In a ripple effect from two recent court rulings on assisted suicide, a county prosecutor in Missouri has shelved charges against an elderly Downstate man and his son for helping the man’s terminally ill wife kill herself on their 50th wedding anniversary.
The Missouri action, the first fallout from a pair of federal appeals court decisions that essentially recognized a constitutional right to die, means that Bernie Howard, 76, of Belleville, and his son Bernard Howard of Garland, Texas, will not go to trial in the foreseeable future for their role in Velma Howard’s suicide last December.
Other prosecutions are likely to be affected while jurists wait for the dust to settle from the appeals court decisions, which are headed for the U.S. Supreme Court.
“These two decisions have the potential to lead the court into taking and deciding a case,” said Northwestern University law professor Len Rubinowitz.
The justices might prefer to avoid such a controversial issue, he said. On the other hand: “There are several justices who want to get the federal courts out of this business. If they think they have five votes to throw out both rulings and leave the whole question in the states’ hands, then they’ll probably take it.”
Velma Howard, 76, who had Lou Gehrig’s disease, died in a Joplin, Mo., hotel room where the family had gathered to celebrate the Howards’ golden wedding anniversary. Prosecutors said her husband and son helped her sedate herself with sleeping medication and alcohol mixed in orange juice, then arranged furniture so she could reach a plastic bag and a rubber band to secure the bag around her neck.
The method is prescribed in the book “Final Exit,” a copy of which was found in the hotel room. Mrs. Howard was a member of the Hemlock Society, which advocates a right to die.
The senior Howard and his son were the first to be charged under Missouri’s 1873 law, which makes it a felony to “knowingly assist another in the commission of self-murder,” according to Newton County Prosecuting Atty. Greg Bridges.
Bridges said he had been distressed “because we couldn’t find any case law on the books–no guidance anywhere.” But within a few weeks of the Howard indictment, there suddenly were two precedents in which “a court ruled that a statute much like ours was unconstitutional.” So last Thursday he agreed to defer prosecution for at least 12 months.
In decisions rendered this month and last by the 2nd Circuit Court of Appeals in New York and the 9th Circuit in San Francisco, judges said physicians may legally assist in the planned suicides of terminally ill but mentally competent patients.
The judges essentially said that under these circumstances a person’s right to die is protected by the Constitution.
The two courts arrived at the same place from different directions. The 9th Circuit found that Washington state’s law deprived individuals of their personal liberty without due process; the 2nd Circuit said New York’s law violated the equal protection clause because a patient on life support has the right to hasten his own death–by requesting that life support be withdrawn–but a patient not on life support is denied the same right.
Technically, the rulings apply only to the 14 states covered by the 2nd and 9th Circuits, but courts and legislatures all over the country will be watching what follows to get long-awaited guidance on the knotty question of whether individuals should have a choice in when and how their lives end.
Most immediately affected probably will be Oregon, in the 9th Circuit, where a federal judge recently overturned a 1994 state law, the first in the nation, permitting assisted suicide. There is also a pending challenge to Florida’s ban on assisted suicide.
Illinois is among 44 states in which assisted suicide remains a criminal act. Another is Michigan, where Dr. Jack Kevorkian is on trial yet again for helping a patient die.
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Whether or not the Supreme Court agrees to hear the cases, the actions of the federal appeals court judges open the door to other successful challenges and raise the profile of assisted suicide, which threatens to become as explosive an issue as abortion.
The impact of the rulings on the medical community and on families coping with the terminal illness of a loved one is still unclear.
Kathryn Tucker, lead counsel to plaintiffs in both the New York and Washington challenges, pointed out that the two appeals court decisions merely said “dying patients have the right to hasten their death with physician assistance. Spousal assistance is outside their scope.”
“These decisions probably don’t prohibit the prosecution of nonphysicians,” she added, “nor should they. Physicians are in the best position to determine if a patient is really terminal and if he’s not suffering from depression.”
But Alan Meisel, professor of law and bioethics at the University of Pittsburgh, believes that if physician-assisted suicide is upheld, it will be hard to draw the line between that and nonphysician-assisted suicide, “and it will be equally difficult to draw the line between assisted suicide and mercy killing.”
Partly for that reason, even those who believe people have a right to choose how they will die say the idea of assisted suicide must be approached with extreme caution, especially in an era when financial pressure to curb medical expenses is growing.
“Physician-assisted dying is a poor substitute for aggressive end-of-life comfort care,” said Karen Kaplan, executive director of Choice in Dying, a New York-based group devoted to providing people with information to make end-of-life decisions.
While the organization neither promotes nor opposes assisted suicide, she said, “The choice shouldn’t be between dying alone and in agony over an extended period of time or assisted dying.”
The rising interest in assisted suicide, Kaplan said, points to a gap in the American health system. “It says to me that people are very frightened about not having access to adequate care at the end of their lives and they are looking to this as something to hang onto if all else fails.
“We’re not putting an appropriate amount of societal energy into making sure that all else doesn’t fail.”