In early March, the Ninth Circuit Court of Appeals went exploring in the empty spaces beyond the text of the 14th Amendment and discovered a constitutionally protected right to suicide. Judge Stephen Reinhardt, writing for an 8-3 majority in Compassion in Dying v. Washington, went on to conclude that a Washington State law forbidding assisted suicide unconstitutionally interfered with this new right. Four weeks later the Second Circuit, in Quill v. Vacco, struck down an identical New York statute, this time on equal protection grounds. The court thought it irrational for New York to allow the terminally ill to order themselves disconnected from life support without also allowing them to kill themselves with a doctor-prescribed drug overdose. Just as the Supreme Court did with the abortion question in Roe v. Wade, the Second and Ninth Circuits did with the question of physician-assisted suicide: they declared that the states may not address the issue beyond mere regulation of the killing.

The nation is currently engaged in a vigorous debate over the issue of assisted suicide. If the polls are to be trusted, a majority of our citizens believe that doctors should be allowed to kill terminally ill patients who request this “service.” Yet 44 states, the District of Columbia, and two U.S. territories currently prohibit or condemn assisted suicide of all kinds, physician or otherwise. For citizens in the Second and Ninth Circuits—nearly half the population of the United States—this debate has been declared irrelevant. Whatever your beliefs concerning physician-assisted suicide, such judicial usurpation of state power cannot be tolerated, and those who wish to have the debate concluded in the same forum where it has been argued for the past several centuries—our state legislatures—can take heart. The Supreme Court is expected to review the decisions next term, and, if it adheres to the spirit of its precedents, the decisions are sure to be short-lived.

To understand the jurisprudential rootlets of these decisions, it is necessary to refer first to the Supreme Court’s last abortion decision. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In Casey, the Court reviewed a Pennsylvania statute that placed several procedural hurdles in the path of a woman seeking to abort. In a fragmented opinion, the Court upheld all of the requirements of the Pennsylvania statute save the requirement for spousal notification and, in a desperate effort to uphold the abortion right without calling it fundamental, invented a new constitutional standard for evaluating abortion statutes.

According to the Court’s traditional rules in the area of extraconstitutional rights, calling abortion a fundamental right—as Roe had done—would have prevented the states from limiting abortion on demand at all during the first trimester. Calling it nonfundamental would have explicitly overruled Roe and allowed the states to ban the practice completely. From this tension emerged the new standard for abortion cases: states may regulate up to the point where a federal judge decides that the burden on the right to abort has become undue. Since Casey, the Court has never again applied the new standard, and its lack of vitality is so pronounced that most lower federal courts have ignored it entirely, even in abortion cases. Enter Judge Stephen Reinhardt and the Ninth Circuit.

Judge Reinhardt is perhaps the most liberal judge on the federal bench. In a recent front-page story in the Wall Street Journal, Judge Alex Kozinski, a fellow Ninth Circuit judge and a powerful force in the federal judiciary, gave Judge Reinhardt the dubious honor of being “probably the best lawyer we have on the court. . . . He actually knows how to work the precedent, and he works it looking for cracks and seams that he can exploit.” In Compassion in Dying, he stretched this talent well past the breaking point. Misusing precedent and ignoring established doctrines, Reinhardt somehow managed to discover a new constitutional right growing on the anemic stem of the Casey decision. Yet he remains unabashed at this flim-flam. “I think this may be my best ever,” he says of the opinion.

Starting from the horrifying premise that federal judges “must strive to resist the natural judicial impulse to limit our vision to that which can plainly be observed on the face of the [Constitution],” Reinhardt proceeded to pronounce that Washington State was behaving unconstitutionally when it forbade doctors from prescribing lethal drug overdoses to the terminally ill. Aside from the fact that Reinhardt himself has never once had an impulse to “limit his vision” during his 16 years on the bench, the assertion that judges should feel free to treat the Constitution as a prospector treats his claim is simply wrong. In fact, the Supreme Court recently pointed out that “the doctrine of judicial self-restraint requires [the federal courts] to exercise the utmost care whenever [they] are asked to break new ground” in the area of rights not explicitly listed in the Constitution. Ignoring this straight-to-the-point admonition. Judge Reinhardt unpacked his shovel.

Reinhardt recognized that he had to establish two propositions to keep his excavation from caving in: first, that the 14th Amendment recognizes a liberty interest in suicide; second, that any such interest is fundamental enough to overcome a state’s interest in the preservation of life. The Supreme Court has stated quite forcefully in case after case that a liberty interest is not fundamental unless it is “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” As Justice Scalia has observed, the liberty to commit suicide has no such roots: “American law has always accorded the State the power to prevent, by force if necessary, suicide—including suicide by refusing to take appropriate measures necessary to preserve one’s life.” Although Reinhardt made a halfhearted effort to justify his newly discovered right on historical grounds (including a hilarious passage in which he cites Sir Thomas More as a big supporter of assisted suicide, apparently unaware that Utopia was a satire), he had to know that the Supreme Court would almost certainly refuse to declare a fundamental right to suicide.

So Reinhardt found himself in a box. He understood that calling the right fundamental would be futile. The other option—calling the right nonfundamental—would have resulted in a clear and easy victory for Washington. There was nowhere to go but to the peculiar jurisprudence of the Casey decision. Casey presented Reinhardt with problems of its own. Foremost, of course, was that the Supreme Court has never applied Casey outside of the abortion context. Reinhardt himself recognized this problem in a 1993 law school address, when he admitted that the Casey decision grew out of political pressures on the Court rather than out of a fundamental desire to redirect 14th Amendment jurisprudence. To cope with this problem, Reinhardt executed a rather ingenious reinterpretation of recent Supreme Court precedent in an attempt to show that the Court has been moving toward a less rigid analysis of 14th Amendment liberty interests. In essence, Reinhardt argued that Casey represented the Supreme Court’s abandonment of its traditional fundamental/nonfundamental division of liberty interests in favor of a continuum where a liberty interest and the state’s interest could slide up and down a scale depending on their relative weight in any given situation. In Casey, the scale happened to alight on the undue burden standard. In another case, the scale would stop elsewhere.

Reinhardt’s position is unsupportable. Casey was not a decision designed to realign 14th Amendment jurisprudence. It was, as Reinhardt himself recognized in 1993, sui generis—a singular opinion growing out of singular pressures on the Court. Casey was a decision based primarily on the power of stare decisis, the principle of Anglo-American law that dictates that prior case law should not be repudiated absent a compelling justification. “We conclude,” said the plurality, “that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate . . . [because] the immediate question is not the soundness of Roe‘s resolution of the issue, but the precedential force that must be accorded its holding.”

In other words, Casey was an exercise in the jurisprudence of cowardice: the Court was afraid to overrule Roe, but also afraid to endorse it. It chose, therefore, to hide behind the thin veil of precedent. Had an earlier Court shown such a lack of moral courage, “separate but equal” would still be the law of the land. This weak little opinion hardly provides a ringing endorsement for Reinhardt’s contention that it represents a fundamental realignment of constitutional interpretation. Constitutional gadfly Laurence Tribe has said that he finds “much to admire” in Reinhardt’s interpretation of Casey. Perhaps he was reading the opinion for its comic potential.

Beyond the misuse of precedent, one must also examine the effect on the country if Reinhardt’s “analysis” is correct. If the sliding-scale approach became the law, littering ordinances, speeding laws, and stop-sign violations could all generate federal cases. On the sliding scale, every act of the state that limits my freedom would be subject to challenge. The adoption of this approach would be an invitation for the federal courts to dig into the laws on the books of every state in the country on a case-by-case basis. Our state legislatures would operate at the whim of the federal judiciary. This may be an outcome that Reinhardt and his brethren on the Imperial Judiciary would relish, but it is an outcome that the Supreme Court most certainly will not endorse.

The Second Circuit decision took a more conservative approach in a Souteresque sort of way. Judge Roger J. Miner, writing for two of the three judges on the panel, began by explicitly repudiating Judge Reinhardt’s due process analysis on the grounds that a federal court “is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” But this moment of lucidity did not stop him from reaching the same result as Judge Reinhardt, albeit by walking a different path through the dark forest of the 14th Amendment. Where Reinhardt strode boldly along the smoldering trail cut by the abortion cases like some demented camp-follower of General Sherman, Judge Miner crept quietly into a dusty corner of the Equal Protection Clause to find support for his position. His conclusions are equally unsupportable.

At its heart, the Equal Protection Clause of the 14th Amendment demands that states act reasonably when they want to treat one group of their citizens differently from another. Thus, though it is fine for the state to allow only non-felons to purchase guns, the Equal Protection Clause would not allow a state to prevent the sale of firearms to women. Outside of the relatively narrow areas of fundamental rights and specially protected groups, a state classification will survive an Equal Protection challenge if it is “rationally related to a legitimate state purpose.” This is a lax standard that allows a state to justify itself on almost any grounds, even those invented after the fact. This extraordinary level of deference exists because the Supreme Court believes that the political process itself provides adequate protection in areas not involving fundamental rights. Judge Miner and his Second Circuit panel, however, were not so confident in our ability to govern ourselves.

Judge Miner began by recognizing that the distinction drawn by the New York statute between the terminally ill on life support and the terminally ill not on life support implicated no fundamental right or class deserving of special protection. Yet he nonetheless invalidated the statute. In a textbook example of the unprincipled use of raw judicial power. Judge Miner concluded that he could use the most relaxed standard in all of constitutional law to strike down a statute endorsed by the people of New York, citing as his only support a tiny line of cases where the Supreme Court has used the Equal Protection Clause to protect the mentally retarded and the children of illegal aliens. Any applicability of these cases to the facts presented in Quill depends for its vitality on an analogy between the historic plight of the mentally retarded and the children of illegal aliens on the one hand, and the terminally ill who wish to commit suicide on the other. Such an analogy is obviously impossible to draw, and Judge Miner did not even bother to try. He simply cited a few cases as examples of a rational relationship review that struck down state laws, and then proceeded to do the same with the New York assisted suicide statute.

And what of the interest of the people of New York? The state contended that its “principal interest is in preserving the life of all its citizens at all times and under all conditions.” Instead of addressing this interest, Judge Miner ridiculed it: “What business is it of the state to require the continuation of agony when the result is imminent and inevitable? What concern prompts the state to interfere with a mentally competent patient’s right to define [his] own conception of existence, of meaning, of the universe, and of the mystery of human life . . .?” But Judge Miner should not have been so quick to dismiss the state’s interest in the preservation of life, especially given the Supreme Court’s resounding declaration on this point in its only “right to die” case, Cruzan: a state may choose to rely “on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. . . . The majority of States in the country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think that the State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.”

So, from the thin gruel of Casey, Judge Reinhardt applied all of his talent in “working the precedent” and cooked up an imaginary four-course meal. Meanwhile, on the other side of the country. Judge Miner concocted his own version of the slop. When the Supreme Court gets a taste of this meal, however, it should be able to discern its real ingredients: a bit of broth and a lot of hard work by some talented confidence men. The right to decide whether we want our doctors to act as our executioners in the waning days of our lives is part of that residue of power left with the states, and there it should remain.