The opinion
D. E. Shelton, J.
(concurring in part and dissenting in part). I concur in the opinion of Judge Fitzgerald that 1992 PA 270 , as amended by 1993 PA 3 , violates the one-object provision of our state constitution. I therefore concur in Judge Fitzgerald’s resolution of that issue in each of these three cases. I dissent from that portion of the opinion that dismisses the claims under the Due Process Clause of the United States Constitution and write separately to address that issue.
It is the seminal claim of Ms. Hobbins, Dr. Kevorkian, and the original physician and terminally ill plaintiffs in Hobbins, that a suffering, terminally ill person has a constitutional right to control his or her own body to end his or her suffering by death and with the assistance of a physician. The constitutional claim is derived from the Due Process Clause of the Fourteenth Amendment of the United States Constitution, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law.” For over one hundred years, the United States Supreme Court has held that this clause includes substantive as well as procedural rights. See Mugler v Kansas, 123 US 623 ; 8 S Ct 273 ; 31 L Ed 205 (1887); Poe v Ullman, 367 US 497 ; 81 S Ct 1752 ; 6 L Ed 2d 989 (1961); Daniels v Williams, 474 US 327 ; 106 S Ct 662 ; 88 L Ed 2d 662 (1986); Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US —; 112 S Ct 2791 ; 120 L Ed 2d 674 (1992). In this manner, the constitution protects the fundamental rights of citizens that comprise their "liberty” against invasion by the state.
The scope of these substantive liberties is not limited to those provided by the Bill of Rights or *211 to those rights recognized at the time the clause was enacted. Nor, as urged by appellants, can they be defined by some formula based upon prior "tradition and practices,” although tradition is a factor. The Supreme Court recently addressed this concept in Casey, 505 US —, 112 S Ct 2806 , quoting Poe, supra at 542:
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.”
*212 If the determination of which liberties are included within the meaning of "due process” were delimited by tradition alone, no expansion of liberties in the name of the constitution would ever have been made in the last two centuries. 1
Our judicial history has of course been to the contrary and we must look initially for guidance to the panoply of rights that the Supreme Court has previously defined as individual "liberties” to determine if a personal right to end suffering by hastening one’s own death is rationally within the scope of that constitutional protection. I conclude that it is.
Most of the Supreme Court decisions that de *213 scribe the compass of an individual’s right to "liberty” or freedom from government intrusion have involved personal and family decisions. These cases must be viewed as a developing "rational continuum,” as described by Justice Harlan in Poe, supra at 543 . Taken together, they demonstrate that the Supreme Court has found that the Due Process Clause of the United States Constitution limits the power of the government to intrude into personal decisions involving the basic integrity of an individual’s body or family. Justice O’Connor spoke for the Court in Casey , 505 US —; 112 S Ct 2807 , and described the essence of the cases defining "liberty”:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v Population Services International, 431 US [678, 685; 97 S Ct 2010 ; 52 L Ed 2d 675 (1977)]. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v Baird [ 405 US 438, 453 ; 92 S Ct 1029 ; 31 L Ed 2d 349 (1972)]. Our precedents "have respected the private realm of family life which the state cannot enter.” Prince v Massachusetts, 321 US 158, 166 ; 64 S Ct 438 ; 88 L Ed 645 (1944). These matters, involving 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. At the heart of liberty is the right to deñne one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under compulsion of the State. [Emphasis added.]
In Casey , the Court reaffirmed its decision in Roe v *214 Wade, 410 US 113 ; 93 S Ct 705 ; 35 L Ed 2d 147 (1973), that a woman has the liberty to decide whether to have an abortion before the viability of the fetus. The Court in Roe described this realm of protected personal liberties as the "right of privacy.” In Cruzan v Director, Missouri Dep’t of Health, 497 US 261 ; 110 S Ct 2841 ; 111 L Ed 2d 224 (1990), the Supreme Court addressed the issue that had been posed earlier in In re Quinlan, 70 NJ 10; 355 A2d 647 (1976). In Quinlan , the court found that a severely brain-damaged woman had a right of privacy, protected by the federal constitution, that included her right to terminate the use of equipment that was prolonging her existence. In Cruzan, supra at 278 , the Supreme Court affirmed the principal of Quinlan that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” even if that refusal will result in that person’s death. The Court found that even "the refusal of artificially delivered food and water is encompassed within that liberty interest.” Cruzan, supra at 287 (Justice O’Connor, concurring). As Chief Justice Rehnquist put it, "[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality.” Cruzan, supra at 281 . 2 _
*215 Against this background, we are squarely presented with the question whether the situation of an assisted suicide to a suffering terminally ill person is significantly different from the rights defined by the Supreme Court in those cases. To pose the question makes the answer obvious. If a terminally ill person can lawfully end her life by disconnecting a life-sustaining machine (Cruzan), why cannot she end that same life by connecting a life-ending machine? If a healthy woman can lawfully terminate a healthy fetus (Roe, Casey), does not that same woman who is later terminally and painfully ill have a right to terminate her own life? Does the state have a right to totally prevent a terminally ill person from ending her life by charging the doctor who assists her with a felony punishable by four years’ imprisonment, or even with murder? 3 If a doctor (or even a nurse or medical assistant) can lawfully end a patient’s life *216 by disconnecting a life-sustaining machine (Cruzan), why cannot a doctor do the same by connecting a life-ending machine? If a healthy woman has a right to have a doctor assist (and indeed can only use a doctor to assist) to lawfully terminate a healthy fetus (Roe, Casey), does not that same woman who is later terminally and painfully ill have a right to have a doctor assist to terminate her own life? If ending one’s own life is a lawful act, how can the state punish a doctor who assists in that lawful conduct?
A federal district court in the State of Washington very recently analyzed a similar assisted-suicide statute in that state and similarly concluded that Casey and Cruzan require the courts to find a constitutionally protected liberty interest in the decision of a terminally ill person to hasten death. In Compassion in Dying v Washington, — F Supp —, —, — (WD Wash, May 3, 1994) (Docket No. C94-119R), Judge Rothstein held:
Like the abortion decision, the decision of a terminally ill person to end his or her life "involv[es] the most intimate and personal choices a person may make in a lifetime” and constitutes a "choice[| central to personal dignity and autonomy.”
and:
There is no more profoundly personal decision, nor one which is closer to the heart of personal liberty, than the choice which a terminally ill person makes to end his or her suffering and hasten an inevitable death. From a constitutional *217 perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult.
The majority opinion on this issue attempts to draw such a distinction from Cruzan on the basis that "[t]he right recognized in Cruzan was only to refuse unwanted medical treatment and passively die a natural death, not to actively intervene so as to hasten one’s death.” Ante at 207-208. This is apparent acceptance of the state’s suggestion that it is the active, rather than passive, nature of the assistance here that extinguishes the right of the suffering patient. Aside from the serious question whether starving Ms. Cruzan to death was "natural,” the best reply to this suggestion is perhaps found in Justice Scalia’s concurrence in Cruzan, supra at 296-297 , quoting 4 Blackstone, Commentaries, p 189:
Suicide, it is said, consists of an affirmative act to end one’s life; refusing treatment is not an affirmative act "causing” death, but merely a passive acceptance of the natural process of dying. ... It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. . . .
. . . Starving oneself to death is no different from putting a gun to one’s temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide’s conscious decision to "pu[t] an end to his own existence.”
If the active-passive distinction has any meaning, *218 it would not be in the situations presented here. The third person who turns off the life-supporting machine must perforce affirmatively do so. Here, the assistant places the means within the control of the patient and allows the patient to take the final active step.
On a far less legalistic basis, the honest intention of the assisting person in both instances is the same. When the medical person turned off the life supporting machinery to Karen Quinlan, that person intended and expected the patient to die just as surely as did Dr. Kevorkian when he showed his suffering patients how to activate his lethal devices and placed the devices within their control. If anything, the intent is less onerous in these instances because, at least as compared to Ms. Quinlan and other incompetent patients, these patients made the final personal decision and took the final personal action for themselves.
It is also suggested by the state that it is the involvement of another person in assisting the death that makes the situation different. Such a contention ignores the clear import of Roe, Casey, Quinlan, Cruzan, and all the other due process cases involving medical procedures. A woman’s right to have an abortion involves, by necessity and for safety, the assistance of another person. Similarly, it is obvious that neither Ms. Quinlan nor Ms. Cruzan was going to be able to terminate their life-support equipment without the assistance of another person. Indeed, the availability of that assistance was what those cases were, and what these cases are, ultimately about. Again, if anything, the situations here involve less immediate assistance because the patients personally activated the equipment that caused their death.
In the end, as far as the liberty interest of the patient is concerned, the truth is that there is *219 simply no rational distinction between assisting the termination of life support to a suffering terminally ill patient and assisting the administration of life-ending measures to a suffering terminally ill patient.
Aside from a review of the cases in which the Supreme Court has previously defined the rights and liberties protected by constitutional due process, we must decide if the right to end personal pain and suffering is "implicit in the concept of ordered liberty.” Liberty in the context of our constitution means the freedom of an individual to determine matters about himself for himself and not have others, even if they are in the majority and thus comprise the government, force their will upon the individual. The basic concept of self-determination and personal autonomy is the central point of our constitutional structure. In matters that relate solely to ourselves, we alone are free to decide our personal fate and neither the mob nor the government may take that away from us. As the Supreme Court said over one hundred years ago in Union Pacific R Co v Botsford, 141 US 250, 251 ; 11 S Ct 1000 ; 35 L Ed 734 (1891):
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 restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, "The right to one’s person may be said to be a right of complete immunity: to be let alone.” Cooley on Torts, 29.
In the context of these cases, the essence of self-determination is the decision whether to continue to endure insufferable pain. The power to determine the limits to which one can endure pain and *220 agony is certainly intrinsic to this basic concept of personal autonomy. It is difficult to imagine a more personal choice than whether to continue life when faced with a terminal and excruciatingly painful condition. The poignant truth of Justice O’Connor’s observation in Casey, supra, makes it worthy of repetition:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. [Casey, 505 US —; 112 S Ct 2807 .]
The real issue in these cases is not whether there is some broad "right to commit suicide” but, rather, whether an individual, and not the government, has the right of choice between enduring pain and suffering or ending that suffering with death. Stated conversely, the issue is whether our government has the right to force us, against our will, to live out a life of pain and suffering when we have done no wrong to anyone else. I conclude, without hesitation, that our constitution preserves and guarantees our right to make that decision for ourselves and that it forbids the government from taking that choice from us when we have done no wrong. There could be no more basic right in our ordered concept of liberty.
This conclusion, however, does not mean that the state máy not regulate and control that choice. As the Court said in Cruzan, supra at 279 , quoting Youngberg v Romeo, 457 US 307, 321 ; 102 S Ct 2452 ; 73 L Ed 2d 28 (1982):
But determining that a person has a "liberty interest” under the Due Process Clause does not end the inquiry; "whether respondent’s constitutional rights have been violated must be deter *221 mined by balancing his liberty interests against the relevant state interests.”
Certainly where the state has a legitimate interest in such matters as the preservation of life and family, the Court has indicated that it may fetter individual choice in those areas with a variety of controls and impediments designed to ensure that the choice is voluntarily and knowingly made and that it is implemented under safe and reasonable conditions. Indeed, in Cruzan , the Court upheld Missouri’s insistence upon a requirement of clear and convincing evidence to establish the patient’s true intent. And, in Webster v Reproductive Health Services, 492 US 490 ; 109 S Ct 3040 ; 106 L Ed 2d 410 (1989), as well as Casey, supra, the Court clearly indicated that it would allow the states considerable latitude in controlling and regulating the choice of a woman to have an abortion.
The State of Michigan clearly has public interests in the decision of a suffering terminally ill patient to end that suffering with death. In addition to its generally recognized interest in the preservation of life, the state may legitimately be concerned, for example, that the patient be given ample opportunity for medical consultation about the nature and permanence of the underlying condition, that the patient has received available medical and psychiatric assistance, or that the procedure is performed under proper medical conditions by an appropriate medical assistant. Indeed, this is an area of medical concern where the state clearly should be involved to ensure the public welfare.
But the extent to which the state may fetter or control the patient’s liberty to choose death is not before us. If the Michigan assisted suicide statute "has the purpose or effect of placing a substantial *222 obstacle in the path” of the exercise of a constitutionally protected liberty interest, the statute violates due process. Casey , 505 US —; 112 S Ct 2820 . In this statute, the state has chosen to do virtually the only thing that the constitution does not allow: the absolute prohibition of the making of that personal choice by criminalizing it. The appellants assert that this is a permissible means of "regulating” a personal liberty interest because of the overwhelming interest of the state. The argument stems from what some have characterized as the "slippery slope” fear that anything less than a total prohibition of assisted suicide will eventually result in the uncontrolled and irresponsible taking of a multitude of lives in situations far less compelling than the individuals involved in these cases. The argument is unsound. If a state can "regulate” such a personal choice by completely prohibiting it, there would be no meaningful choice in the first instance. As stated in Compassion in Dying v Washington, supra:
But despite the general validity of the State’s concern, the slippery slope argument cannot prevail in this instance. It may be difficult to define the kinds of assistance which are necessary and should be permitted in order to honor terminally ill patients’ protected liberty interest in hastening their death. However, that is not a sufficient excuse for precluding entirely the exercise of a constitutional right. The court has no doubt that the legislature can devise regulations which will define the appropriate boundaries of physician-assisted suicide for terminally ill individuals, and at the same time give due recognition to the important public policy concerns regarding the prevention of suicide.
We need not speculate here about the extent to which the state may regulate the liberty involved *223 here. We need only say, and should say, that the state may not completely outlaw it as this statute purports to do. This government may not totally take from us our inherent right to determine not only who we are but, even more essentially, whether we are.
The conclusion that "the right to commit suicide,” ante at 208, is not deeply rooted in this nation’s traditions certainly is not therefore dispositive. More importantly, the statement that "[t]here is ... no significant support for the proposition that a right to commit suicide is rooted at all in our nation’s history,” ante at 208, is factually incorrect. Suicides by terminally ill persons have occurred throughout our history and indeed have often taken place with the quiet and unpublicized assistance of treating physicians and family members. The following was noted in Quill, Cassel & Meier, Care of the hopelessly ill, Proposed clinical criteria for physician-assisted suicide, The New England Journal of Medicine (November 5,1992) 1380, 1381:
It is not known how widespread physician-assisted suicide currently is in the United States, or how frequently patients’ requests are turned down by physicians. Approximately 6000 deaths per day in the United States are said to be in some way planned or indirectly assisted, probably through the "double effect” of pain-relieving medications that may at the same time hasten death or the discontinuation of or failure to start potentially life-prolonging treatments. From 3 to 37 percent of physicians responding to anonymous surveys reported secretly taking active steps to hasten a patient’s death, but these survey data were flawed by low response rates and poor design. Every public-opinion survey taken over the past 40 years has shown support by a majority of Americans for the idea of physician-assisted death for the terminally ill.
Additionally, the issue here is not whether a healthy person should be granted an unrestricted "right to commit suicide” but rather the ability of a suffering terminally ill patient to decide to end that suffering with death and to have a doctor assist in implementing that decision.
The Cruzan decision followed a number of state court decisions in addition to Quinlan . Some of those opinions offer insights that are helpful. In Bouvia v Superior Court, 179 Cal App 3d 1127, 1147; 225 Cal Rptr 297 (1986), Justice Compton stated in his concurring opinion:
Elizabeth apparently has made a conscious and informed choice that she prefers death to continued existence in her helpless and, to her, intolerable condition. I believe she has an absolute right to effectuate that decision. This state and the medical profession instead of frustrating her desire, should be attempting to relieve her suffering by permitting and in fact assisting her to die with ease and dignity. The fact that she is forced to suffer the ordeal of self-starvation to achieve her objective is in itself inhumane.
The right to die is an integral part of our right to control our *215 own destinies so long as the rights of others are not affected. That right should, in my opinion, include the ability to enlist assistance from others, including the medical profession, in making death as painless and quick as possible.
And in McKay v Bergstedt, 106 Nev 808, 818, 822; 801 P2d 617 (1990), the Nevada Supreme Court stated:
[A]t some point in the life of a competent adult patient, the present or prospective quality of life may be so dismal that the right of the individual to refuse treatment or elect a discontinuance of artificial life support must prevail over the interest of the State in preserving life. In instances where the prospects for a life of quality are smothered by physical pain and suffering, only the sufferer can determine the value of continuing mortality. . . .
. . . The State’s interest in the preservation of life relates to meaningful life.
In a separate opinion in People v Kevorkian, Docket No. 154740, Judges Fitzgerald and Taylor have held that Dr. Kevorkian may be charged with the crime of murder for assisting in a suicide before the enactment of the statute that is at issue in these cases. Although the majority has chosen to separate the opinions, these cases were consolidated because they all pose the same constitutional issue. I have *216 dissented from the opinion in Docket No. 154740 primarily on the basis of the reasons set forth in my opinion in these cases. It seems self-evident that if the state may not constitutionally criminalize conduct with a felony punishable by four years’ imprisonment, it clearly may not do so with a murder charge.