Constitution Watch: Good News and Bad

Maureen Dowd, in a recent column in the New York Times described ours as “a world defined not as a battle between good and evil but a choice between skim or whole, caf or de, foam or no foam, carbonated or still, lemon or lime.” She might have added to her list of choices: straight or gay, marry or fornicate, have the baby or kill the baby. But while many deem these latter choices morally inconsequential, they loudly declare them constitutionally crucial. They are backed by the nation’s constitutional magisterium, the Supreme Court of the United States. That causes us to ask: Is the Court simply reflecting the culture, or is it the other way around? The answer: Secularist Court and secularist culture have become a sort of same-sect marriage.

It’s with these thoughts that we come to examine the Supreme Court’s docket for its term that opened October 7. The docket contains both good news and bad. The good news is that the Court has decided to review several spectacularly bad lower-court decisions. The bad news is that there is great likelihood that the Court not only will affirm those decisions but in doing so make them law binding upon the whole nation.

To begin with the worst: the decisions of two United States Courts of Appeals (the Second and Ninth) striking down state laws making it a crime to assist a mentally competent person to commit suicide. Each litigation was brought by physicians, teamed with terminally ill patients, and, in the Ninth Circuit case, an organization called by the Aesopian name, Compassion in Dying. This month both cases will be argued before the high court. Our rejoicing that the Supreme Court is holding these two decisions up to question must be tempered by three facts.

First, it takes but four votes of the justices to bring a case on for review; quite possibly only four votes called for review in each of the cases. Second, the decisions are a direct outgrowth of the anti-life principles riveted to the Constitution by the Court’s prior abortion decisions. As Judge Stephen Reinhardt’s opinion in the Ninth Circuit case stated, there are “compelling similarities between right-to-die cases and abortion cases.” He can boast that he had no choice but to follow, as controlling precedent, Roe v. Wade and Planned Parenthood v. Casey.

Finally (to speak again of the Court-and-culture marriage), there is suddenly in place a substantial popular sympathy for the idea of assisted suicide. While thirty-four states explicitly prohibit it, a pervasive “right-to-die” propaganda has engendered a responsive chord. A recent ballot initiative in Oregon resulted in a 51 percent to 49 percent approval of physician-assisted suicide. Similar legislation proposed in Michigan was prompted by polls showing that 70 percent to 80 percent of the citizenry oppose laws restricting the practice. Now, in state after state, lobbies are in hot pursuit of removing such restrictions.

The growing, but not yet total, popularity of the right-to-die movement has its obvious roots, especially among the aged, in fear of suffering and fears among both young and old of the burdens on others that the suffering will impose. And it is here that Reinhardt comes to rescue consciences. Justices O’Connor, Kennedy, and Souter, in Planned Parenthood v. Casey, sought to move our attention from abortion as an act of killing to abortion as an expression of a woman’s “liberty interest” in pursuing her “conception of her spiritual imperatives and her place in society.” So Judge Reinhardt would also raise our eyes from assisting killing to a “liberty interest” in determining the time and manner of one’s death — “an intimate and personal choice.” He notes that, in 1990, the Court had held that a person is free to reject unwanted medical treatment, including providing food and water by artificial means. He then takes a leap over a profound moral chasm by holding that therefore one may get one’s self killed or may help kill somebody else.

As dissenting Judge Diarmuid R. O’Scannlain pointed out, polygamy, consensual duels, prostitution, and the use of illicit drugs are also “intimate and personal” choices. Inevitably, aren’t they also constitutionally protected? And may not compassion for the dying justify a friend or relative in helping put us down? O’Scannlain says the holding puts us on a “very slippery slope.” I fear, instead, that its affirmance will have chucked us over the precipice.

Affirmance in the two cases will mean that once again precious principles protective of fundamental liberty are ripped out of the Constitution in the name of materialist utility. We will all need to keep very bright, healthy, and alert lest, due to infirmity or age, we find ourselves at risk in the moldering ranks of the useless.

Nothing better illustrates the extremism of those opposing the pro-life movement than their constant attempts to use the police to hobble pro-life demonstrations at abortion clinics and to intimidate the pro-life demonstrators. In 1994 the Court, over the vehement dissent of Justices Scalia, Thomas, and Kennedy, upheld an injunction vigorously limiting pro-life expression at a Florida abortuary incongruously entitled Women’s Health Care Center. The injunction created a thirty-six-foot zone around the center within which pro-lifers may not demonstrate. Justice Scalia declared that anyone “familiar with run-of-the-mill labor picketing, not to mention some other social protests,” would be aghast at the creation of a zone in which “only a particular group, which had broken no law, cannot exercise its rights of speech, assembly and association.” This remarkable distortion of First Amendment rights now became a precedent for expansions further to cripple pro-life expression.

In 1992, when the Reverend Paul Schenk and associates sought to picket a Buffalo, New York abortion clinic, they found themselves barred by a court order. This injunction was a variant of the injunction granted in the Florida case. It created a fifteen-foot “floating” no-speech zone around, not just the entrance to an abortion clinic, but also around any person or vehicle seeking access to or leaving the facility. The injunction prohibited speech to any person who did not want to be spoken to, based on the court’s guessed-at “emotional impact” on such persons.

The protesters already had agreed to use no violent words or physical threats. The prohibition was thus to all peaceable speech. Schenk and his associates were required to cease and desist from any counseling whatsoever. Thus exercising the lethal power of contempt proceedings, a single judge again struck at the heart of freedom of speech. And he has been upheld by the U.S. Court of Appeals for the Second Circuit.

If it is to rule justly in the matter of assisted suicide, the Supreme Court must detach itself from its own bad precedents in abortion cases. But to rule justly in the abortion-picketing cases, the Court has but to resort to its almost endless parade of decisions protecting “freedom for the thought we hate.”

The Religious Freedom Restoration Act now has been held by two courts to violate the constitutional principle of separation of powers. In the March 1996 CRISIS we commented on the City of Boerne case in which Archbishop Flores raised the act as a defense against his being forbidden, by a historic preservation ordinance, to make necessary expansion of a parish church building. On October 16, the Court decided to hear this case. No case more vital to religious liberty will be before the Court this term.

In the offing are situations on the culture war front loaded with possibilities of litigation before the high court. Hawaii’s statute legalizing same-sex marriage, now under attack before the Supreme Court of that state, is a potential vehicle for the metastasizing of this evil. But more about all of these cases must await a later “Watch.”


  • William Bentley Ball

    William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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