Michigan Ruling May Not Affect Charges Against Kevorkian

DECLARING that long-suffering patients have a constitutionally protected right to take their own lives, a Detroit judge Dec. 13 struck down portions of a Michigan law that makes it a felony to assist in a suicide.

In a 41-page decision, Wayne County Circuit Judge Richard Kaufman ruled that the Michigan law is ``overly broad'' and ``violates the liberty provisions of the 14th Amendment'' to the United States Constitution. Judge Kaufman's ruling comes some six months after another Wayne County circuit judge, Cynthia Stephens, overturned the same Michigan law, only to have the state Court of Appeals issue a temporary stay of her ruling until it can hear arguments in the case.

The court actions are just the latest in a three-year series of legal maneuvers between Michigan lawmakers and Jack Kevorkian, a retired pathologist who has attended or assisted in 20 highly publicized suicides since he helped Janet Adkins take her life on June 4, 1990.

Dr. Kevorkian, now facing three trials for violating the state's assisted-suicide ban, has for years defied state lawmakers' and prosecutors' attempts to halt him from playing a role in more suicides. Although the latest ruling may slow efforts to stop him, it remains to be determined by higher courts just what role the state can play in regulating physician-assisted suicides.

``The temporary ban on assisted suicide was designed only as a cooling-off period to study the issue,'' says an aide to state Sen. Frederick Dillingham (R), who authored the ban. Signed into law by Gov. John Engler (R) one year ago, the measure made assisting in a suicide a felony for 15 months while giving the newly created Michigan Commission on Death and Dying a chance to study the issues.

The law was criticized by both sides as ineffectual: Since being ordered to stand trial in assisting in Thomas Hyde's September death, Kevorkian has been charged with attending suicides of Donald O'Keefe and Dr. Ali Khalili. No charges have been filed in Ron Mansur's May suicide.

``No law will prevent people from breaking the law,'' says state Rep. Nick Ciaramitaro (D), a leading opponent of assisted suicide. ``The temporary ban may or may not have worked, but until someone can give us a real good reason why we should allow it, this law will stand to protect the lives of the people of Michigan.''

Mr. Ciaramitaro defends the measure, but admits he is unhappy with the way the commission has conducted its business. The Detroit-area Democrat charges the commission with dwelling on public sentiment about Kevorkian rather than seriously studying the issues, such as how a recent Netherlands law regulating physician-assisted suicide has worked.

MANY in the medical professions are less certain about government involvement. ``I don't know if it's possible to write a law that would regulate this and not have it declared unconstitutional,'' notes Thomas Payne, past president of the Michigan State Medical Society and commission participant. ``Most physicians, while horrified at Dr. Kevorkian's actions, feel this must be something private between a patient and a physician.'' Michigan physicians appear evenly split on the issue. The MSMS has taken a position on assisted suicide that, while not endorsing the practice, stops short of condemning it outright.

That worries Leonard Fleck, a medical ethicist at Michigan State University, who says that although laws like those of the Netherlands, which define when and how physicians can help patients take their lives, aren't perfect, ``...the alternative, of keeping it quiet, could only lead to more moral, medical, and legal abuse.''

``I think [Kevorkian] is beginning to hurt his own cause,'' says Professor Fleck, who is joined in agreement by Howard Simon, executive director for the Michigan chapter of the American Civil Liberties Union. The ACLU has filed briefs on behalf of Kevorkian's constitutional challenge, but has also gone out of its way to distance itself from him. ``The ACLU absolutely thinks this needs to be regulated, but not in this way,'' Mr. Simon says.

Kaufman is expected to decide next month whether his ruling changes the status of the charges Kevorkian is facing. Until then, Kevorkian may remain in an Oakland County jail, where he has spent two weeks on a hunger strike.