Amicus Curiae Brief — Vacco v. Quill

4) " Supreme Court, U.S

ae v7 FILED

Nos. 95-1858 and 96=110

}

‘ 12 1996

CE OF int CLERK

In the Supreme Court of the United

October Term, 1996

DENNIS C. VACCO, Attorney General of the State of

New York; GEORGE E. PATAKI, Governor of the State

of New York; and ROBERT M. MORGENTHAU, District

Attorney of New York County

Petitioners,

v.

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

AND HOWARD A. GROSSMAN, M.D..,

Respondents.

STATE OF WASHINGTON, CHRISTINE O. GREGOIRE,

Attorney General of Washington,

Petitioners,

v.

HAROLD GLUCKSBERG, M.D., ABIGAIL HALPERIN, M.D.,

THOMAS A. PRESTON, M.D., and PETER SHALIT, M.D., PH.D.,

Respondents.

BRIEF OF SENATOR ORRIN HATCH, CHAIRMAN OF THE

SENATE JUDICIARY COMMITTEE; REPRESENTATIVE

HENRY HYDE, CHAIRMAN OF THE HOUSE JUDICIARY

COMMITTEE; AND REPRESENTATIVE CHARLES CANADY,

CHAIRMAN OF THE SUBCOMMITTEE ON THE

CONSTITUTION OF THE HOUSE JUDICIARY COMMITTEE,

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

MICHAEL W. MCCONNELL

1111 E. 60th Street

Chicago, IL 60637

(801) 581-6342

Counsel for the Amici

NOVEMBER 12, 1996 i"

SS ; \

Page

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I. Assisted Suicide Involves Highly Contested Issues Of

TABLE OF CONTENTS

Morality And Public Policy, Which The Judiciary Is Ill-

DD <cdeecdgnahda606e es 660.0004

A. Laws Against Assisted Suicide Are Supported By

Serious And Substantial Ethical Justifications

B. Constitutional Judicial Review Is Too Inflexible An

The Decision Of The Ninth Circuit Is Antithetical To

This Court's Traditional Approach 10 Interpreting The

Fourteenth Amendment ...........505eeeues

A. The Fourteenth Amendment Takes Its Bearings From

The Experience Of The Nation, Not From The

Moral Intuitions Of Federal Judges ..........

Note Rather Than A Precedent.............

C. The Asserted Right To Assisted Suicide Is Not A

Fundamental Right Under The Fourteenth

DE 2240666680660 060 ee6 60 Gps

SEE “RG dccccdaedocedcncocrcecaceces

10

15

15

22

TABLE OF AUTHORITIES

Cases Pages

Burnham v. Superior Court, 495 U.S. 604

GED cccccéiiweceséeeense ees eee besbs ena 21

Carolene Products vy. United States, 323

Ce CGD o.6ncs ceeds ee woed wctowee ben 14, 15

Collins v. City of Harker Heights, 503 U.S.

SEDGE cccceeectwdeecdeseeeuéuceebues 24

Commonwealth v. Mink, 123 Mass

GERGEETD cc cceceecesecasecetoneseveseun 28

Corfield v. Coryell, 6 Fed. Cas. 546 (1823) ...... 17-21, 24

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

Tl Perr ear Pera a y

Dred Scott v. Sandford, 60 U.S. (19 How.)

Ree eer rrr se 18

Erie R.R. Co. v. Tompkins, 304 U.S. 64

GD on 0.60 0 06000600 24900 06548685,6 089 0&8 19

| . Connecticut, 381 U.S. 479

one) . ¢he dh beteenie bt bebessneken 20, 21, 23

ifornia, 110 U.S. 516

i OES aes 21,2

Lochner v. New York, 198 U.S. 45 (1905) ......... 19, 20

Marbury v. Madison, 5 U.S. (1 Cranch)

SPUD « éaas's abe bebe oecervesées 15, 21

Meyer v. Nebraska, 262 U.S. 390 (1923) ...... 2.6.45. 20

Michael H. v. Gerald D., 491 U.S. 110 (1989) ......... 20

Moore v. City of East Cleveland, 431 U.S.

GOGED vcs necdéudeees 6000666000565 20, 23

iv

TABLE OF AUTHORITIES - Continued

Pages

Murray's Lessee v. Hoboken Land and

Co., 59 U.S. (18 How.)

i Aired b tuldimtadd dt hwoiw@s détd-s 18-21, 24

Planned Parenthood v. Casey, 505 U.S

ne a eee 12, 21, 23, 24

Poe v. Uliman, 367 U.S. 497 (1961)... .......... 20, 21

Reno v. Flores, 113 S. Ct. 1439 (1993) ........... 24, 26

Rodriguez v. British Columbia

General), [1993], 3 S.C_R.

EER TI re oe ee eee 26

Roe v. Wade, 410 U.S. 113 (1973) .............. 22, 23

-House Cases, 83 U.S. (16 Wall.) 36

ch kea dba Ces oO ce Seb bo 6's é84 16

Snyder v. Massachusetts, 291 U.S. 97

SE bP ob o WE OPE CU SUR WEN Gs Uw cw édesces 20

State v. Marti, 290 N.W.2d 570

oN Wn Ch UU Rd 66 oShEWa s Sa & ows dled 28

Statutes

720 Ill. Comp. Stat. Ann. § 5/12-31(ay2).... 2... 8... 25

Ind. Code Ann. § 35-42-1-2.5(b) .................. 25

RE A tl” ee eee 25

ee ee 25

Si Cs OL, “GOL ch ecabecievews 25

Mich. Comp. Laws Ann. § 752.1027 ............... 25

N.D. Cent. Code § 12.1-16-04

v

TABLE OF AUTHORITIES - Continued

Pages

RI. Gen. Seat. tit. 11,§@ .. 1... eee errr e eens 25

Tenn. Code Ann. 39-13-216 ........ 55s e eee eeeees 25

Miscellaneous

Alvarez, A., THE SAVAGE GOD (1971) ... 2... - eee ues 27

Amar, Akhil R., The Bill of Rights and the

Fourteenth Amendment, 100 Yale L. J. ,

TY eer rite kee l

Aristotle, NICOMACHEAN rs ee 27

Assisted Suicide in the United States: Hearings

Before the Subcommittee on the Constitution

of the House Committee on the Judiciary,

Serial No. 78 (Apr. 29, 1996) .........-.555: passim

FOURTEENTH AMENDMENT (1977) ......--+5555 16

Bork, Robert, THE TEMPTING OF AMERICA: THE

POLITICAL SEDUCTION OF THE LAW (1990) .......... 16

Brock, Dan W., Voluntary Active Euthanasia,

Hastings Center Rep., Mar.-Apr. 1992 ....... Tiet 8

Brown, J.H. et al., ls it Normal for Terminally

Ill Patients to Desire Death?, 143 Am. J.

of Psychiatry (1986) .... 2... eee eee ere eens 6

Calabresi, Guido, IDEALS, BELIEFS, ATTITUDES,

AND THE LAW (1985) ... 2... 6-6 ee eee eee 23

vi

TABLE OF AUTHORITIES - Continued

Curtis, Michael Kent, NO STATE SHALL ABRIDGE:

Se a beh hie weREA we es 66's 60 00s 14, 15

Ginsburg, Ruth Bader, Speaking in a Judicial

Voice, 67 N.Y.U. L. Rev. 1185 (1992) ............

Gomez, Carlos F., REGULATING DEATH: EUTHANASIA

AND THE CASE OF THE NETHERLANDS (1991)

, J.W., FUNDAMENTAL LAW IN ENGLISH

a

Harrison, John, Reconstructing the Privi

— 100 Yale L.J. 1385

Kamisar, Yale, The “Right to Die

(And Erasing) Lines, 35 Duq.

: On Drawing

VT =a ee eae eee eee ee aay 6&6 8.64 & 6 Se

Keown, John, Further Reflections on Euthanasia

Se Seen aes

Remmelink Report and the Var Maas

Survey, in Lucke Gormally, ed., EUTHANASIA:

CLINICAL PRACTICE AND THE LAW 193 (1994)

ig, Harold G., et al., Attitudes of Elderly

a Patients and Their Families Toward Physician-

Assisted Suicide, 156 Archives of Internal

Med. 2240 (Oct. 28, 1996)

pee ese eaeewe = ee @ ee eo O's 2 @ 2 6

Vii

TABLE OF AUTHORITIES - Continued

Kurland, Philip B., The Privileges or Immunities

Clause: “Its Hour Come Round At Last?",

— 4 Se & Ff PPPTririri cere 16

Kreimer, Seth, Does Pro-Choice Mean Pro-Kevorkian?

An Essay on Roe, Casey, and the Right to Die,

Sp, Gis EP Ah cbceeceveeseeetes 22

a. Michael W., Originalism and the

in ene enn ae ee 6 eee €& eee e& 8 eS Be

McConnell, Michael W., The Fourteenth

Amendment: A Second American Revolution

or the Logical Culmination of the Tradition ?,

y FP ree © PT EEE 19

Miller, Franklin G., ng Physician-Assisted

Suicide by Judicial stom: A Critical

raisal, 2 BioLaw S:136 (Special Section,

SPEER, TESED cb cbc cee bae Peles vote ccesss 12

Minow, Martha, MAKING ALL THE DIFFERENCE:

INCLUSION, EXCLUSION AND AMERICAN LAW (1990) .. . . 23

MODEL PENAL CODE § 210.5(2) (Official Draft

and Revised Comments 1980)

Murphy, Walter E., Slaughter-House, Civil Rights,

and the Limits on Constitutional Change, |

Am. J. of Jurisprudence | (1987) ............055. 16

Nelson, William E., THE FOURTEENTH AMENDMENT:

(1908 POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE “4

D cc cccded beds pede Se EMEP ee wees vss

New York State Task Force on Life and the Law,

When Death Is Sought: Assisted Suicide and

Euthanasia in the Medical Context (1994) ........ passim

Opinion of the Council on Ethical and Judicial Affairs,

American Medical Association, Opinion2.211........ 5

viii

TABLE OF AUTHORITIES - Continued

Pages

Pocock, J.G.A., THE ANCIENT CONSTITUTION

ANI THE FEUDAL LAW 30-36 (1957) .............. 17

Posner, Richard, SEX AND REASON (1992) ............ 23

Report of the Select Committee on Medical

Ethics, House of Lords, Sess. 1993-94............. 2

Sunstein, Cass R., THE PARTIAL

ET a ee ea 23

Tribe, Laurence H., ABORTION: THE CLASH OF

REE © et Ot 23

Tribe, Laurence H., American Constitutional Law

ibaa Kiet ae nad dich Waleed & 6 iecema 4s 5

INTEREST OF THE AMICI

These amici curiae have the honor of serving as chairmen of

the Judiciary Committees of the United States Senate and House of

Representatives, and of the Subcommittee on the Constitution of the

House Judiciary Committee. In that capacity, the amici are directly

concerned with the relationship of judicial and legislative authority

under the Constitution. In addition, amici Hyde and Canady have

conducted hearings on the subject of assisted suicide in the United

States.

ARGUMENT

This amicus curiae brief is addressed to the most fundamental

question of modern constitutional theory: When, and under what

conditions, may courts invalidate duly enacted state or federal laws

on the basis of unenumerated constitutional rights? Put differently:

What are the respective roles of courts and legislatures in resolving

contested questions of justice and political morality? On the one

hand, we recognize that over the 209 years since adoption of the

Constitution, the courts have, from time to time, exercised the

power of judicial review in cases not compelled by the plain text of

the Constitution, and rightly so. On the other hand, an unbridled

power — whether called “substantive due process” or something

else — to invalidate laws whenever five or more members of this

Court deem them unwise or unjust would displace the legislative

branch as the primary lawmaker. The purpose of this brief is to

show that a principled middle ground exists, in which the courts

may recognize and enforce constitutional rights in a fashion that

gives due respect to the coordinate branches of government and the

traditions of the people.

Under this approach, which is based on the text and history of

the Fourteenth Amendment as well as leading precedents of this

Court, the decisions of the courts below must be reversed.

Assisted suicide is not, and never has been, recognized by this

Nation as a protected constitutional right. In this brief, we focus

on the due process argument of the Ninth Circuit, leaving the

argument of the Second Circuit to others. But the institutional,

prudential, and logical considerations we address apply to both

decisions.

A. Laws Against Assisted Suicide Are Supported By

Serious And Substantial Ethical Justifications

We begin with a statement that may seem obvious, but must

be the starting point for thinking about this constitutional

controversy: the laws against assisted suicide have substantial

moral and political justifications. These laws cannot be dismissed

as arbitrary, antiquated, or unthinking.

Thoughtful and experienced doctors, ethicists, philosophers,

lawyers, theologians, and advocates for patients have offered cogent

reasons why assisted suicide should not receive the formal sanction

of law. The professional associations in the disciplines closest to

the problem — the American Medical Association, the American

Psychological Association, the American Geriatric Society, and the

American Bar Association among them — have all concluded that

assisted suicide should not be made legal. The two most thorough

and distinguished studies undertaken of the issue — one under the

auspices of the State of New York and one under the auspices of

the British House of Lords — beth resulted in unanimous

recommendations that laws against assisted suicide (as well as

euthanasia) should be retained. New York State Task Force on

Life and the Law, When Death Is Sought: Assisted Suicide and

Euthanasia in the Medical Context (1994) {hereinafter cited as

“NEw YORK REPORT”); Report of the Select Committee on Medical

Ethics, House of Lords, Sess. 1993-94. On April 29, 1996, the

Subcommittee on the Constitution of the Committee on the

Judiciary of the House of Representatives conducted hearings in

which ethicists, physicians, legal experts, and specialists in the care

of terminally ill, suffering, and disabled patients presented their

perspectives on the issue. Assisted Suicide in the United States:

Hearings Before the Subcommittee on the Constitution of the House

Committee on the Judiciary, 104th Cong., 2d Sess. (1996)

{hereinafter cited as “HOUSE HEARINGS”]. We commend those

reports and hearings to this Court's attention.’

' For the convenience of the Court, we have lodged copies of the HOUSE

3

We will briefly summarize some of the reasons for prohibiting

assisted suicide set forth in these sources, not because we believe

the Court should resolve the underlying moral-political dispute, but

because the lower courts’ decisions were based on a mistaken belief

that there are no plausible state interests (excluding religious

dogma) in protecting the life of a terminally ill patient. In reaching

their conclusions, the courts gave no deference to the nearly

unanimous judgments of state legislatures and state courts, nor to

the similar conclusions of distinguished ethicists, physicians, and

others who have devoted their lives to the care of suffering

patients. Judge Reinhardt’s opinion for the Ninth Circuit dismissed

contrary opinions as “cruel” (Pet. App. A75), “untenable” (id. at

A76), “disingenuous and fallacious” (id. at A85), “meretricious”

(id.), “ludicrous,” (id.), and “nihilist” (id. at A98). The court

praised its own view as “more enlightened” (id. at A76). The

court characterized hundreds of years of common law precedent as

“taboos,” linked to superstition (id. at A46); brushed aside the

central text of medical ethics, the Hippocratic Oath, saying that it

“does not represent the best or final word on medical or legal

controversies today” and that to follow it “literally” would be

“preposterous” (id. at A95); and criticized arguments made by the

(among others) as reflecting “a misunderstanding of the proper

function of a physician” (id. at A91). The sublime arrogance of

these judicial pronouncements highlights the danger of allowing

poe ee ae ge tm onrengae ge

on is of their own (often ill-i i i

intuitions. ary ag serpin

Although there are many arguments in favor of laws

prohibiting assisted suicide, we will summarize four of the most

important.

First, even assuming arguendo that in a limited number of

cases assisted suicide might be ethically permissible, many

knowledgeable observers believe that the problems of abuse would

be so widespread and uncontrollable that formal legal and ethical

HEARINGS with the Clerk. We understand that copies of the New York and House

of Lords reports have been lodged by others.

4

prohibition remains necessary.’ The harsh reality is that a more

expeditious death for terminally ill patients would often serve the

interests of others, especially in this era of managed care and

exploding medical costs. A patient weakened by illness and pain

is peculiarly susceptible to influence from family members or

doctors who are in a position of trust. It will not be difficult for

these individuals, for their own reasons, to exert subtle — but

powerful — pressure on a frail patient to “choose” the convenient

option of a speedy death. Even the suggestion by a well-meaning

doctor that a patient should consider the option of death will

inevitably convey the message that — in the doctor’s informed

professional opinion — her life is no longer worth living.’

For every suffering person who makes a rational, informed

choice to die, there will be others — perhaps many times as many

— on whom that “choice” is effectively imposed. And there will

be no way to tell the difference.

Safeguards, no doubt, will be proposed. Indeed, the Ninth

Circuit professed faith that “sufficient protections” can be enacted.

Pet. App. A103-A104. Unfortunately, these were expressions of

hope rather than descriptions of experience. Many physicians and

ethicists doubt that effective safeguards can be devised or enforced

— especially since typically no one involved in the death will have

the incentive to expose wrongdoing, and the interactions involved

are cloaked in the confidentiality of the doctor-client relationship.

The American Medical Association’s code of Medical Ethics, for

example, rules out physician-assisted suicide partly on the ground

2 See NEw YORK REPORT, at xii, 102, 119-20, 140.

> See Testimony of Dr. Herbert Hendin, HOUSE HEARINGS at 113; Leon Kass

& Nelson Lund, Physician-Assisted Suicide, Medical Ethics and the Future of the

Medical Profession, 35 Duq. L. Rev. 395, 409 (1996).

5

that it “would be difficult or impossible to control.” Even

counsel for the respondents, Professor Tribe, has observed:

[T}he judiciary’s silence regarding [the right to determine

when and how to die] probably reflects a concern that, once

recognized, rights to die might be uncontainable and might

prove susceptible to grave abuse * * * . [T]he resulting

deference to legislatures may prove wise in light of the

complex character of the rights at stake and the significant

potential that, without careful statutory guidelines and

gradually evolved procedural controls, ‘egalizing euthanasia,

rather than respecting persons, may endanger personhood.

Laurence H. Tribe, American Constitutional Law, § 15-11, at 1370-

71 (2d ed. 1988).

The specter of widespread abuse and exploitation is not based

on mere speculation. Studies of assisted suicide and euthanasia in

the Netherlands, where safeguards are stringent on paper, show that

those safeguards are routinely disvegarded. Although medical

guidelines recognize the right to die only based on the patient’s

own informed and voluntary decision, a survey of 300 physicians

disclosed that over 40 percent had performed euthanasia without

explicit consent. In 1990, in addition to 2,300 cases of active

euthanasia with consent and 400 cases of assisted suicide, there

were over 1,000 cases of active nonvoluntary euthanasia performed

without the patient’s knowledge or consent, including roughly 140

(14 per cent) where the patient was fully competent. Comparable

rates of nonvoluntary euthanasia in the United States would be

roughly 20,000 per year.’ And these numbers do not even include

* Opinion of the Council on Ethical and Judicial Affairs, American Medical

Association, Opinion 2.211. For the most extensive discussion of these issues, see

Daniel Callahan & Margot White, The Legalization of Physician-Assisted Suicide:

Creating a Regulatory Potemkin Village, 30 U. Rich. L. Rev. | (1996). See also

NEW YORK REPORT, at 73; Testimony of Dr. Lonnie Bristow on behalf of the

American Medical Association, HOUSE HEARINGS at 316-17 (“it is difficult to

decisions to request assisted suicide were unambivalent, informed and free of

coercion”); Testimony of Dr. Herbert Hendin, HOUSE HEARINGS at 115.

F See John Keown, Further Reflections on Euthanasia in the Netherlands in the

Light of the Remmelink Report and the Var Der Maas Survey, in Lucke Gormally,

6

cases where “consent” was extracted by means of undue influence,

psychological coercion, or skewed information.

Giving choices to the vulnerable is not always liberating. A

young woman is not more “free” if the law allows her to contract

with a pimp; a young man is not more “free” if a pusher can sell

him crack cocaine; a child is not more “free” if he or she can

“consent” to sexual advances by adults; people are not more “free”

if they can voluntarily sell themselves into slavery. Nor is an ill

person necessarily more “free” if he can agree to kill himself.

Indeed, the mere availability of assisted suicide as a socially-

legitimated alternative may impel some who would prefer to live to

accept this course out of feelings of guilt or shame about the

burdens (financial and otherwise) that the choice of continued living

would impose on their families. These laws are not an instance of

some people “imposing their morality” on others. They result

from citizens reflecting on the conditions that they may face at the

end of life, and establishing rules that will protect all of us, when

we are weakest and most vulnerable.

Second, if patients’ requests for assistance in suicide are

honored, many will die unnecessarily. According to medical

experts, the desire to commit suicide (even among the terminally

ill) is typically associated with clinical depression, which is a

treatable disease. The New York State Task Force reported:

“Studies that examine the psychological background of individuals

who kill themselves show that 95 percent have a diagnosable mental

disorder at time of death. Depression, accompanied by symptoms

of hopelessness and heiplessness, is the most prevalent condition

among individuals who commit suicide.” NEW YORK REPORT at

11; see also id. at 13 (“In one study of terminally ill patients, of

those who expressed a wish to die, all met diagnostic criteria for

major depression”); J.H. Brown, et al., /s it Normal for Terminally

Ill Patients to Desire Death?, 143 Am. J. of Psychiatry 208 (1986).

ed., EUTHANASIA: CLINICAL PRACTICE AND THE Law 193, 209, 221-25 (1994);

Callahan & White, supra, 30 U. Rich. L. Rev. at 15-18. See also Carlos F.

Gomez, REGULATING DEATH: EUTHANASIA AND THE CASE OF THE NETHERLANDS

(1991); Testimony of Dr. Herbert Hendin, HOUSE HEARINGS at 106-13, 114-15.

* See Testimony of Dr. Herbert Hendin, HOUSE HEARINGS at 103-06

7

When treated for depression, patients typically cease to desire

suicide. NEW YORK REPORT at 26 (treatment of depression

“resulted in the cessation of suicidal ideation for 90 percent of these

patients”).

Much of the desire to commit suicide is also traceable to

insufficiently aggressive measures to alleviate pain.’ When a

suicidal patient is helped to deal with pain and depression, he or

she typically is restored to the natural desire to live. To give

patients the “right” to obtain assistance in suicide is to license the

killing of persons who often are simply in need of help, which

modern meJicine can give. Professor Herbert Hendin, a professor

of psychiatry at New York Medical College, testified:

Patients who request euthanasia are usually asking in

the strongest way they know for mental and physical

relief from suffering. When that request is made to a

address their fear, relieve their suffering, and assure them

that he or she will remain with them to the end, most

patients no longer want to die and are grateful for the

time remaining to them.

HOUSE HEARINGS at 115-16.

Since American doctors are notoriously uninformed about

proper pain prevention techniques," as well as depression,” it is

almost certain that many people will be induced to die when instead

they could receive effective palliative treatment." The ethical

” New York REPORT, at 16-17; Testimony of Dr. Lonnie Bristow on behalf

of the American Medical Association, HOUSE HEARINGS at 309-10.

. NEW YORK REPORT, at 33 (“pain is often overlooked by health care

providers”); id. at 43 (“the delivery of pain relief is grossly inad-.quate in clinical

practice”), Testumony of Dr. Kathleen Foley, Chief of Pain Service at Memorial

Sloan-Kettering Cancer Center, HOUSE HEARINGS at 18-20.

* NEw YorK REPORT, at 32; id. at 32-33 (study found that fewer than 15

percent of depressed residents of a nursing home for the elderly had been correctly

diagnosed, and fewer than 25 percent had been treated for depression).

"See NEW YORK REPORT, at 40 (“modern pain relief techniques can alleviate

problem is magnified by the fact that economically disadvantaged

patients and members of racial and ethnic minorities are the most

likely to lack proper treatment for pain and depression,'' and thus

the most likely to “choose” — unnecessarily — to die. Other

groups especially at risk are women and the elderly.’

Third, if death is defined as a “mercy,” it will be difficult to

justify refusing this mercy to broader and broader categories of

sufferers. It is therefore misleading to confine one’s attention (as

the lower courts did) to “competent, terminally il! adults who wish

to hasten their deaths by obtaining medication prescribed by their

doctors” (Pet. App. A116). For example, the moral arguments

i assisted suicide for terminally ill patients who are able

to self-administer the killing agent apply just as strongly to similar

patients who cannot do the deed for themselves. Thus, assisted

suicide will merge into voluntary active euthanasia." And the

moral arguments supporting assisted suicide for the termina!.y i!!

apply with as much force — maybe more — to persons who face

not a few weeks or months, but years of pain that seems to them

intolerable. Thus, assisted suicide for the terminally ill will almost

surely merge into assisted suicide for those with incurable chronic

pain in all but extremely rare cases”); Testimony of Dr. Lonnie Bristow on behalf

of the American Medical Association, HOUSE HEARINGS at 31; , 314-15

" New York REPORT, at 44, 46; Testimony of Dr. Carlos Gomez, House

Hearings at 412.

2 New York REPORT at 44; see also id. at 33.

tis a striking example of the illogic of the decisions below that they declare

treatment to be a distinction without a difference, only to propose new distinctions

that have far less logical, empirical, or ethical justification. See Yale Kamusar, The

Right to Die: On Drawing (And Erasing) Lines, 35 Duq. L. Rev. 481 (1996).

“ Jd. at $13-19; Dan W. Brock, Voluntary Active Euthanasia, Hastings Center

Rep., Mar.-Apr. 1992. Indeed, the Ninth Circuit intimated that a did not regard

significam. Pet. App. A100-101.

9

conditions.'° Persons with serious disabilities will be particularly

at risk." And (as cases like Cruzan so eloquently demonstrate),

the argument for assisted suicide for competent adults will apply

with seemingly equal force to those unable to consent for

themselves, whose “right to die” will be exercised by surrogates.

If death is seen as a mercy, why confine it to those fortunate

enough to be able to consent? The same corrosive skepticism that

the courts below evinced toward the distinction between refusal of

treatment and active assisted suicide will be equally potent to

dissolve all of the other limitations on this newfound right.

It is even difficult to understand why, under the reasoning of

the Ninth Circuit, the mercy of assisted suicide should be denied to

persons who, for reasons other than ill health, conclude that the

suffering of life is unbearable. Physical pain and impending death

are not the only — and not necessarily the most serious — reasons

to desire a release from these mortal coils. Many of the examples

in the lower court’s opinion of suicide in other cultures involve

suicide for reasons of honor, guilt, or grief. Pet. App. A40-A42.

Patients are free to refuse life-sustaining treatment for any reason

whatsoever. Once we conclude that death is a matter of personal

autonomy — of privacy — where can we stop?'’

Fourth, and most fundamentally, by making death a legally

available “choice,” we will inevitably change the way our culture

perceives the final stages of life. When death is not an official

option, the focus of the patient, the patient's family, the doctor, and

the system is on what can be done to make the patient's life easier

and better. If death becomes an approved social option, both the

patient and the system will tend, instead, to focus on whether

continued care is “worth it.” The patient, aware of the burden she

is imposing on loved ones, may well conclude that she “owes it”

" See Kamisar, supra, 35 Dug. L. Rev. at 502-13.

* Testimony of Diane Coleman, in HouSE HEARINGS, at 53-54; Statement of

Diane Coleman and Carol Gill, id. at 53-70.

" The implications of this decision extend beyond assisted suicide and

euthanasia. For example, what will be the effect on laws allowing the use of

physical force to prevent suicide”

10

to her family to commit suicide. The decision to cling to life may

come t© be regarded as wasteful, irrational, and selfish. In the

uniquely vulnerable circumstances of the lingering patient, the

“right to die” will become, for many, the duty to die. See NEW

YORK REPORT at 95. One blessing of the current law ‘* that it

relieves the elderly and the infirm of the need to justify tieir

continued existence.

Even if the laws against assisted suicide are rarely enforced,

they still have the effect of expressing society's deep commitment

to the protection of human life. In combination with the ethical

precepts of the medical profession, these laws ensure that assisted

suicide remains a highly exceptional activity, rarely suggested or

initiated by physicians. If assisted suicide is recognized as a

“right,” it will become both routinized and common. It is not

obvious that patients would be better off.

These are among the reasons that have persuaded the New

York legislature and the people of the State of Washington (along

with most other states) to retain their laws against assisted suicide.

These amici find the arguments compelling. We fear the

consequence of the liberation of death, especially for the most

vulnerable among us. But we do not ask this Court to adopt our

view of the moral consequences of legalized assisted suicide.

Indeed, the point we wish to make is that this case should not be

decided on the basis of the Justices’ own assessment of the weight

of the competing moral arguments. Rather, as members of the

legislative branch of government, we maintain that this is not a

question for courts to decide — or more precisely, that there is no

legitimate basis in the Constitution of the United States for

overturning the laws that have been enacted by the various states on

B. Constitutional Judicial Review Is Too Inflexible An

Instrument For The Decision Of Such Questions

Even apart from the specifics of constitutional doctrine, there

is every reason for courts to be wary about overturning duly

enacted legislation on the basis of untried and uncertain moral and

philosophical arguments, where the result is bereft of support in

directly relevant constitutional text or in national experience. It

may well be true that attitudes about the end of life have changed,

-_—_—_

or will change, in response to technological developments and their

attendant economic and emotional consequences. But it would be

a grave mistake for the federal courts to leap in and attempt,

prematurely, to resolve the issue or to accelerate the pace of

change. Even on the heuristic assumption that laws against assisted

suicide and euthanasia should be relaxed (which these aynici doubt),

it is better that reform take place in decentralized and accountable

The great institutional strength of courts is their ability to

across parties, regions, and time periods, treating like cases alike.

Where operative principles are in flux and the consequences of new

approaches are unpredictable, however, that virtue becomes a vice.

Constitutional judicial review is too inflexible a process to deal

sensitively and appropriately with a matter such as this.

First, by locating the right to die in the federal constitution,

possibility of state variation and experimentation. Justice

Brandeis’s characterization of the states as “laboratories of

democracy” is no cliche; it is an apt description of one of the

principal virtues of a federal system. In this case, there is no

serious argument that national uniformity is necessary or even

desirable. The State of Oregon has undertaken an experiment in

physician-assisted suicide that — hovvever misguided it may appear

to many of us — will cast light on the practical consequences: on

the efficacy of the safeguards against abuse, on the ability of the

medical profession to recognize and treat clinical depression and

pain in patients requesting suicide, on the robustness of the lines

drawn between permitted and forbidden forms of the right to die,

and on the danger that death will come to be perceived as a duty

owed to family and society. To treat this social policy question as

controlled by federal constitutional law is to eliminate the

possibility of a multiplicity of approaches, and of regional variation

in light of differences in social and moral perceptions.

Even a leading advocate of physician assisted suicide, and

right to die should be the subject of legislative reform rather than

judicial fiat:

12

Legalization of physician assisted suicide should be understood

not as a matter of recognizing rights but as a policy aimed at

making available a compassionate option of last resort for

competent, terminally ill patients. Since we do not know

whether such a policy will produce more good than harm, it

should be viewed as an experiment.

Our federal system of government has often been touted as

offering “a laboratory of the states,” with which to experiment

concerning social policy. In the case of a morally

controversial issue, subject to competing arguments pro and

con, it is better that policy experimentation occur piecemeal,

by the various decisions of the legislatures or voters of the

states, rather than wholesale, by means of the constitutional

adjudication of the federal courts.

Franklin G. Miller, Legalizing Physician-Assisted Suicide by

Judicial Decision: A Critical Appraisal, 2 BioLaw S:136, S:144

(Special Section, July-Aug. 1996).

Second, by their nature constitutional judicial decisions must

be “grounded truly in principle”; they may not be “compromises

with social and political pressures.” Planned Parenthood v. Casey,

505 U.S. 833, 865 (1992). The lines drawn by courts, under the

authority of the Constitution, must be defensible at the level of

constitutional principle.

Yet not every aspect of social life can be governed by crisp

and principled rules. Sometimes, the best and most peaceful

solution to contentious moral conflicts in society is not to award the

brass ring to one side or the other, but to construct compromises

that allow each contending force to believe that the system has been

responsive to their deeply held convictions. Legislatures are good

at that. Whatever one may think of legislators as moral

deliberators, few would dispute that they have the expertise and

incentive to resolve social conflict in a way that minimizes political

Opposition and resistance. The legislative answer may not appear

pure from a philosophical or analytical perspective, but it is likely

to reduce social discord. And even if legislatures prove unable to

forge a stable consensus, contending social forces are more likely

to accept the outcome of a process in which their voices were heard

13

than an imposed solution in which their elected representatives were

not entitled to a significant role.

The right to die may well be such an issue. Certainly, the

public is serieusly divided. Passions run high. The various lines

that might be drawn — refusal of treatment versus suicide, assisted

suicide versus active euthanasia, terminal illness versus chronic pain

or disability, actual consent versus imputed consent, intolerable

pain versus other conditions that harm the quality of life, one set of

safeguards versus another, and so forth — are, each of them,

arbitrary in their own way. Each of them attempts to allow the

dying patient some greater degree of control over the circumstances

of his death, while at the same time upholding the society's

obligation to honor life and protect the vuinerable. Each tries to

reconcile two honorable impulses that are, in principle,

irreconcilable: autonomy and protection. Prudential compromises

are difficult to justify as interpretations of the Constitution, but are

the everyday product of legislative action.

Third, and most importantly, courts are seriously constrained

in their ability to change their policy in response to experience and

criticism. Each decision of the Court is said to be based on an

interpretation of the Constitution, and it strains public credulity that

the meaning of such an old document would change very rapidly,

very often. The doctrine of stare decisis thus creates a presumption

in favor of existing doctrine. Stability is a source of judicial

strength and legitimacy. But with this strength comes a caution:

just as the Court is properly reluctant to jettison a constitutional

doctrine that it has embraced, the Court should be reluctant to

embrace novel constitutional doctrines that may require

modification in the future.

This case is a perfect example. If the Court joins the lower

courts in creating a right to assisted suicide, neither Congress nor

the states will be able to explore contrary policies. If that judgment

proves to be misguided, great injury will have been done to

thousands of vulnerable persons, in every state in the Union, until

the Court brings itself to acknowledge the mistake and reverse the

decision. On the other hand, if the Court reverses the judgments

below, debate on the issue will proceed. The several states will be

free to pass laws allowing assisted suicide or euthanasia in such

circumstances and under such safeguards as they may deem

14

advisable. If experiments with liberalized laws on this subject are

successful, it is likely that still more states will follow suit. If they

prove misguided (as we expect), these states can reverse course,

and the other states will profit by their example.

One final observation about the institutional capacities of

courts and legislatures bears mention. Since the Carolene Products

decision, prominent strains of constitutional theory have maintained

that the judiciary should be most willing to intervene in cases where

the adverse consequences of the challenged law are borne by

discrete and insular minorities whose interests may not have

received their just weight in legislative deliberations. See generally

John Hart Ely, DEMOCRACY AND DISTRUST (1980). Whatever the

merits of that view, we wish to stress that it has no application to

this case. When the New York legislature decided to retain its laws

against assisted suicide, or the people of Washington made a similar

decision by referendum, they were not legislating for « discrete and

insular minority. They were legislating for themselves and for their

loved ones, behind a veil of ignorance that denies all of us the

knowledge of what our condition may be in the final days of our

lives. There is no reason to distrust the conclusions that they

reached

If anything, the biases of the political process run the other

way: in favor of fewer protections against euthanasia than may be

in the best interests of those immediately affected by the law.

Studies indicate that the frail eiderly, who are most likely to feel

the effects of the law in this area, are significantly less likely to

favor legalizing assisted suicide than the young and healthy.

Harold G. Koenig, et al., Attitudes of Elderly Patients and Their

Families Toward Physician-Assisted Suicide, 156 Archives of

Internal Med. 2240 (Oct. 28, 1996) (only 34% of elderly

outpatients favor legalizing physician-assisted suicide, as coupared

to 55.6% of their families; female, black, and econcinically

disadvantaged patients were most likely to oppose it). This is not

surprising. From the vantage point of youth and health, the quality

of life enjoyed by disabled, chronically ill, or dying people appears

excruciatingly low. But persons experiencing those conditions,

whose point of comparison is not youth and health but death, often

cling to life with increased tenacity. Self-interest, both individual

on the part of family members and collective on the part of health

15

care providers, also plays its part in shaping opinion on this issue.

The logic of Carolene Products, in this context, is that courts

should be more active in ensuring that the protections against

unwanted death are adequate than in ensuring that the political

process is sufficiently receptive to the right to die.

II. The Decision Of The Ninth Circuit Is Antithetical To This

Court’s Traditional Approach To Interpreting The

Fourteenth Amendment

A. The Fourteenth Amendment Takes Its Bearings From

The Experience Of The Nation, Not From The Moral

Intuitions Of Federal Judges

Constitutional judicial review had its birth in the recognition

that a written constitution reflects the limits that the people of the

United States have placed upon their government. Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It was no part of the

theory of judicial review that the courts are superior to the people

in their judgments of what those limits should be. It is revealing

that the examples deployed by Chief Justice Marshall in his great

exposition of the theory of judicial review consisted of explicit

limitations unambiguously violated by the government. /d. at 178.

In such cases, it was clear that judicial review served to enforce the

will of the people rather than the will of the judiciary.

Nonetheless, in the 209 years since the Constitution was

adopted, this Court has not infrequently held unconstitutional acts

of the political branches that do not violate any express provision.

The most common basis for so doing is the Due Process Clause of

the Fourteenth Amendment. This presents a jurisprudential

problem: The very language of the Due Process Clause, which

forbids the denial of life, liberty, or property without due process

of law, necessarily implies that states may deny life, liberty, and

property if due process of law is provided — unless some other

provision of the Constitution is implicated. The notion of

“substantive due process,” as many distinguished commentators

have pointed out, is an oxymoron — like “green pastel redness,”

in the famous comment of John Hart Ely. Democracy and Distrust,

supra, at 18.

From the perspective of text and history, the Privileges or

immunities Clause of the Fourteenth Amendment would appear to

16

be a more plausible basis for the protection of substantive rights

(whether incorporated from the Bill of Rights or based on other

sources) than the Due Process Clause. See id. at 22; Philip B.

Kurland, The Privileges or Immunities Clause: “Its Hour Come

Round At Last?" , 1972 Wash. U. L. Q. 405, 419. It provides that

“[n]Jo state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States.” As

discussed below, the language “privileges or immunities” was a

legal term of art that also appears in the Comity Clause of Article

IV, and that had been interpreted as referring to the essential rights

and freedoms recognized in the American constitutional

tradition."*

Why does this matter? Any constitutional jurisprudence of

substantive rights, if conducted under the rubric of the Due Process

Clause, must necessarily appear to be based on something other

than constitutional text and the authentic purpose of the Fourteenth

Amendment — indeed, such a jurisprudence will appear to have

been created by judges with no delegation of constitutional

authority by the people. Not only does this give the very idea of

'® This would require reconsideration of the reasoning (though not necessarily

the result) of the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), which

reduced this Clause to the redundancy of protecting only those rights already

protected under the Constitution and arising as a matter of federal citizenship. But

the overwhelming weight of historical and scholarly opinion is that Slaughter-

House was wrong in this regard. See, eg., Akhil R. Amar, The Bill of Rights and

the Fourteenth Amendment, 100 Yale L. J. 1193, 1257-59 (1992); Raoul Berger,

GOVERNMENT BY JUDICIARY: THE JUDICIAL TRANSFORMATION OF THE

FOURTEENTH AMENDMENT 37-49 (1977); Michael Kent Curtis, No STATE SHALL

ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 175-77

(1986); John Harrison, Reconstructing the Privileges or Immunities Clause, 100

Yale LJ. 1385, 1466-69 (1992); Walter E. Murphy, Slaughter-House, Civil

Rights, and the Limits on Constitutional Change, 1987 Am. J. of Jurisprudence

1, 1-8 (1987); William E. Nelson, THE FOURTEENTH AMENDMENT: FROM

POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 156-64 (1988). A rare exception

to this scholarly consensus is Robert Bork, THE TEMPTING OF AMERICA: THE

POLITICAL SEDUCTION OF THE LAW 36-39 (1990).

For an explanation by the author of this brief of the reasons why Slaughter-

House was inconsistent with the text and original meaning of the Fourteenth

Amendment, see Michael W. McConnell, Originalism and the Desegregation

Decisions, 81 Va. L. Rev. 947, 999-1000 (1995).

17

judicial protection of rights not specified by the text an undeserved

aura of illegitimacy, it also — and more importantly — deprives us

of a textual or historical basis for distinguishing between

responsible and irresponsible exercises of that judicial power. Once

it is recognized that the Privileges or Immunities Clause authorizes

protection for rights understood in a particular way, there is a solid

basis for distinguishing between legitimate and illegitimate uses of

that power.

Although the Due Process Clausc is essentially about process

and the Privileges or Immunities Clause is essentially about

substantive rights, the underlying principles and methodologies for

application are consistent and complementary. The task of

interpretation is greatly eased by the fact that each Clause had its

counterpart in the Bill of Rights and Article IV, respectively, and

each had been authoritatively interpreted at the time those terms

were used in the new Fourteenth Amendment. When the framers

of the Fourteenth Amendment used familiar legal terminology, it

may be inferred that the terms were intended to be interpreted ia

light of then-prevailing doctrine.

The leading case interpreting the Privileges and Immunities

Clause of Article IV in the years prior to the Civil War was

Corfield v. Coryell, 6 Fed. Cas. 546 (1823), written by Justice

Bushrod Washington on circuit. The court defined the privileges

or immunities of citizens as consisting of:

those privileges and immunities which are, in their nature

fundamental; which belong, of right, to the citizens of all free

governments; and which have, at all times, been enjoyed by

the citizens of the several states which compose this Union,

from the time of their becoming free, independent, and

sovereign.

In other words, these “fundamental” rights’? had two

characteristics: (1) they were recognized by “all free governments,”

'* It should be noted that the term “fundamental” rights did not necessarily

mean rights that are especially important. Rather, in England, America, and

western Europe, “fundamentality” most often referred to the character of being

long-standing or ancient. See J.G.A. Pocock, THE ANCIENT CONSTITUTION AND

THE FEUDAL LAW 30-36, 47-55 (1957); J.W. Gough, FUNDAMENTAL LAW IN

ENGLISH CONSTITUTIONAL HiSTORY 160 (1955).

18

and (2) they had been enjoyed by citizens “of the several states”

from the beginning of the Republic. Corfield was repeatedly cited

by proponents of the Fourteenth Amendment to explain what rights

the new Amendment would protect.”

The leading case interpreting the Fifth Amendment Due

Process Clause prior to the Civil War was Murray's Lessee v.

Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272

(1856). In that case, Justice Benjamin Curtis (later to be the

leading dissenter in Dred Scott) offered the following methodology

for determining what “due process” entails in any particular case:

We must examine the constitution itself, to see whether

this process be in conflict with any of its provisions. If

not found to be so, we must look to those settled usages

and modes of proceeding existing in the common and

statute law of England, before the emigration of our

ancestors, and which are shown rot to have been unsuited

to their civil and political constitution by having been

acted on by them after the settlement of this country.

In the first important due process case after ratification of the

Fourteenth Amendment, Hurtado v. California, 110 U.S. 516

(1884), the Court reiterated this interpretation. This formulation

suggests that due process embodies (1) explicit constitutional

provisions, plus (2) long-established procedural rights (“modes of

proceeding”) that had existed in America from the beginning.

These two clauses of the Fourteenth Amendment thus have two

common features. First, they take their bearings from the long-

established rights and procedures of the American states. They are,

accordingly, preservative rather than transformative. They are

guarantees against unwarranted and unwise innovation; they are not

invitations to judicially-mandated social change. This does not

mean that the rights protected by these clauses are frozen in time.

They may change as society changes. But before a claim may be

accepted as a Fourteenth Amendment right, and imposed on the

people of all the states, it must have withstood the test of time.

® See, ¢.g., Cong. Globe, 39th Cong., Ist Sess. 1835-36 (Apr. 7, 1866) (Rep.

Lawrence); id. at 474-75 (Jan. 29, 1866) (Sen. Trumbull); id. at 2765 (May 28,

1866) (Sen. Howard).

19

The Fourteenth Amendment is not a license for judicial social

experimentation.

Second, the two Clauses have the effect (as intended by the

framers of the Fourteenth Amendment) of nationalizing the question

of rights. Prior to the Fourteenth Amendment, the states were the

principal locus of rights protection. Thus, the privileges and

immunities of Americans were described in Article IV as

“Privileges and Immunities of Citizens in the several States”; but

in the Fourteenth Amendment these rights became known as

“privileges or immunities of citizens of the United States.”

Moreover, under the new Amendment the power of the United

States was deployed to prevent any state from abridging these

rights, even as to its own citizens. Thus, the concept of rights

became national. As John Bingham of Ohio, principal author of

the Amendment, explained, it “protect[s] by national law the

privileges and immunities of all the citizens of the Republic and the

inborn rights of every person within its jurisdiction whenever the

same shall be abridged or denied by the unconstitutional acts of any

State.” Cong. Globe, 39th Cong., Ist Sess. 2542 (1866).”!

In practice, as interpreted by Corfield, Murray's Lessee, and

Hurtado, this means that an individual may challenge the denial of

any right that has been recognized by a sufficiently large number

of states for a sufficiently long period of time that it can truly be

said to be part of the fabric of American liberty. (Analogies might

be drawn to the process cf divining customary international law

from the established practices of many states, or of determining the

general common law in the period before Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938).)

In the years since Corfield, Murray's Lessee, and Hurtado, this

Court has sometimes exceeded the authority implied by those cases,

and has invalidated legislation without valid warrant in either

express constitutional provisions or the settled judgment of the

Nation. The most obvious examples are the decisions known as

“the Lochner era.” In other decisions, which have gained in respect

*' For further elaboration of this point, see Michael W. McConnell, The

Fourteenth Amendment: A Second American Revolution or the Logical Culmination

of the Tradition?, 25 Loy.-L.A. L. Rev. 1159, 1164-68 (1992).

20

and influence over the years, the Court has defined the reaches of

unenumerated rights in terms not dissimilar to those in Corfield,

Murray's Lessee, and Hurtado.

In his prescient dissent in Lochner v. New York, 198 U.S. 45,

76 (1905), Justice Holmes argued that instead of deciding the case

on the basis of their own economic theories, the Justices should

rely on “fundamental principles as they have been understood by

the traditions of our people and our law.” This approach was

embraced by the Court in Snyder v. Massachusetts, 291 U.S. 97

(1934). In that case, Justice Cardozo explained that the Fourteenth

Amendment protects rights “so rooted in the traditions and

conscience of our people as to be ranked as fundamental.” /d. at

105. See also Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

(recognizing “those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free men”); Moore

v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality by

Powell, J.) (“the Constitution protects the sanctity of the family

precisely because the institution of the family is deeply rooted in

this Nation’s history and tradition”); Michael H. v. Gerald D., 491

U.S. 110 (1989) (plurality).

Perhaps the leading statement of this approach in the modern

period was Justice Harlan’s dissenting opinion in Poe v. Ullman,

367 U.S. 497, 542 (1961), later to form the basis for his opinion

in Griswold:

Due process has not been reduced to any formula; its content

cannot be determined by reference to any code. The best that

can be said is that through the course of this Court’s decisions

it has represented the balance which our Nation, built upon

postulates of respect for the liberty of the individual, has

struck between that liberty and the demands of organized

society. If the supplying of content to this Constitutional

concept has of necessity been a rational process, it certainly

has not been one where judges have felt free to roam where

unguided speculation might take them. The balance of which

I speak is the balance struck by this country, having regard to

what history teaches are the traditions from which it developed

as well as the traditions from which it broke. That tradition

is a living thing.

21

Harlan did not engage in speculative inquiries about what freedoms

he deemed most important to human life. Rather, he asked the

concrete question: how has the asserted right been treated by the 50

states and by other nations? In the case of laws prohibiting the use

of contraceptives, Harlan found “conclusive” the “utter novelty of

this enactment.” Poe, 367 U.S. at 554-55; see also Griswold, 381

U.S. at 499. Neither the federal government, any other state, nor

any other nation, he found, “has made the use of contraceptives a

crime.” Poe, 367 U.S. at 554.

If Harlan’s interpretive method departs from that in Corfield,

Murray's Lessee, and Hurtado, it is solely in his emphasis on

tradition as a “living” thing. It is not necessary, Harlan seems to

be saying, that the tradition have existed unbroken from the time of

the Founding. It is sufficient — as his analysis in Poe and

Griswold bears out — that a substantial consensus of the states had

recognized the right for a peried long enough that it came to

represent the will of the Nation.”

Harlan’s central insight is that constitutional judicial review

under the Due Process Clause must not be based on the judges’

own “unguided speculation.” Accord, Casey, 505 U.S. at 849 (the

fact that the boundaries of substantive due process “are not

susceptible of expression as a simple rule * * * does not mean that

we are free to invalidate state policy choices with which we

disagree”). The judges musi, instead, seek the “balance” that “our

Nation” has struck. This does not mean that judges are entitled to

don the robe of the philosopher king and second-guess the decisions

of legislatures. As in Marbury, there is no suggestion that the

judges are superior to the people in their capacity to determine the

proper restraints on government. The judges instead must enforce

@ The necessity of viewing tradition as a “living” thing was reaffirmed in

Burnham v. Superior Court, 495 U.S. 604 (1990) (plurality per Scalia, J.). In

Burham, the Court explained that when traditionally approved procedures have

been abandoned by all but “a very small minority of the States,” they become

vulnerable to due process challenge, however “traditional” they may once have

been, but where the challenged practice “is both firmly approved by tradition and

still favored,” it cannot be said to violate due process. /d. at 622; see also id. at

615 (moting that the challenged pracatice is “not only old, it is continuing”).

22

the will of the people as it is reflected in the traditions which they

have developed, as well as the traditions from which they broke.

This approach makes sense because judicial interpretations

based on longstanding customs and practices are grounded — like

the text of the Constitution itself — in the will of the people;

because longstanding experience — in contrast to philosophical

speculation — provides a sound empirical basis for reasoned

judgment; and because the legal terms used by the framers of the

Fourteenth Amendment were understood at that time to be

references to long-established rights and privileges. The

contrasting approach, adopted by the courts below, divorces itself

from popular will, replaces the experience of history with judicial

whim, and has no legitimate basis in the history and political theory

of the Fourteenth Amendment.

B. The Abortion Cases Should Serve As A Cautionary

Note Rather Than A Precedent

There is only one significant area in which this Court has

departed from this approach to the Due Process Clause: the

abortion cases. In Roe v. Wade, 410 U.S. 113 (1973), this Court

struck down a state law prohibiting abortion notwithstanding the

fact that such laws had been in place in at least 45 states for at least

100 years. The Ninth Circuit relied heavily on those cases. Pet.

App. A25-A28, A5S6-AS58.

Strictly as a matter of precedent, the Ninth Circuit's reliance

was misplaced.” Essential to the holding of Roe was the

conclusion that fetuses or unborn children are not constitutional

“persons” and that their status as persons was beyond the ken of

court or legislature. 410 U.S. at 158-59. By contrast, no one has

questioned the indubitable fact that the patients involved in these

cases are persons in every sense of the word. The Roe holding that

fetuses, as non-persons, fall outside of the state’s legitimate role of

protection says nothing about the proper disposition of this case.

Moreover, in the years since Roe, many commentators have come

to the conclusion that the abortion right is more plausibly

predicated on the fact that abortion laws bear most heavily on

® See generally Seth Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An

Essay on Roe, Casey, and the Right to Die, 44 Am. U. L. Rev. 803 (1995).

23

women and thus raise a problem of sex discrimination.™

Whatever one may think of that argument, it has no application to

these cases, which involve laws that potentially apply to every one

of us, without distinction.

The Ninth Circuit found “highly instructive” and “almost

prescriptive” (Pet. App. A5S7) language from the Casey plurality

opinion that referred to “the most intimate and personal choices a

person may make in a lifetime,” and which stated: “At the heart of

liberty is the right to define one’s own concept of existence, of

meaning, of the universe, and of the mystery of human life.” /d..

quoting Casey, 505 U.S. at 851. With all respect to the Ninth

Circuit, those quotations will not bear the weight put on them.

Like other highly generalized formulations about liberty — for

example, the “right to be left alone” — the statement in Casey

cannot be understood literally, as “prescriptive” of specific rights.

The statement is so general and abstract that it could mean anything

or nothing. It surely does not mean that every intimate or personal

choice is constitutionally protected. Rather, it must be read in the

context of the opinion as a whole. In light of the plurality’s

emphasis on the “unique” character of the abortion decision (id. at

852), it is untenable to stretch these statements to cover the entirely

different context of assisted suicide.

This Court has cited Roe in support of a new substantive due

process right only once since Roe was decided 23 years ago, and

that case was amply supported by traditional due process

methodology. Moore v. City of East Cleveland, supra.” In the

* See, ¢.g., Guido Calabresi, IDEALS, BELIEFS, ATTITUDES, AND THE LAW

99-102 (1985); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L.

Rev. 1185, 1199-1202 (1992); Ruth Bader Ginsburg, Some Thoughts on Autonomy

and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 382, 386 (1985);

Martha Minow, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND

AMERICAN LAW 56-60 (1990); Cass R. Sunstein, THE PARTIAL CONSTITUTION

270-85 (1993); Laurence H. Tribe, ABORTION: THE CLASH OF ABSOLUTES 105

(1990); see also Richard Posner, SEX AND REASON 339-40 (1992) (noting that the

“focus” of Roe's defenders has “shifted to the equal protection clause”).

: Roe has been cited in several cases involving the right to contraceptives, but

in light of Griswoid these cannot be said to be new substantive due process rights.

It has also been cited in several equal protection cases.

24

meantime, the Court has refused to recognize asserted rights to

engage in acts of homosexual sodomy, of patients to choose their

own form of medical treatment, of a father to enjoy visitation rights

with his child born of an adulterous relationship, of prisoners to

contact visits while in pretrial detention, of unrelated persons to

share a home together, of a person to be free from governmental

distribution of derogatory information about himself, of a

psychiatric patient to be free from compulsory hospitalization, of

an employee to be warned of workplace hazards, and of juvenile

aliens to be placed in noncustodial settings. Far from suggesting

that the abortion cases justify an expansion of substantive due

process into other matters of great personal importance, these

decisions show that the Court has been extraordinarily reluctant to

extend the precedent. Collins v. City of Harker Heights, 505 U.S.

115, 125 (1992); Reno v. Flores, 507 U.S. 282, 302 (1993). This

vitiates any plausible claim that the abortion precedents coniel

recognition of a right to assisted suicide.

More fundamentally, we submit that the abortion cases should

not be treated as an unalloyed success, to be imitated in other areas

of our national life. While this Court has decided to adhere to the

fundamental holding of Roe for reasons of stare decisis and settled

expectations (Casey, 505 U.S. at 854-69), it is apparent to many

(even to supporters of the “right to choose”) that the Court's

sweeping decision, at one stroke, to invalidate the laws of almost

every state on < matter that is deeply controversial among the

people of this nation, was of questionable legitimacy and even more

questionable prudence. Now, almost a quarter century after the

Roe decision, the abortion question continues to be the most

divisive in American politics, poisoning everything from

presidential nominating conventions to the confirmation hearings of

Supreme Court Justices. Many supporters of abortion rights

contention and greater public acceptance if the matter had been left

to the political process, as in other Western nations. There is no

reason to repeat those mistakes in this context.

C. The Asserted Right To Assisted Suicide Is Not A

Fundamentai Right Under The Fourteenth Amendment

The decision of the Ninth Circuit is antithetical to the

traditional approach outlined in Corfield, Murray's Lessee, and

25

Hurtado and articulated more fully by Justice Harlan. The claim

of a right to assisted suicide may be a respectable philosophical

position, but it has absolutely no foundation in the explicit

provisions of the Constitution or in the balance “our Nation” has

struck.

Assisted suicide is prohibited by statute in 35 states and by

common law in 11 more.” In only one state, Oregon, is it

expressly permitted, and then only recently. These laws reflect a

longstanding common law tradition against allowing suicide in any

form. Even the Ninth Circuit traces the common law prohibition

of suicide to the 13th Century, acknowledges that the Western

treatment of suicide as a crime persisted for 1,000 years, and

admits that the medical ethical prohibition of assisting suicide dates

to the time of Hippocrates. Pet. App. A44-A45, A94. The

tradition embodied by these laws is — moreover — a “living” one.

Nine states have strengthened their statutory prohibitions in the past

five years.” State legislatures in an additional 15 states” have

debated the issue since 1991, and all have decided to retain their

been rejected by the voters of California and Washington (though

accepted by the voters of Oregon). The courts of at least 17 states,

%* Citations to these statutes and decisions may be found in footnotes 12, 13,

and 14 of the Brief Amicus Curiae on Behalf of Members of the New York and

Washington State Legislatures.

” 720 Ml. Comp. Stat. Ann. § 5/12-31(aXX2) (effective Aug. 29, 1993); Ind.

Code Ann. § 35-42-1-2.5() (approved Apr. 30, 1993); lowa Code § 707A.2

(approved Mar. 1, 1996); 1994 Ky. Acts, ch. 269, § 2 (effective July 7, 1994);

La. Rev. Stat. Ann. § 14:37.12 (effective June 16, 1995); Mich. Comp. Laws

Ann. § 752.1027 (effective Mar. 31, 1993); N.D. Cent. Code § 12.1-16-04

(effective July 1995); R.1. Gen. Stat. tit. 11, § 60 (approved 1996); Tenn. Code

Ann. 39-13-216 (approved 1993).

Massachusetts, Mississippi, Nebraska, New Hampshire, New Mexico, Vermont,

Washington and Wisconsin.

26

from the established right to refuse treatment.” The Aimerican

Medical Association, the American Geriatric Society, the American

Psychological Association, and the American Bar Association, have

all debated the issue in recent years and declined to endorse

legalization. Interdisciplinary task forces in New York and Great

Britain have unanimously voted to retain laws againsi assisted

suicide. The drafters of the Model Penal Code retained

prohibitions against assisted suicide without any exceptions.

MODEL PENAL CODE § 210.5(2) (Official Draft. and Revised

Comments 1980). The Supreme Court of Canada has rejected an

asserted right to assisted suicide. Rodriguez v. British Columbia

(Attorney General), [1993], 3 S.C.R. 519. No unreversed courts

— other than the courts below — have ever accepted such a claim.

In the face of this nearly unanimous tradition, which enjoys

considerable support to this day, it is simply disingenuous to claim

that assisted suicide reflects the balance that “our Nation” has

struck. It represents nothing other than the balance that the judges

on the Ninth and Second Circuits have struck. See Reno v. Flores,

507 U.S. at 303 (citations omitted) (“The mere novelty of such a

claim is reason enough to doubt that ‘substantive due process’

sustains it; the alleged right certainly cannot be considered ‘so

rooted in the traditions and conscience of our people as to be

ranked as fundamental.’”).

The Ninth Circuit opinion is virtually a parody of proper

constitutional analysis under the Fourteenth Amendment. In

contrast to Justice Harlan’s insistence that rights must be grounded

in historical experience, the Ninth Circuit declared that “earlier

legislative or judicial recognition of the right or interest is not a

sine qua non” (Pet. App. A35). Remarkably, in its survey of

“Historical Attitudes Toward Suicide,” the court below disregarded

unbroken and virtually unanimous state practice in favor of a

combination of inapposite ancient views and modern polling data.

The court began with “ancient attitudes,” in which suicide “was

Citations may be found in the Brief Amicus Curiae on Behalf of Members

of the New York and Washington State Legislatures, at 24-27 & n.25.

27

often considered commendable.” Pet. App. A40.” The court

was unperturbed by the fact that, by its own ev'dence, suicide was

commended in cases of dishonor, grief, guilt, and weariness of life.

Pet. App. A40-A42; see also id. at A41 (“The Stoics glorified

suicide as an act of pure rational will.”). Since not even the Ninth

Circuit thinks we should go that far, this glorification of suicide

would appear to be a tradition from which we have broken, rather

than one that reflects “our Nation's” balance between liberty and

the demands of organized society. It is a strange basis for saying

that modern statutes, reflecting the modern respect for life, are

unconstitutional.

After devoting several paragraphs to the early Christian

martyrs (who did not commit “suicide” as it is ordinarily

understood, but simply worshipped God and paid the price), the

court grudgingly acknowledged — in one clause of one sentence —

that the ‘view that suicide was in all cases a sin and crime held

sway for 1,000 years” (Pet. App. A44). The court moved quickly

to the more convenient fact that some “philosophers, poets, and

even some clergymen” began to dissent in the 17th century. /d.

® Although space will not permit us to engage in a debate with the court

below over its reading of historical sources, the observant reader cannot fail to

notice the one-sided and selective nature of the court's account. For example, the

court invoked the distinguished name of Plato in support of the practice of suicide,

(Pet. App. A41), but failed to mention that Aristotle, no less impressive an

authority, took the view that suicide was unjust under all circumstances. Aristotle,

NICOMACHEAN ETHICS, chap. 5, 1138. Similarly, while the court's statement

that suicide was not “universally prohibited” in Greek times and was sometimes

“considered commendable” (Pet. App. A40) is literally true, it might have been

more balanced to acknowledge that, according to the historian on whom the court

relied, suicide was generally disfavored, and euthanasia was not practiced. A.

Alvarez, THE SAVAGE Gop 58 (1971), discussed in the NEW YorK REPORT, at

78 & n.5. Most strikingly, the court cited seven poets and philosophers of the

early modern period who “challenge(d] the all-encompassing nature of the

dominant ideology” (Pet. App. A44) — failing to mention that such luminaries as

John Locke and Immanuel Kant (among others) defended the traditional ban on

suicide. See NEw YorK REPORT, at 81.

In short, while the Ninth Circuit's historical survey is not literally

inaccurate, its selective use of evidence seems designed to suggest that suicide

enjoyed more support in past ages than it actually did. The court's pejorative

reference to “the dominant ideology” (Pet. App. A44) effectively concedes that

the anti-suicide tradition was, in fact, “dominant.”

28

The court also drew comfort from the fact that, on the eve of the

Reign of Terror, the revolutionary regime in France legalized

suicide. /d.

Unable to gainsay the common law prohibition of suicide,

which dates from at least the 13th century and was endorsed by

some of the greatest figures in English legal history, the Ninth

Circuit attributed this legal norm to “taboos” and to “the ancient

fear that the spirit of someone who ended his own life would return

to haunt the living.” Pet. App. A46. The court then made much

of the decriminalization of suicide in the last century (Pet. App.

A46-A47), without pointing out that the reason for this was that

punishment was deemed an inappropriate social response. See e.g.,

State v. Marti, 290 N.W.2d 570, 581 (lowa 1980) (“The only

reason we view suicide [as] noncriminal is that we consider

inappropriate punishing the suicide victim or attempted suicide

victim, not that we are concerned about that person’s life any less

than others’ lives); Commonwealth v. Mink, 123 Mass. 422, 429

(1877) (repeal of sanctions for suicide “may well have had its

origin in consideration for the feelings of innocent surviving

relatives”); Testimony of Prof. Victor Rosenblum, HOUSE

HEARINGS, at 283.

As noted, 46 states now prohibit assisted suicide, and many of

those prohibitions are the product of recent deliberation. The Ninth

Circuit gives no weight to this legislative record. Instead, the court

cites public opinion polls that, according to the court, show popular

support for a change in the laws. Pet. App. A48-A49. Incredibly,

the court draws further support from the fact that, while voters

rejected assisted suicide in referenda in California and Washington,

the votes were close. The court’s infatuation with polling data

extends even to professional opinion, since the court relied on polls

purporting to show that physicians support assisted suicide — (id.

at A92-A93) — even though their professional organizations are

formally on record as opposing it and the precepts of medical ethics

forbid it.

It hardly needs be said that constitutional law should not be

governed by public opinion polls. We doubt seriously that the

Ninth Circuit would be greatly impressed by polls showing

overwhelming support for school ~rayer, capital punishment, or

laws against flag burning. We think it is far more significant that

29

every time the question of assisted suicide is subjected to reasoned

deliberation — whether by legislature or by commission — the

wisdom of the traditional prohibition is reaffirmed.

Putting aside its incursion into selective ancient history and its

opportunistic invocation of opinion polls, the Ninth Circuit has

literally no support for its conclusion that the right to assisted

suicide is grounded in this nation’s history or tradition.

To affirm the decision below would require an extraordinary

transformation of constitutional principles. Since the decision has

no basis in constitutional text, no basis in original understanding,

no basis in the traditions of the nation, no basis in the protection of

a discrete and insular minority, and no real basis in precedent,

affirmance would stand for the bald proposition: the Constitution

authorizes courts to invalidate laws simply on the basis that the

judges disagree with them. These cases present an ideal

Opportunity fr the Court to reassure this Nation that the judiciary

does not pr port to exercise such a power.

CONCLUSION

The decisions of the courts below should be reversed.

Respectfully submitted.

MICHAEL W. MCCONNELL

1111 E. 60th Street

Chicago, IL 60637

(801) 581-6342

Counsel for the Amici

NOVEMBER 12, 1996