Licensed to kill

Euthanasia is back on the ABA agenda but Satvinder Juss and Chris Fogarty find courts reluctant to join the debate. Satvinder Juss is a barrister at 4 King's Bench Walk. In recent years the issue of physician-assisted suicide has dominated the American Bar Association conference. Last year the Beverley Hills Bar Association (BHBA) asked the ABA to support physician-assisted suicide and although the proposal would not have directly led to a change in the law, the support of the legal profession would have had a huge influence on public opinion.

It is hardly surprising then that the BHBA's proposal generated substantial national media interest. BHBA director Bert Tigerman says lawyers need to be at the forefront of social change in the community. “It's hard to get away from social implications no matter what part of the law you're dealing with.” The BHBA motion was defeated but euthanasia will be back on the agenda at Toronto this year when Faye Girsh, executive director of pro-euthanasia lobby group Hemlock, will address the conference.

But despite debate, both the US and UK legal systems have traditionally struggled with delicate and highly emotive issues. In 1956 Dr John Bodkin Adams told a UK court: “Easing the passing of a dying person is not all that wicked.” Immortalised in a book by trial judge Lord Devlin, the Eastbourne doctor in 1949 administered lethal dosages of morphia and heroin to a bed-ridden stroke victim. “She wanted to die,” Adams claimed when arrested. “That cannot be murder. It is impossible to accuse a doctor.” He was eventually acquitted.

Last year, Annie Lindsell, 47, campaigned for a change in UK law so doctors could provide her with a dignified death. For five years she suffered with a motor neurone disease and faced progressive muscle wasting and paralysis leading to death by suffocation. Lindsell asked the High Court to permit doctors to give her drugs to relieve her distress even though they could shorten her life. The disease finally killed Lindsell and affects 5,000 people in the UK today.

Earlier this year, the US Supreme Court considered euthanasia but found the matter so complex it balked from a decision. The issue is now where abortion was 30 years ago and the question is not whether people have the right to die – patients can already refuse treatment – but whether they can enlist a doctor's help.

Chief Justice Rehnquist held in two appeals from New York and San Francisco that there is no constitutional right to die and upheld state laws prohibiting doctor-assisted suicide. He believed the American public should consider the issue. “Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide,” he said.

But the Supreme Court failed to decide, as Justice O'Connor put it, “whether a mentally competent person who is experiencing great suffering has a constitutionally cognisable interest in controlling the circumstances of his or her imminent death”. As a result, the question seems certain to be back before the court.

Because assisted suicide has been a political issue for so long, the abortion struggle may not be the best model for jurisprudential development. Instead the battle to legalise birth control is a more appropriate parallel. Before the Supreme Court agreed a constitutional protection for married couples to use contraceptives, birth control advocates were turned from the court's door as early as 1943. And only when a doctor and an executive of Planned Parenthood were convicted of aiding and abetting married women who used contraceptives did the court approve birth control.

The same may hold true for euthanasia and attitudes are already changing. We are undoubtedly morally burdened in taking a life and current law does nothing to relieve that burden. But despite a strong lobby within the ABA pushing to allow physician-assisted suicide, many lawyers and the courts seem prepared to let public opinion drive a legal precedent.