The Sense of the Supreme Court

Thomas L. Petty, M.D.

Professor of Medicine, 
University of Colorado

Chairman, National Lung Health Education Program (NLHEP)


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The Sense of the Supreme Court

February 1997
PEP Pioneers
Second Wind
Torrance, California

     Dear Friends:

     The present debate over what is incorrectly termed Athe right to assisted suicide has doubtless caught the attention of most if not all readers of the Second Wind. Quite frankly, the Supreme Court debate on this subject troubles me greatly. The facts are that there is no one on the Supreme Court qualified to make a judgment about how to deal with suffering in the case of terminal illness, for the simple reason that no one on the Supreme Court is a physician. None of the nine justices have had the experience of dealing with pain, misery, hopelessness, and the intrinsic wish of those near death or with intolerable suffering to enter the eternal sleep that is guaranteed to all of us. The only true guarantee is the fact of death. How this death occurs is a matter to be determined between patient and physician.

     There are some basic ethical principles involved, which I have not seen discussed in the media recently. These are: 1) the autonomy of the individual; and 2) beneficence to the individual. It is a fact that in medical decision making today, that we have medical care that can extend life, but it also can extend death and suffering. Thus we have a technical ability which allows us to do things, yet an ethical component of what ought to be done. Hopefully, both components can be reconciled.

     In addition we have established guarantees which include the right to privacy, which is a guarantee of the United States Constitution and the right to bodily self determination which is established by the common law. It is interesting that in 1891, the U.S. Supreme Court did say, "No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraints and interferences by others unless by clear and unquestionable authority of law". It is a fact that the United States Constitution never mentions the word suicide, nor does it have any statement which could be construed as a guiding principle as to how patients should be cared for when their quality of life is gone and they are suffering.

     The President's Commission on making health care decisions and decisions to forego life-sustaining treatment, which has been widely quoted, clearly states, There is no significant moral (or legal) distinction between withholding and withdrawing therapy from patients in a hopeless condition, such as a permanent vegetative state. This statement, however, does not deal with the situation of individuals who are unable to express their wishes, but here's where the Living Will and Durable Power of Attorney can provide surrogate decision making. Indeed, the personal physician can be a surrogate decision maker in conjunction with family members or even friends who understand what form of treatment the patient would want.

     The Supreme Court has no right to interfere with the practice of medicine. It cannot determine what drugs or devices are used, such as morphine to relieve painful suffering or horrible anxiety. Today physicians legally, morally, and ethically give morphine and related drugs when they are required for pain and other miseries, recognizing that the use of such drugs may suppress bodily functions including respiration resulting in death. This is not assisted suicide; this is assisted relief of suffering as a result of an illness, which is the proper role of the physician.

     Somehow the Supreme Court has endowed itself with the power of creating social change and determining rights of human beings including the unborn which, in my judgment as a physician, go far beyond the role of the Supreme Court and the Constitution it is charged to interpret. Whatever decision the Supreme Court makes in the current debate will have no meaning to the practice of medicine or the relief of suffering and, in my opinion, it would have been better if the Supreme Court had refused to hear the arguments at all.

     The only principle involved when patients are suffering, dying, and miserable, is the principle of reason. It is highly unlikely that reason will emerge from the polarized debate we are now facing and the decisions of nine lawyers who know absolutely nothing about the practice of medicine. For these lawyers to decide about death and the care of dying would make about as much sense as nine doctors attempting to rewrite the Constitution.

     I will be in touch next month.

    Your friend,

   Thomas Petty, MD

Last update:
17 March 2002