Amicus Curiae Brief — Vacco v. Quill

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In The NOV 8 1996

Supreme Court of the United} States ,...,

October Term, 1996

DENNIS C. VACCO, Attorney General of the

State of New York, GEORGE E. PATAKI, Governor

of the State of New York, 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 Writ Of Certiorari To The

United States Court Of Appeals For The

Second Circuit

BRIEF OF AMICI CURIAE STATES OF

CALIFORNIA, ALABAMA, COLORADO, FLORIDA,

GEORGIA, ILLINOIS, IOWA, LOUISIANA, MARYLAND,

MICHIGAN, MISSISSIPPI, MONTANA, NEBRASKA,

NEW HAMPSHIRE, OKLAHOMA, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, VIRGINIA AND

WASHINGTON AND THE COMMONWEALTH OF

PUERTO RICO IN SUPPORT OF PETITIONERS

DENNIS C. VACCO, ET AL.

Daniet E. LUNGREN,

Attorney General of the State of

California

Rosert L. Muxal,

Chief Assistant Attorney General

AvvIn 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]

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

OR CALL COLLECT (402) 342-2831

Jerr SESSIONS

Attorney General

State of Alabama

Gate A. Norton

Attorney General

State of Colorado

Rosert A. BUTTERWORTH

Attorney General

State of Florida

Micnaet J. Bowers

Attorney General

State of Georgia

James E. Ryan

Attorney General

State of Illinois

THomas J. MILLer

Attorney General

State of lowa

RicHarp P. Ievous

Attorney General

State of Louisiana

J. JosepH Curran, Jr.

Attorney General

State of Maryland

FRANK J. KeLiey

Attorney General

State of Michigan

Mixe Moore

Attorney General

State of Mississippi

JoserH P. Mazurex

Attorney General

State of Montana

Don STENBERG

Attorney General

State of Nebraska

Jerrrey R. Howarp

Attorney General

State of New Hampshire

Drew EDMONDSON

Attorney General

State of Oklahoma

Pepro R. Prervutsi

Attorney General

Commonwealth of Puerto Rico

CHARLES MoLony CONDON

Attorney General

State of South Carolina

Mark W. BaRNeTT

Attorney General

State of South Dakota

CHar.es W. BurRsON

Attorney General

State of Tennessee

James S. Grmore, III

Attorney General

Commonwealth of Virginia

CuristTINE O. GREGOIRE

Attorney General

State of Washington

TABLE OF CONTENTS

Page

ey ee ED ic Sn ce ubbacdddsocdeinecce il

INTEREST OF THE AMICI STATES................. l

SUMMARY OF ARGUMENT ....................... 2

bade C6 dU Uidinne du duéndenedessonents 5

I. NEW YORK’S PROHIBITION OF ASSISTED

SUICIDE DOES NOT TREAT SIMILARLY

SITUATED PERSONS IN AN UNEQUAL

SE 6ph6600us6ddcenddcneenccensceséonce 5

A. The Refusal of Unwanted Life-Sustaining

Medical Treatment Is Not The Equivalent Of

Suicide Or Assisted Suicide, And Thus, New

York's Prohibition Of Assisted Suicide Does

Not Create A Class of Similarly Situated

DED sébintinndunneéots danceendscestesns 7

B. The New York Authorities Relied Upon By The

Second Circuit Do Not Support Its Cuuclusion

That New York Has Recognized A Right To

Commit Suicide Or “Hasten Death”.......... 13

Il. NEW YORK’S PROHIBITION OF ASSISTED

SUICIDE IS RATIONALLY RELATED TO

NUMEROUS IMPORTANT GOVERNMENTAL

En heebecdeceeséctndakets conecece 16

Ill. THE SECOND CIRCUIT'S CONSTITUTIONAL

ANALYSIS WAS FUNDAMENTALLY FLAWED

BY THE IMPROPER INSERTION OF QUALITY-

OF-LIFE CONSIDERATIONS ................. 23

IV. THE DECISION BELOW SHOULD BE

REVERSED IN ORDER TO PRESERVE THE

ESSENTIAL ROLE OF THE STATES IN OUR

FEDERAL SYSTEM OF GOVERNMENT AND

THE POWER OF THE PEOPLE TO DIRECTLY

GOVERN THEIR OWN AFFAIRS ............ 27

CONCLUSION .......... be bb baGsesSSdeneedechasdue 30

TABLE OF AUTHORITIES

Page

Cases

Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959) .... 17

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)........... 21

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

Cal.Rptr. 220 (1984)... . 22... cece cece eee e eee eees 8, 21

Blackburn v. State, 23 Ohio St. 146 (1872)......... 12, 24

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

Cal.Rptr. 297 (1986)... . 2... cece eee eee eee ees 8

Bowen v. Owens, 476 U.S. 340 (1986) ......... 6.6555: 22

Bowers v. Hardwick, 478 U.S. 186 (1986) ...........-. 25

Cleburne v. Cleburne Living Center, Inc., 473 U.S.

GBD CIDER. « cccccccccecccdsescoccessesccssss 5, 17, 18

Clements v. Fashing, 457 U.S. 957 (1982)...........-. 17

Commonwealth v. Mink, 123 Mass. 422 (1877)......... 12

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

790 (9th Cir. 1996), cert. granted, __ U.S. __

(1996 WL 411596) (1996). ... 2... 66 6c c enews 4, 30

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

$86 (9th Cir. 1995), superseded by 79 F.3d 790 (9th

Ce TED cdccccccccecntussscaceconsenaneounesses: 21

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

UB. BBE CIDE... ccccccccccscccccccccccsccess passim

iil

TABLE OF AUTHORITIES — Continued

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)............0..45.. 4, 24

Dallas v. Stanglin, 490 U.S. 19 (1989)......... 18, 23, 26

Dandridge v. Williams, 397 U.S. 471 (1970)..... 6, 18, 22, 27

DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993)......... 8

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

Cal.Rptr.2d 59 (1992)..........--...000e. 8, 20, 23, 28

FCC v. Beach Communications, Inc., 508 U.S. 307

Ds Cie. chee oodadhnbkhuew Re 17, 19

Garcia v. San Antonio Metre., 469 U.S. 528 (1985)

-sodnedhe webobins i a eae

Gregory v. Ashcroft, 501 U.S. 452 (1991)........ 3, 22, 28

Heller v. Doe, 509 U.S. 312 (1993)........ 19, 21, 22, 26

In re Conroy, 98 NJ. 321, 486 A.2d 1209 (1985)....... ~

In re Eric J., 25 Cal.3d 522, 159 Cal.Rptr. 317 (1979) ..... 6

In re Joseph G., 34 Cal.3d 429, 194 Cal.Rptr. 163-

Di chchubdwkedenkddeeunnustkecesadne weeddedee ss 11

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

Se ey Sr no ccnncndetbbsedebesekeorsaces 8, 9

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

DD lnccthasrenotenisaradeotddedbedvoceceerss 17, 22

Lane County v. Oregon, 7 Wall. 71 (1869).............. 3

Lee v. State of Oregon, 891 F.Supp. 1421 (D.Or. 1995) .... 29

Lochner v. New York, 198 U.S. 45 (1905) ............ 1,2

TABLE OF AUTHORITIES — Continued

Page

Mack v. Mack, 618 A.2d 744 (Md. 1993).............. 24

Massachusetts Board of Retirement v. Murgia, 427

Ss Ur Ss sc docestubhemnseaadasdenewenastede 22

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

es ee Se Ge GED cccuccdedseceseeeeccess 14

McGowan v. Maryland, 366 U.S. 420 (1961)........ 18, 22

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

OEE: MP eS Ie ea. SS SC Ree 9

Middlesex Ethics Committee v. Garden State Bar

Association, 457 U.S. 423 (1982)................... 20

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .... 28

Paris Adult Theatre | v. Slaton, 413 U.S. 49 (1973).... 25

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

SP MS Cc dvnsechetdarcenddenésabesesneurennness 8

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

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

Se oseesecécounetecnseaeneedie 2, 4, 8, 9, 11, 12, 28

Personnel Administrator of Massachusetts v. Feeney.

Se Cs Se i endcécceuden sbes6ese b0bansboners 7

Planned Parenthood v. Casey, 505 U.S. 833 (1992). .24, 25

Piyer v. Dee, 437 UB. BZ (IGE)... 2. ccccccccccccces 7

Poe v. Uliman, 367 U.S. 497 (1961) .................. 28

Quill v. Koppell, 870 F.Supp. 78 (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)................... 6

TABLE OF AUTHORITIES - Continued

Page

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

—__.U.S.___ (1996 WL 282544) (1996)........... passim

Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337 (1986) .... 15

Rodriguez v. Attorney General of Canada, et al., 3

EY He Seid cecedsbbatabebtesdnbéiccbéuce, 29

Roe v. Wade, 410 U.S. 113 (1973)..................., 25

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

Specs bAbdueordbsscseceeseeanabsaddéscdetoce passim

Satz v. Perlmutter, 362 So.2d 160 (Fla. DCA 1978),

aff'd, 379 So.2d. 359 (Fla. 1980).................... *

Schloendorff v. Society of New York Hospital, 211

ff | 3, 4 4. | SRR Pee ee 13

State v. Jones, 86 S.C. 17, 67 S.E. 160 (1910) ........ 12

State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).... 12

Tafflin v. Levitt, 493 U.S. 455 (1990) .................. 3

Texas v. White, 7 Wall. 700 (1869)..................... 3

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

DP sdededesdadetetdabunedeséheeudte buteéecs %

Tigner v. Texas, 310 U.S. 141 (1940).................. 13

Vance v. Bradley, 440 U.S. 93 (1979) .............. 22, 26

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

ES %

Washington v. Davis, 426 U.S. 229 (1976)........... 7, 22

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............... 6

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

te GED. GEE The sc icccicccccevccccccesoveseovcsss l

. GaN. GHG. Meee BE occsccsccccevcccesecs passim

a, Gee, Ge, WO Bh bc ponder ekdddbeedeestnanene 3

STATUTES

Ala. Code

Pp. Lorri rrr rirry Ty er 9

Alaska Stat.

§ 18.12.080(f) (Michie 1994)............ 0.0 cece eueee 9

§ 11.41.120(a)(2) (Michie 1989) .............000005. 11

Ariz. Rev. Stat. Ann.

§ 36-3210 (West Supp. 1995). ......... 2 ccc cece eeeee 9

§ 13-1103(A)(3) (West Supp. 1995) .............065. 11

Ark. Code Ann.

DS BPC PD GHER cccccccccvececcctoovecsecouses 9

§ 5-10-104(a)(2) (Michie 1993) ....... 0.6.66 c ccc eeee 11

Cal. Health & Safety Code

§ 7191.S(g) (West Supp. 1996) ........ 6c c ccc eeees 9

Cal. Pen. Code

DS Gee Ges CE bs be deeree dies codbdcbhctncdscoes 11

vil

TABLE OF AUTHORITIES ~— Continued

Page

Colo. Rev. Stat.

SD CPSP SUED CUED BUTE Src dceccce ser dicdccdcdcos 9

§ 18-3-104(1)(b) (Supp. 1995).................0005. 12

Conn. Gen. Stat. Ann.

§ 194-575 (West Supp. 1996)............ tedtstedaes 10

BE I eT eee 12

D.C. Code Ann.

I 6565.5655000005)6860 Ss 00 reeR2CCR seas 10

Del. Code Ann.

i, ee ns 0 656 66bs beceneeadeetonsededes 12

Del. Session Laws

Act of July 12, 1982, § 3, 63 Del. Laws 821 (1981).... 10

Fla. Stat. Ann.

§ 765.3001) (West Supp. 1996) ........ ccc cccccicces 7)

rr eS ee oe te ek Lake eed bende eu 12

Ga. Code Ann.

DP Ey GED 6:64.66063060000060d0000660 60008 9

SD PP CUUs 6 6000 06d ceserereodoescsscesoorcs 12

Haw. Rev. Stat.

DS RPE GE SOU cc cescccicccenddesessecvnves 9

Idaho Code

Si I, GOD, 5h 55545. sensi cesivadiesdbies 10

viii

TABLE OF AUTHORITIES — Continued

Page

Ill. Comp. Ann. Stat.

ch. 755, § 35/9(f) (Smith-Hurd 1992) ..............4.. 9

ch. 755, § 40/50 (Smith-Hurd 1992)................. 10

ch. 720, 5/12-31(a)(2) (Smith-Hurd Supp. 1996)...... 12

Ind. Code Ann.

§ 16-36-4-19 (West Supp. 1996) .... 2.66.6 c cece eee 9

§§ 16-36-1-12(c), 16-36-1-13 (West Supp. 1996) ..... 10

§ 30-5-5-17(b) (West 1994)... 0... ccc ccc cece ee eeeee 10

§ 35-42-1-2.5(b) (West Supp. 1996).............445. 12

lowa Code Ann.

§ 144B.12.2 (West Supp. 1996)......... 66-66 cceeee 10

§ 144A.11.6 (West 1989)... 2.6... ccc ccc cence ee eees 10

§§ 707A.1, 707A.2 and 707A.3, as amended by

Acts of the 76th General Assembly, 1996 Session .... 12

Kan. Stat. Ann.

OB GE-BB0GD (IGDED 2. ccccccccccccccccccescoccsccs ly

O BODORS CIGTED oc cccccccccccccccccccccceccccesces 12

Ky. Rev. Stat. Ann.

§ 311.639 (Michie 1995)... .. 6.6.66 cc ccc cece eee nes 10

6 2IG.SGB CGlable 1995)... cccccccccccccccsccccees 12

La. Rev. Stat. Ann.

§ 40:1299.58.10(A) (West 1992) ... 2.6... cc cece eens 10

§ 14:32.12 (West Supp. 1996) ....... 66.662 c cc eeeees 12

TABLE OF AUTHORITIES — Continued

Page

Mass. Gen. Laws Ann.

ch. 201D, § 12 (West Supp. 1996)...............45. 10

Md. Code Ann.

SF PNUD CUO ho ccdccccccccéccesetsecssté svednc 10

Me. Rev. Stat. Ann.

tit. 18-A, § 5-813(c) (West Supp. 1995)............. 10

tit. 17-A, § 204 (West 1983) ..... 22.66. cece ceeeuee 12

Mich. Comp. Laws Ann.

§ 700.496(20) (West 1995) 0.0... 6c ccc ccc cece eenes 10

Minn. Stat. Ann.

§ 145B.14 (West Supp. 1996)......... 66.66 c cece ceee 10

§ 609.215 (West 1987 and Supp. 1996).............. 12

Miss. Code Ann.

DS ED GUE 0's Sec cccdétnns ccdscedccocedie 10

DS PPE EEE occcccsvccesccccnssedeseccscncctéas 12

Mo. Ann. Stat.

§ 459.055(5) (West 1992) ... 2... cc ccc ccc ccc cee cnnee 10

§ 565.023(1)(2) (West Supp. 1996)...............4.. 12

Mont. Code Ann.

Ph , « ocpnncetsesccdosesesnsovsedicc 10

DG ED db. wee cosndeccesésccescccceedevene 12

TABLE OF AUTHORITIES - Continued

Page

Neb. Rev. Stat. Ann.

§ 20-412(7) (Michie 1991) ......... 66. c cece eee eees 10

§ 28-307 (Michie 1995)..... 2.0.66 c cece cece eee n ewes 12

Nev. Rev. Stat. Ann.

§ 449.670(2) (Michie 1991) ..... 0.66.66 cece eee enes 10

N.H. Rev. Stat. Ann.

G ID7-Bs13 (199G).. cc ccccccccccccccccccccsecccess 10

B 69B24 (IDDS) 2c ccccccccccccccccccccsccscccsooces 12

N.J. Stat. Ann.

§ 26:2H-54(d)-(e) (West 1996)... 0.2... cece cece eens 10

§ 2C:11-6 (West 1995)... ..ccccccccccccccccccccces 12

N.M. Stat. Ann.

§ 24-7A-13(C) (Michie Supp. 1995)............-665. 10

§ 30-2-4 (Michie 1994) ......... 66 cece eee e en nnees 12

New York Penal Law

§ 120.30 (McKinney 1987).........--..60006. 6, 12, 22

§ 125.15(3) (McKinney 1987) ..........---45. 6, 12, 22

New York Public Health Law Article 29-B

B BOGD-BOMD. oc ccccccccccccccscccccccccsdcsesocees 15

D BBEB. onc cccccccscsdcccccestecdcccceesestedeasdus 16

B BBGD. . ccccvcccccccescctddwccesestsdeccesdbccvede 15

TABLE OF AUTHORITIES - Continued

Page

New York Public Health Law Articl: 29-C

D Peadctdvdvothetcvecdacdds ceédbebededévdadoscos 15

§ 2989(3) (McKinney 1993).................045. 10, 15

it PED «Hens cobensescnsocessveccedbésedsien 15

N.C. Gen. Stat

7 «<< sednddgaboseeceboucecscestes ou 10

N.D. Cent. Code

& | ES e eye 10

ho} davasddpcasdencesceeceosenes 10

SD ROOD GE, PROUD coccccccccccccccccccccoes 12

Ohio Rev. Code Ann.

§ 2133.12(D) (Anderson 1994)..............6620045. 10

Okla. Stat. Ann.

tit. 63, § 3101.12(G) (West Supp. 1996)............. 10

tit. 21, §§ 813, 814, 815 (West 1983)............... 12

Or. Rev. Stat.

i .. dnt cednediesebeseeduedas 12

SP PD a's wo cascbeccncdcctbtosteetots 12

P.R. Laws Ann.

Sy ae EE c5d bococdibecconcccoseccésnbiedededss 12

Pa. Cons. Stat. Ann.

tit. 20, § 5402(b) (West Supp. 1996)................ 10

tit. 18, § 250S(b) (West 1983)....... 0.0... 12

TABLE OF AUTHORITIES ~— Continued

Page

R.I. Gen. Laws

§ 23-4.10-9(f) (Supp. 1995) .... 0... c eee eee nes 10

§ 23-4.11-10(f) (Supp. 1995) ..... 6... c ee cece ee wwees 10

R.1. Pub. Act

96-133, to be codified as R.1. Gen. Stat., tit. 11, ch.

OO, 4. 0000c0cdndesense60ssdesseevenenanedseoeeaosncr 12

S.C. Code Ann.

§ 44-77-130 (Law Co-op. Supp. 1995)........--+005: 10

S.D. Codified Laws Ann.

§ 34-12D-20 (Michie 1994)... 2... 2.66 c cece een n ene 10

§ 22-16-37 (Michie 1988) ....... 66... c cece eee n nee 12

Tenn. Code Ann.

§ 39-13-216 (Supp. 1995)... 2.666 cece ccc c nee enennes 12

Tex. Health & Safety Code Ann.

§ 672.020 (West 1992). 2.0... 6c cece cece nee nneneees 10

Tex. Penal Code Ann.

§ 22.08 (West 1994) 00... ccc cece cece een eenennneee 12

Utah Code Ann.

§ 75-2-1118 (1993) 0... cece ccceccccrecceeccscvess 10

V.1. Code Ann.

Me, BE, B BOGE. ccccccccccccccscccccedoceecsevadess 12

Va. Code Ann.

§ 54.1-2990 (Michie 1994) .. 0.2... 66 ccc cee wnnnes 10

TABLE OF AUTHORITIES — Continued

Page

W.Va. Code

SD PD EEE osc cbcopeeeresterccecestcccccoess 10

DP POO GIF e even cc crcsiccesvcvcsccccccocecses 10

Wash. Rev. Code Ann.

§ 70.122.100 (West 1996 Supp.) ....... 6.666 c ccc eees 10

§ 9A.36.060 (West 1988)... 0... nnes 12

Wis. Stat. Ann.

SD FSO CEES BOOP ccc cccccddccccccccesccccves 10

i Pb 6 navn ns adh a eebeedanedéenches 12

Wyo. Stat.

DS DES Gs FEED cece cccccccccncccccccseceses 10

§ 35-22-109 (Michie 1994). ... 0.0... ccc cece cee neees 10

Orner 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... 0.0.66 666 c ewes 20

Daniel Callahan & Margot White, The Legalization of

Physician-Assisted Suicide: Creating a Regulatory

Potemkin Village, 30 U. Rich. L. Rev. 1 (1996)...... 27

James Madison, The Federalist No. 45, at 2:82 (1788)..... 2

Margaret E. Hall, Selected Writings of Benjamin

Nathan Cardozo, Law and Literature, What Medi-

cine Can Do for Laws, 371 (1947)... 0.6666 c cece 13

xiv

TABLE OF AUTHORITIES — Continued -—

e€

New York State Task Force Report, When Death is

Sought — Assisted Suicide and Euthanasia in the

Medical Context (May 1994) ............ 20, 21, 22, 29

Samuel Adams, Letter to Richard Henry Lee, 3 Dec.

1787, in The Writings of Samuel Adams 4:324

(Harry A. Cushing ed. 1968) ....... 6.666 cceeeeenees 30

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

Right?, 24 Duq. L. Rev. 1 (1985).......-.---eeeee 8, 11

Yale Kamisar, Are Laws against Assisted Suicide

Unconstitutional?, 23 Hastings Center Report, No.

3, 32 (199S) onc cccccccccvccccccccessccssccssccesess 9

INTEREST OF THE AMICI STATES

The decision 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 Amend-

ment authorizes 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 protection jurisprudence, the Second Circuit has

declared that New York's prohibition of assisted suicide vio-

lates the Equal Protection Clause of the Fourteenth Amend-

ment to the extent that it prohibits a physician from

prescribing a lethal dose of medicat:on 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”), cert. granted, U.S.

(1996 WL 282544) (1996). 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, any legitimate

state interest. Quill, 80 F.3d at 729-731.

More troubling than the serious flaws in the Court's

analysis is the impact of its holding which negates the ability

of the States to protect the lives of their citizens and, at the

same time, undercuts accepted understandings of federalism.

The protection and preservation of human life is, without

question, the quintessential duty and responsibility of the

sovereign States in our federal system of government. The

power of the States to fulfill this most important of respon-

sibilities, through the exercise of the police power, is likewise

unquestionable.' Indeed, as Justice Harlan observed in his

famous dissent in Lochner v. New York, “[a}ll 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

' “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.

rights."2 Lochner v. New York, 198 U.S. 45, 65 (1905) (Har-

lan, J., dissenting). “[{AJIl 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.

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

(footnotes omitted), cert. denied, 115 S.Ct. 1795 (1995). The

overwhelming majority of States impose criminal penalties on

one who assists another to commit suicide. See n.19, infra.

At stake in this case are, first and foretost, 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 individ-

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

Health, 497 U.S. 261, 282 (1990). The Court's decision in this

case will directly affect the people of all the States of the

Union. It will also determine whether “the States as States

have [any] legitimate interests which the National Govern-

ment 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).

SUMMARY OF ARGUMENT

The question presented in this case is whether the State

of 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 States in our federal system of

2 “The powers delegated by the proposed Constitution to the federal

government are few and defined. Those which are to remain in the State

governments are numerous and indefinite... . The powers reserved to the

several states will extend to all the objects which, in the ordinary course of

affairs, concern the lives, liberties, and properties of the people, and the

internal order, improvement, and prosperity of the State.” James Madison,

The Federalist No. 45, at 2:82 (1788).

government. Over a century ago, this Court, describing the

dual sovereignty of the States and Federal Government,

declared that:

The preservation of the States, and the maintenance

of their governments, are as much within the design

and care of the Constitution as the preservation of

the Union and the maintenance of the National

government. The Constitution, in all its provisions,

looks to an indestructible Union, composed of inde-

structible States.

A proper balance of power between the States and

National government “preserves to the people numerous

advantages”, not the least of which “is a check on abuses of

government power.” Gregory v. Ashcroft, 501 U.S. 452, 458

(1991). However, as Justice O'Connor, writing for the major-

ity in Gregory, cautioned, “[t}hese twin powers will act as

mutual restraints only if both are credible. In the tension

between federal and state power lies the promise of liberty.”

Id., at 459. While the question presented in this case is one of

equal protection,‘ the real question is whether the States will

continue to retain their sovereign authority in a system in

which “[t}he Federal Government holds a decided advan-

tage . . . the Supremacy Clause.” /d., at 460.

In the case below, the Second Circuit declared that New

York's prohibition of assisted suicide violates the Equal Pro-

tection Clause of the Fourteenth Amendment. Quill, 80 F.3d

> Texas v. White, 7 Wail. 700, 725 (1869), quoting Lane County v.

Oregon, 7 Wall. 71, 76 (1869). See also Tafflin v. Levitt, 493 U.S. 455, 458

(1990) (“We begin with the axiom that, under our federal system, the States

possess sovereignty concurrent with that of the Federal Government,

subject only to limitations imposed by the Supremacy Clause.”)

* San Antonio School District v. Rodriguez, 411 U.S. 1, 44 (1973) (“It

must be remembered, also, that every claim arising under the Equal

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 constitutionality, or are to be

subjected instead to rigorous judicial scrutiny.”).

at 731. The centerpiece of the Second Circuit's opinion was

its conclusion that terminally ill persons on life support who

wish to “hasten death” by directing the withdrawal of such

systems are similarly situated with others who wish to “hasten

death by self-administering prescribed drugs.” Quill, 80 F.3d

at 729. However, “those courts that have found a right to

refuse to begin or to continue life-sustaining medical treat-

ment have done so only after concluding that such refusal is

wholly different from the act of suicide.”® Legislatures in

forty-seven of the fifty States (including New York) have

likewise recognized this fundamental distinction. See ns.

14-16, infra. Notwithstanding this overwhelming authority to

the contrary, the Second Circuit erroneously concluded the

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

doing so, it created a class of similarly situated persons

where, in fact, none existed. As will be seen, the Second

Circuit's failure to recognize this critical distinction infected

its constitutional analysis, contributed to its misplaced

reliance on right-to-refuse treatment cases, and led directly to

its ultimate erroneous conclusion.

In the case below, the Second Circuit correctly found that

New York's statutes prohibiting assisted suicide neither

impinge upon fundamental rights nor create suspect classi-

fications and, thus, that the rational-basis standard of review

5 There is a danger in using euphemistic language such as “hasten

death” when referring to the act of suicide. The term “hasten death”

incorrectly implies a natural process being hurried along as opposed to the

intentional act of terminating life artificially. Such language 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).

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

(1994) (footnote omitted), cert. denied, 115 S.Ct. 1795 (1995). See n.12,

infra, and cases cited therein. But see Compassion in Dying v. State of

Washington, 79 F.3d 790 (9th Cir. 1996), cert. granted, __ U.S. __ (1996

WL 411596) (1996).

applied. Quill, 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.

The Second Circuit's analysis was further flawed by the

improper insertion of quality-of-life considerations which it

used to discount the State’s important interests in the protec-

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

In addition to being contrary to the Court's holding in Cruzan

v. Director, Missouri Dept. of Health, 497 U.S. 262, 282

(1990), such an analysis also disregards the irrefutable princi-

ple that all lives, from beginning to end and irrespective of

physical or mental condition, are under the full protection of

the law.

Finally, the Second Circuit suggested several alternative

methods by which the State of New York could achieve its

legitimate objectives. However, 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. In short,

had the Second Circuit applied the rational-basis standard of

review in accordance with the precedents of this Court, New

York’s prohibition of assisted suicide clearly would have

passed constitutional muster.

ARGUMENT

I. NEW YORK’S PROHIBITION OF ASSISTED SUI-

CIDE DOES NOT TREAT SIMILARLY SITUATED

PERSONS IN AN UNEQUAL MANNER

The Equal Protection Clause “is essentially a direction

that all persons similarly situated should be treated alike.”

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440

(1985) (citation omitted). In order to establish an equal pro-

tection violation, there must be a showing that the State has

adopted a classification which treats similarly situated

persons in an unequal manner.’ That cannot possibly be estab-

lished here. First, under the plain language of the statutes at

issue, all persons, regardless of their circumstances, are pro-

hibited from intentionally aiding another person to attempt or

commit suicide.* Thus, on their face, the challenged statutes

create no classifications at all.? Second, neither statute has

been applied in this case, i.e., none of the respondents have

been charged with any violation of section 125.15(3) or

120.30.'° Thus, to the extent that New York law classifies at

all, that classification is clearly neutral.'!

7 Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886). See also In re

Eric J., 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 320 (1979) (“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. [italics original, citation

and footnote omitted]’’).

8 Section 125.15 of the New York Penal Law, entitled “Manslaughter

in the second degree,” provides in pertinent part that “A person is guilty of

manslaughter in the second degree when: . . . (3) He intentionally causes or

aids another person to commit suicide. Manslaughter in the second degree

is a class C felony.” N.Y. Penal Law § 125.15(3) (McKinney 1987). Section

120.30 of the New York Penal Law, entitled “Promoting a suicide attempt,”

provides that “A person is guilty of promoting a suicide attempt when he

intentionally causes or aids another person to attempt suicide. Promoting a

suicide attempt is a class E felony.” N.Y. Penal Law § 120.30 (McKinney

1987).

® To the extent that the Second Circuit's opinion can be viewed as

being based on the concept of overbreadth, i.e., that the challenged statutes

sweep too broadly, it is plainly inconsistent with previous holdings of this

Court. While a finding of overbreadth or “ ‘overreaching’ ” may be

significant where First Amendment considerations are present, the concept

has no application here. Dandridge v. Williams, 397 U.S. 471, 484-485

(1970).

10 While a grand jury proceeding was instituted against one of the

respondents in this case, 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).

'! Of course, the fact that a neutrai statute may have a

In Quill, the Second Circuit found a classification created

not by the plain language of the challenged statutes, or by

their application in a particular case, but rather based on its

conclusion that the refusal of unwanted life-sustaining medi-

cal treatment is the equivalent of suicide and assisted suicide.

Quill, 80 F.3d at 729. That conclusion, the centerpiece of the

Second Circuit’s opinion, was error.

A. The Refusal of Unwanted Life-Sustaining Medical

Treatment Is Not The Equivalent Of Suicide Or

Assisted Suicide, And Thus, New York’s Prohibi-

tion Of Assisted Suicide Does Not Create A Class

of Similarly Situated Persons

The Equal Protection Clause permits the States to deter-

mine, in the first instance, which persons are similarly

situated and which are not. Indeed, it is well-settled that

“[t)he initial discretion to determine what is ‘different’ and

what is ‘the same’ resides in the legislatures of the States.”

Plyer v. Doe, 457 U.S. 202, 215 (1982). In the instant case,

the States have made that determination: terminally ill per-

sons who refuse unwanted life-sustaining medical treatment

disproportionate negative impact on a particular grouy does not, standing

alone, establish a violation of equal protection. Persoxnel Administrator of

Massachusetts v. Feeney, 442 U.S. 256, 271-273 (1979). See also

Washington v. Davis, 426 U.S. 229, 242 (1976) (“[Wl]e have not held that a

law, neutral on its face and serving ends otherwise within the power of

government to pursue, is invalid under the Equal Protection Clause simply

because it may affect a greater proportion of one race than of another.”’)

Rather, in such a situation it must also be shown that the affected group has

historically been the victim of discrimination and, further, that the statute

was enacted for a discriminatory purpose. Feeney, 442 U.S. at 273-274.

That cannot possibly be established here. In the case below, the Second

Circuit did not find that terminally ill persons had experienced “a history of

purposeful unequal treatment” (San Antonio School District v. Rodriguez,

411 U.S. 1, 28 (1973)), or that New York's prohibition of assisted suicide

was enacted for the purpose of discriminating against terminally ill

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

results.” Feeney, at 273.

are not similarly situated with other persons who wish to

commit suicide or assisted suicide.

In landmark case of Jn re Quinlan, the New Jersey

Supreme Court recognized that there is “a real distinction

between the self-infliction of deadly harm and a self-deter-

mination against artificial life support or radical surgery, for

instance, in the face of irreversible, painful and certain immi-

nent death.” /n re Quinlan, 70 N.J. 10, 43, 355 A.2d 647, 665,

cert. denied, 429 U.S. 922 (1976). Since Quinlan, courts

which have recognized a right to refuse unwanted life-sus-

taining medical treatment have, at the same time, recognized

that such refusal is fundamentally different from the act of

suicide.'? A typical example of this can be found in People v.

Kevorkian wherein the Michigan Supreme Court stated that:

[Pjersons who opt to discontinue life-sustaining

12 See, e.g., Satz v. Perlmutter, 362 So.2d 160, 162-163 (Fla. DCA

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

In re Conroy, 98 N.J. 321, 351, 486 A.2d 1209, 1224 (1985) (“[D]eclining

life-sustaining medical treatment may not properly be viewed as an attempt

to commit suicide. Refusing medical intervention merely allows the

disease to take its natural course; if death were to eventually occur, it would

be the result, primarily, of the underlying disease, and not the result of a

self-inflicted injury. [footnote omitted]”); 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) (“[A]

necessary distinction exists between a person suffering from a serious life-

threatening or debilitating injury who rejects medical intervention that only

prolongs but never cures the affliction and an individual who deliberately

sets in motion a course of events aimed at his or her own demise and

attempts to enlist the assistance of others.”); DeGrella v. Elston, 858

S.W.2d 698, 706-707 (Ky. 1993). See also Thomas J. Marzen, et al.,

Suicide: A Constitutional Right?, 24 Dug. L. Rev. 1, 10 n.34 (1985), and

, =~

medical treatment are not, in effect, committing

suicide. There is a difference between choosing a

natural death summoned by an uninvited illness or

calamity, and deliberately seeking to terminate

one’s life by resorting to death-inducing measures

unrelated to the natural process of dying.'?

Likewise, in Cruzan v. Director, Missouri Dept. of

Health, 497 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 “th: majority of States in this country have

laws .nposing criminal penalties on one who assists another

to commit suicide.” Cruzan, 497 U.S. at 279-280 (footnote

omitted). Plainly, the majority in Cruzan had no difficulty at

all distinguishing the right to refuse unwanted life-sustaining

medical treatment from suicide and assisted suicide.

Today, forty-seven state legislatures also make the funda-

mental distinction between the refusal of unwanted life-sus-

taining medical treatment and the acts of suicide and assisted

suicide in their natural death/living will statutes,'* or their

'3 People v. Kevorkian, 447 Mich. 436, 472-473, 527 N.W.2d 714,

728-729 (1994) (citing McKay v. Bergstedt, 106 Nev. 808, 820, 801 P.2d

617 (1990)), cert. denied, 115 S.Ct. 1795 (1995). See also Yale Kamisar,

Are Laws against Assisted Suicide Unconstitutional?, 23 Hastings Center

Report, No. 3, 32, 33 (1993) (“The only right or liberty that the Karen Ann

Quinlan case and subsequent so-called ‘right to die’ rulings have

established is the nght under certain circumstances to be disconnected from

artificial life support systems or, as many have called it, the right to die a

natural death. (italics original]’’).

'# Ala. Code § 22-8A-10 (1990), Alaska Stat. § 18.12.080(f) (Michie

1994); Ariz. Rev. Stat. Ann. § 36-3210 (West Supp. 1995); Ark. Code Ann.

§ 20-17-210(g) (Michie 1991); Cal. Health & Safety Code § 7191.5(g)

(West Supp. 1996); Colo. Rev. Stat. § 15-18-112(1) (West 1987); Fla. Stat.

Ann. § 765.3091) (West Supp. 1996); Ga. Code Ann. § 31-32-11(b)

(1996); Haw. Rev. Stat. § 327D-13 (Supp. 1992); Ill. Comp. Ann. Stat. ch.

755, § 35/9(f) (Smith-Hurd 1992), Ind. Code Ann. § 16-36-4-19 (West

durable power of attorney for health care acts,'5 or both.'®

This fundamental distinction, now a national consensus, must

today be considered a firmly established principle of Ameri-

can jurisprudence.

The rationale supporting this fundamental distinction is

straightforward and based on obvious factual differences

Supp. 1996); lowa Code Ann. § 144A.11.6 (West 1989); Kan. Stat. Ann.

§ 65-28, 109 (1992); Ky. Rev. Stat. Ann. § 311.639 (Michie 1995); La. Rev.

Stat. Ann. § 40:1299.58.10(A) (West 1992); Me. Rev. Stat. Ann. tit. 18-A,

§ 5-813(c) (West Supp. 1995); Md. Health-Gen. Code Ann. § 5-61 1(c)

(1994); Minn. Stat. Ann. § 145B.14 (West Supp. 1996); Miss. Code Ann.

§ 41-41-117(2) (1993); Mo. Ann. Stat. § 459.055(5) (West 1992); Mont.

Code Ann. § 50-9-205(7) (1995); Neb. Rev. Stat. Ann. § 20-412(7) (Michie

1995), Nev. Rev. Stat. Ann. § 449.670(2) (Michie 1991); N.H. Rev. Stat.

Ann. § 137-H:13 (1996); N.C. Gen. Stat. § 90-320(b) (1993); N.D. Cent.

Code § 23-06.4-01 (1991); Ohio Rev. Code Ann. § 2133.12(D) (Anderson

Supp. 1995), Okla. Stat. Ann. tit. 63, § 3101.12(G) (West Supp. 1996); Pa.

Cons. Stat. Ann. tit. 20, § 5402(b) (West Supp. 1996); R.1. Gen. Laws

§ 23-4.11-10(f) (Supp. 1995); S.C. Code Ann. § 44-77-130 (Law Co-op.

Supp. 1996); S.D. Codified Laws Ann. § 34-12D-20 (Michie 1994), Tex.

Health & Safety Code Ann. § 672.020 (West 1992); Utah Code Ann.

§ 75-2-1118 (1993); Va. Code Ann. § 54.1-2990 (Michie 1994), Wash.

Rev. Code Ann. § 70.122.100 (West Supp. 1996); W.Va. Code § 16-30-10

(1995), see also § 16-30C-14 (1995) (DNR orders); Wis. Stat. Ann.

§ 154.11(6) (West 1989): Wyo. Stat. § 35-22-109 (Michie 1994). See also

D.C. Code Ann. § 6-2430 (1989).

'S Act of July 12, 1982, § 3, 63 Del. Laws 821 (1981); Idaho Code

§ 39-152 (Supp. 1996) (DNR orders); Ill. Comp. Stat. Ann. ch. 755,

§ 40/50 (Smith-Hurd 1992), Ind. Code Ann. §§ 16-36-1-12(c), 16-36-1-13

(West Supp. 1996), see also § 30-5-5-17(b) (West 1994); lowa Code Ann.

§ 144B.12.2 (West Supp. 1996); Mass. Gen. Laws Ann. ch. 201D, § 12

(West Supp. 1996); Mich. Comp. Laws Ann. § 700.496(20) (West 1995);

N.Y. Pub. Health Law § 2989(3) (McKinney 1993); N.D. Cent. Code

§ 23-06.5-01 (1991); R.L. Gen. Laws § 23-4.10-9(f) (Supp. 1995); Wyo.

Stat. § 3-5-211 (Michie Supp. 1996).

'© See notes 14 and 15, supra. See also Conn. Gen. Stat. Ann.

§ 19a-S75 (West Supp. 1996) (form declarations); NJ. Stat. Ann.

§ 26:2H-54(d)-(e) (West 1996) (legislative findings); N.M. Stat. Ann.

§ 24-7A-13(C) (Michie Supp. 1995).

between the two situations. When a terminally ill person

accepts life-sustaining treatment, he or she is authorizing the

invasion of bodily integrity which necessarily accompanies

that treatment. The fact that this class of persons must sacri-

fice their bodily integrity in order to continue living 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.”'’ In sharp contrast, suicide and assisted

suicide do not implicate a person's right to protect bodily

integrity or right to refuse unwanted medical treatment.

Our Nation's history and tradition fully supports the

States’ determination that these two situations are not the

same. The right to refuse unwanted medical treatment is

derived from the common-law doctrine of informed consent

which embodies the “notion of bodily integrity.” Cruzan, 497

U.S. at 269 and 270. As the Court observed in Cruzan, “[t}he

informed consent doctrine has become firmly entrenched in

American tort law.” /d. In sharp contrast, opposition to sui-

cide is deeply rooted in our Nation's history and tradition,'*

and assisted suicide remains a crime in the overwhelming

majority of States.'?

'? 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).

‘8 See In re Joseph G., 34 Cal.3d 429, 433-435, 194 Cal.Rptr. 163,

165 (1983) (reviewing development of the law with respect to suicide and

related crimes); Cruzan v. Director, Missouri Dept. of Health, 497 US.

261, 294-295 (1990) (Scalia, J., concurring) (reviewing our Nation's

historical and traditional opposition to suicide and assisted suicide);

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

1, 100 (1985) (concluding that “the weight of authority in the United

States, from colonial days through at least the 1970's has demonstrated that

the predominant attitude of society and the law has been one of opposition

to suicide.”).

'? The following States, plus Puerto Rico and the Virgin Islands,

expressly prohibit assisted suicide by statute: Alaska Stat.,

§ 11.41.120(aX2) (Michie 1989); Ariz. Rev. Stat. Ann., § 13-1103(A)3)

(West Supp. 1995); Ark. Stat. Ann., § 5-10-104(a)(2) (Michie 1993), Cal.

In summary, suicide and assisted suicide are so obviously

different from the refusal of unwanted medical treatment, and

its legal underpinnings, that persons exercising the right to

refuse such treatment simply cannot be considered similarly

situated with those who wish to commit suicide or assisted

suicide. By failing to recognize the obvious factual

differences between the two situations, and our Nation’s his-

tory and tradition with respect to each, the Second Circuit

created a class of similarly situated persons where, in fact,

Pen. Code, § 401 (West 1988); Colo. Rev. Stat., § 18-3-104(1)(b) (Supp.

1995), Conn. Gen. Stat. Ann., § $3a-56(a)(2) (West 1994); Del. Code Ann.,

tit. 11, § 645 (1995); Pla. Stat. Ann., § 782.08 (West 1992); Ga. Code Ann.

§ 16-5-S(b) (1996); Ill. Comp. Stat. Ann., ch. 720, 5/12-31(a)(2) (Smith-

Hurd Supp. 1996); Ind. Stat. Ann., § 35-42-1-2.5(b) (West Supp. 1996);

lowa Code, §§ 707A.1, 707A.2 and 707A.3, as amended by Acts of the

76th General Assembly, 1996 Session; Kan. Stat. Ann., § 21-3406 (1995);

Ky. Rev. Stat. Ann., § 216.302 (Michie 1995); La. Rev. Stat. Ann.,

§ 14:32.12 (West Supp. 1996); Me. Rev. Stat. Ann., tit. 17-A, § 204 (West

1983), Minn. Stat. Ann., § 609.215 (West 1987 and Supp. 1996); Miss.

Code Ann., § 97-3-49 (1994); Mo. Ann. Stat., § 565.023(1)(2) (West Supp.

1996); Mont. Code Ann., § 45-5-105 (1995); Neb. Rev. Stat. Ann.,

§ 28-307 (Michie 1995); N.H. Rev. Stat. Ann., § 630:4 (1996); NJ. Stat.

Ann., § 2C:11-6 (West 1995); N.M. Stat. Ann., § 30-2-4 (Michie 1994);

N.Y. Penal Law, §§ 120.30, 125.15(3) (McKinney 1987), N.D. Cent. Code,

§ 12.1-16-04 (Supp. 1995), Okla. Stat. Ann., tit. 21, §§ 813, 814, 815 (West

1983); Pa. Cons. Stat. Ann., tit. 18, § 2505(b) (West 1983); P.R. Laws Ann.,

tit. 33, § 4009; R.I. Pub. Act 96-133, to be codified as R.1. Gen. Stat., tit.

11, ch. 60; S.D. Codified Laws Ann., § 22-16-37 (Michie 1988); Tenn.

Code Ann., § 39-13-216 (Supp. 1995); Tex. Penal Code Ann., § 22.08

(West 1994); V.I. Code Ann., tit. 14, § 2141; Wash. Rev. Code Ann.,

§ 9A.36.060 (West 1988); and Wis. Stat. Ann., § 940.12 (West 1996). See

also Or. Rev. Stat. § 163.125(1)(b) (1993) (prohibiting assisted suicide

generally), but see Or. Rev. Stat. § 127.800 et seg. (1996) (permitting

physician-assisted suicide in certain circumstances). The following states

impose criminal penalties by case law for assisting a suicide:

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

Kevorkian, 447 Mich. 436, 493-497, 527 N.W.2d 714, 738-739 (1994),

cert. denied, 115 S.Ct. 1795 (1995), Blackburn v. State, 23 Ohio St. 146,

163 (1872); State v. Jones, 86 S.C. 17, 22, 47, 67 S.E. 160, 162, 165 (1910);

and State v. Willis, 255 N.C. 473, 477, 121 S.E.2d 854, 856-857 (1961).

none existed. “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).

B. The New York Authorities Relied Upon By The

Second Circuit Do Not Support Its Conclusion

That New York Has Recognized A Right To Com-

mit Suicide Or “Hasten Death”

Even the New York authorities relied upon by the Second

Circuit do not support its conclusion that New York has recog-

nized a right to commit suicide, or as the Second Circuit

phrased it, a right to “hasten death.” The first case cited by the

Second Circuit in its effort to create a bridge between the right

to refuse medical treatment and a right to “hasten death” was

Schloendorff v. Society of New York Hospital, 211 N.Y. 125,

105 N.E. 92 (1914). Quill, 80 F.3d at 727. However, Schloen-

dorff is simply an “informed consent” case, the pertinent por-

tion of which this Court discussed in Cruzan as follows:

Justice Cardozo, while on the Court of Appeals of

New York, aptly described this doctrine [of

informed consent]: “Every human being of adult

years and sound mind has a right to determine what

shall be done with his own body; and a surgeon who

performs an operation without his patient’s consent

commits an assault, for which he is liable in dam-

ages.” Schloendorff v. Society of New York Hospital,

211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914).

Cruzan, 497 U.S. at 269. Plainly Schloendorff, which simply

recognizes the doctrine of informed consent, does not support

a right to “hasten death.” Neither did Justice Cardozo.”°

20 Margaret E. Hall, Selected Writings of Benjamin Nathan Cardozo,

Law and Literature, [1], What Medicine Can Do for Laws, 371, 388-390

(1947) (“Every now and then there crops up in popular journals a

discussion of the problem of euthanasia. The query is propounded whether

the privilege should be accorded to a physician of putting a patient

painlessly out of the world when there is an incurable disease, agonizing

The Second Circuit then 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 proposi-

tion that “{i]Jn 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, 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 medi-

cal 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 “[t}he 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.” Matter of

Storar, 52 N.Y.2d 363, 377, 420 N.E.2d 64, 71 (citation

omitted, insert added), cert. denied, 454 U.S. 858 (1981).

Further review of the majority opinion reveals even more

evidence that the New York Court of Appeals did not impli-

edly 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, 52 N.Y.2d at 377 n.6. Second,

noting the need for judicial restraint, the majority found it

unnecessary on the facts of the cases before it to address the

dissent’s endorsement of a limited form of passive euthanasia.

Matter of Storar, 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.

suffering, and a request by the sufferer for merciful release. No such

privilege is known to our law, which shrinks from any abbreviation of the

span of life, shaping its policy in that regard partly under the dominance of

the precepts of religion and partly in the fear of error or abuse. Just as a life

may not be shortened, so its value must be held as equal to that of any

other, the mightiest or the lowliest.”).

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, 80 F.3d at 727 (inter-

nal 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

incorrectly 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, 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 Resus-

citate”, sections 2960-2979, and Article 29-C, entitled

“Health Care Agents and Proxies”, sections 2980-2994, for

the proposition that “the New York legislature [has] placed its

imprimatur upon the right of competent citizens to hasten

death by refusing medical treatment and by directing physi-

cians to remove life-support systems already in place.” Quill,

80 F.3d at 727 (insert added). Again, this is incorrect. As a

review of these statutes plainly reveals, the New York legisla-

ture 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, New York Pyblic 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;

accordingly, nothing herein shall be construed to

2! See, e.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”).

permit an agent to consent to any act or omission to

which the principal could not consent under law.?2

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 conse-

quences of that refusal.

The final authority relied upon by the Second Circuit in

its effort to equate the withdrawal of life-sustaining medical

treatment with the act of suicide is Cruzan v. Director, Mis-

souri Dept. of Health, 497 U.S. 261 (1990). However, like its

reliance on New York law, that reliance is entirely misplaced.

While the Second Circuit discussed several portions of the

Cruzan opinion at length, it ignored the far more relevant

portion of the opinion for present purposes, i.e., the recogni-

tion by the majority that even in the face of a right to refuse

medical treatment, the State may properly assert important

interests in the protection and preservation of human life, and

in the prevention of both suicide and assisted suicide. Cruzan,

497 U.S. at 280. In summary, none of the authorities relied

upon by the Second Circuit support its attempt to create a

bridge between the right to refuse unwanted medical treat-

ment, including that necessary to sustain life, and a right to

commit suicide or assisted suicide.

Il. NEW YORK’S PROHIBITION OF ASSISTED SUI-

CIDE IS RATIONALLY RELATED TO NUMEROUS

IMPORTANT GOVERNMENTAL OBJECTIVES

Should this Court find a state-determined class of sim-

ilarly situated persons, it then becomes necessary to test

22 See also New York Public Health Law, Article 29-B, § 2962

(creating a presumption in favor of resuscitation, thus, further evidencing

New York's strong state policy in favor of preserving life).

whether that classification “has been drawn in such a manner

as to bear some rational relationship to a legitimate state

end.”?> Part of the answer to this question “lies in remember-

ing that our Constitution is an instrument of federalism” and

that “maintenance of the principles of federalism is a fore-

most consideration in interpreting any of the pertinent consti-

tutional provisions under which this Court examines state

action.” Allied Stores of Ohio v. Bowers, 358 U.S. 522, 532

(1959) (Brennan, J., concurring).

It is well-settled that “[t}he Equal Protection Clause

allows the States considerable leeway to enact legislation that

may appear to affect similarly situated people differently.”

Clements v. Fashing, 457 U.S. 957, 962-963 (1982) (plurality

opinion).

[Where individuals in the group affected by a law

have distinguishing characteristics relevant to inter-

ests the State has the authority to implement, the

courts have been very reluctant, as they should be in

our federal system and with our respect for the

separation of powers, to closely scrutinize legisla-

tive choices as to whether, how, and to what extent

those interests should be pursued. In such cases, the

Equal Protection Clause requires only a rational

means to serve a legitimate end.

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

441-442 (1985). See also FCC v. Beach Communications,

Inc., 508 U.S. 307, 313-314 (1993) (“This standard of review

is a paradigm of judicial restraint.”)

Indeed, this Court has repeatedly observed that

“ .. . [The rational-basis standard] is true to the principle that

the Fourteenth Amendment gives the federal courts no power

23 Clements v. Fashing, 457 U.S. 957, 963 (1982) (plurality opinion).

See also Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-458

(1988) (“Unless a statute provokes strict judicial scrutiny because it

interferes with a fundamental right or discriminates against a suspect class,

it will ordinarily survive an equal protection attack so long as the

challenged classification is rationally related to a legitimate governmental

purpose. [internal quotes and citations omitted]"’).

to impose upon the States their views of what constitutes wise

economic or social policy.” Dallas v. Stanglin, 490 U.S. 19,

27 (1989) (insert original, internal quotes omitted), citing

Dandridge v. Williams, 397 U.S. 471, 485-486 (1970). 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).

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 classification it creates is rationally related to a legitimate

state interest.?4

In discussing this presumption in Quill, the Second Cir-

cuit stated: “[t}he general rule . . . is that state legislation

24 See Cleburne v. Cleburne Living Center, 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 related to

a legitimate state interest. [citations omitted]”).

carries a presumption of validity if the statutory classification

is ‘rationally related to a legitimate state interest.’ [citation

omitted)” Quill, 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 rational relation-

ship; rather, the presumption precedes: application of the stan-

dard itself.25 The Second Circuit's appzrent 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 “[t}he New York

statutes prohibiting assisted suicide, 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

This holding, like its misidentification of a similarly

situated class, is based on the Second Circuit's failure to

differentiate between the refusal of unwanted life-sustaining

medical treatment and the acts of suicide and assisted suicide.

Once this recurrent error is removed from the analysis, how-

ever, it immediately becomes clear that New York's prohibi-

tion of assisted suicide directly furthers, and thus is rationally

25 See Heller v. Doe, 509 U.S. 312, 319-320 (1993) (“For these

reasons, a Classification neither involving fundamental rights nor

proceedings along suspect lines is accorded a strong presumption of

validity. [emphasis added]”); FCC v. Beach Communications, Inc., 508

U.S. 307, 314-315 (1993) (“On rational-basis review, a classification in a

statute such as the Cable Act comes to us bearing a strong presumption of

validity, . . . and those attacking the rationality of the legislative

classification have the burden ‘to negate every conceivable basis which

26 It is noteworthy that, at this point in its opinion, the Second Circuit

abandoned the euphemism “hasten death” and, in its place, substituted the

word “suicide.”

related to, several important state interests. Those interests include,

but are not limited to: (1) the protection and preservation of human

life;27 (2) the prevention of suicide;?* (3) preventing the fraud,

errors and abuse which would accompany acceptance of suicide

and assisted suicide;?? (4) maintaining the ethical integrity of the

medical profession;>° (5) protecting the poor and minorities from

27 Cruzan, 497 U.S. at 280.

28 “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) (hereinafter “When Death is Sought’). “Studies that examine the

psychological background of individuals who kill themselves show that 95

percent have a diagnosable mental disorder at the time of death.” /d., at 11.

or an early death during a terminal illness are usually suffering from a

treatable mental illness, most commonly depression.” /d., at 13 (footnote

omitted).

29 Cruzan, 497 U.S. at 281 (“(E]ven where family members are

present, [tJhere 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 and 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, 2 Cal.App.4th at 1624 (“Third parties, even

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

end.”).

30 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 pzofession). In reaffirming its long-standing opposition to

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

exploitation;>! (6) protecting handicapped persons from soci-

etal indifference;3? and (7) protecting innocent third parties.>3

Under the rational-basis standard, this should have been more

than enough to establish the constitutionality of the challenged

statutes.>4 However, in the case below, there was much more.

In 1985, then New York Governor Mario Cuomo con-

vened the New York State Task Force on Life and the Law

which he charged with responsibility to develop public policy

recommendations on issues raised by medical advances. In

May of 1994, the Task Force issued its 181 page report, When

Death is Sought: Assisted Suicide and Euthanasia in the

Medical Context, which has been characterized by one federal

Court of Appeals as “[t}he most comprehensive study of our

subject by a governmental body . . .” Compassion in Dying v.

State of Washington, 49 F.3d 586, 591-592 (9th Cir. 1995),

superseded by 79 F.3d 790 (9th Cir. 1996). The Task Force

unanimously recommended that New York’s laws prohibiting

assisted suicide and euthanasia should not be changed. When

Death is Sought, at vii.

After lengthy deliberations, the Task Force unani-

mously concluded that the dangers of such a dra-

matic change in public policy would far outweigh

(July 1994), Report 59, Physician-Assisted Suicide, 269 and 274,

respectively.

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

Washington, 49 F.3d 586, 592 (9th Cir. 1995), superseded by 79 F.3d 790

(9th Cir. 1996).

32 Quill, 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).

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

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

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

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

34 Cf. n.37, infra, and cases cited therein. See also Heller v. Doe, 509

U.S. 312, 320 (1993) (“A State, moreover, has no obligation to produce

evidence to sustain the rationality of a statutory classification.”).

any possible benefits. In light of the pervasive fail-

ure of our health care system to treat pain and

diagnose and treat depression, legalizing assisted

suicide and euthanasia would be profoundly dan-

gerous for many individuals who are ill and vulner-

able. The risks would be most severe for those who

are elderly, poor, socially disadvantaged, or without

access to good medical care.**

While the Second Circuit was certainly aware of the Task

Force Report (sec Quill, 80 F.3d at 724, 730, and n.3), it

plainly rejected it as an explanation of the “state of facts

reasonably . . . conceived to justify [New York's prohibition

of assisted suicide].” McGowan v. Maryland, 366 U.S. 420,

426 (1961). That was error. It is difficult to imagine a more

comprehensive explanation for a legislative decision. It is

also difficult to imagine what is required under the rational-

basis standard if the Task Force Report is insufficient.*° In

summary, had the Second Circuit applied the rational-basis

standard of review in accordance with the precedents of this

Court, New York's prohibition of assisted suicide clearly

would have passed constitutional muster.*’

ener eer ttt tare tn a mere tom, we eee

N.Y. Penal Code, §§ 125.15(3) and 120.30.

36 Cf Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (finding

Missouri mandatory retirement age of 70 for most state judges to be

rationally related to a legitimate state interest, but noung that it “is founded

on a generalization” which “may not be true at all.”). See also Heller v.

Doe, 509 U.S. 312, 321 (1993) (Finally, courts are compelled under

rational-basis review to accept a legislature's generalizations even when

there is an imperfect fit between means and ends.”).

3? Of McGowan v. Maryland, 366 U.S. 420, 426 (1951), Dandridge

x Williams, 397 U.S. 471, 486 (1970); San Antonio School District v.

Rodriguez, 411 U.S. 1, 44-55 (1973); Washington v. Davis, 426 U.S. 229,

245 (1976); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307,

314 (1976); Vance v Bradley, 440 U.S. 93, 98-102 (1979), Bowen v

Owens, 476 U.S. 340, 348-350 (1986), Kadrmas v. Dickinson Public

il. THE SECOND CIRCUIT’S CONSTITUTIONAL

ANALYSIS WAS FUNDAMENTALLY FLAWED BY

THE IMPROPER INSERTION OF QUALITY-OF-

LIFE CONSIDERATIONS

The Second Circuit’s application of the rational-basis

standard was further flawed by the improper insertion of

quality-of-life considerations which it used to discount the

State's important interests in the protection and preservation

of human life. Quill, 80 F.3d at 729-730. In this regard, the

Second Circuit stated: “(w)hat interest can the state possibly

have in requiring the prolongation of a life that is all but

ended? Surely, the state's interest lessens as the potential for

life diminishes.” Quill, 80 F.3d at 729-730 (citation omitted).

The Second Circuit's characterization of the life at stake as

one “that is all but ended” is based on the mistaken notion

that the life at stake is of little, if any, value. Moreover, it is at

this critical time, when life is “all but ended,” that the person

whose life is at stake is in greatest need of the State's

protection. Indeed, as the Court observed in Cruzan, “even

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.”™*

Such improper quality-of-life considerations are also

directly contrary to this Court’s holding in Cruzan that “a

Schools, 487 U.S. 450, 457-465 (1988); Dallas v. Stanglin, 490 U.S. 19, 27

(1989), Gregory v. Ashcroft, 501 U.S. 452, 470-473 (1991).

38 Cruzan, 497 U.S. at 281 (citation and 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

State may properly decline to make judgments about the

‘quality’ of life that a particular 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, 497 U.S. at 282.

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

ations 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). An

analysis such as that engaged in by the Second Circuit also

disregards the irrefutable principle that all lives, from begin-

ning 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 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.

Blackburn v. State, 23 Ohio St. 146, 163 (1872).

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

tection and preservation of human life, the Second Circuit

also relied upon broad generalities from the Court’s opinion

in Planned Parenthood v. Casey, 50S U.S. 833, 851 (1992), on

the nature of the liberty protected by the Fourteenth Amend-

ment. Quill, 80 F.3d at 730. That reliance was particularly

surprising since Casey itself reaffirms the States’ “legitimate

interests from the outset of the pregnancy in protecting the

3° See, e.g.. Mack v. Mack, 618 A.2d 744, 760 (Md. 1993) (“As a

logical progression from that precedent [patients in a persistent vegetative

state}, cases eventually would be presented submitting that the best interest

of the most severely retarded and feebleminded, who require extended

care, who have practically no cognition, and who are too disabled to feed

themselves, would be to have sustenance withheld. [citation omitted]”).

health of the woman and the life of the fetus that may become

a child.” Casey, 505 U.S. at 846. Nevertheless, the Second

Circuit relied on Casey when it posed the following 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, SOS 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 in preserving

life compels the answer to these questions: “None.”

Quill, 80 F.3d at 730 (insert original).

There are at least two fundamental flaws in the Second

Circuit's reliance on Casey for this proposition. First, “[i}t is

not the province of [the courts] . . . to create substantive

constitutional rights in the name of guaranteeing equal protec-

tion of the laws.” San Antonio School District v. Rodriguez,

411 U.S. 1, 33 (1973) (insert added). That, however, was

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

broad generalities on the nature of liberty contained in Casey,

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

scribed to end life during the final stages of a terminal

illness.” Quill, 80 F.3d at 730. The creation of this new right —

substantive due process in disguise — was error.

Unlike other provisions of the Constitution, the

Equal Protection Clause confers no substantive

rights and creates no substantive liberties. The

function of the Equal Protection Clause, rather, is

simply to measure the validity of classifications

created by state laws.

San Antonio School District v. Rodriguez, 411 U.S. 1, 59

(1973) (Stewart, J., concurring) (italics original, footnote

omitted). 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 “ ‘psychological

pressure’” on the elderly and infirm to choose death by

“establish[ing] rules and procedures to assure that all choices

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

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

of “terminal illness,” the Second Circuit suggested that “New

York may define that stage of illness with greater partic-

ularity, require the opinion of more than one physician or

impose any other obligation upon patients and physicians who

collaborate in hastening death.” Quill, 80 F.3d at 731 (foot-

note omitted). In the footnote which accompanies the above-

quoted text, the Second 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, 80 F.3d at

731 n4.

This same argument — that the State may be able to

achieve its objectives through alternative means — was

rejected by the Court in Dallas v. Stanglin and, as in that case,

“misapprehend{s] the nature of rational-basis scrutiny, which

is the most relaxed and tolerant form of judicial scrutiny

under the Equal Protection Clause.” Dallas v. Stanglin, 490

U.S. 19, 26-27 (1989). 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.

(1973) (Texas system of financing public education does not fail, under

rational basis standard, simply because other “less drastic” methods of

satisfying the State's interest might be conceived), Vance v. Bradley, 440

U.S. 93, 102-103 n.20 (1979) (“irrelevant to equal protection analysis

{under rational-basis standard] . . . that other alternatives that might achieve

approximately the same results, . . . [insert added)”), Heller v. Doe, 509

U.S. 312, 329-330 (1993) (alternative methods of achieving state objective

“irrelevant in rational-basis review.”).

Moreover, “[(t}he 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). Simply stated, it is not the business of

this Court to attempt to resolve the myriad of complex ethical,

moral, social, religious, medical, and philosophical problems

presented by the issue of physician-assisted suicide.*' In this

regard, the words of the Court in San Antonio School District

v. Rodriguez, 411 U.S. at 43, have equal application here:

In such circumstances, the judiciary is well advised

to refrain from imposing on the States inflexible

constitutional restraints that could circumscribe or

handicap the continued research and experimenta-

tion so vital to finding even partial solutions to

educational problems and to keeping abreast of

ever-changing conditions.

IV. THE DECISION BELOW SHOULD BE REVERSED

IN ORDER TO PRESERVE THE ESSENTIAL

ROLE OF THE STATES IN OUR FEDERAL SYS-

TEM OF GOVERNMENT 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

*! Cf Dandridge v. Williams, 397 U.S. 471, 487 (1970) (“the

intractable economic, social, and even philosophical problems presented by

public welfare assistance programs are not the business of this Court.”).

See also Daniel Callahan & Margot White, The Legalization of Physician-

Assisted Suicide: Creating a Regulatory Potemkin Village, 30 U. Rich. L.

Rev. | (1996) (surveying legislative activity in the United States regarding

physician-assisted suicide and discussing why successful regulation would

be impossible in both principle and practice).

organized society.” Poe v. Ullman, 367 U.S. 497, 542 (1961)

(Harlan, J., dissenting). That balance is grounded in the

States’ recognition of their responsibility to protect both

individual liberty and, at the same time, the lives of the

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

no matter what their circumstances. In striking that balance,

the States have drawn a line between an individual's right to

refuse unwanted medical treatment and killing oneself, with

or without the assistance of another. That balance, now a

national consensus, is represented by statutes in a majority of

States which both recognize an individual’s right to refuse

unwanted medical treatment and, at the same time, reject any

affirmative act to end life. See ns. 14-16, supra. Whether that

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 initiative ballot.4? The principles of

federalism embodied in our Constitution require no less.

As the States grapple with the difficult questions pre-

sented by the ever-increasing ability of medical technology 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 government . . . is the

science of experiment, . . . " Garcia v. San Antonio Metro., 469

U.S. 528, 546 (1985) (citation and internal quotes omitted). While

“[{t}his Court has the power to prevent experiment” (New State Ice

42 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).

“3 Cf San Antonio School District v. Rodriguez, 411 U.S. 1, SO

(1973) (“No area of social concern stands to profit more from a multiplicity

of viewpoints and from a diversity of approaches than does public

education.”). See also Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)

(“federalist structure of joint sovereigns preserves to the people numerous

advantages” including “allow[ing] for more innovation and

experimentation in government; . . . [insert added]”).

Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissent-

ing)), it should refrain from doing so here.“

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

experiments without risk to the rest of the country.

Id.

A decision affirming 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

* Just such an experiment may soon take place in the State of

Oregon where, in November of 1994, the people voted to accept Measure

16, a ballot initiative allowing a terminally il!, mentally competent adult to

obtain a physician's prescription for the purpose of ending his/her life.

While Measure 16 has been declared unconstitutional as violative of the

Equal Protection Clause, and its operation permanently enjoined by the

district court (Lee v. State of Oregon, 891 F.Supp. 1421, 1438-1439 (D.Or.

1995)), that decision is presently on appeal to the United States Court of

Appeals for the Ninth Circuit, which recently heard oral argument in the

case. Should Measure 16 ever take effect, the eyes of the Nation will turn to

Oregon to see whether a State can safely walk down a road which history

has taught us is fraug..' with danger. See When Death is Sought, at 133-134

(reporting abuses, inc iuding nonvoluntary euthanasia, which have occurred

in the Netherlands where, since 1984, guidelines have tacitly allowed the

practice and concluding that “If euthanasia were practiced in a comparable

percentage of cases in the United States, voluntary euthanasia would

patient's consent would occur in an additional 16,000 deaths.”) See also

Rodriguez v. Attorney General of Canada, et al., 3 $.C.R. 519, 603 (1993)

(decision upholding Canada’s ban on assisted suicide, noting: “Critics of

the Dutch approach point to evidence suggesting that involuntary active

euthanasia (which is not permitted by the guidelines) is being practised to

an increasing degree. This worrisome trend supports the view that a

relaxation of the absolute prohibition takes us down ‘the slippery slope’.

{insert original]”) (Sopinka, J., writing for the majority).

arguably will affect more lives than any other issue the States

will face in the foreseeable future. It will also “invite{] an

unelected federal judiciary to make decisions about which

state policies it favors and which ones it dislikes.” Garcia v.

San Antonio Metro., 469 U.S. 528, 546 (1985). At the same

time, it will “relegate the States to precise 'y the trivial role

that opponents of the Constitution feared they would

occupy.”*5 Garcia, supra, 469 U.S. at 575 (Powell, J., dissent-

ing) (footnote omitted). In the words of Circuit Judge Klein-

feld, “[t}he Founding Fathers did not establish the United

States as a democratic republic so that elected officials 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).

CONCLUSION

For all the foregoing reasons, the judgment of the United

States Court of Appeals for the Second Circuit in No. 95-1858

should be reversed.

Respectfully submitted,

Danie. E. Luncren

Attorney General of California

*Tuomas 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

45 “If the several States in the Union are to become one entire Nation,

under one Legislature, the Powers of which shall extend to every Subject of

Legislation, and its Laws be supreme & controul the whole, the Idea of

Sovereignty in these States must be lost.” Samuel Adams, Letter to Richard

Henry Lee, 3 Dec. 1787, in The Writings of Samuel Adams 4:324 (Harry A.

Cushing ed. 1968).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.