Amicus Curiae Brief — Vacco v. Quill

No. 95-1858

In The

Supreme Court of the U

October Term, 1995

+

DENNIS C. VACCO, Attorney General of the

State of New York, GEORGE E. PATAKI, Governor

of the State of New York, ROBERT M. MORGENTHAU,

District Attorney of New York County,

“ Petitioners,

TIMOTHY E. QUILL, M.D., SAMUEL C. 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

+

BRIEF OF AMICI CURIAE STATES OF

CALIFORNIA, ARKANSAS, COLORADO, FLORIDA,

GEORGIA, IOWA, MARYLAND, MASSACHUSETTS,

MICHIGAN, MONTANA, NEBRASKA, SOUTH

CAROLINA, TENNESSEE, VIRGINIA, AND

WASHINGTON IN SUPPORT OF PETITIONERS

DENNIS C. VACCO, ET AL.

6

Dante E. LUNGREN,

Attorney General of the State of

California

Rosert L. Mukai,

Chief Assistant Attorney General

ALVIN J. KoroskIn,

Senior Assistant Attorney General

* THomas S. Lazar,

Deputy Attorney General

110 West “A” Street, Suite 1100

San Diego, California 92101

Telephone: (619) 645-2117

* Counsel of Record

[Additional Counsel Listed On Inside Cover]

oe lle

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

FILED

Supreme Court; U.S. |

}

Jy

~~, ~ *

WINSTON BRYANT

Attorney General

State of Arkansas

Gate A. Norton

Attorney General

State of Colorado

Rosert A. BUTTERWORTH

Attorney General

State of Florida

MicHaet J. Bowers

Attorney General

State of Georgia

THomaAsS J. MILLER

Attorney General

State of lowa

]. JoserpH CuRRAN, Jr.

Attorney General

State of Maryland

Scott HARSHBARGER

Attorney General

State of Massachusetts

FRANK J. KELLEY

Attorney General

State of Michigan

JoserH P. Mazurexk

Attorney General

State of Montana

Don STENBERG

Attorney General

State of Nebraska

CHARLES MoLonNy CONDON

Attorney General

State of South Carolina

CHar.es W. Burson

Attorney General

State of Tennessee

James S. Gr-more, III

Attorney General

State of Virginia

CuHrisTINE O. GREGOIRE

Attorney General

State of Washington

~

QUESTION PRESENTED FOR REVIEW

Whether New York’s prohibition of assisted suicide vio-

lates the Equal Protection Clause of the Fourteenth Amend-

ment to the United States Constitution.

**

TABLE OF CONTENTS

Page

I. INTEREST OF THE AMICI CURIAE........... 1

Il. REASONS FOR GRANTING THE WRIT........ 2

A. Certiorari Should be Granted To Establish That

A Decision by the People of a State to Prohibit

Assisted Suicide Does Not Violate the Equal

Protection Clause of the Fourteenth Amend-

MONE wc ccccccéesdeneesesneenete 6

1. The Withdrawal of Life-Sustaining Treat-

ment Is Not the Equivalent of Suicide or

Assisted Suicide, and Thus, New York's

Prohibition of Assisted Suicide Does Not

Create Any Class of Similarly Situated

| PPT ee 7

2. New York’s Prohibition of Assisted Sui-

cide Is Rationally Related to Numerous

Important Governmental Objectives...... 11

B. Certiorari Should be Granted to Reaffirm the

Essential Role of the States in our Federal

System and the Power of the People to Directly

Govern Their Own Affairs.................. 17

TES. CORTCLUBIUIN 2. cccccvcsenecceses eum nnEE 20

**#e*

TABLE OF AUTHORITIES

Page

Cases

Application of President & Directors of Georgetown

College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000

(1964), cert. denied, 377 U.S. 978 (1964)........... 14

Bartling v. Superior Court, 163 Cal.App.3d 186, 209

is Fc necdenebd ees sbseccsescsocs 5, 14

Blackburn v. State, 23 Ohio St. 146 (Ohio 1872)..... 4,15

Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225

EE ES 5

Bowers v. Hardwick, 478 U.S. 186 (1986)............. 16

City of Cleburne v. Cleburne Living Ctr, Inc., 473

EEE 12

Commonwealth v. Mink, 123 Mass. 422 (Mass. 1877)..... 4

Compassion in Dying v. State of Washington, 49 F.3d

586 (9th Cir. 1995), superseded by 79 F.3d 790 (9th

EEE EE ee 14

Compassion in Dying v. State of Washington, 79 F.3d

EEE EP OT Peer TTT 20

Cruzan v. Director, Missouri Dept. of Public Health,

i sco 6ceckensececcccceseces passim

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc 1988),

aff'd sub nom. Cruzan v. Director, Missouri Dept.

of Health, 497 U.S. 261 (1990)............... 5, 15, 19

Dallas v. Stanglin, 490 U.S. 19 (1989)............. 11, 17

Dandridge v. Williams, 397 U.S. 471 (1970)........... 12

iv

TABLE OF AUTHORITIES — Continued

Page

DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993)......... 5

Donaldson v. Lungren, 2 Cal.App.4th 1614,

4 Cal.Rptr.2d 59 (1992)... 2... 66. 5, 14, 19

Garcia v. San Antonio Metro., 469 U.S. 528

GRRE ccenccevedes copeantsecdiscennccadesect 2, 19, 20

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985)....... 5

In re Eric J., 25 Cal.3d 522, 159 Cal. Rptr. 317 (1979)..... 7

In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied,

ee ee ce o.oo dic euhunesbudanbanatas 5

Kadrmas v. Dickinson Public Schools, 487 U.S. 450

Ree ae ee ee Sy: 6

Lochner v. New York, 198 U.S. 45 (1905) .............. 2

Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64, cert.

Gee, Gee Ga Gee Gee 0 cccntcccdwocsesesiess 8, 9

McGowan v. Maryland, 366 U.S. 420 (1961)........... 12

Middlesex Ethics Committee v. Garden State Bar

Association, 437 U.S. 423 (IDEA)... nc cccccccccccecs 14

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .... 20

Olmstead v. United States, 277 U.S. 438 (1928), over-

ruled by Katz v. United States, 389 U.S. 347 (1967) .... 18

Paris Adult Theatre | v. Slaton, 413 U.S. 49 (1973).... 16

People v. Adams, 216 Cal.App.3d 1431, 265 Cal.Rptr.

DOD GOeEn 0 cvetcnsccuccegwoenustasedeisbascecet cen

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714

Gua c voccesectoccessedeceessucdedeeus 1, 4, 5, 11, 19

TABLE OF AUTHORITIES - Continued

Personnel Administrator of Massachusetts v. Feeney,

Sh snd ce ce kucende. ponedeesbsectaeeda 8

Planned Parenthood v. Casey, 505 U.S. 833 (1992). .15, 16

Quill v. Koppeli, 870 F.Supp. 78, 82 (S.D.N_Y. 1994),

aff'd in part and rev'd in part sub nom. Quill v.

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

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

Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337 (1986) ..... 9

Roe v. Wade, 410 U.S. 113 (1973)..............4... 9, 16

San Antonio School District v. Rodriguez, 411 U.S. |

RS, Nd oi don okie ded 6 rel oie passim

State v. Jones, 86 S.C. 17, 67 S.E. 160 (S.C. 1910)..... 4

State v. Willis, 121 S.E.2d 854 (N.C. 1961)............. 4

Thor v. Superior Court, 5 Cal.4th 725, 21 Cal.Rptr.2d

ey Geiccacccsnenadhksdsbucnecéacadeedsndaalebts 5

Tigner v. Texas, 310 U.S. 141 (1940).................. 11

Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d

Ge Gs 0.6 bbb bdbenvedcesesesbéeceucanttevckedees 5

CONSTITUTIONAL PROVISIONS

fi. eee enteksenseneen 2

OS. Gomed. aun. BIG, © Bn ncccccccccccsccecses passim

vi

TABLE OF AUTHORITIES — Continued

STATUTES

18 Pa. Cons. Stat. Ann.

DB GEIR. c cccccccccesccccsetcvepeeneses

Alaska Stat.

D CUMS SEEED ccvcvcccccccsesscecceces

Ariz. Rev. Stat. Ann.

D CESS © ov ccccccccccsdvcecessces

Ark. Stat. Ann.

PO os ccccudcccccossccescecss

Cal. Pen. Code

Colo. Rev. Stat.

D PPPs cc cccceecooecensveccsese

Conn. Gen. Stat.

Ben cd0sscactcanscescnscnieecs

Del. Code Ann.

'

ee eee re eee

Fla. Stat. Ann.

Ga. Code Ann.

> CPD se erbedacscncbodcessesceotucds

vii

TABLE OF AUTHORITIES — Continued

la. Code

§§ 707A.1, 707A.2 and 707A.3...........

Ill. Comp. Stat.

iy BE Pn Cnedepcceccecencesesees

Ind. Stat. Ann.

DS PPO MBEED oc ccscccccecces reeneseves

Kan. Stat. Ann.

Ky. Rev. Stat.

bid E <5 dca ees deueneabebuse died

La. Rev. Stat.

i) PD on6esesseedeencccecaseseoscees

Me. Rev. Stat. Ann.

we SF | PPPPTTITTT ree

Minn. Stat. Ann.

Miss. Code Ann.

DD PEE oc cbébnccccseccrpeosesccecsoces

Mo. Ann. Stat.

SD REE: oc cccecocsesssccccensceds

Mont. Code Ann.

DGGE oc ccc cc ccccecceseccscesoesvece

Page

neecsatenas 3

Vill

TABLE OF AUTHORITIES — Continued

Page

N.D. Cent. Code

DS PE 6b 00. ce Hee conncncaserstesedéucéecenseuas 4

N.H. Rey. Stat. Ann.

WGP ncdccctesscndccseecccdncdatanssanveetenecet 4

N.J. Stat. Ann.

DI svrdendscoenneeobandesnseinsentusetanesa 4

N.M. Stat. Ann.

EE a Oho riocddovecencesvocecueeepoceeseenseeess 4

Neb. Rev. Stat.

DEE beso ccocescesdvcéecuecesnsecessecesscévunet 4

New York Penal Law

Pe sbeSacecenc cedtcudanenehovedbesstosiudes 4,7

} PUNE os venctcctoseevensdedesdessthveseececeoss 4,7

New York Public Health Law, Article 29-B

et DPE Heckivcesucstasubcdeesschaeesessadanns 9

DP BP Van GAG os kbabeesedacedthepacnasbeesocenrsas 10

New York Public Health Law, Article 29-C

iy SPE 600s eb euckicracedbecldsabukesneboacias 9

Pe abubviceutdienuivedssdbasssaseounesseniomes 10

PK ads deecendecéasdusisndsensaudinsdaueanes 10

Okla. Stat. Ann.,

eb ees ee Us 0:80 06d nsabecndebadecedces sande 4

EE

ix

TABLE OF AUTHORITIES - Continued

Page

P.R. Laws Ann.

tit. 33, § 4009........ p bas ebududedect bocekesnodentss 4

S.D. Codified Laws Ann.

a CAMA bei nb acidoonccercdudbeiceenceedhe 4

Tenn. Code Ann.

Don ackdadbenneetshe-soausescénedheebsercss 4

Tex. Penal Code Ann.

hic hundtussekeebed Caveats dhecvekiveretededs 4

V.I. Code Ann.

> ee EL; sds eb ek bes hob cccncesecnesenncads bee 4

Wash. Rev. Code Ann.

PP chad avs 6 hekedeentebbegbnctesbestats iene 4

Wis. Stat. Ann.

Den abdend nagdsdabetedsevcusnceseccasusessegans 4

Wyoming Stat.

RE + cndbassabensceeerusecessnvrvcdeucaseheses 4

OrHer AUTHORITIES

American Medical Association, Council on Ethical

and Judicial Affairs, Code of Medical Ethics

Reports, Vol. V, No. 2 (July 1994), Report 59,

Physician-Assisted Suicide, 269 ..........66.000 00005 14

New York State Task Force Report, When Death is

Sought — Assisted Suicide and Euthanasia in the

Medical Context (May 1994) ........6 0666 cu ce eues 13

TABLE OF AUTHORITIES — Continued

Page

The Hastings Center, Guidelines on the Termination

of Life-Sustaining Treatment and the Care of the

EE CE De occ cccuksdeusdvchenebeucpudanieteveas

Thomas J. Marzen, “Out, Out Brief Candle”: Consti-

tutionally Prescribed Suicide for the Terminally Ill,

21 Hastings Constitutional Law Quarterly, No. 3,

Fe es 60666 hb kn nwbaceddesnbesnkaauehasincktan

Thomas J. Marzen, et al., Suicide: A Constitutional

SET, Ge Cy Un GE © GRU Dh c peewcnasicdgsadecs

l

I. INTEREST OF THE AMICI CURIAE

The case below represents a return to an era, long since

past, when the principles of federalism were all but eliminated

by the mistaken notion that the Fourteenth Amendment autho-

rizes courts to substitute their judgment for that of the States in

matters of economic and social welfare In an opinion which

significantly departs from this Court’s present-day equal pro-

tection jurisprudence, the Second Circuit has declared that

New York’s prohibition of assisted suicide violates the Equal

Protection Clause of the Fourteenth Amendment to the extent

that it prohibits a physician from prescribing a lethal dose of

medication for self-administration by a mentally-competent,

terminally ill patient in the final stages of his or her illness.

Quill v. Vacco, 80 F.3d 716, 731 (2d Cir. 1996) (hereinafter

“Quill”). In so holding, the Second Circuit found that New

York’s prohibition of assisted suicide did not further, and thus

was not rationally related to, amy legitimate state interest.

Quill, supra, 80 F.3d at 729-731.

More troubling than the serious flaws in the Court's anal-

ysis is the impact of its holding. If allowed to stand, the Second

Circuit’s opinion will precipitate a fundamental change in the

long-standing policies of a majority of States to prevent suicide

and assisted suicide. “[A]Il states provide for the involuntary

commitment of persons who may harm themselves as the result

of mental illness, and a number of states allow the use of

nondeadly force to thwart suicide attempts.” People v. Kev-

orkian, 447 Mich. 436, 479, 527 N.W.2d 714, 732 (1994)

(footnote omitted), cert. denied, 115 S.Ct. 1795 (1995). A

majority of States impose criminal! penalties on those who

assist another to commit suicide. As Justice Scalia has

observed, “ . . . American law has always accorded the State

the power to prevent, by force if necessary, suicide... ”

Cruzan v. Director, Missouri Dept. of Public Health, 497 US.

261, 293 (1990) (Scalia J., concurring). However, if allowed to

stand, the Second Circuit's holding will invalidate New York's

prohibition of assisted suicide and, at the same time, provide

authority for equal protection challenges to similar state stat-

utes across the Nation.

2

The protection and preservation of human life is, without

question, the quintessential duty and responsibility of the sov-

ereign States in our federal system of government. The power

of the States to fulfill this most important of responsibilities,

through the exercise of the police power, is likewise unques-

tionable.'! Indeed, as Justice Harlan observed in his famous

dissent in Lochner v. New York, “[ajll the cases agree

that . . . [the States’ police] power extends at least to the

protection of the lives, the health, and the safety of the public

against the injurious exercise by any citizen of his own rights.”

“Lochner v. New York, 198 U.S. 45, 65 (1905) (Harlan, J.,

dissenting).

At stake in this case are, first and foremost, the lives of

the people, both those who wish to die, and those who wish to

live no matter what their circumstances. Also at stake is the

sovereign power of the States to protect and preserve those

lives without a federal requirement that the State “ . . . make

judgments about the ‘quality’ of life that a particular individual

may enjoy, .. . ” Cruzan v. Director, Missouri Dept. of Public

Health, 497 U.S. 261, 282 (1990). The resolution of this

question will arguably affect more lives than any case which

this Court will confront in the foreseeable future. It will also

determine whether “the States as States have [any] legitimate

interests which the National Government is bound to respect

even though its laws are supreme.” Garcia v. San Antonio

Metro., 469 U.S. 528, 581 (1985) (O'Connor, J., dissenting)

(italics original, citation omitted, insert added).

Il. REASONS FOR GRANTING THE WRIT

The question presented in this case is whether New York’s

prohibition of assisted suicide violates the Equal Protection

Clause of the Fourteenth Amendment. The resolution of this

question will have profound implications for the continued

viability of the essential role of the States in our federal system

' “The powers not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States, respectively, or

to the people.” U.S. Const. amend. X.

3

of government. In San Antonio School District v. Rodriguez,

this Court cautioned that:

“It must be remembered . . . that every claim

arising under the Equal Protection Clause has impli-

cations for the relationship between national and

State power under our federal system. Questions of

federalism are always inherent in the process of

determining whether a State’s laws are to be

accorded the traditional presumption of constitu-

tionality, or are to be subjected instead to rigorous

judicial scrutiny. While ‘[t]he maintenance of the

principles of federalism is a foremost consideration

in interpreting any of the pertinent constitutional

provisions under which this Court examines state

action,’ it would be difficult to imagine a case hav-

ing a greater potential impact on our federal system

than the one now before us, in which we are urged to

abrogate systems of financing public education pres-

ently in existence in virtually every State.” San An-

tonio School District v. Rodriguez, 411 U.S. 1, 44

(1973) (footnote omitted).

Twenty-three years after this Court decided San Antonio

School District v. Rodriguez, “ .. . a case having a greater

potential impact on our federal system .. . ” has arrived — a

case in which prohibitions of assisted suicide presently in

existence in the vast majority of States are at stake.? /d.

2 At least forty States, Puerto Rico and the Virgin Islands, impose

criminal penalties on those who assist another to commit suicide. The

following states and territories have statutes which impose criminal

penalties for aiding, assisting, causing, or promoting suicide: Alaska Stat.,

§ 11.41.120(a)(2); Ariz. Rev. Stat. Ann., § 13-1103(A)(3); Ark. Stat. Ann.,

§ 5-10-104(a)(2); Cal. Pen. Code, § 401; Colo. Rev. Stat.,

§ 18-3-104(1)(b); Conn. Gen. Stat., § 53a-56(a)(2); Del. Code Ann., tit. 11,

§ 645; Fla. Stat. Ann., § 782.08; Ga. Code Ann. § 16-5-5(b); Ill. Comp.

Stat. ch. 720, 5/12-31; Ind. Stat. Ann., § 35-42-1-2.5(b); Ia. Code,

§§ 707A.1, 707A.2 and 707A.3, as amended by Acts of the 76th General

Assembly, 1996 Session; Kan. Stat. Ann., § 21-3406; Ky. Rev. Stat.,

§ 216:302; La. Rev. Stat., § 14:32.12; Me. Rev. Stat. Ann., tit. 17-A, § 204;

Minn. Stat. Ann., § 609.215; Miss. Code Ann., § 97-3-49; Mo. Ann. Stat.,

4

Perhaps the best evidence of its potential impact on the

Nation is the sheer number of conflicts created by the Second

Circuit’s opinion. In Quill, the Second Circuit declared that

New York’s statutes prohibiting assisted suicide violate the

Equal Protection Clause of the Fourteenth Amendment. Quill,

supra, 80 F.3d at 731. That holding conflicts squarely with the

recent holding of the Michigan Supreme Court in People v.

Kevorkian.> In addition, the rationale utilized by the Second

Circuit in rendering its holding directly conflicts with

numerous state court opinions. The centerpiece of the Second

Circuit’s opinion is unquestionably its conclusion that termi-

nally ill persons on life support who wish to “hasten their

deaths” by directing the withdrawal of such systems are sim-

ilarly situated with others who wish to “hasten death by self-

§ 565.023(1)(2); Mont. Code Ann., § 45-5-105; Neb. Rev. Stat., § 28-307;

N.H. Rev. Stat. Ann., § 630:4; N.J. Stat. Ann., § 2C:11-6; N.M. Stat. Ann.,

§ 30-2-4; N.Y. Penal Law, §§ 120.30, 125.15(3); N.D. Cent. Code,

§ 12.1-16-04; Okla. Stat. Ann., tit. 21, §§ 813-818; 18 Pa. Cons. Stat. Ann.,

§ 2505; PR. Laws Ann., tit. 33, § 4009; S.D. Codified Laws Ann.,

§ 22-16-37; Tenn. Code Ann., § 39-13-216; Tex. Penal Code Ann., § 22.08;

V.1. Code Ann., tit. 14, § 2141; Wash. Rev. Code Ann., § 9A.36.060; and

Wis. Stat. Ann., § 940.12. The following states have statutes which impose

criminal penalties for negligent homicide which are broad enough to

encompass aiding, assisting, causing or promoting suicide: Ala. Code,

§ 13A-6-1; and Wyo. Stat., § 6-2-107. The following states impose

criminal penalties by case law for assisting a suicide: Commonwealth y.

Mink, 123 Mass. 422, 428-429 (Mass. 1877); People v. Kevorkian, 447

Mich. 436, 527 N.W.2d 714 (Mich. 1994); Blackburn v. State, 23 Ohio St.

146, 163 (Ohio 1872); State v. Jones, 86 S.C. 17, 67 S.E. 160, 165 (S.C.

1910); and State v. Willis, 121 S.E.2d 854 (N.C. 1961).

3 People v. Kevorkian, 447 Mich. 436, 480 n. 57, 527 N.W.2d 714,

732 n. 57 (1994) (“For reasons apparent in our analysis of the due process

claims, we also reject the argument that Michigan's assisted suicide statute

is invalid because it denies equal protection to terminally ill persons who

want help in ending their lives, i.e., it denies them a right enjoyed by

terminally ill persons who opt to forgo or discontinue life-sustaining

medical treatment. As we explained, the two situations are not the same for

purposes of constitutional analysis.”), cert. denied, 115 S.Ct. 1795 (1995).

5

administering prescribed drugs.”4 Quill, supra, 80 F.3d at 729.

However, “. . . those courts that have found a right to refuse to

begin or to continue life-sustaining medical treatment have

done so only after concluding that such refusal is wholly

different from the act of suicide.”5 Numerous state legislatures

have likewise recognized this fundamental distinction.® Finally,

in Cruzan v. Director, Missouri Dept. of Public Health, 497

* At the threshold, it should be recognized that there is a danger in

using euphemistic language such as “hastening death” when referring to

the act of suicide. Such language, which is often utilized by proponents of

assisted suicide, has a tendency to obfuscate the reality of the important

questions which end-of-life cases generally present. See People v.

Kevorkian, 447 Mich. 436, 464 n. 27, 527 N.W.2d 714, 725 n. 27 (1994),

cert. denied, 115 S.Ct. 1795 (1995), and Cruzan v. Harmon, 760 S.W.2d

408, 412 (Mo. banc 1988), aff'd sub nom. Cruzan v. Director, Missouri

Dept. of Health, 497 U.S. 261 (1990).

5 People v. Kevorkian, 447 Mich. 436, 480, 527 N.W.2d 714, 732

(1994) (footnote omitted), cert. denied, 115 S.Ct. 1795 (1995). See, e.g.,

Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623, 627 (1982)

(“essential dissimilarity” between right to decline medical treatment and

any right to end one’s life); Jn re Conroy, 98 N.J. 321, 351, 486 A.2d 1209,

1224 (1985); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 1145, 225

Cal.Rptr. 297, 306 (1986); Bartling v. Superior Court, 163 Cal.App.3d 186,

196, 209 Cal.Rptr. 220, 225-226 (1984); People v. Adams, 216 Cal.App.3d

1431, 1440, 265 Cal.Rptr. 568, 573-574 (1990); Donaldson v. Lungren, 2

Cal.App.4th 1614, 1619-1623, 4 Cal.Rptr.2d 59, 61-64 (1992) and cases

cited therein; Thor v. Superior Court, 5 Cal.4th 725, 742, 21 Cal.Rptr.2d

357, 367-368 (1993); DeGrella v. Elston, 858 S.W.2d 698, 706-707 (Ky.

1993). Cf. In re Quinlan, 70 N.J. 10, 51-52 and n. 9, 355 A.2d 647, 669-670

and n. 9 (neither attempted nor aiding suicide implicated in circumstances

similar to those presented), cert. denied, 429 U.S. 922 (1976). See also

Thomas J. Marzen, et al., Suicide: A Constitutional Right?, 24 Dug. L. Rev.

1, 10 n. 34 (1985), and cases cited therein.

© See Thomas J. Marzen, “Out, Out Brief Candle”: Constitutionally

Prescribed Suicide for the Terminally Ill, 21 Hastings Constitutional Law

Quarterly, No. 3, 799, 806 n. 25 (1994) (“. . . legislatures that have codified

the right to refuse treatment in the same legislation reject any affirmative

act to end life.”), citing natural death/living will statutes of forty States.

6

U.S. 261 (1990), this Court “assume[{d] that the United States

Constitution would grant a competent person a constitutionally

protected right to refuse lifesaving hydration and nutrition”

but, at the same time, recognized Missouri's important interest

in the protection and preservation of human life, noting that

“the majority of States in this country have laws imposing

criminal penalties on one who assists another to commit sui-

cide.” Cruzan, supra, 497 U.S. at 279-280 (footnote omitted).

Plainly, the majority in Cruzan had no difficulty at all distin-

guishing the withdrawal of life-sustaining treatment, on the one

hand, and the act of suicide, on the other.

Notwithstanding this overwhelming authority to the con-

trary, the Second Circuit erroneously concluded that the two

situations are indistinguishable. Quill, supra, 80 F.3d at 729.

As will be seen, the Second Circuit’s failure to make this

critical distinction infected its constitutional analysis, contrib-

uted to its misplaced reliance on right-to-refuse treatment

cases, and led directly to its ultimate erroneous conclusion.

The conflicts created by the Second Circuit’s opinion, involv-

ing an issue of such exceptional and profound nationwide

importance, can only be resolved — indeed, must be resolved —

by the final authoritative voice of this Court.

A. Certiorari Should be Granted To Establish That A

Decision by the People of a State to Prohibit

Assisted Suicide Does Not Violate the Equal Pro-

tection Clause of the Fourteenth Amendment

The Equal Protection Clause of the Fourteenth Amend-

ment provides that no State shall “ . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. It is wel!-settled that:

“Unless a statute provokes strict judicial scru-

tiny because it interferes with a fundamental right or

discriminates against a suspect class, it will ordi-

narily survive an equal protection attack so long as

the challenged classification is rationally related to a

legitimate governmental purpose.” Kadrmas v. Dick-

inson Public Schools, 487 U.S. 450, 457-458 (1988)

(internal quotes and citations omitted).

5

The Second Circuit correctly found that New York's stat-

utes prohibiting assisted suicide neither impinge upon funda-

mental rights nor create suspect classifications and,

accordingly, that the rational basis standard of review applied.

Quill, supra, 80 F.3d at 726-727. However, it failed to properly

apply that standard in accordance with the clear precedents of

this Court. Simply put, while the Second Circuit invoked

rational basis language, that was not the standard it applied.

1. The Withdrawal of Life-Sustaining Treatment

Is Not the Equivalent of Suicide or Assisted

Suicide, and Thus, New York’s Prohibition of

Assisted Suicide Does Not Create Any Class of

Similarly Situated Persons

“The first prerequisite to a meritorious claim under the

equal protection clause is a showing that the state has adopted

a classification that affects two or more similarly situated

groups in an unequal manner.” /n re Eric J., 25 Cal.3d 522,

530, 159 Cal.Rptr. 317, 320 (1979) (italics original, citation

and footnote omitted). However, as a review of the challenged

statutes plainly reveals, that cannot possibly be established

here.

Section 125.15 of the New York Penal Law provides, in

pertinent part, that “[a] person is guilty of manslaughter in the

second degree when: .. . [hje intentionally . . . aids another

person to commit suicide.” Violation of section 125.15 has

been designated a class C felony. /d. Section 120.30 of the

New York Penal |.aw provides that “[a) person is guilty of

promoting a suicide attempt when he intentionally . . . aids

another person to attempt suicide.” Violation of section 120.30

has been designated a class E felony. /d.

Both statutes clearly apply to all persons and, thus, on

their face, create no classifications at all. Both statutes prohibit

all persons from performing specific acts, i.e., aiding another

to attempt or commit suicide.’ Thus, to the extent that New

? Neither statute has been applied in this case, ie., none of the

respondents have been charged with any violation of section 125.15 or

York law classifies at all, the classification is clearly neutral.

“[T}he Fourteenth Amendment guarantees equal laws, not

equal results.” Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256, 273 (1979). In Quill, the Second Circuit

found a classification created not by the terms of the chal-

lenged statutes, or by their application in a particular case, but

rather based on its conclusion that the withdrawal of life-

sustaining treatment is the equivalen’ of the act of suicide.

Thus, under the Second Circuit's reasoning, terminally ill per-

sons who request the withdrawal of life-sustaining treatment

are similarly situated with other persons who wish to commit

suicide and assisted suicide. Quill, supra, 80 F.3d at 729.

However, in addition to being contrary to the overwhelming

weight of authority cited above, even the authorities cited by

the Second Circuit do not support this conclusion.

The Second Circuit cited Matter of Storar and Eichner v.

Dillon (decided together), 52 N.Y.2d 363, 420 N.E.2d 64, cert.

denied, 454 U.S. 858 (1981), for the proposition that:

“In both these cases, the New York Court of Appeals

recognized the right of a competent, terminally-ill

patient to hasten his death upon proper proof of his

desire to do so.” Quill, supra, 80 F.3d at 727.

Storar and Eichner, however, are both right to refuse treatment

cases. The phrase “hasten his death” incorrectly implies that

the New York Court of Appeals approved not only the right to

refuse unwanted medical treatment, but also the act of suicide.

It did not. Moreover, in relying on these cases, the Second

Circuit ignored the far more relevant part of the majority

opinion which recognized that:

“The State has a legitimate interest in protecting the

lives of its citizens. . . . It may, by statute, prohibit

them from engaging in specified activities, including

medical procedures which are inherently hazardous

120.30. While a grand jury proceeding was instituted against one of the

respondents, Dr. Quill, no indictment was returned. Quill v. Koppell, 870

F.Supp. 78, 82 (S.D.N.Y. 1994), aff'd in part and rev'd in part sub nom.

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

9

to their lives (Roe v. Wade, supra, 410 U.S. pp. 150,

154, 93 S.Ct. pp. 725, 727).” Matter of Storar, 52

N.Y.2d 363, 377, 420 N.E.2d 64, 71, cert. denied,

454 U.S. 858 (1981).

Furthermore, a review of the majority opinion reveals

even more evidence that the New York Court of Appeals did

not impliedly approve of suicide (i.e., “hastening death”). First,

the New York Court of Appeals specifically noted that the

State’s interest in preventing suicide was not implicated in the

Eichner case. Matter of Storar, supra, 52 N.Y.2d at 377 n. 6.

Second, recognizing the need for judicial restraint, the majority

found it unnecessary to address the dissent’s endorsement of a

limited form of passive euthanasia. Matter of Storar, supra, 52

N.Y.2d at 370 n. 2. In view of the foregoing, the Second

Circuit's reliance on Storar and Eichner was clearly misplaced.

The Second Circuit also relied on Rivers v. Katz, 67

N.Y.2d 485, 495 N.E.2d 337 (1986), for the proposition that

the New York Court of Appeals had

“ . . , recognized the right to bring on death by

refusing medical treatment not only as a fundamental

common-law right but also as coextensive with [a]

patient's liberty interest protected by the due process

clause of our State Constitution.” Quill, supra, 80

F.3d at 727 (internal quotes and citation omitted,

insert original).

Again, this is incorrect. In Rivers, the New York Court of

Appeals did not mention any “right to bring on death”, a phrase

which again implies approval of the act of suicide. Rather, the

right which the court recognized, as evidenced from the text of

the opinion itself, was the right to refuse unwanted medical

treatment. Rivers, supra, 67 N.Y.2d at 493.

The Second Circuit also relied on both Article 29-B of

New York Public Health Law, entitled “Orders Not to Resusci-

tate”, sections 2960-2979, and Article 29-C, entitled “Health

Care Agents and Proxies”, sections 2980-2994, for the proposi-

tion that:

“ . . . the New York legislature [has] placed its

imprimatur upon the right of competent citizens to

hasten death by refusing medical treatment and by

10

directing physicians to remove life-support systems

already in place.” Quill, supra, 80 F.3d at 727.

Again, this is incorrect. As a review of these statutes plainly

reveals, the New York legislature did not recognize any right to

“hasten death”, rather, it recognized the right to refuse medical

treatment.* Moreover, in relying on these statutes, the Second

Circuit ignored the far more relevant statute, i.e., New York

Public Health Law, Article 29-C, § 2989(3), which specifically

provides that:

“This article is not intended to permit or pro-

mote suicide, assisted suicide, or euthanasia; accord-

ingly, nothing herein shall be construed to permit an

agent to consent to any act or omission to which the

principal could not consent under law.”

This statute directly contradicts the Second Circuit's con-

tention that the New York legislature has either expressly or

impliedly approved of suicide or assisted suicide. Plainly, it

has not. In summary, none of the New York authorities dis-

cussed above support the contention that the State of New York

has recognized a right to commit suicide or, as the Second

Circuit phrased it, a right to “hasten death”. Rather, what the

State of New York has recognized is the right to refuse

unwanted medical treatment, regardless of the consequences of

that refusal.

The final authority relied upon by the Second Circuit in its

effort to equate the withdrawal of life-sustaining treatment

with the act of suicide is this Court’s opinion in Cruzan v.

Director, Missouri Dept. of Public Health, 497 U.S. 261

(1990). However, like its reliance on New York law, that

reliance is entirely misplaced. While the Second Circuit dis-

cussed several portions of the Cruzan opinion at length, it

ignored the far more relevant portion of the opinion for present

purposes, i.¢e., the recognition by the majority that even in the _

face of a right to refuse medical treatment, the States may

® See, ¢.g., New York Public Health Law, Article 29-B, § 2964

(recognizing right of adult with capacity to consent to an order not to

resuscitate), and Article 29-C, § 2981 (allowing for appointment of an

agent “to make health care decisions on the principal's behalf”).

properly assert important interests in the protection and preser-

vation of human life, and in the prevention of both suicide and

assisted suicide. Cruzan, supra, 497 U.S. at 280.

In Cruzan, this Court also discussed the underpinnings of

the right to refuse medical treatment, i.e.: (1) the right of

bodily integrity, and (2) “[t]he logical corollary of the doctrine

of informed consent .. . the right not to consent, that is, to

refuse treatment.” Cruzan, supra, 497 U.S. at 269 and 270.

When a terminally ill person accepts life-sustaining treatment,

he or she is authorizing the invasion of bodily integrity which

necessarily accompanies such treatment. The fact that such

persons must sacrifice their bodily integrity in order to live

plainly demonstrates they are not similarly situated with any

other class. Furthermore, “[a] person may refuse life-sustaining

medical treatment because the treatment itself is a violation of

bodily integrity.” People v. Kevorkian, 447 Mich. 436, 480 n.

59, 527 N.W.2d 714, 732 n. 59 (1994), cert. denied, 115 S.Ct.

1795 (1995) (emphasis added).

In sharp contrast, suicide and assisted suicide do not

implicate either the right of bodily integrity or the right not to

consent, i.e., the right to refuse unwanted medical treatment.

Simply stated, suicide and assisted suicide are so significantly

different from the withdrawal or withholding of unwanted

medical treatment, and its legal underpinnings, that a person

exercising the right to refuse such treatment cannot be consid-

ered similarly situated with a person seeking to commit suicide

or assisted suicide. The two situations simply are not the same

for constitutional purposes. “The Constitution does not require

things which are different in fact or opinion to be treated in law

as though they were the same.” Tigner v. Texas, 310 U.S. 141,

147 (1940).

2. New York’s Prohibition of Assisted Suicide Is

Rationally Related to Numerous Important

Governmental Objectives

Review under the rational basis standard “ . . . is the most

relaxed and tolerant form of judicial scrutiny under the Equal

Protection Clause.” Dallas v. Stanglin, 490 U.S. 19, 26 (1989).

12

In discussing the rational basis standard in McGowan v. Mary-

land, the Court stated that:

“Although no precise formula has been developed,

the Court has held that the Fourteenth Amendment

permits the States a wide scope of discretion in

enacting laws which affect some groups of citizens

differently than others. The constitutional safeguard

is offended only if the classification rests on grounds

wholly irrelevant to the achievement of the State's

objective. State legislatures are presumed to have

acted within their constitutional power despite the

fact that, in practice, their laws result in some

inequality. A statutory discrimination will not be set

aside if any state of facts reasonably may be con-

ceived to justify it.” McGowan v. Maryland, 366

U.S. 420, 425-426 (1961). See also Dandridge v.

Williams, 397 U.S. 471, 485 (1970).

As Justice Stewart observed in his concurring opinion in

San Antonio School District v. Rodriguez, 411 U.S. 1, 60

(1973), “[t}his doctrine is no more than a specific application

of one of the first principles of constitutional adjudication — the

basic presumption of constitutional validity of a duly enacted

state or federal law. [citation omitted)” Thus, under the rational

basis standard, legislation is first presumed valid and then,

shielded by that presumption, tested to determine if the classi-

fication it creates is rationally related to a legitimate state

interest.?

In discussing this presumption in Quill, however, the Sec-

ond Circuit stated “[t}he general rule . . . is that state legisla-

tion carries a presumption of validity if the statutory

classification is ‘rationally related to a legitimate state inter-

est.’ [citation omitted)” Quill, supra, 80 F.3d at 725 (emphasis

added). This is incorrect. The existence of the presumption of

validity is not conditioned upon a subsequent finding of ratio-

nal relationship; rather, the presumption precedes application

9 See City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432,

440 (1985) (“The general rule is that legislation is presumed to be valid and

will be sustained if the classification drawn by the statute is rationally

seted to 0 fant (citati itted}”).

13

of the standard itself. The Second Circuit's apparent failure to

accord New York’s statutes the presumption of validity to

which they are entitled may provide at least some explanation

why the Court utilized such a strict, skeptical, means-end

analysis to review the challenged statutes.

While the Second Circuit did identify several important

state interests implicated by New York’s prohibition of assisted

suicide, it went on to conclude that:

“The New York statutes prohibiting assisted sui-

cide, which are similar to the Washington statute, do

not serve any of the state interests noted, in view of

the statutory and common law schemes allowing

suicide through the withdrawal of life-sustaining

treatment.” Quill, supra, 80 F.3d at 730 (italics

added).

This holding, like its misidentification of a similarly situ-

ated class, is based on the Second Circuit's failure to differen-

tiate between the withdrawal of life-sustaining treatment and

the act of suicide. Once this recurrent error is removed from

the analysis, however, it immediately becomes clear that New

York’s prohibition of assisted suicide directly furthers, and thus

is rationally related to, several important state interests. Those

interests include, but are not limited to: (1) the protection and

preservation of human life;!° (2) the prevention of suicide;'!

(3) preventing the fraud, errors and abuse which would

10 Cruzan v. Director, Missouri Dept. of Public Health, 497 U.S. 261,

280 (1990).

'! “Suicide is the eighth leading cause of death in the United States.”

New York State Task Force Report, When Death is Sought ~ Assisted

Suicide and Euthanasia in the Medical Context (May 1994), at 9 (footnote

omitted). “Studies that examine the psychological background of

individuals who kill themselves show that 95 percent have a diagnosab!e

mental disorder at the time of death.” /d., at 11. Furthermore, “{IJike other

suicidal individuals, patients who desire suicide or an early death during a

terminal illness are usually suffering from a treatable mental illness, most

commonly depression.” /d., at 13 (footnote omitted).

be

accompany acceptance of suicide and assisted suicide;'!? (4)

maintaining the ethical integrity of the medical profession;'3

(5) protecting the poor and minorities from exploitation;'* (6)

protecting handicapped persons from societal indifference;'5

and (7) protecting innocent third parties.'®

'2 Cruzan, supra, 497 U.S. at 281 (“[E]ven where family members

are present, [t]here will, of course, be some unfortunate situations in which

family members will not act to protect a patient. A State is entitled to guard

against potential abuses in such situations. [citation omitted, internal quotes

omitted]"). See also Donaldson v. Lungren, 2 Cal.App.4th 1614, 1623, 4

Cal.Rptr. 59, 64 (1992) (“The state’s interest must prevail over the

individual because of the difficulty, if not the impossibility, of evaluating

the motives of the assister or determining the presence of undue

influence.”), and Donaldson, supra, 2 Cal.App.4th at 1624 (“Third parties,

even family members, do not always act to protect the person whose life

will end.”).

13 Cf. Middlesex Ethics Committee v. Garden State Bar Association,

457 U.S. 423, 434 (1982) (important state interest in “maintaining and

assuring the professional conduct of professional attorneys it licenses”).

See also Donaldson v. Lungren, 2 Cal.App.4th 1614, 1620, 4 Cal.Rptr.2d

59, 62 (1992) (recognizing state interest in maintaining the ethical integrity

of the medical profession). In reaffirming its long-standing opposition to

physician assisted suicide, the American Medical Association has declared

that physician-assisted suicide “ . . . threatens the very core of the medical

profession's ethical integrity” and is “ . . . fundamentally inconsistent with

the physician's professional role.” American Medical Association, Council

on Ethical and Judicial Affairs, Code of Medical Ethics Reports, Vol. V,

No. 2 (July 1994), Report 59, Physician-Assisted Suicide, 269 and 274,

respectively.

14 Quill, supra, 80 F.3d at 730, citing Compassion in Dying v. State of

Washington, 49 F.3d 586, 592-593 (9th Cir. 1995), superseded by 79 F.3d

790 (9th Cir. 1996).

1S Quill, supra, 80 F.3d at 730, citing Compassion in Dying v. State of

Washington, 49 F.3d 586, 592-593 (9th Cir. 1995), superseded by 79 F.3d

790 (9th Cir. 1996).

16 Application of President & Directors of Georgetown College, Inc.,

118 U.S.App.D.C. 80, 331 F.2d 1000, 1008 (1964), cert. denied, 377 US.

978 (1964). See also Bartling v. Superior Court, 163 Cal.App.3d 186, 195

n. 6, 209 Cal.Rptr. 220, 225 n. 6 (1984).

ee i es aa ge

15

The Second Circuit’s application of the rational basis

standard was further flawed by its improper insertion of

quality-of-life considerations into its analysis which it used to

discount the State’s important interest in the protection and

preservation of human life. Quill, supra, 80 F.3d at 729-730.

Such quality-of-life considerations are directly contrary to

this Court’s holding in Cruzan that:

“(W]e think a State may properly decline to make

judgments about the ‘quality’ of life that a particu-

lar individual may enjoy, and simply assert an

unqualified interest in the preservation of human

life to be weighed against the constitutionally pro-

tected interests of the individual.” Cruzan v. Direc-

tor, Missouri Dept. of Public Health, 497 U.S. 261,

282 (1990).

The dangers inherent in using such quality-of-life consid-

erations are well-recognized. “Were quality of life at issue,

persons with all manner of handicaps might find the state

seeking to terminate their lives.” Cruzan v. Harmon, 760

S.W.2d 408, 420 (Mo. banc 1988), aff’d sub nom. Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990). Such

an analysis also disregards the irrefutable principle that all

lives, from beginning to end and irrespective of physical or

mental condition, are under the full protection of the law.

“The life of those to whom life has become a

burden — of those who are hopelessly diseased or

fatally wounded — nay, even the lives of criminals

condemned to death, are under the protection of the

law, equally as the lives of those who are in the full

tide of life’s enjoyment, and anxious to continue to

live.” Cruzan v. Director, Missouri Dept. of Health,

497 U.S. 261, 295 (1990) (Scalia, J., concurring),

citing Blackburn v. State, 23 Ohio St. 146, 163

(1873).

In discounting the State’s important interest in the pro-

tection and preservation of human life, the Second Circuit

also cited this Court’s opinion in Planned Parenthood vy.

Casey, 505 U.S. 833 (1992). That citation was particularly

surprising in that Casey itself reaffirms the States’ “ .. .

16

legitimate interests from the outset of the pregnancy in pro-

tecting the health of the woman and the life of the fetus that

may become a child.” Casey, supra, 505 U.S. at 846. Nev-

ertheless, the Second Circuit relied on Casey when posing the

following rhetorical question:

“What concern prompts the state to interfere with a

mentally competent patient’s ‘right to define [his]

own concept of existence, of meaning, of the uni-

verse, and of the mystery of human life,’ Planned

Parenthood v. Casey, 505 U.S. 833, 851, 112 S.Ct.

2791, 2807, 120 L.Ed.2d 674 (1992), when the

patient seeks to have drugs prescribed to end life

during the final stages of a terminal illness? The

greatly reduced interest of the state is preserving

life compels the answer to these questions: ‘None.’ ”

Quill, supra, 80 F.3d at 730.

There are at least two fundamental flaws in the Second

Circuit's reliance on Casey for this proposition. First, it is

well-settled that “[i]t is not the province of this Court to

create substantive constitutional rights in the name of guaran-

teeing equal protection of the laws.” San Antonio School

District v. Rodriguez, 411 U.S. 1, 33 (1973). That, however,

was precisely what the Second Circuit did in this case. Within

the liberty interest described by this Court in Casey, the

Second Circuit has created a new right “to have drugs pre-

scribed to end life during the final stages of a terminal

illness”. Quill, supra, 80 F.3d at 730. Second, this is precisely

the sort of “unlimited right to do with one’s body as one

pleases” which this Court has consistently and soundly

rejected. See Roe v. Wade, 410 U.S. 113, 154 (1973); Bowers

v. Hardwick, 478 U.S. 186, 191 (1986); and Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 68 (1973), citing, inter alia,

constitutionally unchallenged laws against suicide.

Finally, in Quill, the Second Circuit suggested that New

York could achieve its objective of avoiding undue influence

on the elderly and infirm to choose death by “.. . es-

tablish[ing] rules and procedures to assure that all choices [to

commit assisted suicide] are free of such pressures.” Quill,

ee ee

17

supra, 80 F.3d at 730 (inserts added). With respect to the

definition of “terminal illness”, the Second Circuit suggested:

“Again, New York may define that stage of illness

with greater particularity, require the opinion of

more than one physician or impose any other oblig-

ation upon patients and physicians who collaborate

in hastening death. [footnote omitted]” Quill, supra,

80 F.3d at 731.

In the footnote which accompanies the quoted text, the Sec-

ond Circuit went on to suggest numerous other ways in which

the State of New York could achieve its objectives but still

allow assisted suicide. Quill, supra, 80 F.3d at 731 n. 4.

However, this same argument was rejected by the Court in

Dallas v. Stanglin, 490 U.S. 19 (1989), and, as in that case,

demonstrates a “ . missapprehen[sion] of the nature of

rational-basis scrutiny, which is the most relaxed and tolerant

form of judicial scrutiny under the Equal Protection Clause.”

Dallas, supra, 490 U.S. at 26-27. The fact that a State may, if

it chooses, seek to achieve its legitimate objectives through

other means does not, in any way, establish that the means

actually selected are either irrational or arbitrary. Indeed, as

this Court observed with respect to the problems of financing

and managing a statewide public school system:

“The very complexity of the problems . . . suggests

that there will be more than one constitutionally

permissible method of solving them, and that,

within the limits of rationality, the legislature's

efforts to tackle the problems should be entitled to

respect.” San Antonio School District v. Rodriguez,

411 U.S. 1, 42 (1973) (internal quotes and citation

omitted).

B. Certiorari Should be Granted to Reaffirm the

Essential Role of the States in our Federal System

and the Power of the People to Directly Govern

Their Own Affairs

With the ever-increasing power of medical science to

prolong life, even in the face of what would otherwise be

terminal illness, the States have had to strike a balance

between the rights of the individual and the demands of

organized society. That balance is grounded in the States’

recognition of their responsibility to protect both individual

rights and, at the same time, the lives of those who wish to

live no matter what their circumstances. In striking that bal-

ance, the States have drawn a line between an individual's

“right to be let alone”,'’ on the one hand, and intentionally

killing oneself, with or without assistance, on the other. That

balance, now a national consensus, is represented by statutes

in a majority of states which both ccdify an individual's right

to refuse unwanted medical treatment and, in the same legis-

lation, reject any affirmative act to end life. The exercise of

the right to refuse life-sustaining medical treatment permits

an individual to determine, at least to some extent, when he or

she will die. The exercise of this right does not, however,

condemn such an individual to suffer either an undignified

death or excruciating pain. Rather, at the same time an indi-

vidual elects to forego life-sustaining treatment, he or she

may choose to accept palliative care which will help insure

both a dignified death and well-controlled symptoms.'*®

Whether this balance should be abandoned and the line

redrawn to permit an individual to commit suicide without

state interference, and then redrawn yet again to permit

assisted suicide, is a matter appropriately left for the people

to decide, through their duly elected representatives or by

17 Olmstead vy. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting), overruled by Katz v. United States, 389 U.S. 347, 352-353

(1967).

18 Palliative care is designed to relieve distressing symptoms in dying

patients and includes measures to alleviate pain and suffering, together

with the provision of emotional, social and spiritual support for the patient.

The Hastings Center, Guidelines on the Termination of Life-Sustaining

Treatment and the Care of the Dying, 71-73 (1987). See also, American

Medical Association, Council on Ethical and Judicial Affairs, Code of

Medical Ethics Reports, Vol. V, No. 2 (July 1994), Report 59, Physician-

Assisted Suicide, 269, 272-273 (describing advances in hospice care).

oe

19

initiative ballot.'? The principles of federalism embodied in

our Constitution require no less. Simply put, as Justice Scalia

noted in the right to refuse treatment context, “. . . the federal

courts have no business in this field .. . " Cruzan v. Director,

Missouri Dept. of Health, 497 U.S. 261, 293 (1990) (Scalia,

J., concurring). In addition, as the Missouri Supreme Court

has observed, the courts are simply not an appropriate forum

for resolution of broad questions of public policy.

“Broad policy questions bearing on life and death

issues are more properly addressed by representa-

tive assemblies. These have vast fact and opinion

gathering and synthesizing powers unavailable to

courts; the exercise of these powers is particularly

appropriate where issues invoke the concerns of

medicine, ethics, morality, philosophy, theology and

law. Assuming change is appropriate, this issue

demands a comprehensive resolution which courts

cannot provide.” Cruzan v. Harmon, 760 S.W.2d

408, 426 (Mo. banc 1988), aff’d sub nom. Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261

(1990).

As the States continue to grapple with the difficult ques-

tions presented by the ever-increasing ability of medical tech-

nclogy to prolong life, the corresponding need to allow the

States to serve as laboratories for change becomes paramount.

Indeed, as this Court has recognized, “[t}he science of gov-

ernment .. . is the science of experiment, . . . " Garcia v. San

Antonio Metro., 469 U.S. 528, 546 (1985) (citation and inter-

nal quotes omitted).

“To stay experimentation in things social and

economic is a grave responsibility. Denial of the

right to experiment may be fraught with serious

consequences to the Nation. It is one of the happy

incidents of the federal system that a single coura-

geous State may, if its citizens choose, serve as a

laboratory; and try novel social and economic

'9 See People v. Kevorkian, 447 Mich. 436, 481-482, 527 N.W.2d

714, 733 (1994), cert. denied, 115 S.Ct. 1795 (1995), and Donaldson v.

Lungren, 2 Cal.App.4th 1614, 1623, 4 Cal.Rptr.2d 59, 64 (1992).

20

experiments without risk to the rest of the coun-

try. ...” New State Ice Co. v. Liebmann, 285 U.S.

262, 311 (1932) (Brandeis, J., dissenting).

If allowed to stand, the Second Circuit’s opinion in Quill

will effectively extinguish the power of the States to continue

to serve as laboratories for change on an issue that arguably

will affect more lives than any other issue the States will face

in the foreseeable future. If allowed to stand, it will also

“ .. invite[] an unelected federal judiciary to make decisions

about which state policies it favors and which ones it dis-

likes.” Garcia v. San Antonio Metro., 469 U.S. 528, 546

(1985). At the same time, it will “ . . . relegate the States to

precisely the trivial role that opponents of the Constitution

feared they would occupy.” Garcia, supra, 469 U.S. at 575

(Powell, J., dissenting) (footnote omitted).

“The Founding Fathers did not establish the United

States as a democratic republic so that elected offi-

cials would decide trivia, while all great questions

would be decided by the judiciary.” Compassion in

Dying v. State of Washington, 79 F.3d 790, 858 (9th

Cir. 1996) (Kleinfeld, C.J., dissenting).

Ill. CONCLUSION

For all the foregoing reasons, amici States respectfully

request that the Court grant certiorari in this case.

Respectfully submitted,

Danie. E. LUNGREN

Attorney General

of California

*THomas S. Lazar

Deputy Attorney General

110 West “A” Street

Suite 1100

San Diego, CA 92101

(619) 645-2117

Counsel for Amici States

* Counsel of Record

ne