Amicus Curiae Brief — Vacco v. Quill

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| Supreme Court, U.S.

“ FILED

44 Hy)

\ _ ‘ NOV 7 1996

Nos. 96-110 & 95-1858

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF WASHINGTON, ET AL., Petitioners,

HAROLD GLUCKSBERG, ET AL., Respondents.

DENNIS C. VACCO, ET AL., Petitioners,

TIMOTHY E. QUILL, ET AL., Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the Ninth & Second Circuits

BRIEF AMICI CURIAE OF

GARY LEE, M.D., WILLIAM PETTY, M.D..,

FRITZ BECK, JUNE BECK, WILLOWS RESIDENTIAL

CARE FACILITY, SISTER GERALDINE BERNARDS,

MARYVILLE NURSING HOME, INC., JANICE ELSNER,

CLAUDINE STOTLER, JEFFREY M. WEINKAUF, AND

PHYSICIANS FOR COMPASSIONATE CARE

IN SUPPORT OF PETITIONERS

James Bopp, Jr.

Counsel of Record

Barry A. Bostrom

Richard E. Coleson

Bopp, COLESON & BOSTROM

401 Ohio Street

P.O. Box 8100

Terre Haute, IN 47808-8100

Telephone (812) 232-2434

November 12, 1996 Counsel for Amici Curiae

QUESTIONS DEALT WITH HEREIN

1. Whether safeguards will protect vulnerable persons from

duress, undue influence, and the affects of depression if a constitu-

tional right to assisted suicide is recognized.

2. Whether safeguards will be repeatedly challenged and

frequently struck down.

3. Whether the recognition of a constitutional right to assisted

suicide will be limited to persons who are competent, terminally

ill, and otherwise making a voluntary decision.

TABLE OF CONTENTS

Page

QUESTIONS DEALT WITH HEREIN .............. i

TABLE OF CONTENTS .. 0 cess ceey Ovbiitees wen il

TABLE OF AUTIROIUS «ccc ccceeeeeeeeeeee iii

INTEREST OF AMICI CURIAE ................5.. |

SUMMARY OF THE ARGUMENT ................ 3

P\ «i | errr 5

I. SAFEGUARDS WILL NOT PROTECT VULNER-

ABLE PERSONS. ...csdésensaueenne 5

Il. IF A CONSTITUTIONAL RIGHT TO ASSISTED

SUICIDE IS RECOGNIZED, ANY PROPOSED

SAFEGUARDS WILL UNDOUBTEDLY BE

CHALLENGED AND FREQUENTLY STRUCK

DOWN. .. 0s ccecvvesscce es sue ee 19

Ill. THE RECOGNITION OF A CONSTITUTIONAL

RIGHT TO ASSISTED SUICIDE WILL NOT BE

LIMITED TO PERSONS WHO ARE TERMI-

NALLY ILL AND MENTALLY COMPETENT... 24

CONCLUSION 0. ccc cece en sesaenbeee na nee 30

TABLE OF AUTHORITIES

Page(s)

CASES

Akron v. Akron Center for Reproductive Health, 462 U.S.

EEE ES ee ee eee 20-21

Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal.

EE, ee 27

Bellotti v. Baird, 443 U.S. 622 (1979) ............... 21

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

EE ene ee ree 25

Brophy v. New England Sinai Hospital, Inc., 398 Mass.

417, 497 N.E.2d 626 (1986) ................. 26

Compassion in Dying v. State of Washington, 49 F.3d 586

Mh eke he eke Eek Gee dc cecees 10

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

Le drck bok ees see ceee< 5, 8, 20, 23

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261

DE ee hanced h bees oeeccedsésces 24, 27

Harris v. McRae, 448 U.S. 297 (1980) ............. 22

Hodgson v. Minnesota, 497 U.S. 417(1990).......... 22

In re Browning, 568 So.2d 4 (Fla. 1990) ............ 27

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) ...... 27

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) ....... 28

In re McAfee, No. D-70960 (Super. Ct. Fulton County, Ga.

In re Quinlan 70 N.J. 10, 335 A.2d 647, cert. denied sub

nom. Garzer v. New Jersey, 429 U.S. 922 (1976) .... 25

In re Smerdon, slip op. No. A-6031-89T1 (N.J. Super. Ct.

+ FPrrrrrerrieeris: ke 28

In re Sue Ann Lawrance, 579 N.E.2d 32 (Ind. 1991) .... 28

In re Swan, 569 A.2d 1202 (Me. 1990) ............. 28

Lee v. Harcleroad, Nos. 95-35804, 95-35805, 95-35854,

95-35948, 95-35949 (9th Cir. Jan. 24, 1996) ........ 8

Lee v. State of Oregon, 869 F. Supp. 1491 (D. Or. 1994)

oc ckdacdvausscccotearec 8-9, 11, 13

Lee v. State of Oregon, 891 F. Supp. 1421 (D. Or. 1995) .. 6

Maher v. Roe, 432 U.S. 464 (1977) ............... 22

McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990) ........ 26

Ohio v. Akron Center for Reproductive Health, 497 U.S.

SED kc c baa na eh eb eb OU re eeetserle oe 22

People v. Kevorkian, 447 Mich. 436, 527 N.E.2d 714

Do wal 6.66 60us Oe bee O65 6 OES wes Bae ees 9

Planned Parenthood of Southeastern Pennsylvania v. Casey,

Fg f £2 re tree 20, 23, 24

Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996).......... 24

Roe v. Wade, 410 U.S. 113 (1973) ...............-. 20

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

Sey Se ED sh incées op ediss Urs baa ds 25

State v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (Ga. 1989) . 26

Thornburgh v. American College of Obstetricians & Gyne-

cologists, 476 U.S. 747 (1986) .............. 20-22

Tune v. Walter Reed Army Medical Hospital, No. 85-0697

Se Sy SE kee ob ces eekebaceeoerse 25

STATUTES

18 Pa. Cons. Stat. § 3205(a1 (i) (1983) ............ 21

18 Pa. Cons. Stat. § 320S(a1 (ii) (1983) .... 2.2.2... 20

18 Pa. Cons. Stat. § 320S(a1 iv) (1983) ........... 21

18 Pa. Cons. Stat. § 320S(a(2)iii) (1983) ........... 20

18 Pa. Cons. Stat. § 3206 (1983) ................. 21

18 Pa. Cons. Stat. § 321S(e) (1983) ............... 22

18 Pa. Cons. Stat. § 3214 (1983) ...............4.. 21

SD ED Gc cod ce ct ben cwhes er 7, 19

Oregon Revised Statutes § 161.205 ................. 6

Oregon Revised Statutes § 163.117 ................. 6

Oregon Revised Statutes § 163.125 ................. 6

Oregon Revised Statutes § 426.005 ................. 7

Oregon Revised Statutes § 426.070 et seg. ............ 7

OTHER AUTHORITIES

Applebome, An Angry Man Fights to Die, Then Tests Life,

N.Y. Times, Feb. 7, 1990, at] ........... vee ae

Affidavit of Carol J. Gill, Ph.D. ............... 9,17

Affidavit of David C. Clark, Ph.D............... 13-16

Affidavit of Gary E. Lee, M.D. ............--545- 17

Affidavit of Jerome A. Motto, M.D. ............. 16, 17

Affidavit of Jerome R. Wernow, Ph.D. ............. 18

Affidavit of Patricia Wesley,M.D. .............. 11, 19

Affidavit of Richard Fenigsen, M.D., Ph.D. ......... 8,9

Affidavit of Timothy M. Quill, M.D. ............... 8

Affidavit of William Petty, M.D. ...............4.. 18

Ailing Father Dies; Quadriplegic Had Ended Own Life for

Fear Dad Would Go First, San Diego Union, Oct. 12,

PL GEM cccovecssssewoedacetebue save 26

David C. Clark, “Rational” Suicide and People with Termi-

nal Conditions or Disabilities, 8 Issues in Law & Med.

SP a wkob wens Cekdeesh be kee Geb oe te 11

Edwin S. Schneidman, Rational Suicide and Psychiatric

Disorders, 326 New Eng. J. Med. 889 (1992)....... 17

Harvey M. Chochinov, M.D., Keith G. Wilson, Ph.D.,

Murray Enns, M.D., Neil Mowchun, M.D., Sheila

Lander, R.N., Martin Levitt, M.D. & Jennifer J.

Clinch, M.A., Desire for Death in the Terminally Ill,

vil

152 Am. J. Psychiatry 1185 (1995) ........ 13, 15, 18

National Institute of Mental Health, Depression: What You

PP, gs LGA Ch Pec eae cee 10

Susan M. Block, M.D. & J. Andrew Billings, M.D., Patient

Requests for Euthanasia and Assisted Suicide in Terminal

The New York State Task Force on Life and Law, When

Death Is Sought: Assisted Suicide and Euthanasia in the

Medical Context (1994) ................ 10, 14, 17

Yale Kamisar, The Reasons So Many People Support Physi-

clan-Assisted Suicide—And Why These Are Not Convinc-

ing, 12 Issues in Law & Med. 113 (1996) ......... 30

INTEREST OF AMICI CURIAE'

With one exception, the amici curiae are the plaintiffs who

successfully challenged Oregon Ballot Measure 16 which legalized

physician-assisted suicide in the state of Oregon. Lee v. State of

Oregon, 891 F. Supp. 1421 (D.Or. 1995). That case is currently

on appeal before the U.S. Court of Appeals for the 9th Circuit. A

decision in this case recognizing a constitutional right to physician-

assisted suicide would negatively impact their case on appeal. The

Lee plaintiffs oppose any recognition of a constitutional right to

assisted suicide because vulnerable persons cannot be adequately

protected from undue influence, duress, and the affects of depres-

sion.

Gary Lee, M.D., is a physician licensed in the State of Oregon

who is a resident of and practices medicine in Eugene, Oregon. All

of his patients are cancer patients, many of whom will die with

advanced cancer. Many of these patients suffer from depression;

however, physicians are not well-trained in diagnosing depression

so this problem is generally undertreated. Depression makes

patients who have the disability of a terminal disease highly

susceptible to undue influence in the form of suggestions that their

lives are not worth living. He asserts the interests of his patients

who have the disability of a terminal disease who do not wish to

engage in assisted suicide but may be subject to internal and

external pressures toward assisted suicide which they may be

unable to resist given the lack of appropriate safeguards.

William Petty, M.D., is a physician licensed in the State of

Oregon who is a resident of and practices medicine in Portland,

Oregon. Eighty percent of his patients are cancer patients, and

many will die as a result of their disease. He observes that these

patients are especially susceptible to undue influence because they

become vulnerable and compliant. He asserts the interests of his

patients who have the disability of a terminal disease.

Janet Elsner is a person with progressive muscular dystrophy

who uses a wheelchair. She is 46 years old and is a resident of

Portland, Oregon. Ms. Elsner has had periods where she is so

weak that she is limited to a liquid diet because she is too tired to

‘Consents from the parties to filing this brief have been filed with the Clerk

eat. At such times, she cannot even turn over in bed. She does not

know how long she has to live and has already lived longer than

expected. She has problems with depression as a result of her

illness and understands that depression may go undiagnosed and

cause persons to consider suicide. She joins this brief on her own

behalf and as a representative of those persons who have the

disability of a terminal disease even with medical treatment.

Claudine Stotler is a resident of Washington County, Oregon,

who has been diagnosed by her physician with cancer from which

she will die. Ms. Stotler would never want to consider assisted

suicide bet understands that persons who have the disability of a

terminal disease are sometimes subject to undiagnosed depression

or undue influence while in a debilitated state and become

persuaded to act contrary to their true intent, which she would

never want to happen to her. She has been subject to depression at

times since being diagnosed with cancer. She joins this brief on her

own behalf and as a representative of those persons who have the

disability of a terminal disease even with medical treatment.

Jeffrey M. Weinkauf is an insulin-dependent individual with

diabetes, who is a resident of Eugene, Oregon. Oregon Ballot

Measure 16 defines “terminal disease” as “an incurable and

irreversible disease that has been medically confirmed and will,

within reasonable medical judgment, produce death within six (6)

months.” Under this definition, Mr. Weinkauf’s diabetes might

constitute a terminal disease because it is an incurable and

irreversible disease and, without insulin treatment, he will die

within six months. The statute thus does not differentiate between

diseases which are controllable with regular medication and those

which are not. He joins this brief in his own behalf and as a

representative of those persons who have a possibly terminal

disease absent medical treatment.

Fritz and June Beck are residents of Bandon, Oregon, and are

owners or The Willows Residential Care Facility, located in

Bandon. Sister Geraldine Bernards is an Oregon resident and the

Administrator of the Maryville Nursing Home, Inc., located in

Beaverton, Oregon. These nursing homes house persons who have

the disability of a terminal disease. If assisted suicide is legalized,

they would be required to permit the assisted suicide of a patient

who has the disability of a terminal illness in their facility under

Oregon Ballot Measure 16. Furthermore, they would be required

to appoint a witness to witness any written consents to assisted

suicide and would be prohibited from excluding physicians who

wish to commit assisted suicide on their premises from prescribing

lethal drugs to qualified residents of their facility. Because of their

strong religious opposition to such practice, they believe they

would have their free exercise of religion violated, contrary to the

guarantees of the First Amendment and ihe Religious Freedom

Restoration Act. In addition, they believe their First Amendment

right to freedom of association would be violated if they were

forced to allow assisted suicide to occur in their facility.

Physicians for Compassionate Care (PCC) is an Oregon

nonprofit corporation with membership open to physicians, nurses,

and other health care professionals. Its membership consists of

over 500 health care professionals. Its purpose is to promote

compassionate care for severely ill patients without sanctioning or

assisting their suicide. Members affirm an ethic based on the

principle that all human life is inherently valuable and that the

physician’s roles are to heal illness, alleviate suffering, and

prolong life. Most of the organization’s members treat patients who

are terminally ill. It was not a plaintiff in the Lee v. Oregon case.

SUMMARY OF THE ARGUMENT

What this Court is being asked to do is to recognize a right to

assisted suicide (by lethal dose of drugs) for competent people

which will invalidate all state laws prohibiting assisted suicide.

This brief will present three public policy reasons why such a

constitutional right should iwt be recognized.

First, the decision of the 9th Circuit assumes that “sufficient

safeguards can and will be developed by the state and medical

profession.” However, there are no safeguards that will be

sufficient to protect vulnerable persons from duress, undue

influence, and the affects of depression if a constitutional right to

assisted suicide is recognized. This can be seen by an analysis of

the safeguards in Oregon Ballot Measure 16, which became law in

November 1994, but was enjoined prior to its effective date by the

U.S. District Court. At first blush, these safeguards seem reason-

able enough and they are probably typical of the type of safeguards

that will be proposed whenever assisted suicide is legalized.

However, these safeguards are inadequate because they clearly fail

to protect vulnerable persons. The record of the Oregon case, upon

which the preliminary and final injunctions were issued, establishes

certain key facts, which are summarized as follows: (1) physicians

are unable to accurately diagnose a person as having a “terminal

disease”; (2) people with terminal illness commonly suffer from

the psychiatric illness of depression or other form of impaired

judgment; (3) primary care physicians have difficulty in diagnosing

depression; (4) depression is a major factor leading to suicide; (5)

depression is treatable; (6) major life decisions should not be made

while one is depressed; (7) recovery from depression takes more

than 15 days; (8) patients with terminal illness are vulnerable to

external pressures and abuse; and (9) drug overdoses are notori-

ously unreliable in actually causing death. For these reasons, the

typical safeguards being proposed today are inadequate to protect

the lives of vulnerable persons from undue influence, duress, and

clinical depression.

Second, any proposed safeguards will undoubtedly be chal-

lenged and frequently struck down. This can be seen from the

abortion litigation of the past twenty-five years. The 9th Circuit

recognized this fact when it stated: “In deciding ‘right-to-die’

cases, we are guided by th{is] Court’s approach to the abortion

cases.” Because abortion safeguards have been repeatedly chal-

lenged and frequently struck down in the past, we can expect the

same result regarding any proposed assisted suicide safeguards.

Therefore, if this court recognizes a new constitutional right to

assisted suicide, the abortion precedents will control and will result

in the striking down of many if not most safeguards. Physician-

assisted suicide will be uncontrollable.

Third, the recognition of a constitutional right to assisted

suicide will not be limited to persons who are terminally ill and

mentally competent. The case law establishing a right to refuse

life-sustaining medical treatment is binding precedent which will

permit assisted suicide for persons who are not terminally ill, and

Surrogate decisionmaking for persons who are incompetent,

comatose, or in a persistent vegetative state. The 9th Circuit

recognized this when it specifically included “the act of refusing

or terminating unwanted medical treatment” within the liberty

interest it was examining. Similarly, if a right to assisted suicide

is recognized, equal protection clause jurisprudence will require the

recognition of a right to euthanasia (by lethal injection) for those

who cannot take a lethal dose by mouth, and a right to mercy

killing for those who are incompetent, comatose, or in a persistent

vegetative state or otherwise unable to exercise their constitutional

rights without assistance. Physician-assisted suicide will necessarily

result in the legalization of euthanasia and mercy killing.

For these public policy reasons this Court should hold that

there is no right to assisted suicide in the Constitution of the

United States, and should find that the decisions of the Second and

Ninth Circuits should be reversed and/or vacated.

ARGUMENT

I. Safeguards Will Not Protect Vulnerable Persons.

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

(9th Cir. 1996), the 9th Circuit held that “a liberty interest exists

in the choice of how and when one dies, and that the provision of

the Washington statute banning assisted suicide, as applied to

competent terminally i!l adults who wish to hasten their deaths by

obtaining medication prescribed by their doctors, violates the Due

Process Clause.” /d. at 838. It also stated that “we believe that

sufficient safeguards can and will be developed by the state and

medical profession to ensure that the possibility of error will

ordinarily be remote.” /d. at 824. When the medical facts are

analyzed, it is clear that the safeguards envisioned by the court will

not be sufficient to protect vulnerable persons. The 9th Circuit

cites the procedural safeguards in Oregon’s Ballot Measure 16 as

“a good example of how these legitimate and important concerns

[i.e., errors, abuses, and legitimate state interests] can be ad-

dressed effectively.” Jd. at 833 & n.122.

The State of Oregon is the first state to iegalize physician-

assisted suicide. However, before the law went into effect, it was

successfully challenged by the amici herein, who are the plaintiffs

in the case of Lee v. Oregon, 891 F. Supp. 1421 (D. Or. 1995).

The U.S. District Court issued preliminary and permanent

injunctions. /d. at 1439 (permanent injunction); 869 F. Supp. 1491

(D. Or. 1994) (preliminary injunction). It is now on appeal before

the U.S. Court of Appeals for the 9th Circuit. A right to assisted

suicide, whether created by referendum, by statute, or by recogni-

tion of a new constitutional right, constitutes an exception to the

plethora of state laws protecting vulnerable persons. For example,

the following Oregon statutes protect its vulnerable citizens.

Oregon Revised Statutes § 163.117 provides that:

It is a defense to a charge of murder that the defendant's

conduct consisted of causing or aiding, without the use of

duress or deception, another person to commit suicide.

Nothing contained in this section shall constitute a defense to

a prosecution for, or preclude a conviction of, manslaughter or

any other crime.

Oregon Revised Statutes § 163.125 provides that:

(1) Criminal homicide constitutes manslaughter in the second

degree when:

(a) It is committed recklessly; or

(b) A person intentionally causes or aids another person to

commit suicide.

(2) Manslaughter in the second degree is a Class B felony.

Oregon Revised Statutes § 161.205 provides that:

The use of physical force upon another person that would

otherwise constitute an offense is justifiable and not criminal

under any of the following circumstances:.... (4) A

person acting under a reasonable belief that another person is

about to commit suicide or to inflict serious physical self-injury

may use physical force upon that person to the extent that the

person reasonably believes it necessary to thwart the result.

Oregon Revised Statutes § 426.005 defines a “mentally ill

person” as, inter alia, “a person who, because of a mental disorder

is... [dJangerous to self....” Oregon Revised Statutes

§ 426.070 et seq. provide commitment proceedings for one who is

a “mentally ill person,” including emergency commitment

proceedings.

While the foregoing statutes protect most Oregon residents

from self-harm and assisted suicide, Oregon has by Ballot Measure

16 determined that the lives of persons who have the disability of

a terminal disease, who are suffering from depression or undue

influence, are not entitled to the same protections from self-harm

and assisted suicide as those not deemed terminally ill.

The following are the relevant provisions of Ballot Measure

16: (1) a written request by an adult who has been determined by

two physicians to be suffering from a terminal disease; (2) two

witnesses who attest that the patient is capable, acting voluntarily,

and not under coercion; (3) the attending physician shall inform the

patient of his diagnosis, prognosis, potential risks in taking a lethal

medication, the probable result, and the feasible alternatives; (4)

the consulting physician shall examine the patient and his records,

confirm in writing the diagnosis, verify that the patient is capable

and acting voluntarily; (5) if either physician thinks the patient may

be suffering from a psychiatric or psychological disorder, or

depression, he will refer the patient for counseling; (6) the

attending physician shall ask the patient to notify the next of kin of

his request for medication; (7) a fifteen day waiting period; (8)

civil and criminal immunities for the physicians and health care

providers. At first blush, these safeguards seem reasonable enough

and they are probably typical of the type of safeguards that will be

proposed whenever assisted suicide is legalized.”

However, these safeguards are inadequate because they clearly

fail to protect vulnerable persons. The record of the Oregon case,

upon which the preliminary and final injunctions were issued,

establishes certain key facts, which are summarized as follows: (1)

physicians are unable to accurately diagnose a person as having a

“terminal disease”; (2) people with terminal illness commonly

*These are the type of “appropriate, reasonable, and properly drawn

safeguards” suggested by the 9th Circuit. Compassion in Dying v. State of

Washington, 79 F.3d 790, 833 (listing example safeguards that could be adopted).

suffer from the psychiatric illness of depression or other form of

impaired judgment; (3) primary care physicians have difficulty in

diagnosing depression; (4) depression is a major factor leading to

suicide; (5) depression is treatable; (6) major life decisions should

not be made while one is depressed; (7) recovery from depression

takes more than 15 days; (8) patients with terminal illness are

vulnerable to external pressures and abuse; and (9) drug overdoses

are notoriously unreliable in actually causing death.

First, physicians are unable to accurately diagnose a person as

having a “terminal disease.” The U.S. District Court in Oregon

found that “physicians often misdiagnose terminal illness” and that

"a physician’s prognosis of six months to live is often fallible.”

Lee v. State of Oregon, 869 F. Supp. 1491, 1497. The Affidavit of

Richard Fenigsen, M.D., Ph.D. gives evidence of a 20-40% error

rate even in the clinical diagnosis of a particular disease. Fenigsen

Affidavit at ¢ 6. The Oregon defendants did not contest this fact.

In one study, lung cancer was misdiagnosed in over 49% of the

cases. Jd. A report in the British Medical Journal of four patients

referred to a hospice for terminal care with “untreatable cancer”

revealed that they had neither terminal illness nor cancer. /d. at

{ 7. “One of these patients had the [erroneous] diagnosis of cancer

established (from pleural biopsy) by two pathologists and con-

firmed by a third.” Jd. Defendants did not contest these facts. As

to the ability of a physician to predict that a patient will die of a

disease within a certain amount of time, even if correctly diag-

nosed, that ability is “notoriously fallible.” Jd. at 4 17. Oregon

defendants’ Affidavit of Timothy M. Quill, M.D. (C.R. 84) appends

an article by Dr. Quill in which he writes, “we acknowledge the

inexactness of such prognostications [about whether a patient is

‘Appellees’ Supplemental Excerpts of Record 111 (hereinafter Supp. E.R.),

Clerk's Record 33 (hereinafter C.R.), Lee v. Harcleroad, Nos. 95-35804, 95-

35805, 95-35854, 95-35948, 95-35949 (Sth Cir. Jan. 24, 1996). Richard

Fenigsen, M.D., Ph.D., has forty years of experience with severely ill and dying

patients in the Netherlands. He has twenty years experience with euthanasia and

physician-assisted suicide as practiced in hospitals and by family physicians in the

Netherlands. His affidavit was cited by the Oregon District Court at 869 F. Supp.

at 1497.

‘near death’].” /d. at Appendix D-2. According to the Michigan

Supreme Court, “[njo clear definition of ‘terminal illness’ is

medically or legally possible, since only in hindsight is it known

with certainty when someone is going to die.” People v.

Kevorkian, 447 Mich. 436, 467 n.34, 527 N.E.2d 714, 726 n. 33

(1994). Thus, the purported safeguard of a “medically confirmed

diagnosis carries a risk of error ranging from 20 to 40 percent.”

Fenigsen Affidavit at { 8. Clearly, many “qualified patients” under

Measure 16 will not actually be within six months of dying as

Measure 16 envisions.

Second, people with terminal illness commonly suffer from the

psychiatric illness of depression or another form of impaired

judgment. The Affidavit of Carol J. Gill, Ph.D.* establishes that

[most crisis intervention models allow a minimum of five

weeks for resolution of the acute emotional disorder attending

major personal loss. Crisis counselors recognize that the

judgment of a person who is /egaily competent and grossly

oriented to reality and logic may nonetheless be emotionally

distorted when reacting to overwhelming loss.

Id. at ¢ 18 (emphasis in original). Receiving a diagnosis of a

terminal disease is clearly a major life stress and personal loss. A

pamphlet entitled Depression: What You Need to Know, published

by the National Institute of Mental Health (no date), at 4, and

placed in the Lee v. Oregon record as an attachment to the affidavit

of Intervenor Levin (Exhibit 28 to Exhibits to Intervenor Levin's

“Motions Against Plaintiffs’ Claims”; C.R. 149), confirms Dr.

‘Supp. E.R. 21, C.R. 29. Carol J. Gill, Ph.D., is a clinical psychologist

specializing m issues affecting persons with disabilities, pam, and/or chronic

inesses. She has worked clinically with this population in both hospital settings

and private practice. Her former posions include: Director of Rehabilaation

Psychology at Glendale Adventist Medical Center, Commussioner in Psychology

on the Los Angeles County Commission on Disability; and Acting Director of the

Program in Disability and Society at the University of Southern California. For

the past five years, she has devoted her professional life to research and education

projects concerning persons with disabilities and chronic illness. She 1s currently

the President of the Chicago Institute of Disability Research Her affidava was

cuted by the Oregon District Court at 869 F. Supp. at 1498 n.2.

Gill's assertion, stating that: “A serious loss, chronic illness,

difficult relasonship, financial problem, or any unwelcome change

in life patterns can also trigger a depressive episode.” Thus, many

people with the major life stress of a diagnosis of terminal illness

will suffer from depression, whether or not it rises to the level of

clinical or major depression, and will have impaired judgment for

making life and death decisions, e~-r though legally competent.

The New York State Task Force on ! ife and Law, in an exhaus-

tive study entitled When Death Is Sought: Assisted Suicide and

Euthanasia in the Medical Context (1994),° noted that

“[i}Jndividuals with serious chronic and terminal illness face an

increased risk of suicide—some studies suggest that the risk for

cancer patients is about twice that of the general population.” New

York Task Force at 13. The New York Task Force summed up the

link between terminal illness and depression as follows:

Depression may coincide with other medical conditions for

mend on. § 1, the condition may ti ,

in patients who are genetically predisposed to depression.

Third, the presence of illness of disease can psychologically

cause depression, as is often observed in patients with cancer.

Finally, especially for cancer patients, some treatments or

medications have side effects that cause depressive moods or

symptoms.

New York Task Force at 15. However, the task force found that

{i}t is a myth . . . that severe clinical depression is a normal

and expected component of terminal illness. Healthy individu-

als, including health care professionals, often believe that it is

normal for terminally ill patients to experience major depres-

sion. They understand feelings of hopelessness as expected and

‘The task force was convened in 1985 by Governor Mario Cuomo, who

public policy on a variety of issues. The report, hereimafter referred to as “New

York Task Force,” has been recognized as authoritative and relied upon by the

Ninth Circuit Court of Appeals im the case of Compassion in Dying v. State of

Washington, 49 F.3d 586 (9th Cir. 1995).

tonal given the pationt’s — is.

New York Task Force at 16. Further, some will clearly be at risk

for depression ai the time when they take the lethal overdose, when

Measure 16 provides no safeguards to screen out those who are

Third, primary care physicians have difficulty in diagnosing

depression. In the Affidavit of Patricia Wesley, M.D. ,° Dr. Wesley,

a psychiatrist and neurologist teaching in the Department of

Psychiatry at Yale, cites a study by “David Clark, a major

researcher in suicides, and others,” of men 65 years and older who

committed suicide. Jd. at | 26 (citing David C. Clark, “Rational”

Suicide and People with Terminal Conditions or Disabilities, 8

Issues in Law & Med. 147, 152 (1992)). The study showed that

25% had been to a physician within 24 hours of death, 41%

within one week of death, and 70% within one month of death.

up either the psychiatric condition or the suicidal intention, at

least as they were diagnosed retrospectively, by the psycholog-

ical autopsy technique used in this study.

Id. Dr. Wesley concluded:

The above data indicate that it is not an easy task to diagnose

probably beyond the expertise of most non-psychiatric physi-

cians. Nonetheless, [Measure 16] asks just such busy, front-

“Supp. E.R. 11, C.R. 28. Patricia Wesley, M.D. is an assistant clinical

professor of psychiatry in the Department of Psychiatry. School of Medicine,

Yale University, New Haven, CT, where she supervises psychiatric residents in

thew outpatient psychotherapy work. Her other professional responsibilities

*nclude the evaluation and treatment of seriously and persistently mentally ill

individuals im two outpatient facilmes in New York City. One of these facilites

exclusively serves individuals 55 and over, many of whom have significant

conditions, she has gamed considerable exposure to the impact of significant

medical illness on psychological funcuioning. Her affidava was quoted and cited

by the Oregon District Court at 869 F. Supp. at 1498 n.2.

line, untrained physicians to perform this vital screening

function. It will inevitably be done poorly, and many whose

wish to die is based on psychiatric disturbance will be aided in

killing themselves.

Id. at ¢ 27. Dr. David C. Clark concurs that psychiatric evaluation

and treatment is necessary for terminally ill persons seeking

suicide:

The definitions of “attending physician” and “consulting

physician” in the Act permit any licensed physician, regardless

of experience or specialty training, to function in these roles.

There is no requirement that either party have any knowledge

or expertise in evaluating mental status, cognitive state and

functioning, or psychiatric disorder beyond the fundamentals

most physicians are exposed to in medical school. The

medical/surgical literature is very clear and consistent in

showing that medical/surgical general practitioners and

specialists (other than psychiatrists) fail to recognize at least

half of all cases of clear-cut major depressive illness in their

own practices—i.e., among their own patients—and then they

are not successful at recognizing the more severe half of cases.

It is my professional opmion that the Act should include a

requirememt that trained and experienced mental health

professionals examine each patient who makes a request for

assisted suicide. This would protect people who, in the state of

clinical depression, request assisted suicide without the

opportunity for treatment.

Affidavit of David C. Clark, Ph.D.’ at ¢ 27. The latest literature on

suicidology confirms the above facts. In the September-October

i995 issue of Psychomatics, Harvard Medical School psychiatrists

Block and Billings confirm that:

[djepression and organic mental disorders are commonly seen

"Supp. E.R. 89, C.R. 32. David C. Clark, Ph.D., is Professor of Psychiatry,

Psychology. and Preventive Medicine, and Director of the Center for Suicide

Research and Prevention, at the Rush-Presbyterian-St. Luke's Medical Center.

Chicago, Mlinois. His supplemental affidava was cited by the Oregon District

Court at 869 F. Supp. at 1501 0.4.

among patients who request assistance in dying. These

disorders can both impair patient autonomy and coexist with

autonomous wishes for hastened death. Because of the irrevo-

cability of hastening death, decisions about competency must

be especially rigorous. Determination of competence in this

setting is often extraordinarily challenging, requiring subtle

evaluations of thought processes and complex assessments of

the patient's cognitive understanding, affective and emotional

appreciation, and character limitations in understanding the

implications of alternative choices. Very rarely are

nonpsychiatric clinicians adequately prepared to address this

broad concept of competence, so psychiatric input is essential.

Susan M. Block, M.D. & J. Andrew Billings, M.D., Patient

Requests for Euthanasia and Assisted Suicide in Terminal Iliness :

The Role of the Psychiatrist, 5 Psychosomatics 445, 452 (1995). In

the August 1995 issue of the American Journal of Psychiatry, a

team of seven psychiatrists and other researchers reported the

results of a Canadian study on the desire for death in the terminally

ill—that terminally ill persons who desire death do so because of

depression—and urged psychiatric involvement in such cases.

Harvey M. Chochinov, M.D., Keith G. Wilson, Ph.D., Murray

Enns, M.D., Neil Mowchun, M.D., Sheila Lander, R.N., Martin

Levitt, M.D. & Jennifer J. Clirch, M.A., Desire for Death in the

Terminally Ill, 152 Am. J. Psychiatry 1185, 1190 (1995).

The Oregon record clearly shows on empirical evidence that

there is “reason to believe” that primary care physicians, who are

concededly not specially trained to diagnose and treat depression,

are not capable at discovering, diagnosing, and treating depression.

Finally, this fact is confirmed by the New York Task Force:*

*The New York Task Force may be viewed as an impartial voice because it

all agreed that, even with attempted safeguards, there is too great a “risk of

harm” im mplementing a regime of state-endorsed assisted suicide, a risk which

“15 greatest for the many individuals m our society whose autonomy and well-

being are already compromised by poverty, lack of access to good medical care.

advanced age, or membership in a stigmatized group.” New York Task Force

at 119.

Even psychologists and psychiatrist who routinely treat and

diagnose depression may have limited experience doing so for

patients who are terminally or chronically ill. For those

patients, clinicians must be able to distinguish realistic sadness

and sense of loss that accompanies such illness from severe

clinical depression or the psychiatric disorders that impair

decision-making capacity. These disorders are prevalent in

those patients who ultimately choose to commit or attempt

suicide.

New York Task Force at 127-28.°

Fourth, depression”’ is a major factor leading to suicide.

“Suicide is the eighth leading cause of death in the United States”

and “is a major health problem.” Affidavit of David C. Clark,

M.D. (Supp. E.R. 89; C.R. 32; at { 3). “Those aged sixty-five and

over make up 12% of the population but account for 21% of all!

suicides.” Jd. Major suicide researcher Dr. David Clark reports:

There is considerable agreement among the findings from the

large community-based psychological autopsy studies on the

relationship between major mental disorder and death by

suicide. Never less than 88% of the subjects qualified for a

psychiatric diagnosis at the time of the suicide (never less than

94% in all but one study)... . Thus suicides rarely occur in

"Even where depression is diagnosed, it is often undertreated, New York

Task Force at 127, leaving terminally ill persons at risk for suicide both because

depression 1s undiagnosed and because i 1s undertreated.

"The term “depression” is used here and elsewhere herein as a shorthand

expression for a range of judgment impairing psychopathologies. Because space

and readability do not permit continued reference to a string of psychiatric

diagnoses that may lead to suicide, necessity dictates that a shorthand substitute

be used. The Affidavit of David C. Clark, Ph.D. (Supp. E.R. 89; C.R. 32) sets

forth the wide range of psychopathologies which lead to suicide, including

depression. Other treatable causes of suicidal ideation and attempt include

of certain treatments. While these latter are not psychiatric problems, they

represent treatable conditions which can lead to suicidal impulses and should be

recalled when the shorthand term “depression” 1s used herein.

the absence of major psycho-pathology.

Id. at 4 4. Further, “15% of persons with major depression die by

suicide.” Jd. at ¢ 6. A Canadian study on the desire for death in

the terminally ill, reported in the August 1985 issue of the

American Journal of Psychiatry, confirms the connection: “in the

logistic regression analysis, depression emerged as the only

predictor for the desire for death.” Harvey M. Chochinov, M.D.,

Keith G. Wilson, Ph.D., Murray Enns, M.D., Neil Mowchun,

M.D., Sheila Lander, R.N., Martin Levitt, M.D. & Jennifer J.

Clinch, M.A., Desire for Death in the Terminally Ill, 152 Am. J.

Psychiatry 1185, 1190 (1995). The authors of the article cautioned

that: “our findings indicate that a substantial proportion of

terminally ill patients who express a desire to die could potentially

benefit from a trial of treatment for depression.” /d. A 1986 study,

reported in the American Journal of Psychiatry questioned, on the

basis of empirical evidence, “[t}he role of terminal illness, physical

decline, or chronic pain as a reason for suicide.” Affidavit of David

C. Clark, M.D. (Supp. E.R. 89; C.R. 32) at 9.19. Dr. Clark

reports of the study that

Brown and colleagues, in a study of hospice patients diagnosed

with terminal illness, severe pain, disfigurement, or disability,

found that the great majority of these patients did not desire to

die by suicide. Of the small percentage who expressed any

wish to die, all met diagnostic criteria for major depressive

illness.

Id. at ¢ 20."' From this and other evidence, Dr. Clark concluded:

While it is compelling to assume that many persons with

chronic, painful, or terminal illnesses will choose to end their

suffering prematurely by opting for suicide, in fact this type of

choice, usually referred to as “rational” suicide, is rarely seen

in hospital and hospice work. Except in those cases where

physical illness is accompanied by a major depressive illness,

''Such empirical evidence belies the notion that it is normal and rational for

persons with a terminal illness to be depressed and want to kill themselves. See

also Affidavit of David C. Clark, M.D. (Supp. E.R. 89; C.R. 32) at 44 9-12, 19-

21, 23-25.

the great majority of patients spontaneously reject the suicide

option and choose to die naturally. The majority of terminally

ill patients cling to life throughout their illnesses. Among older

person, for whom chronic painful illnesses are not uncommon,

only 0.5% of male deaths and 0.2% of femaie deaths are

attributable to suicide.

Id. at ¢ 19. Clark concludes that

[tlo wish to end life by killing oneself is almost always a

serious symptom arising from a temporary psychiatric illness,

even when the person is terminally ill. While the subtlety and

complexity of depressive illnesses often make it difficult for

loved ones to recognize the gravity of the problem, it is

generally a mistake to assume that a wish to die or end one’s

own life is a rational, carefully thought-through decision

justified by a person’s life situation or health status. One

should always suspect that an unrecognized psychiatric illness

has silently, invisibly influenced the judgment of a patient

opting for suicide. When a patient asks to die, the burden of

proof should lie with those who wish to defend as “rational”

a decision to die by suicide.

Id. at ¢ 31. The Oregon defendants’ Affidavit of Jerome A. Motto,

M.D. (C.R. 87) provides corroborating evidence of the link

between depression and suicide, conceding that, by this criteria,

half of all persons committing suicide “suffer from a psychiatric

disorder” and that “one-third of all suicides suffer from clinical

depression.” /d. at 45."° Finally, the New York Task Force

documented that “As explained by one sociologist who studied

suicide: ‘It is undeniable that all persons—100 percent—who

commit suicide are perturbed and experiencing unbearable

psychological pain.’” New York Task Force at 95 n.65 (quoting

Edwin S. Schneidman, Rational Suicide and Psychiatric Disorders,

"Other treatable reasons people seek suicide include unrelieved pain and

suffering, New York Task Force at 128; substance abuse, Affidavit of David C.

Clark, M.D. (Supp. E.R. 89, 91 44; C.R. 32); psychological suffering, New

Task Force at 94-95; and psychological pressure, Affidavit of Gary E. Lee, M.D.

(Supp. E.R. 159, 162 4 9; C.R. 36).

mow

326 New Eng. J. Med. 889 (1992)).

Fifth, depression is treatable. “[DJepressed patients generally

respond well to standard treatments for depressive illness—

psychotherapy and some antidepressant medication.” Affidavit of

David C. Clark, M.D. (Supp. E.R. 89; C.R. 32) at 921. “In

response to treatment, patients with terminal illnesses and intracta-

ble pain are usually grateful that no one facilitated their suicide

while they were temporarily depressed or having acute difficulties

with pain.” /d. Oregon defendants’ Affidavit of Jerome A. Motto,

M.D. (C.R. 87) declares that Major Depressive Disorder, the

“type of mood disorder that is often associated with suicidal

states,” “can usually be treated effectively with antidepressant

medication.” Jd. at | 4.

Sixth, major life decisions should not be made while one is

depressed. As already noted, the Affidavit of Carol J. Gill, Ph. D.

(Supp. E.R. 21; C.R. 29) establishes that

{most crisis intervention models allow a minimum of five

weeks for resolution of the acute emotional disorder attending

major personal loss. Crisis counselors recognize that the

judgment of a person who is /egally competent and grossly

oriented to reality and logic may nonetheless be emotionally

distorted when reacting to overwhelming loss.

Id. at ¢ 18 (emphasis in original). Dr. Gill continues: “[c}lients in

crisis therapy are, therefore, cautioned not to make any major life

decisions within five weeks of a critical life stress. The Act

needlessly narrows this window to fifteen days.” Jd. The assertion

that important decisions should not be made while one is depressed

is uncontested.

Seventh, treatment for depression takes more than 15 days. As

noted in the material quoted in the previous paragraph, resolution

of acute emotional disorders takes a minimum of five weeks for

resolution. This is uncontested. If treated depression will not

resolve itself in less than five weeks, then 15 days is clearly too

short a time for depression to resolve itself if undetected and

untreated.

Eighth, patients with terminai illness are vulnerable to external

pressures and abuse. “[D]Jemoralizations and a lack of assertiveness

may render the depressed terminally ill patient more vulnerable to

the. suggestions of others, thereby increasing the potential for

abuse.” Harvey M. Chochinov, M.D., Keith G. Wilson, Ph.D.,

Murray Enns, M.D., Neil Mowchun, M.D., Sheila Lander, R.N.,

Martin Levitt, M.D. & Jennifer J. Clinch, M.A., Desire for Death.

in the Terminally Ill, 152 Am. J. Psychiatry 1185, 1190 (1995).

See also Affidavit of William Petty, M.D."

Ninth, drug overdoses are notoriously unreliable in actually

causing death. Dr. Jerome R. Wernow, a pharmacist, has submit-

ted evidence that 25% of assisted suicides will fail, based on the

writings of Derek Humphrey, a Measure 16 proponent and a co-

founder of the Hemlock Society (which advocates legalization of

physician-assisted suicide and euthanasia). Affidavit of Jerome

R.Wernow, Ph.D.* Dr. Wernow also cites evidence that barbitu-

rate poisoning is the “most uncertain way of taking one’s life,” id.

at 4 8, raising the specter of patient coma, renal damage, toxic

psychosis, serious central nervous system damage, and protracted

suffering for the patient and her family. /d. at {4 9-10.

From all these medical facts, Dr. Patricia Wesley, a psychia-

trist teaching at the Department of Psychiatry at Yale, has

concluded that

{aJs David Clark puts it, “when a patient asks to die, the

burden of proof should be with those who wish to defend a

wish to die by suicide as a rational decision.” Oregon’s Death

with Dignity Act has it precisely the other way round, and

regards a terminally ill person’s suicidal wishes as deserving

of speedy implementation, unless proven otherwise. This law

flies in the face of what we know about suicide and the

“Supp. E.R. 1, C.R. 23, at 4 10. William Petty, M.D., is one of the

Plaintiffs in Lee v. Harcleroad (Oregon), and is a physician with offices in

Portland, Oregon. Eighty percent of his patients are cancer patients.

“Supp. E.R. 169, C.R. 169, at 47. Jerome R. Wernow, Ph.D., is a

pharmacist and biomedical ethicist in Oregon. His affidavit was cited by the

Oregon District Court at 869 F. Supp. at 1502 n.5.

a a

ate

Pte n e

terminally ill.

Affidavit of Patricia Wesley, M.D. (Supp. E.R. 11; C.R. 28) at

{ 30. As discussed infra this reversal of presumptions from those

established by the facts of modern suicidology is irrational and

based on erroneous, unscientific stereotypes about why people

commit suicide.

The safeguards in Oregon Measure 16 are typical of the type

of safeguards being proposed to protect against abuse. However,

as can be seen from the above evidence and argument, those

safeguards will be inadequate to protect the lives of vulnerable

persons from undue influence, duress, and clinical depression.

Ii. If a Constitutional Right to Assisted Suicide is Recog-

nized, Any Proposed Safeguards Will Undoubtedly Be

Challenged and Frequently Struck Down.

The abortion litigation precedents of the past twenty-five years

will control any new constitutional right to assisted suicide. The

9th Circuit declared:

In deciding right-to-die cases, we are guided by the Court’s

approach to the abortion cases. Casey in particular provides a

powerful precedent, for in that case the Court had the opportu-

nity to evaluate its past decisions and to determine whether to

adhere to its original judgment. Although Casey was influ-

enced by the doctrine of stare decisis, the fundamental message

of that case lies in its statements regarding the type of issue

that confronts us here: “These matters, involving the most

intimate and personal choices a person may make in a lifetime,

choices central to personal dignity and autonomy, are central

to the liberty protected by the Fourteenth Amendment.”

79 F.3d 801, 813-14 (citing Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 851). Thus, the right to die

is founded upon and defined by abortion jurisprudence and

precedents. If assisted suicide receives constitutional recognition,

it is destined to become a super protected right like abortion.

The super protected right of abortion is illustrated by the fact

that abortion safeguards have been repeatedly challenged and

frequently struck down. The following are a few examples of the

abortion safeguards which have been challenged and defeated. It is

clearly foreseeable that assisted suicide safeguards will also be

challenged and defeated.

First, the 1986 case of Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747 (1986), demonstrates

the problem states have in predicting and conforming to this

Court’s constitutional boundaries in forth in Roe."* As Justice

O’Connor wrote in her dissent to Akron, the “bright lines” have

become “blurred.” '® The challenged provisions of the Pennsylvania

law in Thornburgh included an informed consent provision. I*

required physicians to make available state-prepared information

concerning alternatives to abortion, available assistance for

alternatives, and objective information regarding fetal characteris-

tics and the possibility of fetal survival.’ The physician was

required to disclose (1) the possibility of unforeseeable psychologi-

cal and physical risks of abortion,'* (2) the availability of medical

assistance benefits for prenatal care, childbirth, and neonatal care,"

(3) the liability of the father for child support,” and (4) the

probable gestational age of the fetus.’ The court of appeals

invalidated all of these provisions on the basis of this Court’s

decision in Akron.“ We may expect that similarly detailed

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

‘Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 455 (1983)

(O'Connor, J., dissenting).

"18 Pa. Cons. Stat. § 3205(a)(2)(iii) (1983).

"Id. § 3205(a)(1){ii).

"Id. § 3205(a)(2)i).

Id. § 3205(a)(2){ii).

id. § 3205(a)(1)(iv).

2Thornburgh, 737 F.2d at 295-96. See Akron, 462 U.S. at 444-45. But see

informed consent requirements for assisted suicide will also be

struck down.

Pennsylvania also included a parental consent provision which

essentially codified the Supreme Court’s holding in Bellotti v.

Baird.” The appeals court enjoined enforcement of this until the

Pennsylvania Supreme Court promulgated implementing regula-

tions.* We expect that minors will also be recognized to have a

right to assisted suicide and that parental consent requirements will

be closely scrutinized so as to prevent any unconstitutional burden

on the minor’s exercise of his or her constitutional right to assisted

suicide.

The Pennsylvania Act also required physicians to provide

reports with a variety of data for statistical purposes.” Included

was a report of the basis for the physician’s determination that the

fetus was not viable or “that the abortion [was] necessary to

preserve maternal life or health.”” The court of appeals invalidated

these requirements because they were too extensive and compli-

cated and, hence, were likely to increase the cost of an abortion

and possibly have a chilling effect on physicians’ willingness to

perform abortions.” Reporting requirements for assisted suicide

will likewise be considered unnecessary and burdensome.

Another Pennsylvania provision required health insurers to

Brief for the United States, supra note 17, at 7-8.

*18 Pa. Cons. Stat. § 3206 (1983). See Bellotti v. Baird, 443 U.S. 622,

648-51 (1979) (Bellotti (Il).

“Thornburgh, 737 F.2d at 297. But see Brief for the United States, supra

note 17, at 4-5.

*18 Pa. Cons. Stat. § 3214 (1°*)3) (requiring information included the

physician's name, location of facility, woman's age, race and marital status, type

of abortion procedure, and any complications).

Id. § 3211.

"Thornburgh, 737 F.2d at 301-02. But see Brief for the United States, supra

note 17, at 9-10.

make available policies that excluded elective abortion coverage

(except in the case of rape or incest). These policies would have

been mandatorily priced less than policies with abortion coverage.”

The appeals court invalidated this as an unjustified barrier to a

woman’s access to abortion.” We can be sure that insurance

policies will also provide coverage for physician-assisted suicide

(clearly a way to reduce the cost of care at the end of life) and we

will all pay for it through our insurance premiums.

This Court’s holding in Thornburgh had major substantive

rulings regarding informed consent, reporting requirements, and

regulations designed to preserve the lives of viable, aborted

fetuses. It invalidated almost every regulation Pennsylvania had

passed.

Second, in 1990, this Court decided the case of Hodgson v.

Minnesota, 497 U.S. 417 (1990). This action was brought

challenging the parental notification requirement of the Minnesota

Abortion Law. In an eight part majority opinion with four opinions

concurring in part and dissenting in part. Of three issues that

reached this Court, one provision of the statute was struck down

as unconstitutional, and two provisions were upheld. The issues

concerned the abortion statute’s 48-hour waiting period between

notification of parents of minor’s intent to obtain abortion and

performance of that abortion, and the requirement that both parents

be notified of a minor’s intent to obtain an abortion.

And third, this Court, in 1992, decided the case of Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992). Certain abortion clinics and a physician challenged the

constitutionality of the 1988 and 1989 amendments to Pennsylva-

nia’s abortion statute. The United States District Court for the

Eastern District of Pennsylvania held that several sections of the

statute were unconstitutional. 744 F. Supp. 1323. The Court of

Appeals for the Third District affirmed in part and reversed in

**18 Pa. Cons. Stat. § 3215(e) (1983).

’Thornburgh, 737 F.2d at 303. But see Harris v. McRae, 448 U.S. 297,

316-17 (1980); Maher v. Roe, 432 U.S. 464, 474 (1977).

part. This Court affirmed in part, reversed in part, and held that:

(1) the doctrine of stare decisis requires reaffirmance of Roe v.

Wade's essential holding recognizing a woman's right to choose an

abortion before fetal viability; (2) the undue burden test, rather

did not impose an undue burden; (4) the informed consent

requirements, the 24-hour waiting period, parental consent

provision, and the reporting and record-keeping requirements of

the Pennsylvania statute did wot impose an undue burden; and (5)

the spousal notification provision imposed an undue burden and

was invalid. Four concurring and dissenting opinions were filed.

This undue burden test will no doubt be precedent for any

constitutional right to assisted suicide.

These three decisions illustrate the complexity of abortion

litigation and the fact that abortion safeguards have been repeatedly

challenged and frequently struck down. If this Court recognizes a

new constiiutional right to assisted suicide, these cases will be

precedent establishing physician-assisted suicide as a similar super

protected right. The 9th Circuit already did so in its decision citing

Roe, Thornburgh, Webster, and Casey in “defining [a] liberty

interest [ ] identical to the approach used by the Supreme Court in

the abortion cases.” 79 F.3d at 801-03. It also declared, “In

deciding right-to-die cases, we are guided by the Court's approach

to the abortion cases. Casey in particular provides a powerful

precedent.” /d. “[T}he full scope of the liberty guaranteed by the

Due Process Clause is a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary

impositions and purposeless restraints.” /d. at 803 (citing Casey,

505 U.S. at 848).

Ill. The Recognition of a Constitutional Right to Assisted

Suicide Will Not Be Limited to Persons Who Are

Terminally Ill and Mentally Competent.

The case law establishing a right to refuse life-sustaining

medical treatment is binding precedent which will permit assisted

suicide for persons who are not terminally ill, and surrogate

decisionmaking for persons who are incompetent, comatose, or in

a persistent vegetative state. The 9th Circuit specifically included

“the act of refusing or terminating unwanted medical treatment”

within the liberty interest it was examining. 79 F.3d at 802. The

act of refusing or terminating medical treatment is “subject to a

balancing test that is less restrictive [than the compelling but

narrowly tailored state interest], but nonetheless requires the state

to overcome a substantial hurdle in justifying any significant

impairment.” /d. at 804. Further, the 9th Circuit based its decision

squarely on Cruzan. Id. at 814-16.

However, if a right to assisted suicide is recognized, the right

will not be limited to persons who are terminally ill and mentally

competent. The 9th Circuit recognized this when it stated: “Our

conclusion is strongly influenced by, but not limited to, the plight

of mentally competent, terminally ill adults. We are influenced as

well by the plight of others, such as those whose existence is

reduced to a vegetative state or a permanent and irreversible state

of unconsciousness.” /d. at 816.

Although the 9th Circuit did not reach the equal protection

issue (id. at 838), the 2d Circuit did. Based on Cruzan and other

refusal/termination of medical treatment cases, it held that those

persons not receiving life-sustaining treatment also have a right to

hasten death, by physician-assisted suicide. Quill v. Vacco, 80

F.3d 716, 729 (2nd Cir. 1996). Thus, equal protection clause

jurisprudence will no doubt require the recognition of a right to

euthanasia (e.g. lethal injection) for those who cannot take a lethal

dose by mouth, and a right to mercy killing for those who are

incompetent, comatose, or in a persistent vegetative state or

otherwise unable to exercise their constitutional rights to consent.

Physician-assisted suicide will necessarily result in the legalization

of euthanasia and mercy killing.

The jurisprudence of cases asserting a right to refuse medical

treatment will provide the precedent. The right to refuse medical

treatment has roots in both the common law right to be free from

invasion of one’s bodily integrity, and the notion of battery, which

is a rejection of unwanted touching. Schloendorff v. Society of New

York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). However,

beginning in 1976 with Jn re Quinlan /0 N.J. 10, 335 A.2d 647,

cert. denied sub nom. Garzer v. New Jersey, 429 U.S. 922 (1976)

(when the New Jersey Supreme Court authorized the removal of

a ventilator from Karen Ann Quinlan, who was in a coma), many

courts have expanded this right by holding that the U.S. Constitu-

tion, through the right of privacy, guarantees to individuals a

characterized this as a “right to die.” The following are several

cases illustrating the breadth of the right to die since Quinian.

to determine the time and manner of death.

First, there are cases where competent persons who were

terminally ill requested the right to refuse life support: Tune v.

Walter Reed Army Medical Hospital, No. 85-0697 (D.D.C. Mar.

4, 1985) (held that competent adult patients with terminal illnesses

have a right to determine for themselves whether or not they wish

their lives to be prolonged by artificial life support systems).

Second, there are cases where competent persons who were

disabled but not terminally ill and requested the right to refuse life-

sustaining treatment or tube feeding: Bouvia v. Superior Court, 179

Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986) (held that no

compelling state interest in the preservation of human life exists

that would outweigh a competent but disabled person's right to

terminate treatment because “the quality of her life has been

diminished to the point of hopelessness, uselessness, unenjoyability

and frustration.” 225 Cal. Rptr. at 304);” McKay v. Bergstedt, 801

P.2d 617 (Nev. 1990) (ratified the right to die for competent

persons with disabilities who were dependent on life-sustaining

treatment in order to live, e.g. those it described as having “an

artificially extended life,” “artificial survival,” and an unchanging

interest in hastening “natural death” for lives “irreparably

*Ms. Bouvia has quadriplegia due to cerebral palsy. She has not chosen to

exercise her hard won right to die.

devastated by injury or illness.”);°' and State v. McAfee, 259 Ga.

579, 385 S.E.2d 651 (Ga. 1989) (upheld a lower court decision

permitting Larry McAfee to shut off the ventilator that he had used

since his accident. The trial judge had ruled that McAfee’s right to

refuse life-sustaining treatment outweighed the state’s interest in

preserving life and stated: “The ventilator to which he is attached

is not prolonging his life; it is prolonging his death.”).”

have previously expressed their wishes regarding the use of life-

sustaining treatment: Brophy v. New England Sinai Hospital, Inc.,

398 Mass. 417, 497 N.E.2d 626 (1986) ( held that casual remarks

made by a patient prior to the onset of any illness could be

sufficient evidence to find that the now incompetent patient would,

if competent, decline to receive nutrition and hydration by tube);”

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990)

(upheld the state of Missouri's requirement that there be clear and

convincing evidence that Nancy Cruzan previously decided to

terminate her tube feeding in such circumstances as then existed,

but did not require the clear and convincing standard be applicable

in all states where removal of life-sustaining treatment and

“Kenneth Bergstedt was a thirty-one year old man with quadriplegia who

died before the court's decision when his father, his «mary caretaker, loosened

the ventilator from his trachea after first administering Seconal and Valium. One

week later, his father died from lung cancer. Ailing Father Dies; Quadriplegic

Had Ended Own Life for Fear Dad Would Go First, San Diego Union, Oct. 12,

12,1990, at A27.

“In re McAfee, No. D-70960 (Super. Ct. Fulton County, Ga. Sept, 7,

1989). At the time, Larry McAfee was a thirty-four year old man with quadriple-

gia, after a sudden accident that left him disabled and on a ventilator. After

joining the United Cerebral Palsy of Greater Birmingham, Georgia, he was

tramed in vorce-activated computers and was employed m computerized design

and drafting. He has not exercised his right to die. Applebome, An Angry Man

Fights to Die, Then Tests Life, N.Y. Times, Feb. 7, 1990, at |.

“Paul Brophy was forty-eight years old, unconscious or noncommunucative

due to an aneurysm, but not terminally ill.

nutrition/hydration for incompetent patient was requested);“ and

In re Browning, 568 So.2d 4 (Fla. 1990) (authorized surrogates to

withdraw life-sustaining treatment and tube feeding, without

expressed their wishes orally or in writing).

Fourth, there are cases where termination of life-sustaining

treatment was approved for persons who were incompetent and

never previously expressed their wishes regarding the use of life-

sustaining treatment: Barber v. Superior Court, 147 Cal. App. 3d

1006, 195 Cal. Rptr. 484 (1983) (held that provision of tube

feeding constitutes medical treatment that can be withheld from

persons who are comatose upon the request of the family); In re

Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) (held that a feeding

tube could be removed at the request of a guardian based upon the

patient's constitutional right of privacy and common law right to

informed refusal of medical treatment); Jn re Jobes, 108 NJ.

394, 529 A.2d 434 (1987) (held that a surrogate decisionmaker

may withhold feeding by tube even when the incompetent patient

has not left clear and convincing evidence of her intent);" and /n

re Smerdon, slip op. No. A-6031-89T1 (N.J. Super. Ct. App. Div.

1991) (held that a substitute judgment test should be applied when

there is no clear and convincing evidence that the incompetent

“Nancy Cruzan was thirty-four years old, unconscious or noncommunicative

due to an auto accident, but not terminaily ill.

“Estelle Browning was ninety years old, imcompetent due to a stroke, but

conscious and communicative. She suffered from an incurable but not necessarily

terminal illness. Her living will stated that tube feeding could be withheld or

withdrawn if she was terminally ill and death was imminent.

“Clarence Herbert, the subject of this lawsuit, was fifty-five years old,

comatose, but not terminally ill.

"Claire Conroy was eighty-three years old, incompetent but not comatose

or iM aN unconscious state, and not terminally ill.

“Nancy Jobes was thirty-one years old, unconscious or noncommunicative

due to an accident in surgery, but not terminally ill.

patient, while competent, wished to decline any medical treatment,

including tube feeding).”

Fifth, there are cases where termination of life-sustaining

treatment was approved for persons who had never been compe-

tent: In re Sue Ann Lawrance, 579 N.E.2d 32 (Ind. 1991) (held

that the Indiana Health Care Act permits families to decide, in

consultation with a physician, to withdraw life-sustaining treat-

ment, including tube feeding, from never-competent patients in

persistent vegetative state, without court approval, where there is

unanimity among those with tangible personal or professional

interest in the patient).

And finally, there are cases where termination of life-sustaining

treatment was approved for persons who were minors: /n re Swan,

569 A.2d 1202 (Me. 1990) (held that pre-accident declarations

made by a minor later left in a persistent vegetative state due to an

accident may be found sufficient to satisfy a determination that

clear and convincing evidence exists of the minor's decision to

discontinue life-sustaining treatment and feeding tubes).“'

Thus, based on the above decisions, the withdrawal of life-

sustaining treatment includes withdrawal of life-sustaining treat-

ment and tube feeding not only for those who are competent,

terminally ill, and voluntarily electing to end their lives, but also

persons who are comatose, in a persistent vegetative state, or

otherwise incompetent, even those who were never competent

including minors, whether they expressed their wishes prior to

incompetency or not. Terminal illness is not required, only

significant disabilities, or pain and suffering. For those who are

Theodore Smerdon was thirty-nine years old, unconscious and noncommun-

«ative due to a stroke, but responded to pain, touch and smell, and was not

terminally all.

“Sue Ann Lawrance was forty-two years old, had never been competent due

to mental retardation, was unconscious or noncommunicative due to a fall in

1987, but not terminally ill.

“'Chad Swan was seventeen years old, unconscious of noncommunicative due

to an automobile accident, but not terminally ill.

deemed competent, no psychological examination is required to

determine if they are suffering from depression or other psycholog-

ical disturbance. For those who are deemed incompetent, no clear

and convincing evidence of their prior expressed wishes is

required, only a surrogate’s decision based on substituted judg-

ment. In some states, no prior investigation, hearing, or approval

by a court or other state official is required, only the unanimous

agreement of family and physicians.

What was universally prohibited under traditional laws only a

couple of decades ago, has now become commonplace, without

significant safeguards for the patient, whether competent or not.

Having achieved this level of casual disregard for human life,

especially for those most vulnerable, we are now poised to leap

from withdrawal of treatment and tube feeding in order to cause

death, to the prescription of lethal doses, and under the equal

protection doctrine as established in various precedents, the

administration of lethal injections by syringe or intravenous line for

those unable to take lethal doses by mouth.

If this Court opens the door of intentional killing by lethal

dosing, there will be no effective safeguards for persons who are

incompetent, especially persons who are mentally disabled with

significant physical disabilities. The precedents cited above make

it clear that any new constitutional right of assisted suicide will

extend to persons who are not terminally ill, persons who are

merely disabled and/or suffering physically, and persons who are

comatose, in a persistent vegetative state, or otherwise incompe-

tent.

The question before this Court, although rather narrow in its

present construction, is likely to impact the vast majority of the

American people. Indeed, it will affect decisionmaking for

everyone except those who are lucky enough to die quickly while

in relatively good health and still living independently.

“Yale Kamisar, The Reasons So Many People Support Physician-Assisted

Suicide—And Why These Are Not Convincing, \2 Issues in Law & Med. 113, 129

(1996).

For these reasons it is clear that the recognition of a constitu-

tional right to assisted suicide will not be limited to persons who

are competent, terminally ill, and otherwise making a voluntary

decision.

CONCLUSION

For the above reasons, your amici respectfully pray this Court

(1) to hold that there is no right to assisted suicide in the Constitu-

tion of the United States, and (2) to reverse and/or vacate the

decisions of the United States Courts of Appeals for the Second

and Ninth Circuits.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Barry A. Bostrom

Richard E. Coleson

Bopp, COLESON & BOSTROM

401 Ohio Street

P.O. Box 8100

Terre Haute, IN 47808-8100

Telephone (812) 232-2434

November 12, 1996 Counsel for Amici Curiae

AMICUS CURIAE

BRIEF

v1 Supreme Court, U.S.

Nip} (42, FLED

Nos. 96-110, 96-1858 NOV 12 1996

IN THE : CLERK

Supreme Court of the United States

OCTOBER TERM, 1996

STATE OF WASHINGTON, ef al.,

. Petitioners,

HAROLD GLUCKSBERG, M.D.., et ail.,

Respondents.

DENNIS C. Vacco, et al.,

Petitioners,

Vv.

Timothy E. QuiILt, M.D.., et al.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Ninth and Second Circuits

BRIEF AMICUS CURIAE OF

THE AMERICAN HOSPITAL ASSOCIATION

IN SUPPORT OF PETITIONERS

FREDRIC J. ENTIN MICHAEL K. KELLOGG

JAMES A. HENDERSON Counsel of Record

MARGARET J. HARDY NEIL M. GORSUCH

AMERICAN HOSPITAL KELLOGG, HUBER, HANSEN, Topp

ASSOCIATION & EVANS, P.L.L.C.

One North Franklin 1301 K Street, N.W.

Chicago, IL 60606 Suite 1000 West

(312) 422-3000 Washington, D.C. 20005

(202) 326-7900

Attorneys for Amicus Curiae

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

C. States Have Compelling Reasons to Ban Phy-

sician-Assisted Suicide ............

Il. THERE IS A RATIONAL BASIS FOR THE

DISTINCTION BETWEEN ASSISTED SUI-

CIDE AND THE REFUSAL OF MEDICAL

TREA

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

Application of the President & Directors of George-

town College, 331 F.2d 1000 (D.C. Cir. 1964)... 17

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

Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal.

App. 1986) 17

Bowers v. Hardwick, 478 U.S. 186 (1986) —............. 4,8

City of Cleburne v. Cleburne Living Ctr., Inc., 478

U.S. 482 (1985) .......... 18

Collins v. City of Harker Heights, 503 U.S. 115

CRED cncccecoccsisessctuinsiisisipccasitaniinslidubgam iia adcseianias 5

Commonwealth v. Bowen, 18 Mass. 356 (1816)... ll

Compassion in Dying v. State of Washington, 49

F.3d 586 (9th Cir. 1995) shia 7

Compassion in Dying v. State of Washington, 79

F.3d 790 (9th Cir. 1996) -.....22...2...-2-220-cceeececeneeceeees 5, 6, 12

Compassion in Dying v. State of Washington, 85

F.3d 1440 (9th Cir. 1996) 2.222222... eee eee 8

Cruzan v. Missouri, 497 U.S. 261 (1990) —............... passim

Eichner v. Dillon, 426 N.Y.2d 517 (1980) ............... 17

Gospodareck v. State, 666 So. 2d 835 (Ala. Crim.

App. 1998) ................-.0-+ 10

In re Claire C. Conroy, 486 A.2d 1209 (N.J. 1985). 17

McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990) ....... 17

Michael H. v. Gerald D., 491 U.S. 110 (1989) ......... 10

Moore v. City of East Cleveland, 431 U.S. 494

QBOUUY ncctccevtaisiscidsieshasiuiianteaniiiieaee aaa 3

Palko v. Connecticut, 302 U.S. 319 (1937) ~............ 3

People v. Matlock, 336 P.2d 505 (Cal. 1959) .......... 10

People v. Roberts, 178 N.W. 690 (Mich. 1920) ...... ll

Planned Parenthood v. Casey, 505 U.S. 833 (1992).. 5,7

Quill v. Vacco, 80 F.3d 716 (1996) 15

Roe v. Wade, 410 U.S. 118 (19738) 6,8

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

BITE ccovisicntuieisinadaid 17

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

UWB. 1 (ROGER ncqcrnssisetcmmteiseees 13

Snyder v. Massachusetts, 291 U.S. 97 (19384) —....... 9

State v. Bouse, 264 P.2d 800 (Ore. 1958) ................ ll

State v. Cobb, 625 P.2d 1133 (Kan. 1981) .............. 10

iii

TABLE OF AUTHORITIES—Continued

State v. Fuller, 278 N.W.2d 756 (Neb. 1979) ..........

State v. Mays, 307 S.E.2d 655 (W. Va. 1983) _...

Turner v. State, 108 S.W. 1139 (Tenn. 1907) .........

OTHER MATERIALS

Sir William Blackstone, Commentaries on the Laws

I tcineacicterermeteeermenmmens

John Bouvier, Law Dictionary and Concise En-

cyclopedia (3d ed. 1914) ...... ae SE Se

Daniel Callahan, The Troubled Dream of —

Living with Mortality (1993) .

Edward R. Grant and Pau! B. Linton, Relief o or r Re-

proach?: Euthanasia Rights in the Wake of

Measure 16, 74 Ore. L. Rev. 449 (1995) ........... :

Sir Matthew Hale, 1 Pleas of the Crown (1847).

House of Lords, Report of the Select Committee

on Medical Ethica (1994) 0...

——_ R. LaFave & Austin W. Scott, Criminal

Thomas J. Marzen, Mary K. O'Dowd, Daniel Crone

& Thomas J. Balch, Suicide: A Constitutional

Right?, 24 Duquesne L. Rev. 1 (1985) _..............

Alan Meisel, The Right to Die (1992 Supp.) ia

Model Penal Code and Commentaries § 210.5

EEE EL ee

N.Y. Penal Law § 120.30 (McKinney 1987) .

N.Y. Penal Law § 125.15 (McKinney 1987). .

New York State Task Force on Life and the Law,

When Death is Sought: Assisted Suicide and

Euthanasia in the Medical Context (May 1994). 15, 16,

Jacquelyn A. Beatty, Comment, Artificial Nutrition

and the Terminally Ill: How Should Washington

Decide?, 61 Wash. L. Rev. 419 (1986)

Sir James Fitzjames Stephen, 2 A History of the

Criminal Law of England (1883) ......................

Wharton's Criminal Law (Charles E. Torcia, ed.

E. Wingate, Justice Revisited: Being the Whole

Office of a County Justice of the Peace (1661)...

In THE

Supreme Conrt of the United States

OcToBer TERM, 1996

Nos. 96-110, 96-1858

STATE OF WASHINGTON, ¢t al.,

2 Petitioners,

HarRo_D GLUCKSBERG, M.D.., et al.,

Respondents.

Dennis C. Vacco, et al.,

Petitioners,

TrmorTny E. Quit, M.D., et al.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Ninth and Second Circuits

BRIEF AMICUS CURIAE OF

THE AMERICAN HOSPITAL ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

(“AHA”), respectfully submits this brief in support of

Petitioners in State of Washington v. Glucksberg, No. 96-

110, and Vacco v. Quill, No. 96-1858."

Se nena ae ee on teks deeds eee

ents in both cases to the filing of this brief. Letters indicating

their consent have been filed with the Clerk of the Court.

E |

ethical guidelines addressing the roles of patients, famil-

ies, guardians, physicians, and hospitals involved in

termination-of-care decisions.

The AHA and its members have a vital interest in

the outcome of Glucksberg and Quill. If a constitu-

tional right to physician-assisted suicide is recognized,

AHA members will be called upon to assist in the suicide

of patients on a daily basis in hospitals across the country.

In the view of the AHA, recognition of such a right would

create an administrative nightmare for hospitals and

other health-care providers as courts struggle to define the

parameters of this new right. For this and other reasons

described below, the AHA joins virtually every medical

association and governmental panel to study the issue

2 See, e.g., Brief of the AHA as Amicus Curiae, in Support of

Petitioners in Cruzan v. Director of Missouri Dep't of Health, No.

88-1508 (S. Ct. Sept. 1, 1989) (urging recognition of right to

refuse medica) treatment).

SUMMARY OF ARGUMENT

The American Hospital Association supports the right

of every patient to choose whether or not to accept medi-

cal treatment. This right includes the right to forego even

life-sustaining medical treatment, including artificially de-

livered food and water. Patients, in consultation with

their families and their physicians, should be able to make

such determinations free from government interference.

The right of a patient to accept or reject medical treat-

ment is in keeping with a doctor’s well-recognized obliga-

tion not to force treatment on an unwilling patient. It is

also consistent with this Court’s precedents and with the

deeply-rooted traditions of this country.

A right to physician-assisted suicide, by contrast, finds

no basis in the text or structure of the Constitution or

in this Court’s precedents. Nor is such a right so “deeply

rooted in this Nation’s history and tradition,” Moore v.

City of East Cleveland, 431 U.S. 494, 503 (1977), that

it may be deemed “fundamental” or “implicit in the con-

cept of ordered liberty,” Palko v. Connecticut, 302 U.S.

319, 325 (1937). To the contrary, physician-assisted

suicide has long been illegal and continues to be so in

the vast majority of states.

The American Hospital Association does not endorse

State statutes criminalizing physician-assisted suicide. But

the AHA cannot accept the assertion that the Constitution

pr.tudes such statutes. Under our system of government,

diemocratically-elected officials should be able to grapple

with this difficult issue free from “a background of federal

cunstitutional imperatives that are unknown because they

are being newly crafted from Term to Term.” Cruzan

v. Missouri, 497 U.S. 261, 293 (1990) (Scalia, J., con-

curring). Hospitals, medical associations, individual phy-

sicians, and their patients and communities should all be

able to take part in shaping public policy on this issue

based on ethical, medical, and political considerations.

The Constitution does not preempt such informed dialogue.

Accordingly, the AHA believes that the Ninth Circuit

decision being reviewed by this Court is both wrong and

profoundly damaging to our constitutional scheme. The

AHA also believes that the Second Circuit erred in fail-

ing to recognize a rational distinction betwecn assisted

swicide and the right to refuse medical care, which the

AHA has long-championed.

ARGUMENT

I. THERE IS NO CONSTITUTIONALLY-PROTECTED

LIBERTY INTEREST IN PHYSICIAN-ASSISTED

SUICIDE

A. A Constitutionally-Protected Liberty Interest in

Physician-Assisted Suicide Has No Basis in the Text

or Structure of the Constitution or in This Court’s

Precedents

This Court has been understandably reluctant in recent

years to expand the range of substantive due process

rights protected by, though not mentioned in, the

Constitution.

The Court is most vulnerable and comes nearest to

illegitimacy when it deals with judge-made constitu-

tional laws having little or no cognizable roots in the

language or design of the Constitution. That this is

so was painfully demonstrated by the face-off between

the Executive and the Court in the 1930's, which

resulted in the repudiation of much of the substantive

gloss that the Court had placed on the Due Process

Clauses of the Fifth and Fourteenth Amendments.

There should be, therefore, great resistance to expand

the substantive reach of those Clauses, particularly if

it requires redefining the category of rights deemed

to be fundamental. Otherwise, the Judiciary neces-

sarily takes to itself further authority to govern the

country without express constitutional authority.

Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986).

cisions of this Court, neither of which will

weight. See Compassion in Dying v. State of Washing-

ton, 79 F.3d 790, 812-16 (9th Cir. 1996) (relying on

Cruzan and Planned Parenthood v. Casey, 505 U.S. 833

(1992)).

In Cruzan, 497 U.S. at 278, the Court correctly recog-

nized that its prior decisions supported “[t}he principle

that a competent person has a constitutionally protected

liberty interest in refusing unwanted medical treatment.”

At common law, every individual had a right to “bodily

integrity,” to be free of any physical intrusion without

consent. Any unconsented to touching was a battery. Out

of this right to be free of battery grew the doctrine of

“informed consent” and its “logical corollary,” which is

that “the patient generally possesses the right not to con-

sent, that is, to refuse treatment.” /d. at 269-70. The

right to refuse treatment was universally recognized in

State law cases and in a series of Due Process Clause

decisions leading up to Cruzan. Id. at 269-78.

In Cruzan, the Court assumed without deciding that

“under the general holding of our cases, the forced admin-

istration of life-sustaining medical treatment, and even of

artificially delivered food and water essential to life, would

implicate a competent person’s liberty interest.” Jd. at

279. In other words, the Court assumed that the long-

recognized right to refuse medical treatment includes the

right to refuse even treatment necessary to sustain life.

The Ninth Circuit has taken that assumption, which was

well-grounded in the Court’s precedents, and run with it

into a wholly “uncharted area” where the “guideposts for

responsible decisionmaking . . . are scarce and open-

ended.” Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992).

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