At the time the New York suit was filed in 1994, George A. Kingsley was slowly going blind. A victim of AIDS, he was suffering terribly from parasitic infections that had caused lesions on his brain. He knew he was in the terminal phase. In an affidavit, he said:
"It is my desire that my physician prescribe suitable drugs for me to consume for the purpose of hastening my death . . ."
Across the continent, John Doe, a 44-year-old artist in Washington state, signed a similar statement. He, too, was going blind from AIDS. He was in constant intractable pain. He, too, wanted his physician to help him die.
The laws of New York and Washington make it a crime for physicians to assist in suicide. Are these laws constitutional?
Before the Supreme Court's 1996 term expires next summer, the high court will let us know. The companion cases of Vacco vs. Quill (New York) and Washington vs. Glucksberg (Washington) will confront the court with decisions of the most profound importance. Judge Stephen Reinhardt of the 9th Circuit put it this way:
"This case requires us to confront the most basic of human concerns -- the mortality of self and loved ones -- and to balance the interest in preserving human life against the desire to die peacefully and with dignity."
The moral and ethical questions raised by doctor-assisted suicide are off my beat. The questions of constitutional law are sufficiently engrossing. Both the 2nd Circuit in New York and the 9th Circuit in Washington came to the same conclusion: The criminal statutes violate the Constitution. But the two courts reached that conclusion by different paths.
Two provisions lie at the core of the 14th Amendment. The first decrees that no state may deprive a person of "liberty" without due process of law. The second ordains that no state may deprive any person within its jurisdiction of the equal protection of its laws.
In the 9th Circuit, Judge Reinhardt relied upon the due process clause. In the 2nd Circuit, Judge Roger J. Miner relied upon equal protection.
Reinhardt began by describing three petitioners who wanted to die "peacefully and with dignity." In addition to John Doe, the artist, there were Jane Roe, 69, a retired pediatrician, and James Poe, 69, a retired salesman. Dr. Roe was dying of cancer that had metastasized throughout her skeleton. She was incontinent and in constant pain. Poe was dying of emphysema and heart disease.
The three patients, said Reinhardt, have a "liberty interest" in the choice of how and when one dies. The state may not deprive them of that interest without compelling reason. No such reason had been shown.
Judge Miner in the 2nd Circuit echoed this view. In addition to Kingsley and William A. Barth, who were dying of AIDS, Jane Doe was party to the suit. A retired physical education instructor, she was dying of a large cancerous tumor in her right carotid artery. Unable to swallow or speak, she existed through an implanted tube.
The point of Miner's opinion was that under New York law, terminal patients are treated differently. After careful consideration, physicians are free to remove life support systems at the request of a competent patient. They are not free -- indeed, they risk criminal prosecution -- if they go beyond the passive act of turning off a respirator and actively provide lethal drugs.
The distinction serves no legitimate state purpose, said Judge Miner. It deprives such patients of equal protection of the laws.
"What interest can the state possibly have in requiring the prolongation of a life that is all but ended?"
Judge Reinhardt's due process opinion strikes me as better reasoned than Judge Miner's invocation of equal protection. Either result accords with the highest principles of individual freedom. I hope the high court agrees.