Amicus Curiae Brief — Vacco v. Quill

No. 95-1858

Supreme Court, U.S.

* Ss.

al / NOV 12 1996

\14

No. 96-110 Cura

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

VACCO et al., Petitioners, v. QUILL et al., Respondents.

On Writ Of Certiorari To The U.S. Court Of Appeals

For The Second Circuit

WASHINGTON ei ai., Petitioners, v. GLUCKSBERG

et al., Respondents.

On Writ Of Certiorari To The U.S. Court Of Appeals

For The Ninth Circuit

BRIEF OF THE NATIONAL CATHOLIC OFFICE

FOR PERSONS WITH DISABILITIES AND THE

KNIGHTS OF COLUMBUS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Of Counsel:

PAT A. CIPOLLONE

General Counsel

CARL A. ANDERSON

Vice President for

Public Policy

KNIGHTS OF COLUMBUS

Dated: November 12, 1996

JAMES Bopp, JR.

THOMAS J. MARZEN

DANIEL AVILA*

JANE E.T. BROCKMANN

NATIONAL LEGAL

CENTER FOR THE

MEDICALLY DEPENDENT

& DISABLED, INC.

50 South Meridian, Ste. 200

Indianapolis, Indiana 46204

317-632-6245

* Counsel of Record

QUESTION PRESENTED

Your Amici adopt the Questions Presented by the States

of Washington and New York.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............0000055 iv

INTERESTS OF THE AMICICURIAE ............ l

SUMMARY OF ARGUMENT ...............6055. 2

POETIMIIG occ ccccsccvvvttshvcvesvenseeeuenn 4

I. Our Nation Is Founded On The Principle That

Fundamental Human Rights, Particularly The

Right To Live, Are Unalienable; A Ruling Grant-

ing Constitutional Protection To An Interest In

Obtaining Physician-Prescribed Drugs To Purposely

Cause Death Would Abandon This Principle. .... 4

II. A Constitutional Rule Permitting Persons To

Alienate Their Right To Live Because They Have,

Or Are Regarded As Having, A Terminal Condi-

tion Lacks A Legitimate, Non-Invidious Basis. ... 10

A. Considerations Under The Criminal Law: The

Definition Of Homicide And The "Last Spark Of

EA. ccccvccesvdsednecebeuee eee 12

B. Considerations Under The Constitution: Four-

teenth Amendment Exemptions And United States

FO eee eee 16

III. A Constitutionally-Mandated Policy Permitting The

Selective Alienation Of The Right To Live Based

On A Suicide Victim’s Life Expectancy Threatens

The Welfare And Safety Of Vulnerable Persons

And Imperils Ordered Liberty. ............... 17

A. Unlike Any Other Constitutional Freedom, A

"Right" To Alienate One’s Right To Live Licenses

The Intentional Destruction Of Persons’ Lives. .. 17

B. A Constitutional Rule Establishing The Freedom

To Renounce Society's Protection Of One's Right

To Live Would Ratify The Most Extreme Form Of

Social And Political Alienation. ............. 21

C. A Constitutional Rule Limiting Assisted Suicide

To Persons With Terminal Conditions Offers A

False And Dangerous Compromise. ......... 22

EES Cob keke begsccesecesesocecccces 25

TABLE OF AUTHORITIES

Constitutions

At: Cit 8 OBO A. a 001 cstcicesdiaeites

Ark. Const. Art. 2, § 2 (1987)

Cal. Const. Art. 1, § 1 (1984)... 0.0... ccc cece eee eee

Colo. Const. Ast. II, § 3 (1973) ..........000cceeeees

Fla. Const. Art. 1, § 2 (1990)

Haw. Const. Art. 1, § 2 (1993)

Idaho Const. Art. 1, § 1 (1993)... 00.0.0 ..cc cee acne

Ill. Const. Art. I, § 1 (1993) .

lowa Const. Art. 1, § 1 (1989)

Kan. Const. Bill of Rights § 1

Ky. Const. Bill of Rights § 1 (

La. Const. Art. 1, § 1 (1996)

eee © ewe eeeeneeere em ehmhlUcrrmhUcrOhUrhOhUrhChUhhUhhUhhUm

ee ee eeeeenenenene eee ee © © © ©

RED ee aeons

UN Si. ccenatibanees

eee eeneneeneneneneeneeeeeeee#e

Mass. Const. Pt. 1, Art. I, (1978) .. 0.0.0... cceee cues

Me. Const. Art. I, § 1 (1985)

“eee ee eneeneneeneeneneee ee © © ©

Miss. Const. Art. 3, § 19 (1974)... 2.0.0... cece eee ee

Mont. Const. Art. II, § 3 (1995) .... 0.0.0.0... eee ee

N.C. Const. Art. I, § 1 (1995)

N.D. Const. Art. I, § 1 (1981)

|

Vv

ee eS a 5

N.J. Const. Art. 1, para. 1 (1971)... 0... cee ee eee. 5

N.M. Const. Art. II, § 4 (1992) 0.00.0... 0cc cee ee eee 5

Neb. Const. Art. 1, § 1 (1995) ...........0.cc cece eee 5

Nev. Const. Art. 1, § 1 (1995) .......0......cce eens 5

Ohio Const. Art. 1, § 1 (1994) 20.0000 ee cece eee 5

ee oo eer 5

Utah Const. Art. 1, § 1 (1991)... 20.00.00 cece eee. 5

a nay 5

Vt. Const. Chap. I Art. 1 (1996) 0.0000. 0 oe eee 5

W. Va. Const. Art. III, § 1 (1983) ............0.0 eee. 5

Statutes

N.Y. Penal Law §§ 120.30 & 125.15 (McKinney 1987) .... 2

Wash. Rev. Code Ann. § 9A.36.060 (West 1975) ........ 2

Federal Cases

Board of Regents of State Colleges v. Roth, 408 U.S. 564

SED ct bctenddaee vc ceds ccdéseeereieteeeie 18

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

GED bos cbSSAb beds Ce dbectesetscdasdsnaeneetes 10

Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.

FEED bod ceéeecdesedewesdess 2, 12, 13, 17, 18, 20, 22, 23

vi

Cruzan v. Director, Missouri Department of Health, 497 U.S.

YT Perr err 19

Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U.S. 150

EDD. « cancage@ibenhcaseeeaiamulenaaks 6

Haig v. Agee, 453 U.S. 280 (1981) «2... 6 ee eee eee 25

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..... 25

McGowan v. Maryland, 366 U.S. 420 (1961) ...........-. 6

Meachum v. Fano, 427 U.S. 215 (1976) ..........54-. 17

Monangahela Navigation Co. v. United States, 148 U.S. 312

GED ccccensseccchcuvedseceunedesess svédeneas 6

Montana v. Egelhoff, 64 U.S.L.W. 4500 (U.S. June 13, 1996)

RARE ALE CAEL LI AT it 14

Morrissey v. Brewer, 408 U.S. 471 (1972) ..........000- 18

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1972) ....... 7

Planned Parenthood of Southeastern Pennsylvania v. Casey,

TB UD, GP TEED ov hd ccd ccdctencevrcsupeseas 10, 20

Quill v. Vacco, 80 F.3d 716 (1996) ........ 2, 12, 17, 18, 23

United States v. Rutherford, 442 U.S. 544 (1979) ........ 16

Washington v. Harper, 494 U.S. 210 (1990) ............ 19

Whalen v. Roe, 429 U.S. 589 (1977) . 2... cee eee 19

State Cases

Fosmire v. Nicoleau, 551 N.Y.S. 2d 876, 551 N.E.2d 77 (N.Y.

Es vaste cdathaeidsueneseddess bubihatvddws i

vii

Gilbert v. State, 487 So. 2d 1185 (Fla. App. 1986) ....... 13

In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987)... .. 11

Jones v. State, 640 So. 2d 1084 (Fla. 1994) ............ 15

Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43 (1946) 7

People v. Moan, 4 P. 545 (Cal. 1884) ................ 13

People v. Stamp, 82 Cal. Rptr. 598 (Cal. App.), cert. denied,

Cy Ss NUE vo WE Vi Sides chevbctcsrecdcedss 14

State v. Francis, 149 S.E. 348 (S.C. 1929) ............. 14

State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979) . . 13, 15

State v. Mally, 366 P.2d 868 (Mont. 1961) ............ 14

State v. Moore, 25 lowa 128 (1868) ...............4.. 7

State v. O'Brien, 46 N.W. 752 (lowa 1890) ............ 15

Treatises and Journal Articles

Avila, ls the Constitution a Suicide Pact?, 35 Duquesne Law

PEN 655 Odbb6 060 00S asbeeeseeeubetes 14

Feinberg, Voluntary Euthanasia and the Inalienable Right to

Life, 7 Philosophy & Public Affairs 93 (1978) .......... 7

Fiedler, The Tyranny of the Normal, Hastings Center Report,

es DUANE Won cbCcaverasccdesedctecvnseseces y

Hendin, Seduced by Death (1997) .................. 13

Himmelfarb, Note, The Constitutional Relevance of the Second

Sentence of the Declaration of Independence, 100 Yale L. J.

DE vacasadcadweudstouvsedns ot bewece de ose 6

viii

McConnell, The Nature and Basis of Inalienable Rights, 3 Law

and Philosophy 25 (1984) 2... 66. cee eee eee 4

Meisel, The Right to Die (2d ed. 1995) ..........0.. 10, 11

Meyer, The History and Meaning of the Fourteenth Amend-

GD GESTED - ccdevevctesorvevivesvccesesonbecvade 6

Sherlock, Suicide and Public Policy: A Critique of the "New

Consensus", 4 Journal of Bioethics 58 (1982-83) ....... 25

Sieghart, The Lawful Rights of Mankind: An Iniroduction to

the International Legal Code of Human Rights (1985) ... . . 6

Stell, Dueling and the Right to Life, 90 Ethics 7 (1979) .... 8

White, The Philosophy of the American Revolution (1978) . 8

Miscellaneous

Amicus Curiae Brief of the Americans for Death With Digni-

ty and Euthanasia Research & Guidance Organization, Corn-

passion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996)

Bp, GEEOD . wo cicccseccccccessonweeretanceses 13

British Medical Association, Euthanasia: Report of the Work-

ing Party to Review the British Medical Association's Guidance

EEE GOED bk oven ccccenccerssebbiichinas 25

Declaration of Independence (U.S. 1776) ............. 4

Opposition to Petition for Writ of Certiorari, Washington v.

Glucksberg (NO. 96-110)... eee 14

Samuel Adams, The Rights of the Colonists, in The Founders’

Constitution 394 (Philip B. Kurland & Ralph Lerner eds.

SOOUE envadsccdetnisad bbukensinenedsdesdesaves cue 5

Universal Declaration of Human Rights, reprinted in Paul

Sieghart, The Lawful Rights of Mankind: An Introduction to

the International Legal Code of Human Rights 172 (1985) . 6

l

INTERESTS OF THE AMICI CURIAE

The National Catholic Office for Persons with Disabilities

(NCPD is a non-profit organization established in 1982 to

promote the inclusion of ten million Catholics with disabili-

ties and their families into the mainstream of our society and

the Catholic Church. It fulfills its mission through offering

its expertise and resources to a national network of disability

offices as well as to the U.S. Catholic Conference and other

national Church-related organizations. A critical aspect of

this nation office’s mission is to highlight the value of each

life and to encourage the creation of ¢nvironments which

allow each individual to fulfill their potential. If a "right" to

assisted suicide for the terminally ill is lodged in the Consti-

tution, then the goals and programs NCPD is pursuing in the

interest of persons with disabilities will be for nought. NCPD

opposes the legal and social devaluation of persons with

disabilities, many of whom have or are regarded as having

terminal conditions. Such devaluation will surely result from

a constitutional rule transforming their fundamental right to

life from an unalienable right to a merely alienable interest

based solely on life expectancy.

The Knights of Columbus is an international Catholic

fraternal organization of 1.5 million members dedicated to

advancing the ideals of charity, unity, fraternity, and patrio-

tism through its activities around the world. The Knights of

Columbus engages in a broad range of social action programs

to protect the family, and it devotes a considerable portion of

its resources and volunteer efforts to siding persons with

illnesses and disabilities, as well as the less fortunate. This

brief was written with the support of funds provided by the

Knights.

The parties have consented to the filing of this brief.

Pursuant to the Rules of this Court, letters of consent from

the parties have been filed with the Clerk of the Court.

2

SUMMARY OF ARGUMENT

This brief examines the consequences of mandating the

selective alienation of the right to live by constitutionalizing

an exemption to the homicide code based on the terminal

condition of the victim, enabling physicians to assist in suicide

by prescribing a lethal drug overdose. Your Amici argue that

the decisions in Compassion in Dying v. Washington, 79 F.3d

790 (9th Cir. 1996), and Quill v. Vacco, 80 F.3d 716 (1996),

involving Fourteenth Amendment challenges to Wash. Rev.

Code Ann. § 9A.36.060 (West 1975) and N.Y. Penal Law

§§ 120.30 & 125.15 (McKinney 1987), should be reversed.

The rulings below threaten the integrity of our Nation’s

social covenant, founded as it was on the belief that certain

human rights are so fundamental in nature that they cannot

be alienated. The Declaration of Independence announced

to the world that the American colonists could no longer

endure British encroachments on their fundamental and

unalienable interests, including especially their right to life.

So the doctrine of unalienable rights provided the basis for

rebellion and launched a new experiment in American self-

governance. Bound up as it is within our legal history and

tradition, the governmental duty to respect the unalienable

rights of the people serves to this day as a safeguard against

tyranny.

The constitutional rule proposed by the courts below

would radically transform the right to live from an unalien-

able right to a merely alienable interest for the most vulnera-

ble persons in society — those having or regarded as having

terminal conditions. The rule would permit members of this

class to renounce the protections of the homicide code by

consenting to another's criminal act of providing suicide

assistance, and would force the states to treat the lives of all

members of this class as less worthy of protection against

homicide. The rule would discount the right to live for all

members of this class, regardless of whether they seek to die

or desire to live.

3

At the same time, the rule would endorse the purposeful

causing of death, a "right" wholly unique in constitutional law

because it encompasses an abuse of liberty. Every other

protected freedom is closely related to the constitutional

objectives of preserving existence and providing opportunities

for social participation. By extending this “right” only to

persons with terminal conditions, the courts below would

further subject members of this class to social alienation and

devaluation.

The lower courts misread the common and statutory law

by deriving therefrom a line based on the victim’s terminal

condition to distinguish the supposed "right" to purposely

cause death from the criminal wrong of assisted suicide.

Their decisions conflict with the criminal law, which rejects

criminal defenses based on the victim’s life expectancy and

consent. The courts impinged upon the states’ exclusive au-

thority to define crimes by mandating such defenses as a

constitutional rule. Moreover, the rulings below conflict with

this Court’s decision in the case of United States v. Rutherford,

442 U.S. 544 (1979). Rutherford rejected the federal courts’

authority to carve a terminal condition exception into other-

wise uniform laws designed to protect all persons against

dangerous drugs regardless of their life expectancy.

A rule that deems the suicides of persons with terminal

conditions to be constitutionally permissible, while leaving the

States free to continue their protection of all other persons,

inserts into the Constitution an invidious double standard.

This Court should reject such a rule and uphold the states’

authority to protect the lives of all of its citizens, regardless

of condition. The Constitution should not be construed as if

it were a suicide pact.

4

ARGUMENT

1. Our Nation Is Founded On The Principle That Fun-

damental Human Rights, Particularly The Right To

Live, Are Unalienable; A Ruling Granting Constitu-

tional Protection To An Interest In Obtaining Physi-

cian-Prescribed Drugs To Purposely Cause Death

Would Abandon This Principle.

The Ninth and Second Circuits recognized in Compassion

in Dying and Quill a constitutional right to renounce the

protections of the homicide code which deter persons from

assisting in the suicides of others with terminal conditions.

Properly understood, the alienation of the right to live in-

volves the rejection of otherwise applicable protections

against direct threats to one’s life. As one commentator

explains, "What is given up in the case in which the right to

life is waived . . . is not life itself; rather it is the protect-

ion of life that that right bestows on its possessor." Terrence

McConnell, The Nature and Basis of Inalienable Rights, 3 Law

and Philosophy 25, 37 (1984). Consequently, the constitu-

tional claim before this Court asserts in essence that at least

some individuals should be empowered to forgo their right to

be protected under the homicide code, thereby alienating

their right to live.

If adopted by this Court, then a constitutional rule autho-

rizing some individuals to alienate their right to live based on

their life expectancy would undermine principles embraced in

the Declaration of Independence. The Declaration put the

case for the American rebellion against British rule. The

American colonists charged England with "injuries" to and

“usurpations” of "certain unalienable rights", including "among

these . . . life". Because the King and Parliament assumed a

form of government "destructive of these ends", the people

had the right to “alter” or "abolish" the old and "institute [a]

new government”. The Declaration of Independence para. 2

(U.S. 1776). In sum, the unalienable rights doctrine provided

the essential basis for the American Revolution.

5

The Declaration’s principles have acquired a life of their

own, extending their influence far beyond the document’s

four corners. There is universal agreement that it is,

the greatest absurdity to suppose it in the power

of one or any other number of men at the en-

tering of society, to renounce their essential nat-

ural rights, or the means of preserving those

rights when the great end of civil government

... iS for the support, protection and defence of

those very rights [including] life .. . .

Samuel Adams, The Rights of the Colonists, in The Founders’

Constitution 394, 395 (Philip B. Kurland & Ralph Lerner

eds. 1987).

Twenty-nine states have cither expressly incorporated the

unalienable rights doctrine into their constitutions or adopted

constitutional provisions comporting with the doctrine.’

Furthermore,

the Declaration of Independence is . . . funda-

‘The constitutions of twenty three states refer expressly to the “unalien-

able" or “inalienable” right to life. See Ala. Const. Art. I, § 1 (1975); Ark.

Const. Art. 2, § 2 (1987); Cal. Const. Art. 1, § 1 (1984); Colo. Const. Art. II,

§ 3 (1973), Fla. Const. Art. 1, § 2 (1990), Haw. Const. Art. I, § 2 (1993);

Idaho Const. Art. I, § 1 (1993); Ill. Const. Art. I, § 1 (1993); lowa Const. Art.

1, § 1 (1989); Kan. Const. Bill of Rights § 1 (1980); Ky. Const. Bill of Rights

§ 1 (1988); Me. Const. Art. I, § 1 (1985); Mass. Const. Pt. 1, Art. I, (1978);

Mont. Const. Art. Il, § 3 (1995); Neb. Const. Art. I, § 1 (1995); Nev. Const.

Art. 1, § 1 (1995); N.J. Const. Art. 1, para. 1 (1971); N.M. Const. Art. Il, § 4

(1992); N.C. Const. Art. I, § 1 (1995); N.D. Const. Art. 1, § 1 (1981); Ohio

Const. Art. Ll, § 1 (1994); Utah Const. Art. I, § 1 (1991); Vt. Const. Chap. I

Art. 1 (1996). Three other state constitutions refer either to a nght to life

that is “indefeasible” (Pa. Const. Art. I, § 1 (1994), or one that cannot be “di-

vestjed]". Va. Const. Art. I, § 1 (1995) & W. Va. Const. Art. III, § 1 (1983).

New Hampshire's constitution refers to the nght to life as “natural”,

“essential” and “inherent”. N.H. Const. Pt. 1, Art. 2 (1988). Two other state

constitutions contain provisions that comport with the unalienable nghts

doctrine. La. Const. Art. 1, § 1 (1996) (prohibiting euthanasia) & Miss.

Const. Art. 3, § 19 (1974) (prohibiting duelling).

6

mental to a proper understanding of the [federal]

Constitution; and . . . abundant support for this

proposition can be found in the leading writings

and debates of the Founding era. Indeed, it

would hardly be an exaggeration to say that the

most fundamental pronouncements made in

connection with the framing and ratification of

the Constitution are restatements of the princi-

ples articulated in the [Declaration]... .

Dan Himmeltarb, Note, The Constitutional Relevance of the

Second Sentence of the Declaration of Independence, 100 Yale

L. J. 169, 170-71 (1990) (emphasis added); see also

Monangahela Navigation Co. v. United States, 148 U.S. 312,

324 (1893) (noting that the Bill of Rights was adopted to

protect "those rights of persons and property which by the

Declaration of Independence were affirmed to be unalienable

rights"); Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U.S.

150, 159-60 (1897); McGowan v. Maryland, 366 U.S. 420, 563

(1961) (Douglas, J., dissenting) ("[T]he body of the Con-

Stitution as well as the Bill of Rights enshrined those princi-

ples [of the Declaration].").

The Fourteenth Amendment was drafted with the Decla-

ration very much in mind. See Hermine H. Meyer, The

History and Meaning of the Fourteenth Amendment 75 (1977)

(referring to remarks during congressional debates on the

Amendment by a sponsor, Representative Thaddeus Stevens,

who observed that "I can hardly believe that any person can

be found who will not admit that every one of these provi-

sions is just. They are all asserted, in some form or other, in

our DECLARATION or organic law.") (capitalization in

original).

Finally, the unalienable rights doctrine serves as an inter-

national measure of humane and just governments. See Pre-

amble to the Universal Declaration of Human Rights, reprint-

ed in Paul Sieghart, The Lawful Rights of Mankind: An Intro-

duction to the International Legal Code of Human Rights 172

(1985) (asserting that "recognition of the inherent dignity and

5

of the equal and inalienable rights of the all members of the

human family is the foundation of freedom, justice and peace

in the world"); id. at 42 (observing that while international

human rights law recognizes that some rights can be acquired

or renounced through personal transactions, "none of this

applies to ‘human’ rights. . . . [T]he code [of international

human rights laws] simply treats us as coming into the world

with them. . . . nor can we sell them, mortgage them, or for-

feit them").

Assisted suicide and voluntary active euthanasia “can both

be viewed as efforts to alienate the inalienable, to give away

what cannot properly cannot be given away.” Joc! Feinberg,

Voluntary Euthanasia and the Inalienable Right to Life, 7

Philosophy & Public Affairs 93, 93 (1978). In accord with

this principle, the states have prohibited the aiding and abet-

ting of suicide, along with other forms of consensual homi-

cide and self-harm. See, e.g., Paris Adult Theatre | v. Slaton,

413 U.S. 49, 68 n.15 (1972) (referring to laws against such

consensual activities as “bare fist" prize fights and duelling);

Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43, 47

(1946) (consent is no excuse for homicide because the right

to life is unalienable); State v. Moore, 25 lowa 128, 135-36

(1868) (recognizing that the "right to life and to personal

safety is not only sacred in the estimation of the common

law, but it is inalienable").

Accordingly, this Court should not abandon a core doc-

trine upon which uus Nation was founded, but instead should

affirm laws that, by uniformly forbidding suicide assistance,

preserve the unalienability of the right to live and thereby

respect the equal dignity of all persons. Such laws reflect our

founding principles, and they are just as vital to our society

today as they were 200 years ago.

As one commentator explained,

[the Deciaration] linked the unalienable rights

of individuals with the people's right to rebel.

In the background there is the basic idea that a

8 9

legal status of those who have no desire to kill themselves,

but who nevertheless will be swept into the category of per-

sons deemed to have an alienable right to live. The right to

rights the people transferred is less important live and all rights flowing therefrom will be rendered alien-

than the rights they did not transfer because . able not because an individual so chooses, but on account of

they were not transferable, that is to say, un- h the individual's condition. If some persons with terminal

alienable. Unalienable rights were thought to conditions are permitted to alienate their right to live be-

be held under any form of government so that i cause they are terminally ill, then all persons with terminal

when a government merely showed signs of conditions will necessarily be free to make the same choice.

wishing to invade these rights, it could be re- As a consequence, by virtue of constitutional mandate and

garded as intending to reduce the people under irrespective of individual desires, the right to live for all

absolute despotism. members of this class will be reduced to an inferior, alienable

status. Because every member of the affected class will no

Morton White, The Philosophy of the American Revolution longer possess an unalienable right to live, each will be left

239-40 (1978). with a weaker claim, or no claim at all, against tyrannical

notions of “normalcy” and “quality of life" policy-making.’

social contract of some sort had been made in

which the people transferred certain rights to

government in return for something. . . . What

In view of the nexus between unalienable rights and the

limits on despotic governance, a constitutional policy endors-

ing the selective alienation of the right to live raises

questions. As one commentator has observed, "[W]e must

recall that [John Locke] puts the inalienability of the right to

life to good purposes when he uses it to explain why a gov-

ernment can never legitimately acquire an absolute rule to

dispose of .he lives of its citizens.” Lance K. Stell, Dueling

and the Right to Life, 9) Ethics 7, 16 (1979). Thus, the right

to live is a fundamenta! human interest “that no man should

transfer to any person or any government.” White, American

Revolution at 220.

What damage will be inflicted on the inviolability of life

by a constitutional rule rejecting its unalienability? Will

governments be free to acquire absolute dominion over

persons whose fundamental rights are deemed personally

transferable and thus disposable? Will society become even

more coursened in its disregard for the sanctity of human

life? These questions cannot be ignored because constitu-

tional rules cannot be imposed in a vacuum.

Moreover, a rule supposedly grounded in notions of

autonomy and individual freedom will unjustifiably alter the

Finally, a constitutional rule that permits some — but not

all — persons to alienate their right to live cannot be squared

with the Declaration’s finding and the Fourteenth

Amendment's proviso that ail persons are created equal and

as a result are equally endowed with unalienable rights.

Once it is posited that some persons have only an alienable

right to live, then an inequality of human dignity profoundly

hostile to our Nation’s founding principles not only will

threaten the fundamental interests of the vulnerable, but also

*One commentator has remarked on

just how dangerous enforced physiological normality is when

the definition of its parameters falls into the hands of

politicians and bureaucrats. . . . [T]he war against “abnormal-

ity” umphes a dangerous kind of politics, which begins with a

fear of difference and eventuates in a tyranny of the normal.

That tyranny, moreover, is sustained by creating in those out-

side the norm shame and self-hatred — particularly if they

happen to suffer from that vast majority of “deformities”

which we still cannot prevent or cure.

Leslie A. Fiedler, The Tyranny of the Normal, Hastings Center Report, Apr.

1984, at 40, 41, 42.

10

will imperil the integrity of our constitutional order.

Il. A Constitutional Rule Permitting Persons To Alienate

Their Right To Live Because They Have, Or Are Re-

garded As Having, A Terminal Condition Lacks A

Legitimate, Non-Invidious Basis.

The Ninth and Second Circuits ruled that at least in some

cases suicide assistance is constitutionally protected, and that

a line must be drawn between the criminal wrong and the

constitutional right based on the victim's life expectancy. The

“courts may not", however, "draw lines which appear arbitrary

without . . . offering a justification.” Planned Parenthood of

Southeastern Pennsylvania v. Casey, 50S U.S. £33, 870 (1992).

The line chosen by the lower courts not only is arbitrary, but

also is based on the invidious assumption that the lives of

persons with terminal conditions are less worthy or deserving

of protection.’

The Ninth and Second Circuits claimed that the common

law and state statutes governing treatment refusals provided

the basis for recognizing in the assisted suicide context a

diminishing state interest in "preserving" the lives of persons

with terminal conditions. The courts misread the law, howev-

er, and confused an interest in “preserving” life with the

States’ separate interest in “protecting” life.

The “terminal condition” line cannot be adduced from an

accurate reading of the common law of informed consent,

which extends the right to refuse treatment to all persons

regardless of life expectancy. 1 Alan Meisel, The Right to Die

490-91 (2d ed. 1995) (referring to case law extending the

right to refuse treatment to persons who are not terminally

*See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440

(1985) (observing that certain classifications “are so seldom relevant to the

achievement of any legitimate state interest that laws grounded in such con-

siderations are deemed to reflect preyudice and apathy — a view that those

in the burdened class are not as worthy or deserving as others").

ill). Advance directive statutes often limit their scope to

cases involving incompetent persons who are terminally ill,

but they must be read together with the broader common law

rule. Rather than limiting treatment refusals, these statutes

establish a legal "safe harbor" for advance directive decision

making. See 2 Meisel, The Right to Die at 85 (noting that

most advance directive statutes expressly decline to supersede

the common law or to set out the sole means by which the

right to refuse treatment may be exercised; also noting that a

majority of courts has therefore concluded that such legisla-

tion does not preempt or otherwise narrow the common law).

Moreover, whether a person has a terminal condition is

relevant to the treatment refusal context only for reasons

quite irrelevant to the assisted suicide context. When weigh-

ing the benefits and burdens of accepting medical treatment,

a patient must necessarily consider the treatment’s capacity to

extend life. If a patient is terminally ill, so that the treatment

will not extend his or her life indefinitely, then the state's

interest in preserving life will not be implicated. See In re

Grant, 109 Wash. 2d 545, 556, 747 P.2d 445, 451 (1987)

(observing that state interest in "preserving life” by requiring

“lifesaving” treatment “weakens considerably . . . if treatment

will merely postpone death for a person with a terminal and

incurable condition"). The state's interest in preserving life is

measured according to the effectiveness of treatment in

question, and does not depend on any value assessment of

the lives at stake. See also Fosmire v. Nicoleau, 551 N.Y.S. 2d

876, 881, 551 N.E.2d 77, 82-83 (1990) (holding that patients’

terminal condition is relevant only "to determine whether

[this is] the circumstance[] in which the patients intended to

decline the medical care” and not "because the State consid-

ered their lives worthless").

In the assisted suicide context, however, the issue is not

whether the state has an interest in preserving life by provid-

ing treatment, but whether the state may seck to protect all

lives against direct killing. Persons with terminal conditions

are still alive, whether or not their lives can be indefinitely

extended by life supports. Thus, even when it is impossible

12

to effectuate the state’s interest in preserving their lives

because life-sustaining measures are unavailing, the separate

issue remains as to whether the state’s interest in protecting

life against killing should apply.

Consequently, the lower courts engaged in pretextual

reasoning by referring to the common law of consent and the

Statutory law governing advance directives as bases for draw-

ing a line at terminal condition. See Compassion in Dying, 79

F.3d at 817-20 and Quill, 80 F.3d at 727-28; but see 79 F.3d

at 819 (quoting preamble to Washington’s advance directive

Statute expressing the legislature’s finding that without quali-

fication "adult persons” have the right to control medical

decisions, and importantly, that this right is not limited to but

"includ[es]" those decisions involving "instances of terminal

condition", thereby extending the right to refuse treatment

both to persons who are and who are not terminally ill)

(emphasis added) & Fosmire, 551 N.Y.S.2d at 881, 551

N.E.2d at 82 (finding that common law right to refuse treat-

ment in New York extends to all competent adults regardless

of condition).

As the next two sections will demonstrate, neither the

criminal law nor the constitutional rulings of this Court

provide an alternate basis for mandating an exemption from

the homicide code based on the victim’s life expectancy. To

the contrary, our legal history and tradition, as well as this

Court, have rejected the victim's condition as constitutionally

irrelevant.

A. Considerations Under The Criminal Law: The Defini-

tion Of Homicide And The "Last Spark Of Life".

Criminal jurisprudence pzovides an instructive approach

to resolving whether a non-invidious foundation exists for

using a suicide victim's terminal condition as a constitutional

dividing line. Many of the arguments favoring a limited right

to assisted suicide for persons with terminal conditions re-

semble the defenses that might be raised in a trial for homi-

cide. Thus, the definitional elements of causation, intent,

13

excuse, and justification provide a useful framework for ad-

Gressing — and ultimately rejecting — any claim that a sui-

cide victim's life expectancy is at all constitutionally relevant.

For example, the Ninth Circuit raised an argument sound-

ing in causation by contending that a decision to hasten death

should not be classified as suicide when the victim's "death is

already in process". Compassion in Dying, 79 F.3d at 824.

But see People v. Moan, 4 P. 545 (Cal. 1884) ("If a patient is

lying in the last stages of consumption, with a tenure upon

life that cannot possibly continue for a day, it is homicide to

administer a poison to him by which his life is ended almost

immediately.”)

In addition, an amicus brief filed with the Ninth Circuit

asserted that in cases involving suicidal persons with terminal

conditions, the participants necessarily lacked the requisite

criminal intent. Instead, the suicide assistant "seeks to end

the [victim's] dying process", and the victim "does not have

the primary goal of ending his life", because "[gjiven the

terminal nature of his condition, the [victim] wants to end his

suffering by shortening the dying process.” Amicus Curiae

Brief of the Americans for Death With Dignity and Euthana-

sia Research & Guidance Organization at 4 n.6, Compassion

in Dying v. Washington, 79 F.3d 790 (9h Cir. 1996) (No. 94-

35534). But see Gilbert v. State, 487 So. 2d 1185, 1191 (Fla.

App. 1986) (rejecting defense to homicide based on claim

that defendant sought only to end the victim's suffering

because it would "sanction open season" for the killing of

vulnerable persons).

Moreover, assisted suicide is defensible in The Nether-

lands on the excuse-related ground that a physician charged

with a crime should not be convicted if he or she participated

in a suicide under emotional duress, and was compelled to

end another’s misery when confronted with the victim’s

condition. Herbert Hendin, Seduced by Death 94, 103, 109

(1997). But see State v. Fuller, 203 Neb. 233, 243, 278

N.W.2d 756, 762 (1979) ("Duress or compulsion is no excuse

to the charge of homicide.").

14

Finally, the respondents in Glucksberg raise a justification-

related defense by asserting that any conflict between the

State's interest in protecting life and an individual's interest in

death must tilt in favor of death when the life at stake is of a

"limited quantity". Opposition to Petition for Writ of Certio-

rari at 12, Washington v. Glucksberg (No. 96-110). But see

State v. O'Brien, 46 N.W. 752, 753 (lowa) ("The fact that [the

homicide victim] was afflicted with a disease which might

have proved fatal would not justify the wrongful acts of

defendant ... .”).

The Ninth and Second Circuits would impose these theo-

ries on the states as constitutional mandates, contrary to this

Court’s long line of precedents leaving to the states the

authority to define crimes, particularly in reference to the

"doctrines of actus reus, mens rea, insanity, mistake, justifica-

tion and duress". Montana v. Egelhoff, 64 U.S.L.W. 4500,

4505 (U.S. June 13, 1996) (No. 95-566). Moreover, such

mandates would conflict with our legal history and tradition,

which unanimously reject any defenses to homicide based on

the victim’s health status.

One court described the rule of law as follows:

But though a human body must be alive in

order that it may be the subject of homicide, yet

the quantity of vitality which it retains at the

moment the fatal blow is given, and the length

of time life would otherwise have continued, are

immaterial considerations. If any life at all is

left in the human body, even the least spark, the

extinguishment of it is as much homicide as the

killing of the most vital being.

State v. Francis, 149 S.E. 348, 364 (S.C. 1929). Accord State

v. Mally, 366 P.2d 868, 873-74 (Mont. 1961); People v. Stamp,

82 Cal. Rptr. 598, 603 (Cal. App.), cert. denied, 400 U.S. 819

(1970); see Daniel Avila, Is the Constitution a Suicide Pact?,

35 Duquesne Law Review 201, 227-230 (1996) (discussing

these and other cases).

Is

In light of this rule and its broad acceptance in our law,

any attempted justification for abandoning to their suicidal

impulses only persons with terminal conditions, and exposing

only them to the undeterred efforts of others to assist in their

deaths, bolsters the inference that an invidious disregard for

the lives of the vulnerable is at play. If "[ajn accused cannot

speculate as to how long his victim may live with an incurable

malady when he inflicts a shot or a wound that hastens the

death or the action of the fatal disease" (State v. O’Brien, 46

N.W. 752, 753 (lowa 1890)), then neither should the Consti-

tution.

If this Court were to adopt the contrary position and hold

as a matter of constitutional law that the victim's proximity to

death is relevant to the culpability of an individual charged

with assisting suicide, then the definitional ramifications

would be far-reaching. Assisted suicide cannot be distin-

guished from other forms of homicide. If the victim’s condi-

tion is deemed relevant in the assisted suicide context, then it

must also be relevant in any case of homicide. As a result,

virtually any defendant accused of a homicidal act would

have the constitutional right to raise the victim's debilitated

condition as a defense.

By definition then, crimes against life would be limited

only to those life-threatening acts which imperil the healthy

and long-living. Those charged with mortally attacking an

individual deemed to be in an accelerated "process of dying”

could avoid conviction. Because "process of dying” is an

inherently expansive concept — all persons are going to die

sometime and many are going to die sooner than expected

for a variety of reasons — an assortment of defense claims

based on the victim’s condition would emerge in a host of

cases.‘

“Such a rule would also open the door to constitutional defenses based on

the victim’s consent, thereby overriding state policies rejecting such defenses

in cases involving homicide and other crimes. See, e.g., State v. Fuller, 203

Neb. at 241, 278 N.W.2d at 761 (holding that "murder is no less murder

because the homicide is committed at the desire of the victim"); Jones v. State,

16

B. Considerations Under The Constitution: Fourteenth

Amendment Exemptions And United States v. Ruther-

ford.

This Court’s unanimous decision in United States v. Ruth-

erford, 442 U.S. 544 (1979), rejected a similar exemption

based on a person’s terminal condition. The Court ruled that

a uniform federal ban against the interstate transfer of unsafe

or unproven drugs reasonably applied to an experimental and

potentially harmful substance (laetrile) sought by persons

with terminal cancer as a last ditch means of extending their

lives. Id. at 559. The Court found that "[fjor the terminally

ill, as anyone else, a drug is unsafe if its potential for inflict-

ing death or physical injury is not offset by the possibility of

therapeutic benefit." /d. at 556. Moreover, “it is often im-

possible to identify a patient as terminally ill except in retro-

spect." Jd. at 556. Finally, the Court was unwilling to en-

dorse the proposition "that . . . safety and efficacy standards

... have no relevance for terminal patients” because this

would "deny the [government’s] authority over all drugs,

however toxic or ineffectual, for such individuals.” /d. at 557-

58. Thus, the Court refused to read an implied exception

into an otherwise generally applicable statute since "federal

courts do not sit as councils of revision, empowered to re-

write legislation in accord with their own conceptions of

prudent public policy.” /d. at 555.

Rutherford should pose a significant obstacle to any consti-

tutional claim for assisted suicide based on a victim’s proximi-

ty to death. If Congress may restrict the use of dangerous

drugs by persons with terminal conditions seeking to prolong

their lives, then surely the states may deter physicians from

supplying lethal dosages to members of the same class who

want to end their lives. The parallels between the two cases

simply cannot be ignored.

640 So. 2d 1084 (Fla. 1994) (rejecting claim of a right to such a defense under

the state constitution in a case involving charges brought under statutory rape

law, even though the victim "did not want the ‘protections’ advanced by the

state”).

17

Thus, in light of Rutherford, laws discouraging drug-in-

duced deaths among the terminally ill, as for anyone else,

reasonably furthers the states’ general goal of protecting life.

The constitutional balance between state interests and com-

peting private interests should not be shifted according to the

victim’s life expectancy. In sum, the terminally ill are similar-

ly situated with everyone else in relation to the states’ inter-

est in protecting life. For the Court to hold otherwise, it

would have to abandon Rutherford and entirely reverse its

course with respect to constitutional exemptions generally.

Ill. A Constitutionally-Mandated Policy Permitting The

Selective Alienation Of The Right To Live Based On A

Suicide Victim’s Life Expectancy Threatens The Wel-

fare And Safety Of Vulnerable Persons And Imperils

Ordered Liberty.

To deflect concerns about assisted suicide raised by per-

sons with disabilities and members of other vulnerable popu-

lations, the Ninth and Second Circuits responded with assur-

ances that suicide is a constitutional benefit. Compassion in

Dying, 79 F.3d at 825-26; Quill, 80 F.3d at 730. Based on the

considerations addressed in the remainder of this brief, your

Amici disagree strongly.

A. Unlike Any Other Constitutional Freedom, A "Right"

To Alienate One’s Right To Live Licenses The Inten-

tional Destruction Of Persons’ Lives.

In no other case has the Supreme Court been asked to

license an individual to assist in the intentional destruction of

life at the request of the victim. All other claims of personal

freedom granted constitutional protection have related in

some meaningful way to the individual’s enjoyment of life

and continued participation in society. Thus, the Supreme

Court has "reject{ed] at the outset the notion that any griev-

ous loss visited upon a person by the State is sufficient to

invoke" a constitutional remedy. Meachum v. Fano, 427 U.S.

18

215, 224 (1976). Whether an asserted interest to act free

from government interference rises to the level of a constitu-

tional right will depend on its "nature" — that is, its relation

to the “whole domain of social and economic fact”

(Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citation omit-

ted)), as well as on its connection to an individual’s ability to

“engage in any of the common occupations of life”. Board

of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)

(citation omitted).

Conversely, a "right" or "liberty" to obtain suicide assis-

tance would lack any relation to the capacity to exist, move

freely, and form personal attachments in society; it would be

entirely antithetical to such exercises of liberty. See

Morrissey, 408 U.S. at 482 (holding parole to be cognizable

Fourteenth Amendment liberty because it "enables [offend-

ers] to do a wide range of things open to persons who have

never been convicted of any crime" such as "to return to

society", "be gainfully employed", be "free to be with family

and friends and to form the other enduring attachments to

normal life"). Assisted suicide accomplishes the purposeful

destruction of life and, as a result, forever cuts the victim off

from all ties to family, friends, and society. It thus fails to

achieve any “benefit” of existence or social inclusion ascer-

tainable under the Constitution.

The Ninth and Second Circuits attempted to graft assisted

suicide to the outer branches of the right to accept or refuse

medical treatment. Compassion in Dying, 79 F.3d at 822-23

(discussing acceptance of morphine drips and refusal of tube-

feeding); Quill, 80 F.3d at 729 (sane). They argued that if

the Constitution recognizes a right to make medical deci-

sions, then it should recognize the right to assisted suicide.

The courts thus contended that the personal and state inter-

ests at stake in treatment refusal and assisted suicide cases

are indistinguishable, particularly with respect to their rela-

tionship to death.

On the contrary, the right to accept or refuse treatment

differs significantly from an interest in suicide assistance

19

precisely because treatment decisions can enable persons to

“engage in the common occupations of life". Moreover, the

constitutional strength of an interest in making treatment

decisions diminishes as the risk of death increases, while the

proposed interest in assisted suicide would increase in

strength because its objective is death.

This Court has acknowledged the existence of a "right to

decide independently, with the advice of [a] physician, to ac-

quire and to use needed medication |[i.e., essential to health].”

Whalen v. Roe, 429 U.S. 589, 603 (1977) (emphasis added).

Treatment may be necessary to prolong life, to alleviate pain,

or to overcome any other maladies which might hinder an

individual's capacity to work or to engage in social activities.

These benefits undoubtedly comport with the Constitution’s

life-enhancing objectives.

In addition, this Court has recognized an interest "in

avoiding the unwanted administration of . . . drugs". Wash-

ington v. Harper, 494 U.S. 210, 221-22 (1990). This interest

also relates to constitutional objectives by directly implicating

the freedom to move about in society unimpeded by the

intrusive restraint of a technological apparatus or the forced

ingestion of pills or medication. See Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261, 269, 278, 279

(1990) (referring to an interest in avoiding unwanted bodily

intrusions).

To the extent that a decision to accept or refuse treat-

ment implicates hastened death, this Court has permitted the

States to limit the decision maker’s discretion. Thus, the

States may "prohibit entirely the use of particular drugs”

deemed dangerous to the patient’s health and safety (Whalen,

429 U.S. at 603), and may consider such "dramatic conse-

quences" as death when weighing the policy implications of

refusing treatment. Cruzan, 497 U.S. at 279. Far from

endorsing in these cases any principle that would support the

creation of a right to purposely cause death, the Court has

permitted the states to circumscribe the right to accept or

refuse treatment in direct proportion to the likelihood that

death will result.

Fundamental rights are protected because they enable

individuals to live freely and interact socially, even if at times

their exercise involves personal risk.* The rights to speak,

vote, travel, refuse treatment, and so on, could be equated to

assisted suicide only by irrebuttably imputing to the citizen

who chooses to exercise them in risky situations an inherent

desire to be harmed — and by falsely imputing to the

Constitution's framers the intent to recognize death as simply

another noble objective.

Instead, a constitutionally protected decision to purposely

seek death would be unique among all other protected choic-

es. It would embrace a lethal purpose, while the exercise of

other rights merely tolerate certain residual and unavoidable

risks. Its objective is death rather than life, and its exercise

results in irreversible alienation rather than social participa-

tion. While the "recognition of any right creates the possibili-

ty of abuse" (Compassion in Dying, 79 F.3d at 831), a consti-

tutional policy favoring assisted suicide eliminates any contin-

gency by endorsing what is itself a form of abuse. Indeed,

the abuses of other freedoms — involving threats against life

and self-expulsion from society — would frame the essence of

this new right. The dangers its constitutional enshrinement

would pose for persons with terminal conditions, other vul-

nerable populations, and society itself would be of a far

greater magnitude than the risks created by the exercise of

any other right.

*The Supreme Court has noted that "[sjome cost will be paid by anyone

who approves or implements a constitutional decision where it is unpopular,

or who refuses to work to undermine the decision or to force its reversal.

The price may be criticism or ostracism, or it may be violence.” Casey, 50S

U.S. at 867.

a

a

21

B. A Constitutional Rule Establishing The Freedom To

Renounce Society’s Protection Of One’s Right To Live

Would Ratify The Most Extreme Form Of Social And

Political Alienation.

While the assisted suicide claim before this Court ostensi-

bly concerns individual rights, the Court must also consider

the social consequences. In particular, constitutionalizing the

right to seek to harm one’s self with the assistance of others

Says just as much about the consiitutional status of persons

granted this right as it says about the right itself. Thus, the

question is broader than "does the life-destroying right to

assisted suicide share equal billing with other freedoms that

are instead life-enhancing?” The inquiry must also focus on

why the right to live of some persons should be slashed in

value from an unalienable to an alienable constitutional

interest.

The Ninth and Second Circuits tied the strength of one’s

right to live to one’s proximity to death, thereby provoking a

profound fear among many of those persons in society whose

disabilities leave them with an already precarious hold on life.

Every person with a disabling condition is already more

intensely aware than most of life’s contingent nature, even if

his or her present condition is not certifiably terminal. Many

persons with disabilities were disabled by accidents and thus

have peered through the gates of death before medicine

made survival possible. Many persons with disabilities rely

on high tech interventions to survive, to breathe or to eat,

and they are constantly reminded by the nature of their

ongoing care that without proper treatment or care they

would soon die. Many persons with disabilities depend on

the assistance of family, friends, and professional caregivers

and must orchestrate ever-shifting schedules simply to meet

the minimum requirements of daily living. Some, like the

actor Christopher Reeves, cannot function without substantial

medical and personal assistance. Most are far less capable

than a wealthy movie star of meeting the financial burdens of

their care, however, and few enjoy the same public esteem.

22

Most members of this class are unquestionably more vul-

nerable to discrimination and social alienation.

Many persons with disabilities exist in a state of “virtual

terminality” because the frailty of their physical condition and

the specter of death are so intimately woven together. In

turn, a constitutional decision asserting that their right to live

is constitutionally disposable makes them "virtual aliens” be-

cause their most fundamental right — the protection of life

— would hang only by the single thread of their own resolve

to keep it. They will be left far less secure against both

internal and external pressures to give away this right to the

unjust advantage of others.

In the end, a condition-based rule in favor of assisted

suicide would pour into the Constitution a poisonous concoc-

tion of warm-hearted, misguided pity and cold-hearted utili-

tarianism. The question of “whether we as a society are

willing to excuse the terminally ill for deciding that their lives

are no longer worth living” would be mixed inextricably with

the question of whether assisted suicide should serve as a

means "for housecleaning, cost-cutting and burden shifting —

a way to get rid of those whose lives we deem worthless."

Compassion in Dying, 79 F.3d at 856-57 (Beezer, J., dissent-

ing). Who stands to benefit most from a constitutional policy

by which the right to live of vulnerable persons is reduced to

an alienable interest? Is it the person with a terminal condi-

tion bent on suicide regardless of what the Constitution

holds, or is it a cost-conscious society seeking more ways to

ration its generosity?

C. A Constitutional Rule Limiting Assisted Suicide To

Persons With Terminal Conditions Offers A False And

Dangerous Compromise.

Proponents of assisted suicide strive to appear moderate

and attempt to strike a balance between what they perceive

to be extremes on both ends of the spectrum. They claim

that, while an across-the-board ban is too restrictive for their

he

23

tastes, unrestricted suicide is not their aim. They would

agree to the construction of what is, in effect, a brick wall

across the slippery slope — supposedly to accommodate both

the “hard cases” and society's general abhorrence of inten-

call for compromise in the constitutional order by overriding

the states’ uniform bans against assisted suicide, yet never-

theless recommending the adoption of various legislative safe-

= in Dying, 79 F.3d at 832-33; Quill, 80

at 730.

Such appeals for compromise seek to divide permissible

from impermissible suicides according to the victim’s proximi-

ty to death and quality of life. They assume that the desir-

ability of death can and should be balanced against the desir-

ability of life by referring to a person's physical and mental

condition. No matter how desperate for death suicidal indi-

viduals may be and no matter how little they may value their

own lives, their requests to die will be approved only accord-

ing to a social, not individual, estimation of the comparative

values of their life and death. Through such a calculus, the

law and the community would sanction death not because the

victim wants it, but because the victim who wants it also

happens to have a condition that the law and community

identify as unworthy of protection.

Moreover, such a policy would still permit the states to

punish suicide assistance when the victim is not terminally ill.

The retention of a uniform ban evinces the belief that suicide

is a bad thing both for the victim and society, and that the

law’s protection is a benefit — yet only if the victim is healthy

and expected to live indefinitely. Because the resulting

disparity in the level of protection would create an apartheid

based on one’s health status, the lower courts’ assertion that

eS et eee benefit should be rejected on its

Why is it beneficial for persons with terminal conditions

but no one else to obtain lethal medications to kill them-

selves? The question calls for a more compelling response

24

because one can easily infer from the circumstances an invidi-

ous motive.® A policy which permits lethal assistance for

some, but not for the majority, implicates the view that those

provided the lethal assistance are less worthy or deserving of

protection, and that their lives have less value under the law.

Such a policy would fundamentally alter our country’s com-

mitment to providing equal protection to vulnerable persons.

As one commentator has written:

[Our society's} liberal commitment to limited

popular government requires a commitment to

the equal worth of each person and to limits on

the power of government that are contained in

the teaching of inalienable rights, especially an

inalienable right to life. This teaching forms the

essential horizon of liberal theory and it is only

within this horizon that liberal regimes and the

policies they endorse can take shape. . . . Given

the liberal commitment to equality as the pre-

condition of liberty, the "new consensus" [pro-

posing that certain suicides be sanctioned based

on the assumption that some lives are less valu-

able than others] fails completely in its policy

recommendations. The policies these writers

wish to see adopted logically entail the creation

°A Flonda statute making consensual sexual activity with “chaste” minors

a cmme but not with “unchaste” minors created a sumilar invidious mierence,

according to an opinion found in B.B. v. State, 659 So. 2d 256 (Fla. 1995).

Florida Supreme Court Justice Kogan asserted thai such a law

seems to regard unchaste minors as being somehow less

deserving of the state’s protection than those who are

[chaste]. . . . Any statute that purports to grant special status

to a favored group . . . over all others, to my mind at least,

must be regarded as inherently questionable. On its face this

everyone, not merely a favored group.

Id. at 260-61 (Kogan, J., concurring).

25

of a public standard for determining when some .

lives are in fact not worth living anymore.

However, this is a judgment that is fundamen-

tally inconsistent with the premises of the very

regime that is supposed to adopt this policy.

Richard Sherlock, Suicide and Public Policy: A Critique of the

"New Consensus”, 4 Journal of Bioethics 58, 62 (1982-83).

For this reason, the law should not abandon whole cate-

gories of the most vulnerable individuals under the guise of

protecting individual rights. Instead, as concluded by the

British Medical Association,

the deliberate taking of a human life should

remain a crime. This rejection of a change in

the law to permit doctors to intervene to end a

person’s life is not just a subordination of indi-

vidual well-being to social policy. It is instead,

an affirmation of the supreme value of the

individual, no matter how worthless and hope-

less that individual may feel.

British Medical Association, Euthanasia: Report of the Work-

ing Party to Review the British Medical Association’s Guidance

on Euthanasia 69 (1988).

This Court has assured the Nation that “while the Consti-

tution protects against invasions of individual rights, it is not

4 suicide pact." Haig v. Agee, 453 U.S. 280, 309 (1981) (quot-

ing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)).

Consistent with this assurance, this Court should reject the

Ninth and Second Circuit rulings.

CONCLUSION

For the foregoing reasons, the judgments of the Ninth and

Second Circuits should be reversed.

26

ing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)).

Consistent with this assurance, this Court should reject the

Ninth and Second Circuit rulings.

CONCLUSION

For the foregoing reasons, the judgments of the Ninth and

Second Circuits should be reversed.

Respectfully submitted, y

Of Counsel:

PaT A. CIPOLLONE

General Counsel

CARL A. ANDERSON

Vice President for Public

Policy

KNIGHTS OF COLUMBUS

¥

b

p.

“Marci Ferree, student at Valparaiso University School of Law under

the supervision of Professor John Potts, provided research for this brief.