Amicus Curiae Brief — Vacco v. Quill

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NOV 12 1996

IN THE

CLERK

Supreme Court of the united Stokes —

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,

—_Y,—

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

and HOWARD A. GROSSMAN, M.D..,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE MEDICAL SOCIETY OF NEW JERSEY

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

VINCENT A. MARESSA PAUL W. ARMSTRONG*

NEIL E. WEISFELD R. BRUCE CRELIN

THE MEDICAL SOCIETY TIMINS, LARSEN, BEACHAM

OF NEW JERSEY & HUGHES

Two Princess Road 85 Livingston Avenue

Lawrenceville, New Jersey 08648-2302 Roseland, New Jersey 07068

(609) 896-1766 (201) 740-1771

* Counsel of Record

12 November 1996

TABLE OF CONTENTS

I. THE ETHOS OF MEDICINE DOES NOT

COUNTENANCE ASSISTANCE IN SELF-

DESTRUCTION

A. History and Tradition Forbid Physician

Assistance in Patient Suicide

Decisions To Forego Life-Sustaining

Treatment Are Profoundly Separate from

Elections To Assist in Patient Self-

Destruction

STATES HAVE THE CONSTITUTIONAL

COMPETENCE TO PROHIBIT ASSISTANCE

IN SELF-DESTRUCTION

A. New Jersey Has a Rich Juridical and

Legislative Tradition Regarding Patient

Autonomy in Treatment Decisions, Which

Explicitly Rejects the Concept of Physician

Assisted Self-Destruction

Past Pronouncements of This Court Inform

and Authenticate Prohibitions Against

Assistance in Self-Destruction

. PAGE

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———

iil

TABLE OF AUTHORITIES

Cases PAGE

Bartling v. Superior Court,

163 Cal. App.3d 186, 209 Cal. Rptr. 220

(Cal. Ct. App. 1984) ..... Sedbadidduhdéondebéentess 14

Blackburn v. State,

23 Ohio St. 146 (Ohio 1972)...................... 17

Brophy v. New England Sinai Hosp..,

398 Mass. 417, 497 N.E.2d 626 (1986)..... aaa “14

Commonwealth v. Mink,

ES Rr Tre 16

Cruzan v. Director, Missouri Health Dept.,

EERE 15-16

Foody v. Manchester Memorial Hosp.,

20 Conn. Supp. 127, 482 A.2d 713

Ss PE cehechscdgbhedecseesccoccevessocs: 14

In re Colyer,

©9 Wash.2d 114, 660 P.2d 738 (1983) ............ 14

In re Conroy,

98 N.J. 321, 486 A.2d 1209 (1985).......... 5, 6, 12-13

In re Eichner,

52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266,

cert. denied, 454 U.S. 858 (1981) ......... se 14

In re Quinlan,

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

sub nom. Garger v. New Jersey,

ED + ccdkecceebsdscerccsesece 5, 6, 11-12

iv

PAGE

dical Center,

Leach v. Akron General Me

© 68 Ohio Mise. 1, 426 N.E.2d 809

(Ohio Com. BA, IGG) . 0c cnccccscccsoccecssesseress

Farrell, ee

ae 335, 529 A.2d 404 (1987)... .--5 528 5.13

trer of Jobes, &

5 per 394, 529 A.2d 434 (1987) ...--s00 eee

Peter by Johanning, i.

as. 365, 529 A.2d 319 (1987) ..---2eeeee ee 5,

_ Kevorkian,

ae sich. 436, 527 N.W.2d 714 (Mich. 1994) ... 16

ew Sen Be Sahel ahs ‘es

” 80 F.3d 716 (2d Cir. 1996)...----s0e0 rere

_ Perlmutter,

_ 362 So.2d 160 (Fla. Dist. Ct. App. 1978),

- 14

aff'd, 379 So.2d 359 (Fla. 1980) ....----eeee8?

. Jones, m=

sone’ S.C. 17, 67 S.E. 160 (S.C. 1910) .------55200*

ee eS Ped ee ee ok m

121 S.E.2d 854 (N.C. 1961) «----eer 000

Statutes E

Ala. Code, § SOA BA cccasvencecsvenpeventerenennennn °

Alaska Stat., § 11.41.120(a)(2) «---eeeerereeee :

Ariz. Rev. Stat. Ann., § 13-1103(A)(3) «--- errr

ediade 1

Ark. Stat. Ann., § §-10-104(a)(2)-----eeerr rrr 7

Cal. Pen. Code, § BA . Me ccecccccccescccsosesenesseser®

PAGE

Colo. Rev. Stat., § 18-3-104(1)(b) ..... 2.2.20... cece eee 16

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ad. COGS Aah... GB: FE BOG cccccccscvccccccscccscoss 16

0 BR Re eee ee 16

en, Ge A Oe NS oi hs co contealbubesniane 16

Ti. Comp. Stat. ch. 720, S/12-31 ..... 20. ceesscccecees 16

Ind. Stat. Ann., § 35-42-1-2.5(b) ............. ccc ee eues 16

la. Code, §§ 707A.1, 707A.2 and 707A.3, as amended

by Acts of the 76th General Assembly, 1996

NII cnt cecccccctdcccccocedécccsckssconsscveseées 16

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Me. Rev. Stat. Ann., tit. 17-A, § 204 .................. 16

es Gs SO co bac ccdcceceecondesuncodes 16

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Mo. Ann. Stat., § 565.023(1)(2) ..... 2.2... 6. cece eeeees 17

Mont. Code Ann., § 45-5-105 ...... 6... ccc cece ee eees 17

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N.M. Stat. Anm., § 30-2-4 .... 00... cece eee cece ee eeees

N.Y. Penal Law, §§ 120.30, 125.15(3) ................

N.D. Cent. Code., § 12.1-16-04... 2.2.0.6... cece eens

Okla. Stat. Ann., tit. 21, §§ 813-818..................

T3,4° 9S 3. SP. Pree

P.R. Laws Ann., tit. 33, § 4009 ..... 2.0... cece eee nne.

S.D. Codified Laws Ann., § 22-16-37 ..............-.

Tenn. Code Ann., § 39-13-216.... 2.0... ccc cece ce eees

. Oe, be. F. SP) PPP ee

V.I. Code Ann., tit. 14, § 2141 ............-.045. dinean

Wash. Rev. Code Ann., § 9A.36.060..................

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Wyo. Stat., § 6-2-107 ..... 2... cece cece eect e eee ee eens

Other Authorities

American Medical Association,

Current Opinions of the Council on Ethical

and Judicial Affairs of the American Medical

Association, Opinion 2.20, Withholding or

Withdrawing Life-Sustaining Medical

PR CRIED: occcscccccscsséosucenccesenceoves

American Medical Association,

Current Opinions of the Council on Ethical

and Judicial Affairs of the American Medical

Association, Opinion 2.21, Euthanasia (1994)...

vil

PAGE

American Medical Association,

Current Opinions of the Council on Ethical

and Judicial Affairs of the American Medical

Association, Opinion 2.211, Physician Assisted

cole ciara it. eee es ls 4,9

American Medical Association,

Current Opinions of the Council on Ethical and

Judicial Affairs of the American Medical

Association, Opinion 9.12 (1994)

Hastings Center,

Guidelines on the Termination of Life Sustaining

Treatment and the Care of the Dying (1987)

Hippocrates, The Oath

(W.H.S. Jones trans., Loeb Classical Library

DU ddideddidhdeensendseuiniteschseddeleeiente<ke 4

Medical Society of New Jersey,

Statement on Physician Assisted Suicide

Dcebtashdsneinttnededaashtsenbenabisionsed 3, 5, 6,9

Medical Society of New Jersey,

Policy Statement on Physician Administered

Injections As a Means of Execution

Du ditteheusdaddbabdeshlehabdhnehésctenedaneds. 5

National Center for State Courts,

Guidelines for State Court Decision Making in

Authorizing or Withholding Life-Sustaining

Medical Treatment (1991)

New Jersey Commission on Legal and Ethical

P; oblems in the Delivery of Health Care,

The New Jersey Advance Directives for Health

Care and Declaration of Death Acts: Statutes,

Commentaries and Analyses (1991) .............. 7,8

Vill

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

When Death Is Sought: Assisted Suicide and

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

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and

Behavioral Research, Deciding to Forego Life

Sustaining Treatment (1983)

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PAGE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-1858

>

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 C. KLAGSBRUN, M.D.;

and HOWARD A. GROSSMAN, M.D.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

>

BRIEF OF THE MEDICAL SOCIETY OF

NEW JERSEY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

Amicus Curiae, the Medical Society of New Jersey (MSNJ),

respectfully submits this brief in support of the Petitioners.

The MSNJ has obtained the written consent of both the Peti-

tioners and the Respondents to the filing of this brief amicus

curiae.'

Founded in 1766, the MSNJ (our nation’s first state society

of physicians) is the primary organization of physicians in

New Jersey. Approximately nine thousand five hundred physi-

cians hold individual memberships in the MSNJ. For more

than 230 years, the Medical Society of New Jersey has been

the state’s leading voice in the health care field. The MSNJ's

mission is to promote the quality of health care and health

services for all citizens of the state and to supply leadership

and assistance to its physician members. To fulfill this mis-

sion the MSNJ regularly participates in impo.tant issues in

the judicial, legislative and regulatory arenas.

The MSNJ has played a leadership role concerning con-

temporary legal and ethical issues confronting modern med-

ical practice and has historically helped to shape and

implement landmark judicial and legislative initiatives con-

cerning life sustaining technologies and end of life deci-

sionmaking. Through its Committee on Biomedical Ethics,

the MSNJ has developed policies and positions addressing the

roles of physicians, patients and hospitals and their con-

comitant rights, duties and obligations to the larger society

physicians are privileged to serve.

As a leader in the health care field, as the representative of

those physicians who bear the primary and sacred responsi-

bility for the integrity of the medical profession, and as a con-

tributor to the legal, medical and ethical debate, the MSNJ is

vitally concerned about the lack of precedent, measure, bal-

ance and wisdom in the decision of the Second Circuit, Quill

v. Vacco, 80 F.3d 716 (2d Cir. 1996), legitimizing assistance

in patient self-destruction. This ruling is clearly violative of

the duties, prerogatives and responsibilities of the healing

professions.

' The letters providing consent from all parties have been filed

with the Clerk of the Court.

3

SUMMARY OF ARGUMENT

The physician members of the Medical Society of New Jer-

sey, as pioneers in developing and guardians in the exercise

of patients’ rights,’ submit that the past pronouncements of

this Court justify state initiatives, which are informed and

authenticated by the ethos of medicine, prohibiting assistance

in patient self-destruction.

ARGUMENT

Informed, compassionate decision making routinely occurs

within the physician-patient relationship. Since time out of

memory, the ethical traditions of medicine have affirmed life

as sacred and prohibited its taking. This Court should reject

the Second Circuit’s invitation to contemn the ancient canons

of the healing arts.

I. THE ETHOS OF MEDICINE DOES NOT COUNTE-

NANCE ASSISTANCE IN SELF-DESTRUCTION

A. History and Tradition Forbid Physician Assis-

tance in Patient Suicide

The prohibition of physician assistance in patient self-

destruction is as deeply rooted as any tradition defining the

ethical practice of medicine. Ancient and contemporary med-

ical canons have, for millennia, affirmed the sacredness of

human life and enjoined purposeful medical assistance in

killing the patient.

2 ‘The MSNJ’s position should not be irterpreted in any way so as

to compromise the ethically and legally protected right of terminally il!

patients to participate fully in treatment decisions at the end of life,

including the right to execute and implement advance directives and to

refuse or request the withdrawal of aggressive forms of medical treatment

which in the informed opinion of the patient impose burdens which out-

weigh the benefits. See Medical Society of New Jersey, Statement on

Physician Assisted Suicide, App. A.

4

In 410 B.C., Hippocrates charged practitioners of the

medical arts to“. . . give no deadly medicine to anyone if

asked, nor suggest any such counsel.”’ Two thousand, four

hundred and four years later, the American Medical Associ-

ation affirmed this signal conviction in § 2.211 of its Code of

Medical Ethics:

Physician Assisted Suicide. Physician assisted suicide

occurs when a physician facilitates a patient’s death by

providing the necessary means and/or information to

enable the patient to perform the life-ending act (e.g., the

physician provides sleeping pills and information about

the lethal dose, while aware that the patient may commit

suicide). It is understandable, though tragic, that some

patients in extreme duress-such as those suffering from

a terminal, painful, debilitating illness-may come to

decide that death is preferable to life. However, allowing

physicians to participate in assisted suicide would cause

more harm than good. Physician assisted suicide is fun-

damentally incompatible with the physician’s role as_

healer, would be difficult or impossible to control, and

would pose serious societal risks. Instead of participat-

ing in assisted suicide, physicians must aggressively

respond to the needs of patients at the end of life.

Patients should not be abandoned once it is determined

that cure is impossible. Patients near the end of life must

continue to receive emotional support, comfort care, ade-

quate pain control, respect for patient autonomy, and

good communication.‘

Mindful of its central role in helping to shape and imple-

ment several landmark judicial opinions and legislative

Hippocrates, The Oath (W.H.S. Jones trans., Loeb Classical

Library 1923).

* See AMA Council on Ethical and Judicial Affairs, Code of

Medical Ethics: Current Opinions (“Code of Medical Ethics”) § 2.211,

App. E.

initiatives concerning life sustaining technologies and end of

life decisions,* the Medical Society of New Jersey has iterated

the core of the profession’s long standing opposition to the

unlawful taking of human life: “Moreover, under physician

assisted suicide, the medical profession’s devotion to healing

and refusal to kill, its ethical center, would be destroyed along

with patient trust and physician self-constraint. Physicians do

not require the tool of death.”®

Throughout history it has been the physician’s duty and

responsibility to attend to the sick and dying. The members of

the MSNJ hold that this sacred trust is best discharged by

unwavering fidelity to ancient mileposts which respect that

human life is sacred and that the healing arts adhere to the

inviolable rule that doctors must not kill.’

The Medical Society of New Jersey submits that under

these policies, the patient’s role as the focal point of medical

decision making is safeguarded and the integrity of the physi-

cian-patient relationship preserved by precluding the under-

mining acts which intentionally cause the death of the patient.

The members of the Medical Society of New Jersey routinely

rely upon these fundamental maxims when providing care to

all patients.

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

Garger v. New Jersey, 429 U.S. 922 (1976); In re Conroy, 98 N.J. 321,

486 A.2d 1209 (1985); Matter of Farrell, 108 N.J. 335, 529 A.2d 404

(1987); Matter of Peter by Johanning, 108 N.J. 365, 529 A.2d 319

(1987); Matter of Jobes, 108 N.J. 394, 529 A.2d 434 (1987); N.J.S.

26:2H-53 to 78 and N.J.S. 52:27G-5.1 to 25.1.

6 See Medical Society of New Jersey, Statement on Physician

Assisted Suicide, | November 1996, App. A.

7 Of an important ethical piece is the 12 September 1982 Medical

Society of New Jersey Policy Statement on Physician Administered

Injections As a Means of Execution, which holds that “. . . participa-

tion would undermine the moral and ethical foundations of medicine.”

App. B.

6

B. Decisions To Forego Life-Sustaining Treatment

Are Profoundly Separate from Elections To

Assist in Patient Self-Destruction

An individual’s constitutional right to refuse life-prolong-

ing medical treatment was first embraced by the New Jersey

Supreme Court in its seminal decision concerning the plight

of Karen Ann Quinlan, /n re Quinlan, 70 N.J. 10, 355 A.2d

647, cert. denied sub nom. Garger v. New Jersey, 429 U.S.

922 (1976), and numerous state courts have affirmed the pre-

rogatives reflected in the Medical Society of New Jersey’s

commitment to respect for patient decisions.®

Citing this Court and specific articles of the New Jersey

constitution, the unanimous Quinlan court held: “We would

see . . . a real distinction between the self-infliction of

deadiy harm and a self-determination against artificial life

support. . . in the face of irreversible, painful and certain

imminent death.” Quinlan, 70 N.J. at 43.°

Scholarly support for this crucial distinction is legion and

the President’s Commission for the Study of Ethical Problems

in Medicine and Biomedical and Behavioral Research under-

scored the critical variance: “. . . although declining to start

or continue life-sustaining treatment is often acceptable,

health care providers properly refuse to honor a patient's

request to be directly killed. Not only would killing, as

by violence or strychnine, be outside the bounds of accepted

medical practice, but as murder it would be subject to a range

* See National Center for State Courts, Guidelines for State Court

Decision Making in Authorizing or Withholding Life-Sustaining Medical

Treatment (1991), and Appendix A, the MSNJ’s Statement on Physician

Assisted Suicide.

° Since the Quinlan decision, state courts have uniformly

embraced the significant moral and legal distinctions between letting die

and killing (assisted suicide and euthanasia). See also In re Conroy, 98

N.J. at 350-351, National Center for State Courts, Guic elines, cited in

f.n. 7, supra.

of criminal sanctions, regardless of the provider’s motives.”

Deciding to Forego Life Sustaining Treatment (1983), at

63-64.

Widespread medical and public concern about drawing a

line between a patient’s right to choose medical treatment, on

one side, and euthanasia or “mercy killing” and physician

assistance in self-destruction, on the other led the Hastings

Center to promulgate its report Guidelines on the Termination

of Life Sustaining Treatment and the Care of the Dying

(1987). While firmly endorsing the right of a competent

patient, or surrogate for an incompetent patient, to forego life-

sustaining medical treatments, the Guidelines roundly

rejected euthanasia and assisted suicide:

Medical tradition and customary practice distinguish in

a broadly acceptable fashion between the refusal of med-

ical interventions and intentionally causing death or

assisting suicide. This tradition does not hold the health

care professional morally responsible for the death of a

patient when life-sustaining treatment is refused and the

professional’s purpose is not to cause death, but to honor

the refusal. Similarly, the tradition defends the admin-

istration of a treatment that may hasten death when the

professional’s purpose is to relieve pain and suffering

and the patient or surrogate consents. By contrast, this

tradition does not permit administering massive doses of

sedatives for the purpose of bringing about death, even

if requested by the patient or surrogate.

Guidelines at 128.

The New Jersey Commission on Legal and Ethical Prob-

lems in the Delivery of Health Care and its sister commis-

sion, The New York State Task Force on Life and the Law,

concluded that while competent adults have the fundamen-

tal right, in collaboration with their health care providers,

to control decisions about their medical care, that preroga-

tive is not absolute and is subject to certain interests of soci-

ety.'° In its 1994 report, When Death is Sought: Assisted Sui-

cide and Euthanasia in the Medical Context, the New York

Task Force unanimously recommended that:

New York laws prohibiting assisted suicide and

euthanasia should not be changed. In essence, we pro-

pose a clear line for public policies and medical practice

between foregoing medical interventions and assistance

to commit suicide or euthanasia. Decisions to forego

treatment are an integral part of medical practice; the use

of many treatments would be inconceivable without the

ability to withhold or to stop the treatments in appro-

priate cases. We have identified the wishes and interests

of patients as the primary guideposts for those decisions.

Assisted suicide and euthanasia would carry us into new

terrain - American society has never sanctioned assisted

suicide or mercy killing. We believe that the practices

would be profoundly dangerous for large segments of the

population, especially in light of the widespread failure

of American medicine to treat pain adequately or to

diagnose and treat depression in many cases. The risks

would extend to all individuals who are ill. They would

be most severe for those whose autonomy and well-being

are already compromised by poverty, lack of access to

good medical care, or membership in a stigmatized

social group. The risks of legalizing assisted suicide and

euthanasia for these individuals, in a health care system

and society that cannot effectively protect against the

impact of inadequate resources and ingrained social dis-

advantage, are likely to be extraordinary.

When Death Is Sought at vii-viii.

10 New Jersey Commission on Legal and Ethical Problems in

the Delivery of Health Care, The New Jersey Advance Directives for

Health Care and Declaration of Death Acts: Statutes, Commentaries and

Analyses (Princeton, 1991), App. F.

9

The policies and pronouncements of the Medical Society of

New Jersey and the American Medical Association have

helped to shape the broad legal and ethical consensus sur-

rounding the recognition and vindication of patients’ rights to

forego life sustaining treatments'' as well as prohibitions

against assistance in their self destruction."

Within the physician-patient relationship, physicians have

a legal and ethical duty to the patient to ensure that treatment

decisions are made which foster and protect the patient's best

interests. See American Medical Association, Current Opin-

ions of the Council on Ethical and Judicial Affairs of the

American Medical Association, Opinion 9.12 (1994). This

duty extends to assisting our nation’s highest tribunal as soci-

ety wrestles with a critical case of first impression. The physi-

cian-patient relationship has historically played a central role

in guarding the patient from treatment decisions which are

inconsistent with sound medical practice and ethical conduct.

The members of the Medical Society of New Jersey submit

that, by curing the failure of the Second Circuit's opinion to

constitutionally recognize the critical variance between

refusal of life-sustaining treatment and assistance in self-

destruction, this Court will restore respect for patient

sovereignty deeply rooted in accepted medical, ethical and

legal principles.

“ American Medical Association Opinion 2.20: Withholding or

Withdrawing Life-Sustaining Medical Treatment, App. C.

a2 Medical Society of New Jersey, Statement on Physician Assisted

Suicide, App. A. American Medical Association Opinion 2.20; Wirh-

holding or Withdrawing Life-Sustaining Medical Treatment, App. C.

American Medical Association Opinion 2.211, Physician Assisted Sui-

cide, App. E. American Medical Association Opinion 2.21; Euthanasia,

App. D.

10

il. STATES HAVE THE CONSTITUTIONAL COMPE-

TENCE TO PROHIBIT ASSISTANCE IN SELF-

DESTRUCTION

The Second Circuit's decision in Quill v. Vacco, 80 F.3d

716 (2d Cir. 1996), is based upon a flawed Fourteenth

Amendment analysis, grounded upon an assertion there is no

meaningful distinction between the refusal of medical pro-

cedures which might prolong life and the taking of affirmative

steps which are sure to end it.’ Relying upon case law hold-

ing that a competent patient has a right to forego or refuse

life-sustaining medical treatment, the Second Circuit found a

Fourteenth Amendment “liberty interest” which prevents a

state from enacting laws against physicians assisting in the

affirmative destruction of their patients. The Second Circuit

held that such laws were not “rationally related” to any “legit-

imate governmental interest,” and are therefore constitu-

tionally infirm.

A fundamental fault in the Second Circuit's reasoning is the

assumption that patient autonomy and the right to refuse life-

sustaining treatment constitute a recognition of some con-

stitutionally protected “right to die.” The MSNJ and its

physician members were in the forefront of the debate on

these issues, participating in landmark cases before the

Supreme Court of New Jersey which were the first in the

nation to recognize and define the rights of patients near the

end of life. The right of a competent patient to refuse treat-

ment at life’s end is simply an extension of the right to

informed participation in treatment decisions during life, and

is by no means a right to end life, no matter what the reasons.

‘> This assertion leads inexorably to an even more difficult ques-

tron: if there is no such legally cognizable difference, then how can a dis-

tinction be drawn between the right of a terminally ill patient to destroy

his own life via physician assisted suicide and the right of a patient who

is severely debilitated or in intense, constant pain, but whose condition

iS not terminal, to similar “aid” in terminating his?

11

Past pronouncements of this Court as well recognize this cru-

cial distinction.

As fully set forth in the first point of this brief, the medical

profession has long-standing historical and ethical prohibi-

tions against taking the lives of its patients. The states are

constitutionally competent to rely upon these prohibitions to,

in part, provide a rational basis to support statutes against

assisted self-destruction.

A. New Jersey Has a Rich Juridical and Legislative

Tradition Regarding Patient Autonomy in Treat-

ment Decisions, Which Explicitly Rejects the

Concept of Physician Assisted Self-Destruction

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

nom. Garger v. New Jersey, 429 U.S. 922 (1976), the Supreme

Court of New Jersey recognized that the state has an interest

in “the preservation and sanctity of human life,” 70 NJ. at 40,

but that this interest had to be balanced against a patient's

Fourteenth Amendment privacy right to refuse invasive med-

ical procedures:

We think that the State's interest [in preserving life]

weakens and the individual’s right to privacy grows as

the degree of bodily invasion increases and the progno-

sis dims. Ultimately there comes a point at which the

individual's rights overcome the State interest. It is for

that reason that we believe Karen’s choice, if she were

competent to make it, would be vindicated by the law.

Her prognosis is extremely poor,—she will never resume

cognitive life. And the bodily invasion is very great,—

she requires 24 hour intensive nursing care, antibiotics,

the assistance of a respirator, a catheter and a feeding

tube.

Quinlan, 70 N.J. at 41.

12

With regard to physician assisted self-destruction, there is

simply no right which may be balanced against the state's

interest in “the preservation and sanctity of human life.”

A privacy interest in refusing medical intervention is in no

way congruent with the liberty interest in suicide articulated

by the Second Circuit. This was explicitly recognized by the

Quinlan court:

We would see, however, a real distinction between the

self-infliction of deadly harm and a self-determination

against artificial life support or radical surgery, for

instance, in the face of irreversible, painful and certain

imminent death.

Quinlan, 70 N.J. at 43. Under this rationale, a state certainly

has a “rational basis” to draw a distinction between refusal of

medical treatment and active self-destruction.'*

The New Jersey Supreme Court again had occasion to con-

sider the right to refuse medical intervention in /n re Conroy,

98 N.J. 321, 486 A.2d 1209 (1985). The court did not artic-

ulate anything which could be construed as a “right to die.”

The case involved “the circumstances under which life-sus-

taining treatment may be withheld or withdrawn from incom-

petent, institutionalized, elderly patients with severe and

permanent mental and physical impairments and a limited life

expectancy.” Conroy, 98 N.J. at 335.

Stating “[t)]he starting point in analyzing whether life-

sustaining treatment may be withheld or withdrawn from an

incompetent patient is to determine what rights a competent

patient has to accept or reject medical care,” Conroy, 98 N.J.

at 346, the court again balanced the state's interest in pre-

serving life against the patient's right to make treatment deci-

sions under the doctrine of informed consent. See Conroy, 98

N.J at 346-355.

'* In fact, after she was withdrawn from the respirator, Karen Ann

Quinian lived for a further nine years.

13

The court drew a clear distinction between refusing treat-

ment and taking life:

In any event, declining life-sustaining medical treat-

ment may not properly be viewed as an attempt to com-

mit suicide. Refusing medical intervention merely allows

the disease to take its natural course; if death were even-

tually to occur, it would be the result, primarily, of the

underlying disease, and not the result of a self-inflicted

injury. [citations omitted] In addition, people who refuse

life-sustaining medical treatment may not harbor a spe-

cific intent to die, [citation omitted]; rather, they may

fervently wish to live, but to do so free of unwanted

medical technology, surgery, or drugs, and without pro-

tracted suffering, [citation omitted].

Recognizing the right of a terminally ill person to

reject medical treatment respects that person’s intent, not

to die, but to suspend medical intervention at a point

consonant with the “individual's view respecting a per-

sonally preferred manner of concluding life.” [citation

omitted] The difference is between self-infliction or self-

destruction and self-determination.

Conroy, 98 N.J at 350-1.

In 1987, the New Jersey Supreme Court revisited these

issues in a trilogy of cases: Matter of Farrell, 108 N.J. 335,

529 A.2d 404 (1987); Matter of Peter by Johanning, 108 NJ.

365, 29 A.2d 319 (1987); and Matter of Jobes, 108 N.J. 394,

32% A4.2d 434 (1987). These cases involved the circumstances

under which life-sustaining medical treatment could be with-

held or withdrawn. The court balanced the interests of the

state in, inter alia, preserving life, against the patients’ rights

of self-determination and informed consent. Again, the court

rejected any notion that the right to refuse treatment encom-

passed a right to commit suicide:

14

Courts in other jurisdictions have consistently agreed

that refusal of life-supporting treatment does not amount

to an attempt to commit suicide. See, e.g., Bartling v.

Superior Court, supra, 163 Cal. App.3d at 195-97, 209

Cal. Rptr. at 225-6; Foody v. Manchester Memorial

Hosp., 20 Conn. Supp. 127, ___, 482 A.2d 713, 720

(Super. Ct. 1984); Satz v. Perlmutter, supra, 362 So.2d at

162-63; Brophy v. New England Sinai Hosp., supra, 398

Mass. at 438, 497 N.E.2d at 638; Jn re Eichner, supra, 52

N.Y.2d at 377-78 n.6, 420 N.E.2d at 71 n. 6, 438

N.Y.S.2d at 273 n. 6; Leach v. Akron General Medical

Center, 68 Ohio Misc. 1, 10, 426 N.E.2d 809, 815 (Ohio

Com. Pl. 1980); Colyer, supra, 99 Wash.2d at 121, 660

P.2d at 743.

Farrell, 108 N.J. at 350.

The principles enunciated in these landmark cases are also

reflected in New Jersey's statutes. Under New Jersey's Code

of Criminal Justice:

A person who purposely aids another to commit sui-

cide is guilty of a crime of the second degree if his con-

duct causes such suicide or an attempted suicide, and

otherwise of a crime of the fourth degree.

N.J.S. 2C:11-6, App. G.

The New Jersey Advance Directives for Health Care Act,

N.J.S. 26:2H-53, et seq., essentially codifies the holdings in

the above-discussed cases, and provides for a legally enforce-

able procedure for embodying an individual’s advance treat-

ment decisions in writing. The statute contains the following

legislative finding:

The right of individuals to forego life-sustaining mea-

sures is not absolute and is subject to certain interests of

society. The most significant of these societal interests

is the preservation of life, understood to embrace both an

interest in preserving the life of the particular patient and

15

a related but distinct interest in preserving the sanctity of

all human life as an enduring social value. A second,

closely related societal interest is the protection of indi-

viduals from Cirect and purposeful self-destruction,

motivated by a specific intent to die.

N.J.S. 26:2H-54(d), App. F.

These cases and statutes constitute a well-established and

cohesive body of law, which has evolved in harmony with the

ethical tenets of the medical profession. The Second Circuit's

decision both ignores and contradicts this tradition.

B. Past Pronouncements of This Court Inform and

Authenticate Prohibitions Against Assistance in

Self-Destruction

This Court has had occasion to consider the issues raised by

the above-cited New Jersey Supreme Court cases. In Cruzan

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

Court upheld a Missouri statute requiring proof by clear and

convincing evidence of an incompetent patient’s wishes to

withdraw life-sustaining medical treatment against a due pro-

cess challenge. As did the New Jersey Supreme Court, this

Court recognized a clear distinction between the withholding

or withdrawal of medical treatment on the one hand, and the

purposeful destruction of life on the other.

This Tribunal balanced Missouri's interest in the preser-

vation of life against the patient’s Fourteenth Amendment lib-

erty interest in refusing unwanted medical treatment. It held

that the state’s interest in requiring proof of intention to

forego life-sustaining medical treatment by a heightened evi-

dentiary standard outweighed a patient's right to forego

treatment. In so holding, the Court stated:

Finally, we think a State may properly decline to make

judgments about the “quality” of life that a particular

individual may enjoy, and simply assert an unqualified

16

interest in the preservation of human life to be weighed

against the constitutionally protected interests of the

individual.

Cruzan, 497 U.S. at 282.

Under the Cruzan decision, states have a clear and com-

pelling interest in the preservation of life, to the extent they

may require procedural safeguards which could conceivably

infringe upon a patient's Fourteenth Amendment liberty inter-

est in refusing unwanted medical treatment. It follows, with-

out question, that the states have an even more compelling

interest in enacting statutes against assistance in self-destruc-

tion; no pronouncement of this Court even hints that an indi-

vidual has any constitutional right to commit suicide which

might be balanced against this compelling state interest.

This “right to suicide” found by the Second Circuit has no

foundation in statute or the common law. It may not be cre-

ated by analogy to the right to refuse medical treatment.

There is therefore nothing to “balance” in the context of a

Fourteenth Amendment analysis. Indeed, in addition to New

Jersey, thirty-nine other states, Puerto Rico and the U-S. Vir-

gin Islands have statutes or common-law prohibitions against

assisting suicide, or have statutes criminalizing negligent

homicide which are broad enough to encompass assisted sui-

cide.'* The MSNJ submits that these court decisions and leg-

islative pronouncements evince a strong interest on the part

'S See Ala. Code, § 13A-6-1; Alaska Stat., § 11.41.120(a)(2): Ariz.

Rev. Stat. Ann., § 13-1103(A)(3); Ark. Stat. Ann., § 5-10-104(a)(2); Cal.

~ Pen. Code, § 401; Colo. Rev. Stat., § 18-3-104(1)(b); Conn. Gen. Stat.,

§ S3a-56(a)(2); Del. Code Ann., tit. 11, § 645; Fla. Stat. Ann.. § 782.08;

Ga. Code Ann., § 16-5-5(b); Ill. Comp. Stat. ch. 720, 5/12-31: Ind. Stat.

Ann., § 35-42-1-2.5(b); la. Code, §§ 707A.1, 7074.2 and 707A.3. as

amended by Acts of the 76th General Assembly, 1996 Session; Kan. Stat.

Ann. § 21-3406; Ky. Rev. Stat., § 216:302; La. Rev. Stat., § 14:32.12:

Me. Rev. Stat. Ann., tit. 17-A, § 204; Commonwealth v. Mink, 123 Mass.

422, 428-29 (Mass. 1877); People v. Kevorkian, 447 Mich. 436, $27

N.W.2d 714 (Mich. 1994); Minn. Stat. Ann., § 609.215; Miss. Code Ann..

17

of New Jersey, other states, commonwealths and territories,

in the preservation of life. This interest is bolstered by long-

standing ethical precepts of the medical profession prohibit-

ing the wilful destruction of the life of a patient. Laws

prohibiting assisted suicide are rationally related to this state

interest.

CONCLUSION

Accordingly, the Medical Society of New Jersey, as Friend

of the Court, respectfully urges this Court, for all the fore-

going reasons, and for those stated in the briefs for the peti-

tioners and other supporting amici, to reverse the decision

below.

Respectfully submitted,

VINCENT A. MARESSA PAUL W. ARMSTRONG*

NEIL E. WEISFELD R. BRUCE CRELIN

THE MEDICAL SOCIETY TIMINS, LARSEN, BEACHAM

OF NEW JERSEY & HUGHES

Two Princess Road 85 Livingston Avenue

Lawrenceville, NJ 08648-2302 Roseland. NJ 07068

(609) 896-1766 (201) 740-1771

Attorneys for Amicus Curiae

12 November 1996 * Counsel of Record

§ 97-3-49; Mo. Ann. Stat., § 565.023(1)(2); Mont. Code Ann., § 45-5-

105; Neb. Rev. Stat., § 28-307; N.H. Rev. Stat. Ann.. § 630:4; N.M. Stat.

Ann., § 30-2-4; N.Y. Penal Law, §§ 120.30, 125.15(3); State v. Willis. 121

S.E.2d 854 (N.C. 1961); N.D. Cent. Code., § 12.1-16-04: Blackburn v.

State, 23 Ohio St. 146, 163 (Ohio 1972); Okla. Stat. Ann., tit. 21. $§ 813-

$18; 18 Pa. Cons. Stat. Ann., § 2502; P.R. Laws Ann. tit. 33. § 4009;

State v. Jones, 86 S.C. 17, 67 S.E. 160, 165 (S.C. 1910); S.D. Codified

Laws Ann., § 22-16-37; Tenn. Code Ann., § 39-13-216; Tex. Penal Code

Ann., § 22.08; V.I1. Code Ann., tit. 14, § 2141; Wash. Rev. Code Ann..

§ 9A.36.060; Wis. Stat. Ann., § 940.12; and Wyo. Stat., § 6-2-107.

APPENDIX

~~ hie —- Ses — ar,

* ON nee er

APPENDIX A

MEDICAL SOCIETY OF NEW JERSEY

STATEMENT ON PHYSICIAN ASSISTED SUICIDE

Physicians cannot serve the patient’s good by deliberately

eliminating the patient. There has been, is and always will be

a clear distinction between causing a death as contrasted with

permitting death to occur.

“Aid-in-dying,” the right to die, physician-assisted suicide

or euthanasia imply an obligation on the part of others to kill

or help kill. There is no such right. It is difficult to imagine

and configure a limited statute permitting homicide by a

privileged few and exercised in the name of humanity.

Further, there is no way to confine the practice to those

knowingly and really requesting death. The vast majority of

persons who are candidates for assisted death are, and

increasingly will be, incapable of choosing and effecting such

a course of action for themselves. No one with an expensive

or troublesome infirmity will be safe from the pressure to

have his right to die exercised. Some reasons in favor of death

might even be construed as a duty to die.

Moreover, under physician-assisted suicide, the medical

profession’s devotion to healing and refusal to kill, its ethi-

cal center, would be destroyed along with patient trust and

physician self-constraint. Physicians do not require the tool of

death.

Sentiments in support of physician-assisted suicide are

understandable in a culture which at times is tempted to

embrace seemingly easy solutions to complex social and

moral issues. Support for physician-assisted suicide may

also be fueled by a limitless sense of individual rights and

personal autonomy. Popular support for physician-assisted

suicide may also be the consequence of the legitimate con-

cerns of individuals who fear that confronting death at the

end of a terminal illness may result in a loss of their dignity,

unrelieved pain and even abandonment by their physicians.

2a

In the face of recent and pending court decisions, and

despite popular sentiments in American culture, the Medical

Society of New Jersey affirms without equivocation its oppo-

sition to euthanasia and physician-assisted suicide in any form

or manner. Furthermore, the Medical Society of New Jersey

endorses the official policy of the American Medical Asso-

ciation (Policy 140.952) which declares that “physician

assisted suicide is fundamentally inconsistent with the physi-

cian’s professional role.” The Medical Society also endorses

the Opinion of the Council on Ethical and Judicial Affairs

(Opinion 2.211) which states that “physician-assisted suicide

is fundamentally incompatible with the physician’s role as

healer, would be difficult or impossible to control, and would

pose serious societal risks.”

Although the Medical Society of New Jersey stands in

opposition to physician-assisted suicide, this position should

not be interpreted in any way so as to compromise the ethi-

cally and legally protected right of terminally ill patients to

participate fully in treatment decisions at the end of life,

including the right to execute and implement advance direc-

tives and to refuse or request the withdrawal of aggressive

forms of medical treatment which in the informed opinion of

the patient impose burdens which outweigh the benefits.

Nor should the Medical Society’s opposition to all forms of

physician-assisted suicide be interpreted to compromise the

right of patients to receive appropriate pain treatment to

relieve suffering in the final stages of a terminal illness. The

provision of appropriate pain treatment, even if in some

instances this may hasten the death of the patient, does not

constitute a form of physician-assisted suicide. The Medical

Society of New Jersey, echoing the ethical principles

espoused by the American Medical Association, recognizes a

fundamental ethical distinction between actions which are

directly intended to end the life of a patient and actions which

have, as a secondary consequence, this effect.

Finally, we are eager that physicians throughout the state

vigorously discuss responsibilities to dying patients with each

3a

other, with other professionals, and with patients. This con-

versation will serve to enhance our ethics and our care.

1 November 1996

Ib

APPENDIX B

MEDICAL SOCIETY OF NEW JERSEY

POLICY STATEMENT ON PHYSICIAN ADMINISTERED

INJECTIONS AS A MEANS OF EXECUTION

American physicians, from the beginnings of this republic,

have participated freely and enthusiastically in the wars this

nation has endured, exercising, as required, their healing

skills on both friend and foe. They have never been asked to

take life during these conflicts, nor has it been deemed proper

to ask this of them, recognizing that one of the enduring and

basic ethical principles of the physician has been to conserve

and preserve life in a cognitive, sapient, and vital human

being.

The recent enactment of a death penalty statute in New Jer-

sey and the suggestion that execution be by injection have, of

necessity, caused the Medical Society of New Jersey to re-

examine these principles. Agreement or disagreement with

imposition of a death penalty and agreement or disagreement

with the method of execution and its “humane” qualities are

not germane to the central issue, i.e., whether a physician may

ethically take human life by active participation in a legally

ordered execution.

We think not, feeling that acceptance of such participa-

tion would undermine the moral and ethical foundations of

medicine.

Accordingly, the Board of Trustees of the Medical Society

of New Jersey reaffirms the ethical necessity for the physician

to practice only the positive aspects of the healing arts and

to respect the sanctity of human life, and further reaffirms

the policy statement of the American Medical Association.

which states that a “physician, as a member of a profession

dedicated to preserving life when these is hope of doing

so, should not be a participant in a legally authorized exe-

cution.”

2b

Saleen A : —

The role of a physician in pronouncing or determining t

cause of death after an execution would not be affected and

would continue to be acceptable.

Adopted by the Board of Trustees September 12, 1982.

Ic

APPENDIX C

AMERICAN MEDICAL ASSOCIATION OPINION 2.20:

WITHHOLDING OR WITHDRAWING

LIFE-SUSTAINING MEDICAL TREATMENT

The social commitment of the physician is to sustain life

and relieve suffering. Where the performance of one duty

conflicts with the other, the preferences of the patient should

prevail. The principle of patient autonomy requires that physi-

cians respect the decision to forego life-sustaining treatment

of a patient who possesses decisionmaking capacity. Life-

Sustaining treatment is any treatment that serves to prolong

life without reversing the underlying medical condition. Life-

Sustaining treatment may include, but is not limited to,

mechanical ventilation, renal dialysis, chemotherapy, antibi-

otics, and artificial nutrition and hydration.

There is no ethical distinction between withdrawing and

withholding life-sustaining treatment.

A competent, adult patient may, in advance, formulate and

provide a valid consent to the withholding or withd-awal of

life-support systems in the event that injury or illness renders

that individual incompetent to make such a decision.

If the patient receiving life-sustaining treatment is incom-

petent, a surrogate decisionmaker should be identified. With-

out an advance directive that designates a proxy, the patient's

family should become the surrogate decisionmaker. Family

includes persons with whom the patient is closely associated.

In the case when there is no person closely associated with

the patient, but there are persons who both care about the

patient and have sufficient relevant knowledge of the patient,

such persons may be appropriate surrogates. Physicians

should provide all relevant medical information and explain

to surrogate decisionmakers that decisions regarding with-

holding or withdrawing life-sustaining treatment should be

based on substituted judgment (what the patient would have

decided) when there is evidence of the patient’s preferences

2c

and values. In making a substituted judgment, decisionmakers

may consider the patient's advance directive (if any); the

patient’s values about life and the way it should be lived;

and the patient’s attitudes towards sickness, suffering, med-

ical procedures, and death. If there is not adequate evidence

of the incompetent patient's preferences and values, the deci-

sion should be based on the best interests of the patient

(what outcome would most likely promote the patient’s well-

being).

Though the surrogate’s decision for the incompetent patient

should almost always be accepted by the physician, there are

four situations that may require either institutional or judicial

review and/or intervention in the decisionmaking process:

(1) there is no available family member willing to be the

patient’s surrogate decisionmaker, (2) there is a dispute

among family members and there is no decisionmaker des-

ignated in an advance directive, (3) a health care provider

believes that the family’s decision is clearly not what the

patient would have decided if competent, and (4) a health care

provider believes that the decision is not a decision that could

reasonably be judged to be in the patient’s best interests.

When there are disputes among family members or between

family and health care providers, the use of ethics committees

specifically designed to facilitate sound decisionmaking is

recommended before resorting to the courts.

When a permanently unconscious patient was never com-

petent or had not left any evidence of previous preferences or

values, since there is no objective way to ascertain the best

interests of the patient, the surrogate’s decision should not be

challenged as long as the decision is based on the decision-

maker’s true concern for what would be best for the patient.

Physicians have an obligation to relieve pain and suffering

and to promote the dignity and autonomy of dying patients in

their care. This includes providing effective palliative treat-

ment even though it may foreseeably hasten death.

Even if the patient is not terminally ill or permanently

unconscious, it is not unethical to discontinue all means of

3¢

life-sustaining medical treatment in accordance with a proper

substituted judgment or best interests analysis. (1,III,IV,V)

Issued March 1981 (Opinion 2.11: Terminal Illness) and

December 1984 (Opinion 2.19: Withholding or Withdrawing

Life-Prolonging Medical Treatment: Patient’s Preferences,

renumbered as Opinion 2.21 in August 1989).

id

APPENDIX D

AMERICAN MEDICAL ASSOCIATION OPINION 2.21:

EUTHANASIA

Euthanasia is the administration of a lethal agent by another

person to a patient for the purpose of relieving the patient’s

intolerable and incurable suffering.

It is understandable, though tragic, that some patients in

extreme duress—such as those suffering from a terminal,

painful, debilitating illness—may come to decide that death

is preferable to life. However, permitting physicians to

engage in euthanasia would ultimately cause more harm than

good. Euthanasia is fundamentally incompatible with the

physician’s role as healer, would be difficult or impossible to

control, and would pose serious societal risks.

Instead of engaging in euthanasia, physicians must aggres-

sively respond to the needs of patients at the end of life.

Patients should not be abandoned once it is determined that

cure is impossible. Patients near the end of life must continue

to receive emotional support, comfort care, adequate pain

control, respect for patient autonomy, and good communica-

tion.

Issued June 1994 based on the report “Decisions Near the

End of Life,” issued June 1991. (JAMA, 1992;267:2229-

2233)

le

APPENDIX E

AMERICAN MEDICAL ASSOCIATION OPINION 2.211:

PHYSICIAN ASSISTED SUICIDE

Physician assisted suicide occurs when a physician facili-

tates a patient’s death by providing the necessary means

and/or information to enable the patient to perform the life-

ending act (e.g., the physician provides sleeping pills and

information about the lethal dose, while aware that the patient

may commit suicide).

It is understandable, though tragic, that some patients in

extreme duress—such as those suffering from a terminal,

painful, debilitating illness—may come to decide that death

is preferable to life. However, allowing physicians to par-

ticipate in assisted suicide would cause more harm than good.

Physician assisted suicide is fundamentally incompatible with

the physician’s role as healer, would be difficult or impossi-

ble to control, and would pose serious societal risks.

Instead of participating in assisted suicide, physicians must

aggressively respond to the needs of patients at the end of

life. Patients should not be abandoned once it is determined

that cure is impossible. Patients near the end of life must con-

tinue to receive emotional support, comfort care, adequate

pain control, respect for patient autunomy, and good commu-

nication.

Issued June 1994 based on the reports “Decisions Near

the End of Life,” issued June 1991, and “Physician-Assisted

Suicide,” issued December 1993. (JAMA. 1992; 267: 2229-

2233)

If

APPENDIX F

NEW JERSEY COMMISSION ON LEGAL ETHICAL

PROBLEMS IN THE DELIVERY OF HEALTH CARE,

THE NEW JERSEY ADVANCE DIRECTIVES FOR HEALTH

CARE AND DECLARATION OF DEATH

ACTS: STATUTES, COMMENTARIES AND ANALYSES

(1991)

AN ACT concerning health care decisionmaking and sup-

plementing Title 26 and Title 52 of the Revised Statutes.

BE IT ENACTED by the Senate and General Assembly of the

State of New Jersey:

Section 1: Short Title

This act shall be known and may be cited as the “New Jer-

sey Advance Directives for Health Care Act.”

Section 2: Legislative Findings

The Legislature finds and declares that:

a. Competent adults have the fundamental right, in col-

laboration with their health care providers, to control deci-

sions about their own health care. This State recognizes, in its

law and public policy, the personal right of the individual

patient to make voluntary, informed choices to accept, to

reject, or to choose among alternative courses of medical and

surgical treatment.

b. Modern advances in science and medicine have made

possible the prolongation of the lives of many seriously ill

individuals, without always offering realistic prospects for

improvement or cure. For some individuals the possibility of

extended life is experienced as meaningful and of benefit. For

others, artificial prolongation of life may seem to provide

nothing medically necessary or beneficial, serving only to

extend suffering and prolong the dying process. This State

recognizes the inherent dignity and value of human life and

2f

within this context recognizes the fundamental right of indi-

viduals to make health care decisions to have life-prolonging

medical or surgical means or procedures provided, withheld,

or withdrawn

c. In order that the right to control decisions about one’s

own health care should not be lost in the event a patient loses

decisionmaking capacity and is no longer able to participate

actively in making his own health care decisions, this State

recognizes the right of competent adults to plan ahead for

health care decisions through the execution of advance direc-

tives, such as living wills and durable powers of attorney, and

to have the wishes expressed therein respected, subject to cer-

tain limitations.

d. The right of individuals to forego life-sustaining mea-

sures is not absolute and is subject to certain interests of soci-

ety. The most significant of these societal interests is the

preservation of life, understood to embrace both an interest in

preserving the life of the particular patient and a related but

distinct interest in preserving the sanctity of all human life as

an enduring social value. A second, closely related societal

interest is the protection of individuals from direct and pur-

poseful self-destruction, motivated by a specific intent to die.

A third interest is the protecting of innocent third parties who

may be harmed by the patient’s decision to forego therapy;

this interest may be asserted to prevent the emotional and

financial abandonment of the patient’s minor children or to

protect the paramount concerns of public health or safety. A

fourth interest encompasses safeguarding the ethical integrity

of the health care professions, individual professionals, and

health care institutions, and maintaining public confidence

and trust in the integrity and caring role of health care pro-

fessionals and institutions. Finally, society has an interest in

ensuring the soundness of health care decisionmaking, includ-

ing both protecting vulnerable patients from potential abuse

or neglect and facilitating the exercise of informed and vol-

untary patient choice.

3f

e. In accordance with these State interests, this State

expressly rejects on both legal and moral grounds the practice

of active euthanasia. No individual shall have the right to, nor

shall any physician or other health care professional be autho-

rized to engage in, the practice of active euthanasia.

f. In order to assure respect for patients’ previously

expressed wishes when the capacity to participate actively in

decisionmaking has been lost or impaired; to facilitate and

encourage a sound decisionmaking process in which patients,

health care representatives, families, physicians, and other

health care professionals are active participants; to properly

consider patients’ interests both in seif-determination and in

well-being; and to provide neces .ary and appropriate safe-

guards concerning the termination of life-sustaining treatment

for incompetent patients as the law and public policy of this

State, the Legislature hereby enacts the New Jersey Advance

Directives for Health Care Act.

lg

APPENDIX G

NEW JERSEY CODE OF CRIMINAL JUSTICE —

HOMICIDE

Aiding suicide

A person who purposely aids another to commit suicide is

guilty of a crime of the second degree if his conduct causes

such suicide or an attempted suicide, and otherwise of a crime

of the fourth degree. L.1978, ¢.95 § 2C:11-6, eff. Sept. 1,

1979.