About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

The weight of the evidence and expert opinion amassed in the more than 60 briefs and expert studies on file with the Court in the two cases suggests that statutes barring assisted suicide are not anachronistic, but rather represent the least bad policy option currently available. And further reflection convinces me that even if the policy question is a close one, the constitutional question is not. This is a case that cries out for deference to democratic choice. And Calabresi’s notion of a "constitutional remand," while superficially appealing in its toe-in-the-water nonfinality, seems a rationalization for ever more adventurous judicial usurpation of the powers of elected representatives.

I concede that legalizing assisted suicide would provide relief for some patients who will otherwise die in agony-or in what some call a "barbiturate coma"-while loved ones are condemned to days or weeks of watching them waste away. And I hope that if I ever find myself in (or approaching) such a condition, with no other way out, I can get ahold of a lethal dose to have in case life becomes unbearable. I might break the law myself, if necessary to alleviate a loved one’s suffering.

But I’d rather take my chances on all that-and on having my children watch me (as I watched my mother) slowly shriveling up with Alzheimer’s and expiring insensate from dehydration-than see assisted suicide become a constitutional right.

Such a change poses an enormous risk that the number of patients thereby enabled to die with dignity would be dwarfed by the number who would die prematurely and unwillingly. Mistakes, abuses, and pressures all would tend to convert the "right to die".

While the assisted suicide movement focuses on moving anecdotes about people dying in unbearable physical pain, studies show that such pain is the primary motive for only a small fraction of patients who seek assisted suicide. Most are driven by depression.

Yet there is a medical consensus that the pain in which many patients die today could be greatly alleviated in the vast majority of cases-in all cases, according to the American Medical Association-by proper care and (if necessary) sedation. But "[o]nce physician-assisted suicide becomes available, many patients whose needs could have been met through appropriate palliative care will instead be directed toward physician-assisted suicide," in the words of an amicus brief filed by the AMA and others.

Many other patients, who would not choose assisted suicide on their own, would be driven to do so by a complex of pressures. These include subtle and not-so-subtle messages that they are burdens to their families-who tend to be more supportive of assisted suicide than are the elderly, terminally ill patients themselves, according to a recent study- and the fact mat lethal medication would be the least costly treatment option by far.

In addition, the right-to-die terrain is the slipperiest of slopes, both in theory and in practice. There is no stopping point in sight more secure than the ethical-legal line that the appellate courts sought to obliterate as irrational: the line that forbids purposeful efforts to help another commit suicide, while respecting patients’ long-established rights to refuse (or terminate) unwanted medical treatments, or to increase medication against pain, even when the effect would be to hasten death.

Advocates of assisted suicide stress mat the right they seek would be confined to the relatively narrow class of people in the final stages of terminal illness who are both mentally competent and able to administer the lethal dose themselves. These ostensible limits are illusory. They would be washed away by the same corrosive logic that now seeks to wash away the more principled line between pulling the plug and taking a suicide pill.

While a self-administration requirement is touted as a guarantee of voluntariness, the 9th Circuit recognized that the next step after its decision to legalize assisted suicide would be to legalize voluntary active euthanasia-administration of lethal drugs by physicians for patients unable to self-administer.

The next step after that, as several justices suggested at oral argument, would be to confront the claim that it is irrational not to extend the right to assisted suicide to other suffering patients who are not terminally ill-for example, to those plagued by incurable chronic conditions, who face years of pain, or by chronic depression. No very robust principle would stand in the way of such extensions.

Nor would die "mentally competent" line hold. Under the Court’s 1989 decision, Cruzan v. Director, Missouri Department of Health, the life-support systems of unconscious and incompetent terminally ill patients can be removed at the requests of their families (or other designated surrogates), assuming that the patients, while competent, had signed die right kind of living will. If assisted suicide must be allowed on the same basis as pulling the plug, it would follow that the same unconscious and incompetent patients would have the "right" to be killed through active euthanasia.

As for the constitutional issue, given the impressive preponderance of expert opinion opposing legalization as a dangerous policy, it would be the height of judicial hubris for the Court to conjure a right to assisted suicide out of the due process clause, or the equal protection clause, or the (tenuously grounded) abortion precedents, or the fact that "[t]he Stoics glorified suicide as an act of pure rational will" (to cite one of the myriad authorities relied on by Judge Stephen Reinhardt in his sublimely arrogant opinion for the 9th Circuit), or the 1994 Harris poll finding that 73 percent of Americans favor legalizing physician-assisted suicide (to cite another), or anyplace else.

As several justices suggested at oral argument, it would be especially gratuitous to constitutionalize a right to assisted suicide given the fact that "this is an issue that affects all of us," in Justice Sandra Day O’Connor’s words, and given the consequent absence of any special need for judicial protection of a politically powerless minority against a hostile or indifferent majority.

It would also be especially unwise to freeze a right to assisted suicide into constitutional stone at a time of rapidly evolving medical technology and practices, and of enormous empirical uncertainty and disagreement about the relevant facts, ranging from how widespread covert assisted suicide may be now to what would be the consequences of legalization. This is quintessentially an issue best resolved through experimentation by elected state governments, which have already started testing policy alternatives, and which can correct their mistakes more easily than justices who purport to be interpreting a timeless Constitution.

Finally, whatever the reach of the principle asserted by the plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)-that "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment"-it should be confined in this case by the countervailing principle that was well slated in the dissenting opinion of Judge Andrew. Kleinfeld of the 9th Circuit:

"The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary."