Suicide and States’ Rightsrnby Bill WeberrnIn early March, the Ninth Circuit Court of Appeals went exploringrnin the empty spaces beyond the text of the 14thrnAmendment and discovered a constitutionally protected rightrnto suicide. Judge Stephen Reinhardt, writing for an 8-3 majorityrnin Compassion in Dying v. Washington, went on to concludernthat a Washington State law forbidding assisted suicide unconstitutionallyrninterfered with this new right. Four weeks later thernSecond Circuit, in Quill v. Vacco, struck down an identical NewrnYork statute, this time on equal protection grounds. The courtrnthought it irrational for New York to allow the terminally ill tornorder themselves disconnected from life support without alsornallowing them to kill themselves with a doctor-prescribed drugrnoverdose. Just as the Supreme Court did with the abortionrnquestion in Roe v. Wade, the Second and Ninth Circuits didrnwith the question of physician-assisted suicide: they declaredrnthat the states may not address the issue beyond mere regulationrnof the killing.rnThe nation is currently engaged in a vigorous debate over thernissue of assisted suicide. If the polls are to be trusted, a majorityrnof our citizens believe that doctors should be allowed to killrnterminally ill patients who request this “service.” Yet 44 states,rnthe District of Columbia, and two U.S. territories currently prohibitrnor condemn assisted suicide of all kinds, physician or otherwise.rnFor citizens in the Second and Ninth Circuits—nearlyrnhalf the population of the United States—this debate has beenrndeclared irrelevant. Whatever your beliefs concerning physician-rnassisted suicide, such judicial usurpation of state powerrnBill Weber is a Marine captain and an attorney living in Beaufort,rnSouth Carolina.rncannot be tolerated, and those who wish to have the debaternconcluded in the same forum where it has been argued for thernpast several centuries—our state legislatures—can take heart.rnThe Supreme Court is expected to review the decisions nextrnterm, and, if it adheres to the spirit of its precedents, the decisionsrnare sure to be short-lived.rnTo understand the jurisprudential roodets of these decisions,rnit is necessary to refer first to the Supreme Court’s last abortionrndecision. Planned Parenthood of Southeastern Pennsylvania v.rnCasey (1992). In Casey, the Court reviewed a Pennsylvaniarnstatute that placed several procedural hurdles in the path of arnwoman seeking to abort. In a fragmented opinion, the Courtrnupheld all of the requirements of the Pennsylvania statute savernthe requirement for spousal notification and, in a desperate effortrnto uphold the abortion right without calling it fundamental,rninvented a new constitutional standard for evaluating abortionrnstatutes.rnAccording to the Court’s traditional rules in the area of extraconstitutionalrnrights, calling abortion a fundamental right—rnas Roe had done—would have prevented the states from limitingrnabortion on demand at all during the first trimester.rnCalling it nonfundamental would have explicitly overruled Roernand allowed the states to ban the practice completely. Fromrnthis tension emerged the new standard for abortion cases: statesrnmay regulate up to the point where a federal judge decides thatrnthe burden on the right to abort has become undue. SincernCasey, the Court has never again applied the new standard, andrnits lack of vitality is so pronounced that most lower federalrncourts have ignored it entirely, even in abortion cases. EnterrnJudge Stephen Reinhardt and the Ninth Circuit.rn24/CHRONICLESrnrnrn