# Amicus Curiae Brief — Vacco v. Quill

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A46

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 793

## Text

| 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A46. Public record. Not legal advice.