# Amicus Curiae Brief — Vacco v. Quill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A27 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 521 U.S. 793 ## Text = @ j ated J Nos. 95-1858 and 96-110 urt, U.S. E D . IN THE FIL Supreme Court of the United ateg, . OCTOBER TERM, 1996 CLERK Dennis C. Vacco, Attorney General of the State of New York, et al., ~ Petitioners, TimoTny E. Quit, M.D., et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit STATE OF WASHINGTON, et al., . Petitioners, HAROLD GLUCKSBERG, M.D., et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE ON BEHALF OF MEMBERS OF THE NEW YORK AND WASHINGTON STATE LEGISLATURES IN SUPPORT OF PETITIONERS PAUL BENJAMIN LINTON * CLARKE D. FORSYTHE AMERICANS UNITED FOR LIFE 343 S. Dearborn Street Suite 1804 Chicago, Illinois 60604 (312) 786-9494 November 7, 1996 * Counsel of Record WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 wo TABLE OF CONTENTS TABLE OF AUTHORITIES .20002000.......c.ccccccesceseseseeeoee INTEREST OF THE AMICT 2000002 .....-ccccccccccsceenmeneeees SUMMARY OF ARGUMENT 0000 ee I, II, ITT. THE LIBERTY LANGUAGE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PROTECTS ONLY THAT CONDUCT WHICH IS IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY AND WHICH, HISTORICALLY AND TRADITION- ALLY, IS CONSIDERED BEYOND 7HE POWER OF THE STATE TO PROHIBIT .......... THE COMMON LAW OF ENGLAND, AS RECEIVED BY THE AMERICAN COLONIES, PROHIBITED SUICIDE AND ATTEMPTED Se ALTHOUGH THE PENALTIES FOR SUICIDE AND ATTEMPTED SUICIDE ULTIMATELY FELL INTO DISFAVOR IN AMERICAN LAW, THE STATES HAVE RETAINED A STRONG AND COMPELLING INTEREST IN THE PRESERVATION OF HUMAN LIFE AND IN THE PREVENTION OF SUICIDE... BOTH THE SECOND CIRCUIT AND THE NINTH CIRCUIT ERRED IN EQUATING SUICIDE WITH THE REFUSAL OF UN- WANTED LIFE-SUSTAINING MEDICAL TEEEUTE octiccsncepsncctsitintiiieennssiienpeselinascnetiipeenstinies Page 15 23 30 la ii TABLE OF AUTHORITIES Cases: Page Barber v. Superior Court, 195-Cal. Rptr. 484 (Ct. ADD. 19BB) ..--2--22e-2--0-200 SS8ks5 ise SRS 21 20 14 xiv TABLE OF AUTHORITIES—Continued Page R.I. Pub. Act 96-113, to be codified as R.1. GEN. Re Ei a ee 20 R.I. GEN. LAWS § 23-4.10-9(f) (Supp. 1995) -............. 25 R.I. GEN. LAws § 23-4.11-10(f) (Supp. 1995) _...... + 24 South Carolina: 1 THE EARLIEST PRINTED LAWS OF SOUTH CARO- LINA 1692-1734 (John D. Cushing ed. 1978) _..... 17 S.C. Acts, No. 253, § VI (Apr. 9, 1706), reprinted in 1 THE EARLIEST PRINTED LAWS OF SOUTH CAROLINA, 1692-1734 (John D. Cushing ed. reece nee eee Cen em aee 14 S.C. Cope ANN. § 16-1-110 (Law. Co-op. Supp ET ORS + OF LE eee eh S 20 S.C. CopE ANN. § 44-77-130 (Law. Co-op. Supp. ee sctesldierihasiacilndineiilieinaliailanteiniilattisaasitibics 24 South Dakota: G. Hand, REV. CODES OF THE TERRITORY OF DAKOTA, Penal Code §§ 230, 236 (1877), recodified as S.D. CopE § 13.1903 (1939), repealed by an Act of Feb. 17, 1968, ch. 31, § 1, § 13.1901, 1968 S.D. NE FBR Bee Oe a 15 S.D. CopirFreD LAWS ANN. § 22-16-37 (Michie RSPR Ee Pa ek, ek 20 S.D. CODIFIED LAWs ANN. § 34-12D-20 (Michie ED incoditeipitiishackiisstiedtinesiiibinensitittigebiviintinteacinittibaiitibiien 24 Tennessee: TENN. CopE ANN. § 39-11-613 (1991) —.......-.... 21 TENN. CoDE ANN. § 39-13-216 (Supp. 1995) —........... 20 Texas: Tex. HEALTH & SAFETY CODE ANN. § 672.020 ES Te ene nee 24 TEx. PENAL CoDE ANN. § 9.34(a) (West 1994) ........ 21 TEX. PENAL CoDE ANN. § 22.08 (West 1994) —.......... 20 Utah: UTAH CopE ANN. § 75-2-1118 (1993) ............ 24 xv TABLE OF AUTHORITIES—Continued Page Vermont: VT. STAT. ANN. tit. 1, § 271 (1996) .....00000 0. 20 Virginia: Act of Mar. 14, 1848 (Criminal Code), tit. II, ch. XI, §§ 23, 25, 1847-48 Va. Laws 124... 14 VA. CoDE ANN. § 18.2-16 (Michie 1996)... 19 VA. CopE ANN. § 54.1-2990 (Michie 1994) ....... 24 Washington: CRIM. CODE, ch. 249, § 134, 1909 Wash. Laws 11th Sess. 890, 929, codified as REM. & BAL. CopE § 2386 (1910), repealed by WASH. CRIM. Cope, 1975, ch. 260, § 94.92.010(213)-(217) Wash. Laws 817, 866, codified as REV. WASH. CopE § 9A.92.010(213)-(217) (1977) ......000 0. 15 WASH. REV. CopE ANN. § 9A.36.060 (West 1988) .. 20 WASH. REV. CoDE ANN. § 70.122.100(West Supp. ANE EGS a a eT a ae 24 WASH. REv. CopE ANN. § 71.05.020 (West 1992). 22 West Virginia: W. VA. CopE § 16-30-10 (1995) 20 24 Wisconsin: REVISED STAT. OF THE STATE OF WIs. ch. 133, $9 (Albany, N.Y. 1849), codified as REV. STAT. OF SG Fee 17 Wis. STAT. ANN. § 154.11(6) (West 1989)... 24 Wis. STAT. ANN. § 939.48(5) (West 1996) 21 Wis. STAT. ANN. § 940.12 (West 1996) 0. 20 Wyoming: Wyo. STAT. § 3-5-211 (Michie Supp. 1996) ............ 25 Wyo. STAT. § 35-22-109 (Michie 1994) 0000000000. 24 Other Authorities: 4 Wm. Blackstone, COMMENTARIES ON THE LAWS Br EY SII etiddilal cont inccdikeesgntoceniotembioess 12 Booth, Woodruff, Mather, Baldwin & Turrill, Pre- face to CONN. GEN. STAT. (1875) 00... 13, 17 2 H. de Bracton (c. 1250), ON THE LAWS OF ENG- LAND (S. Thorne trans. 1968) —..........00.000000000.000... 9 xvi TABLE OF AUTHORITIES—Continued Page I BRITTON, Bk. I, ch. VIII (F. Nicols trans. 1865) (reprinted 1983, W.W. Gaunt) —............................. 9-10 E. Coke, THIRD INSTITUTE OF THE LAWS OF ENG- LAND (1644 ed.) a aw SIO sl 10-11 Note, Criminal Liability of Participants in Sui- cide: State v. Williams, 5 Mp. L. REv. 324 (BBER) nnccnccccrersssucsncunsonndeaneialassincamnaiaas ann 13, 18 E. East, 1 PLEAS OF THE CROWN (1803) (1972 | eS ie ln NE 11 Fleta (c. 1290), Bk. I, ch. XXXIV, “Of Suicides,” Publications of the Selden Society, Vol. 72 > sae ee 10 THE GENERAL LAWS AND LIBERTIES OF MASSACHU- SETTS COLONY (1672), repinted in THE COLONIAL LAWS OF MASSACHUSETTS (W. Whitmore ed. | ee ee ee 13 Edward R. Grant and Paul Benjamin Linton, Re- lief or Reproach? Euthanasia Rights in the Wake of Measure 16, 74 OREGON L. REV. 449 (1995)... 29 M. Hale, 1 HISTORY OF THE PLEAS OF THE CROWN CRTEBD onccccccssisvictenesstingrenatatinenia ne 11 Wm. Hawkins, 1 A TREATISE OF THE PLEAS OF THE +) by) | ne Se en 11 Thomas J. Marzen, Mary K. O’Dowd, Daniel Crone and Thomas J. Balch, Suicide: A Constitutional Right? 24 DUQUESNE L. REV. 1 (1986) ................ 8-9 MODEL PENAL CODE § 210.5 (2) .....0.cccccccccceeececeeeeeee 22 A. Scott, CRIMINAL LAW IN COLONIAL VIRGINIA 6, NG: SN aN, eR 14, 19 2 Z. Swift, A DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT (New Haven 1823) ................... 18 2 Z. Swift, A SYSTEM OF LAWS OF THE STATE OF CONNECTICUT (n.p. 1796) (reprinted 1972) ......... 13 Wall Street Journal, May 1, 1996 ...0000.00000000000000. 21 WHEN DEATH Is SOUGHT[ :] ASSISTED SUICIDE AND EHTHANASIA IN THE MEDICAL CONTEXT, New York State Task Force on Life and the Law (2. | a ee 1, 27-28 INTEREST OF THE AMICI Amici curiae are New York and Washington state legis- lators who strongly support the public policy expressed in their state laws prohibiting assisted suicide and who vigorously oppose efforts to legalize assisted suicide in the legislatures or the courts. Amici firmly believe that there is no social, economic or medical need to permit physician- assisted suicide under any circumstances, and that to allow suicide assistance, even for mentally competent, termi- nally ill adults, would lead to grave abuses and exploita- tion of the most vulnerable members of our community, as it already has in the Netherlands. Amici fully concur with the warning of the New York State Task Force on Life and the Law that creation of a right to suicide “would carry us into new terrain.” American society has never sanctioned suicide or mercy killing. We believe that the practices would be profoundly dangerous for large segments of the population, especially in light of the widespread fail- ure of American medicine to treat pain adequately or to diagnose and treat depression in many cases. The risks would extend to all individuals who are ill. They would be most severe for those whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, or membership in a stigmatized social group. The risks of legalizing assisted suicide and euthanasia for these individuals, in a health care system and society tha: cannot effectively protect against the impact of in- adequate resources and ingrained social disadvantage, are likely to be extraordinary. WuHen Deatu Is Soucut[:] ASSISTED SUICIDE AND 1994). This Court should heed their warning and not recognize a right to suicide or suicide assistance.* * This Brief is filed with the consent of the parties. Letters of consent have been lodged with the Clerk of the Court. 2 SUMMARY OF ARGUMENT In a pair of unprecedented opinions, the Second Cir- cuit and the Ninth Circuit have held that New York and Washington are powerless to prevent mentally com- petent, terminally ill patients from intentionally ending their lives with the assistance of physicians who are willing to prescribe lethal drugs for them. Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996); Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996). In recog- nizing a right to commit suicide with the assistance of third parties, the en banc majority in Compassion in Dy- ing swept aside a uniform tradition of legal and societal opposition to suicide and assisted suicide that dates back to the earliest days of the common law. Contrary to the Ninth Circuit's opinion, nothing in Planned Parenthood v. Casey, 505 U.S. 833 (1992), required or allowed the court of appeals to ignore this history in evaluating plain- tiffs’ wholly novel constitutional claim. Compounding this error, both the Ninth Circuit and the Second Circuit seriously misread this Court’s decision in Cruzan v. Director, Missouri Dep't of Health, 497 US. 261 (1990). Both courts attempted to derive an interest in deliberately inducing death, which the law always has treated as a crime, from the interest in refusing unwanted medical treatment, which the law traditionally has pro- tected out of respect for the inviolability of the human person. Disregarding critical distinctions between iniend- ing a result and knowing that a result is likely, and be- tween causing death artificially and allowing death to occur naturally, the lower courts reasoned that because refusing life-sustaining treatment and intentionally in- gesting a fatal dose of drugs both result in a person's death, the right to do the former necessarily entails the right to do the latter. Quill, 80 F.3d at 725-31; Com- passion in Dying, 79 F.3d at 820-24. “But constitutional law does not work that way.” Cruzan, 497 U.S. at 280. 3 At the outset, amici note that this Court has never held that “a competent person has a constitutionally pro- tected liberty interest” in refusing “life-sustaining medical treatment.” Cruzan, 497 U.S. at 278, 279. In Cruzan, the Court assumed, for purposes of deciding the case, that the Constitution “would grant a competent person a constitutionally protected right to refuse lifesaving hy- dration and nutrition.” Jd. at 279. Nevertheless, the Court cautioned that “the dramatic consequences involved in the refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible,” id., thereby implying that the State’s “in- terest in the protection and preservation of human life,” id. at 280, might be sufficient to outweigh the pa- tient’s interest in refusing unwanted treatment. That im- plication was made explicit when the Court said, “We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.” /d. Even if it is assumed that a competent person has a constitutionally protected liberty interest in refusing life-sustaining treatment, that interest has its origins in the law of battery and the doctrine of informed consent (see Cruzan, 497 U.S. at 269-77) which both define its nature and limit its scope. The interest restricts “gov- ernmental power to mandate medical treatment or bar its rejection,” Casey, 505 U.S. at 857, but does not confer a right to insist upon a particular form of treatment, much less one that will cause, and is intended to cause, the person’s death. See United States v. Rutiverford, 442 US. 544 (1979) (FDA had authority to proscribe laetrile, even for terminally ill cancer patients). It is the source and the nature of the interest that determine its ultimate reach. Whether the constitutionally protected interest in refusing unwanted medical treatment extends to life- sustaining treatment, a question this Court need not an- swer here, that interest clearly has reached its furthest 4 limit when all treatment—life-sustaining or otherwise— has been withheld or withdrawn. Beyond their multiple errors in analysis, however, the decisions in both Compassion in Dying and Quill are, in principle, illimitable. If the right to refuse unwanted medical treatment is the doctrinal source of a right to assistance in committing suicide, it is apparent that the latter right cannot be confined to mentally competent, terminally ill patients, as the Ninth Circuit admitted. See 79 F.3d at 816, 831-32 & n.120. The lower court deci- sions, if affirmed, would plunge the country into a gen- eration of constitutional conflict over the nature and extent of the “right,” a conflict which would cause irrep- arable damage to the Nation, to the American People and to this Court. Amici ask the Court not to take this precipitous step. ARGUMENT I. THE LIBERTY LANGUAGE OF THE DUE PROC- ESS CLAUSE OF THE FOURTEENTH AMEND- MENT PROTECTS ONLY THAT CONDUCT WHICH IS IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY AND WHICH, HISTORICALLY AND TRADITIONALLY, IS CONSIDERED BEYOND THE POWER OF THE STATE TO PROHIBIT. The Ninth Circuit held that there is “a constitutionally- protected liberty interest in determining the time and manner of one’s own death,” or, “in common parlance, . . . @ right to die.” Compassion in Dying, 79 F.3d at 793, 799. The court held further that, in the case of mentally competent, terminally ill patients who wish to end their lives by taking a fatal dose of drugs, this liberty interest outweighs the State’s “legitimate and counter- vailing interests, [including] those that relate to the pres- ervation of human life.” Jd. at 793-94. Conceding that there is no “liberty interest in receiving ‘aid in killing oneself,” as such, the court couched the issue in wider terms, whether there is “a right to die,” to determine “the 5 time and manner of one’s death” or to “hasten[] one’s death,” because “it is the end and not the means that defines the liberty interest.” /d. at 801-02. The circuit court’s phrasing of the issue disregards this Court’s admonition that “ ‘[s]ubstantive due process’ analy- sis must begin with a careful description of the asserted right, for ‘[t}he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Reno v. Flores, 507 U.S. 292, 302 (1993) (quoting Justice Stevens’ opinion for a unanimous Court in Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125 (1992)). In Cruzan, this Court declined to answer the broad question as to whether there is a “right to die,” focusing instead on the narrower question of whether “a competent person has a constitutionally protected liberty interest in refusing un- wanted medical treatment.” 497 U.S. at 277-78. Precision in defining the issue is also required here. The issue is not whether there is “a right to die,” or “a liberty interest in determining the time and manner of one’s death” or in “hastening one’s death,” Compassion in Dying, 79 F.3d at 801-02, but “whether the consti- tution encompasses a right to commit suicide and, if so, whether it includes a right to assistance.” People vy. Kevorkian, 527 N.W.2d 714, 730 n.47 (Mich. 1994) (rejectir: «ight to suicide), cert. denied sub nom. Kevor- kian +. *iichigan, 115 S.Ct. 1795 (1995), Hobbins vy. Kelley, 115 S.Ct. 1795 (1995). This Court has enunciated various standards for eval- uating both substantive and procedural due process claims. Due process protects those rights which are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 1“... the common definition of ‘suicide’ is the intentional killing of oneself by any means, and the temporal proximity of death is irrelevant to the threshold inquiry into whether the constitution encompasses such a right.” Jd. at 726 ».27. 6 105 (1934). Alternatively, due process secures those rights which are “implicit in the concept of ordered lib- erty” such that “neither liberty nor justice would exist if they were sacrificed.” Palko v. Connecticut, 302 US. 319, 525, 326 (1937). In another frequently cited formu- lation, Justice Powell described fundamental liberties as those liberties which are “deeply rooted in this Nation’s history and tradition.” Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977). Regardless of the precise wording, each of these tests requires an examination of our history and traditions to assess whether the right (or interest) being asserted has enjoyed legal and societal protection. Compare Roe v. Wade, 410 U.S. 113, 140-41 (1973) (recognizing right to abortion where, in the Court’s view, there was no un- ambiguous tradition of legal and social opposition to abortion in English and American law), with Bowers v. Hardwick, 478 U.S. 186, 192-94 & nn. 5-7 (1986) (re- fusing to recognize fundamental right of adult homosex- uals to engage in consensual acts of sodomy where both English and American law clearly prohibited such con- duct for centuries). The Court’s reliance on historical tradition in Bowers coincided with a less expansive view of its authority “to discover new fundamental rights im- bedded in the Due Process Clause.” 478 U.S. at 194. As this Brief demonstrates, there has never been a period in English or American history when suicide (or suicide assistance) was regarded as a “fundamental right,” a “protected liberty interest” or even a socially tolerated practice. Perhaps anticipating that its historical survey, 79 F.3d at 806-10, would fail to convince this Court that a right to (or an interest in) suicide (or suicide assist- ance) can be derived from our history and traditions, the Ninth Circuit, citing Planned Parenthood v. Casey, con- cluded that these factors are no longer controlling or even persuasive in evaluating substantive due process claims. 79 F.3d at 804-06. But that conclusion is unwarranted. 7 First, in reaffirming Roe, the Court in Casey stressed the importance of the rule of stare decisis and the integ- rity of the Supreme Court as an institution in the consti- tutional order. 505 U.S. at 845-46, 854-69. Neither con- sideration lends any support to the establishment of a heretofore unrecognized constitutional right. Moreover, in reaffirming Roe, the Court sought to end the “national controversy” over whether abortion should remain a pro- tected right, id. at 867, not to begin an entirely new debate on the nature and extent of a previously unheard of right.’ Second, in Casey, the Court referred to abortion as “a unique act,” and said that “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.” 505 U.S. at 852. If abortion is a “unique act” and “so unique to the law,” then Casey cannot be cited in support of a liberty interest in com- mitting suicide, which has no affinity with this Court's decisions “afford[ing] constitutional protection to per- sonal decisions relating to marriage, procreation, contra- ception, family relationships, child rearing and education,” id. at 851, which are “deeply rooted in this Nation’s history and tradition.” Moore, 431 U.S. at 503. Third, in Casey, the Court stated that “the essential holding of Roe forbids a State from interfering with a woman’s choice to undergo an abortion procedure if con- tinuing her pregnancy would constitute a threat to her health.” 505 U.S. at 880. But protection of that core interest differs radically from an asserted interest in self- destruction where not health, but death, is the desideratum. Fourth, in Roe, the Court was able to recognize a right to abortion only after holding that the unborn child is not a person within the meaning of the Fourteenth Amendment. 410 U.S. at 156-59. Nothing in Roe, how- ® The Court’s reluctance to state in Casey whether Roe had been correctly decided as an original matter, 505 U.S. at 869, 871, severely limits the usefulness of looking to either Roe or Casey as an unexplored source of unenumerated rights. ever, Or in any other decision of this Court remotely Suggests that a seriously ill patient, regardless of condi- tion and prognosis, is not a constitutional “person” whose life the State has the right to protect. See Cruzan, 497 U.S. at 282 n.10 (recognizing State’s interest). Finally, an examination of Casey's analysis of how substantive due process claims are to be reviewed re- veals that history and tradition remain critical. “[A]dju- dication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have ex- ercised: reasoned judgment.” 505 U.S. at 849. But exercise of that judgment does not allow the Justices “to invalidate state policy choices with which [they] dis- agree.” /d. The Court’s reliance in Casey on Justice Har- lan’s dissent in Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds), Casey 505 U.S. at 849-50, makes it clear that in evaluating original claims of constitutional right, re- course to our history and traditions is still necessary. Thus, this Court must decide whether “the asserted right to commit suicide arises from a rational evolution of tradi- tion. or whether recognition of such a right would be a radical departure from historical precepts.” People vy. Kevorkian, 527 N.W.2d at 730. Il. THE COMMON LAW OF ENGLAND, AS RECEIVED BY THE AMERICAN COLONIES, PROHIBITED SUICIDE AND ATTEMPTED SUICIDE. An understanding of the development of the common law crime of suicide in England is critical to any analysis of the status of suicide in American colonial law." More * Much of what follows in this and the following argument draws upon the research set forth in Thomas J. Marzen, Mary K. O'Dowd, Daniel Crone and Thomas J. Balch, Su‘cide: A Constitutiona/ Right?, 24 Duquesne L. REV. 1 (1986) (hereinafter, Marzen). Although the Ninth Circuit repeatedly cited the Marzen article in its historical survey (79 F.3d at 807-10 & nn. 23-24, 27, 33-37, 39-40, 9 than 700 years ago, the thirtenth-century commentator Bracton wrote, “Just as a man may commit felony by slaying another so he may do so by slaying himself, the felony is said to be done to himself [felo de se].” 2 H. de Bracton (c. 1250), ON THE LAWs AND CUSTOMS OF ENGLAND (S. Thorne trans. 1968) 423 (Bracton). If the suicide was committed to avoid punishment for a crime he had committed, all of his property—real and personal—was forfeited to the King. /d. at 366, 423-24. But if “a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . . he may have a successor, but his movable goods are confiscated. He does not lose his inheritance, only his movable goods.” Id. at 424. His heirs could inherit his real property (be- cause he had not committed suicide to avoid punishment for committing a crime) but his personal property was confiscated by the Crown. “The principle that suicide of a sane person, for whatever reason, was a punishable felony was thus introduced into English common law.” Marzen, 24 Duquesne L. Rev. at 59. But no penalty applied to the suicide of one who was not cane. “[A] madman bereft of reason[,]” “the deranged, the delirious and the mentally retarded” or “one labouring under a high fever” do not commit felony de se “nor do such persons forfeit their inheritance or their chattels, since they are without sense and reason and can no more commit an injuria or a felony than a brute animal.” BRACTON at 424. Bracton’s contemporaries agreed that suicide was a crime at common law. The commentator known as Brit- 42-44), it misstated many of its findings and ignored its conclusion that “the weight of authority in the United States, from colonial days through at least the 1970’s[,] has demonstrated that the pre- dominant attitude of society and the law has been one of opposition to suicide,” Marzen, 24 DUQUESNE L. REV. at 100. See Compassion in Dying, 85 F.3d 1440, 1445 & n.14 (9th Cir. 1996) (O’Scanniain, J., dissenting from order rejecting request for rehearing en banc by the full court). ea 10 ton wrote that “where a man is a felon of himself, his chattels shall be adjudged ours [the King’s], as the chattels of a felon, but his inheritance shall descend entire to his heirs.” I Britton, Bk. I, ch. VIII (F. Nicols trans. 1865) (reprinted 1983 W.W. Gaunt) 39. Fleta, writing near the end of the thirteenth century, provided a fuller treat- ment of the subject: Just as a man may commit felony in slaying an- other, so he may in slaying himself; for if one who has lately slain a man or has committed some like act whence felonies arise, conscious of his crime and in fear of judgement, slay himself in any fashion, his goods accrue to the Crown nor may he have any other heir than the lord of the fee. But should anyone slay himself in weariness of life or because he is unable to support some bodily pain, he shall have his son for his heir, but his movable goods will be confiscate. Those, too, who cast themselves down from a height or drown themselves likewise have heirs, provided they have committed no felony. Similarly, madmen and those who are frenzied, child- ish, deranged or are suffering from high fever, al- though they kill themselves, do not commit felony or forfeit their inheritance or chattels, because they lack sense and reason. Their wives, moreover, should receive their dowers. Fleta (c. 1290), Bk. I, ch. XXXIV, “Of Suicides,” Pub- lications of the Selden Society, Vol. 72, p. 89 (1955). In-1628, Sir Edward Coke published his classic IN- STITUTES. In his THiRD INsTiTUTE, Coke classified sui- cide as a form of murder. “Felo de se is a man or woman, which being compos mentis, of sound memory, and of the age of discretion, killeth himself, which being lawfully found by the oath of twelve men, all the goods and chat- tels of the party so offending are forfeited” E. Coke, THIRD INSTSTUTE OF THE LAWS OF ENGLAND 54 (1644 ed.). Like his predecessors, Coke noted an exception for persons who had killed themselves while insane. “If a man lose his memory by the rage of sickness or infirmity, 11 or otherwise, and kill himself while he is not compos mentis, he is not felo de se: for as he cannot commit murder upon another, so in that case he cannot commit murder upon himself.” Jd. According to Coke, a felo de se forfeited only his goods and chattels /d. at 55. In 1716, the first edition of William Hawkins’ A TRrEa- TISE OF THE PLEAS OF THE CROWN was published. Noting that “our Laws have always had .. . an Abhorrence of this Crime,” Hawkins’ analysis of “Homicide against a Man’s own Life” largely followed Coke. Wm. Hawkins, 1 A TREATISE OF THE PLEAS OF THE CROWN (1716) 67-68. Hawkins rejected the prevailing “Notion” that anyone who kills himself must be mentally incompetent, id. at 67, and condemned the killing of another person with his consent or at his request, as well as suicide pacts. Id. at 68. In 1736, Sir Matthew Hale’s work, HISTORY OF THE PLEAS OF THE CROWN, was published. Like Hawkins, Hale reflected Coke’s views on the criminality of suicide at common law. M. Hale, 1 History OF THE PLEAS OF THE Crown, Ch. XXXI, “Concerning homicide and first of Self-killing or felo de se,” (1736) at 411-12. In accord with the earlier commentators, Hale stated, “If he lose his memory by sickness, infirmity, or accident, and kills him- self he is not felo de se, neither can he be said to commit murder upon himself or any other.” /d. at 412. But Hale doubted whether every suicide could be treated as an insane act. /d. In 1803, Sir Edward East published his PLEAS OF THE Crown. East described anyone “who wilfully . . . causes his own death” as a “felo de se.” E. East, 1 PLEAS OF THE Crown (1803), ch. V, § 5, at 219 (1972 reprint). Call- ing suicide “an heinous offence,” East said that “he who voluntarily kills himself is with respect to the public as criminal as one who kills another. It is equally an of- fence against the fundamental law of society, which is protection.” Jd. 12 Sir William Blackstone summarized the law of felo de se in his classic eighteenth century commentaries. Characterizing suicide as “[s]elf-murder,” Blackstone reit- erated the common law’s condemnation of suicide as “among the highest crimes, making it a peculiar species of felony, a felony committed on one’s self.” 4 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 189 (1769). Like Hawkins and Hale, Blackstone criticized the tend- ency of coroner’s juries to find “that the very act of suicide is an evidence of insanity; as if every man who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer.” Id. Blackstone noted that the punishment for suicide at common law was forfeiture of all of the suicide’s personal property and ignominious burial in the public way. Id. at 190. These punishments were threatened in the hope that a potential suicide’s “care for either his own reputation, or the welfare of his family, would be some motive to re- strain him from so desperate and wicked an act.” /d. Nevertheless, Blackstone recommended that the severity of the law be tempered by the power of the sovereign “to execute mercy in judgment.” Id. The condemnation of suicide at common law was not limited to the commentators; it was also expressed by the courts. In a case decided more than 400 years ago, an English court described the “quality of the offence” com- mitted by the suicide as “a degree of murder.” Hales v. Petit, 1 Plowd, 253, 261, 75 Eng. Rep. 387, 399-400 (Queen’s Bench 1561-1562). English courts treated both assisted suicide and suicide pacts as forms of homicide.* 4 See Vauz's Case, 4 Co. Rep. 44a, 76 Eng. Rep. 992 (1591); Rex v. Dyson, Russ. & Ry. 523, 168 Eng. Rep. 930 (1823) ; Regina v. Alison, 8 Car. & P. 418, 173 Eng. Rep. 557 (1838) ; Regina v. Jessop, 16 Cox Cr. Cas. 204 (1887) ; Regina v. Stormonth, 61 J.P. 729 (1897); Rex v. Abbott, 67 J.P. 151 (1903). See also Regina v. Gaylor, 1 Dears. & B. 288, 169 Eng. Rep. 1011 (1857). 13 And at common law, attempted suicide was a misde- meanor, punishable by fine and imprisonment.* The sparse records available indicate that this was also the law in colonial America. At least nine of the original thirteen colonies prohibited, and in some cases punished, suicide and attempted suicide,’ though the common law 5 See Regina v. Moore, 3 Car. & K. 319, 175 Eng. Rep. 571 (1852) ; Regina v. Doody, 6 Cox. Crim. Cas. 463 (1854) ; Regina v. * soma 9 Cox Crim. Cas. 247, 169 Eng. Rep. 1387 (1862); Rex v. Mann, 2 K.B. 107, 83 L.J.K.B. 648 (1914). In its survey of English law, the Ninth Circuit minimized the clear condemnation of suicide (by the mentally competent) enunciated by Bracton and Coke, 79 F.3d at 808-09, relegated Blackstone to an obscure footnote, id. at 809 n.38, ignored the other great commentators who unequivocally con- demned suicide as criminal and overlooked at least a dozen English cases expressing the law’s (and society's) disapproval of suicide. Although, in the case of completed suicides, juries may have been reluctant to return a verdict that would result in a property forfei- ture that would punish only innocent survivors, the guilty verdicts returned against persons who attempted suicide, assisted suicide or survived suicide pacts strongly suggest that English juries expe- rienced no comparable difficulty in applying the law where no for- feiture was at stake. * Connecticut: 2 Z. Swift, A SysTem or LAWS OF THE STATE OF CONNECTICUT 304 (n.p. 1796) (reprinted 1972) (noting early in- stances of ignominious burials) ; Booth, Woodruff, Mather, Baldwin & Turrill, Preface to ConNN. GEN. STAT. at vi (1875) (noting State’s adoption of common law of England). Georgia: Life Ass’n of America v. Waller, 57 Ga. 53 (1876) (suicide “a species of crime or Rafe Fe wrong; a kind of self-murder” at common law). Maryland: Pope v. State, 396 A.2d 1054, 1072-74 (Md. 1978) (adoption of common law) ; Note, Criminal Liability of Participants in Suicide: State v. Williams, 5 Mp. L. Rev. 324, 325-26 (1941) (reporting unappealed trial court decision treating suicide as a common law crime). Massachusetts: THE GENERAL LAWS AND LIBERTIES OF MASSA- CHUSETTS COLONY (1672), reprinted in THE COLONIAL LAWS OF MASSACHUSETTS 137 (W. Whitmore ed. 1887) (statute mandating ignominious burial for suicide). North Carolina: State v. Willis, 121 S.E.2d 854 (N.C. 1961) (suicide a criminal act at common law, attempted suicide punishable 14 penalties generally were abolished after the Revolution.’ The penalties were abolished, not because society no longer regarded suicide as a wrong (much less as a right), but because of an awareness that punishment could not reach the suicide and a moral sense that it was unfair to punish the suicide’s innocent survivors. See Cruzan, 497 U.S. at 294 (Scalia, J., concurring). as a misdemeanor). See also N.C. Laws, ch. XXXI, § VI (1715), reprinted in 1 THE First LAWS OF THE STATE OF NORTH CAROLINA 18 (John D. Cushing ed. 1984) (adopting common law). Pennsylvania: Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. 92, 97 (1878) (describing suicide as “the crime of self-murder’) ; Commonwealth v. Wright, 11 Pa. D. 144 (Ct. Quarter Sess., Phil. County 1902) (criticizing practice of indicting persons “for the common law offence of attempting to commit suicide”) ; Elwood v. New England Mut. Life Ins. Co., 158 A. 257, 259 (Pa. 1981) (classifying attempted suicide as “a crime infamous at common law,” and a successful suicide as “a species of felony’). Rhode Island: THE EARLIEST ACTS AND LAWS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, 1647-1719, at 19, 59 (John D. Cushing ed. 1977) (adopting common law punishments for suicide). South Carolina: §.C. Acts, No. 258, § VI (Apr. 9, 1706), re- printed in 1 THE EARLIEST PRINTED LAWS OF SOUTH CAROLINA, 1692-1734, at 192 (John D. Cushing ed. 1978), (recognizing crimi- nality of suicide at common law). Virginia: A. Scott, CRIMINAL LAW IN COLONIAL VIRGINIA 108 n.198, 198-99 nn.15-16 (1980) (noting instances of ignominious burial and forfeiture of property). 7 See, e.g., DEL. CONST. art. 1, § 16 (1792); Mp. Const., Declara- tion of Rights § 24 (1776); N.H. Const. pt. 2, art. 89 (adopted 1789) ; N.J. Const. of 1776, art. 17; N.C. Laws, ch. XXXI (1787), reprinted in 2 THE First LAWS OF THE STATE OF NORTH CAROLINA 626 (John D. Cushing ed. 1984); an Act to reform the penal Laws, §53 (1798), reprinted in 2 THe First Laws oF THE STATE OF RHODE ISLAND 604 (John D. Cushing ed. 1983); Act of Mar. 14, 1848 (Criminal Code), tit. Il, ch. XI, §§ 23, 25, 1847-48 Va. Laws 124. Contrary to the understanding of the Ninth Circuit, 79 F.3d at 809, the abolition of common law suicide had been decriminalized. See Potts v. be Chem. & Dye Corp., 1388 A.2d 574, 580 (NJ. Super. 1958) ; v. Willis, 121 S.B.2d 854 (N.C. 1961); Wackwitz v. Roy, 418 S.E.2d 861, 864 (Va. 1992). 15 Ill, ALTHOUGH THE PENALTIES FOR SUICIDE AND ATTEMPTED SUICIDE ULTIMATELY FELL INTO DISFAVOR IN AMERICAN LAW, THE STATES HAVE RETAINED A STRONG AND COMPELLING INTEREST IN THE PRESERVATION OF HUMAN LIFE AND IN THE PREVENTION OF SUICIDE. The common law penalties for suicide were aban- doned after the Revolutionary War, and attempted suicide was seldom prohibited* and more rarely pun- ised.” Nevertheless, suicide was regarded as “malum in se” and was often referred to as a “crime,” a “wrongful * At one time or snother, eight States prohibited attempted suicide: Minnesota: MINN. PENAL Cope, §§ 148, 147 (1885), codi- fied as MINN. GEN. STAT. §§ 6428, 6432 (1894), recodified as MINN. Rev. Laws, § 4870, repealed by an Act of Apr. 20, 1911, ch. 293, § 1, 1911 Minn. Laws 409, 409; Nevada: Crimes & Punishments Act of 1911, § 115, codified Nev. Rev. Laws § 6380 (1912), repealed by an Act 25, 1913, ch. § 1, 1913 Nev. Star. 362, 362; Act of Mar. 4, 1957, ch. 35, § 1, 1956-57 Nev. Star. 59, 59-60, repealed by an Act of Mar. 31, 1961, ch. 256, § 1, 1961 Nev. Stat. 416, 416; New Jersey: Act of May 9, 1957, ch. 34, ) i, 1 N.J. Laws 63, 67 (1957), codified as N.J. Rev. Stat. § 2A:170-25.6 (Supp. 1967), repealed by an Act of Act of Feb. 16, 1972, ch. 450, § 3, 1971 N.J. Laws 1984; New York: Act of July 26, 1881, ch. 676, §§ 174, 178, 1881 N.Y. Laws (Vol. 3 Penal Code) at 42-43, repealed by an Act of May 5, 1919, ch. 414, § 1, 1919 N.Y. Laws 1198, 1193; North Dakota: G. Hand, Rev. Copes oF THE TERRITORY OF DAKOTA, PENAL Cope §§ 230, 236 (1877), repealed by an Act of Mar. 4, 1967, ch. 108, § 1, 1967 N.D. Sess. Laws 215, 8300; Oklahoma: Okla. Terr. Stat. 2076 (1890), repealed by an Act of Jan. 30, 1976, ch. 6, § 2, 1976 Okla. Sess. Laws 7; South Dakota: G. Hand, Rev. Copes or THE TERRITORY OF DAKOTA, PENAL Cope §§ 230, 236 (1877), recodi- fied as S.D. Cope, § 13.1908 (1939), repealed by an Act of Feb. 17, 1968, ch. 31, § 1, § 13.1901, 1968 S.D. Sess. Laws 47, 47; Washing- ton: Crim. Cope, ch. 249, § 134, 1909 Wash. Laws 11th Sess. 890, 929, codified at Rem. & BAL. Cope § 2386 (1910), repealed by WasH. Crim. Cope, 1975, ch. 260, § 9A.92.010(213)-(217) Wash. Laws 817, 866, codified as Rev. WasH. Cope § 9A.92.010(218)-(217) (1977). * Three courts held that attempted suicide could be charged as a common law crime. See State v. Carney, 55 A. 44 (NJ. 1908); State v. Lafayette, 188 A. 918 (N.J. Common Pleas 1987) ; State v. Willis, 121 S.E.2d 854 (N.C. 1961). 2 E in a case decided 120 years ago, this Court characterized suicide as “self-murder,” and referred to the suicide of a sane person as “an act of criminal self-destruction.” Bige- low v. Berkshire Life Ins. Co., 93 U.S. 284, 286 (1876). 1929) ; Life Ass'n of America v. Waller, 57 Ga. 533, 536 (1876); Grand Lodge of Illinois, Indep. Order of Mut. Aid v. Wieting, 48 N.E. 59, 61-62 (Ill. 1897); Dickerson v. Northwestern Mut. Life Ins. Co., 65 N.E. 694, 696 (Ill. 1902) ; Wallace v. State, 116 N.E.2d 100, 101 (Ind. 1953); Brown v. Metropolitan Life Ins. Co., 7 N.W.2d 21, 24 (lowa 1943) ; Manhattan Life. Ins. Co. v. Beard, 66 S.W. 35, 37 (Ky. 1902) ; Dugan v. Commonwealth, 333 S.W.2d 755, 756 (Ky. 1960) ; Commonwealth v. Mink, 123 Mass. 422, 426, 428-29 (1877) ; Bohaker v. Travelers Ins. Co., 102 N.W. 342, 344 (Mass. 1913); Hale v. Life Indem. & Inv. Co., 68 N.W. 1 1895) ; Shipman v. Protected Home Circle, 67 N.E. 83, 85 (N.Y. 1908) ; Benard v. Protected Home Circle, 146 N.Y.S. 232, 235 (App. Div. 1914); State v. Willis, 121 S.E.2d Wyckoff v. Mut. Life Ins. Co. of N.Y., 147 P.2d 227, 229 (Or. 1944) ; Elwood v. New England Mut. Life Ins. Co., 158 A. (Pa. 1981) ; State v. Levelle, 13 S.E. 319, 321 (S.C. 1891), overruled on other grounds, State v. Torrence, 406 S.E.2d 315 (S.C. 1991); Phadenhauer v. Germania Life Ins. Co., 54 Tenn. (7 Heisk.) 567, 576 (1872) ; State ex rel. Swann v. Pack, 527 S.W.2d 99, 113 (Tenn. 1975), cert. denied, 424 U.S. 954 (1975) ; Plunkett v. Supreme Con- clave, Improved Order of Heptasophs, 55 S.E. 9, 10-11 (Va. 1906) ; Patterson v. Natural Premium Mut. Life Ins. Co., 75 N.W. 980, 983 ' | : 10 (quoting Campbell v. Supreme Conclave Improved Order Heptasophs, 49 A. 550, 553 (N.J.L. 1901)). The court failed to note that later New Jersey opinions expressly rejected Campbell's approbation of suicide. See State v. Carney, 55 A. 44 (N.J. 1903) ; (NJ. Super. 1958). 1 Arkansas: Act of Feb. 16, 1838, printed as ARK. Rev. STat. XLIV, div. art. II, §4, at 240 (1838); Flerida: Act of s ch. 100, § 9, 493 Act of Feb. 15, 1839, ch. 66, tit. 3, § 7, 1839 Miss. Laws 102, 112, codified as Miss. Cope ch. 64, art. 12, tit. 3, § 7, at 958 (Hutchinson 1849) ; Missouri: Act of Mar. 20, 1835, art. Il, codified as Mo. Rev. f Stat. Crimes & PUNISHMENTS, art. II, § 8, at 168 (1835); New I, tit. 1, art. 1, $7 at 661 Cushing ed. 1978) (statute condemning suicide as a felony and, by implication. assisted suicide); Wisconsin: Revisep STAT. oF THE Stave or Wis. ch. 133, §9 (Albany, N.Y. 1849), codified as Rev. Stat. or Wis. ch. 164, § 9 (1858). 12 Alabama: Alabama adopted the common law of crimes, includ- ing the law of homicide. ALA. Dicest, tit. 17, ch. 1, § 45, at 214 (H. Toulmin ed. 1823); Pena Cope, No. 138, ch. 3, § 2, 1840-41 ALA. ACTs 122 (codified as Supplement to AIKEN’s DicestT PENAL Cope, ch. 3, § 2, at 210 (A. Meek ed. 1836-41)). For the modern statutory codification of common law crimes, see ALA. Cope § 13A- 6-3 (1994) and Commentary. Since “[e]very murder at common law is murder under our statutes,” McMahan v. State, 53 So. 89, 90 (Ala. 1910), suicide was a felony even though no punishment could be attached. Jd. at 90-91 (“intentional self-destruction” is “felo de se”). Accordingly, assisted suicide would have been crimi- nal, also. See also Crook v. State, 160 So.2d 884, 893 (Ala. 1963): “Suicide is murder at Common Law. ... An agreement compassing it is a criminal conspiracy. If one of the conspirators dies . . . the survivor—if he contributed to the suicide whether present or not— can legitimately be tried for murder.” Connecticut: Connecticut also adopted the common law of crimes. See Booth, Woodruff, Mather, Baldwin & Turrill, Preface to Conn. Gen. Stat. at vi (1875). Persuading, provoking or counseling 18 tionale for prohibiting suicide, the States have retained a strong interest in protecting the lives of their citizens. That interest is currently manifested in several ways. another to commit suicide was treated as murder. 2 Z. Swift, A DIGEST oF THE LAWs OF THE STATE oF CONNECTICUT 270 (New Haven 1823). Georgia: A post-Reconstruction case referred to suicide as “some- thing more than self-sought and self-inflicted death. It is a species of crime or wickedness—something wrong; a kind of self-murder.” Life Ass'n of America v. Waller, 57 Ga. 583, 536 (1876). This language suggests that assisted suicide would have been criminal, too. Kentucky: In 1904, the Kentucky Court of Appeals held that suicide was a common law felony and that one could be charged and convicted for advising or assisting in the commission of a suicide. Commonwealth v. Hicks, 82 S.W. 265 (Ky. 1904). Maryland: From its earliest days, Maryland adopted the common law of crimes. See Pope v. State, 396 A.2d 1054, 1072-74 (Md. 1978) (recognizing common law crime of misprision of felony) ; Gladden v. State, 330 A.2d 176 (Md. 1974) (adopting common law “transferred intent” rule) ; State v. Buchanan, 5 H. & J. 317 (1821) (adopting common law crime of conspiracy). Both suicide and as- sisted suicide were crimes at common law. An unappealed trial court decision in 1940 upheld the conviction of the survivor of a suicide pact for second-degree murder, essentially holding that active assistance in ccmmitting suicide is a form of homicide. See Note, Criminal Liability of Participants in Suicide: State v. Wil- 19 First, almost all of the States (forty-six States) forbid assisted suicide, either by an express statute™ or by ap- -—eo_ Mich. 41, 45 (1876). In People v. Roberts, 178 N.W. 690 (Mich. 1920), overruled in part, People v. Kevorkian, 527 N.W.2d at 783- 39, the Michigan Supreme Court upheld a murder conviction of a North Carolina: In 1961, the North Carolina noting that the State had adopted the common law of crimes ( N.C. GEN. STAT. § 14-1(1) (1998) ), held that attempted suicide was an indictable misdemeanor. State v. Willis, After independence, North Carolina readopted the common law. See N.C. Laws, ch. V, § II (1778), reprinted in 1 Tue OF THE STATE OF NORTH CAROLINA 3561 (John D. Cushing ed. 1984). Pennsylvania: In 1878, the Pennsylvania Supreme Court defined suicides as “the crime of self-murder” in “legal acceptation and in popular use.” Connecticut Mut. Life Ins. Co. v. Groom, 8 Pa. 92, 97 (1878). As a State that adopted common law crimes, assisting suicide would have been a criminal! offense. Tennessee: Tennessee adopted the common lav. See State v. Alley, 594 S.W.2d 381, 382 (Tenn. 1980). In 1872, the Tennessee Supreme Court referred to suicide “a crime of the highest grade.” Phadenhauer v. Germania Life Ins. Co., 54 Tenn. (7 Heisk.) 567, 576 (1872). Thus, assisted suicide also would have been unlawful. Virginia: Virginia adopted the common law of crimes. See A. Scott, CRIMINAL LAW IN COLONIAL VimcINIA 27 (1930); Va. Cope ANN. § 18.2-16 (1996); Plunkett v. Supreme Conclave, Improved Order of Heptasophs, 55 S.E. 9, 11 (Va. 1906) (referring to suicide as a “crime”). See also Wackwitz v. Roy, 418 S.E.2d 861, 864 (Va. 1992) (“[(s)uicide . . . remains a common law crime in Virginia as it does in a number of other common-law states’’). % Thirty-five States have enacted statutes banning assisted sui- cide. ALASKA STAT. §11.41.120(a)(2) (Michie 1989); Ariz. Rev. STaT. ANN. § 13-1103(A) (3) (West Supp. 1995); Ark. Cope ANN. § 5-10-104(a)(2) (Michie 1993); CaL. PeNaL Cope §401 (Weat 1988); Coto. Rev. Stat. § 18-3-104(1)(b) (Supp. 1995); Conn. GEN. STAT. ANN. § 53a-56(a) (2) (West 1994) ; Det. Cope ANw. tit. 11, §645 (1995); FLa. STAT. ANN. § 782.08 (West 1992); Ga. Cope ANN. § 16-5-5(b) (1996); ILL. Comp. STAT. ANN. CH. 720, 20 plication of general homicide or common law principles." Although suicide assistance is not as common as suicide §65/12-81(a) (2) (Smith-Hurd Supp. 1996); IND. CODE ANN. § 35-42-1-2.5(b) (Michie Supp. 1996); lowa S.F. 2066, to be codi- fied as 1owA Cope §707A.2 (Supp. 1996); KAN. STAT. ANN. § 21-8406 (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. Cope ANN. § 97-3-49 (1994) ; Mo. ANN. STAT. § 565.023.1(2) (West Supp. 1996) ; Monr. Cope ANN. § 45-5-105 (1995); Nes. 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. Pena Law §§ 120.30, 125.15(3) (McKinney 1987) ; N.D. CENT. Cope § 12.1-16-04 (Supp. 1995); OKLA. Stat. ANN. tit. 21, §§ 813, 814, 815 (West 1983) ; Or. Rev. STaT. § 163.125(1) (b) (1993) (although Oregon allows physician-assisted suicide under certain circumstances, see Orn. Rev. STAT. § 127.800 et seq. (1996), assisted suicide remains generally illegal); Pa. Cons. STAT. ANN. tit. 18, § 2505(b) (West 1983); R.I. Pub, Act 96-133, to be codified as RJ. Gen. Stat. tit. 11, ch. 60; S.D. Copirmp Laws ANN. § 22-16-37 (Michie 1988); TENN. Cope ANN. § 39-13-216 (Supp. 1995): Tex. PENAL Cope ANN. § 22.08 (West 1994); WASH. Rev. Cope ANN. § 9A.86.060 (West 1988); Wis. Stat. ANN, § 940.12 (West 1996). 14 Idaho: IDAHO Cope § 18-803 (1987) (adopting common law crimes). Ohio: Blackburn v. State, 23 Ohio St. 146 (1872) (man con- victed of murder for preparing poisonous concoction and giving it to his wife, who drank it intending to kill herself). South Carolina: State v. Levelle, 13 S.E. 819, 321 (S.C. 1891) (“suicide is an unlawful act, an act malum in se, and is a felony”). Since suicide was a felony, assisted suicide would have been crim- inal, also. See also State v. Jones, 67 S.E. 160, 162, 165 (S.C. 1910). For the modern statutory codification of common law crimes, see S.C. Cope ANN. § 16-1-110 (Law Co-op. Supp. 1995). Vermont: VT. STAT. ANN. tit. 1, § 271 (1996) (adopting common law). See State v. Stanislaw, 573 A.2d 286, 289 (Vt. 1990) (recog- nizing common law crimes) . West Virginia: State v. General Daniel Morgan Post No. 548, 107 S.E.2d 353, 357 (W. Va. 1959) (adopting common law crimes). For Alabama, Maryland, Massachusetts, Michigan, North Carolina and Virginia, see the authorities cited in n.12, supra. 21 itself, the States do enforce their assisted suicide laws.” Moreover, suicide assistance is often prosecuted as a form of homicide, independent of any assisted suicide statute, where am” person actively assists another in killing Second, nearly one-half of the States allow both pri- vate and public actors to use nondeadly force to thwart suicide attempts.” Third, all States provide for the tem- 1 See, e.g., Hinson v. State, 709 S.W.2d 106 (Ark. 1 ; In re Joseph G., 667 P.2d 1176 (Cal. 1988); In re Pr dois “ Keddie, 1990 WESTLAW 96595 (Del. Super. 1990) (noting plea of guilty to promoting a suicide); State v. Bauer, 471 N.W.2d 363 (Minn. App. 1991) ; Commonwealth v. Swartzentruver, 389 A.2d 181 (Pa. Super. 1978); Chanslor v. State, 697 S.W.2d 398 (Tex. Cr. App. 1985) (noting that defendant could have been charged with assisted suicide in obtaining poison to give to his wife). See also pr yey dewy — 1, 1996, Al8 (reporting man’s plea of ytoa manslau mae “1 ghter for assisting his wife in commit- 1 See, e.g., People v. Cleaves, 280 Cal. Rptr. 146 (Ct. App. 1991) (second degree murder) ; State v. Marti, 290 N.W.2d 570 (la. 1980) (involuntary manslaughter); Persampieri v. Commonwealth, 175 N.E.2d 387 (Mass. 1961) (involuntary manslaughter); State v. a ty Ay ory 1979) (negligent homicide); State +. 280N, } (N.M. 1994) (murder); People v. N.E.2d 814 (N.Y. 1992) (manslaughter). ' - econo 17 See ALA. Cope § 13A-8-24(4) (1994) ; ALASKA STAT. § 11.81.4- 30(a)(4) (Michie Supp. 1989); Ariz. Rev. STAT. ANN. § 13-408(4) (West 1989); Ark. Cope ANN. § 5-2-605(4) (Michie 1993); CoLo. Rev. STAT. § 18-1-703(1) (d) (West 1990); Conn. GEN. STAT. ANN. § 568a-18(4) (West 1994) ; DEL. Cope ANN. tit. 11, § 467(e) (1995) ; Haw. Rev. Stat. § 703-308(1) (1985); Ky. Rev. Stat. § 503.100 (1) (a) (Michie 1990); Me. Rev. Stat. ANN. tit, 17-A, § 106(6) (West 1983); MINN. STAT. ANN. § 609.06(8) (West 1987); Mo. ANN. STAT. § 563.061(5) (West 1979); Nesp. Rev. Stat. § 28- 1412(7) (Michie 1995); N.H. Rev. Stat. §627:6(VI) (1996): N.J. Stat. ANN. §2C:3-7(e) (West 1995); N.Y. Penan Law § 35.10(4) (McKinney 1987); N.D. Cent. Cope § 12.1-05-05(5) (1985); OKLA. STaT. ANN. tit. 21, §643(6) (West 1996); Or. Rev. Stat. § 161.205(4) (1993); Pa. Cons. STAT. ANN. tit. 18, § 508(d) (West 1983) ; TENN. Cope ANN. § 39-11-6183 (1991); Tex. PENAL CoDE ANN. §9.34(a) (West 1994); Wis. STAT. ANN. § 939.4815) (West 1996). 22 porary involuntary commitment of individuals who, as a result of mental disease or illness, may harm themselves. Finally, despite occasional instances of jury nullification or discretionary decisions not to prosecute, acts of “mercy- killing” or active voluntary euthanasia always have been considered as homicide. The law does not accept the con- sent of the victim as a defense to a charge of homicide, nor benevolent motive as an excuse.” In light of this overwhelming legislative and judicial consensus,” which the Ninth Circuit largely ignored, it 18 See, e.g., N.Y. MENTAL Hyc. Law, § 9.01 ef seq. (McKinney 1996) ; WasH. Rev. Cope ANN. § 71.05.020 et seq. (West 1992). 19 See, e.g., Gospodareck v. Stat, 666 So.2d 835, 842 (Ala. Cr. App. 5908) ; People v. Matlock, 336 P.2d 505 (Cal. 1959); In re Thomas C., 228 Cal. Rptr. 430 (Ct. App. 1986); Ragan v. State, 599 So.2d 276 (Fla. Dist. Ct. 1992); Gentry v. State, 625 N.E.2d 1268 (Ind. App. 1994) ; State v. Cobb, 625 P.2d 1133, 1135-36 (Kan. 1981); State v. Ludwig, 70 Mo. 412, 415 (1879); State v. Fuller, 278 N.W.2d 756, 761 (Neb. 1979); Edinburgh v. State, 896 P.2d 1176, 1178-80 (Okla. Cr. App. 1995); State v. Bouse, 264 P.2d 800, 812 (Or. 1953), overruled on other grounds, State v. Fischer, 876 P.2d 418 (Or. 1962), State v. Brewton, 395 P.2d 874 (Or. 1964) ; Turner v. State, 108 S.W. 1139, 1141 (Tenn. 1907) ; Goodin v. State, 726 S.W.2d 956, 957-58 (Tex. Cr. App. 1987); Martin v. Common- wealth, 37 S.E.2d 43, 47 (Va. 1946). See also State v. Mays, 307 S.E.2d 655 (W. Va. 1983). 2 People v. Conley, 411 P.2d 911, 998 (Cal. 1966) (“one who commits euthanasia bears no ill will tow.