Right to privacy issues arise in their most difficult forms with regard to beginning and end of life decisions. These include the right to choose in connection with pregnancy, the legality and federal funding of stem cell research and voluntarily electing to die with dignity.
1. A Woman's Right to Choose.
No one is pro-abortion; everyone is "pro-life"; some are "anti-choice"; and many or most are "pro-choice." The issue of a woman's right to chose is unlikely to provide fertile ground for consensus building. It is far better, through education and other means, to prevent the need for difficult decisions.
The United States Supreme Court decision in Roe v. Wade is the law of our land and should remain so. The Supreme Court found support for a "right to privacy," encompassing decisions on termination of pregnancy, in the 1st, 4th, 5th, 9th and 14th Amendments to the U.S. Constitution. Roe also defines the circumstances (especially post-viability) in which other considerations may outweigh the right to choose. Its guidelines are medically and legally defensible.
Where there is room for considerable improvement in law and practice is in preventing difficult choices about terminating pregnancy. Not only legislatures, but also families, schools and religious and public interest groups must work together more effectively to ensure that abortions remain safe and legal -- and rare. Sex education in schools -- including information on sexually transmitted diseases and pregnancy prevention (including both abstinence and birth control) - can be highly effective in lowering the rate of teenage pregnancies. Eliminating barriers that restrict or impede access to healthcare or contraceptive information or services will help in reducing the number of unwanted pregnancies among women of varying ages. Conversely, bills such as the Abortion Non-Discrimination Acts providing for a "domestic gag rule" and the "global gag rule" reinstated by President Bush are counterproductive to informed family planning and population control at home and abroad.
Beyond prevention, the right to choose should include the right to choose to bear a healthy child. For this reason, and based on long-term societal interests, Congress should be concerned with the availability of adequate pre- and post-natal healthcare to prevent more expensive problems later in life. For choice to be more than an abstract right or synonymous with abortion, it must include access to a full range of reproductive health and family planning options. This requires not only legislation, but also funding of programs to improve healthcare for pregnant women and young children -- for Maternal and Child Health Block Grants and the State Children's Health Insurance Program (SCHIP), among others.
There are many facets to the choice question. These include de facto discrimination against women in the military and those on public assistance. Further, tangential issues may serve as subterfuges for the abortion debate. As will be discussed below, the embryonic stem cell research controversy derives largely from the fact that harvesting involves destruction of early human embryos. Other examples include the Unborn Victims of Violence Act of 2003 and the bill euphemistically labeled by sponsors the "Child Interstate Abortion Notification Act" and condemned by opponents as the "Teen Endangerment Act."
Then too there is the controversy over the procedure technically referred to as intact dilation and extraction (D&X) and otherwise known as "partial-birth" or "late-term" abortion. After Congress passed the Partial Birth Abortion Ban Act of 2003, two federal Circuit Courts of Appeals held it to be unconstitutional for failure to include an exception to protect the "health" of the mother. In April 2007, however the United States Supreme Court reversed both cases. In Gonzales v. Carhart, the Court found that the federal ban did not impose an undue burden on the due process right of women to obtain an abortion. Gonzales was a 5 to 4 decision, with the majority including Chief Justice John Roberts and Associate Justice Samuel Alito, both Bush appointees.
The day after the Gonzales decision, the Freedom of Choice Act was reintroduced in the Senate and the House of Representatives. Its purpose is "[t]o protect, consistent with Roe v. Wade, a woman's freedom to choose to bear a child or terminate a pregnancy, and for other purposes."
2. Stem Cell Research.
Early embryonic stem cells are special, in that they are capable of forming all the tissues of the body (as distinguished from adult stem cells, which primarily produce new cells for the tissue in which they reside). The controversy over embryonic stem cell research derives from the fact that the procedure for harvesting the cells involves destruction of early human embryos (5-7 day old blastocysts). The stem cells are usually taken from "spare" frozen embryos left over from in vitro fertilization and slated for disposal. The most radical anti-choice crusaders contend that the harvesting process, even at such an early stage and even if the embryos would otherwise be destroyed, kills an unborn child.
Embryonic stem cell research promises new treatments and possible cures for many debilitating diseases and injuries, including Alzheimer's, Parkinson's, diabetes, heart disease, multiple sclerosis, burns and spinal cord injuries. Some researchers regard stem cells as offering the greatest potential for the alleviation of human suffering since the development of antibiotics.
In August 2001, President George W. Bush signed an executive order limiting federal funding of research to "existing stem cell lines where the life and death decision has already been made." This policy met with disapproval from many members of his own Party, including Republican leaders both inside and outside Congress. Subsequently, both Houses of Congress passed the Stem Cell Research Enhancement Act of 2005, which would have allowed federal funding for research regardless of the date on which the stem cells were derived from a human embryo (thus negating the Bush restriction to existing lines). With great fanfare, in July 2006, President Bush issued his first ever veto; within hours, the House of Representatives, as expected, fell short in an attempt to secure the necessary two-thirds majority to override the veto.
During the first 100 hours of the 110th Congress, the House of Representatives passed the Stem Cell Research Enhancement Act of 2007. Four months later, in April 2007, the Senate passed its version of the bill, and in June the House adopted the Senate version by a substantial majority. Having used his veto power for the first time in September 2006 to veto a previous stem cell bill, in June 2007 President George W. Bush exercised his second veto to strike down the successor legislation. The Senate was one short of the number of votes necessary for a veto override, and the House lacked at least 30-40 votes.
3. Right to Die.
The "right to die," often referred to as "death with dignity," refers to option of an individual (or a designated medical surrogate) to refuse extraordinary measures intended to prolong life after a physician has deemed that patient to be terminally or incurably ill. More broadly, it encompasses the right of a competent person voluntarily to decide under what circumstances his or her own life will end.
For most of the nation, the debate over the right with dignity began after 21-year-old Karen Ann Quinlan lapsed into a comma in April 1975 after consuming a combination of gin and Valium at a party. The New Jersey Supreme Court issued a 7-0 ruling holding that the "constitutional right of privacy" was broad enough to encompass a decision to forgo life-sustaining medical treatment in certain circumstances, and the United States Supreme Court denied certiorari. A few years later, in January 1983, 25-year-old Nancy Beth Cruzan was rendered incompetent as a result of an automobile accident. After a prolonged legal battle, the U.S. Supreme Court granted certiorari and affirmed denial by the Missouri Supreme Court on the basis of insufficient evidence of the request by her parents to cease artificial life support for Ms. Cruzan. In so doing, however, our nation's highest court found that "[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment," the latter part of which observation is generally interpreted as affirming a Constitutionally-protected right to die with dignity.
Controversy over the right to die recently reemerged with furor in connection with the Theresa Marie ("Terri") Schiavo situation. The saga began back in February 1990, when Ms. Schiavo at age 26 collapsed and suffered severe brain damage from a potassium imbalance due to bulimia. Although her parents maintained that they saw signs of responsiveness, most doctors insisted that Ms. Schiavo was in a persistent vegetative state (PVS). Several years later, in 1998 Ms. Schiavo's husband began efforts to remove her feeding tube, and several Florida courts supported him. After the feeding tube was removed in October 2003, Florida Governor Jeb Bush pushed for and signed "Terri's Law" to have the tube reinserted. Terri's Law was, however, held to be unconstitutional by the Supreme Court of Florida in a unanimous 7 to 0 decision.
The Schiavo/Schindler family struggle metastasized into a national controversy. Led by House of Representatives Majority Leader Tom DeLay (R-TX) pushing religious arguments and Senate Majority Leader Bill Frist (R-TN) attempting neurological diagnosis by videotape, the Senate on Saturday, March 19, 2005, and the House on Palm Sunday, March 20, 2005, rushed through a special law calling for federal court review of the Schiavo situation. President George W. Bush cut short a vacation in Crawford, Texas, to sign it on Monday, March 21. The United States district court to which the Schindlers' claims were entrusted, however, declined to enjoin removal of their daughter's feeding tube; the Court of Appeals for the Eleventh Circuit affirmed and the Supreme Court denied a stay. Ms. Schiavo's feeding tube was removed for a third and final time on March 18, 2005, and she passed away two weeks later on March 31, more than 15 years after her collapse.
Having declined several times to consider the issue of discontinuing nourishment or treatment in the Schiavo situation, the United States Supreme Court took up the perhaps even more difficult issue of positive assistance by physicians in Gonzales v. Oregon, 546 U.S. ___, 126 S. Ct. 924 (2006). In Gonzales, Supreme Court upheld the Oregon Death With Dignity Act, the only law in the nation condoning physician-assisted death. The Oregon Act allows a physician to prescribe and a terminally ill patient to choose to take a lethal drug dosage if two doctors certify that the patient is both terminally ill and of sound mind. In 2001, religiously U.S. General John Ashcroft had declared that the federal Controlled Substances Act gave him the authority to prevent doctors from prescribing lethal drugs, a position embraced by his successor Alberto Gonzales. The Supreme Court disagreed, concluding that Mr. Ashcroft had overreached when he ruled that physician-assisted suicide was not a "legitimate medical purpose" within the purview of the Act. That federal statute was intended to thwart drug abuse and trafficking, not to punish doctors who prescribed medicines in accordance with state law. By a 6 to 3 majority, the Court found that Congress had not intended to preempt state regulation of medical practice or to give a single Executive Branch officer the power to define standards of medical practice.
Right to die decisions encompass a whole spectrum of practical decisions from withholding or withdrawing life-sustaining treatment (including such things as chemotherapy, mechanical ventilation, dialysis and other forms of medical intervention), to refusing hydration or nutrition or removing a feeding tube, to assisting a patient by prescribing lethal drugs, to issuing "do not resuscitate" (DNR) orders. The lessons from the Quinlan, Cruzan and Schiavo litigations for individuals may be quite clear, at least in terms of making one's wishes - whatever they may be - known in a living will and a durable health care power of attorney. But from a legislative perspective the Schiavo situation in particular was much more complex and may have established a number of unfortunate precedents.
Apart from the legislative spectacles on the floor of Congress itself, the federal Schiavo law was extraordinary in other respects. It not only created jurisdiction for the Schindlers in a specific United States District Court (for the Middle District of Florida), but also expressly instructed that federal court to determine claims de novo "notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings." Beyond issues of federalism and distribution of powers between the federal and state governments, the action by Congress in connection with the Schiavo law also raised serious questions of separation of powers and checks and balances concerning Congressional usurpation of judicial powers.
Protect Personal Privacy and Dignity.
Both a woman's right to chose and dying with dignity involve intensely personal, emotional and difficult decisions. They may invoke not only weighty moral considerations, but also deep religious convictions. Particularly in today's highly partisan political climate, with sharp divisions also among the American public, these intensely private issues are best left insofar as reasonably possible free of intrusion by the federal government. The United States Supreme Court has interpreted the basic parameters of privacy rights and the boundaries beyond which they intrude upon Constitutionally protected interests in the preservation of human life.
With regard to a woman's right to choose, federal, state and local governments do have vital roles to play. These lie primarily in the areas of reducing or eliminating the need to make difficult choices with regard to unplanned pregnancies and of fostering conditions pursuant to which a pregnant woman may chose to give birth to a healthy child. Toward this end, policymakers should support availability of effective birth control and emergency contraception, reproductive health services and education for all women, in addition to assuring access to safe and legal abortions. Further, the choices available to the rest of society should not continue as a practical matter to be denied by our federal government to either women who are serving in our military or those who are on public assistance. Nor should a woman be forced by law to risk her own health or fertility to bear a child, which proposition was recently rejected by the Supreme Court in Gonzales v. Carhart. The Freedom of Choice Act of 2007 would overturn Gonzales and restore Roe v. Wade.
The issue of embryonic stem cell research often serves as a surrogate for the abortion debate. Yet it is hard to believe that - especially faced with the choice of saving a child or other sentient and feeling human being and preserving a collection of undifferentiated cells from frozen embryos scheduled for destruction -- even the most hardcore anti-choice advocates would oppose such research in and of itself. Staunchest Republicans from the family of the late President Ronald Reagan to Senate Majority Leader Bill Frist to a neighbor down the street have opted to promote the research. Embryonic stem cells possess unique qualities offering incomparable opportunities for new treatments and possible cures for many debilitating diseases and injuries (including Alzheimer's, Parkinson's, diabetes, heart disease, multiple sclerosis, burns and spinal cord injuries). The 110th Congress has passed the Stem Cell Research Enhancement Act, which would authorize federal funding for such research and eliminate the restriction imposed by President George W. Bush to existing "lines" of cell. President Bush has, however, twice exercised his veto in this respect, and there have as yet been insufficient votes for a veto override.
End of life choices can be as difficult as those at its inception, and how and when to die may be the most intimate and emotional decisions a person can make in a lifetime. It is a given that, in cases of doubt, we should "err-on-the-side-of-life" in all such situations. Any policy recognizing a right to die must contain ample safeguards to protect the vulnerable - especially the elderly, disabled and mentally challenged - from being pressured or compelled in any way in this regard. On the other hand, from a legal perspective, the interest of the state in preserving life is at some point surpassed by the Constitutionally protected liberty interest of a terminally ill individual in not prolonging or even affirmatively hastening what might otherwise be a protracted, painful and undignified death. The challenge is to determine that a competent person has made a voluntary decision in an exercise of his or her own free will as to appropriate measures in dire medical circumstances. The law can and has designed legislative protections to ensure that the possibility of errors and abuse will be remote, by imposing such requirements as waiting periods, multiple medical opinions, psychological examinations and reporting procedures. Beyond that, in individual cases, the judicial branch is best equipped to assess competing contentions in emotionally-charged situations for the purpose of upholding the legal rights and serving the best interests of the terminally and incurably ill. It is profoundly hoped that both state legislatures and Congress will spare grieving families and the American public the spectacle of remote diagnoses of medical conditions and of arrogant prognosticating and moralizing from afar on the medical circumstances and supposed best interests of tragic victims such as Terri Schiavo.
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