Opposition Brief — Vacco v. Quill

Supreme Court of the United States

OCTOBER TERM 1996

DENNIS C. VACCO, Attorney General of the State of New

York; GEORGE E. PATAKI, Governor of the State of New

York; and ROBERT M. MORGENTHAU, District Attorney

of New York County,

Petitioners,

Vv.

TIMOTHY E. QUILL, M.D.; SAMUEL KLAGSBRUN, M_D.:

and HOWARD A. GROSSMAN, M_D.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

ee _____

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

————=I=—>)——_——==qaqamRjDD™"=—=="RNHU””_™__—_—_—_—_—_—=—————

Kathryn L. Tucker Carla A. Kerr

Counsel of Record Reid A. Muoio

David J. Burman HUGHES HUBBARD & REED

Kari Anne Smith One Battery Park Plaza

PERKINS COIE New York, NY 10004

1201 Third Avenue, 40th Fl. —- (212) 837-6000

Seattle, WA 98101-3099

(206) 583-8888

Attorneys for Respondents

————————————————————————————E—E—E—E—E—E_——______

C

QUESTION PRESENTED

Should this Court grant certiorari to decide whether the

Fourteenth Amendment’s Equal Protection Clause is violated

by New York laws that permit only one class of mentally

competent, terminally ill patients to choose to hasten death

with medical assistaiice — those on life support — when

there is no conflict among federal courts or between a federal

court and a state court of last resort on this issue, when the

law continues to be developed by the lower courts, and when

the court below properly applied equal protection principles?

iN

CONTENTS

QUESTION PRESENTED

STATEMENT OF THE CASE

FACTUAL BACKGROUND

| RESPONDENT DOCTORS AND THEIR

PATIENTS

Il THE ASSISTANCE SOUGHT BELOW VS

THE ASSISTANCE NEW YORK PERMITS

lil THE LOWER COURTS’ DECISIONS

REASONS FOR DENYING THE PETITION

| THERE IS NO CONFLICT AMONG THE

LOWER COURTS

A There Is No Conflict Between Federal

Circuits

B_ There Is No Conflict Between a Federal

Court and a State Court of Last Resort

It REVIEW BY THIS COURT AT THIS TIME

IS PREMATURE .

ill THE SECOND CIRCUIT CORRECTLY

DECIDED THAT NEW YORK PENAL LAW

SECTIONS 125.15(3) AND 120 30 DENY

A. New York Law Grants Broad Patient

Autonomy Over End-of-Life Decisions

10

“**

| Mental Competence

2 Terminal Iliness .

3. +Phvsician Assistance in the Form of

Prese iptions

4 Patient Choice

§ Self-Administration of Drugs

6 Hastening One’s Own Death

B_ The Challenged Laws Deny Equal

Protection

CONCLUSION

13

14

1S

16

17

19

21

22

TABLE OF AUTHORITIES

Page

Cases

Brophy v. New England Sinai Hospital, Inc., 497

N E 2d 626 (Mass. 1986) | 18

Califorma ex. rel. Cooper v. Mitchell Bros.’

Santa Ana Theater, 454 U § 90 (1981) 9

City of Cleburne v. Cleburne Living Ctr., Inc..

473 US 432(1985) 21

Compassion In Dying v. Washington, 79 F 3d

790 (9th Cir 1996) (en banc) . —< ee

Cruzan v. Director, Mo. Rencthtnd Nana 497

US. 261(1990).. 17,19

Delio v. Westchester County Medical Ctr., 516

N Y S.2d677(N Y App Div 1983). 16

Doe v. Bolton, 410 US. 179 (1973). | 3

Erickson v. Dilgard, 252 N Y § 2d 705 (N.Y

Sup Ct. 1962)... si are aaa | 15

FS. Royster Guano Co. v. Psacciat 253 US

I tcc svccessnediececacciontnincenionnesil sind 21

Fosmire v. Nicoleau, 551 N E.2d 77 (N.Y. 1990) 15, 20, 21

Gilliard v. Mississippi, 464 U S. 867 (1983)... 9

Granfinanciera, S.A. ee re 33

EE Pee ka

Hobbins v. Michigan, No 94 (Oct. Term 1994)...

Maryland v. Baltimore Radio Show, Inc., 338

US 912 (1950). stad tiedsialead

McCray v. New York, 461 U.S. 961 (1983) .

Mcelver v. Krischer, CL96-1504AF, Palm Beach

Circuit Court, 15th Judicial Circuit, Florida

People v. Kevorkian, 527 NW 2d 714 (Mich

1994), cert. denied, 115 S Ct. 1795 (1995)

Plyler v. Doe, 457 U § 202 (1982)

Quill v. Vacco, 80 F.3d 716 (2d Cir 1996)

Rivers v. Katz, 495 N_E.2d 337(N Y. 1986)

Romer v. Evans, 64 U.S LW. 4353, 1996 US

LEXIS 3245 (May 20, 1996)

Schloendorff v. Society of N.Y. Hosp., 105 NE

92(NY 1914) |

Superintendent of Belchertown State Sch. v.

Saikewicz, 370 N E 2d 417 (Mass. 1977).

Umited States v. Carver, 260 US 482 (1923)

Washington v. Yakima Indian Nation, 439 U §

463 (1979)

Statutes

es He No osccccniciiinsccesvcbcccnnniiiobeends |

1996 Mi ALS 193

10

10

“ae

3 4 SE ee 8

i LE TE

Mich. Comp. Laws § 700 496(9)(e) ae

Mich. Comp. Laws § 752.1027 ae

N Y_ Penal Law § 120 30 2, 10, 22

N Y Penal Law § 125 15(3) | 2, 10, 22

N.Y. Pub. Health Law § 2504(1). 15

N Y Pub. Health Law § 2803-c(3) 16

N_Y. Pub. Health Law § 2961(23) 414

N_Y. Pub. Health Law § 2961(3) . 13

N.Y Pub. Health Law § 2963(1) 13

N.Y. Pub. Health Law § 2963(3)(a) . 14

N.Y. Pub. Health Law § 2964(1) 11

N.Y. Pub. Health Law § 2964(2) a G

N_Y. Pub Health Law § 296473). 11

NY Pub. Health Law § 2965(3)(a) 16

N.Y. Pub. Health Law § 2965(3)(chiv). heillaees kee 1]

N_Y. Pub. Health Law § 2973(1), nn... 16

N_Y. Pub. Health Law § 2976. nn... we

N_Y. Pub. Health Law § 2976(1). sibiaaticiomibiamiiaiilt tied 16

vil

N Y Pub. Health Law § 2980(3)

N Y Pub Health Law § 2981(1)(b)

N Y Pub Health Law § 2982(2)

Other Authorities

Howard Brody, Assisted Death A Compassionate

Response to a Medical Failure, 327 New Eng J

Med. 1384 (1992)

Helga Kuhse, 7he Case for Active Voluntary

k-uthanasia, \4 Law, Med & Health Care 145

(1986)

Betty Rollin, Last Wish (1985)

13

19

eeenenee

- ae = ee

—————————

IN THE

Supreme Court of the United States

OCTOBER TERM 1996

No 95-1858

DENNIS C_ VACCO, Attorney General of the State of New

York, GEORGE E PATAKI, Governor of the State of New

York, and ROBERT M MORGENTHAU, District Attorney of

New York County,

Petitioners.

Vv

TIMOTHY E. Quit, MD , SAMUEL KLAGSBRUN, M D . and

HOWARD A GROSSMAN,MD.

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUS

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

This case challenges New York's statutes prohibiting

assisted suicide as violative of the Fourteenth Amendment's

guarantees of equal protection and liberty Respondents assert

that mentally competent, terminally ill adults have a protected

liberty interest in choosing to hasten death in a certain,

humane and dignified manner This right necessarily entails

medical assistance Further, respondents allege that the

challenged New York laws, which prohibit physicians from

prescribing medications that can be self-administered by

mentally competent, terminally ill citizens of New York who

wish to hasten impending death, but permit physicians to

assist New York citizens in their choice to hasten death if they

are dependent upon life support, violate the Equal Protection

Clause of the Fourteenth Amendment

FACTUAL BACKGROUND

I. RESPONDENT DOCTORS AND THEIR PATIENTS

Respondents Quill, Klagsbrun, and Grossman are New

York doctors who regularly care for terminally ill patients

Each of these doctors encounters cases in which his profes-

sional responsibilities dictate that he honor competent,

terminally ill patients’ requests for prescription medication to

hasten death

It is my professionali judgment that the decision

of such a patient to shorten the period of suf-

fering before inevitable death can be rational,

and on rare occasion my professional obliga-

tion to relieve suffering would dictate that |

assist such a patient in hastening his or her

death when palliative care becomes ineffective

or unacceptable if the patient so chooses

JA 39 (Declaration of Dr Quill); accord JA 59

(Dr. Klagsbrun), JA 73 (Dr. Grossman).

Each of these doctors has refused to honor such requests

for fear of criminal prosecution under sections 125.15(3) and

120.30 of the New York Penal Law. These sections criminal-

ize the assistance of a physician in committing or attempting

suicide, although neither suicide nor attempted suicide 1s

criminalized, and the term “suicide” is not defined Dr. Quill

was investigated by a New York grand jury for one instance

where he did render assistance JA 39-42.

The original plaintiffs included three individuals then in the

final stages of terminal illness Jane Doe, George A. Kingsley,

and William A. Barth, Ms. Doe was a 76-year-old retired

physical education instructor who was being strangled to

death by a large cancerous tumor that had wrapped around

her right carotid artery and was slowly collapsing her

esophagus. JA 12, 93-95. Mr Kingsley was a 48-year-old

publishing executive suffering from a number of AIDS-related

diseases, including cryptosporidiosis (a parasitic infection

causing severe fevers and diarrhea), cytomegalovirus retinitis

(a virus that attacks the retina and causes blindness), and

toxoplasmosis (a parasitic infection causing lesions on the

brain). JA 12, 86-88. Mr. Barth was a 28-year-old former

fashion editor suffering from several AIDS-related diseases,

including Kaposi’s sarcoma skin lesions, cytomegalovirus of

the stomach and colon, microsporidiosis, AIDS-related

pneumonia, and cryptosporidiosis. JA 13, 82-84

Ms. Doe, Mr. Kingsley, and Mr. Barth — mentally compe-

tent adults in the final stages of terminal illness — sought to

alleviate their suffering and hasten death by self-administering

drugs prescribed by their physicians. JA 12-13, 84-85, 88-90,

96-97. They died before the district court issued its ruling.

Petition for Writ of Certiorari at 3 n.|

Respondents continue to assert the constitutional claims of

their other terminally ill patients. JA 15-17, 141-43, 154-56.

See Doe v. Bolton, 410 U.S. 179, 187-89 (1973).

ll. THE ASSISTANCE SOUGHT BELOW VS. THE

ASSISTANCE NEW YORK PERMITS

Dr Quill has substantial experience assisting patients to die

through disconnection of life support and infusion with

medications, a means of hastening death explicitly authorized

by New York law. These authorized practices are indistin-

guishable from the class of physician-assisted suicides

prohibited by New York's penal statute. JA 104, 107-08, 116.

First, both begin with careful clinical assessment of the

patient’s prognosis, mental competence and treatment

alternatives

The removal of a life support system that di-

rectly results in the patient’s death requires the

direct involvement by the doctor, as well as

other medical personnel. When such patients

are mentally competent, they are consciously

choosing death as preferable to life under the

circumstances that they are forced to live.

Their doctors do a careful clinical assessment,

including a full exploration of the patient’s

prognosis, mental competence to make such

decisions, and the treatment alternatives to

stopping treatment

* * *

Once [the patients] are fully informed of their

alternatives, and are sure they want the respira-

tor removed even if it will result in their death,

they then have the nght to have treatment dis-

continued

JA 104-05. Doctors are able to determine whether a patient's

request to hasten death is rational and competent, or instead is

motivated by depression or other mental illness or insanity,

and New York practitioners currently make these determina-

tions with respect to orders not to resuscitate and refusal of

life-sustaining treatment. JA 114, 116

Second, like legally prescribed methods, legally proscribed

methods require affirmative steps by the patient’s doctor

At a practical level, the doctor must take sev-

eral actions to carry out the patient’s desire.

The doctor must turn off the breathing ma-

chine, disconnect the machine from the tube

that goes to the patient’s lungs, and then re-

move the tube from the patient’s lungs

These patients must be carefully monitored

after the respirator is withdrawn

JA 105 (emphasis added)

Third, both methods involve prescribing medication that

hastens death When a respirator is removed, “the doctor

usually must also give morphine or barbiturates to ameliorate

the patient’s sensation of suffocation” /d When hydration

and nutrition devices are withdrawn, powerful sedatives are

administered. JA 106. Under either circumstance, the

medications can and do contribute to death.

These medications [morphine and barbiturates]

must often be used in doses that contribute to

the patient’s death by suppressing their respira-

tory drive

JA 105. See JA 106 (patients treated “with sedatives that

hasten the patient’s death”).

iil. THE LOWER COURTS’ DECISIONS

Respondents concur in the third and fourth paragraphs of

petitioners’ Statement of the Case, describing the rulings

below.

REASONS FOR DENYING THE PETITION

l. THERE IS NO CONFLICT AMONG THE LOWER

COURTS

A. There Is No Conflict Between Federal Circuits

The Second Circuit unanimously ruled that New York's

law prohibiting assisted suicide violates the Equal Protection

Clause because it “does not treat equally all competent

persons who are in the final stages of fatal illness and wish to

hasten their deaths,” and distinctions made with respect to

such persons “do not further any legitimate state purpose ”

Quill v. Vacco, 80 F 3d 716, 727 (2d Cir. 1996)

The reasoning of the Ninth Circuit, the only other federal

appellate court to consider the matter, is squarely consistent

with that of the Second Circuit The Ninth Circuit concluded

that there is no “ethical or constitutionally cognizable” basis

upon which to distinguish between physician assistance in

hastening death by the act of prescribing medications for that

purpose and the act of withdrawing or withholding life

support. Compassion In Dying v. Washington, 79 F 3d 790,

821-24 (9th Cir 1996) (en banc) Thus, there is no conflict

among the fede~2! appellate courts that have considered the

issue of physician assistance in dying

Recognizing this, petitioners instead assert that the Second

Circuit decision is “fundamentally at odds” with that of the

Ninth Circuit Petition for Writ of Certiorari at 15. The

Second Circuit’s reasoning is “at odds” with the Ninth

Circuit’s only insofar as the Second Circuit felt constrained to

recognize previously unidentified liberty interests. Quill, 80

F 3d at 723-25 To the extent there is a conflict between the

Second Circuit and the Ninth Circuit on the liberty claim, that

is not the basis of petitioners’ request for relief. Petitioners

prevailed on that issue in the ruling they seek to bring before

this Court for review. Moreover, petitioners’ statement of the

Questions Presented makes clear that they seek review only of

the equal protection analysis.

B. There Is No Conflict Between a Federal Court and a

State Court of Last Resort

Petitioners’ representation that a conflict exists between

the Second Circuit decision and that of a state court of last

resort also is inaccurate The Michigan Supreme Court, which

reviewed Michigan’s statute prohibiting physician-assisted

suicide, was presented only with a Fourteenth Amendment

liberty claim, and its holding is limited to that claim People v.

Kevorkian, 527 N W 2d 714, 724, 733 (Mich 1994) (“We

would hold that the Due Process Clause of the federal

constitution does not encompass a fundamental right to

commit suicide, with or without assistance, and regardless of

whether the would-be assistant is a physician”), cert. denied,

115 S. Ct. 1795 (1995). The court’s footnote reference to the

Equal Protection Clause, cited by petitioners at page 15,

comprises the Michigan Supreme Court’s entire equal

protection discussion and is dicta '

Moreover, the Second Circuit’s equal protection ruling is

based upon a finding that the State of New York, in both

Statutory and common law, has disavowed an absolute

commitment to preserving life Quill, 80 F.3d at 727-29

Thus, the ruling is based on the particulars of New York's

Statutory and common law and cannot give rise to a conflict,

' In tacit acknowledgment of the absence of any truc conflict between

the Second Circuit and the Michigan Supreme Court, petitioners cite to a

Michigan state trial court decision in which petitioners claim the equal

protection claim was “squarely and fully presented.” Petition for Writ of

Certiorari at 15 n.6. Even if correct, a trial court decision does not create

a conflict worthy of this Court's attention Supreme Court Rule 10 1(a)

even if the Michigan Supreme Court had been presented with

an equal protection claim based upon Michigan statutory and

common law. The Second Circuit decision turns entirely upon

the law of New York and how that state has chosen to

empower its citizens in making end-of-life decisions

At the time the Michigan Supreme Court ruled, Michigan's

statutory law was less protective of patient choice than that of

New York For instance, Michigan had not yet enacted a

measure permitting the execution of a “do-not-resuscitate

order.” Even Michigan’s 1996 law permitting such orders

imposes more obstacles to patient choice than the analogous

law in New York Compare 1996 Mi. ALS 193, 1996 Mi

PA. 193, 1995 Mi. SB 452 § 2(e) (requiring execution of

order in writing and permitting compliance with a patient's

order only “in a setting outside of a hospital, a nursing home,

or a mental health facility’) with N.Y Pub Health Law

§ 2964(2) (permitting consent to order orally during hospitali-

zation, or in writing prior to or during hospitalization)

Michigan’s statute governing health care proxies is also more

onerous than that of New York. Compare Mich Comp Laws

§ 700.496(9)(e) (requiring “clear and convincing” expression

of patient’s desire to forego life sustaining medical treatment)

with N.Y. Pub. Health Law § 2982(2) (requiring only that

patient’s wishes regarding artificial nutrition and hydration be

reasonably known or knowable) Thus, were an equal

protection analysis conducted of Michigan's statute prohibit-

ing assisted suicide, the conclusion might have been different

than that reached by the Second Circuit with respect to New

York’s law

Finally, the statute reviewed by the Michigan Supreme

Court has expired by its own terms. Mich Comp Laws

§ 752.1027. Thus, even if the Michigan Supreme Court's

ruling did present a conflict, that conflict has evaporated. This

was recognized by the State of Michigan in its opposition to a

petition for writ of certiorari. Hobbins v. Michigan, No 94-

1473 (Oct Term 1994), Brief for Respondent in Opposition

at 13 (“The challenged statute no longer exists In these

circumstances, an order declaring its unconstitutionality and

enjoining its enforcement would be meaningless ")

Il. REVIEW BY THIS COURT AT THIS TIME IS

PREMATURE

Issues surrounding patient choice and physician assistance

in hastening death continue to be reviewed by lower courts

For example, respondents are aware that at least one case

raising similar issues 1s pending Mc/ver v. Krischer, CL96-

1SO4AF, Palm Beach Circuit Court, 15th Judicial Circuit,

Florida. This suggests that this Court should defer considering

these issues at this time

Sound principles of judicial restraint also counsel against

granting review at this time See, e.g, McCray v. New York,

461 US. 961, 963 (1983) (certiorari denied where issue

requires “further study” in lower courts “before it is

addressed by this Court”), Gilliard v. Mississippi, 464 U S

867, 869 (1983) (Marshall, J , dissent from demial of certiorari

to “those of my colleagues who agree with me that these

cases present important constitutional questions, but believe

that this Court should postpone consideration of the issue

until more state supreme courts and federal circuits have

experimented with substantive and procedural solutions to the

problem”), California ex. rel. Cooper v. Mitchell Bros.’

Santa Ana Theater, 454 US 90, 98 (1981) (Stevens, J,

dissenting from grant of certiorari on grounds of traditional

practice of avoiding premature adjudication of constitutional

principles) ?

? Denial of review at this ume, of course, would suggest no expres-

sion upon the merits of the case See, eg . Maryland v Baltimore Radio

10

Ill. THE SECOND CIRCUIT CORRECTLY DECIDED

THAT NEW YORK PENAL LAW SECTIONS

125.15(3) AND 120.30 DENY EQUAL PROTECTION

In addition to the lack of conflict and prematurity factors

disfavoring review at this time, review is also unnecessary

because the decision below is correct

This petition is limited to challenging the application of the

rational basis standard in an equal protection analysis of New

York’s laws governing end-of-life decisions * New York law

grants a high degree of patient autonomy over end-of-life

decisions For example, New York permits otherwise healthy

people with life expectancies of many decades to refuse life-

saving treatment and allows patients to delegate by proxy to

others a decision to bring about their death by altering their

medical treatment. The record here shows no rational basis

for distinguishing the cases of mentally competent, terminally

ill patients who seek to end their suffering through

self-administered prescription drugs from all the other cases in

which New York statutory and common law grants patient

autonomy over end-of-life decisions Petitioners’ argument

that the writing of a prescription constitutes “active”

physician assistance as compared to the “passive” posture

involved in withdrawing treatment, such as a respirator or

feeding tube, is not supported by the record In fact, the

withdrawal of life support typically involves a whole course of

treatment, sometimes lasting days or weeks, which includes

the administration of medications, such as morphine, that

Show, Inc, 338 U.S. 912, 919 (1950), United States v. Carver, 260 US

482, 490 (1923)

3 To the extent that the Second Circus erred in its analysis, it was by

utilizing the lowest standard of review, rather than the heightened

standard of review appropriate given the existence of a protected liberty

interest.

themselves hasten death In these circumstances, the petition

presents no question warranting this Court's review

A. New York Law Grants Broad Patient Autonomy

New York’s statutory and common law already expressly

authorizes patients to make end-of-life decisions with

physician assistance in circumstances far less compelling than

those here

New York statutes concerning orders not to resuscitate

and health care proxies specifically permit patients to direct

their physicians to assist them to die The New York Public

Health Law pertaining to orders not to resuscitate provides

that a patient's attending physician must either issue the order

or object and transfer the patient to another physician, or

submit the matter to dispute mediation N Y Pub. Health Law

§ 2964(2). The patient need not be terminally ill in order to

request an order not to resuscitate /d §§ 2964(1), 2964(3).

When a surrogate is making medical decisions for a patient

lacking capacity, the surrogate may request an order not to

resuscitate not only if the patient is terminally ill, but also if

the patient is permanently unconscious, if resuscitation would

be medically futile, or if “resuscitation would impose an

extraordinary burden on the patient in light of the patient's

medical condition and the expected outcome of resuscitation

for the patient” /d § 2965(3)(c)iv). Section 2976 of the

New York Public Health Law suggests that state courts may

issue Orders not to resuscitate even in circumstances other

than those explicitly authorized by the statute

Under provisions pertaining to health care proxies, a com-

petent principal may appoint a health care agent to make

medical decisions for the principal in the event of incapacity

according to the “principal’s wishes” or the “principal's best

interests.” /d §§ 2981(1)(b), 2982(2) The agent may make

12

all decisions regarding life-sustaining treatment except those

hydration and nutrition. There is no requirement that an adult

be terminally ill when the decision to request assistance to die

is embodied in the proxy or implemented by the agent.

In addition to the rights granted in these statutes, New

York common law grants broad rights of patient autonomy.

The New York Court of Appeals, quoting Justice Cardozo’s

view that every human being “‘of adult years and sound mind

has a right to determine what shall be done with his own

body,’” has held

In our system of a free government, where

notions of individual autonomy and free choice

are cherished, if is the individual who must

have the final say in respect to decisions re-

garding his medical treatment in order fo in-

sure that the greatest possible protection is

accorded his autonomy and freedom from un-

wanted interference with the furtherance of his

own desires

Rivers v. Katz, 495 NE2d 337, 341 (NY. 1986)

(recognizing the right of patients to refuse psychotropic

medication) (emphasis added) (quoting Schloendorff v.

Society of N.Y. Hosp., 10S NE 92,93 (N.Y 1914)

The patients for whose benefit this action was brought are

all

(1) mentally competent

(2) terminally ill patients

(3) wishing to receive physician assistance through the

prescription of drugs that

(4) the patients may choose

13

(5S) to self-administer

(6) to hasten their own deaths

An analysis of how New York has treated these character-

istics in other contexts shows that there is no basis for

distinguishing the patients herein from other New York

citizens who are granted autonomy over end-of-life decisions

1. Mental Competence

New York's Public Health Law affirmatively presumes that

patients have the mental capacity to make end-of-life

decisions. With respect to orders not to resuscitate, the Public

Health Law provides that every adult “shall be presumed” to

have capacity to make a decision regarding resuscitation.

NY. Pub. Health Law § 2963(1) A patient has capacity so

long as he or she has

the ability to understand and appreciate the

nature and consequences of an order not to re-

suscitate, including the benefits and disadvan-

tages of such an order, and to reach an in-

formed decision regarding the order

Id. § 2961(3). Similarly, an adult “shall be presumed compe-

tent” to make a health care proxy. /d. § 2980(3).

Petitioners seek to justify the Penal Law subsections at

issue here by presuming that terminally ill patients are

depressed or vulnerable. This is an impermissible presumption

under equal protection analysis New York otherwise erects

very high barriers to the determination that patients are

anything other than fully competent. The statutes pertaining to

orders not to resuscitate do not permit a presumption of lack

of capacity. See id. § 2963(1). Indeed, while one physician is

required to confirm that an adult has capacity to consent to an

14

order, two physicians must concur in a determination that an

adult lacks capacity. Jd. § 2963(3)a)

The claim that respondents’ patients are any more subject

to pressure from “uncaring relatives” or physicians “with

their own agendas” than the patients empowered by the

statutes governing orders not to resuscitate and health care

proxies has no support in the record, the disparity in protec-

tions afforded these two categories of patients is insupport-

able under the Equal Protection Clause

In light of current New York law that presumes patient

capacity to make end-of-life decisions, the Second Circuit

correctly concluded that the State has no rational basis to

presume that the mentally competent patients in question here

lack capacity to make end-of-life decisions.

2. Terminal Iliness

Petitioners’ argument that the Second Circuit left unan-

swered “the question of whether ‘terminal illness’ is always

readily and accurately identifiable and precisely when, and by

what definition a patient should be deemed terminally ill,”

Petition for Writ of Certiorari at 12, is nonsense given that

New York has already defined “terminal condition” by

statute * Moreover, the Second Circuit recognized that “New

York may define [terminal] illness with more particularity ”

Quill, 80 F.3d at 731

* The Public Health Law defines a “terminal condition” as “an

illness or injury from which there is no recovery, and which reasonably

can be expected to cause death within one year.” N.Y. Pub. Health Law

§ 2961(23). Federal health insurance laws define the term similarly. See,

e.g..42 USC. 1395x(dd\(3)(A).

15

New York itself places the very real rights of patients

above all abstract “state interests” The right to hasten death

in New York extends even to individuals who may fully

recuperate following treatment, a significantly less compelling

circumstance than that in which respondents’ patients find

themselves. For instance, a patient in New York may consent

to an invasive medical procedure, be capable of full and

immediate recuperation, and still have the common law right

to refuse routine treatment necessary for survival °

3. Physician Assistance in the Form of

Prescriptions

Under New York law, medical advice and prescriptions

constitute medical services to which a mentally competent,

adult patient may consent, and “the consent of no other

person shall be necessary.”” NY. Pub. Health Law § 2504(1)

(emphasis added). Patients in New York hospitals are

protected as follows.

Every patient’s civil and religious liberties,

including the right to independent personal

decisions and knowledge of available choices,

shall not be infringed and the facility shall en-

> The New York Court of Appeals held in Fosmire v. Nicoleau, 551

N.E.2d 77, 80-81 (N.Y. 1990), that a competent adult's common law

“right .. . to determine the course of his or her own medical treatment”

included the nght of a healthy young mother to decline blood transfu-

sions following delivery of a child by cesarean section. Accord Erickson

v. Dilgard, 252 N.Y.S.2d 705, 706 (N.Y. Sup. Ct. 1962) (competent,

informed adult may refuse blood transfusion after amputation because he

“has the final say... in a system of government which gives the greatest

possible protection to the individual in the furtherance of his own

desires”). Thus the law currently allows essentially healthy patients, with

substantial life to preserve, the right to bleed to death under a physician's

care.

16

courage and assist in the fullest possible ex-

ercise of these rights

Id §2803-c(3)(a) (emphasis added). In addition, every

patient has the right to receive full information about his or

her medical condition and to private physician consultations

and treatment /d. §§ 2803-c(3)(b), 2803-c(3)(e)

Physicians already prescribe medications that “contribute

to” or “hasten” the patient's death in the course of assisting

patients disconnected from life support to die JA 105-06.

These physicians are protected both by statute and by the

common law. Furthermore, physicians have the right to

abstain from assistance under the current law, as they will in

any end-of-life scenario

4. Patient Choice

New York has already decided that the State’s interests

most appropriately lie with patient choice, and acknowledges

that end-of-life decisions involve consideration of the patient's

religious and moral beliefs and the patient's best interests.

N.Y. Pub. Health Law §§ 2965(3)(a), 2973(1), 2976(1). See

id. § 2803-c(3)

In addition, the State’s courts have concluded that New

York’s common law “right of self determination” provides

the foundation for a competent adult patient’s right to control

his or her medical treatment even if the effect is to hasten

death. Rivers, 495 NE2d at 341 (N.Y 1986), Delio v.

Westchester County Medical Cir., 516 NY §.2d 677, 691-93

(N.Y. App. Div. 1983)

There can be no dispute that the State has given the widest

latitude to a patient’s right to choose the course of his or her

own treatment.

AN A A, et A My es A AT Rye cet me mm

17

5. Self-Administration of Drugs

Disconnecting life support equipment and providing medi-

cation contributing to death 1s in no way distinguishable from

the assistance sought here.

Removal of life support requires health care professionals

to participate actively in and monitor the process of dying. As

Dr Quill described it, to carry out a patient's desire for

removal of life support, the doctor must take “several

actions” JA 105. He must (1) turn off the breathing machine,

(2) disconnect the machine from the tube that goes to the

patient’s lungs, (3) remove the tube from the patient's lungs,

(4) give morphine or barbiturates, sometimes in continuous

infusions and “in doses that contribute to the patient's

death,” and (5) provide ongoing monitoring JA 105-06.

Physicians “actively and openly assist [patients] io die,” and

that active participation “often includ{es] medical interven-

tions that contribute to an earlier death” JA 107. See Cruzan

v. Director, Mo. Dep't of Health, 497 US 261, 296-97

(1990) (Scalia, J., concurring) (noting “irrelevance of action-

inaction distinction”) ©

Petitioners’ characterization of death by removal of life

support as “natural” is belied by the reality of the process of

dehydrating or suffocating to death over an excruciating

period of days or weeks. The patient for whom removal of a

respirator or feeding tube remains as the only option for a

“natural” death has reached that point only after experiencing

numerous profoundly unnatural treatments. See JA 115. See

Howard Brody, Assisted Death A Compassionate

© Petitioners have not and cannot identify any controlling authority to

the contrary. Other than Justice Scalia’s view that there 1s no distinction

between so-called “active” and “passive” assistance, this Court has not

expressed its view on this issue

Response to a Medicai Failure, 327 New Eng J Med. 1384,

1385 (1992) (medical technology has “extended the patient's

life and resulted in the complications that have brought ‘¢e

patient to the present state of suffering” and set them up “for

what many consider an unacceptable way of dying”), see

generally Betty Rollin, Last Wish (1985) (describing mother’s

death from cancer)

In Brophy v. New England Sinai Hospital, Inc., 497

N E 2d 626, 641 n2 (Mass. 1986), the dissent described the

result of a physician disconnecting a gastronomy tube through

which the patient had received nutrition and hydration

Removal of the G tube would likely create

various effects from the lack of hydration and

nutrition, leading ultimately to death. Brophy’s

mouth would dry out and become caked or

coated with thick material. His lips would be-

come parched and cracked. His tongue would

swell, and might crack. His eyes would recede

back into their orbits and his cheeks would be-

come hollow. The lining of his nose mighi

crack and cause his nose to bleed. His skin

would hang loose on his body and become dry

and scaly. His urine would become highly con-

centrated, leading to burning of the bladder.

The lining of his stomach would dry out and he

would experience dry heaves and vomiting. His

body temperature would become very high.

His brain cells would dry out, causing convul-

sions. His respiratory tract would dry out, and

the thick secretions that would result could

plug his lungs and cause death. At some point

within five days to three weeks his major or-

gans, including his lungs, heart, and brain,

would give out and he would die. 7he /trial/

judge found that death by dehydration is ex-

OO etek ee: EO ee Oe Ree oe

ee te Wn A ye

19

tremely painful and uncomfortable for a hu-

man being. The judge could not rule out the

possibility that Paul Brophy could experience

pain in such a scenario. Paul Brophy's attend-

ing physician described death by dehydration

as cruel and violent.

(Emphasis added) (Lynch, J, dissenting). See JA 106 (the

process of dehydrating, starving, losing control of mental and

physical capacities, experiencing organ failure, passing into

unconsciousness and dying with the help of medical personnel

may take seven to 10 days or more). Other forms of withhold-

ing treatment are no more “natural” See JA 105 (“Since

respiratory failure can be one of the most excruciating and

frightening deaths possible, the doctor must also give

morphine or barbiturates to ameliorate the patient’s sensation

of suffocation.”), Helga Kuhse, 7he Case for Active Volun-

tary Euthanasia, 14 Law, Med & Health Care 145, 147

(1986) (respiratory death involves “conscious air hunger,”

“gasping, an increased breathing rate, a panicked feeling of

inability to get air in or out,” in death from withholding of

dialysis, the patient remains conscious and experiences

nausea, vomiting of blood and convulsions).

The only difference between allowing a dying patient to

tale a lethal dose of medication to hasten impending death

and removing equipment and infusing medication during a

prolonged period before death ensues is that the former is

more humane. JA 107.

6. Hastening One’s Own Death

In Cruzan, this Court acknowledged that a patient may

direct the removal of life support with the intent of “caus[ing]

her death.” 497 US. at 267-68, 278. Other courts similarly

acknowledge that a state interest in the prevention of

irrational self-destruction is not at issue in reviewing a

20

competent, rational decision to direct the removal of life

support when death is imminent. Superintendent of Belcher-

town State Sch. v. Saikewicz, 370 N.E.2d 417, 426 n1i

(Mass. 1977).

The State of New York permits patients to choose to

hasten death in such extensive circumstances as to leave no

room for denying that choice to other mentally competent,

terminally ill adults In Fosmire the New York Court of

Appeals determined that a young mother had a common law

right to bleed to death by refusing blood transfusions, despite

the fact that she had consented to a cesarean section’ 551

N E 2d 77

Moreover, New York draws a distinction between the

State’s interest in a private decision that injures the public and

a private decision that affects only the person making the

decision

The State has a well-recognized interest in

protecting and preserving the lives of its citi-

zens... In these instances [of withdrawal of

treatment], it has been noted, a distinction

should be drawn between the State’s interest in

protecting the lives of its citizens from injuries

by third parties, and injuries resulting from the

individual's own actions. When the individual's

conduct threatens injury to others, the State’s

interest is manifest and the State can generally

be expected to intervene. But the State rarely

7 Certainly a physical condition that results from informed consent to

surgery should be considered “self-inflicted” to a much greater extent

than a terminal illness. Similarly, a patient suffering from a terminal

illness does not “want to dic” any more than, or even as much as, a

woman who chooses to bleed to death because of religious convictions

21

acts to protect individuals from themselves,

indicating that the State’s interest is less sub-

stantial when there is little or no risk of direct

injury to the public. This is consistent with the

primary function of the State to preserve and

promote liberty and the personal autonomy of

the individual In many if not most instances

the State stays its hand and permits fully com-

petent adults to engage in conduct or make

personal decisions which pose risks to their

lives or health

Id. at 81 (citations omitted). After /osmire, the State simply

cannot justify a blanket prohibition of a private decision that

“injures” only the person making the decision Indeed, the

option of a humane, hastened death confers a benefit, not an

“injury,” to patients making this profoundly personal choice.

B. The Challenged Laws Deny Equal Protection

The Equal Protection Clause prohibits the State of New

York from treating similarly situated individuals differently

Plyler v. Doe, 457 U.S. 202, 216 (1982), FS. Royster Guano

Co. v. Virginia, 253 U.S 412, 415 (1920). Classifications

drawn by state law must be rationally related to a legitimate

State interest. Romer v. Lvans, 64 US LW. 4353, 4357,

1996 U.S. LEXIS 3245 at **25-26 (May 20, 1996) (“ finding

it impossible to credit” Colorado’s assertion that a state

constitutional amendment prohibiting preferential status for

homosexuals protected the freedom of association and other

liberties of landlords, employers and others with personal or

religious objections to homosexuality, or that the amendment

would conserve state resources for use in fighting discrimina-

tion against other groups), City of Cleburne v. Cleburne

Living Ctr., Inc., 473 US 432, 440 (1985) (city failed to

provide rational reasons why facilities for the mentally

retarded would warrant zoning treatment distinct from the

22

treatment afforded facilities inhabited by fraternities, sorori-

ties, and other multiple dwelling facilities).

Applying these principles, the Second Circuit correctly

decided that New York Penal Law sections 125 15(3) and

120.30 violate the Equal Protection Clause because the

distinction New York draws between competent, terminally iIl

patients whose treatment involves life-sustaining equipment

and those whose treatment does not involve such equipment 1s

not rationally related to any legitimate state interest *

CONCLUSION

For these reasons, the Petition for Writ of Certiorar should

be denied

® In addition, the decision below can be affirmed on the alternative

constitutional basis argued below, namely, the Fourteenth Amendment s

guarantec of liberty. See, e.g. Granfinanciera, SA. v. Nordberg, 492

U.S. 33, 38-39 (1989), Washington v. Yakima Indian Nation, B9 US

463, 476 n.20 (1979).

June 17, 1996

23

Respectfully Submitted,

Kathryn L Tucker

Counsel of Record

David J. Burman

Kari Anne Smith

PERKINS COIE

1201 Third Avenue, 40th FI

Seattle, WA 98101-3099

(206) 583-8888

Carla A Kerr

Reid A Muoio

HUGHES HUBBARD & REED

One Battery Park Plaza

New York, NY 10004

(212) 837-6000

Attorneys for Respondents