# Amicus Curiae Brief — Vacco v. Quill

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A51

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A51. Public record. Not legal advice.