The Ninth Circuit’s Fatal Overreach

On March 6 in the federal Ninth Circuit Court of Appeals in San Francisco, a decision came down that could provoke a national battle greater than anything since the infamous Roe v. Wade decision of 1973. On the other hand, in relentlessly extending the fatal logic of Roe, the decision could be an instance of judicial overreach that turns out to be fatal to a whole series of court decisions that are in service to the culture of death. Overturning an earlier 2-1 panel decision written by one of its members, Judge John Noonan, the Ninth Circuit ruled that the Constitution guarantees a “liberty right” to assisted suicide. At issue was a Washington State law forbidding assisted suicide. The Ninth Circuit decision, written by Judge Stephen Reinhardt, was backed by an 8-3 majority.

As Roe surprised abortion proponents in the breadth of its sweep, so also “right to die” advocates have expressed surprise at how far the Ninth Circuit has gone. Others express alarm. In light of this decision, said Burke Balch of the National Right to Life Committee, “The so-called right to die will quickly become the duty to die.” The American Medical Association was also taken aback, and reasserted its position that assisting a suicide is “fundamentally incompatible with the physician’s role as healer and care-giver.” Bioethicist Arthur Caplan of the University of Pennsylvania, a much-quoted “moderate” on these questions, was not prepared for the Ninth Circuit’s pronunciamento. “It’s as though we didn’t learn anything from thirty years of abortion fighting. If anyone thinks they’re going to settle anything morally from a court decision, they’re nuts. And as a matter of public policy, it puts us in the bizarre situation of staggering toward becoming a society that guarantees the right to die at the hand of a physician with no right to treatment at the hand of a physician.”

Nothing daunted, Judge Reinhardt and the majority of his colleagues declared that their decision is firmly grounded in the “powerful precedent” of the abortion rulings of the Supreme Court, and they are right about that. The Ninth Circuit cites the notorious “mystery passage” of the 1992 Casey decision in which the Supreme Court pronounced that the abortion license is “central to personal dignity and autonomy,” noting that in our constitutional order there are no moral truths except those contrived by individuals to explain the mystery of the universe and their place in it. The Supreme Court said that procuring an abortion is one of “the most intimate and personal choices a person may make in a lifetime,” and the Ninth Circuit applies that to suicide, noting that it is intimate, personal, and uniquely final. The Constitution, the court said, guarantees the liberty to make that decision and help in executing it.

The Ninth Circuit includes a number of states (Alaska, Arizona, California, Hawaii, Idaho, Montana, and Nevada) that have laws prohibiting assisted suicide, and the decision may also doom the suit against an Oregon vote that made it the only state in the Union permitting assisted suicide. The March 6 decision will almost certainly be appealed to the Supreme Court, which may then have to confront the moral and legal logic of its abortion precedents, most particularly that of Casey. At the time of the Casey decision, scholars pointed out that it was an open-ended invitation to create new licenses to kill, and it would seem that the Ninth Circuit has simply acted on that invitation. Thus the judicial imperialism of the Ninth Circuit is forcing the hand of the judicial imperialism of the Supreme Court.

The Supreme Court will face the difficult task of explaining why its abortion precedents do not invite the conclusion drawn by the Ninth Circuit. That could lead to a modification or overturning of those precedents. If, on the other hand, the Supreme Court upholds the Ninth Circuit, the battle over abortion would likely be transformed into near unconditional warfare against the arrogance of courts that short-circuit democratic deliberation by the imposition of their moral (or grossly immoral) dictates. Make no mistake, the Ninth Circuit has thrown down the gauntlet to the people and legislatures of nine states, and by implication to the entire country.

Unlike 1973, there is today well-organized opposition to the course mandated by the Ninth Circuit. Not only the pro-life movement, but the bulk of the medical profession as well as Congress, state legislatures, and other courts have declared against the putative right to doctor- assisted suicide. Challenging Judge Stephen Reinhardt and other lawyers who play at being philosopher kings is the firm position of scholars who have over the years pondered this matter with great care. (See the Ramsey Colloquium statement, “Always to Care, Never to Kill,” FT, February 1992.) The medical profession in particular is not eager to be made over in the image of Dr. Jack Kevorkian, and Americans recoil from the prospect of becoming a large scale Netherlands where thousands of old people are killed every year, with or without their consent.

As, by the grace of God, good can come from evil, the Ninth Circuit may have rendered a great service. It could compel the Supreme Court to reverse abortion precedents rightly invoked by the Ninth Circuit. It could prompt one or both political parties to call for an amendment making clear that there is no constitutional right to doctor-assisted suicide (the present abortion plank of the Republican platform already implies that). And if the Ninth Circuit decision is left standing or is upheld by the Supreme Court? Then many Christians, Jews, and others who care for moral truth and the integrity of this constitutional order will begin, many for the first time, to think long and painful thoughts about their allegiance to this political and legal regime.

The 1994 encyclical Evangelium Vitae spoke in very sobering tones about the obligation in conscience to resist unjust laws, and about the ways in which governments lose their moral claim to the obedience of the governed. Let it be said very carefully, calmly, and with no intention to incite: If the decision of the Ninth Circuit is declared the law of the land, our public life will move from widespread alienation and protest to open insurrection. No sensible person should welcome that prospect. But if it comes, the guilt will surely fall on judges who arrogated to themselves the political and moral authority that once belonged to the people of this democratic republic. History will show that, with that arrogation, the compact was broken, the consent of the governed was nullified, and this constitutional order was undone. The hopeful alternative is that the reckless presumption of the Ninth Circuit will provoke a long overdue reconstitution of the judiciary as the servant of the law and not the master of a people who were once free and are determined, one must hope, to be so again.