Amicus Curiae Brief — Vacco v. Quill

MOTION FILED

JUN 17 1996 ‘| No. 95-1858

3u the Supreme Court of the United States

OCTOBER TERM, 1995

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

York, Georce E. PATAKi, Governor of the State of

New York, ROBERT M. MORGENTHAU, District Attor-

ney of New York County,

Petitioners,

v.

Timothy E. QuiLt, 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

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF

CATHOLIC MEDICAL ASSOCIATION

IN SUPPORT OF PETITIONERS

JOSEPH J. FRANK

SERGIO ALVAREZ-MENA, IIT

PETER BUSCEMI *

MorGAN, LEwis & Bockrus LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7190

* Counsel of Record

WILSON - Epgs Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

Iu the Suprenw Court of thy United States

OcTOBER TERM, 1995

No. 95-1858

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

York, Grorce E. Pataki, Governor of the State of

New York, RoBERT M. MorGENTHAU, District Attor-

ney of New York County,

. Petitioners,

TimoTtuy E. QuiL__, 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

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Catholic Medical Association (“CMA”) respect-

fully moves this Court for leave to file a brief amicus

curiae in support of Petitioners. Petitioners have con-

sented to the filing of this brief. Respondents, however,

have refused consent, thus necessitating the filing of this

motion.

The CMA is a non-profit, public service organization

founded in 1932. The CMA promotes the principles of

Roman Catholic medical ethics in science and in the prac-

tice of medicine. The CMA includes more than one

thousand physicians and coordinates the activities of more

than 80 regional Catholic physicians’ guilds in the United

States and Canada.

Since 1932, the CMA has published The Linacre

Quarterly, a leading scholarly journal on _ biomedicai

ethics. The CMA’s companion Linacre Institute routinely

produces studies on important medical and moral issues.

The CMA also serves as a resource for the medical com-

munity, holding annual conferences where scholars and

health care professionals meet and interact.

The CMA, as a potential amicus curiae before this

Court, would contribute its professional and ethical per-

spective on physicians and their role in treating the termi-

nally ill. Since its inception, the CMA has brought the

practical experience and scholarly expertise of its members

to bear on important societal issues. The CMA wishes to

share with this Court the insights of the scholars and

physicians that are its practicing members.

In addition to its own experience, the CMA hopes to

inform the Court of a central theme in Catholic medical

ethics, the distinction between meeting death with peace

and dying at one’s own hand.

For decades, Catholic religious and medical leaders

have differentiated between suicide and the withdrawal of

life support. In rejecting such a distinction, the Second

Circuit broke from a venerable historical tradition. As a

unique part of that tradition, the CMA asks for the op-

portunity to be heard.

The motion of the CMA for leave to file the accom-

panying brief amicus curiae in support of Petitioners

should be granted.

Respectfully submitted,

JOSEPH J. FRANK

SERGIO ALVAREZ-MENA, IIT

PETER BUSCEMI *

MORGAN, LEwIs & Bockius LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7190

JUNE 1996 * Counsel of Record

QUESTION PRESENTED

Whether New York's prohibition of assisted suicide

violates the Equal Protection Clause of the Fourteenth

Amendment.

(i)

TABLE OF CONTENTS

Page

QUESTION PREBENTED .................--.::---ccc-cccceecceeeeeee-s i

TABLE OF AUTHORITIES ................................. Ee iv

INTEREST OF THE AMICUS CURIAE ............. ia 1

REASONS FOR GRANTING THE PETITION as 2

CERTIORARI SHOULD BE GRANTED TO

ESTABLISH THAT A STATE MAY PROHIBIT

ASSISTED SUICIDE CONSISTENT WITH THE

EQUAL PROTECTION CLAUSE OF THE FOUR-

TEENTH AMENDMENT... Pe oe 4

A. Assisted Suicide Is Not The Same As The With-

drawal Of Life Support... 5

1. ee eee

sions wneasesieabie State Courts Of Last

2. The Opinion Below Conflicts With The Over-

whelming Consensus Of The Medical Com-

munity ........ Be Ce De EE An 12

B. States Have Legitimate Interests In eee

Assisted Suicide .......... scnieallDtaiaiitageianaiaainataataaniastmiints 15

GPG cenncccncusesseeupetcemmmequeeenmemngmeste 19

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Barber v. Superior Court, 147 Cal. App. 3d 1006,

195 Cal. Rptr. 484 (1983) _...................--- 2a

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

209 Cal. Rptr. 220 (1984) 2... ...c--ccceeceeecceeeeees 2a

Blackburn v. State, 23 Ohio St. 146 (1872) ........... 2,17, 7a

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

225 Cal. Retr. BOT (1986) .......-....-...--2..-00-.00--..000-00 2a

In re Browning, 568 So. 2d 4 (Fla. 1990) ................. ll,la

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

|) SSS EE 5, 15

In re Colyer, 99 Wash. 2d 114, 660 P.2d 738

EES Ea 12

Commonwealth v. Bowen, 13 Mass. 356 (1816) ........ Ta

Compassion in Dying v. Washington, 79 F.3d 790

(9th Cir. 1996) (en banc), modified, 1996 WL

294445 (9th Cir. May 28, 1996) .......................... 4

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985)... 9, 2a

Cruzan v. Director, Missouri Dep’t of Health, 497 .

eG LEE passim

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

(en banc), aff'd sub nom. Cruzan v. Director,

Missouri Dep’t of Health, 497 U.S. 261 (1990)... 16-17

Dallas v. Stanglin, 490 U.S. 19 (1989) .................... 15

De Grella ex rel. Parrent v. Elston, 858 S.W.2d

BG yyyyy—————————————E———— 10, la

In re Doe, 411 Mass. 512, 583 N.E.2d 1263, cert.

denied, 508 U.S. 950 (1992) ............-.---...c-eeccccceeee la

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

CG , ) _yy————————————— 2a

In re Eichner, 102 Misc. 2d 184, 423 N.Y.S.2d 580

(Sup. Ct. 1979), aff'd as modified sub nom.

Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d

517 (1980), aff'd as modified sub nom. In re

Storar, 52 N.Y.2d 368, 420 N.E.2d 64, 438

N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981)... 7, 2a

In re pon of Longeway, 133 Ill. 2d 33, 549 N.E.2d

CG ———————————— la

In re Fiori, 673 A.2d 905 (Pa. 1996), aff’g 438

Pa. Super. 610, 652 A.2d 1350 (1995) ................ la, 2a

v

TABLE OF AUTHORITIES—Continued

Page

Foody v. Manchester Mem. Hosp., 40 Conn. Supp.

127, 482 A.2d 718 (1964) ....2.......... eee. 2a

Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.E.2d

77, 551 N.Y.S.2d 876 (1990) 00 10, la

In re Gardner, 584 A.2d 947 (Me. 1987)... ll, la

In re Grant, 109 Wash. 2d 545, 747 P.2d 445

(1987), modified on other grounds, 757 P.2d

i Eee ence 11-12, la

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450

EE Ee ee ae ee 16

In re L.W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992). 12, 1a

In ve Lawrence, 579 N.E.2d 82 (Ind. 1991)... la

Leach v. Akron General Med. Ctr., 68 Ohio Misc. 1,

426 N.E.2d 809 (Ct. Com. Pl. 1980) ... 2a

McConnell v. Beverly Enters., 209 Conn. 692, 553

gt el lis al a a le la

McGowan v. Maryland, 366 U.S. 420 (1961)... 15

McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617

aR ES SC ee la

McMahan v. State, 168 Ala. 70, 53 So. 89 (1910) .. Ta

In re P.V.W., 424 So. 2d 1015 (La. 1982)... ‘11, 2a

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

714 (1994), cert. denied, 115 S. Ct. 1795 (1995)... 3, 15,

17, 18, la

Plyler v. Doe, 457 U.S. 202 (1982) 0 4

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

denied, 429 U.S. 922 (1976) .... eevee, 10, 11

Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d

ER a as GR OE A Tho 10, la

Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.24 337,

PU x

In re Rosebush, 195 Mich. App. 675, 491 N.W.2d

RSS SR Aa 2a

San Antonio Indep. Sch. Dist. v. Rodriguez, 411

RRS EE RIE Se ER Se 5

Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct.

App. 1978), aff’d, 379 So.2d 359 (Fla. 1980)... 2a

In re Severns, 425 A.2d 156 (Del. Ch. 1980)... 2a

State v. Jones, 86 S.C. 17, 67 S.E. 160 (1910). 7a

vii

TABLE OF AUTHORITIES—Continued

vi

TABLE OF AUTHORITIES—Continued

Page Page

State v. McAfee, 259 Ga. 579, 385 S.E.2d 651 Fla. Stat. Ann. § 782.08 (West 1995)... 6a

(19BO) .........--...eenne-enecerronsnrnrennsrnensersnsanensnenrensensseannarens la Ga. Code Ann. § 16-5-5(b) (1995)... 6a

State v. Willis, 255 N.C. 473, (421 S.E.2d 854 Ga. Code Ann. § $1-82-9 (1995) 00 8a

| RE NTT ES TS ES Ta Ga. Code Ann. § 81-86-2 (1995) 000000 cccccseeoe 8a

In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 Haw. ivev. Stat. § 8327D-13 (1995)... 8a

N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981). 7 Haw. Rev. Stat. § 707-702 (1995) oil 6a

Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d Idaho Code § 39-161(1) (1995) 000 8a

375, 21 Cal. Rptr. 2d 357 (1993) . la Ill. Comp. Stat. ch. 720, para. 5/12-31 (Smith- Hurd

United States v. Brandt (the Medical Case), 1 ii o

Trials of War Criminals Before the Nuremberg Ill. Comp. Stat. ch. 755, para. 35/9 (Smith-Hurd

Military Tribunals Under Control Council Law Sea Oyneeic) e ted beee male mations Ps

No. 10 (1949)... Ln Ill. Comp. Stat. ch. 755, para. 40/50 (Smith-Hurd

I'nited States v. Stanley, 483 U.S. 669 (1987)... pininl 3 a RT aS SE 3a

Vance v. Bradley, 440 U.S. 93 (1979) _.............-...- 9 4 —_ som. 16-96-1-18 (West 1995)... on

TITUTI n. § 16-36-4-19 (West 1995) 00. 3a

Sean STATE CONS ONAL Ind. Code Ann, § 35-42-1-2.5(b) (West 1996) ~

lowa Code Ann. § 144A.11.6 (West 1995). 8a

Ala. Code § 18A-6-4 (1995)... .. ee ee aii Ta Iowa Code Ann. § 144B.12.2 (West 1995)... 8a

Ala. Code 8 22-8A-10 (1995) Seeee segnpecoseseoronosese seoeeceseccens 3a Iowa Code Ann. §§ T07A.2, 107A.3 (1996) eign ~—e 6a

Alaska Stat. § 11.41.120(a) (2) (1995)... 6a Kan. Stat. Ann. § 21-8406 (1995) 00a Ga

Alaska Stat. § 18.12.080(f) (1995) .. ont en. Oh a te tee oo 6a

Ariz. Rev. Stat. Ann, § 18-1108(A) (3) (1995) 6a Ky. Rev. Stat. Ann. § 216,802 (Baldwin 1995) ~

Ariz. Rev. Stat. Ann. § 86-8210 (1995) 8a Ky. Rev. Stat. Ann, § 811.687 } (Michie /Bobbs-

Ark. Code Ann. § 5-10-104(a) (2) (Michie 1995)... 6a Merrill 1995) . b: . ss

Ark. Code Ann. § 20-17-210(g) (Michie 1995).......... 8a La. Const, art. I, § 20 . 1B SR tee reese -

Cal. Health & Safety Code § 7191. 5(g) (West La. Rev. Stat. Ann. N 14:82.12 (West 1995). Ks Pa

RDDG)........-----nen-00--0nerssenneenserneennssensnssnnernsencannsrusanvsoncsnes 3a La. Rev. Stat. Ann. § 1299.58.10 (West 1995) Sa

Cal. Penal Code § 401 (West 1995) . 6a Ma fen. Sieh. don. th 10A.00he Gene lk

Golo. Rev. Stat. Ann. § 15-18-112(1) (West 1995)... 3a Me, Rov. Stat. Amn. tH. 18-A, 96-218 (Weet 1805) on

Colo. Rev. Stat. Ann, § 18-3-104(1)(b) (West Md. Code Ann., Health-Gen § 5-611 (1995). =

1ODG) .........----00---n-rnvernersverneconsnnssnsrensenssnssoosenssnsenssenesnes 6a Mass. Gen. Lewes Ann. ch. 201D, § 12 (West 1995) . ed

Conn. Gen. Stat. Ann. § 194-575 (West 1995).......... 8a Mich. Comp. Laws Ann, § 700.496(20) (West

Conn. Gen. Stat. Ann. dueeanmnendee (2) (West TREES Sic ie ED. SS! Tt See da

a? - a Mich. Comp. Laws Ann. § 752, 1027 (West 1995) _ 6a

Del. Code ‘Ana. tit. ‘1, $645 (1995) . eS Te ae SE 6a Minn. Stat. Ann. § 145B.14 (West 1995) Po

Del. Code Ann. tit. 16, § 2507 (1995) 0. Ba Minn. Stat. Ann. § 609.215 (West 1995) 6a

D.C. Code Ann. § 6-2480 (1995) os veh 8a Mien Cole tan, 0-aatten cee da

D.C, Code Ann. § 21-2212 (1995) imactunueceeuinesseament ; 8a Miss. Code Ann. § 97-83-49 (1993) °. 0a De

Fla. Stat. Ann. § 765.309(1) (West 1995) .............. 8a Mo. Ann. Stat. § 459.055(5) (Vernon 1995). 4a

viii

TABLE OF AUTHORITIES—Continued

Page

Mo. Ann. Stat. § 565.023 (1) (2) (Vernon 1995) ....... 6a

Mont. Code Ann. § 45-5-105 (1993) -........................... 6a

Mont. Code Ann. § 50-9-205(7) (1995) ...................... 4a

Neb. Rev. Stat. § 20-412(7) (1995) .......................... 4a

Neb. Rev. Stat. § 28-307 (1995) ..................-......0.--0- 6a

Nev. Rev. Stat. § 449.670(2) (1993) ................ tiara 4a

N.H. Rev. Stat. Ann. § 187-H:10(IT) (1995) ............ 4a

N.H. Rev. Stat. Ann. § 680:4 (1995)... 6a

N.J. Stat. Ann. § 2C:11-6 (West 1995) ...................... 6a

N.J. Stat. Ann. § 26:2H-54(e) (West 1995) .............. 4a

N.M. Stat. Ann. § 24-7-8 (Michie 1996) ..................... 4a

N.M. Stat. Ann. § 30-2-4 (Michie 1995) .................... 6a

N.Y. Penal Law § 120.30 (McKinney 1995) ............... 6, 6a

N.Y. Penal Law § 125.15 (McKinney 1995) ........... 6, 18, 6a

N.Y. Pub. Health Law §§ 2960-79 ( McKinney

IIE cicciiscsnasecantninntansitianaiteittiiiatiaiaiintanattiiesiinenne 8

8

N.Y. Pub. Health Law § 2964 (McKinney 1995) .... 8

N.Y. Pub. Health Law § 2981 (McKinney 1995) .... 8

N.Y. Pub. Health Law § 2989 (McKinney 1995)... 8, 4a

N.C. Gen. Stat. § 90-820(b) (1995) ........................... 4a

N.D. Cent. Code § 12.1-16-04 (1995) 0.000... 6a

N.D. Cent. Code § 23-06.4-01 (1995) ..........0.0.... 4a

N.D. Cent. Code § 23-06.5-91 (1995) ..........0.0..... 4a

Ohio Rev. Code Ann. § 2133.12(d) (Baldwin

4a

Okla. Stat. Ann. tit. 21, § 818 (West 1995)... 6a

Okla. Stat. Ann. tit. 68, § 3101.12(¢) (West 1995) .. 4a

Or. Rev. Stat. § 127.570 (1995)... 4a

Or. Rev. Stat. § 163.125(b) (1995) —........................... 6a

18 Pa. Cons. Stat. Ann. § 2505 (1995)... Ta

20 Pa. Cons. Stat. Ann. § 5402(b) (1995) .................. 4a

P.R. Laws Ann. tit. 33, § 4009 (1990)... 7a

R.1. Gen. Laws § 23-4.10-9(f) (1995) 0... 4a

R.I. Gen. Laws § 23-4.11-10(f) (1995)... ................. 4a

S.C. Code Ann. § 44-77-130 (Law. Co-op. 1993) ....... 4a

S.D. Codified Laws Ann. § 22-16-37 (1996) ............... 7a

S.D. Codified Laws Ann. § 34-12D-20 (1996)..................... 4a

Tenn. Code Ann. § 32-11-1100 (1995) .................ccccccecceeeeeeee 4a

ix

TABLE OF AUTHORITIES—Continued

Page

Tenn. Code Ann. § 39-18-216 (1995)... 7a

Tex. Health & Safety Code Ann. § 672.020 (West

EA LE Sc Se yc 4a

Tex. Penal Code Ann. § 22.08 (West 1995)... Ta

Utah Code Ann. § 75-2-1118 (1995)... 4a

V.I. Code Ann. tit. 14, § 2141 (1994)... Ta

Vt. Stat. Ann. tit. 18, § 5260 (1995) 0. 4a

Va. Code Ann. § 54.1-2990 (Michie 1995) ............ 4a

Wash. Rev. Code Ann. § 9A.36.060 (West 1995)... Ta

Wash. Rev. Code Ann. § 70.122.100 (West 1995) __. 4a

W. Va. Code § 16-30-10 (1995) 0000 4a

Wis. Stat. Ann. § 154.11(6) (West 1995)... 5a

Wis. Stat. Ann. § 940.12 (West 1995)... 7a

Wyo. Stat. § 8-5-211 (1995) 0 5a

Wyo. Stat. § 6-2-107 (1995) 0 7a

Wyo. Stat. § 35-22-109 (1995) 000 5a

MISCELLANEOUS

John A. Alesandro, Comment: Physician-Assisted

Suicide and New York Law, 57 Alb. L. Rev. 820

ESS eas ee ee a ae 10

William Blackstone, Commentaries on the Law of

REESE ERTIES Eee SSS ee ae a 2

AMA, Code of Medical Ethics, § 2.211 (1994)... 2

AMA Council on Ethical and Judicial Affairs,

Code of Medical Ethics: Current Opinions

ERE Ra es a a SESS acm Ne 13

Hippocrates, The Oath (W.HLS. Jones trans., Loeb

Ciassienl Library 1008) ....................-..c..eccece..-..--. 2

Yale Kamisar, Against Assisted Suicide—Even a

Very Limited Form, 72 U. Det. Mercy L. Rev.

REAR CIES a es De 5

W. Page Keeton et al., Prosser and Keeton on the

Law of Torts (5th ed. 1984) 12

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

Right?, 24 Duq. L. Rev. 1 (1985) 5-6

New York State Task Force on Life and the Law,

Life Sustaining Treatment: Making Decisions

and Appointing a Health Care Agent (July

Eo iiicanta talilnatiaiaidianinrianiaiieneacaiisicitiiatiitin 19

x

TABLE OF AUTHORITIES—Continued

Note, Physician-Assisted Suicide and the Right to

Die with Assistance, 105 Harv. L. Rev. 2021

SS ee

Pope John Paul II, Encyclical Letter Evangelium

Vitae (March 25, 1905) ..............-.-.-----ccccceeeeeeeeees

Pope Pius XII, The Prolongation of Life, reprinted

in L’Osservatore Romano, Nov. 25-26, 1957........

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical & Behav-

ioral Research, Deciding to Forego Life-

Sustaining Treatment (1982) ............................--.

Sacred Congregation for the Doctrine of the Faith,

Declaration on Euthanasia (Boston: Daughters

" ( 9 § Esher eeksee a es

Page

14

2,14

13

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1858

Dennis C. Vacco, Attorney General of the State of New

York, GrorGe E. Pataki, Governor of the State of

New York, RoBERT M. MorGENTHAU, District Attor-

ney of New York County,

Petitioners,

Vv.

TimoTny E. QuiL_, M.D., SamMuEL 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 AMICUS CURIAE OF

CATHOLIC MEDICAL ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The Catholic Medical Association (“CMA”) is a na-

tional organization of Roman Catholic physicians and

scholars. As more fully set forth in its motion for leave

to file this brief, the CMA seeks to assist this Court by

presenting the considered experience of its members, who

practice daily in the field of medical ethics.

2

REASONS FOR GRANTING THE PETITION

“I will give no deadly medicine “Physician assisted suicide _is

to anyone if asked, nor suggest fundamentally incompatible with

any such counsel” ? the physician’s role as healer” *

Hippocrates of Cos American Medical Association

c. 410 B.C. 1994 A.D.

From the dawn of the healing art until the present,

physicians have been asked to heal rather than to kill, to

save lives rather than to end them. Societies throughout

history. including our own, have recognized life and its

protection as an unqualified good,’ indeed, as the good

from which other societal goods derive.‘ Physicians serve

society by maintaining life, by healing patients who re-

1 Hippocrates, The Oath (W.H.S. Jones trans., Loeb Classica!

Library 1923).

2 American Medical Ass’n, Code of Medical Ethics § 2.211 (1994).

’ Society’s unqualified commitment to life runs throughout tradi-

tional jurisprudence. In Blackburn v. State, 23 Ohio St. 146, 163

(1872), for example, the Ohio Supreme Court observed that:

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 protec-

tion of the law. equally es the lives of those who are in the

full tide of life’s enjoyment, and anxious to continue to live.

Accord, 4 William Blackstone, Commentaries on the Law of England

*189 (“(tlhe suicide is guilty of [an offense] against the King, who

hath an interest in the preservation of all his subjects”). Similarly,

this Court has acknowledged the constitutionality of such a funda-

mental choice for life:

We think a State may properly decline to make judgments

abou: the “quality” of life that a particular individual may

enjoy, and simply rssert an unqualified interest in the preser-

vation of human life....

Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282

(1990).

4Pope John Paul IJ, Encyclical Letter Evangelium Vitae © 66

(March 25, 1995) (noting that life is God’s gift and that suicide

is a rejection of that gift; accord, 1 William Blackstone, Commen-

taries on the Laws of England *125 (“{llife is the immediate gift

of God, a right inherent by nature in every individual’).

3

quest their help, and by promoting health, which is

fundamental to the enjoyment of so many of life’s virtues.

Conversely, American society has always condemned

physicians who stray from the healing path, who use

their Lnowledge to harm, or who depart from their role

as guardians of society’s interest in life.’

On April 2, 1996, the Second Circuit departed from

that tradition. Invoking an equal protection analysis, the

court below held that there is no distinction between

assisted suicide and the withholding or withdrawal of

treatment. Pet. App. 30a-3la. The court then invali-

dated New York’s statutory distinction between assisted

suicide and the withdrawal of life support, holding that

it is “not rationally related to any legitimate state inter-

est.” Id. at 35a.

New York now seeks review of that decision. In sup-

port, the CMA notes that the decision below directly con-

flicts with: (1) eighteen state supreme courts that have

distinguished between assisted suicide and the withdrawal!

of life support; (2) the overwhelming consensus of the

medical community that assisting suicide and withdrawing

life support fundamentally differ; (3) this Court’s deci-

sion in Cruzan that States may constitutionally assert an

unqualified interest in life; and (4) the Michigan Su-

preme Court’s decision in People v. Kevorkian® that pro-

hibitions against physician-assisted suicide advance legiti-

mate state interests.

In addition, the difficulties with the decision below

are illustrated by a comparison between it and the Ninth

* See, c.9., United States v. Brandt (the Medicel Case), {I Trials

of War Criminals Before the Nuremberg Military Tribunals

Under Control Council Law No. 10, at 181 (1949); see also United

States v. Stonley, 483 U.S. 669, 710 (1987) (O’Connor, J., concur-

ring in part and dissenting in part).

* 447 Mich. 436, 527 N.W.2d 714 (1994), cert. denied, 115 S. Ct.

1795 (1995).

4

Circuit’s recent decision in Compassion in Dying v. Wash-

ington.’ Although the Ninth Circuit’s decision also in-

validates a state law prohibiting assistance in suicide, the

court’s opinion and the opinion below each reject the

rationale adopted by the other. The Ninth Circuit rejects

the equal protection approach followed by the court below,

and instead announces a substantive due process right

to physician-assisted suicide. 79 F.3d at 816. The court

below, by contrast, rejects any such due process right

but then invalidates the New Yerk statutes on equal

protection grounds. Pet. App. 19a, 30a-35a. This dis-

agreement is not surprising, because both decisions lack

a proper constitutional foundation.

Review is needed now to dispel the notion, advanced

by courts of appeals in two of the nation’s most populous

circuits, that the States are constitutionally powerless to

prohibit physicians and others from promoting or assist-

ing in suicide. Such dangerous precedents should not be

permitted to percolate any further in the lower federal

courts without review by this Court.

CERTIORARI SHOULD BE GRANTED TO ESTABLISH

THAT A STATE MAY PROHIBIT ASSISTED SUICIDE

CONSISTENT WITH THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT.

While the Equal Protection Clause requires that “all

persons similarly circumstanced should be treated alike,

. [t]he Constitution does not require things which are

different in fact or opinion to be treated in law as though

they were the same.” Plyler v. Doe, 457 U.S. 202, 216

779 F.3d 790 (9th Cir. 1996) (en banc), modified, 1996 WL

294445 (9th Cir. May 28, 1996). The Ninth Circuit’s decision in

Compassion in Dying became final on May 29, 1996. Earlier, the

court of appeals, on its own motion, directed the parties to submit

supplemental briefs on whether the case should be reheard em banc

before all twenty-eight judges of the Ninth Circuit. On May 29,

the court decided not to conduct such a hearing. On June 10, 1996,

this Court stayed the Ninth Circuit’s mandate, pending the timely

filing and disposition of a petition for certiorari.

5

(1982) (internal quotations and citations omitted). In-

stead, disparate treatment will normally pass equal pro-

tection scrutiny if the statutory classification is “ration-

ally related to a legitimate state interest.” City of Cle-

burne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

In addressing Respondents’ equal protection challenge,

the court of appeals asked first whether the New York

statutes at issue provide disparate treatment to similarly

situated groups and then, having answered that question

in the affirmative, whether the alleged “inequality” is

rationally related to a legitimate state interest. Pet. App.

20a-35a. Although it is far from clear that this Court's

decisions mandate such a two-step inquiry (rather than a

more direct examination of whether a sfatutory classifi-

cation is supported by a rational basis), the more funda-

mental problem with the court of appeals’ decision is that

it answers incorrectly both questions posed, and appears

to apply a more stringent level of constitutional scrutiny,

even while paying lip service to the “rational basis” test.

As New York observes, “[t]he Second Circuit’s decision

creates an ill-defined new substantive constitutional right,

brought forth in the name of equal protection... .

Pet. 13-14. This Court has previously rejected such mis-

use of the Equal Protection Clause, stating that “[i]t is

not the province of this Court to create substantive con-

stitutional rights in the name of guaranteeing equal pro-

tection of the laws.” San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 33 (1973).

A. Assisted Suicide Is Not The Same As The Withdrawal

Of Life Support.

The moral, civil, and common law has always regarded

the refusal or withdrawal of medica! treatment as funda-

mentally different from suicide." There is, moreover, an

* See Yale Kamisar, Against Assisted Suicide—Even a Very Lim-

ited Form, 72 U. Det. Mercy L. Rev. 735, 753-60 (1995) ; Thomas J.

6

obvious common-sense basis for this distinction. Declining

or discontinuing medical intervention so as to allow the

natural order to proceed and death to come when it will

is qualitatively different from prescribing or administering

toxic chemicals so as to cause death by unnatural means.

Yet, with the stroke of a pen, the court of appeals has

chosen to equate suicide with the decision of some patients

not to artificially extend their lives through medical tech-

nology. The equivalence postulated by the court of appeals

is illusory.

The Second Circuit invalidated two statutes: New

York Penal Law § 125.15 and New York Penal Law

§ 120.30 (McKinney 1995). Section 125.15 provides

that “[a] person is guilty of manslaughter in the second

degree when: . . . [h]e intentionally . . . aids another

person to commit suicide.” Section 120.30 provides that

“[a] person is guilty of promoting a suicide attempt when

he intentionally . . . aids another person to attempt

suicide.”

The court of appeals began its equal protection anal-

ysis by concluding that Sections 125.15 and 120.30 treat

terminally ill patients on life support differently from

anyone else. How the court arrived at this conclusion,

however, remains a mystery. Neither statute creates any

facial classification. Instead, each merely prohibits par-

ticular conduct (i.e.. assisting another to commit or to

attempt suicide).” The court purportedly discovered a

surreptitious classification when it read New York’s living

will statute in conjunction with New York’s prohibitions

against assisted suicide. Pet. App. 26a-27a. Contrary to

the court’s view, however. neither the living will statute

nor w any of the other authorities cited supports a conclusion

Masese et al., Suicide: A Constitutional Right? 24 Dug. L. Rev.

1, 9-13 (1985).

*No record evidence suggests that either statute has been

applied to disadvantage any group. Indeed, none of the parties has

been prosecuted under either statute. Pet. App. 7la.

7

that New York has recognized a general right of its citi-

zens to “hasten death.”

The court of appeals cited the companion cases of Jn

re Storar” and Eichner v. Dillon for the proposition that

“the New York Court of Appeals [has] recognized the

right of a competent, terminally ill patient to hasten his

death upon proper proof of his desire to do so.” Pet.

App. 25a. An examination of Storar and Eichner, how-

ever, shows that both cases discuss the right to refuse

medical treatment rather than any right to “hasten death.”

Indeed, the New York Court of Appeals expressly stated

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

to their lives.

52 N.Y.2d at 377, 420 N.E.2d at 71, 438 N.Y.S.2d

at 273. The Eichner Court also observed that the State's

interest in preventing suicide is not implicated in the

withdrawal of life support."’

#52 N.Y.2d 363, 420 N.E.2d 64, 488 N.Y.S.2d 266, cert. denied,

454 U.S. 858 (1981).

') 62 N.Y.2d at 377 n.6, 420 N.E.2d at 71 n.6, 438 N.Y.S.2d at 273

n.6 (“[i)n other cases the State may be able to assert additional

interests, such as, prevention of suicide or, perhaps, protection of

minor children or dependents. Those concerns are inapplicable

here. Brother Fox's condition was not self-inflicted”).

Eichner involved two members of a Roman Catholic order, Father

Eichner and Brother Fox. Brother Fox was in a permanent vegeta-

tive state and dependent on a respirator. Father Eichner, Fox's

religious superior and legal guardian, sought to have the respirator

withdrawn. The Second Circuit's reliance on Eichner is particularly

misplaced. Certainly Father Eichner was not asking for permission

to assist in Brother Fox's suicide. It would have been morally

reprehensible to him as a Catholic priest to do so.

The Second Circuit also invoked Rivers v. Katz™ for

the proposition that New York has recognized a right to

hasten death. Pet. App. 25a-26a. Like Storar and Ejich-

ner, however, Rivers involved the right to refuse unwanted

medical treatment.”

Nor do New York's living will statutes * establish any

general right of New York citizens to hasten death. In-

stead, they merely codify the common law right to refuse

medical treatment." Indeed, the New York legislature

itself drew a sharp distinction between suicide and the

withdrawal of life support when it provided that:

[t}his article is not intended to permit or promote

suicide, assisted suicide, or euthanasia; accordingly,

nothing herein shall be construed to permit an agent

to consent to any act or omission to which the prin-

cipal could not consent under law.

New York Public Health Law § 2989 (1995).

1. The Opinion Below Conflicts With The Decisions Of

Eighteen State Courts Of Last Resort.

New York is not alone in recognizing the distinction

between assisted suicide and withdrawal of life support.

In equating the two (Pet. App. 31a), the Second Circuit

1267 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986).

18 67 N.Y.2d at 493, 495 N.E.2d at 341, 504 N.Y.S.2d at 78 (“[i)n

Storar, we recognized that a patient’s right to determine the course

of his medical treatment was paramount to what might otherwise

be the doctor’s obligation to provide medical care, and that the

right of a competent adult to refuse medical treatment must be

honored, even though the recommended treatment may be beneficial

or even necessary to preserve the patient’s life’’).

™% New York Public Health Law art. 29-B, §§ 2960-79; New York

Public Health Law art. 29-C, §§ 2980-94.

1% See, e.g., New York Public Health Law § 2964 (recognizing

right of adult with capacity to consent to an order not to resusci-

tate), and § 2981 (allowing for appointment of an agent “to make

health care decisions on principal's behalf”) .

9

placed itself into direct conflict with at least eighteen

State courts of last resort. The relevant state court deci-

sions are listed in Appendix A.

In considering whether different groups are similarly

situated for equal protection purposes, this Court has

often relied on “common-sense proposition[s]” regarding

the relative characteristics of the involved. See,

e.g., Vance v. Bradley, 440 U.S. 93, 112 (1979) (rely-

ing on “the common-sense proposition that aging—almost

by definition—inevitably wears us all down”). At least

eighteen state courts have similarly drawn a common-

sense distinction between forgoing life support and com-

mitting suicide.

The legal distinction between suicide and the with-

drawal of life support was clearly appreciated by the New

Jersey Supreme Court in In re Quinlan, 70 N.J. 10, 43,

355 A.2d 647, 665, cert. denied, 429 U.S. 922 (1976).

In Quinlan, the guardians of a young comatose woman

sought permission to withdraw the artificial means of life

support that were keeping her alive. Faced with the argu-

ment that such a course would amount to suicide or

homicide, the New Jersey Supreme Court responded that

it “would see a real distinction between the self-infliction

of deadly harm and a self determination against artificial

life support or radical surgery, in the face of irreversi-

ble, painful and certain imminent death.” 70 N.J. at 43,

355 A.2d at 665. The court further observed that “there

would be no criminal homicide” in removing Ms.

Quinlan’s ventilator because her “ensuing death would

not be homicide but rather expiration from existing nat-

ural causes.” 70 N.J. at 51, 355 A.2d at 669-70.

The New Jersey Supreme Court later addressed assisted

suicide and the withdrawal of life support in In Re

Conroy, 98 N.J. 321, 486 A.2d 1209 (1985). This time

the court squarely held that “declining life-sustaining

medical treatment may not properly be viewed as an

attempt to commit suicide.” 98 N.J. at 350-51, 486 A.2d

at 1224.

10

With medical science’s increasing ability to sustain life

through artificial means, state statutes allowing individuals

to express their willingness to forgo such means of life

support have proliferated. All 50 states and the District

of Columbia have enacted living will statutes distinguish-

ing the withdrawal of life support from assisted suicide.

These statutes are” listed in Appendix B. Against the

background of such laws, other state courts have followed

Quinlan’s lead. The Arizona Supreme Court, for example,

specifically ruled that “{a]sserting the right to refuse

medical treatment is not tantamount to committing sui-

cide.” Rasmussen v. Fleming, 154 Ariz. 207, 218, 741

P.2d 674, 685 (1987).

Likewise, in De Grella ex rel. Parrent v. Elston, the

Kentucky Supreme Court contrasted “‘[mJercy killing’

and ‘euthanasia’ or any other ‘affirmative or deliberate act

to end life’ [which] are fundamental violations of the

common law,” with “withdrawal of nutrition and hydra-

tion from a person . . . in a persistent vegetative state. . .

[which] is medically recognized as fitting the definition of

‘permit{ing] the natural process of dying’... .” 858

S.W.2d 698, 707 (Ky. 1993). The New York Court of

Appeals has embraced the same distinction. See Fosmire

v. Nicoleau, 75 N.Y¥.2d 218, 227, 551 N.E.2d 77, 82,

551 N.Y.S.2d 876, 881 (1990) (“merely declining medi-

cal care, even essential treatment, is not considered a

suicidal act” ).”*

Quinlan’s progeny have often confronted fundamental

state law questions in drawing their distinction between

withdrawing life support on the one hand and suicide or

euthanasia on the other. The Louisiana State Constitution,

for example. includes aun explicit prohibition against

euthanasia. La. Const. art. I, § 20 (“No law shall sub-

ject any person to euthanasia... .”). Nevertheless, the

Louisiana Supreme Court has drawn a principled distinc-

1% For a comprehensive study of New York’s historic opposition

to assieted suicide, see John A. Alesandro, Comment: Physician-

Assisted Suicide and New York Law, 57 Alb. L. Rev. 820 (1994).

11

tion between euthanasia and withdrawing life support.

See In re P.V.W., 424 So.2d 1015, 1022 (La. 1982)

(holding that “[t}hese extraordinary means of preserving

a person's ‘existence’ in an irreversible vegetative coma

have little to do with the continuation or the ending of

‘life’, and removal of such systems under highly restricted

circumstances cannot reasonably be construed as violative

of the constitutional prohibition against euthanasia”).

Not only do the States agree that withdrawal of life

support differs from suicide, but they generally agree on

why this is so. Beginning with Quinlan, state courts have

consistently held that when life support is removed, the

patient's preexisting condition, and not the removal of

the life support, is the legal cause of death. See, ¢.g.,

Quinlan, 70 N.J, at 51, 355 A.2d at 669-70. By con-

trast, the person who ingests a lethal substance causes

his own death; there is no preexisting condition to blame.

Following such reasoning, the Florida Supreme Court

held that “suicide is not an issue when . . . the discon-

tinuance of life support ‘in fact will merely result in

[the patient’s] death, if at all, from natural causes.” Jn

re Browning, 568 So.2d 4, 14 (Fla. 1990) (citation

omitted ). The Maine Supreme Court agreed that a

patient’s “decision to live without artificial life-sustaining

procedures would not constitute suicide since the griev-

Ous injuries resulting in his present condition were not

self-inflicted. . . . His decision not to receive {medical

procedures], far from constituting suicide, is a choice to

allow to take its course the natural dying process set in

moion by his physiological inability to chew or swallow.”

In re Gardner, 534 A.2d 947, 955-56 (Me. 1987) (cita-

tions omitted). Finally, the Washington Supreme Court

expressly disassociated itself from an endorsement of

suicide or cuthanasia, though finding that a patient has

a right to withhold medical or artificial life support de-

vices. The court reasoned that “in none of these cases

can the withholding of life sustaining devices be deemed

ithe cause of [the patient's] death. The cause of her death

12

will be [the] disease.” In re Grant, 109 Wash. 2d 545,

563-64, 747 P.2d 445, 455-56 (1987), modified on

other grounds, 757 P.2d 534 (Wash. 1988); accord, In

re Colyer, 99 Wash. 2d 114, 123, 660 P.2d 738, 743

(1983).

The Second Circuit apparently misunderstood this

causation analysis, which turns on the fundamental tort

law distinction between cause in fact and legal or proxi-

mate cause. Although withdrawal of life support may be

the “but for” cause of a patient's death, the law has long

recognized a valid distinction between cause in fact and

proximate or “responsible” cause. See, e.g., W. Page

Keeton et al., Prosser and Keeton on the Law of Torts

§ 42, at 273 (Sth ed. 1984). Although in both instances

an act of the doctor or the patient may be the “but for”

cause of the patient’s death, in suicide the act will also be

the proximate cause. From any common-sense perspective,

it is not irrational to say that a person who either refuses

life support or requests that it be withdrawn dies from

his preexisting condition, while the person who ingests

deadly medicine dies at his own hand. That is why state

court after state court has rejected the equivalence asserted

by the court below between suicide and withdrawing life

support. In the words of the Wisconsin Supreme Court,

“No one can dispute that the withdrawal of treatment,

especially artificial feeding, will result in the death of a

patient. However, it is equally indisputable that the result

is the natural death of the body,” Jn re L.W., 167 Wis.

2d 53, 81, 482 N.W.2d 60, 71 (1992): see also 167

Wis. 2d at 92, 482 N.W.2d at 75 (“[rJefusing medical

treatment is not suicide” ).

2. The Opinion Below Conflicts With The Overwhelm-

ing Consensus Of The Medical Community.

The medical community has traditionally drawn a sharp

distinction between physician-assisted suicide and with-

drawing the means of life support. As the American Med-

ical Association, for example, has observed:

13

[t]he withdrawing or withholding of life-sustaining

treatment is not inherently contrary to the principles

of beneficence and nonmalficence [sic]. The physi-

cian is obligated only to offer sound medical treat-

ment and to refrain from providing treatments that

are detrimental, on balance, to the patient’s well-

being. When a physician withholds or withdraws a

treatment on the request of a patient, he or she has

fulfilled the obligation to offer sound treatment to

the patient. The obligation to offer treatment does

not include an obligation to impose treatment on an

unwilling patient. In addition, the physician is not

providing a harmful treatment. Withdrawing or

withholding is not a treatment, but the forgoing of

a treatment.

AMA Council on Ethical and Judicial Affairs, Code of

Medical Ethics: Current Opinions (1994). Similarly, the

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical & Behavioral Research,

has commented that:

[a]lthough competent patients . . . have the legal

and ethical authority to forgo some or al’ care, this

does not mean that patients may insist on particular

treatments. The care available from health care

professionals is generally limited to what is con-

sistent with [professional standards].

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical & Behavioral Research,

Deciding to Forgo Life-Sustaining Treatment 44 (1982).

For decades, medical, ethical, and religious leaders

have drawn distinctions between suicide and the with-

drawal of increasingly invasive treatment options. Pope

Pius XII, for example, concluded in 1957 that physicians,

consistent with a patient’s wishes, could ethically with-

draw a respirator under certain circumstances.” Pope

17 Pope Pius XII, The Prolongation of Life, reprinted in L’Osserv-

ator Romano, Nov. 25-26, 1957: accord, Sacred Congregation for the

14

Pius reasoned that, in such circumstances, death would

result not from the removal of the respirator, but from

the underlying condition or illness.

Significantly, against the accumulated wisdom of the

medical, ethical, and religious communities, the Second

Circuit failed to cite even one medical organization or

text supporting its conclusion that withdrawing life sup-

port is the equivalent of assisted suicide. Instead, the

court relied on a student law review note for this

proposition.”*

The consensus of the courts and the medical com-

munity is clear: Refusing medical treatment and ingesting

toxic drugs are not the Same. As this Court observed in

Cruzan, the right to refuse medical treatment emerges

from the right to bodily integrity and a corollary of the

doctrine of informed consent (i.e., the right to withhold

consent). 497 U.S. at 269-70. Refusing life support, or

Doctrine of the Faith, Declaration on Euthanasia 12 (Boston:

Daughters of St. Paul 1980) ; see also Pope John Paul II, Encyclical

Letter Evangelium Vitae {65 (March 25, 1995) (“Cejuthanasia

must be distinguished from the decision to forgo so-called ‘aggres-

sive medical treatment’... . To forgo extraordinary or dispro-

portionate means is not the equivalent of suicide or euthanasia”).

8 Pet. App. 30a (citing Note, Physician-Assisted Suicide and

the Right to Die with Assistance, 105 Harv. L. Rev. 2021, 2028-31

(1992) ). The court also cited Justice Scalia’s concurrence in Cruzan

for the “irrelevance of the action-inaction distinction.” See 497

U.S. at 296-97. The court failed to recognize, however, that Justice

Scalia’s remark was made in the course of an opinion in which he

urged that the Constitution does not provide any basis for disturb-

ing legislative choices in this area. Although Justice Scalia saw

the “action-inaction distinction” as an inadequate ground for over-

turning, under the Fourteenth Amendment, Missouri’s decision not

to permit the termination of life support for an unconscious patient,

he readily acknowledged that the distinction “has some bearing upon

the legislative judgment of what ought to be prevented as suicide

....” Justice Scalia thus endorsed a state legislature’s prerogative

to draw precisely the kind of distinction that the court of appeals

in this case declared nonexistent.

om me

15

indeed any medical trcaiment, thus involves the right to

be free from bodily invasion and the right to consent to

the medical treatment one receives. Id.” Such rights are

- in any way implicated in a patient's request for toxic

rugs.

B. States Have Legitimate Interests In Prohibiting

Assisted Suicide.

Even if this Court were to determine that New York’s

Statutory scheme classifies similarly situated groups, that

scheme should still be upheld because it is rationally

related to a legitimate government interest. Review under

the rational basis standard “is the most relaxed and toler-

ant form of judicial scrutiny under the Equal Protection

Clause.” Dailas vy. Stanglin, 490 U.S. 19, 26 (1989).

In discussing rational basis scrutiny, this Court has stated

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 classi-

fication rests on grounds wholly irrelevant to the

achievement of the State’s objective. State legisla-

tures are presumed to have acted within their con-

stitutional 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 he conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 425-26 (1961).

Under rational basis scrutiny, therefore. legislation is

presumed valid. Cleburne, 473 U.S. at 440 “[t}he gen-

eral rule is that leaislation is presumed to be valid and

will be sustained if the classification drawn by the statute

® People v. Kevorkian, 527 N.W.2d at 782 n.59 (patients “may

refuse life-sustaining medical treatment because the treatment it-

self is a violation of bodily integrity”).

BEST AVAILABLE COPY

16

is rationally related to a legitimate state interest” ). Only

if such legislation is irrational will the Court invalidate

it. Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 462

(1988) (“social and economic legislation . . . carries with

it a presumption of rationality that can only be overcome

by a clear showing of arbitrariness and irrationality” ).

The court below, however, stated that “[t}he general

rule . . . is that state legislation carries a presumption of

validity if the statutory classification is ‘rationally related

to a legitimate state interest.’” Pet. App. 21a (citation

omitted; emphasis supplied). This precisely reverses the

proper principles of equal protection review. The pre-

sumption of validity does not depend on the outcome of

the constitutional scrutiny; rather it is the premise from

which that scrutiny is to proceed. In any event, the court

of appeals was wrong in concluding that states lack a

legitimate governmental interest in prohibiting physician-

assisted suicide.

The court of a s’ application of the rational basis

standard appears yoy been distorted by the court’s

improper consideration of quality of life issues. The

court used those considerations to discount the State s

important interest in the protection and preservation of

human life. Pet. App. 3la (“[s]urely the state’s interest

lessens as the potential for life diminishes” ). The Second

Circuit’s conclusion that government’s interest in life must

be adjusted to take into account an assessment—aulti-

mately, a judicial assessment—of the quality of that life

directly conflicts with this Court’s holding in Cruzan:

We think a State may properly decline to make

judgments about the “quality” of life that a par-

ticular individual may enjoy, and simply assert an

unqualified interest in the preservation of human

Iife....

497 U.S. at 282. As the Supreme Court of Missouri said,

in the decision affirmed by this Court in Cruzan,

17

the state’s interest is not in quality of life. The state’s

interest is an unqualified interest in life. In striking

the balance between a patient’s right to refuse treat-

ment or her right to privacy and the state’s interest

in life, we may not arbitrarily discount either

side of the equation to reach a result which we find

desirable.

Cruzan v. Harmon, 760 S.W.2d 408, 422 (Mo. 1988)

(en banc).

Disregarding this point, the court of appeals ignored

the State’s interest in protecting all citizens and proceeded

instead as if the only relevant state interest is one that

varies with the subjective quality of life. The court thus

implicitly denied that all lives remain under the full pro-

tection of the law. This simply cannot be reconciled with

Cruzan. As Justice Scalia observed in his concurrence in

that case,

[t]he 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 con-

demned 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.

497 U.S. at 295 (Scalia, J., concurring), quoting Black-

burn v. State, 23 Ohio St. 146, 163 (1873).

The Second Circuit’s opinion also conflicts with the

Michigan Supreme Court’s opinion in People v. Kevorkian.

The Michigan court there observed that:

[the same state] interests in the sancity of life that

are represented by the criminal homicide laws are

threatened by one who expresses a willingness in tak-

ing the life of another, even though the act may be

accomplished with the consent, or at the request, of

the suicide victim.

447 Mich. at 488 n.68, 527 N.W.2d at 736 n.68 (ent

phasis supplied). Although the court then went on to

18

question the severity of murder prosecutions of assisted

suicide, the court viewed as undeniable the existence of

some legitimate government interest in protecting all

citizens.”

The fact that most states criminalize assisted suicide

supports the conclusion that government has a legitimate

interest in regulating such activity. At least forty-one

States, Puerto Rico, and the Virgin Islands impose crim-

inal penalties on those who assist another to commit

suicide. The relevant statutes and decisions are listed in

Appendix C. As Justice Scalia observed in Cruzan,

“American law has always accorded the State the power

to prevent, by force if necessary, suicide ....” 497 U.S.

at 293 (Scalia, J., concurring). Indeed, all fifty States

have involuntary commitment statutes seeking to prevent

suicide through the confinement of those who pose a dan-

ger to themselves.” If the States constitutionally may

confine someone who poses a suicide threat, then surely

the States may prevent the same person from obtaining

a physician’s aid in carrying out the threat.

In his concurrence below, Judge Calabresi seems to sug-

gest that government interests fade over time and that the

New York legislature needs to take “affirmative step[s]

reaffirming the prohibition.” Pet. App. 44a. This is, to

put it mildly, a dubious basis for constitutional adjudica-

tion. In any event, New York has done precisely what

Judge Calabresi asks.

New York periodically calls together a task force to

discuss bio-medical issues. Convened by the Governor, it

21 The New York legislature has opted to punish assisted suicide

as manslaughter rather than murder. New York Penal Law § 125.15

(McKinney 1995).

22 People v. Kevorkian, 447 Mich. 436, 479, 5627 N.W.2d 714,

732 (1994) (“all 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 non-deadly force

to thwart suicide attempts”).

one of its most recent sessions, the Task F

that:

[a]ssisted suicide would carry us into new terrain i

We believe that the practices would be profoundly

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOSEPH J. FRANK

SERGIO ALVAREZ-MENa, III

PETER BUSCEMI *

MorRGAN, Lewis & Bockius LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7190

JUNE 1996 * Counsel of Record

APPENDIX

la

APPENDIX A

The state courts of last resort that have distinguished

between withdrawal of life support and assisted suicide

include the following:

In re Fiori, 673 A.2d 905, 910 (Pa. 1996)

a People v. Kevorkian, 447 Mich. 436, 472-73, 527

‘ N.W.2d 714, 728-29 (1994), cert. denied, 115

S. Ct. 1795 (1995)

Thor v. Superior Court, 5 Cal. 4th 725, 742, 855

P.2d 375, 385, 21 Cal. Rptr. 2d 357, 367 (1993)

(en banc)

DeGrella ex rel. Parrent v. Elston, 858 $.W.2d 698,

707 (Ky. 1993)

In re L.W., 167 Wis. 2d 53, 83, 482 N.W.2d 60, 71

(1992)

In re Doe, 411 Mass. 512, 522, 583 N.E.2d 1263,

1270, cert. denied, 503 U.S. 950 (1992)

In re Lawrence, 579 N.E.2d 32, 40 n.4 (Ind. 1991)

McKay v. Bergstedt, 106 Nev. 808, 823, 801 P.2d

617, 627 (1990)

In re Browning, 568 So. 2d 4, 14 (Fla. 1990)

Fosmire v. Nicoleau, 75 N.Y.2d 218, 227 n.2, 551

of | N.E.2d 77, 82 n.2, 551 N.Y.S.2d 876, 881 n.2

(1990)

State v. McAfee, 259 Ga. 579. 580, 385 S.E.2d 651,

652 (1989)

In re Estate of Longeway, 133 lil. 2d 33, 41, 549

N.E.2d 292, 296 (1989)

McConnell v. Beverly Enters., 209 Conn. 692, 710,

553 A.2d 596, 605 (1989)

In re Grant, 109 Wash. 2d 545, 563-64, 747 P.2d

445, 454-55 (1987), modified on other grounds,

757 P.2d 534 (Wash. 1988)

In re Gardner, 534 A.2d 947, 955-56 (Me. 1987)

Rasmussen v. Fleming, 154 Ariz. 207, 218, 741

P.2d 674, 685 (1987)

ee tS ~

2a

In re Conroy, 98 N.J. 321, 350-51, 486 A.2d 1209,

1224 (1985)

In re P.V.W., 424 So. 2d 1015, 1022 (La. 1982)

A number of state lower courts also draw a distinction

between suicide and withdrawing life support. See, e.g.,

Donaldson v. Lundgren, 2 Cal. App. 4th 1614, 1621,

4 Cal. Rptr. 2d 59, 62 (1992): Bouvia v. Superior Court,

179 Cal. App. 3d 1127, 1144-45, 225 Cal. Rptr. 297,

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

186, 196, 209 Cal. Rptr. 220, 225 (1984); Barber vy.

Superior Court, 147 Cal. App. 3d 1006, 1012, 195 Cal.

Rptr. 484, 487 (1983); Foody v. Manchester Mem.

Hosp., 40 Conn. Supp. 127, 137, 482 A.2d 713, 720

(1984); In he Severns, 425 A.2d 156, 158 (Del. Ch.

1980); Satz v. Perlmutter, 362 So.2d 160, 162 (Fila.

Dist. Ct. App. 1978), aff'd, 379 So.2d 359 (Fla. 1980);

In re Rosebush, 195 Mich. App. 675, 681 n.2, 491

N.W.2d 633, 636 n.2 (1992); In re Eichner, 102 Misc.

2d 184, 205, 423 N.Y.S.2d 580, 594 (Sup. Ct. 1979),

aff'd as modified sub nom. Eichner v. Dillon, 73 A.D.2d

431, 426 N.Y.S.2d 517 (App. Div. 1980), aff'd as

modified sub nom. In re Storar, 52 N.Y.2d 363, 420

N.E.2d 64, 438 N.Y.S.2d 266, cert. denied, 454 US. 858

(1981); Leach v. Akron General Med. Ctr., 68 Ohio

Misc. 1, 10, 426 N.E.2d 809, 815 (Ct. Com. Pl. 1980);

In re Fiori, 438 Pa. Super. 610, 619, 652 A.2d 1350,

1354 (1995) (en banc), aff'd, 673 A.2d 905 (Pa. 1996).

3a

APPENDIX B

The state living will statutes that distinguish between

withdrawal of life support and assisted suicide include

the following:

Ala. Code § 22-8A-10 (1995)

Alaska Stat. § 18.12.080(f) (1995)

Ariz. Rev. Stat. Ann. § 36-3210 (1995)

Ark. Code Ann. § 20-17-210(g) (Michie 1995)

Cal. Health & Safety Code § 7191.5(g) (West 1995)

Colo. Rev. Stat. Ann. § 15-18-112(1) (West 1995)

Conn, Gen. Stat. Ann. § 19a-575 (West 1995)

Del. Code Ann. tit. 16, § 2507 (1995)

D.C. Code Ann. § 6-2430 (1995)

D.C. Code Ann. § 21-2212 (1995) (durable power

of attorney for health care)

Fla. Stat. Ann. § 765.309(1) (West 1995)

Ga. Code Ann. § 31-32-9 (1995)

Ga. Code Ann. § 31-36-2 (1995) (durable power of

attorney for health care)

Haw. Rev. Stat. § 327D-13 (1995)

Idaho Code § 39-161(1) (1995) (do not resuscitate

orders )

Ill. Comp. Stat. ch. 755, para. 35/9(f) (Smith-Hurd

1995)

Ill. Comp. Stat. ch. 755, para. 40/50 (Smith-Hurd

1995) (durable power of attorney for health care)

Ind. Code Ann. § 16-36-4-19 (West 1995)

Ind. Code Ann. § 16-36-1-13 (West 1995) (durable

of a for health care)

lowa Code Ann $ 144A.1 1.6 (West 1995)

Iowa Code Ann. § 144B.12.2 (West 1995) (dur-

able power of attorney for health care)

Kan. Stat. Ann. § 65-28,109 (1995)

Ky. Rev. Stat. Ann. § 311.637 (Michie/Bobs-Merrill

1995)

La. Rev. Stat. Ann. § 1299.58.10 (West 1995)

Me. Rev. Stat. Ann. tit. 18-A, § 5-813 (West 1995)

4a

Md. Code Ann., Health-Gen. § 5-611 (1995)

Mass. Gen. Laws Ann. ch. 201D, § 12 (West 1995)

(durable power of attorney for health care)

Mich. Comp. Laws Ann. § 700.496(20) (West

1995) (durable power of attorney for health

care)

Minn. Stat. Ann. § 145B.14 (West 1995)

Miss. Code Ann. § 41-41-117(2) (1993)

Mo. Ann. Stat. § 459.059(5) (Vernon 1995)

Mont. Code Ann. § 50-9-205(7) (1995)

Neb. Rev. Stat. § 20-412(7) (1995)

Nev. Rev. Stat. § 449.670(2) (1993)

N.H. Rev. Stat. Ann. § 137-H:10(II) (1995)

N.J. Stat. Ann. § 26:2H-54(e) (West 1995)

N.M. Stat. Ann. § 24-7-8 (Michie 1996)

N.Y. Pub. Health Law § 2989(3) (McKinney

1995) (durable power of attorney for health care)

N.C. Gen. Stat. § 90-320(b) (1995)

N.D. Cent. Code § 23-06.4-01 (1995)

N.D. Cent. Code § 23-06.5-01 (1995) (durable

power of attorney for health care)

Ohio Rev. Code Ann. § 2133.12(d) (Baldwin 1996)

Okla. Stat. Ann. tit. 63, § 3101.12(g) (West 1995)

Or. Rev. Stat. § 127.570 (1995)

20 Pa. Cons. Stat. Ann. § 5402(b) (1995)

R.1. Gen. Laws § 23-4.11-10(f) (1955)

R.I. Gen. Laws § 23-4.10-9(f) (1995) (durable

power of attorney for health care)

S.C. Code Ann. § 44-77-130 (Law. Co-op. 1993)

S.D. Codified Laws Ann. § 34-12D-20 (1996)

Tenn. Code Ann. § 32-11-110 (1995)

Tex. Health & Safety Code Ann. § 672.020 (West

1995)

Utah Code Ann. § 75-2-1118 (1995)

Vt. Stat. Ann. tit. 18, $ 5260 (1995)

Va. Code Ann. § 54.1-2990 (Michie 1995)

Wash. Rev. Code Ann. § 70.122.100 (West 1995)

W. Va. Code § 16-30-10 (1995)

Sa

Wis. Stat. Ann. § 154.11(6) (West 1995)

Wyo. Stat. § 35-22-109 (1995)

Wyo. Stat. § 3-5-211 (1995) (durable power of at-

torney for health care).

6a 7a

APPENDIX C 18 Pa. Cons. Stat. Ann. § 2505 (1995)

The following thirty-seven states and territories have SD. Codified Laws Ann’ § 22-16-37 (1996

that impose criminal penalties for assisting a om Aheg _—

statutes pose Tenn. Code Ann. § 39-13-216 (1995)

suicide: Tex. Penal Code Ann. § 22.08 (West 1995)

Alaska Stat. § 11.41.120(a)(2) (1995) V.I. Code Ann. tit. 14, § 2141 (1994)

Ariz. Rev. Stat. Ann § 13-1103(A)(3) (1995) Wash. Rev. Code Ann. § 9A.36.060 (West 1995)

Ark. Code Ann. § 5-10-104(a)(2) (Michie 1995) Wis. Stat. Ann. § 940.12(West 1995).

pa fom oo 7 prop ins ca ‘hes 1995) The following two states have negligent homicide stat-

ys — 00 ‘Ann. § 53a-56(a)(2) (West 1995) utes broad enough to penalize assisting a suicide: Ala.

re hoe eg os aa § 645 (1995) Code § 13A-6-4 (1995); and Wyo. Stat. § 6-2-107

Fla. Stat. Ann. § 782.08 (West 1995) (1995).

Ga. Code Ann. § 16-5-5(b) (1995) The following five states have case law authorizing

Haw. Rev. Stat. § 707-702 (1995) the imposition of criminal penalties for assisting a suicide:

Ill. Comp. Stat. ch. 720, para. 5/12-31 (Smith ’ScMahan v. State, 168 Ala. 70, 53 So. 89 (1910);

Hurd 1995) Commonwealth v. Bowen, 13 Mass. 356 (1816); State

Ind. Code Ann. § 35-42-1-2.5(b) (West 1995) v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961); Black-

Iowa Code Ann. §§ 707A.2, 707A.3 (1996) burn v. State, 23 Ohio St. 146 (1872): and State v.

Kan. Stat. Ann. § 21-3406 (1995) Jones, 86 §.C. 17, 67 S.E. 160 (1910).

Ky. Rev. Stat. Ann. § 216.302 (Baldwin 1995)

La. Rev. Stat. Ann. § 14:32.12 (West 1995)

Me. Rev. Stat. Ann. tit. 17-A, § 204 (West 1995)

Mich. Comp. Laws Ann. § 752.1027 (West 1995)

Minn. Stat. Ann. § 609.215 (West 1995)

Miss. Code Ann. § 97-3-49 (1993)

Mo. Ann. Stat. § 565.023(1)(2) (Vernon 1995)

Mont. Code Ann. § 45-5-105 (1993)

Neb. Rev. Stat. § 28-307 (1995)

N.H. Rev. Stat. Ann. § 630:4 (1995)

N.J. Stat. Ann. § 2C:11-6 (West 1995)

N.M. Stat. Ann. § 30-2-4 (Michie 1995)

N.Y. Penal Law § 120.30 (McKinney 1995)

N.Y. Penal Law § 125.15 (McKinney 1995)

N.D. Cent. Code § 12.1-16-04 (1955)

Okla. Stat. Ann. tit. 21, § 813 (West 1995)

Or. Rev. Stat. § 163.125(b) (1995)