Amicus Curiae Brief — Vacco v. Quill

| Supieme Court. i) |

, ti. 8

AG < ; NOV 12 (996

( 4 2)

tie 4) CLERK

Nos. 95-1858 and 96-110

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, ef al.,

Vv Petitioners,

TIMOTHY E. QUILL, ef al,

Respondents,

STATE OF WASHINGTON, ef ai.,

v. Petitioners,

HAROLD GLUCKSBERG, ef al.,

Respondents

On Writs of Certiorari to the United States Courts

of Appeals for the Second and Ninth Circuits

BRIEF AMICUS CURIAE OF THE AMERICAN

CENTER FOR LAW & JUSTICE SUPPORTING

PETITIONERS IN NOS. 95-1858 AND 96-110

KEITH A. FOURNIER JAY ALAN SEKULOW *

JOHN G. STEPANOVICH JAMES M. HENDERSON, SR.

THE AMERICAN CENTER WALTER M. WEBER

For LAW AND JUSTICE THE AMERICAN CENTER

1000 Regent Univ. Dr. For LAW AND JUSTICE

Virginia Beach, VA 23464 1000 Thos. Jefferson St.

(757) 579-2489 Suite 304

Washington, D.C. 20007

THOMAS P. MONAGHAN (202) 337-2273

JOHN P. TUSKEY

New Hope LIFE CENTER,

ACLJ-NEw Hope

6375 New Hope Road

New Hope, KY 40052

(502) 549-7020

* Counsel of Record

Attorneys for Amicus Curiae

QUESTIONS PRESENTED

1. Should this Court invent a constitutional right, without

support in either constitutional text, history, or tradition, that

would prevent a state from prohibiting a person from hiring

another to assist in committing suicide?

2. Does the Equal Protection Clause require states to treat

identically the act of refusing possibly useless medical

treatment or nutrition and hydration and the act of affirmatively

requesting and providing assistance for the purpose of

intentionally committing suicide?

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................

TABLE OF AUTHORITIES ....................... ili

INTEREST OF AMMCUB o.oo. ccccsccnsececes cu,

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

mentee MUTT 5

I. THE EXISTENTIALIST NOTION OF LIBERTY

POSITED IN THIS COURT'S ABORTION

JURISPRUDENCE IS FAR TOO SWEEPING TO

SERVE AS A GENERAL RULE FOR

CONSTITUTIONAL ADJUDICATION AND

OUGHT NOT BE EXTENDED TO CREATE A

RIGHT TO ASSISTED SUICIDE................. 5

A. Neither Constitutional Text, Tradition, nor

History Support any Fundamental Right to

Aatiaed Galella. «oo. os .0sscevnsscee 5

B. The Definition of "Liberty" Stated in Planned

Parenthood v. Casey Should Not Be Extended

to Create a Right to Assisted Suicide. .......... 9

Il. THE STATE MAY RATIONALLY DISTINGUISH

BETWEEN ASSISTED SUICIDE AND REFUSAL

OF LIFESAVING TREATMENT OR MEDICALLY-

ASSISTED NUTRITION AND HYDRATION;

THEREFORE, LAWS TREATING THE TWO

SITUATIONS DIFFERENTLY DO NOT VIOLATE

THE EQUAL PROTECTION CLAUSE........... 23

CONCLUSION

(ii)

— —

TABLE OF AUTHORITIES

Page(s)

CASES:

Bowers v. Hardwick, 478 U.S. 196 (1986) ... 4,5, 7,22, 23

Bray v. Alexandria Women's Health Clinic, 506 US.

y (C) ne

Collins v. City of Harker Heights, 503 U.S. 115 (1992) ... 7

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

(Gth Cir. 1996)... 2. cc ecccccceceeees 8, 10, 15, 16

Compassion in Dying v. Washington, 49 F 3d 586 (9th Cir.

—

REED obec cboccccsesecesoscecccsveccccoss

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam) . . 16

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

yt). )) ee 8, 16, 23

Doe v. Bolton, 410 U.S. 179 (1973) .. 0... cee es a

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 9,10

Heller v. Doe, 509 U.S. 312 (1993) ... 6... eee eee ees 24

Lamb's Chapel v. Center Moriches Union Free School |

Dist., 508 U.S. 384 (1993) ©... 6. ccc cece nee

Lochner v. New York, 198 U.S. 45 (1905) 3, 5, 12, 20, 21, 28

Madsen v. Women's Health Center,

114 S. Ct. 2516 (1994) 2.2... ccc cece eee eens 2

Meyer v. Nebraska, 262 U.S. 390 (1923)... .-.- ++ +-00e> )

Michael H. v. Gerald D., 491 U.S. 110 (1989) .......... 7

Moore v. East Cleveland, 431 U.S. 494 (1977) .......... 7

(iii)

iv

TABLE OF AUTHORITIES—cont’d

Page(s)

National Organization for Women Inc. v. Scheidler,

th eee 2

Nebbia v. New York, 291 U.S. 502 (1934) .............. 5

Palko v. Connecticut, 302 U.S. 319 (1937) ..........4.. 7

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........ 9

Planned Parenthood v. Casey, ,

SEP TAs CUE bc ccvcccccceséoccoces 2, passim

Poe v. Ullman, 367 U.S. 497 (1961) .. 2... 66 ee eee ee 10

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) .. . 6, 8, 9, 19, 23

Reno v. Flores, 507 U.S. 292 (1993) ... 6... ccc eee eeees 6

Roe v. Wade, 410 U.S. 113 (1973)... . 2... eee ee eee 9, 10

Schenck v. Pro-Choice Network, No. 95-1056 ........ 1-2

Snyder v. Massachusetts, 291 U.S. 97 (1934) ........... 7

West Coast Hotel v. Parrish, 300 U.S. 379 (1937) ....... 5

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) ..... 5

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. XIV, sec. 1, cl. 3 .......... 10, 13, 28

U.S. Const. amend. XTV, sec. 1, cl. 4........... i, passim

OTHER MATERIALS:

Gerard V. Bradley, Pluralistic Perfectionism: A Review

Essay of Making Men Moral, 71 Notre Dame L. Rev.

BPO Gee o No cececccdscctenune aaeownne 6, 25, 27

v

TABLE OF AUTHORITIES—cont’d

Page(s)

Gerard V. Bradley, Life's Dominion: A Review Essay, 69

Notre Dame L. Rev. 329 (1993) .............. 10, 13

William Brennan, Dehumanizing the Vulnerable (1995) . i3

Robert M. Byrn, An American Tragedy:

The Supreme Court and Abortion, 41 Fordham L.

PET UEEEEY 650260655 e460 seenneniene ai 18-19

Declaration of Independence (U.S. 1776) .............. 6

Joseph Fletcher, /ndicators of Humanhood:

A Tentative Profile of Man, 2 Hastings Center Report

RT er ee ee a 13

Robert P. George, Making Men Moral (1993) ........... 6

Gerald Gunther, Constitutional Law (12th ed. 1991) .... 21

Yale Kamisar, Against Assisted Suicide—Even a Very

Limited Form, 72 U. Det. Mercy. L. Rev.

Be Ren 6c hc dawteven eds is cicncecs dé 18, 21

Yale Kamisar, The Reasons Why So Many People Support

Physician-Assisted Suicide—And Why These Reasons

are not Convincing, 12 Issues in Law & Med. 113

PROGR bbb pcb ee bree ceesipedbatosesededdcdeui 14

Kenneth L. Karst, The Freedom of Intimate Association,

8 § Rae an erery 18

Wayne R. LaFave & Austin W. Scott, Handbook on

GEE, «incesdeoctbanacotnanveees 16

C.S. Lewis, Studies in Words (2d ed. 1967) ........... 15

vi

TABLE OF AUTHORITIES—cont’d

Page(s)

Thomas Marzen, et al, Suicide: A Constitutional Right?,

24 Dug. L. Rev. 1 (1985) .. 2... 66 cece eee eens 8

I Oxford English Dictionary (Clarenden

Posen, Sndob, 19GDD......cccccceceesessestessees 12

Jean-Paul Sartre, Being and Nothingness (Hazel E. Barnes

Grn, BED cc cccccccccceccccccsccscecdscseus 12

Jean-Paul Sartre, Existentialism (Bernard

Frectman trans. 1947) ..........0ccceeeeees 12, 20

Jay Alan Sekulow & John Tuskey, The "Center" is in the

Eye of the Beholder, 40 N.Y. L. Sch. L. Rev. 945

CPGDED occ vistecesadecosccnededcceccestegues 22

William Shakespeare, Hamiet (Harvard Classics, Charles

Wh Be, GED cece ddccctcweccccccnccsees 14

Peter Singer, Practical Ethics (1979) ...........6505: 13

David M. Smolin, The Jurisprudence of Privacy in a

Splintered Supreme Court, 75 Marq. L. Rev. 975

TERED 6 cc ccécckbéacdencsendebaneens 10, 12, 18, 22

Statement of the USCC Committee for Pro-Life Activities,

24 Origins 75 (1992)... 2... 6c cece cece eee eeee 25

The American Heritage Dictionary (2d College ed. 1991) 15

David Wagner, The Family and American Constitutional

Law, | Liberty, Life, & Fam. 145 (1994) .......... 10

ee

Nos. 95-1858 and 96-110

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, ef ai.

v. Petitioners,

TmoTHy E. QUILL, ef al.,

Respondents,

STATE OF WASHINGTON, ef al.,

y. Petitioners,

HAROLD GLUCKSBERG, et al,

Respondents

On Writs of Certiorari to the United States Courts

of Appeals for the Second and Ninth Circuits

BRIEF AMICUS CURIAE OF THE AMERICAN

CENTER FOR LAW & JUSTICE SUPPORTING

PETITIONERS IN NOS. 95-1858 AND 96-110

INTEREST OF AMICUS

The American Center for Law and Justice ("ACLJ") a

national, non-profit, legal organization, and the ACLJ's human

are devoted to safeguarding the sanctity of human life through

education, litigation, legislative assistance, and related

activities, and have advocated for the defense of human life in

local, federal, and state courts. The ACLJ's Chief Counsel has

argued several cases before this Court, including Lamb's

Chapel v. Center Moriches Union Free School District, 508

U.S. 384 (1993), Bray v. Alexandria Women's Health Clinic,

506 U.S. 263 (1993), and Schenck v. Pro-Choice Network, No.

2

95-1056 (argued October 16, 1996). In addition, the ACLJ has

filed briefs as counsel for parties in several other cases before

this Court, including National Organization for Women, Inc.

v. Scheidler, 510 U.S. 249 (1994), and Madsen v. Women's

Health Center, 114 S.Ct. 2516 (1996).

The ACLJ files this brief in support of the petitioners in

both Quill and Glucksberg because the courts of appeals’

holdings in those cases strike at the heart of the states’ long-

recognized duty to protect the sanctity of human life. The

ACLJ supports the petitioners’ contentions in both cases that

state laws outlawing assisted suicide are fully consistent with

the United States Constitution.”

SUMMARY OF ARGUMENT

1. The Ninth Circuit's decision that Washington's assisted

suicide law is unconstitutional because the Due Process Clause

creates a right to determine “how and when" to die is

dangerously wrong for several reasons. First, Washington's

law prohibiting assisted suicide rationally furthers the

legitimate interest of protecting human life. Second, the

asserted right has no basis in the Constitution's text or this

nation's history and tradition. Third, a right to determine "how

and when to die" based on the broad, existentialist notion of

liberty defined in Planned Parenthood v. Casey, 505 U.S. 833

(1992), is not susceptible to principled limitation. If liberty is

the "right to define one's own concept of existence, of meaning,

of the universe, and of the mystery of human life" such that the

*. The parties in both cases have consented to the filing of

this brief. Letters of consent are being filed with the Clerk of

this Court.

a od

3

Constitution protects self-defining "intimate and personal

choices," id. at 851, then liberty must include the right to kill

oneself, to have a doctor's or somebody else's help in killing

one's self, or to have a doctor or somebody else actually do the

killing. All of these involve "intimate and personal choices"

concerning a person's "concept of existence." But, if liberty is

broad enough to include all these choices concerning how and

when to die, then it must be broad enough to encompass many

other “intimate and personal decisions." Adopting Casey's

existentialist notion of liberty as a generally-governing

constitutional standard would lead to claims of right to use

drugs, and to engage in polygamy, fornication, adultery,

divorce, sodomy, bestiality, and consensual sadism. If a person

has a constitutional right to have somebody kill him, how can

he not have a constitutional right to allow somebody to inflict

pain and injury on him?

Casey's existentialist notion of liberty provides no

principled basis for distinguishing which of these acts to

approve and which to disapprove. Extending that notion of

liberty will lead to one of two results: either the courts will

require states to approve of much conduct the states may

reasonably desire to prohibit as harmful, in effect imposing a

constitutionally-mandated moral philosophy on the states; or

the courts will arbitrarily pick and choose which activities the

states may prohibit, and which activities the states must allow.

In effect, the courts will become superlegislatures passing on

the wisdom of state laws. This would be a rerun of

Lochner v. New York, 198 U.S. 45 (1905), which imposed a

constitutionally mandatory economic philosophy on the states,

and established the courts as the final arbiters concerning the

wisdom of state laws touching on "economic liberty."

4

To avoid these dangers, this Court should either overrule

Casey or decline to extend Casey's definition of liberty. There

is good reason to think that Casey's authors did not intend a

radical extension of Casey's definition of liberty to uphold

alleged rights like the right to assisted suicide. First, the Court

in Bowers v. Hardwick, 479 U.S. 186 (1986), rejected a similar

notion of liberty put forth to establish a right to commit

homosexual sodomy; nothing in Casey purports to overrule

Bowers. Second, the stare decisis concerns Casey found

controlling ¢» not exist in this case. Therefore, this Court

should refuse to extend Casey's definition of liberty to create a

right to assisted suicide.

2. The Washington and New York laws prohibiting

assisted suicide do not violate the Equal Protection Clause.

Suicide is an act performed for the purpose of causing one's

death. By definition, those who are affected by the Washington

and New York laws are seeking assistance for the very purpose

of killing themselves. Since a state may conclude rationally

that suicide is wrong and ought to be prohibited, a blanket

prohibition of assisted suicide is rational.

However, persons seeking withdrawal of medical treatment

or medically-assisted hydration and nutrition are not

necessarily committing suicide. Some are, but many if not

most are acting for morally licit reasons — for example, to avoid

unduly burdensome or possibly useless bodily intrusions — and

only accept death as a known but unintended side effect of that

decision. To prohibit all decisions to withdraw medical

treatment or medically-assisted hydration and nutrition would

further the goal of preventing suicide, but would also sweep in

much conduct aimed not at directly causing death but at

alleviating needless burdens and suffering, conduct that is not

5

suicide. A state may rationally conclude that the benefits of

preventing suicides outweigh the burdens to those not

committing suicide; but the state also could rationally conclude

that the burdens outweigh the benefits, and decide not to

prohibit withdrawals of medical treatment or medically-assisted

hydration and nutrition. Since the state has a rational basis for

distinguishing these cases from direct, active, assisted suicide,

the state may treat the two situations differently.

ARGUMENT

I. THE EXISTENTIALIST NOTION OF LIBERTY

POSITED IN THIS COURT'S ABORTION

JURISPRUDENCE IS FAR TOO SWEEPING TO

SERVE AS A GENERAL RULE FOR

CONSTITUTIONALADJUDICATION AND OUGHT

NOT BE EXTENDED TO CREATE A RIGHT TO

ASSISTED SUICIDE.

A. Neither Constitutional Text, Tradition, nor History

Support any Fundamental Right to Assisted

Suicide.

Ever since repudiating the substantive due process

approach of Lochner v. New York, 198 U.S. 45 (1905), this

Court generally has limited its review of most state laws under

the Due Process Clause to determine culy whether those laws

rationally serve a legitimate state objective. See, e.g., Nebbia

v. New York, 291 U.S. 502 (1934); West Coast Hotel Co. v.

Parrish, 300 U.S. 379 (1937); Williamson v. Lee Optical Co.,

348 U.S. 483 (1955); Bowers v. Hardwick, 478 U.S. 196

(1986). Certainly, protecting human life is a legitimate

government end. That was the view of this nation's founders,

who wrote in our founding document that one of the reasons

6

governments are founded is to secure the "unalienable" right to

life. Declaration of Independence, para. 2 (U.S. 1776).

Prohibiting assisted suicide rationally furthers this end.

Besides helping to preserve the potential suicide's life, a ban on

assisted suicide helps to, among other things, "preserve the

moral ecology” in a community by preventing bad example

which others may emulate, while "educat[ing] people about

moral right and wrong” (in this case, the moral "right" of

protecting human life and the moral "wrong" of killing). See

Gerard V. Bradley, Pluralistic Perfectionism: A Review of

Making Men Moral, 71 Notre Dame L. Rev. 671, 681 (1996)

(reviewing Robert P. George, Making Men Moral (1993), and

discussing George's argument concerning the legitimate ends

served by so-called "morals laws").

Of course, this analysis depends on a state's authority to

accept and apply the proposition "suicide is wrong (or

harmful)" as a governing proposition for lawmaking. Certainly

this proposition is rational (unless one is prepared to dismiss

this nation's entire legal history and tradition concerning

suicide as irrational). But the respondents in these cases, in

effect, seek to deny the states the authority to accept and apply

this proposition by positing that the due process clause creates

a "fundamental right" to assisted suicide that the state may

infringe only upon showing that the infringement is narrowly

tailored to serve a "compelling state interest." See Reno v.

Flores, 507 U.S. 292, 301-03 (1993).

As the Second Circuit correctly observed, the right to

suicide, assisted or otherwise, (like the right to "economic

liberty" or "freedom of contract" found in Lochner) appears

nowhere in the Constitution's text. Quill v. Vacco, 80 F.3d 716,

723 (2d Cir. 1996). It is true that this Court has granted

7

heightened protection to "rights" that do not appear in the

Constitution's text. The danger in this approach, however, is

that it puts the Court in the same position that it occupied

during the Lochner era-that of a superlegislature substituting

its notion of wise public policy for that of the people’s elected

legislators. Thus, this Court has noted that it "is most

vulnerable and comes nearest to illegitimacy when it deals with

judge-made constitutional law having little or no cognizable

roots in the language or design of the Constitution." Bowers v.

Hardwick, 478 U.S. 186, 194 (1986); see also Michael Hv.

Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion).

Because of this danger, this Court generally "has been

reluctant to expand the concept of substantive due process."

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

To limit the proliferation of judge-made rights, this Court has

granted heightened protection only to those asserted freedoms

that are "implict in the concept of ordered liberty,’ such that

‘neither liberty nor justice would exist if [they] were

sacrificed." Bowers, 478 U.S. at 191-92 (quoting Palko v.

Connecticut, 302 U.S. 319, 325, 326 (1937)). In determining

what asserted freedoms are "implicit in the concept of ordered

liberty," the Court generally has turned to history and tradition,

according fundamental status only to those asserted freedoms

“deeply rooted in this nation's history and tradition." Jd. at 192

(quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)

(opinion of Powell, J.)); see also Michael H., 491 U.S. at 122

(fundamental liberties are those "traditionally protected by our

society"); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)

(Due Process Clause grants ordy those protections "so rooted

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

as fundamental").

8

This Court's reliance on history and tradition is at bottom

an act of profound judicial humility that serves the end of

collective self-government. For the Court to assert without

fairly explicit textual support that the Constitution affords

fundamental protections to activities that the people and their

elected legislators historically have restricted or even

prohibited would negate the people's authority to govern

themselves by laws of their own making.

As the Second Circuit recognized in Quill, 80 F.3d at 724-

25, and as Justice Scalia demonstrated in his concurring

opinion in Cruzan v. Director, Missouri Department of Health,

497 U.S. 261, 292-95 (1989), the asserted right to commit

suicide, on which the derivative right to assisted suicide

depends, flunks the history and tradition test. This brief will

not rehash the two cases’ discussions. It suffices to say that the

English Common Law received in this country prohibited

assisted suicide, and the states generally have felt free, both

before and after the Fourteenth Amendment's ratification, to

prohibit suicide, attempted suicide, and assisted suicide. See

Cruzan, 497 U.S. at 294-95 (Scalia, J., concurring); Quill, 80

F.3d at 724. See generally Thomas Marzen, et al., Suicide: A

Constitutional Right?, 24 Dug. L. Rev. 1 (1985).

1. Unlike Justice Scalia in Cruzan, the Second Circuit in Quill, and

the majority of the original panel in Glucksberg, the majority of the en banc

Ninth Circuit found the historical record "checkered." Compassion in Dying

v. Washington, 79 F.3d 760, 806 (9th Cir. 1996) (en banc). We leave to the

petitioners and other amici the task of refuting in detail the Ninth Circuit's

peroration on the philosophical and theological history of suicide in

western culture. We note only that the Ninth Circuit's discourse is largely

tendentious (particularly in its treatment of Christian teachingabout suicide,

and most notably its ridiculous assertion that the New Testament treats

Judas’ suicide as an act of repentance) and, in any event, beside the point.

oo

9

B. The Definition of "Liberty" Stated in Planned

Parenthood v. Casey Should Not be Extended to

Create a Right to Assisted Suicide.

That the asserted right to assisted suicide appears nowhere

in the Constitution's text and fails the test of history and

tradition ought to be a sufficient reason to reject that "right" as

one entitled to heightened constitutional protection. The

Second Circuit correctly reached that conclusion. See Quill, 80

F.3d at 724-25.

Unfortunately, adherence to history and tradition have not

always marked this Court's course when deciding to create non-

textual constitutional rights entitled to special protection. The

primary area in which this Court largely has abandoned its

usual caution in creating such rights is the area of abortion. In

Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S.

179 (1973) this Court overturned all fifty states’ abortion laws

by finding a right to abortion throughout nine months of

pregnancy, despite the fact that neither constitutional text nor

our nation's history and tradition supported such a right. Roe

premised the abortion right on a more general "right to privacy”

in childbearing decisions that it culled from earlier cases,

particularly, Griswold v. Connecticut, 381 U.S. 479 (1965).

Certainly, the Second Circuit in Quill was not impressed by Judge

Reinhardt's historical scholarship.

2. Neither Griswold nor any of its predecessor cases (for example,

Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters,

268 U.S. 510 (1925)) support the right created inRoe. All those cases were

aimed at protecting the integrity of the family unit, not some general

individual right to make decisions concerning child bearing. Griswold,

which struck down a Connecticut law prohibiting married couples’ use of

10

This Court subsequently reaffirmed what it held to be Roe’s

"central holding" in Planned Parenthood v. Casey, 505 U.S.

833 (1992). Casey grounded the abortion right on the Due

Process Clause guarantee of liberty, see id. at 846-53, which it

defined in relation to the Court's abortion, contraception, and

familial privacy cases as follows:

Our law affords constitutional protection to personal

decisions relating to marriage, procreation, contraception,

family relationships, child rearing, and education. Our

cases recognize "the right of the individual, married or

single, to be free from unwarranted governmental intrusion

into matters so fundamentally affecting a person as the

right to bear or beget a child." Our precedents "have

respected the private realm of family life which the state

cannot enter." These matters, involving the most intimate

contraceptives, was premised expressly on the need to protect the privacy

that the good of marital intimacy requires, and the damage to that

privacy that Connecticut's ban on contraceptive use could do. See 381 U.S.

at 484-86 (opinion of the Court); id at 493-96 (Goldberg, J., concurring); id

at 507 (White, J., concurring). See also Poe v. Uliman, 367 U.S. 497, 553

(1961) (Harlan, J., dissenting). Tellingly, Justice Harlan's dissent

in Poe distinguished Connecticut's contraceptive ban, which he said

unconstitutionally imposed on the goodof marital intimacy, from subjects

such as abortion, euthanasia, and suicide, which he said statescould restrict.

See Poe, 367 U.S. at 545-53 (Harlan, J., concurring). For more extended

discussion of the transmogrification of the marital/familial privacy right

recognized in Griswold into the individual right created in Roe, see David

M. Smolin, The Jurisprudence of Privacy in a Splintered Supreme Court 75

Marg. L. Rev. 975, 1059-64 (1992); Gerard V. Bradley, Life's Dominion:

A Review Essay, 69 Notre Dame L. Rev. 329, 350-58 (1993); David

Wagner, The Family and American Constitutional Law, | Liberty, Life&

Fam. 145,157-67 (1994).

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. At the heart of liberty is the right to define

one's own concept of existence, of meaning, of the

universe, and of the mystery of human life. Beliefs about

these matters could not define the attributes of personhood

were they formed under compulsion of the State.

Id. at 851 (citations omitted; emphasis, except for "individual,"

added).

Casey's conception of liberty formed the linchpin of the

Ninth Circuit's decision in Glucksberg. The Ninth Circuit en

banc majority seized on the italicized language quoted above

and concluded that, because "the decision how and when to die

‘is one of the most intimate and personal choices a person may

make in a lifetime” that decision "[sJurely...implicates a most

vital liberty interest." Compassion in Dying v. Washington, 79

F.3d 790, 813-14 (9th Cir. 1996) (en banc). The Ninth Circuit

held that no asserted interest justified the state in prohibiting

“competent, terminally ill adults" from seeking a physician's

assistance in commuitting suicide. /d. at 840.

Admittedly, ti.. Ninth Circuit's extension of Casey has a

surface logic. If liberty really means, as a general

constitutional rule, "the right to define one's own concept of

existence, of meaning, of the universe, and of the mystery of

human life,” then what the Court recognized in Casey is

nothing less than a constitutional right to creat[e] one's own

moral universe. In fact, the very word "autonomy," which the

quoted passage from Casey expressly ties to “the liberty

protected by the Fourteenth Amendment,” 505 U.S. at 851,

12

"derives from the Greek ‘auto’ for self and 'nomos’ for law, so

that it can be literally defined as being a law for, or unto,

oneself." David M. Smolin, The Jurisprudence of Privacy in

a Splintered Supreme Court, 75 Marq. L. Rev. 975, 981 (1992)

(citing | Oxford English Dictionary §? ‘Clarendon Press, 2d

ed. 1969)). If that is liberty, how can iiberty not include the

right to commit suicide (or as the Ninth Circuit delicately put

it, the right to choose "how and when one dies") even with a

physician's assistance (or anybody else's assistance, for that

matter)?

The Court should resist this logic. Casey appears to say

that unconstrained choice “define{s] the attributes of

personhood.” Casey, 505 U.S. at 851. If so, then Casey has

made Jean-Paul Sartre's existentialist philosophy this nation's

taught that the human person creates and defines himself by the

choices he makes, as summed up in the slogan “existence

precedes essence." Jean-Paul Sartre, Existentialism 15

(Bernard Frechtman trans., 1947). In other words, choosing is

more important than being. Thus, in the existentialist view,

"freedom is characterized by a constantly renewed obligation

to remake the Se/f" an obligation fulfilled by making self-

Nothingness 34-35 (Hazel E. Barnes trans. 1956). See

generally Smolin, The Jurisprudence of Privacy, 75 Marq. L.

Rev. at 980-84.

Of course, the Constitution no more enacts M. Jean-Paul

Sartre's Existentialism as this nation's governing moral

philosophy than it enacted "Mr. Herbert Spencer's Social

Statics” as the nation's governing economic philosophy.

Lochner, 198 U.S. at 75 (Holmes, J., dissenting). In any event,

13

making Casey's existentialist definition of liberty the generally

Casey Court may well not have foreseen. For instance, it

reasonably follows from tying “the attributes of personhood” to

the ability to "define one's own concept of existence, of

meaning, of the universe, and of the mystery of human life,”

Casey, 505 U.S. at 851, that the inability to make this self-

definition must be the antithesis of personhood. If so, those

without sufficient cognition to make this self-definition are not

persons. Since protection under the Fourteenth Amendment's

Equal Protection and Due Process Clauses depends on one's

Status as a "person," the notion that personhood depends on

cognition sufficient to allow a being to define his own concept

of existence throws considerable doubt on the constitutional

status of infants, small children, the mentally retarded, the

mentally ill, the mentally incompetent, the comatose, and the

unconscious. The joint opinion's notion of personhood as the

writings of ethicists who have excluded from the ranks of

personhood those who lack what the ethicists judge to be

sufficient rationality and self-consciousness.’

3. See, e.g., Joseph Fletcher, indicators of Humanhood: A Tentative

Profile of Man, 2 Hastings Center Rep. (Nov.1972) (adopting, among other

criteria for humanity, self-awareness, ability to communicate, and a

minimum IQ of 20, and questioning the humanity of anyonewith an IQ less

than 40); Peter Singer, Practical Ethics 76, 97 (1979) (proposing thata

“person” is a rational and self-conscious being: “So it seems that killing, say

a chimpanzee is worse than the killing of a gravely defective human who is

not a person"). See generally William Brennan, Dehumanizing the

Vuinerable | 52-56 (1995) (collecting the similar views of other ethicists).

See also Bradley, Life's Dominion, 69 Notre Dame L. Rev. at 374-80

(summarizing and critiquing Ronald Dworckin’ view of personhood and the

14

Moreover, a right to assisted suicide based on Casey's

notion of liberty would be impossible to limit in any principled

way. Glucksberg and Quill concerned the right of "terminally

ill” competent adults to receive a physician’s assistance in

committing suicide. But why limit the right to terminally-ill

patients? What of the quadriplegic, consigned to life in a

wheelchair? What of the person consigned to suffer lifelong

pain from a condition that will not kill him? How much

physical suffering and pain are too little to justify a right to

suicide? And why are federal courts, including this Court,

more competent than the people's elected representatives to

make that decision?

An even more basic question arises: If liberty is "the nght

to define one's own concept of existence, of meaning, of the

universe, and of the mystery of human life," why should the

assisted suicide right be limited by life expectancy or physical

or emotional pain and suffering? "To be, or not to be™* would

seem to be the fundamental decision any person would face in

defining his own “concept of existence.” If Casey's notion of

liberty does include the right to define one's own concept of

existence, an assisted suicide right based on Casey "must be the

prerogative of at least every sane adult." Compassion in Dying

v. Washington, 49 F.3d 586, 591 (1995). See generally Yale

Kamisar, The Reasons So Many People Support Physician-

Assisted Suicide-and Why These Reasons are not Convincing,

12 Issues in Law & Med. 113, 128-30 (1996).

morality of killing).

4. William Shakespeare, Hamlet, act 3, sc.1 (Harvard Classics,

Charles W. Elliott ed. 1938).

15

Moreover, a right to physician-assisted suicide would

inevitably become a right to physician-administered voluntary

euthanasia in some cases. Even the en banc Ninth Circuit

recognized that physicians or their agents might have to

actually kill the patient when the patient cannot kill himself.

Compassion in Dying v. Washington, 79 F.3d 790, 832 (9th Cir.

1996) (en banc).° While the Ninth Circuit speculated that the

Constitution might treat such voluntary euthanasia differently

than physician-assisted suicide, the court candidly

acknowledged that the key question is not who kills the patient,

but rather who decides to kill. Jd. at 831-32. This reflects the

existentialist notion that the ability to choose consciously is the

essence of personhood and liberty. If this notion controls, it

would be arbitrary to confine to those who can pull the trigger

or administer the deadly potion themselves the right to define

their own "concept of existence" by ending that existence. It

would be just as arbitrary to confine that right to those who

choose to pay a physician to administer the means of death. If

the choice to die is what matters, how can a court reasonably

limit the choice to being killed by a doctor?

that the victim's consent be a defense to homicide. The law

generally has not regarded consent to be a complete defense to

5. The Ninth Circuit refused to call this act of killing another

“euthanasia,” preferring instead to categorize this act along with assisted

suicide as “volitional death.” See 79 F.3d at 832 & n.120. However, there

is no other more proper term for this killing: “euthanasia” means "the action

of killing an individual for reasons considered merciful." The American

Heritage Dictionary 469 (2d College ed. 1991). The Ninth Circuit's word

play is itself a form of killing—"the murder of a word,” which C.S. Lewis

called “verbicide.” C.S. Lewis, Studies in Words 7 (2d ed. 1967).

16

homicide. See Wayne R. LaFave and Austin W. Scott,

Handbook on Criminal Law § 57, at 408 (1972). But if

doctors are immune from homicide charges for executing a

patient's request to be killed, why should not other "angels of

mercy” be similarly immune (or at least able to raise consent as

a defense at trial)? One might object that such a consent

defense would raise evidentiary problems that might not arise

when physicians perform voluntary euthanasia. Even if this

were true, states could overcome those evidentiary problems by

means other than completely prohibiting nonphysicians from

performing voluntary euthanasia. Cf. Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261 (1989)

(upholding a Missouri law requiring "clear and convincing"

evidence of an incompetent's wishes before authorizing

withdrawal of hydration and nutrition). To ban nonphysicians

other than doctors from killing a consenting victim would

under the existentialist view arbitrarily limit the ability of a

person who cannot afford or does not desire physician-assisted

death to define his own concept of existence by choosing to end

that existence as he sees fit.

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam),

which held that Roe v. Wade did not prevent states from

enforcing criminal abortion statutes against nonphysicians, is

not to the contrary. Menillo was premised on the state's

interest in preserving maternal health; abortion by physicians

is likely to be safer for the mother than abortion

by nonphysicians. /d at 10-11. This does not distinguish

euthanasia by physicians from killing by nonphysicians. While

it may take some medical expertise to perform an operation that

kills an unborn child while leaving the mother unharmed (or at

least alive), it takes no medical expertise to put a gun to

17

somebody's head and pull the trigger, or perform the sundry

other acts that would kill another.

Some might suggest preventing unnecessary pain as a

reason for allowing only doctors to kill. But this aesthetic

concern provides no reason to limit a person's right to choose

a violent and painful death if that person really has a right to

choose “how and when" he dies, Compassion in Dying, 79 F.3d

at 838, based on a right to define his "own concept of existence,

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

Self-loathing is as much a concept of existence and meaning as

self-love. One person chooses a painless death; another

chooses a painful death; Casey's definition of liberty implies

that the state is not competent to judge the relative merits of the

concepts of existence and meaning that led to those choices.

Finding principled limits to Casey-style liberty is not

confined to the problem of limiting a right to assisted suicide.

Adopting Casey’s existentialist definition of liberty as a general

constitutional standard will inevitably lead to claims of right to

engage in sundry other activities besides suicide. These

activities could well include drug use, polygamy, fornication,

adultery, divorce, prostitution, sodomy, bestiality, and

consensual sadism. All these can be said to be "intimate and

personal choices" that arise from the person's "concept of

existence, of meaning, of the universe, and of the mystery of

human life." State prohibitions of these activities would

prevent those who would choose to engage in these activities

from "defin{ing] the attributes of [their] personhood" as surely

as state prohibition of assisted suicide.

Some would scoff at this "parade of horribles." But a

"reading of ‘the right to define one's own concept of existence’

language broad enough to cover assisted suicide would be

broad enough to cover a great many other things. It would

surely cover the autonomy of sexual activity and relationships,

and it would do so more easily than it would embrace assisted

suicide." Yale Kamisar, Against Assisted Suicide—Even a Very

Limited Form, 72 U. Det. Mercy. L. Rev. 735, 767 (1995).

Take divorce, for example. Certainly, the choice to marry

is among "the most intimate and personal choices a person may

make in a lifetime." Casey 505 U.S. at 851. But the choice to

dissolve one's marriage also is an intimate and personal choice.

Taking Casey at its word, and accepting that liberty involves

the right to "define the attributes of personhood" by making

such choices, a right to divorce necessarily follows. Indeed,

Kenneth Karst, applying a supposed right to “intimate

association" that is similar if not identical to Casey's notion of

liberty as the right to unconstrained choice, concluded in 1980

that a constitutional right to no-fault divorce exists. Kenneth

L. Karst, The Freedom of Intimate Association, 89 Yale L .J.

624, 637-38, 671-72 (1980); see also Smolin, The

Jurisprudence of Privacy, 75 Marq. L. Rev. at 984 (discussing

Karst's theory of intimate association).

As another example, suppose Timmy's "concept of

existence, of meaning, of the universe” leads him to conclude

that he should "marry" Lassie. If Casey meant what it said

about liberty, how could the state interfere with Timmy's self-

defining choice to pursue this "intimate association"? One

might say that our society traditionally has prohibited

bestiality. But our society traditionally has prohibited abortion

and suicide as well. See Robert M. Byrn, An American

Tragedy: The Supreme Court and Abortion, 41 Fordham L.

Rev. 807, 814-35 (1973) (discussing the history of abortion

19

prohibition); Quill v. Vacco, 80 F.3d 716, 724 (2d Cir. 1996)

(discussing historical prohibition of suicide). One might say

the state may act to prevent harm to Timmy. But that would be

a strange basis for regulating Timmy's conduct with Lassie

when Timmy has the right to kill himself or have himself

killed. One might say the state may act to prevent harm to

Lassie. But that would be an absurd basis for upholding the

state's action: the state may prohibit bestiality to prevent harm

to animals, but may not prevent humans from harming or even

killing themselves (or allowing others to harm or kill them).

Moreover, if Casey's conception of liberty prevents the state

from prohibiting the destruction of a being that is likely a

human being, how can that conception of liberty allow a state

to prevent a person from having "intimate relations" with a

dog?

These examples demonstrate that establishing Casey's

existentialist definition of liberty as a general constitutional

standard could require states to allow conduct the states may

well desire to prohibit as harmful, and that the states

traditionally have had the authority to prohibit.’ This, in effect,

6. This would also seem to preclude prohibitions of consensual

sadism. If somebody has the constitutional right to allow another to kill him

on what basis may the state prohibit that person from allowing another to

inflict pain on him?

7. Casey's notion of liberty may also put in doubt the constitutionalty

of such mundane laws as laws requiring automobile passengers to wear seat

belts or motorcycle riders to wear helmets, as well as other laws, such as

consumer protection laws and FDA regulations, that restrict autonomous

choice. My concept of meaning requires me to live dangerously; under

Casey, who is the state to tell me I cannot choose to live dangerously when

the state cannot prevent me from intentionally killing myself?

20

would impose a radical constitutionally-mandated moral

philosophy—existentialism—on the states. This is a rerun of

Lochner, which imposed a constitutionally-mandated economic

philosophy on the states. Jean-Paul Sartre's Existentialism

simply replaces Mr. Herbert Spencer's Social Statics as the

Court's mandated philosophy of choice.

Of course, recognizing a right to assisted suicide based on

Casey's existentialist notion of liberty may not inevitably lead

the Court to invalidate laws prohibiting or "unduly" restricting

divorce, bestiality, or consensual sadism (or laws prohibiting

other consensual activities the law traditionally has prohibited).

The Court could reject all these claims or accept some or reject

others. It could decide to impose certain "reasonable"

conditions on the exercise of choice concerning these matters.

But an existentialist notion of liberty as the right to

unconstrained choice concerning intimate and personal matters

provides no principled grounds for making these decisions.

Decisions will necessarily rely on ad hoc and essentially

arbitrary judgments: Which decisions are “personal and

intimate” enough to fall within Casey's definition of liberty?

Are some people's concepts "of existence, of meaning, of the

universe, and of the mystery of human life” more or less worthy

than others? When are the state's or society's interests

sufficient to justify constraining choice given the importance

the Court sees in the asserted choice?

This ad hoc process would significantly intrude on the

people's right to collective self-government. The process

would establish the courts as superlegislatures, passing not only

on the constitutionality of states’ laws, but also—as can be seen

from the questions the courts must consider—on those laws’

wisdom. Courts, not elected legislators subject to the people's

21

ultimate control, will decide which laws the people shall be

governed by, despite the lack of any express basis for decision

in constitutional text or our nation's tradition, and despite the

fact that courts are no better situated or qualified to weigh the

competing interests at stake.

This is the vice that infected Lochner's substantive due

process approach. Contrary to popular perception, during the

Lochner era, "most challenged laws withstood attack." Gerald

Gunther, Constitutional Law 445 (12th ed. 1991). Yet,

Lochner represented a significant intrusion on collective self-

government precisely by imposing on the states an economic

philosophy found nowhere in the Constitution. Lochner thus

established the courts, and not the states’ legislatures, as the

ultimate arbiters concerning laws that were reasonable

exercises of the states’ traditional authority.

To avoid these dangers, the Court should not extend

Casey's definition of liberty outside the context in which it

appeared to create a right to assisted suicide. Of course, one

might say that a decision not to so extend Casey is itself

arbitrary since this Court's abortion jurisprudence suffers from

the Lochner-style flaws we have just outlined. See generally

Casey, 505 U.S. at 979-1002 (Scalia, J., dissenting). Therefore,

overruling Casey would be the most principled way to stanch

the dangers that flow from its existentialist notion of liberty.

But if the Court is unwilling to overrule Casey, "[t]he device of

compartmentalizing precedent is an old jurisprudential strategy

for limiting unruly doctrines." Kamisar, Against Assisted

Suicide, 72 U. Det. Mercy L. Rev. at 764. Nothing requires a

court to extend bad doctrine further than that doctrine already

extends.

22

In any event, there is good reason to think that the Casey

joint opinion's authors did not intend for Casey's definition of

liberty to become a general constitutional standard. As noted,

one would expect a definition of liberty as broad as that in

Casey to encompass the choice to engage in consensual

sodomy. In fact, Casey's definition of liberty mirrors Justice

Blackmun's argument in Bowers v. Hardwick, 478 U.S. 186

(1986), that the Constitution protects a person's right to engage

in homosexual sodomy. Compare Casey, 505 U.S. at 851 with

Bowers, 478 U.S. at 204-06. See generally Smolin, The

Jurisprudence of Privacy, 75 Marquette L. Rev. at 981-84. The

Court in Bowers rejected Justice Blackmun's argument. Yet,

nothing in Casey purports to overrule Bowers.

Moreover, Casey expressly relied on the principle of stare

decisis, as well as the broad definition of liberty, as reasons for

affirming Roe's "central holding." See 505 U.S. at 853 ("the

reservations any of us may have in reaffirming the central

holding of Roe are outweighed by the explication of individual

liberty we have given combined with the force of stare

decisis"). No previous case of this Court has ever recognized

a right to assisted suicide. Therefore, no stare decisis concerns

exist in this case.*

If the Court does not extend Casey's definition of liberty,

the asserted right to assisted suicide depends for its existence

on constitutional text and tradition. As we have shown, neither

8. This is not to say we that agree with Casey's application of

stare decisis, for, in fact, we do not. See, e.g., Jay Alan Sekulow & John

Tuskey, The “Center” is in the Eye of the Beholder, 40 N.Y. L. Sch. L. Rev.

945, 961-62 (1996). But that does not affect the fact that thestare decisis

concerns the majority thought controling in Casey do not exist in this case.

23

text nor tradition support that right. Therefore, the Ninth

Circuit's decision creating a right to assisted suicide under the

Due Process Clause cannot stand.’

Il. THE STATE MAY RATIONALLY DISTINGUISH

BETWEEN ASSISTED SUICIDE AND REFUSAL OF

LIFESAVING TREATMENT OR MEDICALLY-

ASSISTED NUTRITION AND HYDRATION;

THEREFORE, LAWS TREATING THE TWO

SITUATIONS DIFFERENTLY DO NOT VIOLATE

THE EQUAL PROTECTION CLAUSE.

The Second Circuit properly rejected the argument that the

Due Process Clause creates a right to assisted suicide. Quill, 80

F.3d at 724-25. But the Second Circuit held that New York's

law prohibiting assisted suicide violated the Equal Protection

Clause. /d. at 725-31. Essentially, the court found no rational

basis for New York to prohibit assisted suicide while allowing

withdrawal of life-sustaining treatment and medically-assisted

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

does not require a different result. In Cruzan, the Court merely assumed

“that the United States Constitution would grant a competent person a

constitutionally protected right to refuse lifesaving hydration and

nutrition.” /d at 279. Even this assumption was dictum, since Cruzan

involved an incompetent patient allegedly in a persistent vegetative

state. Jd. at 265. In any event, the Court based its assumption not on any

broad existentialist notion of liberty (though such a notion was implicit

in the Court's abortion cases, and explicit in Justice Blackmun's Bowers

dissent, neither of which the Court cited) but rather on cases establishing a

person's right to refuse unwanted invasions of his body. See id at 278-79;

id at 287-89 (O’'Comnor, J., concurring). Moreover, in assessing the state's

interest in protecting human life, the Court noted approvingly the

existence of state laws prohibiting assisted suicide, in no way suggesting

such laws might violate the Constitution. /d at 280.

24

hydration and nutrition. In both cases, according to the Second

Circuit, New York allows patients to kill themselves with a

doctor's assistance. See id.

While the Second Circuit correctly applied rational basis

analysis to the New York law because because since neither a

fundamental right nor a suspect class are involved in this case,

Heller v. Doe, 509 U.S. 312, 319 (1993), the Second Circuit

erred in both its premise and its conclusion in applying this

analysis. Not all (and probably a small minority of) decisions

to refuse life-sustaining treatment are suicide; therefore, it is

rational to prohibit assisted suicide while at the same time

allowing patients to refuse or request withdrawal of life-

sustaining treatment.

Suicide is an act performed for the purpose of directly

causing one's death. But a rational moral distinction exists

between suicide and certain acts done with the knowledge that

death is likely, or even inevitable. For example, a man lying on

the railroad tracks waiting for the 9:00 express to put him out

of his misery is committing suicide. But a man who sees the

train bearing down on his son and rushes onto the tracks to save

his son's life knowing full well that he will probably lose his

own life in the process is not committing suicide. Nobody

would suggest that it is irrational for one who believes suicide

is wrong to think of the first act as immoral and the second act

as morally permissible.

The people affected by Washington’s and New York’s

assisted suicide prohibitions are by definition seeking

assistance for the very purpose of killing themselves. They are,

morally speaking, in the first man's position; they are

intentionally seeking death. On the premise that suicide is

25

wrong, no moral gray area exists. Since the state may conclude

rationally that suicide is wrong and ought to be prohibited (see

supra, p. ), a blanket prohibition of assisted suicide is rational.

But not all those who refuse or seek withdrawal of medical

treatment or medically-assisted nutrition and hydration are

intentionally choosing death. Admittedly, some are; but many,

if not most people refusing medical treatment "would only be

accepting death as a side effect of a choice to give up

expensive, possibly useless treatment." Gerard V. Bradley,

Pluralistic Perfecticnism: A Review Essay of Making Men

Moral, 71 Notre Dame L. Rev. 671, 684 (1996). This holds

even for a decision to refuse medically-assisted nutrition and

hydration. As the United States Catholic Bishops noted, “we

should not assume that all or most decisions to withhold or

withdraw medically assisted nutrition and hydration are

attempts to cause death." Statement of the USCC Committee

for Pro-Life Activities, 24 Origins 705 (1992). As the Bishops

recognized, the patient may be facing imminent death anyway,

so that his condition, and not lack of nutrition or hydration, will

probably kill him; or, the patient may be acting not for the

purpose of killing himself, but for the purpose of avoiding a

procedure "of limited usefulness to the patient or unreasonably

burdensome for the patient and the patient's family or care

giver.” Id.

Those who refuse or seek withdrawal of medical treatment

or medically-assisted hydration and nutrition for a reason other

than to kill themselves are, morally speaking, in a similar

position to the man who ran onto the tracks to save his son,

knowing he would likely die in the rescue. They are not

committing suicide; they are only accepting death as a side

effect of what may well be a morally licit action. See id ("This

26

kind of decision should not be equated with . . . suicide"). It is

entirely consistent with the principle that suicide is wrong to

allow these people to refuse medical treatment or medically-

assisted hydration and nutrition.

But what of those who refuse medical treatment or

medically-assisted hydration and nutrition for the purpose of

killing themselves? Admittedly, such refusal would be suicide.

But this does not mean that it is irrational for the state to treat

all refusals of medical treatment or medically-assisted

hydration and nutrition, as a class, differently than it treats

assisted suicide by active means.

It makes sense to prohibit all assisted suicides because all

who seek assisted suicide are acting specifically to kill

themselves. But the question becomes more subtle when

speaking of decisions to withdraw life-sustaining treatment or

medically-assisted food and hydration because while some

people making this decision intend to commit suicide, many if

not most people making this decision do not intend to commit

suicide; they merely accept death as a side effect of their action.

A state operating under the governing principle that suicide is

could prohibit all withdrawal of life-sustaining treatment. This

approach would succeed in vindicating the state's conclusion

that suicide is wrong and ought to be banned, but at the cost of

conclude that given the legitimate interest a person has in

refusing unduly burdensome and potentially useless treatment,

this cost is too great.

Second, the state could examine each case to determine

which withdrawals of treatment really are suicide and which are

27

not, and restrict or punish those withdrawals that amount to

suicide. But error in assessing “what is, after all, the silent

operation of the mind,” Bradley, Pluralistic Perfectionism, 71

Notre Dame L. Rev. at 684, could lead the state to punish acts

that really are not illicit killing. This possibility, in turn, could

deter the withdrawal of unduly burdensome and potentially

useless treatment when such withdrawal would be justified. It

would thus be rational for the state to recognize the limited

ability of the law and those who must apply the law to make

decide not to pursue this case-by-case approach.

Rejecting those first two options, the state could rationally

adopt a third option: do not prohibit withdrawal of lifesaving

treatment. That would allow some behavior that amounts to

suicide. But it would also avoid the cost of prohibiting or

becoming embroiled in subtle judgments about intent. A

rational person could consider the costs of the first two

approaches to outweigh their benefits, and thus settle on this

third approach as a reasonable resolution.

Thus, a state adhering to the general proposition that

suicide is wrong could rationally decide to prohibit assisted

suicide and at the same time allow patients to refuse or request

withdrawal of life-saving treatment or medically-assisted

hydration and nutrition. That decision requires weighing the

costs and benefits of alternative courses of action against the

states's paramount interest in protecting human life. In short,

that decision is quintessentially a legislative decision; it is not

the federal courts’ domain.

To reject a state's decision in this area would require courts

28

either to reject the state's right to adopt a mode of moral

reasoning that allows one to make distinctions based on the

actor's purpose in acting (which would put much established

criminal and tort law in constitutional jeopardy) or to reject the

state's balancing of the various interests and related costs and

benefits involved. Courts would either have to impose a

constitutionally-mandated moral philosophy on the states, or

courts would have to judge expressly the wisdom of the state's

legitimate state prerogatives and the people's right to collective

self-government. Lochner-style judicial second

would again rear its ugly head, except this time by way of the

Equal Protection Clause rather than the Due Process Clause.

CONCLUSION

For the reason stated above, this Court should reverse both

the Ninth Circuit's decision in Glucksberg and the Second

Circuit's decision in Quill.

KEITH A. FOURNIER

JOHN G. STEPANOVICH

Respectfully submitted,

JaY ALAN SEKULOW *

JAMES M. HENDERSON, SR.

THE AMERICAN CENTER WALTER M. WEBER

FoR LAW AND JUSTICE THE AMERICAN CENTER

1000 Regent Univ. Dr. For LAW AND JUSTICE

Virginia Beach, VA 23464 1000 Thos. Jefferson St.

(757) 579-2489 Suite 304

THOMAS P. MONAGHAN Washington, D.C. 20007

JOHN P. TUSKEY (202) 337-2273

New Hope Lire CENTER,

ACLJ-New Hope * Counsel of Record

6375 New Hope Road

New Hope, KY 40052

(502) 549-7020

Attorneys for Amicus Curiae

November 12, 1996.