When Should Old Law Be Changed?


When should old law be changed?

Attorney David Schechner, for some 15 years counsel to South Orange, laudably advances public discussion of physician assisted suicide (or physician aid-in-dying (PAD) as its proponents call it) in his essay "A doctor’s responsibility is the right to live" (July 18). In the process, however, he misstates the tenor of the Supreme Court’s decisions of five years ago in Washington v. Glucksberg and Vacco v. Quill.

And basically he champions "Due process is old process". Yes, law should have a measure of continuity to allow citizens to rely on it. But all the same, new times may well demand new measures. There is thus a strong tension between the principle of "stare decisis" (let it stand) and reconsidering old (and possibly obsolete) law.

Let’s assume for a moment that for 700 years in the West we have had a settled abhorrence of suicide. So what? Slavery was a near-sanctified institution for millennia. That did not make it right. Or lawful.

Again, the very principle that Mr Schechner invokes upholds the shameful Supreme Court decision in Bowers v. Hardwick. That case held that Georgia could jail adults for engaging in consensual homosexual behavior: the "due process" and "equal protection" clauses of the 14th Amendment were not offended. Because, after all, for over a thousand years the entire West held sodomy a criminal abomination.

Justice Oliver Wendell Holmes, Jr., possibly our finest student of the common law tradition on the Court, even before he moved to the Supreme Court gave a lecture to commemorate a new hall for Boston University School of Law. It was later collected in his writings as "The Path of the Law". In it he observed: "It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds on which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

So, what was the actual underlying reason for the rule that made suicide and attempted suicide capital offenses at common law? Footnote 10 to the majority opinion in Glucksberg by Chief Justice Rehnquist cites Hales v. Petit (1561-62): "[Suicide] is an Offence against Nature, against God and against the King." (This echoes St. Thomas Aquinas.)

But surely an advocate making such an argument today would be laughed out of court. The First Amendment bars government from imposing religious beliefs on us. (Candidly, most opposition to PAD is at its core religiously inspired.) And we appropriately kicked the King out in 1776.

The rule against suicide arose in a feudal environment when ostensibly "freemen" were conveyed with sales of landed estates. When such persons could not marry without the consent of the Lord of the Manor. When in a sense we "belonged" to our overlord. And he in turn owed duties to some superior lord, perhaps a Duke, on up the feudal ladder to the King. To whom all owed duties, in peace and war.

In such an environment, plainly, the subject was not free to destroy his overlord’s interest in himself by suicide, depriving the overlord of his services. That is the reason for the rule.

All that was ended in 1776: henceforth each of us was entitled to engage in the "pursuit of happiness" as we individually saw fit, with no governmental restraints, provided only that we allowed a reciprocal liberty to our fellow citizens. Unhappily, the common law rule criminalizing suicide and aiding in it hung on unexamined.

Those advocating for PAD are thus in the tradition of Washington and Patrick Henry, of Frederick Douglass and Abraham Lincoln: we want to complete the Revolution by affirming Freedom for the Dying. We insist that government simply has no business in intruding into the private, personal and religious (yes!) area that is how a person decides to die. We affirm that most basic of civil rights: to be let alone.

The majority holding in Glucksberg ends: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician assisted suicide. Our holding permits that debate to continue, as it should in a democratic society. *** " Thus to the extent Mr Schechner’s essay be read to suggest that the Supreme Court’s opinion is meant to end that debate and bar the states from considering this issue, plainly it is misleading.

Mr Schechner also turns for support to Justice Stevens’ concurring opinion. But Stevens is clearly the Justice most openly supportive of PAD--! He only joined in reversing the Circuit Court because of a curiosity in Constitutional jurisprudence.

But he ends his opinion by asserting that undoubtedly there are factual cases (alas, not before the Court, since all the patients had died and no doctor was actually threatened with prosecution) where the Washington law is in plain violation of the 14th Amendment’s promise of substantive "due process of law": "In my judgment, however, it is clear that the so called ‘unqualified interest in the preservation of human life’ [embraced by the majority and assertedly a key part of the Cruzan case] is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient’s dignity and alleviating her intolerable suffering."

All seven opinions are worthy of study—even those still mired in the old chestnut that "Due process is old process"—as the majority basically holds. They can be accessed on the internet here.

This essay ran in the News-Record of Maplewood and South Orange as an OpEd piece on July 25, 2002. It was written by Winthrop Thies, former President of The Hemlock Society of New Jersey (the predecessor organization to Compassion and Choices of New Jersey, Inc.).