NLA REVIEW	THE NINTH CIRCUIT'S ANALOGY BETWEEN FETUSES AND THE TERMINALLY ILL by Professor Richard Stith	Spring 1997

Widely noticed has been the implicit threat that federal court approval of hastening death for the terminally ill (upon request by the patient or by a surrogate) poses for other vulnerable people. Witness the recent 250-strong protest at the U.S. Supreme Court by the disability-rights group "Not Dead Yet." Much less remarked has been the explicit support drawn by an eight-judge majority in the Ninth Circuit Federal Court of Appeals from the Supreme Court's earlier rejection of a fetal right to life. Just as fetuses at the beginning of life merit less protection, so do the terminally ill at the other end of life, the Ninth Circuit has argued. Killing fetuses has become a legal precedent for killing persons at other points in the human lifespan.

In an effort to explain why most of us need to be protected from assisted suicide, but the terminally ill do not, both the Second and the Ninth Circuits averred in early 1996 that not everyone's life is worth equal protection by the state. Judge Miner in the Second Circuit wrote "Surely, the state's interest lessens as the potential for life diminishes." Quill v. Vacco, 80 F.3d 716, 729 (2nd Cir., 1996). The judge's "surely" indicates that he considers the matter virtually beyond dispute and thus not in need of analogical support from other parts of the law. Judge Reinhardt wrote similarly, for the Ninth Circuit, that "[The strength of] the state's interest in preserving life...is dependent on relevant circumstances, including the medical condition...of the person whose life is at stake." Compassion in Dying v. State of Washington, 79 F.3d 790,817 (9th Cir., 1996). But here Judge Beezer, writing in dissent, countered that the court is thus reexamining "the historic presumption that all human lives are equally and intrinsically valuable," and that this reexamination may be "a mere rationalization for house-cleaning, cost-cutting and burden-shifting—a way to get rid of those whose lives we deem worthless." Id. at 856-57.

Perhaps because of Judge Beezer's forceful challenge, Judge Reinhardt sought to bolster his case with the Supreme Court's jurisprudence denying equal protection to the unborn:

In right-to-die cases, the outcome of the balancing test may differ at different points along the life cycle as a person's physical or medical condition deteriorates, just as in abortion cases the permissibility of restrictive state legislation may vary with the progression of the pregnancy. Equally important, both types of cases raise issues of life and death... Id. at 800-01.

Judge Beezer did not try to deny the majority's analogy to abortion law, just to narrow it:

[I]n the abortion context, the Supreme Court tells us that the state's interests in fetal life are weaker before viability than they are once the fetus becomes viable. See Casey, 505 U.S. at 845, 112 S. Ct. at 2804. A state's interest in preserving human life is stronger when applied to viable beings than it is when applied to nonviable beings. Like a first-trimester fetus, a person kept alive by life-sustaining treatment is essentially nonviable. A terminally ill patient seeking to commit physician-assisted suicide, by contrast, is essentially viable. The patient may be inexorably approaching the line of nonviability. But the patient is still on the viable side of that line, and consequently enjoys the full protection of the state's interest in preserving life. Id. at 851.

The Ninth Circuit's abortion analogy is of significance for the abortion debate. Ever since Roe v. Wade, pro-life groups have been warning that to say some human beings (the preborn) do not count legally is to give up the fundamental principle of equal protection and to endanger other groups who are similarly "unwanted" by society. Pro-lifers have argued that no merely definitional divide between fetuses and the rest of us can long remain unbridged. Proponents of the right to abort, on the other hand, have claimed that the way fetuses are treated has no possible impact on the way the rest of humanity gets treated.

Now that abortion is deeply imbedded in our law and culture, some of its supporters on the Bench feel confident enough to concede in effect that "it looks like you prolifers were right after all. There really is no difference in kind between fetuses and other human beings. And both abortion and suicide are about life and death. Well, as you've always said, we've got to be consistent!" Withdrawing protection from fetuses has freed the federal courts to withdraw protection from the terminally ill and from others who exhibit what the courts consider the essential traits of fetuses.