State of Florida, working closely with the National Legal Center For The Medically Dependent and Disabled, assembled the impressive array of witnesses and materials to demonstrate the dangers of assisted suicide. Judge Davis ignored these and failed to address the actual meaning of the "right to be let alone" as intended by the drafters of the privacy amendment or the voters who approved it by referendum in 1980.
Florida's privacy amendment was first proposed in the years immediately following the Watergate scandals in the 1970's and was initially promoted as a means for protecting residents from government wire taps and other invasions of privacy intended to gather personal information. Its supporters eventually acknowledged - though not too insistently for fear of arousing too much political opposition - that the amendment would independently guarantee certain controversial privacy rights, already recognized under the federal law, such as the right to obtain an abortion. But no one ever claimed it would extend protection to a "right" to assisted suicide, mercy killing or euthanasia. It is unlikely that in approving the privacy amendment in 1980 the people of Florida believed they were endorsing a "right" to be killed.
Some of the supporters did suggest at the time that the amendment's language was intended to incorporate the political philosophy of John Stuart Mill, as described in his 1859 treatise, ON LIBERTY. Mill asserted that individuals should be free to engage in a broad range of activities without government interferance, as long as such activities did no harm others.
Would assisted suicide fall within the zone of privacy conceived by Mill, because suicidal acts supposedly harm only the one desiring to commit suicide?
The Knights' brief used ON LIBERTY to refute such a notion. Mill himself observed that "it is impossible for a person to do anything seriously or permanently hurtful to himself without mischief reaching at least to his near connections, and often far beyond them." The immensely negative impact of a suicide on the victims relatives and friends, or suicide's well-documented propensity to encourage other suicides, especially among teenagers, belies any claim that self-killing is purely an act of self-harm.
Mill also acknowledged that self-harming decisions carried out with the assistance of others are "not strictly within the definition of individual liberty." When others "make it an occupation" to assist individuals in harming themselves and thereby "promote what society and the state consider to be an evil," Mill wrote, then society has a greater interest in protecting against those who would provide such assistance. As tragic as individual suicides are, allowing physicians to participate in the suicides of their patients magnifies the social threat.
Mill also rejected the idea that a person could somehow be "free not to be free" by voluntarily selling himself into slavery. That has obvious implications for the assisted-suicide debate. "By selling himself for a slave," Mill reasoned "(a person) abdicates his liberty; he foregos any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to despose of himself. He is no longer free..."
What action could be a more extreme form of slavery than self-killing, which forever prevents an individual from exercising any freedom whatsoever? Suicide, annihilates individual freedom by alienating one's right to live and thus contradicts the very principle of freedom. The Knight's brief concluded that "when an individual freely assumes personal risks that threaten the certain causation of his or her own death, and the decision at stake embraces death as its object, then self-regarding actions take on a different character altogether by ceasing to be acts of freedom."
The notion that assisted suicide provides "freedom" is self-defeating. At the root of the political and social drive to legalize assisted-suicide is what Pope John Paul II describes in his encyclical THE GOSPEL OF LIFE as "an attitude of accessive preoccupation with efficiency...which sees the growing number of elderly and disabled people as intolerable and too burdensome." Especially at risk in Florida, for example, are those members of the largest community of older persons in the United States.
Where is the freedom in a view that isolates the vulnerable, denies them the solidarity and mutual support demanded by their dignity as human persons, and coldly offers them a right to be killed to the efficient advantage of the more powerful?
As Pope John Paul II concluded in THE GOSPEL OF LIFE a "freedom" to be killed that is purportedly based on the victim's individualistic desires "ends up by becoming the freedom of 'the strong' against the weak who have no choice but to submit.
In MCIVER, Judge Davis characterized Hall's privacy interest as a right "to precipitate his instant death ...when he determines that he is not capable of functioning as a human being." In so many words, let him kill himself when he no longer has a life worth living. This demonstrates the unmistakable conflict that exist between a right of privacy supposedly affirming the worth of the individual and the large-scale devaluation of human lives that certainly will result if assisted suicide is legalized.
By the time you read this article the nine Justices of the U.S. Supreme Court will likely be putting the final touches on rulings that address the question of whether assisted suicide should be protected by the U.S. Constitution. They may, in fact, already have published their ruling. The Court could rule as it did in its 1973 abortion decision in ROE VS WADE by transforming a criminal act into a federally protected right - and thus force all the states to legalize assisted-suicide in one fell swoop. Or it could rule as it did in its 1977 abortion-funding decision in MAHER VS ROE by refusing to force the states to do anything - and thus leave the assisted-suicide entirely up to the states.
If the Supreme Court follows the latter course, in declines to legalize assisted suicide everywhere and all at once by federal dictate then the MCIVER case will assume even greater national significance. Assisted-suicide advocates would have to go to the courts in each state to accomplish in smaller steps what they may be unable to accomplish in one giant step at the federal level, and the MCIVER litigation will point the way. Clearly, the threat to the sanctity of life presented by the pro-euthanasia campaign cannot be quelled by the U.S. Supreme Court's ruling, but its approach only redirected.
As demonstrated by experience with abortion funding in the United States, the country would still face the possibility of Court-ordered euthanasia on a broad scale. The courts in at lease nine states have held that abortion-on-demand must be funded for poor women by state constitutional mandate. Whether by state court order, legislative act or administrative decisions, fourteen states in all fund abortions-on-demand for those who cannot afford them. Another seven states impose only slight limitations on abortion funding. Because many of the most populated states fund abortions, between two-thirds and three-fourths of all abortions performed on poor women are tax-funded even though no funding requirement exist under the U.S. Constitution.
In the end, that is why so much hinges on the MCIVER case in Florida. It raises questions of a national scope that should grip the attention of all of us, not just of those living in Florida.
We must all eventually grapple with the meaning of the "right to be let alone" when it comes to life, death and assisted suicide. Will we seek a death caused by our own hand? One that arrives at the hour we choose, because we no longer trust God's providence and must have absolute control over the inevitable suffering we wish would leave us alone? Or, as people of faith, will we see the process of dying as an opportunity "to be let alone" so that we might easier rest in the hands of God, according to his timing and manner of death, not ours?
Daniel Avila is an attorney with the National Legal Center For The Medically Dependent And Disabled, Inc. The foregoing article was published in the July 1997 issue of the Knights of Columbus' magazine COLUMBIA.