Amicus Curiae Brief — Vacco v. Quill

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Nos. ie Ww)

Supreme Court, U.S

IN THE DEC 0 1996

Supreme Court of the dD States.

OCTOBER TERM, 1996

STATE OF WASHINGTON, ef al.,

Petitioners,

v.

HAROLD GLUCKSBERG, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

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

Petitioners,

Vv

TIMOTHY E. QUILL, ef al,

- Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RONALD DWORKIN, THOMAS NAGEL,

ROBERT NOZICK, JOHN RAWLS, THOMAS SCANLON,

AND JUDITH JARVIS THOMSON AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

RONALD DWORKIN

NEW YORK UNIVERSITY SCHOOL OF LAW

40 Washington Square South

New York, New York 10012

(212) 998-6248

PETER L. ZIMROTH

Counsel of Record

PHILIP H. CURTIS

KENT A. YALOWITZ

ANAND AGNESHWAR

399 Park Avenue

New York, New York 10022

Of Counsel: (212) 715-1000

ARNOLD & PORTER ABE KRASH

Washington, D.C. and 555 Twelfth Street, N.W.

New York, New York Washington, D.C. 20004

(202) 942-5000

December 1996 Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .

INTEREST OF THE AMICI CURIAE . .

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. THE LIBERTY INTEREST ASSERTED HERE IS

PROTECTED BY THE DUE PROCESS CLAUSE

. THIS COURT’S DECISIONS IN CASEY AND

CRUZAN COMPEL RECOGNITION OF A

LIBERTY INTEREST HERE ...

A. Casey Supports the Liberty Interest

Asserted Here

Cruzan Supports the Liberty Interest

Asserted Here

. STATE INTERESTS DO NOT JUSTIFY A

CATEGORICAL PROHIBITION ON ALL

ASSISTED SUICIDE ....

CONCLUSION

TABLE OF AUTHORITIES

Cases: Page

Cleveland Bd. of Educ. v. LeFleur, 414 U.S. 632

(| ee 6

Cohen v. California, 403 U.S. 15 (1971) «2... ee ees 5

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

DiGrella v. Elston, 858 S.W.2d 698 (Ky. 1993) ........ 15

In re Doe, 411 Mass. 512, 583 N.E.2d 1263 .......... 15

Eisenstadt v. Baird, 405 U.S. 438 (1973). ...........4.4. 6

In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987) ....... 14

Girouard v. United States, 328 U.S. 61 (1946).......... 6

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ........ 10

Korematsu v. United States, 323 U.S. 214 (1944) ....... 17

Loving v. Virginia, 388 U.S. 1 (1967)... 6... 56+ eee 6

Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1993) ...... 15

In re Martin 450 Mich. 204, 538 N.W.2d 399 (1995) .... 15

McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1970) . . 13

Palko v. Connecticut, 302 U.S. 319 (1937) ..........-.. 5

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

Schmerber v. California, 384 U.S. 757 (1966) ......... 10

Skinner v. Oklahoma, 316 U.S. 535 (1942) ............ 6

In re Tavel, 661 A.2d 1061 (Del. 1995) ............. 1S

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 6346 (1043)... wc cece et eee eee eee 6

Statutory Provisions:

Cal. Penal Code § 401 (1992) > « 6a eee 15

Oregon Death with Dignity Act,

Or. Rev. Stat. §§ 127.800-.827 (1995)

Scholarly Authorities:

Charles H. Baron, ef. al., A Mode’ State Act to

Authorize and Regulate Physician - Assisted

Suicide, 33 Harv. J. Legis. 1 (1996)... ........ 16

TABLE OF AUTHORITIES—Continued

Charles Fried, Right and Wrong (1978)

Allison C. Hall, To Die With Dignity:

Comparing Physician-Assisted Suicide in the United

States, Japan, and the Netherlands, 74

Wash. U. L. Q. 803 (1996)

Page

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Nos. 95-1858, 96-110

STATE OF WASHINGTON, ef ai. .

Petitioners ,

Vs.

HAROLD GLUCKSBERG, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS POR THE NINTH CIRCUIT

DENNIS C. VACCO, ATTORNEY GENERAL

OF NEW YORK, ef al.,

Petitioners ,

VS.

TIMOTHY E. QUILL, ef ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF RONALD DWORKIN, THOMAS NAGEL,

ROBERT NOZICK, JOHN RAWLS, THOMAS SCANLON, AND

JUDITH JARVIS THOMSON AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

" F

INTEREST OF THE AMICI CURIAE

Amici are six moral and political philosophers who differ

on many issues of public morality and policy. They are

united, however, in their conviction that respect for

fundamental principles of liberty and justice, as well as for

the American constitutional tradition, requires that the

decisions of the Courts of Appeals be affirmed. '

' This brief is filed on the consent of all parties. See S. Ct. R.

37.3/a). It is not filed on behalf of any corporation. See S. Ct. R. 29.1.

oB-

INTRODUCTION AND SUMMARY OF ARGUMENT

These cases do not invite or require the Court to make

moral, ethical or religious judgments about how people

should approach or confront their death or about when it is

ethical ¥ late to hasten one’s own death or to ask

others for help in doing so. On the contrary, they ask the

Court to recognize that individuals have a constitutionally

interest in making those grave judgments for

themselves, free from the imposition of any religious or

i ical orthodoxy by court or legislature. States have

a constitutionally legitimate interest in ing individuals

from irrational, ill-informed, pressured or decisions

to hasten their own death. To that end, states may regulate

and limit the assistance that doctors may give individuals

who express a wish to die. But states may not deny people

in the position of the patient-plaintiffs in these cases the

ity to demonstrate, through whatever reasonable

on the side of caution—that their decision to die is indeed

informed, stable, and fully free. Denying that opportunity to

terminally -ill patients who are in izing pain or otherwise

doomed to an existence they as intolerable could only

be justified on the basis of a religious or ethical conviction

about the value or meaning of life itself. Our Constitution

forbids government to impose such convictions on its

citizens.

Petitioners and the amici who support them offer two

contradictory arguments. Some that the patient-

plaintiffs have any constitutionally ted liberty interest

in hastening their own deaths.’ t that liberty interest

flows directly from this Court’s previous Gecisions. It flows

> See, e.g., Brief for the Petitioners at 25-33, Washingiun v.

Glucksberg; Brief for Petitioners Vacco and Pataki at 19-20, Vacco v.

Quill; Brief Amici Curiae of the United States Catholic Conference, New

York Catholic Conference, et al. in Support of Petitioners at 7-21,

Washington v. Glucksberg. Brief for the Institute for Public Affairs of the

Union of Orthodox Jewish Congregations of America and the Rabbinical

Council of America as Amici Curiae in Support of Petitioners at 5-13,

Vacco v. Quill and Washington v. Glucksberg.

-4-

from the right of people to make their own decisions about

matters “involving the most intimate and personal choices a

person may make in a lifetime, choices central to personal

dignity and autonomy.” Planned Parenthood v. Casey, 505

U.S. 833, 851 (1992).

The Solicitor General, urging reversal in support of

Petitioners, recognizes that the patient-plaintiffs do have a

constitutional liberty interest at stake in these cases. See

Brief for the United States as Amicus Curiae Su ing

Petitioners at 12, Washington v. Vacco [hereinafter Brief for

the United States} (“The term ‘liberty’ in the Due Process

Clause . . . is broad enough to e an interest on the

part of terminally ill, mentally competent adults in —-

relief from the kind of suffering experienced by the plaintiffs

in this case, which includes not only severe physical pain,

but also the despair and distress that comes from physical

deterioration and the inability to control basic bodily

functions.”); see also id. at 13 (“Cruzan . . . supports the

conclusion that a liberty interest is at stake in this case.”),

The Solicitor General nevertheless argues that Washington

and New York properly ignored this profound interest when

they required the patient-plaintiffs to live on in circumstances

they found intolerable. He argues that a state may simply

declare that it is unable to devise a regulatory scheme that

wouid adequately protect patients whose desire to die might

be: ill-informed or unstable or foolish or not fully free, and

that a state may therefore fall back on a blanket prohibition.

This Court has never accepted that patently dangerous

rationale for denying protection altogether to a conceded

fundamental constitutional interest. It would be a serious

mistake to do so now. If that rationale were accepted, an

interest acknowledged to be constitutionally protected would

be rendered empty.

Ce ee ne ee ee

a ew

A nt le

offs

ARGUMENT

I. THE LIBERTY INTEREST ASSERTED

HERE IS PROTECTED BY THE DUE

PROCESS CLAUSE

The Due Process Clause of the Fourteenth Amendment

pe the liberty interest asserted by the patient-plaintiffs

re.

Certain decisions are momentous in their impact on the

character of a person’s life—derisions about religious faith,

political and moral allegiance, marriage, procreation and

death, for example. Such deepiy personal decisions reflect

controversial ions about how and why human life has

value. In a free society, individuals must be allowed to

make those decisions for themselves, out of their own faith,

conscience and convictions. This Court has insisted, in a

variety of contexts and circumstances, that this great freedom

is among those protected by the Due Process Clause as

essential to a community of “ordered liberty.” Palko v.

Connecticut, 302 U.S. 319, 325 (1937). In its recent

decision in Planned Parenthood v. Casey, 505 U.S. 833, 851

(1992), the Court offered a paradigmatic statement of that

principle:

matters{] involving the most intimate and

choices a person may make in a

lifetime, choices central to a person's dignity

and autonomy, are central to the liberty

protected by the Fourteenth Amendment.

That declaration reflects an idea underlying many of our

basic constitutional protections.’ As the Court explained in

> In Cohen v. California, 403 U.S. 15, 24 (1971), for example, this

Court held that the First Amendment guarantee of free speech and

expression derives from “the belief that no other approach would comport

with the premise of individual dignity and choice upon which our political

system rests.” Interpreting the religion clauses of the First Amendment,

this Court has explained that “[t}he victory for freedom of thought

recorded in our Bill of Rights recognizes that in the domain of conscience

ofis

West Virginia State Board of Education v. Barnette, 319

U.S. 624, 642 (1943):

If there is any fixed star in our constitutional

constellation, it is that no official . . . can

prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of

opinion or force citizens to confess by word

or act their faith therein.

A person’s interest in following his own convictions at the

end of life is so central a part of the more general right to

there is a moral power higher than the State.” Girouard v. United States,

328 U.S. 61, 68 (1946). And, in a number of Due Process cases, this

Court has protected this conception of autonomy by carving out a sphere

of personal family life that is immune from government intrusion. See,

e.g., Cleveland Bd. of Educ. v. LeFleur, 414 U.S. 632, 639 (1974)

(“This Court has long recognized that freedom of personal choice in

matters of marriage and family life is one of the liberties protected by the

Due Process Clause of the Fourteenth Amendment.”); Eisenstadt v.

Baird, 405 U.S. 438, 453 (1973) (recognizing right “to be free from

unwarranted governmental intrusion into matters so fundamentally

affecting a person as the decision to bear and beget a child”); Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942) (holding unconstitutional a state

Statute requiring the sterilization of individuals convicted of three

offenses, in large part because the state’s actions unwarrantedly intruded

on marriage and procreation, “one of the basic civil rights of man”);

Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down the criminal

prohibition of interracial marriages as an infringement of the right to

marry and holding that “[t}he freedom to marry has long been recognized

as one of the vital personal rights essential to the orderly pursuit of

happiness by free men”).

These decisions recognize as constitutional!y immune from state

intrusion that realm in which individuals make “intimate and personal”

decisions that define the very character of their lives. See Charles Fried,

Right and Wrong 146-47 (1978) (“What a person is, what he wants, the

determination of his life plan, of his concept of the good, are the most

intimate expressions of self-determination, and by asserting a person's

responsibility for the results of this self-determination, we give substance

to the concept of liberty.”).

~ =

make “intimate and personal choices” for himself that a

failure to protect that particular interest would undermine the

general right altogether. Death is, for each of us, among the

most significant events of life. As the Chief Justice said in

Cruzan v. Missouri, 497 U.S. 261, 281 (1990), “[t}he choice

between life and death is a ly personal decision of

obvious and overwhelming finality. Most of us see

death—whatever we think will follow it—as the final act of

life’s drama, and we want that last act to reflect our own

convictions, those we have tried to live by, not the

convictions of others forced on us in our most vulnerable

moment.

Different a. of different religious and ethical beliefs,

embrace very different convictions t which way «* dying

confirms and which contradicts the value of their lives.

Some fight against death with every weapon their doctors can

devise. Others will do nothing to hasten death even if they

pray it will come soon. Still others, including the patient-

plaintiffs in these cases, want to end their lives when they

think that living on, in the only way they can, would

disfigure rather than enhance the lives they had created.

Some people make the latter choice not just to escape pain.

Even if it were possible to eliminate all pain for a dying

patient—and frequently that is not possible—that would not

end or even much alleviate the anguish some would feel at

remaining alive, but intubated, helpless and often sedated

near oblivion.

None of these dramatically different attitudes about the

meaning of death can be dismissed as irrational. None

should be imposed, either by the pressure of doctors or

relatives or by the fiat of government, on people who reject

it. Just as it would be intolerable for government to dictate

that doctors never be permitted to try to keep someone alive

as long as possible, when that is what the patient wishes, so

it is intolerable for government to dictate that doctors may

never, under any circumstances, help someone to die who

believes that further life means only degradation. The

Constitution insists that people must be free to make these

deeply personal decisions for themselves and must not be

forced to end their lives in a way that appalls them, just

because that is what some majority thinks proper.

Il. THIS COURT’S DECISIONS IN CASEY

AND CRUZAN COMPEL RECOGNITION

OF A LIBERTY INTEREST HERE

A. a Supports the Liberty Interest Asserted

ere

In Casey, this Court, in holding that a State cannot

constitutionally proscribe abortion in all cases, reiterated that

the Constitution protects a sphere of autonomy in which

individuals must be permitted to make certain decisions for

themselves. The Court began its analysis by pointing out

that “[a]t 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.” 505 U.S. at 851. Choices flowing

out of these conceptions, on matters “involving the most

intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy,

are central to the liberty protected by the Fourteenth

Amendment.” Jd. “Beliefs about these matters,” the Court

continued, “could not define the attributes of personhood

were they formed under compulsion of the State.” /d.

In language pertinent to the liberty interest asserted here,

the Court explained why decisions about abortion fall within

this category of “personal and intimate” decisions. A

decision whether or not to have an abortion, “originat[ing]}

within the zone of conscience and belief,” involves conduct

in which “the liberty of the woman is at stake in a sense

unique to the human condition and so unique to the law.”

Id. at 852. As such, the decision necessarily involves the

very “destiny of the woman” and is inevitably “shaped to a

large extent on her own conception of her spiritual

imperatives and her place in society.” Jd. Precisely because

of these characteristics of the decision, “the State is [not]

entitled to proscribe [abortion] in all instances.” /d. Rather,

to allow a total prohibition on abortion would be to permit a

state to impose one conception of the meaning and value of

human existence on all individuals. This the Constitution

forbids.

The Solicitor General nevertheless argues that the right to

abortion could be supported on grounds other than this

athe

—— principle, grounds that would not apply here. He

argues, for example, that the abortion right might flow from

the great burden an unwanted child imposes on its mother’s

life. Brief for the United States at 14-15. But whether or

not abortion rights could be defended on such grounds, they

were not the grounds on which this Court in fact relied. To

the contrary, the Court explained at length that the right

flows from the constitutional protection accorded ll

individuals 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.

The analysis in Casey compels the conclusion that the

patient-plaintiffs have a liberty interest in this case that a

state cannot burden with a blanket prohibition. Like a

woman's decision whether to have an abortion, a decision to

die involves one’s very “destiny” and inevitably will be

“shaped to a large extent on [one’s] own conception of

[one’s] spiritual imperatives and [one’s] place in society.”

Id. at 852. Just as a blanket prohibition on abortion would

involve the improper imposition of one conception of the

meaning and value of human existence on all individuals, so

too would a blanket prohibition on assisted suicide. The

liberty interest asserted here cannot be rejected without

undermining = — of Casey. Indeed, the lower court

opinions in ashington case expressly recognized the

parallel between the liberty interest in Casey and the interest

asserted here. See Compassion in Dying v. Washington, 79

F.3d 790, 801 (9th Cir. 1996) (en banc) (“In deciding right-

to-die cases, we are guided by the Court’s approach to the

abortion cases. Casey in particular provides a powerful

precedent, for in that case the Court had the opportunity to

evaluate its past decisions and to determine whether to adhere

to its original judgment.”), aff’g, 850 F. Supp. 1454, 1459

(W.D. Wash. 1994) (“[T]he reasoning in Casey [is] highly

instructive and almost prescriptive . . .”). This Court should

do the same.

B. sam Supports the Liberty Interest Asserted

ere

We agree with the Solicitor General that this Court’s

decision in “Cruzan . . . supports the conclusion that a

- 10-

liberty interest is at stake in this case.” Brief for the United

States at 8. Petitioners, however, insist that the present cases

can be distinguished because the right at issue in Cruzan was

limited to a right to reject an unwanted invasion of one’s

body. But this Court repeatedly has held that in appropriate

circumstances a state may require individuals to accept

unwanted invasions of the body. See, e.g., Schmerber v.

California, 384 U.S. 757 (1966) (extraction of blood sample

from individual suspected of driving while intoxicated,

notwithstanding defendant’s objection, does not violate

privilege against self-incrimination or other constitutional

rights); Jacobson v. Massachusetts, 197 U.S. 11 (1905)

(upholding compulsory vaccination for smallpox as

reasonable regulation for protection of public health). The

liberty interest at stake in Cruzan was a more profound one.

If a competent patient has a constitutional right to refuse life-

sustaining treatment, then, the Court implied, the state could

not override that right. The regulations upheld in Cruzan

were designed only to ensure that the individual’s wishes

were ascertained correctly. Thus, if Cruzan implies a right

of competent patients to refuse life-sustaining treatment, that

implication must be understood as resting not simply on a

right to refuse bodily invasions but on the more profound

right to refuse medical intervention when what is at stake is

a momentous personal decision, such as the timing and

manner of one’s death. In her concurrence, Justice

O’Connor expressly recognized that the right at issue

involved a “deeply personal decision” that is “inextricably

intertwined” with our notion of “self-determination.” 497

U.S. at 287-89.

Cruzan also supports the proposition that a state may not

burden a terminally ill patient’s liberty interest in

determining the time and manner of his death by prohibiting

doctors from terminating life support. Seeking to distinguish

Cruzan, Petitioners insist that a state may nevertheless

burden that right in a different way by forbidding doctors to

assist in the suicide of patients who are not on life-support

machinery. They argue that doctors who remove life support

are only allowing a natural process to end in death whereas

doctors who prescribe lethal drugs are intervening to cause

death. So, according to this argument, a state has an

independent justification for forbidding doctors to assist in

- e

suicide that it does not have for forbidding them to remove

life support. In the former case though not the latter, it is

said, the state forbids an act of killing that is morally much

more problematic than merely letting a patient die.

This argument is based on a misunderstanding of the

pertinent moral principles. It is certainly true that when a

patient does not wish to die, different acts, each of which

foreseeably results in his death, nevertheless have very

different moral status. When several patients need organ

plants and organs are scarce, for example, it is morally

permissible for a doctor to deny an organ to one patient,

even —™ ~ he will die without it, in order to give it to

another. But it is certainly not permissible for a doctor to

kill one patient in order to use his organs to save another.

The morally significant difference between those two acts is

not, however, that killing is a positive act and not providing

an Organ is a mere omission, or that killing someone is

worse than merely allowing a “natural” process to result in

death. It would be equally impermissible for a doctor to let

an injured patient bleed to death, or to refuse antibiotics to

a patient with pneumonia—in each case the doctor would

have allowed death to result from a “natural” process—in

order to make his organs available for lant to others.

A doctor violates his patient’s rights regardless of whether

the doctor acts or refrains from acting, against the patient’s

wishes, in a way that is designed to cause death.

_ When a competent patient does want to die, the moral

situation is obviously different, because then it makes no

sense to appeal to the patient’s right not to be killed as a

reason why an act designed to cause his death is

impermissible. From the patient’s point of view, there is no

morally pertinent difference between a doctor’s ‘erminating

treatment that keeps him alive, if that is what he wishes, and

a doctor’s helping him to end his own life by providing lethal

pills he may take himself, when ready, if that is what he

wishes—except that the latter may be quicker and more

humane. Nor is that a pertinent difference from the doctor’s

point of view. If and when it is permissible for him to act

with death in view, it does not matter which of those two

means he and his patient choose. If it is permissible for a

doctor deliberately to withdraw medical treatment in order to

- 12-

;

permissible for him to help his patient hasten his own

more actively, if that is the patient's express wish.

allow death to result from a natural process, then it is ey

It is true that some doctors asked to terminate life

are reluctant and do so only in deference to a patient's right

to compel them to remove unwanted invasions of his body.

But other doctors, who believe that their most

professional duty is to act in the patient’s interests and that,

in certain circumstances, it is in their patient’s best interests

to die, participate willingly in such decisions: they terminate

life support to cause death because they know that is what

their patient wants. Cruzan implied that a state may not

absolutely prohibit a doctor from deliberately causing death,

at the patient’s request, in that way and for that reason. If

so, then a state may not prohibit doctors from deliberately

using more direct and often more humane means to the same

end when that is what a patient prefers. The fact that failing

to provide life sustaining treatment may be regarded as “only

letting nature take its course” is no more morally significant

in this context, when the patient wishes to die, than in the

other, when he wishes to live. Whether a doctor turns off a

respirator in accordance with the patient’s request or

prescribes that a patient may take when he is ready to

kill himself, the doctor acts with the same intention: to help

the patient die.

The two situations do differ in one important respect.

Since patients have a right not to have life support machinery

attached to their bodies, they have, in principle, a right to

compel its removal. But that is not true in the case of

assisted suicide: patients in certain circumstances have a right

that the state not forbid doctors to assist in their deaths, but

they have no right to compel a doctor to assist them. The

right in question, that is, is only a right to the help of a

willing doctor.

III. STATE INTERESTS DO NOT JUSTIFY A

CATEGORICAL PROHIBITION ON ALL

ASSISTED SUICIDE

The Solicitor General concedes that “a competent,

terminally ill adult has a constitutionally cognizable liberty

"

interest in avoiding the kind of suffering experi by the

plaintiffs in this case.” Brief for the United States at 8. He

agrees that this interest extends not only to avoiding pain, but

to avoiding an existence the patient believes to be one of

intolerable indignity or incapacity as well. Id. at 12. The

Solicitor General argues, however, that states nevertheless

have the right to “override” this liberty interest :

because a state could reasonably conclude that allowing

doctors to assist in suicide, even under the most stringent

regulations and procedures that could be devised, would

unreasonably the lives of a number of patients who

might ask for death in circumstances when it is plainly not in

their interests to die or when their consent has been

improperly obtained.

This argument is v-ipersuasive, however, for at least three

reasons. First, in Cruzan, this Court noted that its various

decisions supported the recognition of a general liberty

interest in refusing medical treatment, even when such

refusal could result in death. 497 U.S. at 278-79. The

various risks described by the Solicitor General apply equally

to those situations. For instance, a patient kept alive only by

an elaborate and disabling life support system might well

become depressed, and doctors might be equally uncertain

whether the ion is curable: such a patient might

decide for only because he has been advised that he

will die soon anyway or that he will never live free of the

burdensome apparatus, and either diagnosis might

conceivably be mistaken. Relatives or doctors might subtly

or crudely influence that decision, and state provision for the

decision may (to the same degree in this case as if it allowed

assisted suicide) be thought to encourage it.

Yet there has been no suggestion that states are incapable

of addressing such dangers through regulation. In fact, quite

the — is true. In McKay v. Bergstedt, 106 Nev. $08.

801 P.2d 617 (1990), for example, the Nevada Supreme

Court held that “competent adult patients desiring to refuse

or discontinue medical treatment” must be examined by two

non-attending physicians to determine whether the patient is

mentally competent, understands his prognosis and treatment

options, and appears free of coercion or pressure in making

his decision. /d. at 827-28, 801 P.2d at 630. See also id.

+ +

(in the case of terminally-ill patients with natural life

expectancy of less than six months, patient's right of self-

determination shall be deemed to over State interests,

whereas wernt enh ion to terminate life-

support systems must first be wei -~ph dt. -.4-«

interests by trial j ); In re Farrell, 108 N.J. 335, 354,

529 A.2d 404, 413 (1987) (terminally-ill patient requesting

termination of life-support must be determined to be

competent and properly informed about prognosis, available

treatment options and risks, and to have made decision

voluntarily and without coercion). Those protocols served to

guard against precisely the dangers that the Solicitor General

raises. The case law contains no suggestion that such

protocols are inevitably insufficient to prevent deaths that

should have been prevented.

Indeed, the risks of mistake are overall greater in the case

of terminating life support. Cruzan implied that a state must

allow individuals to make such decisions through an advance

directive stipulating either that life support be terminated (or

not initiated) in described circumstances when the individual

was no longer competent to make such a decision himself, or

that a designated proxy be allowed to make that decision.

All the risks just ribed are present when the decision is

made through or pursuant to such an advance directive, and

a grave risk is added: that the directive, though still

in force, no longer represents the wishes of the patient. The

patient might have changed his mind before he became

incompetent, though he did not change the directive, or his

proxy may make a decision that the patient would not have

made himself if still competent. In Cruzan, this Court held

that a state may limit these risks through reasonable

regulation. It did not hold—or even suggest—that a state

may avoid them through a blanket prohibition that, in effect,

the liberty interest altogether.

Second, nothing in the record supports the conclusion that

no system of rules and regulations could adequately reduce

the risk of mistake. As discussed above, the experience of

states in adjudicating requests to have life-sustaining

x *

treatment removed indicates the opposite. The Solicitor

General has provided no reason why the same sort

of procedures could not be applied effectively in the case of

RY A individual’s request for physician-assisted

suicide.

Indeed, several very detailed schemes for

aa suicide have been submitted to the voters

of some states’ and one has been enacted.° In addition,

* When state protocols are observed, sometimes the patient is

permitted to die and sometimes not. See, ¢.g., In re Tavel, 661 A.2d

1061 (Del. 1995) (affirming finding that petitioner-daughter had proven

by clear and convincing evidence that incompetent patient would want life

support systems removed); /n re Martin, 450 Mich. 204, 538 N.W.2d

399 (1995) (holding that wife’s testimony and affidavit did not constitute

clear and convincing evidence of incompetent patient's pre-injury decision

to decline life-sustaining medical treatment in patient's present

circumstances); DiGrella v. Elston, 858 S.W .2d 698, 710 (Ky. 1993) (“If

where the patient resides, and the legal guardian or next of kin all agree

and document the patient's wishes and condition, and if no one disputes

their decision, no court order is required to proceed to carry out [an

incompetent} patient's wishes”); Mack v. Mack, 329 Md. 188, 618 A.2d

744 (1993) (holding that wife failed to provide clear and convincing

evidence that incompetent husband would want life support removed); /n

re Doe, 4:1 Mass. 512, 583 N.E.2d 1263 (applying doctrine of

substituted judgment and holding that evidence supported finding that, if

incompetent patient were capable of making a choice, she would remove

life support).

* For example, 46% of California voters supported Proposition 161,

which would have legalized physician-assisted suicide, in November

1992. The measure was a proposed amendment to Cal. Penal Code §

401 (1992) which currently makes assisted suicide a felony. Those who

did not vote for the measure cited mainly religious reasons or concerns

that the proposed law was flawed because it lacked safeguards against

abuse and needed more restrictions that might be easily added, such as a

waiting period and a psychological examination. Alison C. Hall, To Die

With Dignity: Comparing Physician-Assisted Suicide in the United States,

Japan, and the Netherlands, 74 Wash. U. L. Q. 803, 817 n.84 (1996).

= =

concerned groups, including ae. of distinguished

professors of law and other prof , have and

defended such schemes. See, e.g., Charles H.

al., A Model State Act to Authorize and Regulate Physician-

Assisted Suicide, 33 Harv. J. Legis. 1 (1996). Such draft

statutes propose a variety of protections and

designed to insure against mistakes, and neither

nor New York to show that such

schemes would be porous or | ive. Nor does the

Solicitor General’s brief: it relies instead mainly on flat and

conclusory statements. It cites a New York Task Force

report, written before the proposals just described were

drafted, whose findings have been widely di and were

implicitly rejected in the opinion of the Circuit

below. See generally Quill v. Vacco, 80 F.3d 716 (2d Cir.

1996). The weakness of the Solicitor General’s argument is

signalled by his strong reliance on the experience in the

Netherlands which, in effect, allows assisted suicide pursuant

to published guidelines. Brief for the United States at 23-24.

The Dutch guidelines are more permissive than the proposed

and model American statutes, however. The Solicitor

General deems the Dutch practice of ending the lives of

people like neo-nates who cannot consent particularly

* In November 1994, Oregon voters approved the Oregon Death With

Dignity Act through voter initiative, legalizing physician-assisted suicide

under limited circumstances. Oregon Death With Dignity Act, Or. Rev.

Stat. §§ 127.800-.827 (1995). Under the Oregon Act, a capable adult

resident of the state, who

has been determined by the attending physician and

consulting physician to be suffering from a terminal

disease, and who has voluntarily expressed his or her

wish to die, may make a written request for medication

for the purpose of ending his life in a human and

dignified manner in accordance with [the provisions of

the Act].

Or. Rev. Stat. § 127.805 (1995). The Act provides specific definitions

of essential terms such as “incapable” and “terminal disease.” The Act

also provides numerous other regulations designed to safeguard the

integrity of the process.

= 2

noteworthy, for e , but that practice could easily and

effectively be made i by any state regulatory scheme

without violating the Constitution.

protection, that such speeches would not provoke a riot

would result in serious injury or death 2 on taeeeet - ay

those

_ Third, it is doubtful whether the risks the Solicitor General

cites are even of the right character to serve as justification

for an absolute prohibition on the exercise of an important

liberty interest. The risks fall into two groups. The first is

_~

the risk of medical mistake, including a misdiagnosis of

competence or terminal illness. To be sure, no scheme of

regulation, no matter how rigorous, can al guarantee

that medical mistakes will not be made. But the Constitution

does not allow a state to way F me y a great variety of

important choices, for which informed consent is properly

deemed necessary, just because the information on which the

consent is given may, in spite of the most strenuous efforts

to avoid mistake, be wrong. Again, these identical risks are

present in decisions to terminate life support, yet they do not

justify an absolute prohibition on the exercise of the right.

The second group consists of risks that a patient will be

unduly influenced by considerations that the state might deem

it not in his best interests to be swayed by, for example, the

feelings and views of close family members. Brief for the

United States at 20. But what a patient regards as proper

grounds for such a decision normally reflects exactly the

judgments of personal ethics—-of why his life is important

and what affects its value—that patients have a crucial liberty

interest in deciding for themselves. Even people who are

dying have a right to hear and, if they wish, act on what

others _ wish to tell or suggest or even hint to them, and

it would be dangerous to suppose that a state may prevent

this on the ground that it knows better than its citizens when

they should be moved by or yield to particular advice or

suggestion in the exercise of their right to make fateful

personal decisions for themselves. It is not a good reply that

some people may not decide as they really wish—as they

would decide, for example, if free the “pressure” of

others. That possibility could hardly justify the most serious

pressure of all—the criminal law which tells them that they

may not decide for death if they need the help of a doctor in

dying, no matter how firmly they wish it.

There is a fundamental infirmity in the Solicitor General's

argument. He asserts that a state may reasonably judge that

the risk of “mistake” to some persons justifies a prohibition

that not only risks but insures and even aims at what would

undoubtedly be a vastly greater number of “mistakes” of the

opposite kind—preventing many thousands of competent

people who think that it disfigures their lives to continue

living, in the only way left to them, from escaping that—to

~ }

them—terrible injury. A state grievously and irreversibly

harms such people when it prohibits that escape. The

Solicitor General’s argument may seem plausible to those

ay do not agree — copy harmed by being forced

to live on in pain w regard as indignity. But

many other people plainly do think that such individuals are

harmed, and a state may not take one side in that essentially

ethical or religious controversy as its justification for denying

a crucial liberty.

Of course, a state has important interests that justify

regulating physician-assisted suicide. It may be legitimate

for a state to deny an opportunity for assisted suicide when

it acts in what it reasonably judges to be the best interests of

the potential suicide, and when its judgment on that issue

does not rest on contested judgments about “matters

a most intimate and personal choices a person

may in a lifetime, choices central to personal dignity

and autonomy.” Casey, 505 U.S. at 851. A state might

assert, for example, that people who are not terminally ili,

but who have formed a desire to die, are, as a group, very

assistance. This Court need not decide now the/extent to

which such paternalistic interests might override an

individual's liberty interest. No one can plausibly claim,

however—and it is noteworthy that neither Petitioners nor the

Solicitor General does claim—that any such prohibition could

serve the interests of any significant number of terminally ill

patients. On the contrary, any paternalistic justification for

an absolute prohibition of assistance to such patients would

of necessity appeal to a widely contested religious or ethical

conviction many of them, including the patient-plaintiffs,

reject. Allowing that justification to prevail would vitiate the

liberty interest.

Even in the case of terminally ill patients, a state has a

right to take all reasonable measures to insure that a patient

requesting such assistance has made an informed, competent,

stable and uncoerced decision. It is plainly legitimate for a

State to establish procedures through which professional and

administrative judgments can be made about these matters,

- 20 -

and to forbid doctors to assist in suicide when its reasonable

procedures have not been satisfied. States may be permitted

considerable leeway in designing such procedures. They

may be permitted, within reason, to err on what they take to

be the side of caution. But they may not use the bare

possibility of error as justification for refusing to establish

any procedures at all and relying instead on a flat

prohibition.

CONCLUSION

Each individual has a right to make the “most intimate

and personal choices central to personal dignity and

autonomy.” That right encompasses the right to exercise

some control over the time and manner of one’s death.

The patient-plaintiffs in these cases were all mentally

competent individuals in the final phase of terminal illness

and died within months of filing their claims. Jane Doe

described how her advanced cancer made even the most basic

bodily functions such as swallowing, coughing, and yawning

extremely painful and that it was “not possible for [her] to

reduce [her] pain to an acceptable level of comfort and to

retain an alert state.” Faced with such circumstances, she

sought to be able to “discuss freely with [her] treating

physician [her] intention of hastening [her] death through the

consumption of drugs prescribed for that purpose.” Quill v.

Vacco, 80 F.2d 716, 720 (2d Cir. 1996) (quoting declaration

of Jane Doe). George A. Kingsley, in advanced stages of

AIDS which included, among other hardships, the attachment

of a tube to an artery in his chest which made even routine

functions burdensome and the development of lesions on his

brain, sought advice from his doctors regarding prescriptions

which could hasten his impending death. /d. Jane Roe,

suffering from cancer since 1988, had been almost

completely bed-ridden since 1993 and experienced constant

pain which could not be alleviated by medication. After

undergoing counseling for herself and her family, she desired

to hasten her death by taking prescription dru ae.

Compassion in Dying v. Washington, 850 F. Supp. 14

1456 (1994). John Doe, who had experienced numerous

AIDS-related ailments since 1991, was “especially cognizant

of the suffering imposed by a lingering terminal illness

- 2} -

because he was the p ed caregiver for his long-term

companion who died of AIDS” and sought prescription drugs

a his physician to hasten his own death after entering the

—y of AIDS. /d. at 1456-57. James Poe

am m emphysema which caused him “a constant

sensation of suffocating” as well as a cardiac condition which

caused severe leg pain. Connected to an oxygen tank at all

times but unable to calm the panic reaction associated with

his feeling of suffocation even with regular doses of

os. Mr. Poe sought physician-assisted suicide. /d. at

14

A state may not deny the liberty claimed by the patient-

plaintiffs in these cases without providing them an

opportunity to demonstrate, in whatever way the state might

reasonably think wise and necessary, that the conviction they

expressed for an early death is competent, rational, informed,

stable and uncoerced.

Affirming the decisions by the Courts of Appeals would

establish nothing more than that there is such a

constitutionally protected right in principle. It would

establish only that some individuals, whose decisions for

suicide plainly cannot be dismissed as irrational or foolish or

premature, must be accorded a reasonable opportunity to

show that their decision for death is informed and free. It is

not necessary to decide precisely which patients are entitled

to that opportunity. If, on the other hand, this Court

reverses the decisions below, its decision could onl

justified by the momentous proposition—a proposition Matty

in conflict with the spirit and letter of the Court’s past

decisions—that an American citizen does not, after all, have

the right, even in principle, to live and die in the light of his

own religious and ethical beliefs, his own convictions about

why his life is valuable and where its value lies.

2.

Respectfully submitted,

RONALD DWORKIN

New York University

School of Law

40 Washington Square South

New York, New York 10012

(212) 998-6248

PETER L. ZIMROTH

Counsel of Record

PHILIP H. CURTIS

KENT A. YALOWITZ

ANAND AGNESHWAR

399 Park Avenue

New York, New York 10022

(212) 715-1000

Of Counsel:

ARNOLD & PORTER ABE KRASH

Washington, D.C. and 555 Twelfth Street, N.W.

New York, New York Washington, D.C. 20004

(202) 942-5000

Counsel for Amici Curiae*

December 1996

*Counsel for Amici wish to acknowledge the valuable assistance of Janet

Meissner Pritchard, an associate at Arnold & Porter, not yet admitted to

the bar.