Amicus Curiae Brief — Vacco v. Quill

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». 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,

v.

TiwmoTHy E. QuILL, M.D.; SAMUEL C. KLAGSBRUN, M.D.;

and HOWARD A. GROSSMAN, M.D.,

Respondents.

STATE OF WASHINGTON and CHRISTINE O. GREGOIRE,

Attorney General of Washington,

Vv.

Petitioners,

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

"THOMAS A. PRESTON, M:D., and PETER SHALIT, M.D., PH.D.,

Respondents.

On Writs of Certiorari to the United States Courts of Appeals

for the Second and Ninth Circuits

BRIEF OF 36 RELIGIOUS ORGANIZATIONS,

LEADERS AND SCHOLARS AS AMICI CURIAE

- IN SUPPORT OF RESPONDENTS

BARBARA MCDOWELL

(Counsel of Record)

Grecory A. CASTANIAS

BRIAN C. GOEBEL

JONES, DAY, REAVIS & POGUE

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................... iii

INTEREST OF THE AMICI................ !

SUMMARY OF ARGUMENT .............. !

ARGUMENT .....................--0---.. 3

I. THE WASHINGTON AND NEW YORK BANS ON

PHYSICIAN-ASSISTED SUICIDE BURDEN CORE

LIBERTY INTERESTS PROTECTED BY THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT AND THE RELIGION CLAUSES OF

THE FIRST AMENDMENT ............... 4

A. The Interests Reflected In The Free Exercise Clause

And The Liberty Component Of The Due Process

Clause Establish That Physician-Assisted Suicide Is

A Core Constitutionally Protected Liberty ..... 6

1. Religious Organizations And _ Religious

Individuals Have Taken A Wide Array Of

Positions On The Morality Of Physician-

Assisted Suicide. .............., . 6

2. A Terminally Ill Person’s Decision To Hasten

Death Is The Sort Of Personal, Intimate, Often

Spiritual Decision To Which The First And

Fourteenth Amendments Afford Protection .. 10

B. The Interests Reflected In The Establishment Clause

Confirm That Physician-Assisted Suicide Is A Core

Constitutionally Protected Liberty .......... 16

ll. THE ASSERTED INTERESTS OF WASHINGTON

AND NEW YORK CANNOT JUSTIFY THE TOTAL

PROHIBITION UPON THE EXERCISE OF A CORE

CONSTITUTIONALLY PROTECTED LIBERTY .. 21

es etn OO et

TABLE OF AUTHORITIES

Page

Cases

Board of Education of Kiryas Joel Village School

District v. Grumet, 114 S. Ct. 2481 (1994) ......... 16

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 10

Church of the Lukumi Babalu Aye, Inc. v. City of

eee 22

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

(9th Cir.) (en banc), cert. granted, 117 S. Ct. 37

She welt ob danas eereeeue es 6, 18, 19, 20

Cruzan v. Director, Missouri Department of Health,

I ic Ss ae ls io aes passim

Doe v. Bolton, 410 U.S. 179 (1973) ............... 10

Edwards v. Aguilard, 482 U.S. 578 (1987) ......... 3, 20

Epperson v. Arkansas, 393 U.S. 97 (1968) ........... 20

Everson v. Board of Education, 330 U.S. 1 (1947) ...... 15

Hales v. Petit, 75 Eng. Rep. 387 (1562)............. 19

Grand Rapids School Dist. v. Ball, SOS U.S. 577 (1992) . . 16

Harris v. McRae, 448 U.S. 297 (1980) ............. 17

Irvine v. California, 347 U.S. 128 (1954) ............ 5

Lee v. Weisman, 505 U.S. 577 (1992) ............ 3, 16

Lemon v. Kurtzman, 403 U.S. 602 (1971)... ......... 20

Loving v. Virginia, 388 U.S. 1 (1967) .............. 22

Lynch v. Donnelly, 465 U.S. 668 (1984) ............ 16

Olmstead v. United States, 277 U.S. 438 (1928) ........ 10

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

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

Poe v. Ullman, 367 U.S. 497 (1961) ........... passim

Prince v. Massachusetts, 321 U.S. 158 (1944) ......... 10

Rochin v. California, 342 U.S. 165 (1952) ........... 3

United States v. Ballard, 322 U.S. 78 (1944)........ 2, 15

United States v. Carolene Products Co..,

rr er eh bok ei 5

United States v. Seeger, 380 U.S. 163 (1965) ......... 11

Wallace v. Jaffree, 472 U.S. 38 (1985) ............. 20

iV

TABLE OF AUTHORITIES (Cont'd)

Page

West Virginia Board of Educ. v. Barnette, 319 U.S.

CORED a dee bode cc 6044644 65ST 0RbawS 17

Constitutional Provisions

U.S. Comm. ammmmB. 8 ww ccc cece passim

U.S. Comm. amend. NIV... ww. eee eees passim

Miscellaneous Authority

St. Thomas Aquinas, Summa Theologica (Father of the

English Dominican Province eds., vol. 2 1947) ...... 20

4 W. Blackstone, Commentaries ch. 14 (1765) ......... 20

Campbell, Religious Ethics and Active Euthanasia

in a Pluralistic Society, 2 Kennedy Inst. of .

Wien 8. BER GD cc cc ceccwccesesccces passim

2 H. de Bracton, De Legibus et Consuetudinibus

Angliae (Sir Travers Twiss ed. 1879) ...........-. 19

Dorf, Incidental Burdens on Fundamental Rights,

109 Harv. L. Rev. 1175 (1996) .............55- 21

R. Dworkin, Life's Dominion (1993) ........ settee 7

Episcopal Diocese of Newark, Task Force on Assisted

Suicide, Report (1996) .. 2... ee eee cece: 8, 15

Episcopal Diocese of Washington, D.C., Committee

on Medical Ethics, Are Assisted Suicides and

Euthanasia Morally Acceptable for Christians ?

Perspectives to Consider (1996) ..........-. 7, 12, 15

W. Farley, Tragic Vision and Divine Compassion

GD occ cece ses ee busseesecsecesoncss 14

General Assembly of the Unitarian Universalist

Association of Congregations, The Right to Die

with Dignity (1988) .... 2... eee eee eee i)

I M. Hale, Historia Placitorum Coronae (1736) ........ 20

Heymann & Barzelay, The Forest and the Trees: Roe v.

Wade & Its Critics, 53 B.U. L. Rev. 765 (1973) ..... 10

ee

Vv

TABLE OF AUTHORITIES (Cont’d)

Page

G. Larue, Euthanasia and Religion: A Survey of the

Attitudes of World Religions to the

CE O's 7, 8,11

G. Larue, Playing God — 50 Religions’ Views on

4g ae passim

Marzen, et al., Suicide: A Constitutional Right,

Re ih PE « vesugebedssées ce 18, 20

5 A. Neander, General History of the Christian

Religion and Church (Joseph Torrey trans. 1865) .... . 19

Neely, The Right to Self-Directed Death: Reconsidering

an Ancient Proscription, 36 Cath. Law. 111

6 se RE ee ek 6 a 18, 19

Note, Assisted Suicide and Religion: Conflicting

Conceptions of the Sanctity of Human Life,

a EE ee 6, 9, 11

Note, Who Decides If There Is "Triumph in the

Ultimate Agony?” Constitutional Theory and

the Emerging Right To Die with Dignity, 37

Wm. & Mary L. Rev. 827 (1996) ............... 4

Presbyterian Church (U.S.A.), Christian Faith and

Life Area, Congregational Ministries Division,

In Life and Death We Belong to God: Euthanasia,

Assisted Suicide, and End-of-Life Issues (1995) ... . . 8, 11

Presbyterian Church (U.S.A.), 195th General Assembly,

“The Covenant of Life and The Caring Community”

St hentai nese iw dh oil ne de wk oaks * 8

Quill, Commentary, Death and Dignity: A Case of

Individualized Decision Making, 324 New Eng. J. Med.

I a rd Cae we Se a dines kh 13

N. St. John-Stevas, Life, Death and the Law (1961) ..... 19

Stacy, Death, Privacy, and the Free Exercise of

Religion, 77 Corn. L. Rev. 490 (1992) ............ 13

Bishop J.S. Spong, Rescuing the Bible from Fundamentalism:

A Bishop Rethinks the Meaning of Scripture (1991) ... . 12

vi

TABLE OF AUTHORITIES (Cont'd) —_

United Church of Christ, The Council for Health and 3

Human Service Ministries, Making End-of-Life Decisions:

~~ teameteneaeapetine FT

United Methodist Church, Book of Resolutions (1992) pein Se

R. Westley, When It's Right to Die: Conflicting Voices,

Difficult Choices (1995) ©... 6s sees errr 24

G. Williams, The Sanctity of Life and the Criminal

Law (1957) ere es hare Pee ee eh

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——— —_— i. —"

INTEREST OF THE AMICI

Amici are a diverse array of religious organizations, leaders,

and scholars as well as advocates of religious liberty.' They have

in common their dedication to the personal liberties and religious

freedoms of all Americans as well as their concern for the plight

of the terminally ill. Many of the individual amici counsel and

comfort terminally ill people, and are thus familiar with their

physical, emotional, and spiritual suffering and their struggle over

the intensely personal decision to hasten an inevitable death. This

decision implicates issues of great spiritual significance — issues

that are not viewed in the same manner by all religious

denominations or their adherents.

The interest of amici in these cases is to ensure that terminally

ill Americans of all faiths are free to make decisions about the

time, place, and manner of death that reflect their personal

understanding of life’s meaning, reduce the suffering of their

bodies and their minds, and conform to their own ethical and

spiritual values. While the government may properly regulate this

choice to assure that it is truly voluntary and informed, the

government may not proscribe the choice altogether, which would

undermine the interests protected by the Free Exercise and

Establishment Clauses of the First Amendment as well as the

liberty component of the Fourteenth Amendment's Due Process

Clause.

SUMMARY OF ARGUMENT

The right of a competent, terminally ill individual to end his or

her life with the aid of a physician is one of the most important

liberties protected by the Due Process Clause. That much is clear

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

which this Court endorsed the second Justice Harlan’s vision of

the liberty guaranteed by the Due Process Clause. Justice

“Counsel for both petitioners and respondents have consented to the

filing of this brief amici curiae. Their consents are on file with the

Clerk of the Court.

‘ Amici are described in greater detail in the Appendix to this brief.

2

Harlan’s analysis, articulated most forcefully in his dissenting

opinion in Poe v. Ullman, 367 U.S. 497, 543 (1961), requires

courts — using “a reasonable and sensitive judgment” — to

determine where, along the “rational continuum” of liberties from

the most insignificant to the most fundamental, a particular

interest lies. In making these judgments, courts should consider

not only the liberties guaranteed by the text of the Constitution,

but also the “purposes of those guarantees and . . . the reasons

for their statement by the Framers.” /d.

Amici urge that physician-assisted suicide is one of the most

important liberties protected by the Due Process Clause,

implicating as it does “the right to define one’s own concept of

.. . the mystery of human life.” Casey, 505 U.S. at 851. Our

long tradition of individual religious liberty and government

noninterference with religious decisions, exemplified by the

religion clauses of the First Amendment, serves to confirm that

the “perplexing question” of physician-assisted suicide, with its

“unusually strong moral and ethical overtones,” Cruzan v.

Director, Missouri Dep't of Health, 497 U.S. 261, 277 (1990), is

an intimate, personal, and ultimately spiritual decision

appropriately reserved to the individual’s own conscience.

The purposes and reasons behind the Free Exercise Clause bear

this out. The many diverse religious faiths represented in this

country have many diverse views on the theological and moral

propriety of physician-assisted suicide. Some religious denomina-

tions absolutely oppose physician-assisted suicide in all instances.

Others, while stating no formal church position, have taken the

position that an individual’s decisions about death should be

honored. Still others affirmatively support “the right to self-

determination in dying.” In the light of this diversity of religious

views on the subject, the Due Process Clause’s liberty guarantee

should be understood to protect a competent, terminally ill adult’s

decision to end his or her life (or not) with the aid of a physician,

just as the Free Exercise Clause protects an individual's right “to

maintain theories of life and of death and of the hereafter.”

United States v. Ballard, 322 U.S. 78, 86 (1944).

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Similarly, because the common-law’s historical bans upon

suicide are rooted in the incorporation of Roman Catholic canon

law into the English common law, laws banning physician-assisted

suicide raise serious Establishment Clause concerns. Laws that

endorse one religious view over others, and have overtly religious

purposes, are irreconcilable with the values underlying the

Establishment Clause. Lee v. Weisman, 505 U.S. 577, 587-88

(1992); Edwards v. Aguilard, 482 U.S. 578, 592-93 (1987).

Finally, the Washington and New York bans upon physician-

assisted suicide cannot survive the “particularly careful scrutiny”

— that is, strict scrutiny — required by the Due Process Clause.

Casey, 505 U.S. at 848-51. While state regulations designed to

assure competence and voluntariness might be appropriate, these

States’ total bans upon this right are not the least restrictive means

for furthering any compelling state interest.

ARGUMENT

This Court has endorsed the second Justice Harlan’s vision of

the substantive liberty guarantee of the Fourteenth Amendment's

Due Process Clause. See, e.g., Planned Parenthood v. Casey,

505 U.S. 833 (1992). Justice Harlan recognized that the Due

Process Clause requires courts to balance, carefully, the two

primary — yet often conflicting — aspirations of a free soc‘ety:

the “liberty of the individual,” on the one hand, and “the

demands of organized society,” on the other. Poe v. Ullman, 367

U.S. 497, 542 (1961) (Harlan, J., dissenting); see also Casey,

tne g at 850; Rochin v. California, 342 U.S. 165, 171-72

( ).

> This accommodation of individual and state interests allows for a wide

range of legitimate regulation. Only as the burden imposed on a

protected right becomes increasingly direct and substantial must the

asserted state interest be strong and the regulation narrowly tailored to

serve that interest. Accordingly, although all infringements of protected

liberties are subject to a careful balancing of the individual’s interest

against the government’s interest, strict scrutiny applies only when the

government unduly burdens or proscribes a protected right. Planned

4

The end result of this balancing is clear in these cases: A

competent, terminally ill person’s ability to choose to ha*’en his

or her death is a constitutionally protected “liberty of the

individual,” which is derived not only from the “liberty”

component of the Due Process Clause but also from the religion

clauses of the First Amendment. The “demands of organized

society” do not justify the absolute bans imposed on this liberty

by Washington and New York.

I. THE WASHINGTON AND NEW YORK BANS ON

PHYSICIAN-ASSISTED SUICIDE BURDEN CORE

LIBERTY INTERESTS PROTECTED BY THE DUE

PROCESS CLAUSE OF THE FOURTEENTH AMEND-

MENT AND THE RELIGION CLAUSES OF THE FIRST

AMENDMENT

The term “liberty” in the Fourteenth Amendment's Due

Process Clause is, admittedly, broad, encompassing every

“liberty” from the most insignificant to the most fundamental.

See Poe, 367 U.S. at 543 (Harlan, J., dissenting) (observing that

liberty encompasses, at a minimum, “freedom from all substantial

arbitrary impositions and purposeless restraints”) (citing cases).

As this Court recently reiterated in Casey, it is the task of judges,

using “‘a reasonable and sensitive judgment,’” to determine

where along that “‘rational continuum’” a particular liberty lies.

505 U.S. at 848 (quoting Poe, 367 U.S. at 543 (Harlan, J.,

dissenting)). The more fundamental the liberty interest, the more

“careful scrutiny” must be given “the state needs asserted to —

justify [its] abridgement.” Poe, 367 U.S. at 543 (Harlan, J.,

dissenting).

Parenthood v. Casey, 505 U.S. 833, 873-75 (1992); Poe v. Ullman, 367

U.S. 497, 548-49 (1961) (Harlan, J., dissenting); see generally Note,

Who Decides If There Is “Triumph in the Ultimate Agony?”

Constitutional Theory and the Emerging Right To Die with Dignity, 37

Wm. & Mary L. Rev. 827 (1996) (providing an extended analysis of

Justice Harlan’s approach as applied to physician-assisted suicide).

eat tee eee a ee ee eT

5

As Justice Harlan explained, in assessing whether and to what

extent an asserted liberty interest merits constitutional protection,

the courts must

hav[e] regard to what history teaches are the traditions from

which [the asserted interest] developed as well as the traditions

from which it broke. That tradition is a living thing. A

decision of this Court which radically departs from it could not

long survive, while a decision which builds on what has

survived is likely to be sound.

Id. at 542. It is thus clear that courts are not precluded from

recognizing even “an apparently novel claim” of a liberty interest,

so long as the claim “depend{s] on grounds which follow from

well-accepted principles and criteria.” Jd. at 544. In other

words, the newly recognized liberty interest must “take ‘its place

in relatior to what went before and further [cut] a channel for

what is to come.’” Jd. (quoting Irvine v. California, 347 U.S.

128, 147 (1954) (Frankfurter, J., dissenting)).

The liberties secured by the Bill of Rights necessarily qualify

as “well-accepted principles,” Poe, 367 U.S. at 543-44 (Harlan,

J., dissenting), but the “liberty” embraced by the Fourteenth

Amendment is broader than the mere text of those guarantees.

“[Ijt is the purposes of those guarantees and not their text, the

reasons for their statement by the Framers and not the statement

itself, ... which have led to their present status in the

compr.dious notion of ‘liberty’ embraced in the Fourteenth

Amendment.” /d. at 544 (Harlan, J., dissenting); see also Palko

v. Connecticut, 302 U.S. 319, 324-27 (1937); United States v.

Carolene Products Co., 304 U.S. 144, 152-53 (1938).

As we show below, a terminally ill individual's ability to

choose physician-assisted suicide “follow[{s] from well-accepted

principles and criteria,” Poe, 367 U.S. at 544 ‘Harlan, J.,

dissenting), which derive both from the First Amendment’s

protection of religious freedom and from the Fourteenth

Amendment's proscription of undue government interference in

intimate, personal, and spiritual decisions.

6

A. The Interests Reflected In The Free Exercise Clause

And The Liberty Component Of The Due Process

Clause Establish That Physician-Assisted Suicide Is A

Core Constitutionally Protected Liberty

1. Religious Organizations And Religious Leaders

Have Taken A Wide Array Of Positions On The

Morality Of Physician-Assisted Suicide

It should be emphasized at the outset that there is “no

monolithic ‘religious’ position on the question of the morality or

legality” of assisted suicide. G. Larue, Playing God — 50

Religions’ Views on Your Right to Die 8 (1996); Campbell,

Religious Ethics and Active Euthanasia in a Pawatistic Society, 2

Kennedy Inst. of Ethics J. 253, 253-54 (1992). Rather, a

“diversity of religious argumentation” exists about whether an

individual may morally and ethically choose physician-assisted

suicide. Campbell, 2 Kennedy Inst. of Ethics J. at 254.° The

controversy surrounding physician-assisted suicide is, therefore,

not merely “a clash of religious versus secular ethics.” /d.

Indeed, the intense debate over this issue — both among and

within religious denominations — underscores that assisted suicide

is, for many people, a religious question.°

3 See also Note, Assisted Suicide and Religion: Conflicting Conceptions

of the Sanctity of Human Life, 84 Geo. L.J. 589, 596-601 (1996).

* Religious communities are also debating whether the term “suicide”

should properly be used to refer to the informed and voluntary decision

of a competent, terminally ill individual to hasten death with physician

assistance. See Compassion in Dying v. Washington, 79 F.3d 790, 808

(9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).

‘Even within religious denominations that institutionally oppose

physician-assisted suicide, many of their members may personally hold

a different view, which they believe to be consistent with their own

religious beliefs. See G. Larue, Playing God — 50 Religions Views on

Your Right to Die 8 (1996); Campbell, Religious Ethics and Active

Euthanasia in a Pluralistic Society, 2 Kennedy Inst. of Ethics J. 253,

255-56 (1992) (citing a study finding that 70-80% of those affiliated with

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The Roman Catholic Church, to be sure, has been “the

sternest, most vigilant, and no doubt most effective opponent of

euthanasia.” R. Dworkin, Life’s Dominion 195 (1993). Several

other Christian denominations — but by no means all of them

— have adopted “official” church positions against the morality

of physician-assisted suicide. See generally G. Larue, Euthanasia

and Religion: A Survey of the Attitudes of World Religions to the

Right-to-Die 26-117 (1985) (surveying various Christian

denominations). Those Christian denominations that oppose

physician-assisted suicide do so on two theological grounds: first,

that physician-assisted suicide violates the Commandment that

“thou shalt not kill,” and second, “‘that suffering is often sent by

God for the remission of sins and the salvation of our souls: so if

God has sent someone pain which cannot be alleviated by normal

means (pain-killer shots, etc.), we must resign ourselves in the

knowledge that this pain is necessary and inevitable.’” Jd. at 55-

56 (quoting Russian Orthodox Archpriest A. Mileant). It is thus

acknowledged, even by opponents of physician-assisted suicide,

that the suffering of terminally ill people has a spiritual

dimension.°

These are not the only religious positions, however, on

whether the terminally ill may choose to hasten death with

physician assistance. The Episcopal Church, for instance, “has

not formulated and published any official position on the questions

surrounding euthanasia,” explaining that to do so would

“presuppos[e] a kind of authority of theological teaching and

writing which is not relevant in the Episcopal Church.” G.

the major religions supported physician-assisted suicide).

*See Campbell, 2 Kennedy Inst. of Ethics J. at 268-69 (quoting the

Catholic teaching that “‘suffering during the last moments of life. . . is

in fact a sharing in Christ’s passion’”); Episcopal Diocese of

Washington, D.C., Committee on Medical Ethics, Are Assisted Suicide

and Euthanasia Morally Acceptable for Christians? Perspectives to

Consider 12-13 (1996) (noting Christian views of the spiritual

significance of suffering).

8

Larue, Euthanasia and Religion, supra, at 58 (quotation omitted).

Amicus Episcopal Diocese of Newark thus appointed a Task Force

on Assisted Suicide to study the issue in conjunction with the

teachings of the Episcopal Church. The Task Force concluded

that physician-assisted suicide “can be theologically and ethically

justified” when a terminally ill person makes a voluntary and

informed choice after all reasonable means of ameliorating his or

her suffering have been exhausted.’

The United Church of Christ, the United Methodist Church,

and the Presbyterian Church, among others, likewise have not

adopted any formal position on physician-assisted suicide. A

number of these denominations have taken the position more

generally, however, that “basic Christian respect for persons

demands that a person’s decisions about death be honored in most

instances.”* These denominations encourage their members to

offer compassion and understanding — rather than moral

absolutes — to terminally ill individuals who are faced with the

difficult choice whether to end their own lives.’ In accordance

with this teaching, the Pacific Northwest Conference of the

United Methodist Church supported Washington Initiative 119,

which would have recognized a right to physician-assisted suicide

’ Episcopal Diocese of Newark Task Force on Assisted Suicide, Report

9 (1996).

* Presbyterian Church (U.S.A.), Christian Faith and Life Area,

Congregational Ministries Division, Jn Life and Death We Belong to

God: Euthanasia, Assisted Suicide, and End-of-Life Issues 47 (1995)

(citing 195th General Assembly position on “The Covenant of Life and

the Caring Community” (1983)); see also United Church of Christ, The

Council for Health and Human Service Ministries, Making End-of-Life

Decisions: United Church of Christ Perspectives 24 (1993) (supporting

“the right and responsibility of individuals to choose their own destiny”

as well as “the rights of individuals, their designees and their families

to make decisions regarding human death and dying”).

* See United Church of Christ, Making End-of-Life Decisions at 24;

United Methodist Church, Book of Resolutions 144 (1992).

9

in some circumstances. Campbell, 2 Kennedy Inst. of Ethics J.

at 261.

The reformed and humanistic branches of Judaism also teach

sympathy, understanding, and respect for those who choose

assistance in hastening death. See G. Larue, Playing God, supra,

at 62-65. Some Jewish organizations, including two of the amici

here, take the position that a competent, terminally ill adult has

the right to voluntarily hasten death with the aid of a physician.

See id. at £4-66; see also id. at 56 (reprinting rabbi’s statement

with respect to Washington Initiative 119 that “[s}ometimes in a

medical setting human freedom needs to be exercised resolutely

to bring life to an end”).

Still other religions have taken more formal institutional

positions supporting the right to physician-assisted suicide. The

General Assembly of amnicus Unitarian Universalist Association

supports “the right to self-determination in dying, and the release

from civil or criminal penalties of those who, under proper

safeguards, act to honor the right of terminally ill patients to

select the time of their own deaths.”"° Amicus Cathar Church,

which is Evangelical in doctrine and has some similarity to the

Amish and Mennonites, has taught for several centuries that

Cecisions regarding the time and manner of death are matters of

individual conscience best left to the individual and his or her

God. Many Eastern religions also support a choice of physician-

assisted suicide in certain circumstances. See Note, Assisted

Suicide and Religion: Conflicting Conceptions of the Sanctity of

Human Life, 84 Geo. L.J. 589, 597 (1996).

As the foregoing discussion demonstrates, the religious

community is sharply divided, on theological and ethical grounds,

as to the propriety of physician-assisted suicide. This confirms

the correctness of this Court’s observation in Cruzan v. Director,

Missouri Dep't of Health, 497 U.S. 261, 277 (1990), that “all

General Assembly of the Unitarian Universalist Association of

Congregations, The Right to Die with Dignity (1988).

10

agree” that an individual’s decision to hasten death “is a

perplexing question with unusually strong moral and ethical

overtones.” The Washington and New York statutes, however,

dictate only one answer to that “perplexing question” to persons

of all religious faiths.

2. A Terminally Ill Person’s Decision To Hasten Death

Is The Sort Of Personal, Intimate, Often Spiritual

Decision To Which The First And Fourteenth

Amendments Afford Protection

This Court has recognized in many diverse contexts that each

individual should be allowed to define for himself or herself what

constitutes a meaningful existence. The Due Process Clause has

thus been held to protect “personal decisions relating to marriage,

education.” Casey, 505 U.S. at 851. Similarly, the First

Amendment freedoms have been recognized to occupy a

“preferred position in our basic [constitutional] scheme,” Prince

v. Massachusetts, 321 U.S. 158, 164-65 (1944) because “under

their shield many types of life, character, opinion and belief can

develop unmolested and unobstructed.” Cantwell v. Connecticut,

310 U.S. 296, 310 (1940)."" At the heart of individual liberty,

therefore, is “the right to define one’s own concept of existence,

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

Casey, 505 U.S. at 851; see generally Olmstead v. United States,

277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (“The makers

of our Constitution . . . recognized the significance of man’s

spiritual nature . . . [and] knew that only a part of the pain,

" See also Doe v. Bolton, 410 U.S. 179, 211 (1973) (Douglas, J.,

concurring) (recognizing the importance of preserving an individual's

“autonomous control over the development and expression of one’s

intellect, interests, tastes, and personality”); Heymann & Barzelay, The

Forest and the Trees: Roe v. Wade & Its Critics, 53 B.U. L. Rev. 765,

773 (1973) (noting “! he similarity of the protected rights in the areas

of marriage, procreation and child rearing to the expressly protected

rights in the areas of religion”).

11

pleasure, and satisfactions of life are to be found in material

things.”).

A terminally ill person’s decision to hasten death is a deeply

personal, intimate, and often spiritual one, which is made only

after solemn reflection, meditation, or prayer, and after

consultation with doctors, family, and clergy. It is a decision

that raises “profound issues of human meaning and purpose, of

identity and destiny” — issues that “strike to the very core of our

being and integrity as persons.” Campbell, 2 Kennedy Inst. of

Ethics J. at 275; see Cruzan, 497 U.S. at 343 (Stevens, J.,

dissenting) (“[oJur ethical tradition has long regarded an

appreciation of mortality as essential to understanding life’s

significance”). We frequently turn to religion when we are

confronted by these sorts of issues: people “expect rom the

various religions answers to the riddles of the human condition:

. . . What is the meaning and purpose of our lives? .. . What

are death, judgment, and retribution after death?” United States

v. Seeger, 380 U.S. 163, 182 (1965). Indeed, “not much may be

said with confidence about death unless it is said from faith.”

Cruzan, 497 U.S. at 343 (Stevens, J., dissenting).

It has thus been recognized that “religion lies at the very heart

of” a terminally ill person’s decision whether to hasten death.

Note, 84 Geo. L.J. at 589." The decision implicates attitudes

" See, e.g., Presbyterian Church (U.S.A.), Jn Life and Death We Belong

to God at 43 (the decision to commit physician-assisted suicide should

be made “thoughtfully and prayerfully, in collaboration with

knowledgeable persons not emotionally captured by the situation”); G.

Larue, Euthanasia and Religion: A Survey of The Attitudes of World

Religions to the Right-to-Die 87 (1985) (quoting the United Methodist

Church General Council's 1980 statement on Death With Dignity as

recognizing the “agonizing personal and moral decisions faced by the

dying, their physicians, their families, and their friends”).

See United Church of Christ, Making End-of-Life Decisions at 5

(noting the “intricacies of religious, medical, social, and emotional

factors” in each case of terminal illness).

12

that, for many, are deeply rooted in their religious faith, including

attitudes about self-definition, self-determination, and suffering.

Many individuals view their decisions about matters of

personal “identity and destiny” as inherently religious ones. As

one Protestant religious leader has put it, “the Christ experience

is nothing less than our call to be who we are,” so “I worship . .

. Jesus when I claim my own being and live it out

courageously.”"* A number of religious organizations have

recognized that dying and death provide terminally ill individuals

with a final opportunity to “claim [their] own being,” consistent

with their own philosophical, ethical, and spiritual attitudes about

“human meaning and purpose.” See Campbell, 2 Kennedy Inst.

of Ethics J. at 275 (“our concern about dying well is integral to

an understanding of how we might live a rich, meaningful

life”). For example, “[sJome persons in terminal conditions

long for death as a means of being embraced by the divine,” and

thus may seek a voluntarily hastened death as a means of

“profoundly exercis[ing] their faith when that may be the most

meaningful act of creation available to them.” G. Larue, Playing

God, supra at 396 (reprinting report of Greater Seattle Council of

Churches). Other terminally ill persons may decide that

continuing to exist only with a body racked by pain, or a mind

numbed by sedatives, strips them of their personhood. Still

others may not want to be remembered in their present condition

'* Bishop J.S. Spong, Rescuing the Bible from Fundamentalism: A Bishop

Rethinks the Meaning of Scripture 242 (1991).

'S See United Church of Christ, Making End-of-Life Decisions at 5 (1993)

(“The responsibility for life and death is a sacred one, and God cails on

us to face up to our freedom of choice.”); Episcopal Diocese of

Washington, D.C., Are Assisted Suicide and Euthanasia Morally

Acceptable for Christians? at 21 (noting the view that “Christians have

distinctive and compelling reasons for taking these claims of autonomy

with great seriousness,” because “[w]je are created in the image and

likeness of God (Genesis 1: 26-37)” and “[aJn essential part of that

image is our ability to make free choices”).

13

“after [their] death by those whose opinions mattered to [them].”

Cruzan, 497 U.S. at 344 (Stevens, J., dissenting).

There is a spiritual dimension, as well, to individuals’ attitudes

toward suffering and whether to seek final relief from suffering.

With respect to a similarly difficult and intimate issue, this Court

observed in Casey that the “suffering” endured by a pregnant

woman — ranging from “anxieties, to physical constraints, to

pain that only she must bear” — is “too intimate and personal for

the State to insist” that she continue her pregnancy to term.

Casey, 505 U.S. at 852. A woman's decision whether to

continue or end a pregnancy must, therefore, “be shaped to a

large extent on her own conception of her spiritual imperatives.”

Id. The same logic applies to decisivns to end one’s “suffering”

from a terminal illness by hastening one’s death; few decisions

are more “intimate and personal,” and few are more shaped by

‘*Contrary to the claims of some other religious amici (see, e.g.,

National Catholic Office & Knights of Columbus Br. 4; United States

Catholic Conference et al. Br. 13-15), physician-assisted suicide may be

inextricably intertwined with a terminally il! person's interest in pursuing

a meaningful life. The fear of a painful or undignified death may hinder

terminally ill individuals from resolving the unsettled aspects of their

lives in a meaningful fashion. If such individuals are assured that they

may choose the time, place and manner of their death, they are freed to

live out their remaining days in a personally meaningful fashion and to

come to peace with themselves, with others, and with their God. See,

e.g., Quill, Commentary, Death and Dignity: A Case of Individualized

Decision Making, 324 New Eng. J. Med. 691, 693 (1991) (describing

a woman whose fear of a “lingering death” was interfering with her

ability to get “the most out of the time she had left”). This is precisely

why durable powers of attorney and living wills are recognized and

enfo.ced: people benefit in life from knowing that their wishes will be

respected at and after death. Stacy, Death, Privacy, and the Free

Exercise of Religion, 77 Corn. L. Rev. 490, 535 (1992); United Church

of Christ, Making End-of-Life Decisions at 9 (these devices have “great”

benefits: “providing peace of mind for ourselves and our loved ones by

making decisions that are in harmony with our faith and our beliefs

about stewardship” ).

14

an individual’s “own conception of [his or] her spiritual

imperatives. ”'’

The spiritual aspects of suffering differ from one terminally ill

individual to another. Some view their suffering as connected

with the suffering of Jesus, and thus as a cross that must be borne

until God chooses to lift it. See Campbell, 2 Kennedy Inst. of

Ethics J. at 268-69. For others, however, the suffering and loss

of dignity associated with terminal illness is seen not as bringing

them closer to God, but as distancing them from God. See W.

Farley, Tragic Vision and Divine Compassion 53-59 (1990)

(observing that suffering “reduces the capacity of the sufferer to

exercise freedom, to feel affection, to hope, to love God”)."*

Moreover, as a result of diminished physical capabilities or

mental acuity resulting from the illness itself or from pain

medications, an individual may lose the ability to pray, to study

the teachings of his or her faith, or to interact meaningfully with

family, clergy, or members of the religious community. In

effect, terminally ill individuals may be forced to exist without

their fundamental religious liberties during their final days.

'’ Some amici opposed to physician-assisted suicide have focused on the

physically painful nature of terminal illness, which they contend can be

treated by proper medication and hospice care. Medication, however,

cannot always relieve the pain associated with many terminal illnesses.

Moreover, medication can never address an individual's anguish about

his or her loss of “personhood,” including the loss of physical mobility,

mental acuity, emotional connection to other people, and spiritual

connection to God. See Episcopal Diocese of Washington, D.C., Are

Assisted Suicide and Euthanasia Morally Acceptable for Christians? at

22; United Church of Christ, Making End-of-Life Decisions at 4.

'* See also Episcopal Diocese of Washington, D.C., Are Assisted Suicide

and Euthanasia Morally Acceptable for Christians? at 22 (noting that

suffering “can be destructive of moral and spiritual values and the very

dignity with which God has endowed us”); Campbell, 2 Kennedy Inst.

of Ethics J. at 269 (suggesting that suffering “presents a threat to the

integrity and identity of the self”).

15

Hence, the decision whether to hasten a rapidly impending

death will be resolved differently by different individuals, based

on their own philosophical, ethical, and religious beliefs. Some

will reject physician-assisted suicide as contrary to the teachings

of their faith. That decision is, of course, entitled to the utmost

respect. » thers, however, may conclude that physician-assisted

suicide is a morally appropriate choice — perhaps the most

morally appropriate choice — in the circumstances according to

their understanding of the teachings of their faith. See, e.g., G.

Larue, Playing God, supra, at 396 (some terminally ill persons

view a voluntarily hastened death as a “profoun{d] exercise [of]

their faith”); Episcopal Diocese of Newark Task Force on

Assisted Suicide, Report 9 (1996) (suggesting that there are

circumstances in which “involuntary prolonged physical existence

is a less ethical alternative than a conscientiously chosen and

merciful termination of earthly life”).

That decision, too, should be respected by the government. It

is a decision that implicates an individual’s right under the Free

Exercise Clause “to maintain theories of life and of death and of

the hereafter.” United States v. Ballard, 322 U.S. 78, 86 (1944).

Just as the Free Exercise Clause protects an individual's right to

pursue his or her own understanding of the mysteries of life and

death, see, e.g., id., the Due Process Clause should protect an

individual’s right to make an informed decision whether to

continue life in the face of a terminal illness. See Casey, 505

U.S. at 851 (“the right to define one’s own concept” of, inter

alia, “the mystery of human life” is “[a}t the heart of liberty”).

Like other expressions of belief that emanate from “the kingdom

of the individual man and his God,” an individual's choice of

physician-assisted suicide “should be kept . . . private,” not

“confounded with what legislatures legitimately may take over

into the public domain.” Everson v. Board of Education, 330

U.S. 1, 57-58 (1947) (Rutledge, J., dissenting).

For these reasons, the Washington and New York statutes are

irreconcilable with the motivating spirit of the First and

Fourteenth Amendments. Those terminally ill persons whose

religions recognize that physician-assisted suicide is an

16

appropriate ethical and moral choice, or that the determination is

best left to the individual’s own conscience, are prevented from

making this most personal decision in accordance with their “own

conception of [their] spiritual imperatives.” Casey, 505 U.S. at

852.

B. The Interests Reflected In The Establishment Clause

Confirm That Physician-Assisted Suicide Is A Core

Constitutionally Protected Liberty

The “purposes” and “reasons” underlying the Establishment

Clause provide further support for recognizing physician-assisted

suicide as a core constitutionally protected liberty under the Due

Process Clause. See Poe, 367 U.S. at 542 (Harlan, J.,

dissenting). State bans on physician-assisted suicide are so akin

to a government endorsement of religious doctrine as to raise

serious Establishment Clause concerns.

At the core of the Establishment Clause is a prohibition on

governmental favoritism of a particular religion or of religion

generally: “A proper respect for both the Free Exercise and the

Establishment Clauses compels the State to . . . favo[r] neither

one religion over others nor religious adherents collectively over

nonadherents.” Board of Education of Kiryas Joel Village School

Dist. v. Grumet, 114 S. Ct. 248i, 2487 (1994) (citation and

internal quotation omitted). This Court has thus carefully

scrutinized government action that appears to endorse or reject a

religious position, or to compel or coerce support for a religious

belief or practice. See, e.g., Lee v. Weisman, 505 U.S. 577,

587-88 (1992); Grand Rapids School Dist. v. Ball, 473 U.S. 373,

389-90 (1985); Lynch v. Donnelly, 465 U.S. 668, 690-94 (1984)

(O’Connor, J., concurring). In adopting a view of physician-

assisted suicide that is sponsored by, e.g., the Roman Catholic

Church, but not accepted by, e.g., the Unitarian Universalist

Association, the Washington and New York assisted-suicide bans,

in essence, endorse one religious viewpoint to the exclusion of all

others. Such endorsement of religious views runs contrary to the

“purposes” and “reasons” behind the Establishment Clause.

17

The statutorily imposed requirement that the terminally ill

endure their suffering, rather than terminate it by physician-

assisted suicide, conveys an endorsement of the belief, not shared

by all religions, that suffering is religiously significant and

appropriate. More specifically, the states’ efforts to draw a line

between “passive” methods of hastening death (which they

concede are permissible) and “active” methods (which they argue

are impermissible) does nothing less than legalize one religious

view and criminalize others." This effectively “prescribe(s]

what shall be orthodox” with respect to voluntarily hastened

death, and compels the terminally ill “to confess by . . . [the] act

[of their continued existence in the face of suffering] their faith

therein.” West Virginia Board of Education v. Barnette, 319 U.S.

624, 642 (1943).

To be sure, this Court has held that statutes do not violate the

Establishment Clause simply because they reflect “traditionalist”

values. See Harris v. McRae, 448 U.S. 297, 319-20 (1980). But

bans against assisted suicide are not merely reflections of a

“traditionalist” view. To the contrary, laws against suicide stem

from the incorporation into the English common law of the canon

'° See, e.g., New York Br. 16-18 (attempting to justify New York’s ban

on physician-assisted suicide by reference to the “difference between

action and inaction”); United States Catholic Conference er al. Br. 18

n.11 (suggesting that actively hastening one’s own death is a sin); Union

of Orthodox Jewish Congregations & Rabbinical Council Br. 7-8

(interpreting Jewish law as forbidding active methods of hastening death

but allowing passive methods in some circumstances); Evangelical

Lutheran Church Br. 3 (arguing that the distinction between active and

passive methods of hastening death is firmly grounded “within the limits

of Christian charity”); Brief for the United States and New York

Catholic Conferences as amici curiae 25 n.63, Quill v. Vacco, 80 F.3d

716 (2d Cir. 1996) (No. 95-7028) (arguing that the “ethical difference

between action and inaction “has long been acknowledged by the

Christian moral tradition” and that the “refusal of a technique which is

already in use . . . is not the equivalent of [the sin of] suicide”). See

generally Campbell, 2 Kennedy Inst. of Ethics J. at 258-63 (table of

“Religious Views on the Right to Die”).

18

law of the Roman Catholic Church. This should cause these bans

on assisted suicide to raise Establishment Clause concerns. In this

regard, a summary of the origins of suicide laws may be useful

to the Court.

“There is nothing in the Old Testament which can clearly be

understood as offering explicit judgment on the ancient Judaic

view of suicide”; nor is there any “offering in the New Testament

to suggest a condemnation of suicide.” Neely, The Right to Self-

Directed Death: Reconsidering an Ancient Proscription, 36 Cath.

Law. 111, 121 (1995). In fact, “[iJn the Bible, five people are

reported to have ended their own lives (I Samuel 31, I] Samuel

17, I Kings 16 and Matthew 27), and the fact of their action is

simply reported with no moral judgement implied; at no point is

condemnation expressed for their having done so.” G. Larue,

Playing God, supra at 420-22 (quoting Rev. Sallierae Henderson).

Among early Christians, in fact, suicide was not particularly

unusual. Because “the supreme duty in this life was to avoid the

sin which would result in eternal damnation,” the early Christians

considered it permissible to commit suicide rather than risk

condemnation. Neely, 36 Cath. Law. at 121. Indeed, given that

martyrdom at the hands of infidels was an especially prized end,

“fanatical Christians” — in particular, a sect known as the

Circumcelliones — would invite their own death by “taunt[ing]

their Roman persecutors into acts of violence.” /d. at 122; see

also G. Williams, The Sanctity of Life and the Criminal Law 254-

55 (1957); Compassion in Dying v. Washington, 79 F.3d 790,

808 (9th Cir.) (en banc), cert. granted, 117 S. Ct. 37 (1996).

Augustine, who opposed the Circumcelliones’ excesses in the

name of religion, became “the chief architect” of the Roman

Catholic view that suicide is encompassed by the Commandment

against killing. G. Williams, supra at 255. “St. Augustine

argued that committing suicide was a ‘detestable and damnable

wickedness’ and was able to help turn the tide of public opinion”

against suicide. Compassion in Dying, 79 F.3d at 808 (citing

Marzen et al., Suicide: A Constitutional Right?, 24 Duq. L. Rev.

1, 27 (1985)). Augustine’s views on suicide were eventually

Mtoe oo

19

incorporated into the canon law of the Catholic Church. See N.

St. John-Stevas, Life, Death and the Law 233, 249 (1961) (citing

5 A. Neander, General History of the Christian Religion and

Church 141 (Joseph Torrey trans. 1865)). In the year 673, the

Council of Hereford adopted the Roman Catholic canon law,

including its prohibition against suicide, into England. See

G. Williams, supra at 257. King Edgar formalized this

prohibition in the year 967. See Neely, 36 Cath. Law. at 128.

As a result, the prohibition against suicide became part of the

common law of England as it emerged around the Twelfth

Century. /d.; see also Compassion in Dying, 79 F.3d at 845

(Beezer, J., dissenting) (“Between the decline of the Roman

Empire and the rise of the Common Law, ecclesiastical law was

a dominant force in the English legal order.”). One of the first

English law treatises, written most likely between 1220 and 1260,

explained that suicide was criminalized because of the Augustinian

rationale: “In the same way, in which a person may commit a

felony by killing another, so he may commit a felony by killing

himself, which felony indeed is said to be committed against

himself.” 2 H. de Bracton, De Legibus et Consuetudinibus

Angliae 505 (Sir Travers Twiss ed. 1879). Similarly, the Court

of King’s Bench, writing in 1562, explained the rationale for the

legal prohibition on suicide. Central to the court’s analysis was

the view that suicide was an “offence . . . against God” as well

as “against nature” and “against the King.” The Court explained

that suicide was “against God” because “it is a breach of His

commandment, thou shalt not kill; and to kill himself, by which

act he kills in presumption his own soul, is a greater offence than

to kill another.” Hales v. Petit, 75 Eng. Rep. 387, 400

(1562).”

* These three reasons were exactly the same ones articulated by St.

Thomas Aquinas in his theological treatise, Summa Theologica: “[I}t is

altogether unlawful to kill oneself for three reasons . . . [first,] suicide

is contrary to the inclination of nature . . . [second,] every man is part

of the community . . . by killing himself he injures the community . . .

[third,] because life is God’s gift to man . . . whoever takes his own

20

Later English legal scholars echoed the same ecclesiastical

underpinnings for the laws against suicide. Sir Matthew Hale

explained that the prohibition upon suicide was grounded in

principal part upon religious objections: “No man hath the

absolute interest of himself but: 1. God almighty hath an interest

and propriety in him, and therefore self-murder is a sin against

God.” I M. Hale, Historia Placitorum Coronae *411-12 (1736).

Blackstone, too, explicitly recognized that this aspect of the

common law was bottomed on “religiou[s]” reasons: “[T]he law

of England wisely and religiously considers, that no man hath a

power to destroy life, but by commission from God.” 4 W.

Blackstone, Commentaries ch. 14, *189 (1765) (emphasis added).

Blackstone thus called suicide a “spiritual” “offence,” in that the

person committing suicide was guilty of “invading the prerogative

of the Almighty, and rushing into [H]is immediate presence

uncalled for.” Jd.

This reasoning, although an accurate reflection of the long-

standing bases for the common law’s prohibitions against suicide,

is contrary to our American constitutional tradition. In light of

our long tradition of religious liberty, arguments that suicide is an

“offence . . . against God,” which “invade[s] the prerogative of

the Almighty,” would never be a proper basis for law in this

country. Indeed, this Court’s Establishment Clause jurisprudence

prohibits enactments that have such a religious “purpose.” See,

e.g., Epperson v. Arkansas, 393 U.S. 97, 103 (1968); Lemon v.

Kurtzman, 403 U.S. at 612-13; Wallace v. Jaffree, 472 U.S. 38,

56 (1985); Edwards v. Aguilard, 482 U.S. 578, 592-93 (1987).

* - *

Under this Court’s prevailing substantive due process analysis

— the one articulated by the second Justice Harlan — physician-

life, sins against God.” St. Thomas Aquinas, Summa Theologica I1-Il,

q. 64, art. 5 (Fathers of the English Dominican Pru vince eds., vol. 2,

pp. 1465 et seqg., 1947). See also Compassion in Dying v. Washington,

79 F.3d at 845-46 (Beezer, J., dissenting); Marzen ef al., Suicide: A

Constitutional Right, 24 Duq. L. Rev. 1, 29 (1985).

oa ee Me

21

assisted suicide is a core constitutional liberty, which derives both

from the specific guarantees (in particular, the religious liberty

clauses of the First Amendment) and the generalized aspects of

“liberty” protected by the Due Process Clause. A terminally ill

individual’s decision to hasten death is inextricably intertwined

with notions of personhood, identity, and theology; amici can

imagine few, if any, personal decisions more appropriate to be

called a protected “liberty” under the Due Process Clause.

Il. THE ASSERTED INTERESTS OF WASHINGTON AND

NEW YORK CANNOT JUSTIFY THE TOTAL

PROHIBITION UPON THE EXERCISE OF A CORE

CONSTITUTIONALLY PROTECTED LIBERTY

As Justice Harlan suggested in Poe and as this Court agreed in

Casey, “certain interests require particularly careful scrutiny of

the state needs asserted to justify their abridgement.” Poe, 367

U.S. at 543 (Harlan, J., dissenting); Casey, 50S U.S. at 848-49.

In the event that the Court concludes, as amici urge in Section I

above, that physician-assisted suicide occupies a preferred place

on the “rational continuum” of liberty, a “particularly careful

scrutiny,” i.e., “strict scrutiny,” should apply to the Washington

and New York bans on assisted suicide. Casey, 505 U.S. at 848,

850-51; Poe, 367 U.S. at 543 (Harlan, J., dissenting). Strict

scrutiny, of course, requires that a statute be the least restrictive

means necessary to achieve a compelling governmental interest.

Neither statute can withstand this analysis.

First, like the contraception statute at issue in Poe, but unlike

the abortion statute at issue in Casey, these statutes operate as

total bans on the asserted liberty interest. Thus, there is no

argument available to the states that any lesser standard of

scrutiny should apply. See generally Dorf, Incidental Burdens on

Fundamental Rights, 109 Harv. L. Rev. 1176, 1219-32 (1996).

As this Court has recognized in Casey and in so many other

cases, statutes with “incidental effect[s]” on fundamental rights

generally pass muster; “undue burden[{s]” on fundamental liberty

rights are always impermissible under the Due Process Clause.

Casey, 505 U.S. at 874. The criminalization of assisted suicide

22

— which constitutes a total ban on that liberty — certainly cannot

be categorized as having an “incidental effect” on the liberty

right. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967)

(statute making interracial marriage a felony).

Second, the interests that Washington and New York have

proffered in support of their bans on assisted suicide simply do

not withstand the “particularly careful scrutiny” mandated by

Casey and by Justice Harlan’s opinion in Poe. While the section

of Washington’s brief purporting to articulate that state’s interests

in banning assisted suicide (Washington Br. 33-38) is not a model

of clarity, the state appears to be asserting two interests: (1) an

unqualified interest in the preservation of human life, and (2)

““preventing deaths that occur as a result of errors in medical or

legal judgment.’” Washington Br. 33, 34. New York appears to

offer essentially the same two interests as justifications for its

statute. New York Br. 19-32.

The states’ first asserted interest — the preservation of life

— is easily dealt with. This Court in Casey held that “a State's

interest in the protection of life falls short of justifying any

plenary override of individual liberty claims.” Casey, SOS U.S.

at 857 (citing Cruzan, 497 U.S. at 278). The State’s imterest in

preserving life in this case is appropriately seen as less weighty

than the interest asserted in Casey, where the state’s interest

(which was “in the protection of potential life,” 505 U.S. at 871

(emphasis added)) aimed to protect a potential life that was in no

position to protect itself. Here, the state laws under consideration

purport to protect the lives of competent adults, who are fully

capable of protecting their own lives (until the terminal illness

runs its course) but who have chosen, for religious and personal

reasons, not to do so.”'

*! Moreover, it is questionable whether the states’ asserted imterest in

preserving the life of a terminally ill person who prefers to die can

properly be deemed compelling, given that the states have not sought to

enforce such an interest with respect to the refusal or termimation of

medical treatment. See Church of the Lukumi Babalu Aye, Inc. v. City

23

The second interest — preventing error and abuse in decisions

regarding death — fares no better. Even assuming that the

asserted interest in preventing erroneous or abusive deaths

constitutes a “compelling” state interest, neither state has satisfied

its burden of establishing that a total ban on physician-assisted

suicide is the least restrictive means for achieving that interest.

If anything, the risk of error and abuse in physician-assisted

suicide is /ower than it is in other end-of-life decisions that the

States do not prohibit. With physician-assisted suicide, a

competent terminally ill individual is solely responsible for

administering the life-ending prescription, and the individual may

change his or her mind. The decision is thus voluntary and

personal.

By contrast, the discontinuation of treatment according to an

advanced directive or to the decision of an appointed surrogate,

cf. Cruzan, 497 U.S. at 283, carries substantially greater risks of

error and abuse, principally because the decision to discontinue

treatment, and the discontinuation itself, are not simultaneous

events. Yet, both Washington and New York allow this latter

means of ending life, with appropriate procedural safeguards —

thus confirming that less restrictive means exist for furthering the

States’ asserted interests in preventing error and abuse. Indeed,

Cruzan seems already to have established that less-restrictive

procedural regulations, such as Missouri's “clear and convincing”

standard of proof for the withdrawal of life-sustaining treatment,

can satisfy a state’s interests, however compelling, in assuring

of Hialeah, 508 U.S. 520, 547 (1993) (“‘a law cannot be regarded as

protecting an interest ‘of the highest order’ . . . when it leaves

appreciable damage to that supposedly vital interest unprohibited’”)

(citations omitted); Cruzan v. Director, Missouri Dep't of Health, 497

U.S. 261, 296, 298 (1990) (Scalia, J., concurring) (arguing that the

scope of the state’s interest in protecting life cannot vary with the means

chosen to hasten death).

24

that a patient is allowed to make “an informed and voluntary

choice.” Cruzan, 497 U.S. at 280.”

In sum, the absolute bans on this fundamental liberty are

unconstitutionally burdensome, they are far more restrictive than

necessary to serve either of the asserted state interests.

CONCLUSION

The judgment of the Court of Appeals for the Second Circuit

in No. 95-1858, and the judgment of the Court of Appeals for the

Ninth Circuit in No. 96-110, should be affirmed.

Respectfully sut mitted,

BARBARA MCDOWELL

(Counsel of Record)

GREGORY A. CASTANIAS

BRIAN C. GOEBEL

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005

(202) 879-3939

December 10, 1996 Attorneys for Amici Curiae

“It has also been recognized that any risk that the terminally ill

individual is coerced into choosing to hasten death is minimized where

the choice is made only after extensive consultation with family, friends,

health care professionals, and clergy. See R. Westley, When it's Right

to Die: Conflicting Voices, Difficult Choices 168-69 (1995); see also G.

Larue, Playing God, supra at 25-26 (noting the variety of unofficial

“countercontrols” that will assure that the decision is informed and

voluntary). Moreover, in order to bolster these informal checks on

coercion, the states may regulate physician-assisted suicide to assure

competency and voluntariness. Cf. Cruzan, 497 U.S. at 280.

ee

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APPENDIX

STATEME®' fS OF INTEREST OF AMICI CURIAE

AMERICANS FOR RELIGIOUS LIBERTY is a nonprofit

public interest educational organization dedicated to defending

religious liberty, freedom of conscience, and the constitutional

principle of separation of church and state. Americans for

Religious Liberty has participated as an amicus in other cases in

this Court that have implicated these concerns. Americans for

Religious Liberty believes that bans on physician-assisted suicide

conflict with fundamental First Amendment guarantees.

THE AMERICAN HUMANIST ASSOCIATION, founded in

1941, has members and local affiliates throughout the United

States. The Association has adopted a formal statement on

physician-assisted suicide that recognizes an individual’s right to

exercise control over the manner and time of dying subject to

adequate safeguards assuring that such actions are wholly

voluntary and clinically appropriate. Consonant with the

principles of autonomy, dignity, and freedom of conscience

underlying the First and Fourteenth Amendments, the Association

believes that the right to hasten death with the aid of a physician

should be protected by this Court.

THE BOARD OF DIRECTORS OF THE SOCIETY FOR

HUMANISTIC JUDAISM oversees an organization that reflects

the beliefs of approximately one-fifth of the world’s Jewish

population, and is dedicated to the promotion of Jewish and

humanistic ideals, including human dignity, integrity, tolerance,

and equal treatment. In view of its respect for the autonomy and

dignity of the individual and its compassion for those who are

suffering, the Board of Directors believes that a terminally ill

person’s decision to end his or her suffering should be honored.

The Board of Directors thus affirms that competent adults should

have the right to make responsible decisions regarding the most

profound and private aspects of their own lives — including the

choice to hasten death in the face of terminal illness — free from

government interference and subject to regulation only to the

extent necessary to provide appropriate safeguards.