Amicus Curiae Brief — Vacco v. Quill

st and Na. 96

No. Bp. ae No? 96-11

IN THE

Supreme Court of the

OCTOBER TERM, 1996

>

DENNIS C. VACCO, Attorney General of the State of New York; GEORGE

E. PATAKI, Governor of the State of New York; and ROBERT M.

MORGENTHAU, District Attorney of New York County,

Petitioners,

—against—

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

and HOWARD A. GROSSMAN, M.D.,

Respondents,

>

STATE OF WASHINGTON, CHRISTINE O. GREGOIRE,

ATTORNEY GENERAL OF WASHINGTON,

Petitioners,

—against—

HAROLD GLUCKSBERG, M.D., ABIGAIL HALPERIN, M.D.,

THOMAS A. PRESTON, M.D., and PETER SHALIT, MD. PH.D.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT AND NINTH CIRCUIT

BRIEF OF AMICUS CURIAE BIOETHICISTS

SUPPORTING RESPONDENTS

MARTIN R. GOLD

GOLD, FARRELL & MARKS

Counsel of Record for

Amicus Curiae

41 Madison Avenue

New York, New York 10010

212) 481-1700

Of Counsel a

Martin R. Gold

Robert P. Mulvey

ST AVAILABLE COPY!

QUESTION PRESENTED

Whether physicians, following the scruples of their

individual consciences, may ethically respect the competent,

voluntary and informed requests of terminally-ill patients to be

relieved from their pain and suffering by assisting them in hastening

otherwise inevitable death?

TABLE OF AUTHORITIES ..-----+++rrrrrrrtt’

INTEREST OF THE AMICUS CURIAE ...--+eeeee8?

THIS COURT SHOULD RECOGNIZE

A RIGHT TO PHYSICIAN-ASSISTED

SUICIDE FOR COMPETENT

DYING PATIENTS ...----sererrrrrrtrtt?

The Prevalence Of Death From

ve Disease Is A Modern

Problem Not Addressed By Antiquated

Petitioners Have Not Advanced

Sufficient Interests To Overcome

The Right Of A Terminally-Ill

Patient To Assisted Death ..---++-errrrrrrrrrrt’ 8

Protocols and Guidelines

May Be Imposed To

Avoid The "Slippery Slope" ..------+rrrrrrrrrrt’

ii

The Right of Competent, Dying

Patients to Physician-Assisted

Suicide is a Negative Right To

Be Free from State Interference

**e*e

e*eeeeeeeeeeees

> * «

CONCLUSION

iii

TABLE OF AUTHORITIES

Cases

Cruzan v. Digector, Missouri Dept. of Health, 497

> | err Srey 13-14

—_

v. Casey, 502 U.S. 1056 (1992)............ 13-14

Roe v. Wade, 410 U.S.113 (1973) ..... 2.2.2.2... 13-14

Statutes

Revised Code of Washington 9A.32.030 ............. 10

New York Penal Law Section 60.06 ................ 10

Books & Articles

Amundsen, "The Physician's Obligation to Prolong

Life: A Medical Duty Without Classical

Roots,” Hastings Center Report (August

PF AP Se ee en oe 7

Angel, “Euthanasia in the Netherlands — Good

News or Bad?” New England Journal of

Medicine 335:22 (Nov. 28, 1996) 1676 . . 15, 16-18 n.3

Bach, et al., “Physician Assisted Suicide and

Euthanasia in Washington State,”

Journal of the American Medical

Association 275:12 (March 27, 1996)919 ........ 9

iv

Bachman, et al., “Attitudes of Michigan Physicians

and of the Public Toward Legalizing

a aera yt soso pr

” New England Journal of

oy 334:5 (Feb. 0

Brock, “Voluntary Active Euthanasia,” Hastings

De Seichwes Se ccaesOdbs eebS see wcceres

Delbruck, “Education for Suicide,” Interview

in Prism, a publication of the American

Medical Association, 2 (1974) 20 ............. 20

Feinberg, "Voluntary Euthanasia and the Inalienable

Right to Life,” Philosophy and Public Affairs

FY aT orriTrTree

Gourevitch, “Suicide Among the Sick in Classical

Antiquity.” Bulletin of

oT OR

Lee, et al., “Legalizing Assisted Suicide - Views

of Physicians in Oregon,” New England

Journal of Medicine 335:5 (Feb. 1, 1996)

SE oh bv chetuete dbeae dete ch te eet totes 9

Olshansky and Ault, “The Fourth Stage of the

Epidemiologic Transition: The Age

of Delayed Degenerative Diseases,”

in Timothy M. Smeeding, et al., eds.

Should Medical Care Be Rationed By

Omran, "The Epidemiologic Transition: A

Theory of the Epidemiology of

Population Cl ” Milbank M ial

Fund Quarterly 49 (4):509 (1971) .............. 5

Owen, et al., “Cancer Patient's Attitudes to Final

Events in Life: Wish for Death, Attitudes

to Cessation of Treatment, Suicide and

Euthanasia,” Psycho-Oncology 3:1-9 (1994) ... 19n4

Owsei and Temkin, Ancient Medicine: Selected Papers

of Ludwig Edelstein, (1967) 11 ............. 7-8

Pijnenborg et al.,”Life-Terminating Acts Without

Explicit Request of Patient,” The

Lancet 341 (May 8, 1993) 1196 ......... 16-18 n.3

Quill. M.D. “Death and Dignity: A Case of Individualized

Decision Making.” The New England Journal

of Medicine 324:10 (March 7, 1991),691 ....... 19

Shavelson, A Chosen Death: The Dying Confront

Assisted Suicide, (1995) .................. .@

vi

Van der Maas et al., “Euthanasia, Physician-Assisted

Suicide, and Other Medical Practices Involving

the End of Life in the Netherlands,

1990-1995," New England Journal of

Medicine 335:22 (Nov. 28, 1996)... .

Van der Wal et al., “Evaluation of the

.... 16-1813

Notification Procedure for Physician-Assisted

Death in the Netherlands,” New England

Journal of Medicine 335:22 (Nov. 28, 1996),

PPT rere

Other Authorities

“Deciding to Forego Life-Sustaining Treatment,”

President's Commission for the Study of

Ethical Problems in Medicine and Biomedical

and Behavioral Research, (March 1993)

Life Tables for the United States 1900-2050,

Social SecurityAdministration, SSA

Pub. No. 11-11534 .............

OXFORD ENGLISH DICTIONARY (new ed.)

vii

INTEREST OF THE AMICUS CURIAE

Bioethics, a learned discipline that arose approximately

twenty-five years ago, deals “with ethical questions that arise as a

result of advances in medicine and biology.” OXFORD ENGLISH

DICTIONARY (new ed.).

The bioethicists supporting Respondents in Vacco, et al. v.

Quill, et al., No. 95-1858 ("Quill") and State of Washington v.

Glucksberg, et al., No. 96-110 ("Glucksberg”) are professors,

lawyers, and medical doctors who have written and lectured

extensively, and are considered among the nation’s pre-eminent

experts on the narrow issue before the Court.’ Many of them hold

multiple advanced degrees and occupy cistinguished positions at

universities and medical centers. They are identified at Appendix

A.

The amicus group of bioethicists strongly believes that

physicians, in carrying out their ethical duty to relieve the pain and

suffering of their terminally-ill patients, should be legally permitted

to accede to the desire of a patient to hasten death when the

patient’s decision is voluntarily reached, a patient is competent to

make the decision, and the patient has been fully informed of the

diagnosis and prognosis of an incurable, fatal disease which has

progressed to the final stages. The amicus group also strongly

believes that a physician may decline to honor such a request if it

violates the physician’s beliefs, morals or scruples or is contrary to

the physician’s medical judgment. The amicus group believes that

the right to physician-assisted svicide should be recognized by this

Court as a fundamental right, as the Court of Appeals for the Ninth

' The bioethicists supporting Respondents have received the

consent of the parties in Quill and Glucksberg to file this Amicus

Curiae brief. The consents are being filed with the Court

simultaneously with this brief.

Circuit ruled in Glucksberg. Moreover, the amicus group agrees

with the Court of Appeals for the Second Circuit in Quill that the

denial of physician-assisted suicide is a denial of equal protection to

terminally-ill patients who Go not have the option of hastening death

by requesting the removal of life support systems.

These views are rooted in the four basic principles of

biomedical ethics: autonomy, nonmaleficence, beneficence, and

justice. Beauchamp and Childress, Princi

(4th ed. (1994). From these principles, articulated in various ways

in differing ethical systems, arise the two considerations most basic

in medical care: the patient’s fundamental right of

self-determination and respect for the patient’s interests. “Deciding

To Forego Life-Sustaining Treatment,” President’s Commission for

the Study of Ethical Problems in Medicine and Biomedical and

Behavioral Research (March, 1983). Ethical requirements of

respect for the patient’s right of self-determination and respect for

the patient’s interests appropriately guide all care of patients,

including the care of dying patients. Dan W. Brock, "Voluntary

Active Euthanasia," Hastings Center Report 22:2 (March-April

1992) 10-22.

ARGUMENT

THIS COURT SHOULD RECOGNIZE

A RIGHT TO PHYSICIAN-ASSISTED

SUICIDE FOR COMPETENT DYING PATIENTS __

Petitioners and their supporting amici have presented

arguments that far exceed the understanding of physician-assisted

suicide as approved by the Second and Ninth Circuit Courts. They

argue that permitting physician-assisted suicide for terminally ill

patients who seek to end their suffering in the final stages of

degenerative diseases will lead to the involuntary killing of terminal

patients and the healthy mentally ill and disabled.

eT

|

These arguments are entirely flawed. The institution of

safeguards to prevent abuse is necessary, but there is no basis to

conclude that a voluntary practice limited to terminally-ill patients

would be involuntarily applied, or that it could be imposed upon

incompetents.

Petitioners and their amici also attempt to exploit taboos

associated with suicide, citing, for example, instances of suicide

among the depressed or mentally ill. The cases before this Court,

however, do not involve sanctioning suicide of depressed or

mentally-iil individuals.

Unlike other cultures, our language has but one word to

describe self-inflicted death. The word “suicide” does not

differentiate among the deaths of a teenager overcome by the

struggles of adolescence, a middle-aged family man facing financial

ruin and an eighty-year old cancer patient who seeks to avoid

further protracted pain and suffering when her death is near. Unlike

the first two tragic illustrations, there can be a sense of

meaningfulness, emotional resolution, and communicative

culmination, including gratitude for a life now complete, in the

"suicide" of the dying patient who seeks both to avoid a bad death

and to bring life to an inevitable but appropriate close. The dying

patient may act to avoid or relieve suffering, and may also seek to

meet death at a time and place of his or her own choosing,

surrounded by those whom he or she trusts and loves, while still

conscious and still capable of prayer and farewells. The right to

seek a death which is both free of pain, but faced while conscious

and alert, is not a trivial right, but one of great significance for

many people.

The common term "suicide" carries strongly negative

associations that have no bearing on the issue before the Court, but

are largely derived from medieval attitudes towards violent

self-destruction. Battin, The Death Debate: Ethical Issues in

Suicide (1996). It would have been more accurate if the debate on

from physician-assisted "suicide." as distinct

The Prevalence Of Death From

ve Disease Is A Modern

uresst

~

* Petitioners stress the long tradition of prohibition against

suicide, including penal laws dating to the poate of this can.

But such laws derive from a time when death was rarely preceded

by long periods of physiologically degenerative suffering. At the

tome the Constitution and the Bill of Rights were written and

throughout the development of English common law, the process of

dying was usually quick and more likely to be due to infectious

<— Medical intervention did little to prolong life, or to prolong

process of dying. The cases before the Court, however, involve

degenerative death, a creature of modern medicine: they should

therefore be decided on an historically clean slate. The Court. in

finding for Respondents, would not be judicially mandating social

change, it would be applying constitutional doctrines of protected

individual rights to a new factual situation.

Epidemiologists identify four distinct periods

mortality and longevity in the history of peek In ato

Pestilence and Famine, which extended from the dawn of human

existence to approximately 1850, people died primarily from

infectious and parasitic diseases, frequently exacerbated by famines

and plagues. Advances in public sanitation, immunization and

antisepsis in medicine gave rise to the Age of Receding Pandemics

which lasted until approximately 1920 and was accompanied by an

increase in life expectancy. In the period from 1920 until 1960. the

Age of Degenerative Man-Made Diseases, advanced surgical

techniques, antibiotics, techniques for the administration of

intravenous fluids and drugs, the development of respiratory support

systems and improved therapeutic and diagnostic techniques further

increased life expectancy. Omran, "The Epidemiologic Transition:

A Theory of the Epidemiology of Population Change,” Milbank

Memorial Fund Quarterly 49 (4):509-38 (1971). Epidemiologists

characterize the current state of mortality and life expectancy,

which arose in the mid 1960's, as the Age of Delayed Degenerative

Diseases, in which the majority of people die at later ages from

degenerative diseases, such as cancer, heart disease, stroke and

neurological diseases. Olshansky and Ault, “The Fourth Stage of

the Epidemiologic Transition: The Age of Delayed Degenerative

Diseases," in Timothy M. Smeeding, et al., eds. Should Medical

Care Be Rationed By Age? (1987) 11-43.

These epidemiological changes are partly illustrated by the

changes in life expectancy. At the turn of this century, American

life expectancy at birth was 46.5 years for males and 49 years for

females. Life expectancy at birth is now approximately 72 years

for males and 79 years for females. Life Tables for the United

States 1900-2050, Social SecurityAdministration, SSA Pub. No. 11-

11534. But these advances in life expectancy are associated with a

fundamental change in the way we die: throughout the developed

world of the late 20th century, including the United States, the

majority of the population will die of degenerative disease. About

a third of deaths are due to circulatory disease; another third are

due to cancer; and the remaining third include degenerative

conditions like neurological diseases and various forms of organ

failure. The modern form of degenerative death is estimated to

account for 70-80% of all deaths in the United States. Battin, The

Death Debate, at 178.

Not only do these deaths from degenerative disease tend to

occur at more advanced ages than has been characteristic of earlier

periods of human mortality, but particularly in the case of cancer,

they are often accompanied by protracted periods of pain and

suffering before death, a phenomenon which occurred

comparatively rarely until recent years. Prior to the develepment

of modern antibiotics, the patient whose condition deteriorated

severely or who became bedridden was likely to contract pneumonia

or other infections and die, thus being naturally spared the most

difficult phases of end-stage disease.

The issue of physician-assisted suicide should be decided on

the basis of present realities and not by reference to antiquated laws

and customs adopted long before the modern form of degenerative

death became prevalent. Neither the framers of the Constitution,

nor any previous legal authorities, could have foreseen the way

most people now die.

Classical Medicine Recognized

A Patient’s Right To

Physician-Assisted Suicide __

In Quill, petitioners cite one version of the Hippocratic Oath

which contained the prohibition: “To please no one will I prescribe

a deadly drug, nor give advice which may cause his death.”

Petitioners seem to suggest that the Oath has the force of law, but

the version they cite also prohibits a number of medical practices

clearly and uncontroversially recognized as legal, including surgery

and charging fees for teaching medicine, as well as practices

explicitly recognized as legal by this Court, such as abortion.

The Hippocratic Oath can only be understood in its

historical context. At the time of Hippocrates, there was no

prohibition against physician-assisted suicide in mainstream Greek

medicine; the practice was subject to consultation and informed

consent similar in intent to the protocols urged by medical

professionals and bioethicists today. Thus, at the time of

Hippocrates:

.. the taking of poison was the most usual means of

committing suicide [in terminal illness], and the

patient was likely to demand the poison from his

physician who was in possession of deadly drugs

and knew that which brought about an easy and

painless death. On the other hand, such a

resolution was not taken without due deliberation,

except perhaps in a few cases of great distress or

mental strain. The sick man wished to be sure that

further treatment would be of no avail, and to

render this verdict was the physician’s task. The

patient, therefore, consulted with him, or urged his

friends to speak to the doctor. If the latter, in

such a consultation, confirmed the seriousness or

hopelessness of the case, he suggested directly or

indirectly that the patient commit suicide.... [[]n

antiquity many physicians actually gave the patients

the poisons for which they were asked.

Ancient Medicine: Selected Papers of Ludwig Edelstein, Owsei and

C. Lillian Temkin, eds. (1967) 11-13. See also, Amundsen, "The

Physician’s Obligation to Prolong Life: A Medical Duty Without

Classical Roots," Hastings Center Report (August 1978) 23, 26-27

(Hippocratic Oath is an "esoteric document that is often inconsistent

with the larger picture of Greco-Roman medical ethics.");

Gourevitch, "Suicide Among the Sick in Classical Antiquity,”

Bulletin of the History of Medicine 43 (1969) 501, 506-08.

Adherents of the Hippocratic school of medicine were

strongly influenced by Pythagoras. Not unlike contemporary

adherents of natural cures for disease, he eschewed many

then-mainstream, accepted medical practices. The original Greek

version of the Oath, quoted by the Quill petitioners, required the

followers of Hippocrates:

to teach them this art--if they desire to learn it --

without fee and covenant;

~ - =

[to] apply dietetic measures for the benefit of the

sick according to my ability and judgment;

* oa x

not [to] give to a woman an abortive remedy

x ~ =

not [to] use the knife...

Ancient Medicine at 6.

| The text of the Hippocratic Oath has been modified many

times through the ages. Contemporary versions, routinely adopted

in medical-school graduation exercises and similar contexts (see text

of Oath adopted by World Medical Association in 1948 reproduced

at Appendix B), do not contain the prohibitions against surgery,

abortion, or accepting fees for teaching medicine, and also omit the

Prohibition against physician-assisted suicide. In short, neither the

Hippocratic Oath nor classical tradition provides a compelling

ethical or professional prohibition of physician-assisted suicide.

Petitioners Have Not Advanced

Sufficient Interests To Overcome

The Right Of A Terminally-Il

The States of New York and Washington argue that the

government has an overriding interest in the preservation of life

which Is not subject to veto by the individual wishes of dying

patients. Similarly, the American Medical Association and other

amici supporting Petitioners contend that physicians are devoted to

— healing arts and should not be involved in the termination of

Not only is there no adequate basis for either of these

claims, but the AMA's position does not even reflect the views or

practices of its constituency. In fact, physicians are divided about

this issue, and many support the recognition of a patient's right to

assistance and reject state interference in their right to practice

medicine in a way they see as humane, compassionate, and

respectful of the wishes of their dying patients. As reported in The

New England Journal of Medicine, 60 percent of doctors in

Michigan and 66 percent of doctors in Oregon -- two states in

which this issue has been very widely discussed -- support

legalizing assisted suicide for ‘erminally-ill patients. Lee, et al.,

“Legalizing Assisted Suicide -- Views of Physicians in Oregon,”

New England Journal of Medicine 335:5 (Feb. 1, 1996) 310-315,

at 311; Bachman, et al., “Attitudes of Michigan Physicians and of

the Public Toward Legalizing Physician-Assisted Suicide and

Voluntary Euthanasia,” New England Journal of Medicine, 334:5

(Feb. 1, 1996) 303-309, at 303. In the State of Washington, 12

percent of physicians polled reported that they had been asked by

their terminally-ill patients for prescriptions to hasten death, and of

these, 24 percent had complied with such a request in the year prior

to the study. Bach, et al., “Physician Assisted Suicide and

Euthanasia in Washington State,” Journal of the American Medical

Association 275:12 (March 27, 1996) 919-925 at 919.

Assertions that doctors should have no role in death fly in

the face of reality. All people eventually die, and the doctor's role

appropriately includes ensuring that the patient's ueath occurs as

humanely as possible. As Francis Bacon wrote, the physician's role

is to help the patient “make a faire and easie passage.”

The humaneness of a death is not only a matter of avoiding

pain and physical suffering; it is also a matter of consonance with

a patient's most basic values. For some patients, a death softened

by the heavy use of painkillers or hastened by withholding or

withdrawing life-sustaining treatment will be tolerable, for others

such prospects are profoundly repugnant: these patients fear and

resent a death preceded by a period of obtundation, or in which

their bodies slowly deteriorate from the ravages of a lethal disease.

Not all patients will choose to die in the same way, even when

death is imminent: some will prefer continued aggressive treatment

in the hope that they can beat the odds; some will prefer

withdrawing or withholding specific forms of treatment: others will

accept death as a consequence of escalating doses of morphine; stil!

others will choose to forego nutrition and hydration: some will

iicrate terminal sedation; but some strongly prefer a peaceful and

death directly initiated while conscious and alert, facilitated

by the assistance of a physician.

Physician-assisted suicide is not an option li to

chosen by many. os en Mahatents, sham aateumep intone

openly practiced and widely accepted, less than 3.5% of patients

dying in a given year chose this manner of death. Yet it can be of

very great moral and spiritual importance to those who make this

choice. It may be the privilege of religious traditions to reject such

a practice, as several of the Petitioners’ amici point out, but it is not

their privilege to assert that such an act on the part of a dying

patient must be devoid of personal or spiritual significance.

; Petitioners and their amici repeatedly assert the state’s

interest in preservation of life. This interest, however, is

necessarily subject to careful qualification. Washington and New

death of otherwise healthy individuals. Revised Code of Washington

9A.32.030; New York Penal Law Section 60.06. The state, in

times of war, sacrifices the lives of its most vital citizens to the

national interest. Because the state approves of the deaths of

individuals when it serves its interests, the state cannot advance an

absolute objection to participation in death as an answer to claims

that terminally ill patients have a right to seek and accept assistance

from their physicians in suicide. The state clearly does have an

interest in preventing suicide that is impulsive, aggressive

irrational, violent, or coerced, or where the suicidal impulse arises

10

from depression or other mental illness; but the state does not have

an interest in preventing a competent patient, who is in any case

Virtually all data about the causes and characteristics of

suicide and its relationship to mental illness, cited by several of

Petitioners’ amici, is data only about suicides in the former sense.

Although rational, reflective suicides do occur in terminal illness,

often assisted by physicians, they are virtually never reported as

suicides, and it has thus been impossible to collect reliable data

about these latter "suicides." Suicide is often said to be about the

choice between life and death. Glucksberg and Quill, however, are

not cases about patients choosing between life and death. They are

about patients choosing death in a way that seems to them dignified,

humane and more in keeping with their basic values, rather than

what seems to them a less desirable and undignified death.

In a lengthy footnote, the Bioethics Professors’ Amicus

Curiae Brief Supporting Petitioners argues that physicians have no

fear of prosecution if they prescribe drugs which a patient

subsequently uses to commit suicide, provided the physician is not

present when the patient takes the lethal medication. Brief For

Bioethics Professors Amicus Curiae Supporting Petitioners at 15-16

n. 6.2 Even if that were the case, maintaining such a status quo

. We too, believe that this act should not be regarded as a

criminal one, provided the prescription is provided at the voluntary

request of a competent, fully informed patient. We particularly

welcome these bioethicists’ tacit recognition that some dying

patients will prefer a directly-caused death and that some physicians

will be willing to provide the means for it, since it counters the

quite trivializing claim from other amici that the use of opiates, of

11

would be unsatisfactory. Physicians do not generally believe that

they would be free from prosecution and they are often relunctant

t0 assist patients who wish to die with dignity; it is at best a legally

suicide contain no exemption for physicians, doctors are often

constrained to abandon their patients at their time of greatest need.

Even when a doctor prescribes the necessary drugs he or she often

refuses to assist the patient in using the drugs. Unaided by

Professional assistance, an already suffering patient in the process

: ing (1995). Such

profoundly unwanted events are 2 4

The argument of the Bioethics Professors in Support

* . * * of

Petitioners also misinterprets the medical facts of dying. Their

brief, addressing the equal protection argument in Quill, attempts

may a treatment, of withholding nutrition and

: of terminal sedation are suffici

m ane lent answers to the

12

to differentiate between patients on life support and those who are

not. Those on life support are different, they argue, because of a

bodily intrusion that could only have taken place with their consent,

which consent they can withdraw at any time. They further claim

that a terminally-ill person who is not on life support is differently

situated for equal protection analysis because he or she is not being

subjected to an ongoing physical intrusion. But this argument is

erroneous. Both types of patients have had bodily intrusions for

which they have given consent. A patient gives consent for a

ventilator, or a feeding tube, and can then withdraw that consent

and the bodily intrusion. Another patient gives consent for

chemotherapy, a bodily intrusion which changes him or her

unalterably, and ultimately leaves the patient in a condition of dying

quite differently from that without the chemotherapy; yet the patient

cannot withdraw that bodily intrusion, since it has already

irreversibly occurred. Patients not connected to life support are

therefore not free from bodily intrusion, and patients who are

connected to life support do not die “naturally” if that support is

removed. Once life has been prolonged with any sort of therapy,

the mode of dying is unnatural; irreversible physical intrusion has

already occurred. The Second Circuit Court of Appeals correctly

rejected the claim that there is a rational distinction between

refusing treatment and suicide.

Protocols and Guidelines

May Be Imposed To

Avoid The "Slippery Slope"

This Court has recognized the rights of individuals to make

major life decisions regarding the integrity of their bodies, Roe v.

Wade, 410 U.S.113 (1973); Planned Parenthood of Southeastern

Pennsylvania v. Casey, 502 U.S. 1056 (1992), including the right

of the terminally-ill to determine the end of their lives. Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990). In all

of these cases, the Court has carefully delineated the rights in

question and stated that they are subject to reasonable regulation.

13

Roe v. Wade, supra, 410 U. S. at 163 ("a state may regulate the

abortion procedure to the extent that the regulation reasonably

relates to the preservation and protection of maternal health."):

Planned Parenthood v. Casey, supra, 505 U.S. at 872 ("Though

the woman has a right to choose to terminate or continue her

pregnancy before viability, it does not follow at all that the State is

prohibited from taking steps to ensure that the choice is thoughtful

and informed"); Cruzan, supra, 497 U.S. at. 281 ("The choice

between life and death is a deeply personal decision of obvious and

overwhelming finality. We believe Missouri may legitimately seek

to safeguard the personal element of this choice through the

imposition of heightened evidentiary requirements.").

Despite the history of caution by this Court in delineating

rights with respect to life and death decisions, Petitioners and their

amici contend that the Court’s recognition of a right of competent,

terminally-ill patients to obtain physician-assisted suicide will lead

down a slippery slope such that its holding will lead to involuntary

deaths or physician-facilitated deaths of the incompetent.

There is no basis to believe that physician-assisted suicide

will lead to such abuses. Safeguards would obviously be devised

to protect against abuse. Examples of such safeguards, the details

of which are the appropriate concern of the states in regulating the

exercise of patients’ constitutionally-protected basic rights, are

available both in this country and abroad. For example, the Oregon

Death With Dignity Act, which by its terms is limited to competent

adults who have been determined by the attending physician to be

suffering from a terminal disease, requires two oral and one written

request from the patient witnessed by two individuals to the effect

that the patient is competent, acting voluntarily and is not being

coerced to sign the request; requires the physician to inform the

patient of his or her medical diagnosis and prognosis, the potential

risks in, and probable results from, taking the medication; requires

that the physician inform the patient of the feasible alternatives,

including comfort care, hospice care, and pain control; requires that

14

the patient be referred to a consulting physician for confirmation of

the diagnosis and determination that the patient is competent and

acting voluntarily; requires that the patient be referred for

counseling if appropriate; imposes a fifteen-day waiting period; and

requires that the attending physician provide full documentation

demonstrating compliance with the Act. It permits the patient to

rescind the request at any time, in any manner.

Similarly, the Dutch guidelines for physician-assisted suicide

require that the patient make a voluntary, enduring request; that the

patient have adequate information about his or her disease,

including alternative methods of treatment; that the patient's

suffering be intolerable, in the patient's view, and irreversible,

without alternatives for relieving the suffering that are acceptable to

the patient; that the attending physician exercise due care in

reviewing and verifying the patient’s condition; that there be a

consultation with a second, independent physician; and that the

physician who provides assistance in hastening death file a written

report of the death, which may not be reported as a natural death.

Battin, The Least Worst Death (1994) at 131. Angel, “Euthanasia

in the Netherlands -- Good News or Bad?” New England Journal

of Medicine 335:22 (Nov. 28, 1996) 1676.

We believe such safeguards will provide patients clearly

adequate protection against pursuing physician-assisted suicide

from impulse, irrationality, depression, misinformation,

manipulation, or coercion. They constitute reasonable means of

assuring voluntary choice, of ruling out mental illness, of

preventing mistaken diagnoses or faulty prognostications of

terminal illness, of detecting familial, professional, or institutional

pressures on the patient, of assuring that the practice actually

serves the patient's interests, of protecting against the devaluation

of members of minorities or disabled or medically dependent

people, or in other ways protecting the patient’s basic rights.

Abuses are equally possible when treatment is withheld or

withdrawn, when dosages of painkillers are used which foreseeably

15

depress respiration and so hasten death, when nutrition and

hydration are withdrawn, when do-not-resuscitate orders are

written, and when other commonplace strategies of "negotiated"

death are employed. While there is no credible evidence that these

possible abuses are in fact occurring to any significant degree, the

safeguards to be erected for the protection of patients in the matter

of physician-assisted suicide should operate to provide greater

assurance of full voluntariness and full informatio, and, by

requiring reporting, would allow surveillance of the practice to

discover and penalize physicians or others who do not adhere to

regulatory restrictions. Battin, "Voluntary Euthanasia and the

Risks of Abuse," in Battin, The Least Worst Death, 163-181.

Petitioners and their amici claim that the experience of the

Netherlands in permitting physician-performed euthanasia and

physician-assisted suicide shows the substantial risks of a "slippery

slope," where legalization or legal toleration of directly caused

death leads to widespread unacceptable killing. Many of their

claims are empirically false and grossly distorted. There is no

evidence of conscious, competent patients being euthanasized

against their will.’

. In the majority of cases, a patient’s current, explicit request,

fitting the guidelines cited above, is in force at the time of

assistance in suicide or euthanasia. In a fraction of cases (0.7%),

there is no current explicit request; in about half of these cases

(including all competent patients), either the decision was discussed

with the patient earlier in the illness or the patient had expressed a

wish for euthanasia if suffering became unbearable. In the other

cases the patient was incompetent. In 91% of these cases, life was

shortened by a week or less (in a third, 24 hours or less), and in

the small number with longer life expectancy, the patient was

evidently suffering greatly but verbal contact was no longer

possible. Van der Maas et al., "Euthanasia, Physician-Assisted

16

~

Suicide, and Other Medical Practices Involving the End of Life in

the Netherlands, 1990-1995," New England Journal of Medicine

335:22 (Nov. 28, 1996), 1699, 1701-1702. Loes Pijnenborg et

al.,"Life-Terminating Acts Without Explicit Request of Patient,

The Lancet 341 (May 8, 1993) 1196-1199.

New evidence from the Netherlands, based on studies which

repeated the initial empirical studies of euthanasia and

physician-assisted suicide known as the Remmelink report, show

that reporting has increased and the frequency of cases regarded as

problematic has decreased. The number of cases has increased in

association with the aging of the population and an increase in the

proportion of deaths from cancer, a function of the decrease in

deaths from ischemic heart disease, but the proportion of requests

granted has decreased. (Indeed, most requests for euthanasia or

assistance in suicide are not granted.) Physician-assisted death does

not involve patients whose illnesses are less severe, nor are there

any signs that the decisionmaking has become less careful - rather,

there is more frequent consultation and better documentation. Van

der Maas, supra, at 1703, 1705; Gerrit van der Wal et al.,

"Evaluation of the Notification Procedure for Physician-Assisted

Death in the Netherlands," New England Journal of Medicine

335:22 (Nov. 28, 1996), 1706-1711.

In the view of the researchers, “these data do not support

the idea that physicians in the Netherlands are moving down a

slippery slope,” Van der Maas, supra, at 1705, a view echoed by

the Executive Editor of the New England Journal of Medicine.

Marcia Angel, MD., Editorial: “Euthanasia in the Netherlands --

Good News or Bad?” New England Journal of Medicine 335:22

(Nov. 28, 1996), 1676-1678, at 1677. Physician-assisted death

continues to account for less than 3.5% of all reported deaths: thus

the vast majority of patients dying in a given year do not choose it,

and even the vast majority of cancer patients -- the most frequent

17

The Right of Competent, Dying Patients to Physician-Assisted

Suicide is a Negative Right To "i

Be Free from State Interference

= In Glucksberg, the Ninth Circuit Court of Appeals held that

physician-assisted suicide is a fundamental liberty right. This right

to determine one’s Own mortality shares one important characteristic

with other fundamental rights. Like the rights to vote or to

worship, there is no requirement that the right be exercised. Joel

Feinberg, "Voluntary Euthanasia and the Inalienable Right to Life,”

Philosophy and Public Affairs 7, no. 2 (Winter, 1978).

Similarly, under neither Glucksberg nor Quill would a

physician be required to accede to a request for suicide assistance

if the request violates the doctor’s personal, medical or religious

beliefs. The constitutionally-protected right asserted in these cases

is, as bioethicists would put it, a negative right, a right not to be

interfered with, a true liberty-right. Neither case asserts a positive

right or claim-right, a demand that patients could make upon

physicians whether physicians felt it medically or morally

appropriate to respond or not. Thus, the full and appropriate scope

of a physician's rights as well as a patient’s rights would be

recognized, since the physician would no longer be legally

constricted in caring for a terminally-ill patient where that patient

sought help in hastening death, though he or she would not acquire

any new or unwanted obligation, and the full range of a patient's

traditional, — constitutionally-protected liberty rights of

self-determination would be recognized in the new factual

circumstance of the modern form of degenerative death.

diagnosis ~ do not. Yet it remains widely regarded as an important

option even if one rarely needed or utilized.

18

Recognition of a protected right to seek and accept

assistance in suicide from a willing physician is not only important

for the comparatively small number of terminally-ill patients who

might actually use it. Those patients who do not choose to exercise

their right to physician-assisted suicide may gain comfort in the

knowledge that the option exists if their suffering becomes

intolerable. For many, this will make it possible to live fuller,

more complete, lives during the process of dying, since they need

not fear a bad death. Timothy E. Quill, M.D. "Death and Dignity:

A Case of Individualized Decision Making." The New England

Journal of Medicine 324:10 (March 7, 1991), 691-694. Indeed,

the possibility of physician-assisted suicide, even if never used, may

contribute positively to the quality of life for those facing death.“

The records before this Court contain the testaments of the

individual, suffering plaintiff-patients -- all of whom died without

the desired assistance of their physicians in terminating their pain

and suffering and without the knowledge that the Courts of the

Ninth and Second Circuits would respond to their anguished pleas.

Their tales of agony could be reiterated many thousand times over,

but may be summarized by the final note of the Nobel

Prize-winning physicist, Percy Bridgman, who nearly 80 years old

and suffering from terminal cancer, shot himself. His note stated:

‘ A 1994 Australian study of cancer patients found that those

who anticipated a role for the more active options of suicide and/or

euthanasia in their own futures, compared to those who anticipated

a future possible role for only the more passive options of wishing

death to come early or ceasing all treatment, were more hopeful and

reported a higher quality of life than patients who regarded them as

out of the question. Owen, et al., "Cancer Patient’s Attitudes to

Final Events in Life: Wish for Death, Attitudes to Cessation of

Treatment, Suicide and Euthanasia,” Psycho-Oncology 3:1-9

(1994).

19

It isn’t decent for society to make a man do this

thing himself. Probably this is the last day I will

be able to do it myself.

Percy Bridgman, letter in Bulletin of the Atomic Scientists, quoted

by Max Delbruck, "Education for Suicide,” interview in Prism, a

publication of the American Medical Association, 2 ( 1974) 20.

CONCLUSION

Affirmation of the decisions below will contribute to a more

decent society, more respectful of patients’ basic rights and interests

in the light of the realities of the modern form of degenerative

death. We strongly urge that they be affirmed.

Dated: New York, New York

December 9, 1996

Respectfully submitted,

MARTIN R. GOLD

GOLD, FARRELL & MARKS

41 Madison Avenue

New York, NY 10010

(212) 481-1700

Counsel of Record for

Amicus Curiae

Of Counsel:

Martin R. Gold

Robert P. Mulvey

APPENDICES

Anthony Back, M.D.

Assistant Professor

University of Washington and

VA Puget Sound Health Care System

Robert Baker, Ph.D.

Professor of Philosophy

Union College, Schenectady

Margaret P. Battin, Ph.D.

Professor of Philosophy,

Adjunct Professor of Internal Medicine

University of Utah

Tom L. Beauchamp, Ph.D.

Professor of Philosophy,

Kennedy Institute of Ethics

Georgetown University

Dan W. Brock, Ph.D.

Professor of Philosophy and Biomedical Ethics,

Brown University

Joan Callahan, Ph.D.

Professor of Philosophy

University of Kentucky

Marguerite Chapman, J.D., L.L.M.

Associate Professor of Law,

University of Tulsa, College of Law

R. Alta Charo, J. D.

University of Wisconsin Law School

Dana S. Davis, J.D., Ph.D.

Associate Professor,

Cleveland-Marshall College of Law

Gerald Dworkin

Professor of Philosophy

University of Illinois, Chicago

David J. Green, M.D.

Associate Professor of Pediatrics

University of Utah School of Medicine

Martin Gunderson, Ph.D., J.D.

Associate Professor of Philosophy

Macalester College, St. Paul, Minnesota

Robert T. Hall, Ph.D.

Professor of Philosophy and Sociology

West Virginia State College and

Associate Professor of Medicine

West Virginia University School of Medicine

James J. Hughes, Ph.D.

Dept. of Sociology, University of Connecticut

Daniel L. Icenogle, M.D., J.D.

Health Law Consulting,

Madison, Wisconsin

C.L. Junkerman, M.D.

Emeritus Professor of Medicine;

Center for Bioethics

Medical College of Wisconsin

Jeffrey P. Kahn, Ph.D., M.P.H.

Director, Center for Bioethics

Associate Professor of Medicine,

Public Health, and Philosophy

University of Minnesota

Kenneth Kipnis, Ph.D.

Professor of Philosophy,

University of Hawaii

Erich Loewy, M.D.

Professor of Medicine,

Endowed Alumni Association Chair of Bioethics

University of California, Davis

Ruth Macklin, Ph.D.

Professor

Albert Einstein College of Medicine

David Mayo, Ph.D.

Professor of Philosophy,

University of Minnesota, Duluth, and

Center for Biomedical Ethics,

University of Minnesota, Minneapolis

Ronald Baker Miller, M.D., F.A.C.P.

Director, Program in Medical Ethics,

University of California, Irvine

Jerry Menikoff, M.D., J.D.

Associate Professor of Law

University of Akron

Janet Mitchell, M.D., M.P.H.

Chairperson, Dept. of OB/GYN,

Interfaith Medical Center

Brooklyn, New York

Richard Momeyer, Ph.D.

Professor of Philosophy,

Miami University, Oxford, Ohio

Timothy F. Murphy, Ph.D.

Associate Professor of Philosophy of Medicine,

University of Illinois, Chicago

Curt Nasser, Ph.D.

Department of Philosophy,

Fairfield University

Lawrence J. Nelson, Ph.D., J.D.

Department of Philosophy;

Markkula Center for Applied Ethics

Santa Clara University

Robert Pearlman, M.D., M.P.H.

Associate Professor of Medicine

University of Washington, and

Veterans Affairs Puget Sound Health Care System

Gregory Pence, Ph.D.

Professor, Schools of Medicine and Humanities,

University of Alabama at Birmingham

James Rachels, Ph.D.

University Professor

University of Alabama at Birmingham

Rosamund Rhodes, Ph.D.

Associate Professor,

Director of Bioethics Education

Mount Sinai School of Medicine

John Robertson, J. D.

School of Law, University of Texas, Austin

William Ruddick, Ph.D.

Professor of Philosophy,

Adjunct Professor of Psychiatry

New York University

Robert Schwartz, J.D.

Professor of Law

University of New Mexico

Jeffrey Spike, Ph.D.

Assistant Professor of Medical Humanities

University of Rochester School of Medicine

Director, Ethics Consultation Service,

Strong Memoria! Hospital

Tom Tomlinson, Ph.D.

Center for Ethics and Humanities in the Life Sciences

Michigan State Jniversity

Benjamin S. Wilfond, M.D.

Assistant Professor of Pediatrics,

Pediatric Pulmonology and Medical and

Molecular Genetics

Arizona Respiratory Sciences Center

University of Arizona

Peter C. Williams, J.D., Ph.D.

Chief, Division of Medicine in Society,

Associate Professor of Preventive Medicine

Health Sciences Center,

State University of New York, Stony Brook

William Winslade, Ph.D., J. D.

James Wade Rockwell Professor of Philosophy in Medicine

Institute for the Medical Humanities

University of Texas Medical Branch

Ernle Young, Ph.D.

Center for Bioethics,

Stanford University

Rabbi Noam Zohar, Ph.D.

Dept. of Philosophy,

Bar Ilan University

APPENDIX B

THE OATH OF HIPPOCRATES

I solemnly pledge to consecrate my life to the service of

humanity. I will give respect and gratitude to my deserving

teachers. I will practice medicine with conscience and dignity

The health and life of my patient will be my first consideration

| will hold in confidence all that my patient confides in me. |

will maintain the honor and the noble traditions of the medical

profession

My colleagues will be as my family. I will not permit

considerations of race, religion, nationality, party politics, or

social standing to intervene between my duty and my patient. |

will maintain the utmost respect for human life

Even under threat I will not use my knowledge contrary to the

laws of humanity. These promises I make freely and upon my

honor

Approved by the World Medicine Association in 1948